Bank Julius Baer & Co. Ltd. et al v. Wikileaks et al

Filing 86

Memorandum in Opposition [65,71,72] re PLAINTIFFS BRIEF IN OPPOSITION TO MULTIPLE APPLICATIONS AND MOTIONS BY PROPOSED AMICI AND/OR REQUESTS TO INTERVENE filed byBank Julius Baer & Co. Ltd., Julius Baer Bank and Trust Co. LTD.. (Attachments: #1 Affidavit DECLARATION OF EVAN SPIEGEL IN SUPPORT OF PLAINTIFFS BRIEF IN OPPOSITION TO MULTIPLE APPLICATIONS AND MOTIONS BY PROPOSED AMICI AND/OR REQUESTS TO INTERVENE)(Briggs, William) (Filed on 2/28/2008) Modified on 2/28/2008 (hdj, COURT STAFF).

Bank Julius Baer & Co. Ltd. et al v. Wikileaks et al

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MARTIN D. SINGER, ESQ. (BAR NO. 78166) WILLIAM J. BRIGGS, II, ESQ. (BAR NO. 144717) EVAN N. SPIEGEL, ESQ. (BAR NO. 198071) LAVELY & SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los Angeles, California 90067-2906 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] E-mail: [e-mail] Attorneys for Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) Plaintiffs, ) ) v. ) WIKILEAKS, an entity of unknown ) form, WIKILEAKS.ORG, an entity ) of unknown form; DYNADOT, ) LLC, a California limited liability ) corporation, and DOES 1 through ) 10, inclusive, ) ) Defendants. ) ) ) CASE NO. CV08-0824 JSW [Hon. Jeffrey S. White; CRTM 2] PLAINTIFFS' BRIEF IN OPPOSITION TO MULTIPLE APPLICATIONS AND MOTIONS BY PROPOSED AMICI AND/OR REQUESTS TO INTERVENE

BANK JULIUS BAER & CO. LTD, a Swiss entity; and JULIUS 13 BAER BANK AND TRUST CO. LTD, a Cayman Islands entity,
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DATE: Submission TIME: Submission CTRM: 2, 17th FL

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Plaintiffs Bank Julius Baer & Co. Ltd's ("BJB") and Julius Baer Bank and Trust Co. Ltd's ("JBBT") (collectively,"Plaintiffs") hereby respectfully submit the following Opposition Brief to the multiple applications by proposed Amici Curiae and requests to intervene filed with the Court on February 26, 2008. MEMORANDUM OF POINTS & AUTHORITIES I. INTRODUCTION The applications by proposed Amici Curiae and requests to intervene are, in whole or in part, not timely before the court, violate the Court's Standing Order, fail to comply with the Court's briefing schedule set forth in its TRO and OSC re Preliminary Injunction, fail to comply with Federal and Local Rules with regard to notice requirements, fail to show good cause for their failures, and, as otherwise set forth below, are improper and should not be considered by the Court. As of the time of this Notice, the Amici-Intervenor Parties have submitted the following applications and motions to the Court, filed on February 26, 2007: (i) Application to Appear as Prospective Intervenors Or, in the Alternative, Amici Curiae of Prospective Intervenors Project on Government Oversight, the American Civil Liberties Union, the American Civil Liberties Union Foundation, the Electronic Frontier Foundation and Jordan McCorkle (the parties are referred to herein as "Project on Government Oversight"); Motion to Intervene; and related filings (collectively, the "Project on Government Oversight Application"); (ii) Motion for Leave to File Brief of Amici Curiae of The Reporters Committee for Freedom of the Press, The American Society of Newspaper Editors, The Associated Press, Citizen Media Law Project, The E.W. Scripps Co, Gannett Co., Inc., The Hearst Corporation, The Los Angeles Times, National Newspaper Association, Newspaper
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Association of America, Radio-Television News Directors Association, and The Society of Professional Journalists (the parties are referred to herein as "The Reporters Committee"); Brief of Amici; and related filings (collectively, the "The Reporters Committee Motion"); and (iii) Motion to Intervene as Defendants or, in the Alternative, to Appear as Amici Curiae of California First Amendment Coalition and Public Citizen (the parties are referred to herein as "Public Citizen"); Motion to Dismiss; Brief in Opposition to Injunctive Relief and In support of Dismissal; Motion for Administrative Relief; and related filings (the "Public Citizen Motion"). Project on Government Oversight, The Reporters Committee and Public Citizen are collectively referred to as, the "Amici-Intervenor Parties". The Project on Government Oversight Application, The Reporters Committee Motion and the Public Citizen Motion are sometimes collectively referred to as, the "Amici-Intervenor Parties' Applications". II. ARGUMENT (1) The Amici-Intervenor Parties' Applications violate the Court's order with regard to the briefing schedule set forth in its TRO and OSC re Preliminary Injunction (the "TRO and OSC"). The TRO and OSC ordered that "Any Opposition papers shall be served and filed by 12:00 p.m. on February 20, 2008" (emphasis added). As of February 25, 2008, no opposition papers by the defendants or any third-parties had been filed and/or served. The Court has not granted relief from its order as set forth in TRO and OSC, and none of the Amici-Intervenor Parties set forth good cause for disregard of the Court's TRO and OSC setting forth the briefing schedule. As evident by the vast press coverage and press reports related to this matter, all of the Amici-Intervenor Parties were aware of this case well prior to the opposition papers deadline and could have timely filed an opposition had they chosen
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to do so. So from that stand point, the Court should simply disregard all the AmiciIntervenor Parties' Applications because they are violative of the Court's TRO and OSC and good cause has not been show to disregard the briefing order. (2) The Amici-Intervenor Parties' Applications violate the Court's Civil

