Harvey Weinstein Won't Roll Over, His Lawyer Says, In Civil Case by Miriam Haley in SDNY

By Matthew Russell Lee, Patreon Podcast

SDNY COURTHOUSE, Feb 24 – In the wave of litigation against Harvey Weinstein, the sex Trafficking Victims Protection Act charge again arose on November 6, 2019 before District Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York.

  On July 14, hours before the arraignment of Ghislaine Maxwell elsewhere in the SDNY courthouse, Judge Alvin K. Hellerstein rejected a proposed settlement in the Geiss case against Weinstein. Inner City Press live tweeted it, below.

 Now on February 23, 2021, in the case of NYS trial witness Miriam Haley v. Harvey Weinstein, there was a proceeding before SDNY Judge John P. Cronan. Inner City Press live tweeted it here:
(and, podcast here)

Miriam Haley's lawyer John R. Cuti: After the verdict against Weinstein, there aren't many factual disputes. So we've raised damages early here?

Judge Cronan: This issue was teed up for Judge Oetken in Garcia, but it was resolved. Are there any other District court cases?

A: Not since the [NYS] Appellate Division decision. Now Weinstein's lawyer Imran Ansari: We are appealing, we are perfecting it. We are waiting on a decision if we can enlarge the record. Judge Cronan: Can you preview what you'll be raising on appeal?

Weinstein's lawyer: Jury selection, publication of a book by a juror - so, unfit juror - the manner some evidence was allowed, we objected. In essence, we find appealable issues from jury selection to verdict.

 Weinstein's lawyer, without irony: My client Harvey Weinstein doesn't intend to just roll over and accept liability here.

  We'll see. This case is Haley v. Weinstein, 20-cv09109 (Cronan)

  Back on August 28, the parties reconvened with class certification off the table and Weinstein's lawyer complaining about his incarceration and looming extradition to Los Angeles. Inner City Press again live tweeted it:

For Weinstein, it's Imran Ansari. He says he'll be seeking a protective order, citing Los Angeles criminal action.

Judge Hellerstein sets next date for December 11 at 10 am, says, ifhere is going to be a motion to stay discovery..... Asks about protective order.

A: There may be material that is of a financial nature.

Judge Hellerstein: Make sure you follow my rules.

A: We do nothing else, your Honor.

Judge Hellerstein: When the motion comes in, we may have oral argument. He asks, Will the motion be opposed?

 A: With respect to the Miramax plaintiffs, all of these claims have been dismissed on statute of limitations grounds.

 Judge Hellerstein: When did I do that? A: More than a year ago. April 19, 2019.

Judge Hellerstein: How are you going to response to the delay?

A: We were having discussions... Now we are ready to go back to litigation.

Judge Hellerstein: OK, I'll look at the motion. Who will be handling the appeal?

A: Me, Ms. Fegan. & Mr. Clune for Ms. Brock

 Judge Hellerstein: Do you think there is any conflict?

Ms. Fegan: No. We represent individual plaintiffs only.

Judge Hellerstein: The part of the order that dismisses the case against officers and directors, is that going to be one of the points of the appeal?

Judge Hellerstein: I'm very concerned in December there will be another motion to enlarge. I will not be inclined to grant such a motion.

Weinstein lawyer: My client is obviously incarcerated right now, and facing extradition to Los Angeles, slowed by COVID.

Weinstein's lawyer: I gather there may be little sympathy for my client. But there are difficulties for him, with regard to Dec14.

JudgeHellerstein: Have him answer while he's here. Don't leave things to the last minute. We are adjourned.

Judge Hellerstein asks, Why are there people in this who only met Harvey Weinstein?

Lawyer for Louisette Geiss, et al.: All of these women were in the zone of danger.

Judge Hellerstein: I cannot delegate these determinations to a non Article III person. The Supreme Court would not permit that.

Geiss lawyer: Do you have any other questions?

 Judge Hellerstein: This is not a case suitable for a class. Some may have done it willingly, others not. They cannot be treated the same. This is not a class action. You want to test me? Make a motion.

Geiss lawyer: We will likely withdraw the motion.

