Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 1 of 11

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1 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK FERNANDA GARBER, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. OFFICE OF THE COMMISSIONER OF BASEBALL, et al., Defendants. 12-cv-3704 (VEC) ECF Case [Redacted. Original Filed Under Seal.] MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR RULE 11 SANCTIONS AGAINST FORREST TURKISH

2 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 2 of 11 INTRODUCTION Plaintiffs have previously moved for sanctions against Mr. Hull and his original counsel, David Stein. (Doc. 557). They also moved for sanctions against the orchestrator of the objection, Christopher Bandas, after he submitted the pro se letter of Mr. Hull to the Court. (Doc. 564). Those motions are pending. Mr. Bandas has now hired yet another attorney and yet another professional objector, Mr. Forrest S. Turkish, to advocate for a frivolous objection that Mr. Turkish knows was filed for an improper purpose. In addition to Mr. Hull, Mr. Stein, and Mr. Bandas, Plaintiffs respectfully request that the Court impose sanctions on Mr. Turkish for advocating for an objection whose only purpose is to interfere with the implementation of the settlement in hopes of extorting a payment from class counsel. Plaintiffs request that the Court impose a fine of $50,000 on Mr. Turkish for his actions. This memorandum is intended to supplement the memoranda Plaintiffs previously filed with respect to the other pending Rule 11 motions. (Doc. 558, 575). DISCUSSION I. Background On April 15, 2016, the last day of the objection period, Sean Hull filed an objection to the class settlement. Although represented throughout by Christopher Bandas, his counsel of record for the filing of the objection was David Stein. After Plaintiffs served Mr. Stein with notice of an intended motion for sanctions under Rule 11 for Mr. Hull s frivolous objection, Mr. Stein withdrew his appearance in the case but not the objection stating, we simply do not feel that we have sufficient confidence in the objection to stand by it in the face of potential sanctions. Letter, April 21, 2016 (Docs. 547, 549). Judge Scheindlin agreed to shorten the safe-harbor period to permit submission of the Rule 11 motions in conjunction with final approval. (Doc. 1

3 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 3 of ). Plaintiffs subsequently filed a motion for sanctions against Mr. Hull and Mr. Stein. (Doc. 557). On April 25, 2016, the Court conducted a fairness hearing at which it granted final approval of the settlement. (Transcript, 4/25/16, Doc. 573). Earlier in the day, Mr. Hull submitted a letter to the Court concerning Plaintiffs motion for sanctions, as well as the motion for imposition of an appeal bond that Plaintiffs had indicated they intended to file. (Doc. 565). Though submitted pro se over Mr. Hull s signature, the letter was prepared by and ed to the Court from the Bandas Law Firm. (See Doc ( from Judge Scheindlin s law clerk indicating that the Bandas Law Firm ed the pro se letter to the Court)). Mr. Hull did not appear at the fairness hearing. Instead, Forrest Turkish attended the hearing by telephone (even though he practices in New Jersey). He claimed that he was not appearing as Mr. Hull s counsel, however. Rather, he stated that he needed to review the case further before deciding whether to be retained or not. (Tr. 5:22-23). The Court addressed, and overruled, each of Mr. Hull s and the other objectors challenges to the settlement. (49:5-54:13). The Court entered a formal order on the docket on April 27, (Doc. 561). As a result of Plaintiffs discovery that Mr. Bandas had directly submitted Mr. Hull s pro se letter to the Court in advance of the fairness hearing, which eliminated any question as to the Court s jurisdiction over Mr. Bandas, Plaintiffs then filed a motion for sanctions against Mr. Bandas on April 28. (Doc. 564). On April 29, 2016, this action was reassigned from Honorable Shira Scheindlin to Your Honor. That same day, Mr. Turkish agreed in an exchange with Mr. Bandas to represent Mr. Hull. He agreed to do so, however, only with the following provision: 2

