IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ...breitlingreceivership.com/490 REPLY filed by... · CHRISTOPHER A. FAULKNER, et al Defendants. § § § § § § § § § Case

NON-PARTY ROTHSTEIN, KASS & COMPANY PLLC’S REPLY IN SUPPORT OF MOTION FOR ADDITIONAL CLARIFICATION OF STAY PAGE - 1

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SECURITIES AND EXCHANGE COMMISSION,

Plaintiff,

v.

CHRISTOPHER A. FAULKNER, et al

Defendants.

§§§§§§§§§

Case No. 3:16-cv-1735-D

NON-PARTY ROTHSTEIN, KASS & COMPANY, PLLC’S REPLY IN SUPPORT OF MOTION FOR ADDITIONAL CLARIFICATION OF STAY ORDER

E. LEON CARTER State Bar No. [email protected] R. STAHL State Bar No. [email protected] BARKSDALE PEREZ State Bar No. [email protected] ARNETT PLLC8150 N. Central Expy., Suite 500Dallas, Texas 75206-1860(214) 550-8188 (main)(214) 550-8185 (facsimile)

NICOLAS MORGAN (admitted pro hac vice)Cal. State Bar No. [email protected] ZACCARO (admitted pro hac vice)Cal. State Bar No. [email protected] HASTINGS LLP515 South Flower Street, Twenty-Fifth FloorLos Angeles, CA 90071(213) 683-6000 (main)(213) 627-0705 (facsimile)

Attorneys for Non-PartyROTHSTEIN, KASS & COMPANY, PLLC

Case 3:16-cv-01735-D Document 490 Filed 11/18/19 Page 1 of 4 PageID 12992



Non-party Rothstein, Kass & Company, PLLC (“Rothstein Kass”),

respectfully submits this Reply In Support of Motion for Additional Clarification of

Stay Oder.

On October 16, 2019, Rothstein Kass filed its Motion for Additional

Clarification of Stay Oder (“Additional Clarification Motion,” Dkt. #487). Local Rule

7.1(e) states that a “response and brief to an opposed motion must be filed within 21

days from the date the motion is filed” (emphasis added). Accordingly, any

opposition to Rothstein Kass’s Additional Clarification Motion was required to be

filed on November 6, 2019.

On November 6, 2019, counsel for court-appointed receiver Thomas Taylor III

(the “Receiver”) confirmed that the Receiver remains unopposed to the Additional

Clarification Motion.

Counsel for the Jinsun Plaintiffs1 have not filed any response. Beginning on

October 8, 2019, counsel for Rothstein Kass began attempting to confer with counsel

for the Jinsun Plaintiffs asking whether the Jinsun Plaintiffs would agree to non-

suit their aiding and abetting breach of fiduciary duty claim because that “claim, to

the extent it exists, belongs to the court appointed receiver, and, accordingly,

plaintiffs’ pursuit of the claim violates the stay” in this action. See Attachment A

hereto. Having received no response, on October 15, Rothstein Kass counsel again

reached out in an attempt to confer on the issue. Id. Counsel for some of the Jinsun

Plaintiffs responded with a single word, “Federalism,” without any further

explanation. Id. On October 16, Rothstein Kass filed the Additional Clarification

Motion and provided copies to counsel for the Jinsun Plaintiffs (in addition to the

service effected through ECF). Id.

1 The Jinsun Plaintiffs are the plaintiffs in Jinsun, LLC, et al. v. Rothstein Kass & Co., PLLC, No. CC-17-06249, in the County Court at Law No. 3, Dallas County, Texas (filed November 28, 2017).




When a non-movant fails to respond to a motion, the court is permitted to

accept movant’s evidence as undisputed. Tutton v. Garland Indep. Sch. Dist., 733

F.Supp. 1113, 1117 (N.D.Tex.1990) (Fitzwater, J.) (citing Eversley v. MBank Dallas,

843 F.2d 172, 174 (5th Cir. 1988)). In Eversley, the 5th Circuit found that because

the non-movant in a summary judgment context “made no opposition to the motion,

the court did not err in granting the motion as [movant’s] submittals made a prima

facie showing of its entitlement to judgment.” Eversley, 843 F.2d at 174.

Because (1) Rothstein Kass has made a prima facie showing that it is entitled

to the relief sought, (2) the Receiver is not opposed to the relief sought, and (3) the

Jinsun Plaintiffs have not timely opposed the relief sought, the Court should grant

the Additional Clarification Motion. Rothstein Kass respectfully requests that the

Court enter an Order clarifying that the Jinsun Plaintiffs’ claims for aiding and

abetting breach of fiduciary duty and conspiracy to aid or abet a breach of fiduciary

duty are stayed.