 Judge Hellerstein: I will not give preliminary approval to the settlement. If want to have a class, bring a motion. Or better, litigate the claims of each of your clients. Get a judgment. You can pursue many remedies. Won't waste your time with phony settlements

 Judge Hellerstein: Anyone else wants to speak? No need for objections to settlement I am not approving. Let's close the meeting. I'll make a summary order. Goodbye to all.

 That case is Louisette Geiss, et al. v. The Weinstein Company Holdings, LCC, et al., 17-cv-9554 (Hellerstein).

  Back in November 2019, Harvey Weinstein's lawyer Elior D. Shiloh told Judge Abrams that he disagrees with the ruling on the issue by recently memorialized Judge Robert W. Sweet, and that SDNY Judges Alvin K. Hellerstein and Paul A. Engelmayer merely "rubber-stamped" Judge Sweet's logic.
 
  Judge Abrams admonished Harvey Weinstein's lawyer to "be respectful of my colleagues," saying they were rubber-stamping.

   The lawyer then went out of his way to praise Judge Sweet's decision but to say that the complaint he ruled on was much different than the one here, in Wedil David v. The Weinstein Company LLC et al, 18-cv-5414 (Abrams).

   Judge Abrams back on September 16 stayed discovery as to Robert Weinstein pending ruling on the motion to dismiss argued on November 6, and referred the portions of the case against Harvey Weinstein and the Weinstein Companies to SDNY Magistrate Judge Lehrburger.

It was Magistrate Judge Kevin Nathaniel Fox who convened a telephone conference on the case on October 22, and has asked for a proposed scheduling order by November 12. Inner City Press will stay covering these cases.

 Back on June 4, as reported then by Inner City Press, Shiloh argued to JudgeHellerstein why he should allow an interlocutory appeal of his April order which among other things denied Harvey Weinstein's motion to dismiss the Trafficking Victims Protection Act claims against him by Louisette Geiss and others.

  Judge Hellerstein's order said "I join Judges Engelmayer and Sweet in holding that the TVPA extends to enticement of victims by means of fraudulent promises of career advancement, for the purposes of engaging them is consensual or, as alleged here, non-consensual sexual activity. Accordingly, H. Weinstein's motion to dismiss the TVPA claim against him is denied."

  Along with asking about the status of the bankruptcy case settlement talks in which Shiloh said Harvey Weinstein is participating, Judge Hellerstein asked Shiloh why he hasn't similarly asked Judge Engelmayer for certification to appeal his order.

 As Shiloh's response in the courtroom wasn't entirely clear, Inner City Press asked him afterward by the elevators why the request hadn't been made to Judge Engelmayer as well. Shiloh replied that Engelmayer essentially judge adopted the logic of Judge Sweet, since deceased (RIP), so appeal of Judge Hellerstein's ruling based on a transcript seemed more productive. The argument will or would involve the legislative history of the TVPA. We'll have more on this. See Patreon, here.

  The case is Louisette Geiss, et al. v. The Weinstein Company Holdings, LCC, et al., 17-cv-9554 (AKH) and, just to keep the interest perked, footnote 6 of Judge Hellerstein's ruling says that "one employee, Sandeep Rehal, allegedly received a bonus for procuring erectile dysfunction drugs for Harvey. FAC Para 626. Rehal is not named as a defendant, however."

 The case previously before Judge Sweet, Kadian Noble v. Harvey Weinstein, 17-cv-9260, is now  before Judge Alison J. Nathan. See @InnerCityPress and now @SDNYLIVE.

 

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Colombia Affiliate Is Sued For Rape So Asked For 10 Years of Mental Records Now Texts Filed

By Matthew Russell Lee, Patreon

BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Feb 23 –  Yutong Jin  sued Columbia University affiliate Solomon Choi for sexual assault. He has asked for ten years of her medical and mental records. 

 On January 12 U.S. District Court for the Southern District of New York Judge Mary Kay Vyskocil held a proceeding. Inner City Press covered it, and then reported some of it.  Then it covered the next conference on February 23, at the top of which the parties were told that it was a public proceeding that the public had accessed.

