11th Circuit Appellate Brief of Monitor Order: December 9, 2009

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 3000 WACHOVIA FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CASE NO. 09-14183

KLAUS HOFMANN, Appellee/Plaintiff,

vs.

EMI RESORTS, INC., et al.,

Appellants/Defendants. ____________________________________________

On Appeal from the United States District Court

for the Southern District of Florida Case Nos. 09-20526, 09-20657

BRIEF BY APPELLANTS EMI RESORTS, INC. et al. 1

James Moon, Esq. Fla. Bar No. 938211 Peter D. Russin, Esq. Fla. Bar No. 765902 MELAND RUSSIN & BUDWICK, P.A. 3000 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Telephone: (305) 358-6363 Telecopy: (305) 358-1221 Counsel for EMI Resorts, Inc. et al. 1 EMI Resorts Inc., EMI Sun Village Inc., HSV Operadora de Hoteles, S.A., EMI Resorts Management, S.A., EMI Resorts (S.V.G.) Inc., EMI Cofresi Developments Inc., Sun Village Juan Dolio Inc., Promotora Xara, S.A., Elliott Miches Holdings Inc., Inversiones Yubaso, S.A., Inmobiliaria Lirios Del Tropico, S.A., Inmobiliaria Canadaigua, S.A., HSV Holdings, S.A., Desarrollos Mirador Cofresi, S.A., Tenedora HSV [B.P.], S.A., Villa Santa Ponca, S.A., Bertus Management Inc., CCW Dominicana, S.A, Cofresco Holdings Inc., Inmobiliaria Moncey, S.A., Cellwave Networks Limited and WWIN International Limited (collectively, "EMI Appellants" or "EMI Corporate Defendants").

Hofmann v. EMI Resorts, Inc. et al.

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CERTIFICATE OF INTERESTED PERSONS

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Rule 26.1-

1 of the Eleventh Circuit Rules, the following is a list of the trial judge(s), all attorneys,

persons, associations of persons, firms, partnerships or corporations with any known

interest in the outcome of this appeal:

1. 408 Cumberland Holdings, Inc., Defendant

2. Aguilar, Aurelio, Former Plaintiff

3. Aguilar, Jose Manuel Leyua, Former Plaintiff

4. Aguilar, Leyva, Plaintiff-Intervenor

5. Aguilar, Martha, Plaintiff

6. Aguilar, Rafael, Plaintiff-Intervenor

7. Aguilar, Salvador, Plaintiff

8. Alcarez, Bernave, Plaintiff-Intervenor

9. Aldrich, Greg, Former Plaintiff

10. Aldrich, Wendy, Former Plaintiff

11. Alejandro, Jorge, Plaintiff-Intervenor

12. Alexa, John, Plaintiff-Intervenor

13. Allred, Elsa, Plaintiff- Intervenor

14. Altamirano, Cesar, Plaintiff

15. Altamirano, Sabino, Former Plaintiff


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16. Amezcua, Rosa, Plaintiff-Intervenor

17. Andebrhan, Tigist, Plaintiff-Intervenor

18. Andersen, Barry, Plaintiff-Intervenor

19. Andersen, Irma, Plaintiff-Intervenor

20. Anderson, Frederick, Plaintiff-Intervenor

21. Anderson, Sheri, Plaintiff-Intervenor

22. Anderson, Steve, Plaintiff-Intervenor

23. Anderson, Roy, Former Plaintiff

24. Andrade, Luis, Plaintiff-Intervenor

25. Andrade, Teresa, Plaintiff-Intervenor

26. Aniciete, Sherwin, Plaintiff

27. Antrim, Joanne, Plaintiff- Intervenor

28. Anzures, Ema, Former Plaintiff

29. Anzures, Juan, Former Plaintiff

30. Arango, Alejandra, Former Plaintiff

31. Arango-Carreno, Angeles, Plaintiff

32. Arnold, Janae, Plaintiff-Intervenor

33. Arnstein & Lehr LLP, Counsel to Plaintiffs, Case No. 09-20526

34. Arredondo, Juan, Plaintiff-Intervenor

35. Atwood, Ardith, Plaintiff- Intervenor


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36. Atwood, Garth, Plaintiff-Intervenor

37. Avalos, Enrique, Former Plaintiff

38. Avalos, Gildardo, Former Plaintiff

39. Avalos, Olivia, Former Plaintiff

40. Avenetti, Diane, Plaintiff-Intervenor

41. Avilla, Kathy, Plaintiff

42. Baeyena, Michael, Plaintiff-Intervenor

43. Baker, Laura, Plaintiff-Intervenor

44. Ballesteros, Gloria, Former Plaintiff

45. Banda, Juan, Former Plaintiff

46. Barber, Susan, Former Proposed Plaintiff-Intervenor

47. Barber Family Trust, Former Proposed Plaintiff-Intervenor

48. Barnes, Pamela, Former Plaintiff

49. Barnett, Annette, Plaintiff-Intervenor

50. Barragan, Alex, Former Plaintiff

51. Barretto, Don, Former Plaintiff

52. Barretto, Francis, Former Plaintiff

53. Bartlett, Linda, Plaintiff

54. Bates, Christy, Former Plaintiff

55. Bates, Georgia, Plaintiff-Intervenor


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56. Bates, Robert, Plaintiff-Intervenor

