FILED: NEW YORK COUNTY CLERK 08/02/2016 06:29 PM INDEX NO. 650074/2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 08/02/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Index No.: 650074/16 (Reed, J.) -against-a Plaintiffs, Motion Seq. 1 LIFE MEDICAL TECHNOLOGIES, INC., Defendant. PLAINTIFFS MEMORANDUM OF LAW IN OPPOSTION TO DEFENDANT S ORDER TO SHOW CAUSE Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York 10010 t. 646-484-8554 f. 212-301-7154 tripp@adtlawfirm.com Counsel for Plaintiffs 1 of 18
TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii I. PRELIMINARY STATEMENT... 1 II. FACTS... 4 III. ARGUMENT... 9 A. LMT Does Not Make the Showing Required for a Preliminary Injunction... 10 1. The Preliminary Injunction Standard... 10 2. LMT Fails to Meet the Requirements for a Preliminary Injunction... 11 B. LMT Fails to Meet the Standard for Prejudgment Security... 14 IV. CONCLUSION... 15 i 2 of 18
TABLE OF AUTHORITIES CASES Page Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541 (2000)... 14 Dinner Club Corp. v. Hamlet on Olde Oyster Bay Homeowners Ass n, Inc., 21 A.D.3d 777, 801 N.Y.S.2d 25 (1st Dep t 2005).... 10, 11 Khan v. State University of New York Health Science Center at Brooklyn, 271 A.D.2d 656, 706 N.Y.S.2d 192 (2d Dept., 2000)... 11, 12 Norris, McLaughlin & Marcus P.A. v. Life Medical Technologies, Inc., D.N.J. Index No. 01554-cv-13... 5 Related Properties, Inc. v. Town Board of Town/Village of Harrison, 22 A.D.3d 587, 802 N.Y.S.2d 221, (2nd Dep t 2006).... 11 Somers Associates, Inc. v. Corvino, 156 A.D.2d 218, 548 N.Y.S.2d 480 (1st Dept., 1989)... 11 Uniformed Firefighters Ass n of Greater N.Y. v. City of N.Y., 79 N.Y. 2d 236 (1992).... U.S. Re Companies, Inc. v. Scheerer, 939 N.Y.S.2d 37, 41 A.D.3d 152 (1st Dep t 2007)... 10, 11 10 STATUTES N.Y.C.P.L.R 6301... 14 OTHER Siegel, New York Practice (5th ed 2013), 313-14... 12 ii 3 of 18
Plaintiffs, Event Cardio Group, Inc. ( ECGI ) and Efil Sub of ECG, Inc. ( Efil ), through their counsel, the Law Firm of Alexander D. Tripp, P.C., submit this Memorandum of Law in opposition to the Order to Show Cause of Defendant, Life Medical Technologies, Inc. ( LMT ), which seeks an order (a) that Plaintiffs be estopped from making a $600,000 payment to Ambumed Inc. or to any other parties pending the resolution of the complaint and counterclaims in this action, (b) that ECGI surrender to LMT any improvements that Ceres Technologies, Inc., ( Ceres ) made to the BreastCare DTS medical device (the Breastcare device ), and that LMT be allowed to contact Ceres, (c) that Plaintiff produce documents in response to Defendant s document requests, (d) a declaratory judgment be granted to return all rights to the Breastcare device to LMT and (e) that Plaintiffs post a bond of $2,500,000 as security for Defendant on its counterclaim. PRELIMINARY STATEMENT Defendant brought this Order to Show Cause as part of its scheme to extract unjustified fees and penalties from Plaintiffs. The Defendant does not pretend to have any legal support for the sweeping demands it makes and has not bothered to comply with basic procedural requirements for an order to show cause. The relief LMT seeks stripping Efil of its rights under the parties agreement and the turnover of a feasibility study for the manufacture of the Breastcare device would provide the ultimate relief LMT is seeking in this action and is not properly the subject of a preliminary injunction. LMT has spent years embroiled in litigation with virtually everyone who deals with its principal, Carol Fitzgerald. 1 Shareholders have sued LMT for negligence and 1 E.g., Exhibits D-G of the accompanying Affirmation of Alexander Tripp, dated August 1 4 of 18
corporate waste, investors have sued it for fraud and self dealing, and contractors have sued it for breaching its agreements. 2 While LMT has raised over $8 million over the past decade, allegations of drug abuse, prodigality and ineptitude by the LMT management left the company besieged by lawsuits and on the verge of bankruptcy. 3 LMT was about to lose its patent for the Breastcare device to judgment creditors in 2014 when it sought help from ECGI. 4 While LMT has been successful at raising money and somewhat less successful at litigation, LMT has had no success at all in developing the Breastcare device, which it had been unable to bring to market. 5 After a series of judgments left LMT unable to pay its creditors, Plaintiff ECGI rescued LMT by paying off those creditors and settling pending lawsuits. 