 Judge Vyskocil to her credit told Choi's two lawyers it was not fair for them to "tag team" a pro se plaintiff. They replied that since the plaintiff is accusing their client of given her a venereal disease, they have a right to know if she ever had one.

  Why not just two years before? Because, they argued, if she had it she would stop getting treatment.  

The complaint cites a South Korean drama, "Descendants of the Sun." We are leaving out other details.

On February 23, Judge Vyskocil put the parties on notice again, the call-in information was on ECF and was being used. The pro se plaintiff has made many filing since the last conference, including messages with Solomon Choi, from her as Scarlett Jin. Choi says, "I kissed girl on my birthday but it didn't lead to anything more. And I also made out with someone during finals but again, it didn't lead to anything more."

But where is this case headed?

This case is Jin v. Choi, 20-cv-9129 (Vyskocil)

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Kevin Spacey Insists on Unmasking Anonymous Plaintiff Alleging Rape at 14 in SDNY Case

By Matthew Russell Lee, Patreon

BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Feb 23 – Anthony Rapp's lawsuit against Kevin Spacey was removed to Federal court in November 2020, and an anonymous co-plaintiff C.D. was added.

Now Spacey wants to make C.D.'s name public, to order to conduct discovery.  C.D.'s lawyers oppose it, letter on Patreon here.

On February 2 U.S. District Court for the Southern District of New York Judge Lewis A. Kaplan held a proceeding. Inner City Press live tweeted it, here and below.

 On February 23 in the Spacey case Inner City Press is tracking, another proceeding, an oral argument. Inner City Press live tweeted it here:
and now, Anthony Rapp Feb 3, 2021 deposition transcript on Patreon here

Lawyers for Kevin Spacey are arguing to strike testimony of Doctor Seymour H. Block. Spacey is being sued civilly for sex abuse.

 Judge Kaplan: You are asking me to make an important decision, in a country that values public trials as much as we do, in the unique circumstance of a person who sued and also went to the press with it. In advance.

 Plaintiffs lawyer: When my client gave the interview before this case. So there was no attempt to influence the jury. In fact, when my client spoke to the press this case would have been barred by the statute of limitations.

 Judge Kaplan: But if disclosure would harm him, why did he go to the press? Plaintiff's lawyer: They did not reveal his name. Judge Kaplan: But he couldn't know it would work. The publication checked his account with others. There was a chance he would be ID-ed

Judge Kaplan: What's that case you're citing? Defense: Doe, 241 FRD 154, 159 (SDNY, 2006). And another one by Justice Brennan, about how public trials bring in more witnesses. CD made his decision. We have our due process rights. [He calls Spacey "Mr. Fowler"]

Judge Kaplan: On a proper showing, the pleadings need not contain the name of a party, no? Defense: They have to meet the Doe factors. And CD has not met his burden. Plaintiff: Doe v. Colgate, the plaintiff went to the press and was still anonymous.

 Judge Kaplan: I'm going to wait until you make your expert disclosure.  Plaintiff's lawyer: There is a person beyond Mr Rapp who is aware of this. And Mr Rapp is not seeking to withhold his name.

Judge Kaplan: You need to file the relevant piece of the deposition.

The proceeding ends, just like that.

From February 2: Spacey's lawyer says it is unfair for C.D. to proceeding anonymously. "While it is true we have C.D.'s name, only if we make it public can others come forward with evidence about him... this is the right to due process."

C.D.'s lawyer: The sealed plaintiff versus sealed defendant factors weigh in our favor. We are talking about the rape of a minor. The declaration by his therapist shows he would suffer harm if his name is made public.

 Judge: If it happened it's abhorrent. But I don't have to be reminded of what Mr Spacey is accused of in every sentence. CD's lawyer: Spacey said, as to Rapp, that if it happened he was sorry. But here he is denying it entirely.

Judge: You're not getting anywhere.

Judge Kaplan: Get me your papers, and you'll get a decision promptly. Until then, don't disclose the name to third parties - except to Mr. Rapp, subject to sealing.

Spacey's lawyer: Every day is lost time.

  So Rapp's deposition will go forward, with C.D.'s real name said at it but reported in the transcript as C.D..  Inner City Press will continue to report on this case. More on Patreon here.

