Case 1:15-cv-02106-LMM Document 10 Filed 06/16/15 Page 1 of 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TIMBERVEST, LLC; JOEL BARTH SHAPIRO; WALTER WILLIAM ANTHONY BODEN, III; DONALD DAVID ZELL, JR., and GORDON JONES II, v. Plaintiffs, CIVIL ACTION FILE NO. 1:15-CV-2106-LMM SECURITIES AND EXCHANGE COMMISSION, Defendant. RESPONSE TO OPPOSITION TO RELATED CASE DESIGNATION Plaintiffs Timbervest, LLC, Joel Barth Shapiro, Walter William Anthony Boden, III, Donald David Zell, Jr., and Gordon Jones II properly designated this case as related to Gray v. SEC, No. 15-cv-492 (N.D. Ga. Feb. 19, 2015) and Hill v. SEC, 15-cv-1801-LMM (N.D. Ga. May 19, 2015) because all three cases arise out of the same set of facts. Defendant the Securities and Exchange Commission ( SEC ) mistakenly argues that this case does not involve the same issues of fact as the Gray and Hill 1
Case 1:15-cv-02106-LMM Document 10 Filed 06/16/15 Page 2 of 8 cases and focuses its attention on the argument that cases are not related because all three cases also raise the same legal issues. In support of its theory, it cites to various rules and cases explaining that cases are not related simply because they involve the same legal issues. Plaintiffs agree. If all that were similar about this case, Hill, and Gray were that they raised the same legal issue, they would not be related. But, contrary to the SEC s argument, these cases arise out of the same facts as well. Namely, they all arise out of the same facts concerning how SEC administrative law judges ( ALJs ) are hired and what authority and powers SEC ALJs possess. The SEC tries to confuse this issue by pointing out that the administrative proceedings against the plaintiffs in Gray, Hill, and this case each present different factual issues and are in different procedural postures. (Doc. 9 at 4-5.) But none of the facts raised by any of the individual administrative proceedings has any bearing on the factual issues before this Court. Moreover, the different procedural postures of the administrative proceedings do not change the fact that the process of appointing the SEC ALJs and what authority the SEC ALJs exercise are the core facts of all three cases pending before this Court. Indeed, in Plaintiffs Memorandum of Law in Support of their Motion for Temporary Restraining Order and Preliminary Injunction, their Statement of 2
Case 1:15-cv-02106-LMM Document 10 Filed 06/16/15 Page 3 of 8 Facts relates only to the manner in which SEC ALJs are hired not to any of the facts underlying the administrative proceeding. (Doc. 3-1 at 6-7.) Moreover, in Hill, the SEC filed a document explaining that the plaintiff already had in his possession any facts... necessary for dispositive motions. (Case No. 1:15-cv- 01801-LMM, Doc. 30.) Tellingly, the SEC then pointed to the exact same facts that are at issue here how the SEC ALJ was appointed. (Id. at 3.) This case involves the same factual issues as Hill and Gray. Plaintiffs therefore correctly designated this case as related to Hill and Gray, and this case was properly assigned to Judge May. The Court should therefore deny the SEC s request to return the case to the Clerk s Office for random assignment. Respectfully submitted this 16th day of June, 2015. /s/ Stephen D. Councill Stephen D. Councill Georgia Bar No. 190358 Thomas J. Mew, IV Georgia Bar No. 503447 Julia B. Stone Georgia Bar No. 200070 ROGERS & HARDIN LLP 2700 International Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 Telephone: (404) 522-4700 Facsimile: (404) 525-2224 /s/ Nancy R. Grunberg Nancy R. Grunberg (Pro Hac Vice Application Pending) George Kostolampros (Pro Hac Vice Application Pending) MCKENNA LONG & ALDRIDGE LLP 1900 K Street, N.W. Washington, D.C. 20006 Telephone: 202-496-7524 Facsimile: 202-496-7756 ngrunberg@mckennalong.com gkostolampros@mckennalong.com 3
Case 1:15-cv-02106-LMM Document 10 Filed 06/16/15 Page 4 of 8 E-mail: scouncill@rh-law.com tmew@rh-law.com jstone@rh-law.com Attorneys for Plaintiffs 4
Case 1:15-cv-02106-LMM Document 10 Filed 06/16/15 Page 5 of 8 CERTIFICATE OF COMPLIANCE The undersigned counsel certifies, pursuant to Local Rule 7.1(D), that the foregoing has been prepared with one of the font and point selections approved by the Court in Local Rule 5.1(C). This 16th day of June, 2015. /s/ Stephen D. Councill Stephen D. Councill Georgia Bar No. 190358 5
Case 1:15-cv-02106-LMM Document 10 Filed 06/16/15 Page 6 of 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TIMBERVEST, LLC; JOEL BARTH SHAPIRO; WALTER WILLIAM ANTHONY BODEN, III; DONALD DAVID ZELL, JR., and GORDON JONES II, CIVIL ACTION FILE NO. 1:15-CV-2106 Plaintiffs, v. SECURITIES AND EXCHANGE COMMISSION, Defendant. CERTIFICATE OF SERVICE I hereby certify that on June 16, 2015, I electronically filed the foregoing RESPONSE TO OPPOSITION TO RELATED CASE DESIGNATION with the Clerk of Court using the CM/ECF system. In addition, I have served the foregoing document by depositing a copy in the U.S. Mail addressed to the following: United States Attorney Northern District of Georgia ATTN: Civil Process Clerk Richard B. Russell Federal Building 75 Spring Street, S.W., Suite 600 Atlanta, Georgia 30303-3309 Loretta E. Lynch Attorney General of the United States 6
Case 1:15-cv-02106-LMM Document 10 Filed 06/16/15 Page 7 of 8 U.S. Department of Justice 950 Pennsylvania Avenue, NW Room B-103 Washington, DC 20530 Justin M. Sandberg Jean Lin Adam Grogg Steven A. Myers Matthew J. Berns U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, DC 20530 Anne Small General Counsel Securities and Exchange Commission 100 F Street, NE Washington, DC 20549 This 16th day of June, 2015. /s/ Stephen D. Councill Stephen D. Councill Georgia Bar No. 190358 Thomas J. Mew, IV Georgia Bar No. 503447 Julia B. Stone Georgia Bar No. 200070 ROGERS & HARDIN LLP 2700 International Tower, Peachtree Center 229 Peachtree Street, N.E. Atlanta, GA 30303 Telephone: (404) 522-4700 Facsimile: (404) 525-2224 E-mail: scouncill@rh-law.com tmew@rh-law.com jstone@rh-law.com 7
Case 1:15-cv-02106-LMM Document 10 Filed 06/16/15 Page 8 of 8 Nancy R. Grunberg (Pro Hac Vice Application Pending) George Kostolampros (Pro Hac Vice Application Pending) MCKENNA LONG & ALDRIDGE LLP 1900 K Street, N.W. Washington, D.C. 20006 Telephone: 202-496-7524 Facsimile: 202-496-7756 ngrunberg@mckennalong.com gkostolampros@mckennalong.com Attorneys for Plaintiffs 8