6 ECGI s subsidiary, Efil, then entered into a licensing agreement with LMT for the Breastcare device. 7 The parties planned to work together to raise funds to manufacture and distribute the Breastcare device, for which ECGI relied on Ms. Fitzgerald for her purported expertise based on her long familiarity with the Breastcare device. ECGI entered into a consulting agreement with 2, 2016 (the Tripp Affirmation ). 2 E.g., Maryanow v. Fitzgerald et al. (Tripp Affidavit, Ex. E) (suit over promissory notes including allegations of corporate waste and negligence), Hornberg Enterprise Ltd Partnership et al v. LMT et al. (Tripp Affidavit, Ex. F) (suit by investors including allegations of fraud and negligence), Norris, McLaughlin & Marcus P.A. v. Life Medical Technologies, Inc., D.N.J. Index No. 01554-cv-13 (suit for unpaid legal fees). 3 Compare Affidavit of Carol Fitzgerald, sworn to on July 3, 2016 (the Fitzgerald Aff. ), 18 (asserting $8 million has been invested in the Breastcare device) with September 2014 Settlement Agreement (Exhibit A to the Affirmation of John Bentivoglio, dated August 1, 2016 (the Bentivoglio Aff. )) (stating that a judgment creditor was seeking a receiver for the assets and property of LMT). 4 Bentivoglio Aff, 6-11, Ex. A. 5 Id. 5. 6 Id., 6-11. 7 Id., 12. 2 5 of 18
Ms. Fitzgerald to give her access to confidential information about ECGI and so she could work with ECGI on developing business plans and meet with potential investors. 8 Once ECGI had paid off LMT s judgment creditors and settled pending fraud suits, LMT and Ms. Fitzgerald turned on ECGI and Efil by seeking to oust Efil from its licensing agreement for the Breastcare device and by attempting to obstruct additional investments by a major investor in ECGI. 9 Ms. Fitzgerald violated her fiduciary duties to ECGI by using confidential misinformation of ECGI and abusing the access ECGI provided her to a major investor to scheme to have that investor withdraw funding from ECGI. 10 Ms. Fitzgerald s affidavit in support of this Order to Show Cause acknowledges her contacts with the investor, but merely denies misusing confidential information to undermine ECGI. 11 LMT and its principal, Carol Fitzgerald, have faced numerous lawsuits alleging securities fraud, common law fraud, breach of fiduciary duty, as well as erratic behavior related to drug and alcohol abuse. 12 This suit alleges that ECGI, through Ms. Fitzgerald, tortiously interfered with ECGI s relationship with Medpac, and that LMT improperly used Ms. Fitzgerald s access to and information about ECGI to obstruct further investment in ECGI. 13 This suit also alleges that LMT violated the covenant of good 8 Bentivoglio Aff., 15. 9 Bentivolgio Aff., 27, 29-30. 10 Id. 11 Affidavit of Carol Fitzgerald, sworn to July 3, 2016, 35. 12 See Bentivoglio Aff., 5, 13; Affirmation of Alexander Tripp, dated August 1, 2016, (the Tripp Aff. ) Exs. D-G (attaching complaints with allegations against LMT and Ms. Fitzgerald). 13 Tripp Aff., Ex. I, 15, 39-44. 3 6 of 18
faith and fair dealing by scheming to strip Efil of its license for the Breastcare device and that LMT baselessly declared Efil in default under the License. 14 LMT has improperly brought this Order to Show Cause when (a) the acquisition that the Order to Show Cause seeks to estop closed before the papers for this motion were filed, (b) there has not been any attempt to resolve the purported discovery dispute, (c) there has been no showing of irreparable harm and when LMT seeks money damages for its counterclaim, (d) there is no imminent harm as LMT offers only speculation about possible issues with FDA approval of a device that is far from being manufactured or marketed, (e) the facts are sharply in dispute and although Ms. Fitzgerald does not deny her wrongdoing, she attempts to provide justifications for it, (f) the misconduct of LMT tips the equities against it and (g) there is no legal basis for LMT s demand for security. FACTS For years, LMT and Ms. Fitzgerald have been mired in litigation arising from allegations of securities fraud, corporate misconduct, breaches of contract, waste, selfdealing and drug abuse. 15 In 2014, Efil settled pending lawsuits on behalf of LMT and paid off judgment creditors when LMT was within weeks of losing its rights to the patent for the Breastcare device. 16 Although LMT acquired the rights to the Breastcare device in 2009 for $500,000, by 2014 LMT had raised and spent approximately $8 million but was unable to bring the Breastcare device to market. 17 There were numerous investor 14 Id., 25, 35-38. 15 See Tripp Aff., Exs. D-G (various complaints alleging wrongding by Ms. Fitzgerald, LMT and LMT directors). 16 Bentivoglio Aff., 6-11, Ex. A. 17 LMT acquired those rights in the bankruptcy of Scantek, Inc., the company of of which 4 7 of 18