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MiMedx Fraud Convict Petit Gets 1 Year in BOP KY Camp For Bladder Cancer Trashing Shorts

By Matthew Russell Lee, Patreon

BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Feb 23 –Parker "Pete" Petit and William Taylor were charged with conspiracy and securities fraud with respect to MiMedx. 

On October 5 U.S. District Court for the Southern District of New York Judge Jed S. Rakoff held a pre-trial proceeding. Inner City Press covered it, below.

 On November 19, on the fourth day of jury deliberations the MiMedx jury came back with guilty verdicts, and not guilty verdicts, for both Petit and Taylor.

 On February 23, seeking a sentence of no jail time, Petit appeared virtually before Judge Rakoff (and got one year). Inner City Press live tweeted it, here:

Judge Rakoff: The guideline sentence here would be 30 to life, based on loss level. That is absurd. So too is the defense's calculation. Having of course nothing better to do, I was happy to spend hour after hour reading the submissions. So I am ready.

Judge Rakoff: Let's turn to 3553(a), how the defendant should be sentenced. I received many fine letters, from family and friends, and from victims too. Eric Bruce, for Petit: We know you look at the individual. how he's lived his life, and his current health.

Bruce for Petit: My client has bladder cancer. He's getting immuno-therapy, it's painful. He needs to use the bathroom urgently. Incarceration VOICE:... Does not walk about of prison Judge Rakoff: If you do not mute yourself, I'll adjourn until midnight.

 Bruce for Petit: Any incarceration could have dire consequences for Mr. Petit. The appropriate sentence for him will be different than for others. 

VOICE: I'm behind you.

Judge Rakoff: Who is speaking? VOICE: I'm behind you.

Judge Rakoff: ID yourself.

VOICE: The judge is getting very pissed off now.

Judge Rakoff: You're too cowardly to give your name. Why don't you go on mute? There we go. Bruce for Petit: Jury acquired Mr. Petit of the conspiracy. Fraud encompasses Ponzi schemes- this was not a crime of greed.

 Bruce for Petit: His philanthropy speaks to his integrity. He also gave quietly. He gave money to Georgia Tech for the Parker Petit Institute.

 Bruce for Petit: He funded science and technology at Georgia State. He honored his military service and hired veterans. He counseled them. He developed products critically helpful to veterans.

Judge Rakoff: A lot this has been covered in your papers. I'm mindful of Mr. Petit's condition. So we should expedite.

Bruce for Petit: OK, let's talk about general deterrence. His reputation has been destroyed. The company he saved fired him and clawed back $14 million

 Bruce for Petit: Tell others considering white collar crime, you'll get bladder cancer and be branded as a felon. I submit to you, that is deterrence enough except to the most hardened criminal. Incarceration is not necessary.AUSA: A serious term of incarceration is necessary. Here, the abuse of trust is a flagrant one. This was a crime that involved real harm to investors and to the company itself.

 Pete Petit himself: I want to thank your Honor for reading all the letter sent in on my behalf. I have always managed to persevere. I accept my responsibilities as CEO, it is a complex job. I signed the companies financial statement. But I had no idea of fraud

 Pete Petit: I'm disappointed with the jury's verdict. But I accept it. The shorts' campaign against MiMedx, we fought it with truth. A short seller sent a letter and then E&Y would not sign off on our 2017 financials. The short seller made $100s of millions

 Pete Petit: The illegal short sellers, judge, you're received letters from them as well. Now (sigh) consider my health. Because of bladder cancer I am concerned that prison would be a death sentence. I have a background in health care so I do know a bit about it

 Pete Petit: I believe I can help society by consulting charities. I have a proven track record. I can help them get to the next level. One deals with teenage suicide. Another, spinal injuries. I have contacts who listen to me. I implore you to consider this.

Pete Petit: I was a hands-on executive. I can be a spokesman for the punishment that you will administer today. Judge Rakoff: I do think prison time sends a message that cannot be sent by another other sentence. But it does not require years and years.

 Judge Rakoff: Mr. Petit still denies his guilt. In a way it's refreshing; I often see crocodile tears, when I'm sorry means I'm sorry I got caught. Here, I think the jury's verdict was well warranted. He willfully committed securities fraud.

