United States of America v. Estate of Morris Berkowitz et al
| UNITED STATES OF AMERICA |
| Estate of Morris Berkowitz, Tzodik Weinberg, Maier Arm and Justin Weinberg |
| 1:2023cv03803 |
| May 5, 2023 |
| US District Court for the Southern District of New York |
| Jennifer H Rearden |
| Other Statutes: False Claims Act |
| 31 U.S.C. § 3730 Qui Tam False Claims Act |
| Plaintiff |
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Filing 11
STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: NOW, THEREFORE, upon the Parties' agreement IT IS HEREBY ORDERED that: The Parties agree that this Court has subject matter jurisdiction over this action and consent to this Court's exercise of personal jurisdiction over each of them. Defendant admits, acknowledges, and accepts responsibility for the following conduct (the "Admitted Conduct"): as set forth herein. Defendant shall pay to the Government the sum of $495,000 (the "Settlement Amount") to be paid in two installments as set forth below. Defendant shall make the below referenced payments in accordance with instructions to be provided by the Financial Litigation Unit of the United States Attorney's Office for the Southern District of New York. Of the Settlement Amount, $247,500 constitutes restitution to the United States. Defendant agrees that he shall not seek indemnification from any source with respect to any portion of the Settlement Amount. Within fourteen (14) business days of the Effective Date ( defined below in Paragraph 25), Defendant shall pay the United States the sum of $250,000. On or before October 20, 2023, Defendant shall pay the United States the sum of $245,000. Defendant shall execute and agree to the entry of a consent judgment in favor of the Government and against Defendant in the amount of $495,00, a copy of which is attached hereto as Exhibit A (the "Consent Judgment"). The Government may use the Consent Judgmentto obtain a security interest in any asset or property of the Defendant, but shall not engage in other collection activity with respect to the Consent Judgment so long as Defendant fully complies with the terms of this Stipulation. Should Defendant comply fully with the payment schedule set forth in Paragraph 3 above as well as the other terms of this Stipulation, the Consent Judgment shall be deemed to be satisfied in full and, upon Defendant's request, the Governmentshall file with the Clerk of the Court and deliver to Defendant a Full Satisfaction of Judgment. In the event that Defendant fully pays the Settlement Amount earlier than as provided in the payment schedule set forth in Paragraph 3 above, and fully complies with all other terms of the Stipulation, the Consent Judgment shall be deemed to be satisfied in full and, upon Defendant's request, the Government shall file with the Clerk of the Court and deliver to Defendant a Full Satisfaction of Judgment. Should Defendant fail to comply fully with the payment schedule set forth in Paragraph 3 above or any other term of this Stipulation, Defendant shall be in default of this Stipulation, in which case the Government may take any of the actions set forth in Paragraph 9 below. And as set forth herein. The Clerk of Court is directed to strike ECF No. 9 from the record. SO ORDERED. (Signed by Judge Jennifer H. Rearden on 5/16/2023) (ama)
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| Transmission to Finance Unit (Cashiers). Transmitted re: #11 Stipulation and Order of Dismissal,,,,,,,,,,,, to the Finance Unit (Cashiers) for case processing..(ama) |
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Filing 10
STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: THEREFORE, upon the Parties' agreement IT IS HEREBY ORDERED that: The Parties agree that this Court has subject matter jurisdiction over this action and consent to this Court's exercise of personal jurisdiction over each of them. 2. Defendant admits, acknowledges, and accepts responsibility for the following conduct (the "Admitted Conduct"): Defendant shall pay to the Government within fourteen (14) business days of the Effective Date (defined below in Paragraph 23) the sum of $115,000 (the "Settlement Amount") in accordance with instructions to be provided by the Financial Litigation Unit of the United States Attorney's Office for the Southern District of New York. Of the Settlement Amount, $57,500 constitutes restitution to the United States. Defendant agrees that he shall not seek indemnification from any source with respect to any portion of the Settlement Amount. 