suits alleging a variety of misconduct, including securities fraud, breach of fiduciary duty, corporate waste, drug abuse, and other malfeasance. 18 Contemporaneous with Efil s paying off LMT s judgment creditors and settling the pending action against LMT, Efil entered into an October 17, 2014 license agreement with LMT (the License ) for the Breastcare device. 19 The License provided for payments to LMT based on the marketing of Breastcare. Specifically, the License provided that Efil s territory was the U.S., Canada, and Asia. 20 In addition, the license provided that, apart from Latin America, the Caribbean and India, Efil had the exclusive right to claim other areas, subject to LMT s right of first refusal. 21 ECGI entered into a consulting agreement with Ms. Fitzgerald because of her many years of experience with the Breastcare device and with regulatory issues associated with the product. 22 ECGI relied on Ms. Fitzgerald s expertise and experience for investor presentations, conferring with prospective distributors, organizing clinical studies and advising ECGI about its business plans. 23 ECGI and Ceres Technology, Inc., entered into an agreement for Ceres to carry out a study to determine the feasibility of creating a production line the Breastcare Dr. Zigmond Sagi, the inventor of the Breastcare device, was the principal. See In Re: Scantek Medical, Inc., N.J. Bankr. Index No. 09-35593 (MS). LMT s attorneys in that bankruptcy then brought an action against LMT for failure to pay its legal fees. See Norris, McLaughlin & Marcus P.A. v. Life Medical Technologies, Inc., D.N.J. Index No. 01554-cv-13. 18 E.g., Tripp Aff., Exs, D-G, Bentivoglio Aff., Exs. A-B. 19 Bentivoglio Aff. Ex. C. 20 Id., 2.01(b). 21 Id., 1.11, 2.01(b), 3.02. 22 Bentivoglio Aff., 15, 24. 23 Id., 15, 24, Ex. D. 5 8 of 18
device. 24 LMT and Sam Mousa, a consultant LMT designated, provided Ceres with the technical information for the Breastcare device. 25 LMT retained possession of all the intellectual property for the Breastcare device. 26 To protect the intellectual property, Ceres executed a confidentiality agreement and a noncompete agreement. 27 Ceres was instructed to determine the feasibility of its ability to produce the Breastcare device based the information LMT and Mousa provided to Ceres. 28 That feasibility study did not concern improvements or modifications of the Breastcare design; it was an attempt to determine the feasibility and cost of Ceres s producing the device. 29 In 2015, ECGI obtained a loan from Medpac Asia Pacific Pty Ltd. ( Medpac ), an investor group in Australia. 30 Medpac was interested in distributing certain of ECGI s medical devices in Australia and a number of countries in Asia and the South Pacific. Medpac provided ECGI with a $500,000 loan in exchange for a future agreement to distribute ECGI s medical devices in Australia, New Zealand, Singapore, Thailand, Malaysia, Indonesia, Philippines, Vietnam, Laos, Cambodia, Myanmar and Bangladesh. 31 That loan is still outstanding and continuing to accrue interest. 32 Because the Breastcare device was not yet being produced, Medpac and ECGI agreed to a Summary of Distribution Agreement Terms that anticipated the parties would execute and deliver individual distribution agreements at the time ECGI is able to 24 Bentivoglio Aff., 16; accompanying Affidavit of Kevin Brady, sworn to on August 2, 2016, (the Brady Aff. ), 2. 25 Bentivoglio Aff., 18; Brady Aff., 2-3. 26 Bentivoglio Aff., Ex. C, 7.01. 27 Bentivoglio Aff. 16. 28 Id., 16, 19; Brady Aff., 2. 29 Brady Aff., 2. 30 Bentivoglio Aff., Ex. E. 31 Id., 31. 32 Id., 21. 6 9 of 18