 Judge Rakoff: Still, at his age and health, I don't think specific deterrence is much of an issue here. The issue that most favors Mr. Petit is his age, his health and the many good things he's done, which are important to the Court. They should count today.

 Judge Rakoff: I am not concerned, however, that his health is such that the BOP cannot handle it. Doctor Sommer says BOP has several prison hospitals that deal with serious cancer. So I come to the conclusion that he should be sentenced to 1 year in prison.

Judge Rakoff: With respect to restitution, today counsel for MiMedx called my law clerk and said they are seeking restitution. I don't have to decide that for 90 days. When counsel are ready, call and arrange briefing and we'll take it up.

Judge Rakoff: In terms of surrender, I'll put it off to September 18 at 2 pm, to a prison hospital.  Bruce for Petit: How about a year and a day, for good time credit?

Judge Rakoff: No. I thought this through. He should really serve a full year.

Bruce for Petit: We request the minimum security camp at Lexington, Kentucky. Or Butner [NC] second. Judge Rakoff: Fine. Bruce for Petit: We may ask for further delay for appeal. Judge Rakoff: Call chambers and we could set up an argument.

Clerk: That's a Saturday. 

Judge Rakoff: Let's make it Sept 21 at 2 pm. Let me just say, the guidelines focus too much on the loss amount. A court should use its common sense: it's not 30 or zero.

Here's how the US Attorney's Office, past 2 pm back on November 19, put it: "PARKER H. “PETE” PETIT, the former chief executive officer of MiMedx Group, Inc. (“MiMedx”), a publicly traded biopharmaceutical company, was convicted of securities fraud, and WILLIAM TAYLOR, the former chief operating officer of MiMedx, was convicted of conspiracy to commit securities fraud, to make false statements in SEC filings, and to mislead the conduct of audits."

On October 26, the trial began, and Inner City Press live tweeted it. Now here and below.

 On November 16, the US Attorney's Office wrapped up their rebuttal and Judge Rakoff stepped into the witness box to give instructions:

Judge Rakoff just said he'll deliver his instructions from(plexiglass) witness box, so he can take off his mask. A juror is late...

OK - juror has arrived and MiMedx trial final argument by US Attorney's Office has begun: "They lied under oath... Why did they corrupt their positions? Out of greed, for the money. Pete Petit had $38 million in MiMedx stock.

AUSA: "Return versus repurchase, it's all nonsense. Bill Taylor admits this is the right of return email. He used the word repurchase, it's just proof of his guilty conscience. Don't be fooled."

Then after one admonition to wrap it up, the jury instructions began. Watch this site.

  On November 10, an Atlanta-based auditor of MiMedx, then and now working for Cherry Bekaert, under government questions said that a $200,000 payment to Mark Brooks, characterized as a bribe, should have been discounted from the reported earnings, according to GAAP.

 But on November 11 under cross examination, the auditor admitted that John Cranston was his main contact at MiMedx, and was shown that Cranston was on the e-mail chain about the payment to Mark Brooks. So shouldn't Cranston have told the auditor?

  Inner City Press live tweeted the afternoon session on November 11, here:

Gov witness, seemingly the last, is SEC Financial Economist Carina Shambarry. There was another sidebar with Judge Rakoff before she started. AUSA: Did you review MiMedx? A: Yes. AUSA: Who asked you?

A: The US Attorney's Office... I looked at 2015 purchase orders

Shambarry: This is the inflated revenue of MiMedx for the 4th quarter of 2015... inflated by $2,990,675... that is, by 6.12%. They still missed guidance by about $600,000.

Now comes cross examination of Carina Shambarry. Q: So this stock sale by Mr Taylor was before any allegation of wrongdoing, right?

AUSA: Objection! Judge Rakoff: Lay a foundation.

Q: Were you given any info about purchase orders before the end of June 2015? A: No Now counsel says they're about to move on to another topic, suggests breaking for the day. 

Judge Rakoff: I'm disappointed, but I'll bear up. Come to the sidebar. After a time, to jury: The gov will wrap up tomorrow. The defense will put on a couple of witnesses. 