Standing Orders ("Standing Orders"). Pursuant to the Standing Orders, counsel are expected to consult and comply with all provisions of the Local Rules and the Federal Rules relating to motions, briefs, ... and all other matters, unless specifically superceded by these Standing Orders." The Standing Orders further provide that "Any failure to comply with any of these rules and orders may be deemed sufficient grounds for monetary sanctions, dismissal ... or other appropriate sanctions." The Amici-Intervenor Parties' Applications fail to comply with the Court's Standing Order with regard to "Scheduling Days" and noticing of a motion. The Court has not granted relief from its Standing Order and none of the Amici set forth good cause for disregard of the Court's Standing Order relating to motions, briefs, and with regard to scheduling. So from that stand point, the Court should simply disregard all the amici briefs because they are violative of the Court's Standing Order and good cause has not been show to disregard the Standing Order. (3) To the extent that any of the Amici-Intervenor Parties argue that

the TRO and OSC and/or the [Proposed] Preliminary Injunction is a "Prior Restraint," Plaintiffs refer the Court to the Supplemental Brief filed by Plaintiffs, dated February 27, 2008, that fully addresses that issue. (4) To the extent that any of the Amici-Intervenor Parties seek an

action not sought by the parties (for example, the Motion to Dismiss filed by Public Citizen, or requests to modify or set aside the Permanent Injunction entered pursuant to a Stipulation between represented parties, or the advancement of purported
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affirmative defenses not advanced by the parties themselves), their motions, applications and proposed Amici briefs are improper. An amicus curiae "lacks standing to prosecute independently any rehearing or appeal." United States v. Louisiana, 718 F. Supp. 525, 528 (E.D. La. 1989). State courts are in agreement that "relief beyond that which is sought by the parties cannot be requested by amicus curiae." Vermillion Parish Police Jury v. Williams, 824 So. 2d 466, 470 (La. App. 2002). An amicus has "no control over the litigation and no right to institute any proceedings therein; he must accept the case before the court with the issues made by the parties." Pennsylvania v. Cotto, 708 A.2d 806, 808 (Pa. 1998) (emphasis original). Decisions have held that "[m]otion practice by amici is not permitted," and that a "trial court was not authorized . . . to permit amici curiae to file a motion to dismiss as would a litigant before the court." In re Petition to Call Election, 517 N.E.2d 1188, 1190 (Ill. App. 1987); see Mid-Atlantic Power Supply Ass'n v. Pa. Public Utities Comm'n, 746 A.2d 1196, 1200 n.8 (Pa. 2000) (holding that amici have no right to institute proceedings in the court.). An amicus has no standing in court, and allowing an amicus to "seek to widen the issues raised by the parties" is inappropriate. Lyons v. Lederle Labs., 440 N.W.2d 769, 770 & n.2 (N.D. 1989). The amicus must "take the case as he finds it." Briggs v. United States, 597 A.2d 370, 373 (D.C. Ct. App. 1991). In fact, courts have long held: An amicus curiae can neither take upon himself the management of the cause as counsel; nor file a demurrer; nor take exceptions to the ruling of the court; . . . nor file a petition for a rehearing. Oregon v. McDonald, 128 P. 835, 837 (Or. 1912). (5) None of the proposed Amici-Intervenor Parties have sought by

way of ex parte application an Order Shortening Time for Briefing with respect to their proposed Amici briefs or with respect to their requests to be heard at the hearing on the TRO and OSC in order to afford Plaintiffs adequate opportunity and
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time to fully brief the Court with respect to all of the issues raised in the multiple Amici-Intervenor Parties' Applications and, therefore, it is unduly prejudicial to the Plaintiffs to consider these amici briefs, applications and motions.1 (6) To the extent that a motion has been filed by any of the Amici-