deliver a product and is prepared to commence distribution in each jurisdiction. 33 At the time ECGI and Medpac entered into that agreement, Efil served a notice under sections 2.01 and 3.02 of the License to claim the territories where Medpac anticipated distribution. 34 ECGI continued to seek investments and expected additional investments from Medpac. 35 In September 2015, John Bentivoglio of ECGI met in New York with Ms. Fitzgerald and Julie Singleton, an Australian investor in Medpac who had a particular interest in the Breastcare device. 36 Under Ms. Fitzgerald s consulting agreement with ECGI, she was privy to confidential information about the company and had been hired to provide expertise regarding the Breastcare device. 37 When Ms. Fitzgerald and Ms. Singleton later went out drinking together in New York, Ms. Fitzgerald suggested that Ms. Singleton could invest directly in LMT and that she could arrange for Efil to lose its license for the Breastcare device. 38 In furtherance of that scheme, Ms. Fitzgerald made false statements to Medpac so that it would not make further investments in ECGI, including falsely representing to Medpac that Efil did not have a license for the Breastcare device in the territory Medpac sought. 39 ECGI continued to seek investors for the $2.5 million Ceres anticipated it would cost to create an automated production line for the Breastcare device. In the fall of 2015, Mr. Bentivoglio met with Watford Equity, a Canadian investment company that 33 Id., Ex. F. 34 Bentivoglio Aff., Ex. G. 35 Id., 24. 36 Id., 25. 37 Id., 15-24. 38 Id., 27. 39 Bentivoglio Aff., 32. 7 10 of 18
was prepared to invest $5 million into developing the Breastcare device and bringing it to market. 40 In exchange for the $5 million investment, Watford Equity required that ECGI acquire LMT free and clear of all encumbrances, which would require Ms. Fitzgerald to give up control of the Breastcare device. 41 Ms. Fitzgerald turned down that proposal. 42 Although Efil had paid over $500,000 to settle various legal actions against LMT and had paid off LMT s judgment creditors, saving the Breastcare patent when it was on the verge of being lost to a creditor, LMT sent a notice, dated November 30, 2015, which demanded baseless fees, milestones and penalties from Efil (the Breach Letter ). 43 In particular, the Breach Letter sought Milestone Payments, although section 3.03 of the License required such payments if Efil granted a sublicense. Efil had not yet entered into the sublicense because the Breastcare device was not yet in production, so no Milestone Payments were due. 44 LMT also demanded damages and the return of the open territories Efil had claimed, although Efil had complied with section 3.02 of the License and expended well over $100,000 in sales efforts by funding Ceres, paying off judgment creditors and other expenditures constituting sales efforts. 45 ECGI and Efil commenced this action on January 8, 2016. 46 Medpac continued to be interested in funding the development of the Breastcare device, although by 2016 40 Bentivoglio Aff., 28 41 Id. 42 Id. 43 Bentivoglio Aff., 31, Ex. H. 44 Id., 13, 21, 36, 38, 45 Id., 6-11, 34. 46 Tripp Aff., Ex. I. 8 11 of 18
Ms. Singleton was no longer part of Medpac. 47 In the Spring of 2016, Medpac approached LMT and offered $5 million in funding for the production and marketing of the Breastcare device, with LMT retaining its territories and receiving royalties for all sales, and Ms. Fitzgerald receiving a salary. 48 That proposal required Ms. Fitzgerald to relinquish control of the Breastcare device, so Ms. Fitzgerald turned down Medpac s offer. 49 On July 15, 2016, LMT served 53 document requests on Efil and ECGI. 50 On June 17, 2016, ECGI and Efil served document requests on interrogatories on LMT. 51 On July 5, 2016, Efil and ECGI timely served responses and objections to LMT s document requests. 52 On July 8, 2016, LMT responded to plaintiffs document requests. 53 On July 13, 2016, ECGI closed its acquisition of National Cardiac Monitoring Center. 54 On July 14, 2016, LMT filed papers seeking this Order to Show Cause. ARGUMENT LMT provides no authority for the specific relief it seeks by this Order to Show Cause. It is unable to meet the threshold showing that is required for a preliminary injunction: it cannot show irreparable harm, its tortured interpretation of the facts and the contracts show little likelihood of prevailing on the merits, and its attempt to strip 47 Bentivoglio Aff., 35. 48 Bentivoglio Aff., 35. 49 Id. 50 Tripp Aff., 3, Exs A, B. 51 Tripp Aff., 3. 52 Id., Exs., A, B. 53 Tripp Aff., 3. 54 Bentivoglio Aff., Ex. I. 9 12 of 18