4. Defendant agrees to cooperate fully and truthfully with the United States' investigation of individuals and entities not released in this Stipulation. Defendant shall be in default of this Stipulation if Defendant fails to make the required payment set forth in Paragraph 3 above on or before the due date for such payment, or if Defendant fails to comply materially with any other term of this Stipulation that applies to Defendant ("Default"). The Government will provide a written Notice of Default to Defendant of any Default in the manner set forth in Paragraph 22 below. Defendant shall then have an opportunity to cure the Default within seven (7) calendar days from the date of receipt of the Notice of Default by making the payment due and paying any additional interest accruing under the Stipulation up to the date of payment. If Defendant fails to cure the Default within thirty (30) calendar days of receiving the Notice of Default ("Uncured Default"), interest on the remaining unpaid balance shall thereafter accrue at the rate of 12% per annum, compounded daily from the date of Default, on the remaining unpaid total (principal and interest balance). In the event of an Uncured Default, Defendant shall agree to the entry of a consent judgment in favor of the United States against Defendant in the amount of the Settlement Amount as attached hereto as Exhibit A. Defendant also agrees that the United States, at its sole discretion, may (i) retain any payments previously made, rescind this Stipulation, and reinstate the claims asserted against Defendant in the Complaint, or bring any civil and/or administrative claim, action, or proceeding against Defendant for the claims that would otherwise be covered by the release provided in Paragraphs 5 above, with any recovery reduced by the amount of any payments previously made by Defendant to the United States under this Stipulation; (ii) take any action to enforce this Stipulation in a new action or by reinstating the Complaint; (iii) offset the remaining unpaid balance from any amounts due and owing to Defendant by any department, agency, or agent of the United States at the time of Default or subsequently; and/or (iv) exercise any other right granted by law, or under the terms of this Stipulation, or recognizable at common law or in equity. The United States shall be entitled to any other rights granted by law or in equity by reason of Default, including referral of this matter for private collection. In the event the United States pursues a collection action, Defendant agrees immediately to pay the United States the greater of (i) a ten-percent (10%) surcharge of the amount collected, as allowed by 28 U.S.C. 301 l(a), or (ii) the United States' reasonable attorneys' fees and expenses incurred in such an action. In the event that the United States opts to rescind this Stipulation pursuant to this paragraph, Defendant waives and agrees not to plead, argue, or otherwise raise any defenses of statute of limitations, laches, estoppel or similar theories, to any civil or administrative claims that (i) are filed by the United States against Defendant within 120 days of written notification that this Stipulation has been rescinded, and (ii) relate to the Covered Conduct, except to the extent these defenses were available on the date the Complaint was filed. Defendant agrees not to contest any offset, recoupment, and/or collection action undertaken by the United States pursuant to this paragraph, either administratively or in any state or federal court, except on the grounds of actual payment to the United States. the United States has an undisputed, noncontingent, and liquidated allowed claim against a Defendant in the amount of $115,000, less any payments received pursuant to the Stipulation, provided, however, that such payments are not otherwise avoided and recovered from the United States by Defendant, a receiver, trustee, custodian, or other similar official for Defendant. This Stipulation constitutes the complete agreement between the Parties with respect to the subject matter hereof. This Stipulation may not be amended except by written consent of the Parties. No prior agreements, oral representations or statements shall be considered part of this Stipulation. 19. The undersigned counsel and other signatories represent and warrant that they are fully authorized to execute this Stipulation on behalf of the persons and the entities indicated below. 20. This Stipulation is binding on Defendant's successors, transferees, heirs, and assigns. This Stipulation may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Stipulation. E-mails that attach signatures in PDF form or facsimiles of signatures shall constitute acceptable, binding signatures for purposes of this Stipulation. (as further set forth herein). SO ORDERED. (Signed by Judge Jennifer H. Rearden on 5/16/2023) (kv) Transmission to Finance Unit (Cashiers) for processing.