4 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 4 of 11 Id. On May 12, 2016, Mr. Turkish signed and filed a response to Plaintiffs motion for sanctions against Mr. Hull. Although the response was written by Mr. Bandas and/or members of his firm, it did not purport to be a response on behalf of himself. The response stated, Although not the subject of this response filed by Objector, it should be noted that Mr. Bandas has not made an appearance and is not before this Court. (Doc at 6 n.8). Mr. Bandas never filed any opposition to the motion for sanctions against him apart from that footnote, in which Mr. Bandas wrote (over Mr. Turkish s signature) that the Court lacked jurisdiction over him. Id. Mr. Turkish filed the notice of appeal on May 18, On May 26,, Mr. Bandas entered his appearance in the Second Circuit in place of Mr. Turkish. Mr. Turkish remains counsel in this Court, and Mr. Bandas, despite appearing as counsel of record in the court of appeals, has declined to appear in this Court, and apparently continues to take the position that this Court lacks jurisdiction to impose sanctions upon him. II. Sanctions against Mr. Turkish are Appropriate The underlying bases for imposing sanctions for Mr. Hull s frivolous objection are laid out in Plaintiffs memorandum in support of sanctions filed April 22, (Doc. 558). Mr. Hull s objection was filed solely to interfere with the settlement in the hopes of a payoff, and 3

5 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 5 of 11 makes no arguments that could improve the settlement for class members. It is the very definition of an objection filed for an improper purpose. The improper purposes for which the appeal was filed are now clearer than ever. At his deposition in this case, Mr. Hull made clear that his goal is to attack the class action system, rather than to obtain more benefits for class members. He described himself as a crusader for change, but he has never increased class benefits, and has never even read any of the settlement agreements to which he was a party. If he had, he would find that every one of them accomplished nothing other than providing payments to Mr. Bandas and his fellow counsel. Rule 11, by its terms, applies not only to those who sign and file documents submitted to the Court, but also to those who later advocate[] for them. Fed. R. Civ. P. 11(b). Mr. Turkish has advocated for the objection in a number of different ways, including in filing the notice of appeal and in the response to Plaintiffs Rule 11 motion in which he repeatedly argued that Mr. Hull s objections were meritorious. 1 There is little question that Mr. Bandas is the most appropriate target for sanctions in this case. But he is engaged in an elaborate game of whack-a-mole, in an attempt to avoid sanctions. Mr. Bandas first used David Stein to file Mr. Hull s objection. Mr. Stein then withdrew because he could not defend the objection in the face of potential sanctions. (Doc. 549). Mr. Bandas then used Mr. Hull himself as his stand-in, submitting a responsive document to the Court in Mr. Hull s name. (Doc. 565). Mr. Turkish appeared at the fairness hearing by phone on behalf of Mr. Hull, but refused to present himself as representing Mr. Hull at that time. After the Court entered the order approving the settlement, Mr. Turkish then entered his appearance to permit Mr. Bandas to refrain from entering his appearance until the case was 1 As detailed in Plaintiffs letter motion to compel discovery, Mr. Turkish has also engaged in a pattern of gamesmanship to delay and obstruct production of documents. 4

6 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 6 of 11 lodged in the Second Circuit. And despite Mr. Bandas s central role in all aspects of the objection from the beginning, he continues to take the position that he is not subject to the sanctioning power of the Court. Put another way, Mr. Turkish s role in this case is precisely to stand in the shoes of Mr. Bandas to protect Mr. Bandas from the sanctioning power of this Court. As Plaintiffs have explained, Mr. Bandas s contention that he is beyond the sanctioning power of the Court should be rejected out of hand. (Doc. 575, 9-10). Nevertheless, if Mr. Turkish is going to stand in Mr. Bandas s shoes to protect him, then he must face the consequences of doing so. Mr. Turkish is fully aware of these consequences. He is no stranger to the possibility of sanctions for filing frivolous objections. As Judge McMahon found in one such case, Forrest S. Turkish has apparently filed similar objections in at least 12 other recent class actions. He is, as we say in the trade, a professional objector. When his objections are overruled, he files a notice of appeal. As far as this court is aware, every one of those appeals has either been dismissed for failure to perfect or voluntarily dismissed. City of Providence v. Aéropostale, Inc., 2014 WL , at *2 (S.D.N.Y. May 9, 2014). In that case, Judge McMahon found that the objection he filed was patently without merit. Indeed, it is patently frivolous. Responding to it has wasted the time of Lead Plaintiff s counsel, and dealing with it has wasted the time of this Court. Id. at *3. The Court consequently ordered Mr. Turkish to show cause why he should not be sanctioned by this court. Id. While Judge McMahon ultimately determined, reluctantly, that [i]t is not worth the time or the trouble to enter a sanctions order, she concluded by stating, Now that this court has become acquainted with Mr. Turkish, his reputation will precede him should he turn up in future cases. City of Providence v. Aéropostale, Inc., No , slip op. at 2 (S.D.N.Y. June 10, 2014) (Doc. 74). 5