Judge Rakoff: We'll have the government's closing tomorrow afternoon, defense's on Friday. You can start deliberating sometime on Monday. We need to keep the pressure on. See you tomorrow at 9:45. [Jury leaves] Judge Rakoff, to lawyer: Let's make some motions.

Defense: We do have motions to make. Can we take a five minute break? Judge Rakoff: Sure. We'll deem that these motions are being made at the end of the government's case. Thread will continue.

Defense returns with a Second Circuit citation, 971 F.3d 380, about when making further objections would be unavailing - asks Judge Rakoff if that's the case here. It seems so. Talk turns to how the jury should be told about the power to grant immunity.

AUSA arguing that the evidence supports an instruction on conscious avoidance...

Judge Rakoff: Some judges don't like counsel to quote principles of law in summation. I am not one of those. Just make sure you quote my instructions, and not something you make up.

Judge Rakoff: You can says, the Government didn't meet its burden because no evidence of X or Y. What you cannot say is, They didn't call Mr. Jones as a witness... It's been a long day, and I still have to teach at Columbia."

  On the morning of November 12, the defense got Ms. Shambarry to admit she had not reviewed how bonuses were paid to Petit and Taylor in 2013 and 2015 - that is, whether they would have gotten the same bonus whether or not they early-recognized revenue. The cross examinations were punctuated by objections, many of them sustained. But still the point was made. Next up: closing arguments.

  Watch this site.

 On November 9, after the AUSA said now the government might close its case on November 11, Veterans Day, Judge Rakoff said he had noticed - and that he had notice that the jurors did not appear bored by focused. He congratulated both sides' lawyers and told them to keep it up. So will we as the trial winds down.

  On the morning of November 6, Bill Taylor's lawyer cross examined a government witness about why he had not complained internally if he thought the deal with Mark Brooks' company was wrong. It all got reported to Pete [Petit], he answered, adding that MiMedx General Counsel Lexi Hayden did whatever Petit said.

 The government on re-direct tried to rehabilitate him, that he had been afraid of Petit's retaliation and had a family to support. But what about Taylor?

 On the afternoon of November 6, talk turned to an informal application for a loan from Capital One by Jerry Morrison, whose business was said to be the sale of human tissue (for medical purposes). After a cooperator, or witness with a Non Prosecution Agreement, the AUSA said the government may rest its case by the end of next week. Judge Rakoff said he'll draft jury instructions and that the charging conference shouldn't take more than 72 hours, "bring your sleeping bag." We'll continue on this.

  On the morning of November 5, cross examination of a government witness who worked for previous witness Carlton continued, focusing on his role as an "advocate" for Mark Brooks, and his characterization of the $200,000 payment to Brooks as being a bribe.

There were diversions into a text message about pizza -- "I like pizza too much, that's my problem," the witness said, perhaps ingratiating him to the jury. Judge Rakoff told the jurors to take 11 am to 12:05 pm  for lunch, as he gave a Zoom speech to NYU; he told the lawyers to return at 12:01.

Day 5, Oct 30: Witness: Brooks had a lot of complaints, so I don't remember what was per se settled... We got the order afterwards. Defense: Call up Gov Exh 1018. Take a look at this. This is an email from Mr Petit to Mark Brooks, right? Witness: Right.

We're back. Carlton still on the stand. Q: You see Mr. Carlton this email says Mr Brooks had to forego the stock, for the $200,000? Carlton: Yes. Q: And Mr. Petit was on the email, as you were, and said - Judge Rakoff (to jurors) This is for state of mind 

Q: You wrote that the $200,000 to Mr. Brooks was for lost business? Carlton: Not the case. It was for the stock. 

Q: So you sent Bill [Taylor]'s email to Bassam? Carlton: Yeah because he missed the first one.

Q: But Mr Taylor's email said repurchase the product. It does not say returned.

 AUSA: Objection! Asked and answered!

Judge Rakoff: I'll let it go for now... Have a good weekend.

 [On the morning of October 30, Inner City Press formally asked for access to the government exhibits in this US v. Petit case. Watch this site.]

Day 4

The case is US v. Petit et al., 19-cr-850 (Rakoff)

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