Securities and Exchange Commission v. Nadel et al

Filing 800

RESPONSE re #798 Notice to the Courts to take judicial notice filed by Burton W. Wiand. (Cohen, Jonathan)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.

CASE NO.: 8:09-cv-0087-T-26TBM

ARTHUR NADEL, SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.,
Defendants,
SCOOP REAL ESTATE, L.P., et al.
Relief Defendants.
/

THE RECEIVER’S RESPONSE TO WELLS FARGO BANK’S REQUEST THAT
THIS COURT TAKE JUDICIAL NOTICE OF ACTUAL DOCKETED COURT
FILINGS CHARACTERIZED IN THE RECEIVER’S RESPONSE IN OPPOSITION
TO WELLS FARGO’S MOTION FOR LEAVE TO REPY (DOC. 798)
Wells Fargo Bank, N.A.’s (the “Bank”) request for judicial notice (the “Request”)
(Doc. 798) asks the Court to take judicial notice of certain filings from SEC v. Latin Am.
Srvcs. Co., Case No. 99-2360-cv (S.D. Fla.), a case in which a partner of the law firm
representing the Bank in this case, Michael Goldberg of Akerman Senterfitt (“Akerman”),
acted as receiver. As an initial matter, the Receiver does not contest several matters raised by
the Request. First, the Request asserts that Mr. Goldberg was never a receiver in SEC v.
Lauer, Case No. 03-80612-cv-Marra (S.D. Fla.). It is correct, and the Receiver and Wiand
Guerra King P.L.’s (“WGK”) original response (Doc. 795) to the Bank’s motion for leave to
reply (Doc. 794) mistakenly referred to that case instead of the relevant case in which Mr.
Goldberg served as receiver, SEC v. Latin Am. Srvcs. Co. After that original response was
filed, counsel for the Bank brought that to the attention of undersigned counsel, and an
amended response (the “Amended Response”) (Doc. 797) was promptly filed to correct that.

Second, the Request asks the Court to take judicial notice of certain filings from that case;
the Receiver has no objection (the Request contends the Bank requested that copies of those
filings be filed with the Amended Response, and that the Receiver refused (Request ¶ 2) –
this mischaracterizes the exchange between counsel, although no need exists to burden the
Court with a copy of the email exchange between counsel).
The Receiver, however, does contest other contentions in the Request. Specifically,
he contests the Request’s contentions that: (1) the Amended Response “fails to inform the
Court as to any of the reasons why” an amended response was necessary and (2) that it “fails
to adequately correct their mischaracterizations of” Mr. Goldberg’s relevant actions in Latin
Am. Srvcs. Co. First, the Amended Response does explain why it was necessary: footnote 1
of the Amended Response states that it is being submitted “to correct a discussion on page 3
of a matter in which Michael Goldberg acted as receiver”. That is precisely why it was
submitted.
Second, the Amended Response does not mischaracterize Mr. Goldberg’s relevant
actions in Latin Am. Srvcs. Co. As the filings of which the Request asks the Court to take
judicial notice establish, after identifying possible claims by his receivership against a client
of Akerman, Mr. Goldberg sought appointment of special counsel on January 25, 2000 to
represent him in that investigation in place of Akerman.1 (Doc. 798-1 at CM/ECF pp.1-5.)
Almost 4 months later, to avoid any question “regarding the independence” of his judgment,
he moved the court to expand special counsel’s role to give that counsel exclusive discretion,
subject to court approval, to, in relevant part, decide whether to sue the Akerman client. (Id.
at CM/ECF pp.9-12.) And almost 8 months after that, he moved the court to substitute one
1

Although Mr. Goldberg’s motion to appoint special counsel does not explain the source of the “potential
conflict” between Akerman and the potential defendant, his next filing identifies the “potential conflict” as
arising from the fact that the potential defendant was a then-“current[]” client of Akerman. (Doc. 798-1 at 10.)

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of the attorneys who acted as special counsel for him as receiver only with respect to matters
relating to the Akerman client. (Id. at CM/ECF pp.18-22.)
The Amended Response’s characterization is consistent with this:
when Akerman Senterfitt, acting as Mr. Goldberg’s counsel, was faced with a
conflict, Mr. Goldberg never asked to be removed from that receivership and
initially did not even ask to be removed from matters involving Akerman
Senterfitt’s client, and he certainly did not volunteer to return his or his law
firm’s fees. Rather, he simply retained special counsel to replace Akerman
Senterfitt in receivership matters relating to that client. That is precisely what
the Receiver has done here. Mr. Goldberg later sought expansion of special
counsel’s role and then appointment of a substitute receiver to handle matters
relating [to] that party, but here that is unnecessary because the Bank is no
longer a client of WGK.
Doc. 797 at 3.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 16, 2012, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system.
I FURTHER CERTIFY that on March 16, 2012, I will mail the foregoing document
and the notice of electronic filing by first-class mail to the following non-CM/ECF
participants:
Arthur G. Nadel
Register No. 50690-018
Butner Low
Federal Correctional Institution
P.O. Box 999
Butner, NC 27509
s/Jonathan B. Cohen
Jonathan B. Cohen, FBN 0027620
[e-mail]
Terry A. Smiljanich, FBN 145349
[e-mail]
JAMES, HOYER, NEWCOMER &
SMILJANICH, P.A.
One Urban Centre, Suite 550
4830 West Kennedy Blvd.
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Tampa, FL 33609
Tel: [phone]
Fax: [phone]
Attorneys for the Receiver, Burton W. Wiand

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