plaintiffs of their investments place the hardships primarily on Efil and ECGI, so the equities tip against LMT. In addition, LMT demands prejudgment security without offering any legal basis for demanding a bond from the Plaintiffs. This application should be denied in its entirety. A. LMT Does Not Make the Showing Required for a Preliminary Injunction 1. The Preliminary Injunction Standard A preliminary injunction is a drastic remedy that should only be issued cautiously and with appropriate procedural safeguards. 55 A party seeking a preliminary injunction must make a clear showing of (a) a likelihood of ultimate success on the merits, (b) irreparable injury in the absence of an injunction and (c) the equities tipping in favor of the movant. 56 It is well established that a preliminary injunction is not available in an action seeking only money damages. 57 Where a party seeks a preliminary injunction in an action seeking money damages, the court should deny the motion for a preliminary injunction without reaching the issue of whether [the party] satisfied the test for the granting of such relief. 58 55 Uniformed Firefighters Ass n of Greater N.Y. v. City of N.Y., 79 N.Y. 2d 236, 241 (1992). 56 U.S. Re Companies, Inc. v. Scheerer, 939 N.Y.S.2d 37, 39, 41 A.D.3d 152, 154 (1st Dep t 2007). 57 Dinner Club Corp. v. Hamlet on Olde Oyster Bay Homeowners Ass n, Inc., 21 A.D.3d 777, 801 N.Y.S.2d 25, 26 (1st Dep t 2005). 58 Id., 21 A.D.3d at 778-79, 801 N.Y.S.2d at 27. 10 13 of 18
To meet the burden of establishing a likelihood of success on the merits, the movant must show a clear right to relief which is plain from the undisputed facts. 59 A party cannot show irreparable harm if there is an adequate remedy at law and, to be irreparable, an injury must be actual and imminent, not remote and speculative. 60 In the final prong of the test, the court must weight the respective harm to the parties if the injunction were granted. 61 2. LMT Fails to Meet the Requirements for a Preliminary Injunction LMT has asserted claims against Efil and ECGI for breach of contract for which it seeks damages in an amount as determined by the court but no less than $1,000,000 plus interest. 62 In this action, the injuries LMT seeks can be compensated by money damages, so there is no basis for seeking a preliminary injunction and the court should deny the motion for a preliminary injunction; this application should be denied without the Court s reaching the three-prong test for a preliminary injunction. 63 Even if the Court were to proceed to the well-established test for granting a preliminary injunction, LMT cannot meet its burden for demonstrating its right to such a drastic remedy. 64 LMT is unable to show irreparable harm because any damages can be compensated by money damages and are therefore not irreparable, and because there has been no showing of an injury that is anything more than highly speculative 59 Related Properties, Inc. v. Town Board of Town/Village of Harrison, 22 A.D.3d 587, 802 N.Y.S.2d 221, (2nd Dep t 2006). 60 Khan v. State University of New York Health Science Center at Brooklyn, 271 A.D.2d 656, 706 N.Y.S.2d 192 (2d Dept., 2000). 61 Somers Associates, Inc. v. Corvino, 156 A.D.2d 218, 219, 548 N.Y.S.2d 480 (1st Dept., 1989). 62 LMT Answer with Counterclaims, pg 13 (Tripp Aff., Ex. H). 63 Dinner Club, 21 A.D.3d at 778-79, 801 N.Y.S.2d at 26. 64 See Uniformed Firefighters v. City of N.Y., 79 N.Y. 2d at 241. 11 14 of 18
and remote. 65 LMT has not made any allegations that would constitute imminent, irreparable harm. Ms. Fitzgerald asserts that if ECGI violates FDA manufacturing and or marketing requirements it could cause irreparable damage to Life MT. 66 LMT does not explain this vague, speculative statement and how it would be irreparably damaged by a possible issue with the FDA some time in the future. There is no dispute that the Breastcare device is far from actual production. 67 There is therefore no imminent issue with FDA approval. In addition, Efil has the exclusive right to distribute the Breastcare device in the U.S., so when the device is manufactured and distributed, if there is any failure to comply with FDA requirements, the harm would be primarily to Efil, not LMT, whose marketing area is not in the U.S. 68 In addition to being unable to show imminent, irreparable harm, LMT cannot show a likelihood of success on the merits. LMT has not shown a clear right to relief that is plain from the undisputed facts because LMT seeks: (a) to estop a transaction that has already taken place; 69 (b) an order that ECGI turn over intellectual property that ECGI does not possess, because LMT was the source of any technical information provided to Ceres and there have been no improvements or modifications to any intellectual property; 70 (c) an order that Efil and ECGI produce documents when there has been no goodfaith attempt by LMT to seek discovery, when both parties served discovery responses 65 See Khan, 271 A.D.2d 656, 706 N.Y.S.2d 192. 66 Fitzgerald Aff., 19 (emphasis added). 67 Brady Aff., 2, Bentivoglio Aff., 19. 68 See Bentivoglio Aff., 12, Ex. C. 69 Bentivoglio Aff., 37, Ex. I. 70 Bentivoglio Aff., 16-18; Brady Aff., 2. 12 15 of 18