7 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 7 of 11 make it especially appropriate to impose sanctions upon Mr. Turkish. This would The very purpose of Rule 11 is to prevent the filing of documents that an attorney cannot stand behind... As the Second Circuit has stated, Deterrence would be undermined if district courts could not impose Rule 11 sanctions without the possibility of indemnity whether from a client, an employer, or an insurer. We therefore hold that a district court may, within its sound discretion, impose Rule 11 sanctions on an attorney without the possibility of reimbursement from any source, including insurance and employer indemnification. Derechin v. State Univ. of N.Y., 963 F.2d 513, 519 (2d Cir. 1992). 6

8 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 8 of 11 : That an attorney would attempt to avoid the strictures of Rule 11 and our professional Code of Ethics by extracting a promise from a client or a relative of the client to absorb the consequences of an improper filing, when, as here, the attorney knows or should have reason to know that such filing violates Rule 11 or is otherwise improper, offends deeply and should not be countenanced. Harb v. Gallagher, 131 F.R.D. 381, 390 (S.D.N.Y. 1990). The court concluded, Any purported indemnification agreement between the plaintiffs is declared illegal and unenforceable, as violative of the spirit, intent and purposes of Rule 11, Fed.R.Civ.P. Id. at Plaintiffs respectfully suggest that it consider doing both. A sanction for which Mr. Bandas and Mr. Turkish are jointly and severally liable would ensure that Mr. Bandas is subject to monetary sanction. A separate, sanction against Mr. Turkish would provide appropriate deterrence against the kids of abuse of the Rule 11 system that Mr. Turkish has engaged in here. In the end, what matters is that sanctions be imposed to deter the behavior exhibited in this case. Mr. Bandas has orchestrated the filing of a patently frivolous objection for an improper purpose. The only way Mr. Bandas was able to get any documents filed in this case in the face of 7

9 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 9 of 11 sanctions was to use: (1) an attorney who withdrew because he could not defend the objection as non-frivolous, (2), and (3) his own client, who is not an attorney, but, through the actions of Bandas, was exposed to the increased likelihood of sanctions. He should not be permitted to evade Rule 11 by any of these maneuvers. For the reasons set forth in this memorandum and in the earlier memoranda addressing the conduct of Mr. Stein, Mr. Hull, and Mr. Bandas, Plaintiffs respectfully request that the Court impose a $50,000 sanction on Mr. Turkish in addition to each of these individuals. Dated: July 1, 2016 Edward Diver Howard Langer Peter Leckman LANGER, GROGAN & DIVER, P.C Arch Street, Suite 4130 Philadelphia, PA Telephone: (215) Facsimile: (215) Class Counsel 8

10 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 10 of 11 CERTIFICATE OF SERVICE I certify that the foregoing document was served on the following individuals via Forrest Scott Turkish Forrest Scott Turkish, Law Office 595 Broadway Bayonne, NJ (201) Fax: (201) fsturkish@aol.com Christopher Bandas Bandas Law Firm, P.C. 500 N. Shoreline Blvd., Suite 1020 Corpus Christi, Texas (361) Fax: (361) cbandas@bandaslawfirm.com The remaining parties were served a redacted version of the document through the Court s CM/ECF system. 9

11 Case 1:12-cv VEC Document 584 Filed 07/01/16 Page 11 of 11 Dated: July 1, 2016 Edward Diver Howard Langer Peter Leckman LANGER, GROGAN & DIVER, P.C Arch Street, Suite 4130 Philadelphia, PA Telephone: (215) Facsimile: (215) Class Counsel 9