Intervenor Parties, there has been no compliance with Federal Rules of Civil Procedure ("FRCP"), nor the Local Rules, regarding proper notice. Any motions, "except as otherwise ordered or permitted by the assigned Judge or these Local Rules, ... , all motions must be filed, served and noticed in writing on the motion calendar of the assigned Judge for hearing not less than 35 days after service of the motion." ND L.R. 7-2(a). The Amici-Intervenor Parties' Applications were filed without an Order Shortening Time, nor even an ex parte motion for an order shortening time. The Amici-Intervenor Parties' Applications fail to conform with provisions of the Local Rules 7-2 and 7-3 relating to motions and briefs and noticing of a motion. The Amici-Intervenor Parties failed to provide proper notice. (7) Plaintiffs have alleged and have established clear and credible

evidence of subject matter jurisdiction on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(2). Diversity jurisdiction exists where a suit is between citizens of a foreign nation and citizens of the United States. See 28 U.S.C. § 1332(a)(2). The citizenship of the parties at the time the complaint is filed determines the existence of diversity jurisdiction. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988); LeBlanc v.

Plaintiffs have, prior to the filing of this Opposition, entered into a Stipulated Request for an Order Shortening Time with respect to a hearing and briefing 26 schedule for Project on Government Oversight's Application (the "Stipulation"). The Stipulation specifies that it shall not affect the timing of the TRO and OSC 27 hearing. Notwithstanding the Stipulation, Plaintiffs oppose, as untimely and improper, Project on Government's Application to Appear as Prospective 28 Intervenors at the TRO and OSC hearing and oppose its Motion to Intervene.
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Cleveland, 248 F.3d 95, 100 (2d Cir. 2001). Plaintiffs, a Swiss entity and Cayman Islands entity, are subjects of a foreign state. (See, Complaint, ¶¶3, 5, 6, Exh. "B"). In the Complaint, Plaintiffs allege and attach as Exhibit "B" evidence (including party admissions) that, at the time of filing the action, all of the defendants were citizens of and located in California. Dynadot is a California limited liability company, with none of its members citizens of a foreign state. (See, Complaint, ¶¶3, 9). In addition, the self-listed registrant/owner of wikileaks.org and the Wikileaks' website was a John Shipton with an address of San Mateo, California. (See, Complaint, ¶¶3, 7, 8, Exh. "B"). Whois records list that, prior to the listing of Shipton's name, the domain name was registered to a citizen of New York, a John Young. There is no credible evidence that anyone else, other than a citizen of California or New York, is an owner, partner or member of wikileaks.org and the Wikileaks' Website. The fact that complicit agents of and/or advisors to Wikileaks, who are not defendants, may be foreign citizens does not negate diversity jurisdiction. Further, a change of John Shipton's self-listed address after the time of filing of the action, in an apparent effort to avoid jurisdiction of the Court, does not negate diversity jurisdiction. Plaintiffs have met their burden to establish diversity jurisdiction at the time of filing. (8) To the extent that any of the Amici-Intervenor Parties seek leave