objecting to discovery demands and the parties have not met and conferred regarding this purported discovery dispute; 71 and (d) an order that Efil be stripped of its rights under the License and forfeit over $500,000, which it paid to LMT s creditors and adversaries, when Efil has complied with the License, and LMT surreptitiously sought to obstruct ECGI s funding and engaged in a campaign of misconduct and falsehoods to strip Efil of its license. 72 LMT and Ms. Fitzgerald have a long history of litigation involving securities fraud, corporate waste, self-enrichment and drug abuse. 73 Under Ms. Fitzgerald, LMT has squandered $8 million of investors money over more than years and has been unsuccessful in producing a single Breastcare device. 74 If LMT were truly concerned with producing the Breastcare device, ECGI has brought investors willing to fully fund the production as long as Ms. Fitzgerald is not in a position to siphon off funds for her personal use. 75 Rather than working with ECGI to obtain the funding the parties require, LMT attacked ECGI, interfered with potential investments and, after Efil paid off LMT s creditors and settled its pending lawsuits, LMT sought to strip Efil of its rights to the Breastcare device. 76 Rather than a clear right to relief which is plain from the undisputed facts, LMT is seeking relief that is either moot (to estop a transaction that has already taken place) or impossible (to turn over Intellectual Property that does not exist) or that would impose a new and baseless interpretation on the agreement between Efil and LMT (to 71 Tripp Aff., 4, Ex. C. 72 Bentivoglio Aff., 27, 30-34. 73 See Tripp Aff., Exs. D-G. 74 Bentivoglio Aff., 5. 75 Bentivoglio Aff., 28-29, 35. 76 Bentivoglio Aff., 30-31, 33-34. 13 16 of 18
strip Efil of its rights under the License). There is no clear likelihood of LMT s prevailing on the merits. Finally, granting the Order to Show Cause would strip Efil of its rights under the License and would wipe out its investment in the Breastcare product, including its payment of over $500,000 to pay off LMT s judgment creditors and settle pending suit. 77 In effect, granting the Order to Show cause would reward LMT for its wrongdoing and would impose a significant and inequitable hardship on Efil and ECGI. B. LMT Fails to Meet the Standard for Prejudgment Security CPLR article 63 provides the statutory authority for seeking prejudgment security. 78 LMT has not offered any legal authority to support their demand that plaintiffs to be required to post a bond, and there is no legal basis for LMT to seek a prejudgment attachment. In the absence of any allegations to support this application and any legal authority to grant it, the Court should deny LMT s request for prejudgment security. 79 77 Bentivoglio Aff, 6-11, 34. 78 CPLR 6301. Siegel, New York Practice (5th ed 2013), 313-14. 79 See Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541, 544-45 (2000) (preliminary injunction governed by CPLR 6301 and courts have consistently refused to grant general creditors a prelminary injunction to provide security to prevent threatened dissipation of assets ). 14 17 of 18
CONCLUSION LMT has failed to show it cannot be compensated by money damages, has failed to meet any of the three prongs required for a preliminary injunction, has failed to comply with its obligation to attempt to resolve any discovery disputes before seeking court intervention, and has failed to provide any legal basis for requiring prejudgment security. This Order to Show Cause should be denied in its entirety. Dated: New York, New York August 2, 2016 Respectfully submitted, LAW FIRM OF ALEXANDER D. TRIPP, PC By: /s/ Alexander Tripp 928 Broadway, Suite 1000 New York, New York 10010 t. 646-484-8554 f. 212-301-7154 tripp@adtlawfirm.com Attorney for Plaintiffs 15 18 of 18