Dated: November 18, 2019 Respectfully submitted,

/s/ Nicolas MorganNICOLAS MORGAN (admitted pro hac vice)[email protected] ZACCARO (admitted pro hac vice)[email protected]

PAUL HASTINGS LLP515 South Flower Street, 25th FloorLos Angeles, CA 90071213-683-6000 (main)213-996-3181 (facsimile)



mailto:[email protected]



E. LEON CARTERState Bar No. [email protected] COURTNEY BARKSDALE PEREZState Bar No. [email protected] R. STAHLTexas Bar No. [email protected] ARNETT PLLC8150 N. Central Expy., Suite 500Dallas, Texas 75206-1860214.550.8188 (main)214.550.8185 (facsimile)

Attorneys for Non-PartyRothstein, Kass & Company, PLLC

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document has been served on all counsel of record through the Court’s electronic filing system on November 18, 2019.

/s/ Nicolas MorganNicolas Morgan





ATTACHMENT A

ATTACHMENT A

Case 3:16-cv-01735-D Document 490-1 Filed 11/18/19 Page 1 of 4 PageID 12996


1

Morgan, Nicolas

From: Morgan, Nicolas <[email protected]>Sent: Wednesday, October 16, 2019 5:43 PMTo: Marquette WolfCc: Brian Lauten; Leon Carter; Michelle Logan; Courtney Perez; Zaccaro, Thomas A.Subject: Jinsun vs. Rothstein Kass -- request to nonsuit Count IAttachments: Docket 487.pdf; Docket 487-1.pdf; Docket 488.pdf

Courtesy copies attached. Nick

Nick Morgan | Partner, Litigation Department Paul Hastings LLP | 515 South Flower Street, Twenty-Fifth Floor, Los Angeles, CA 90071 | Direct: +1.213.683.6181 | Main: +1.213.683.6000 | Fax: +1.213.996.3181 | [email protected] | www.paulhastings.com

From: Marquette Wolf <[email protected]> Sent: Tuesday, October 15, 2019 4:19 PM To: Morgan, Nicolas <[email protected]> Cc: Brian Lauten <[email protected]>; Leon Carter <[email protected]>; Michelle Logan <[email protected]>; Courtney Perez <[email protected]>; Zaccaro, Thomas A. <[email protected]> Subject: [EXT] Re: Jinsun vs. Rothstein Kass -- request to nonsuit Count I Federalism.

On Oct 15, 2019, at 5:59 PM, Morgan, Nicolas <[email protected]> wrote:

Brian and Marq, Following up on my email below, I assume you will not agree to non-suit your aiding and abetting breach of fiduciary duty claim, but would you please confirm? Thank you, Nick



2

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From: Morgan, Nicolas <[email protected]> Sent: Tuesday, October 8, 2019 12:17 PM To: Brian Lauten <[email protected]>; Marquette Wolf <[email protected]> Cc: Leon Carter <[email protected]>; Michelle Logan <[email protected]>; Courtney Perez <[email protected]>; Zaccaro, Thomas A. <[email protected]> Subject: Jinsun vs. Rothstein Kass -- request to nonsuit Count I Marq and Brian, In an attempt to meet and confer on a motion to clarify the litigation stay in SEC v. Faulkner, please let us know whether you will agree to nonsuit Count I of the Ninth Amended Petition, Aiding and Abetting a Breach of Fiduciary Duty and Conspiracy to Aid and Abet a Breach A (sic) Fiduciary Duty. That claim, to the extent it exists, belongs to the court appointed receiver, and, accordingly, plaintiffs’ pursuit of the claim violates the stay. Thank you, Nick

<image001.png>


From: Brian Lauten <[email protected]> Sent: Monday, October 7, 2019 9:23 AM To: Zaccaro, Thomas A. <[email protected]> Cc: Morgan, Nicolas <[email protected]>; Leon Carter <[email protected]>; [email protected]; Michelle Logan <[email protected]>; Courtney Perez <[email protected]> Subject: [EXT] Jinsun vs. Rothstein Kass Importance: High



3

Attached please find Plaintiff Vertical Holdings, LLC’s Objections and Answers to Rothstein Kass’s Second Set of Interrogatories. Below please find a link of supplemental document production in response to Rothstein Kass’s Third Request for Production, which are bates labeled Jinsun 7274-9036 https://www.dropbox.com/s/ceapcoh4qts3u2u/JINSUN%207274%20-%209036.pdf?dl=0 After a diligent search, moreover, Stephen Plumb has no further documents responsive to Judge Montgomery’s ruling. Brian P. Lauten, Esq. Brian Lauten, P.C. 3811 Turtle Creek Blvd. Suite 1450 Dallas, Texas 75219 214.414.0996 T | 214.744.3015 F 214-734-6370 C [email protected] www.brianlauten.com <image002.jpg> <image003.png> <image004.jpg> <mg_info.txt>



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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ...breitlingreceivership.com/490 REPLY filed by... · CHRISTOPHER A. FAULKNER, et al Defendants. § § § § § § § § § Case