to file an Amicus brief, they fail to show good cause and/or to satisfy the necessary requirements. Under Rule 29 of the Federal Rules of Appellate Procedure, a party seeking leave to file an amicus brief must state: (i) the movant's interest, and (ii) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case. Fed. R. App. Pro. 29(b)(1)­(2); see Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1063 (7th Cir. 1997). Under modern case law, an amicus brief is generally only desirable where (i) a party is not represented competently or is not represented at all, (ii) the amicus has an interest
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in some other case that maybe affected by the present case (though not enough to entitle the amicus to intervene and become a party), or (iii) when the amicus has unique information or a perspective that can help the court beyond the help that the parties are able to provide. See In re Heath, 331 B.R. 424, 430 (9th Cir. 2005); Nat'l Org. for Women v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000); Ryan, 125 F.3d at 1063 (citing Miller-Wohl Co. v. Comm'r of Labor and Indus., 694 F.2d 203 (9th Cir. 1982); JPMorgan Chase Bank, N.A. v. Fletcher, 2008 WL 73233 *1 (N.D. Okla. 2008). Upon satisfying the above, leave to file an amicus brief is still within the discretion of the court. United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991). This case does not present one of the three situations in which leave to file an amicus brief should be granted. To begin with, this is not a case in which a party is "not represented competently" or "not represented at all." Ryan, 125 F.3d at 1063 (emphasis added). To the contrary, Wikileaks most certainly has competent representation in this matter. In correspondence with counsel for JB after the Court made its ruling, Julian Assange (a contact for Wikileaks, as represented to the Court by Julie Turner), stated "I don't know why you have sent this to me" and that JB should "please send Wikileaks.org related legal correspondence to Roger Myers who I understand is acting on behalf of the domain." (Spiegel Decl., Exh. "B" - an e-mail dated Feb 24, 2008 from Assange to Spiegel). Two days later, Mr. Assange again stated, "Please send [corre s p o n d e n c e ] to `Roger Myers' <[e-mail]> who I understand is representing the rights of the domain holder in this matter." (Spiegel Decl., Exh. "C" - an e-mail dated Feb 26, 2008 from Assange to Spiegel). The biography of Roger Myers, a respected media and 1st Amendment attorney, on his law firm's website states that his clients include "publishers (of newspapers, magazines, and books), broadcast media (both television and radio networks and their affiliates), and online media." (Spiegel Decl., Exh. "D" - printout of the Holme Roberts & Owen LLP's Biography page for Mr.
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Myers). Mr. Myer's biography also states he is a "Northern California Super Lawyer" who "is a frequent speaker at conferences addressing media, internet and intellectual property issues," and that he "serves as newsroom general outside counsel to more than 20 newspapers ... and as general outside counsel for Business Wire, Inc." (Id.). Not coincidentally, Mr. Myers's biography states that he is the "General Counsel" of "California First Amendment Coalition," which, of course, is seeking to file an amicus brief in this matter. Whether or not Wikileaks makes a strategic determination not to appear in the action and/or defend its conduct (possibly to help facilitate a potential amici filing), Wikileaks is nonetheless represented and represented by very competent counsel. Even if Mr. Myers decides not to appear on behalf of Wikileaks in this matter, there has been no showing that Wikileaks is indigent or that it could not otherwise be represented by competent counsel. To the contrary, Wikileaks boasted in a press release concerning the Court's prior order that it "has six pro-bono attorney's [sic] in S[an] F[rancisco] on roster to deal with legal assault." (Spiegel Decl., Exh. "A" - printout of a "Press Release" by Wikileaks dated February 18, 2008) (emphasis added)). Yet Wikileaks maintains its absence. The Court should not allow Wikileaks to make an end-run around an appearance by employing or facilitating potential amici to advance arguments Wikileaks has strategically chosen, for whatever reason, not to advance. Second, none of the would-be amici have "an interest in some other case that may be affected by the present case." Ryan, 125 F.3d at 1063 (emphasis added). None of the would-be amici are currently facing the same type of claims as Wikileaks. See Nat'l Org. for Women, 223 F.3d at 617. The Third Circuit has held that would-be amici who do not represent an individual or organization with a "legally cognizable interest" in the subject matter at issue should be denied leave to file an amicus brief. See Am. Coll. of Obstetricians and Gynecologists v. Thornburgh, 699 F.2d 644, 645 (3d Cir. 1983). Here, none of the persons or organizations seeking leave to file an amicus brief has cited any pending case, let
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alone a case in which it has a legally cognizable interest that may be affected by this Court's preliminary injunction, which will not create binding precedent. Finally, none of the would-be amici has demonstrated that it has "unique information or perspective that can help the court beyond the help that the parties are able to provide." Ryan, 125 F.3d at 1063 (emphasis added). Rather, the wouldbe amici merely cite case law and make the standard arguments one would expect from Wikileaks had it chosen to make them -- case law of which JB certainly is willing and able to brief for the Court upon its request. In fact, JB has now briefed the Court on the purported First Amendment issues, as contained in Plaintiffs' Supplemental Brief. That the would-be amici are engaged in the business of publishing, journalism, or even First Amendment advocacy and seek to make arguments Wikileaks or Dynadot have chosen not to make for themselves does not demonstrate any "unique information or perspective" that the parties are unable to provide. III. CONCLUSION For the reasons stated herein, the Amici-Intervenor Parties' Applications for leave to file an amicus brief and/or intervene should be denied. DATED: February 27, 2008 LAVELY & SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER WILLIAM J. BRIGGS, II EVAN N. SPIEGEL /s/ William J. Briggs, II By:________________________________ WILLIAM J. BRIGGS, II Attorneys for Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD

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