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Filing 9
Vacated as per Judge's Order dated 5/17/2023, Doc. #11 STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: THEREFORE, upon the Parties' agreement IT IS HEREBY ORDERED that: The Parties agree that this Court has subject matter jurisdiction over this action and consent to this Court's exercise of personal jurisdiction over each of them. 2. Defendant admits, acknowledges, and accepts responsibility for the following conduct (the "Admitted Conduct"): a. Weinberg served as the Administrator and Compliance Officer at Morris Park from August 2016 through December 2019. (as further set forth herein). Defendant shall pay to the Government the sum of $495,000 (the "Settlement Amount") to be paid in two installments as set forth below. Defendant shall make the below referenced payments in accordance with instructions to be provided by the Financial Litigation Unit of the United States Attorney's Office for the Southern District of New York. Of the Settlement Amount, $247,500 constitutes restitution to the United States. Defendant agrees that he shall not seek indemnification from any source with respect to any portion of the Settlement Amount. a. Within fourteen (14) business days of the Effective Date ( defined below in Paragraph 25), Defendant shall pay the United States the sum of $250,000. b. On or before October 20, 2023, Defendant shall pay the United States the sum of $245,000. Defendant shall execute and agree to the entry of a consent judgment in favor of the Government and against Defendant in the amount of $495,00, a copy of which is attached hereto as Exhibit A (the "Consent Judgment"). The Government may use the Consent Judgment to obtain a security interest in any asset or property of the Defendant, but shall not engage in other collection activity with respect to the Consent Judgment so long as Defendant fully complies with the terms of this Stipulation. Should Defendant comply fully with the payment schedule set forth in Paragraph 3 above as well as the other terms of this Stipulation, the Consent Judgment shall be deemed to be satisfied in full and, upon Defendant's request, the Government shall file with the Clerk of the Court and deliver to Defendant a Full Satisfaction of Judgment. In the event that Defendant fully pays the Settlement Amount earlier than as provided in the payment schedule set forth in Paragraph 3 above, and fully complies with all other terms of the Stipulation, the Consent Judgment shall be deemed to be satisfied in full and, upon Defendant's request, the Government shall file with the Clerk of the Court and deliver to Defendant a Full Satisfaction of Judgment. Should Defendant fail to comply fully with the payment schedule set forth in Paragraph 3 above or any other term of this Stipulation, Defendant shall be in default of this Stipulation, in which case the Government may take any of the actions set forth in Paragraph 9 below. Defendant shall be in default of this Stipulation if Defendant fails to make the required payment set forth in Paragraph 3 above on or before the due date for such payment, or if Defendant fails to comply materially with any other term of this Stipulation that applies to Defendant ("Default"). The Government will provide a written Notice of Default to Defendant of any Default in the manner set forth in Paragraph 24 below. Defendant shall then have an opportunity to cure the Default within seven (7) calendar days from the date of receipt of the Notice of Default by making the payment due and paying any additional interest accruing under the Stipulation up to the date of payment. If Defendant fails to cure the Default within thirty (30) calendar days of receiving the Notice of Default ("Uncured Default"), interest on the remaining unpaid balance shall thereafter accrue at the rate of 12% per annum, compounded daily from the date of Default, on the remaining unpaid total (principal and interest balance). In the event of an Uncured Default, the United States may initiate a collection action or take any other action with respect to the unpaid portion of the amount specified in the Consent Judgment attached hereto as Exhibit A. This Stipulation constitutes the complete agreement between the Parties with respect to the subject matter hereof. This Stipulation may not be amended except by written consent of the Parties. No prior agreements, oral representations or statements shall be considered part of this Stipulation. The undersigned counsel and other signatories represent and warrant that they are fully authorized to execute this Stipulation on behalf of the persons and the entities indicated below. This Stipulation is binding on Defendant's successors, transferees, heirs, and assigns. This Stipulation may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Stipulation. E-mails that attach signatures in PDF form or facsimiles of signatures shall constitute acceptable, binding signatures for purposes of this Stipulation. (as further set forth herein). SO ORDERED. Tzodik Weinberg terminated. (Signed by Judge Jennifer H. Rearden on 5/16/2023) (kv) Transmission to Finance Unit (Cashiers) for processing. Modified on 5/17/2023 (ama).
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Filing 8
STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: THEREFORE, upon the Parties' agreement IT IS HEREBY ORDERED that: The Parties agree that this Court has subject matter jurisdiction over this action and consent to this Court's exercise of personal jurisdiction over each of them. 2. Defendant admits, acknowledges, and accepts responsibility for the following conduct (the "Admitted Conduct"): as further set forth herein. Defendant shall pay to the Government within fourteen (14) business days of the Effective Date (defined below in Paragraph 25) the sum of $2,850,000 (the "Settlement Amount") in accordance with instructions to be provided by the Financial Litigation Unit of the United States Attorney's Office for the Southern District of New York. Of the Settlement Amount, $1,650,000 constitutes restitution to the United States. 4. Defendant agrees to cooperate fully and truthfully with the United States' investigation of individuals and entities not released in this Stipulation. Upon reasonable notice, Defendant shall encourage, and agrees not to impair, the cooperation of Morris Park's directors, officers, and employees, and shall use its best efforts to make available, and encourage, the cooperation of former directors, officers, and employees for interviews and testimony, consistent with the rights and privileges of such individuals. Defendant further agrees to furnish to the United States, upon request, complete and unredacted copies of all non privileged documents, reports, memoranda of interviews, and records in its possession, custody, or control concerning any investigation of the Covered Conduct that it has undertaken, or that has been performed by another on its behalf. Defendant shall be in default of this Stipulation if Defendant fails to make the required payment set forth in Paragraph 3 above on or before the due date for such payment, or if Defendant fails to comply materially with any other term of this Stipulation that applies to Defendant ("Default"). The Government will provide a written Notice of Default to Defendant of any Default in the manner set forth in Paragraph 24 below. Defendant shall then have an opportunity to cure the Default within seven (7) calendar days from the date of receipt of the Notice of Default by making the payment due and paying any additional interest accruing under the Stipulation u,p to the date of payment, If Defendant fails to cure the Default within thirty (30) calendar days of receiving the Notice of Default ("Uncured Default"), interest on the remaining unpaid balance shall thereafter accrue at the rate of 12 % per annum; compounded daily from the date of Default, on the remaining unpaid total (principal and interest balance). the United States has an undisputed, noncontingent, and liquidated allowed claim against Defendant in the amount of $2,850,000, less any payments received pursuant to the Stipulation, provided, however, that such payments are not otherwise avoided and recovered from the United States by Defendant, a receiver, trustee, custodian, or other similar official for Defendant. This Stipulation constitutes the complete agreement between the Parties with respect to the subject matter hereof This Stipulation may not be amended except by written consent of the Parties. No prior agreements, oral representations or statements shall be considered part of this Stipulation. The undersigned counsel and other signatories represent and warrant that they are fully authorized to execute this Stipulation on behalf of the persons and the entities indicated below. This Stipulation is binding on Defendant's successors, transferees, and assigns. This Stipulation may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Stipulation. E-mails that attach signatures in PDF form or facsimiles of signatures shall constitute acceptable, binding signatures for purposes of this Stipulation. (as further set forth herein). SO ORDERED. (Signed by Judge Jennifer H. Rearden on 5/16/2023) (kv) Transmission to Finance Unit (Cashiers) for processing. Modified on 5/16/2023 (kv).
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| Filing 7 LETTER addressed to Judge Jennifer H. Rearden from AUSA Jeffrey K. Powell dated May 8, 2023 re: Application for Approval of Settlement Agreements. Document filed by United States Of America. (Attachments: #1 Exhibit 1 - Estate of Morris Berkowitz Stipulation, #2 Exhibit 2 - Tzodik Weinberg Stipulation, #3 Exhibit 3 - Maier Arm Stipulation).(Powell, Jeffrey) |
| Filing 6 COMPLAINT against Maier Arm, Estate of Morris Berkowitz, Tzodik Weinberg. Document filed by United States Of America..(Powell, Jeffrey) |
| ***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Jeffrey Kenneth Powell. The party information for the following party/parties has been modified: UNITED STATES OF AMERICA, Tzodik Weinberg. The information for the party/parties has been modified for the following reason/reasons: party name was entered in all caps; alias party name was omitted;. (pc) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Jeffrey Kenneth Powell to RE-FILE Document No. #1 Complaint. The filing is deficient for the following reason(s): the All Defendant radio button was selected;. Re-file the pleading using the event type Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (pc) |
| ***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Jeffrey Kenneth Powell. The following case opening statistical information was erroneously selected/entered: Cause of Action code 31:3729;. The following correction(s) have been made to your case entry: the Cause of Action code has been modified to 31:3730;. (pc) |
| Magistrate Judge Stewart D. Aaron is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (pc) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Jennifer H. Rearden. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #https://nysd.uscourts.gov/rules/ecf-related-instructions..(pc) |
| Case Designated ECF. (pc) |
| Filing 5 PROPOSED STIPULATION AND ORDER. Document filed by UNITED STATES OF AMERICA. (Attachments: #1 Exhibit A -Consent Judgment (Tzodik Weinberg)).(Powell, Jeffrey) |
| Filing 4 PROPOSED STIPULATION AND ORDER. Document filed by UNITED STATES OF AMERICA. (Attachments: #1 Exhibit A - Consent Judgment (Maier Arm)).(Powell, Jeffrey) |
| Filing 3 PROPOSED STIPULATION AND ORDER. Document filed by UNITED STATES OF AMERICA. (Attachments: #1 Exhibit A - Consent Judgment (Estate of Morris Berkowitz)).(Powell, Jeffrey) |
| Filing 2 CIVIL COVER SHEET filed..(Powell, Jeffrey) |
| Filing 1 FILING ERROR - DEFICIENT DOCKET ENTRY - FILED AGAINST PARTY ERROR - COMPLAINT against All Defendants. Document filed by UNITED STATES OF AMERICA..(Powell, Jeffrey) Modified on 5/8/2023 (pc). |
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