57. Beal, Jesse, Plaintiff-Intervenor

58. Beckstead, Jared, Former Plaintiff

59. Bell, Kevin, Plaintiff-Intervenor

60. Bel1ido, Nelson, Counsel to the Elliott Defendants

61. Belvis, Lulu, Plaintiff-Intervenor

62. Bertus Management, Inc., Defendant

63. Benedict, Katherine, Plaintiff-Intervenor

64. Benedict, Thomas, Plaintiff

65. Biddulph, Gregory, Plaintiff-Intervenor

66. Biddulph, Luana, Former Plaintiff

67. Biddulph, Stephen, Plaintiff-Intervenor

68. Biggs, Loran, Plaintiff

69. Biggs, Winifred, Plaintiff

70. Bingham, Gary, Former Plaintiff

71. Bingham, Judith, Former Plaintiff

72. Bischoff, Vicky, Former Plaintiff

73. Bisel Family Trust, Former Plaintiff

74. Bisel, Trudy, Former Plaintiff

75. Blackman, Rod, Former Plaintiff


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76. Blackman, Rosemary, Former Plaintiff

77. Boehm, Eric, Former Plaintiff

78. Boehm, Deborah, Former Plaintiff

79. Bonite, Jean, Plaintiff

80. Bonite, Rodger, Plaintiff

81. Boutin, Gary, Plaintiff

82. Boyce, William III, Plaintiff

83. Brahms, Sharon, Plaintiff

84. Braithwaite, Randy, Plaintiff

85. Braithwaite, Ronda, Plaintiff

86. Brandt, Alvin, Plaintiff-Intervenor

87. Brandt, Irene, Plaintiff-Intervenor

88. Braun, Hans, Former Plaintiff

89. Bran, Ulrike, Former Plaintiff

90. Brewster, Elaine, Plaintiff-Intervenor

91. Briggs, Norman, Former Plaintiff

92. Brimhall, Timo, Former Plaintiff

93. Brimley, David, Former Plaintiff

94. Brimley, Richard, Former Plaintiff

95. Brinkman, Mark, Plaintiff-Intervenor


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96. Brinkman, Roberta, Former Plaintiff

97. Brit, Mary, Former Plaintiff

98. Brogan, Lynn, Plaintiff-Intervenor

99. Brondum, Aaron, Former Plaintiff

100. Brondum, Carol, Plaintiff-Intervenor

101. Brondum, Harold, Plaintiff-Intervenor

102. Brookman, John, Plaintiff-Intervenor

103. Broughton, Francine, Plaintiff

104. Browning, James, Former Plaintiff

105. Browning, Janet, Former Plaintiff

106. Bugarin, Martin, Plaintiff- Intervenor

107. Bunatao, Dorianne, Former Plaintiff

108. Bunatao, Ioobi, Former Plaintiff

109. Bundy, Steven, Plaintiff-Intervenor

110. Burica, Alan, Plaintiff

111. Burr, Scott, Counsel to Elliott Defendants

112. Bustos, Luis, Plaintiff-Intervenor

113. Byington, Eveline, Former Plaintiff

114. CCW Dominicana, S.A., Defendant

115. Caballero Lara, Genoveva, Former Plaintiff


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116. Cabezud, Janet, Plaintiff

117. Cabezud, Josiah, Former Plaintiff

118. Cabezud, Steven, Plaintiff

119. Cabral, Victor, Defendant

120. Cagle, Steven, Plaintiff

121. Calderon, Manuel, Plaintiff-Intervenor

122. Caldwell, Diane, Former Plaintiff

123. Caldwell, Jon, Former Plaintiff

124. Call, Spencer, Plaintiff-Intervenor

125. Callahan, Michael, Plaintiff-Intervenor

126. Calloway, Jane, Plaintiff-Intervenor

127. Calloway, Philip, Plaintiff-Intervenor

128. Cameron, Valerie, Former Plaintiff

129. Carmona, Francisco, Plaintiff-Intervenor

130. Carmona, Ricardo, Former Plaintiff

131. Carreno, Antonio, Plaintiff-Intervenor

132. Carreno, Febronia, Plaintiff-Intervenor

133. Carrillo, Juan, Plaintiff-Intervenor

134. Carrillo, Maria, Plaintiff-Intervenor

135. Casarez, Tonya, Former Plaintiff


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136. Casassa, Gary, Plaintiff-Intervenor

137. Casey, Gayline, Former Plaintiff

138. Casillas, Baudelia, Plaintiff-Intervenor

139. Castellanos, Sabas, Former Plaintiff

140. Castenada, Andrew, Plaintiff-Intervenor

141. Castenada, Leticia, Plaintiff-Intervenor

142. Castillo, Erica, Former Plaintiff

143. Castillo, Rodolfo, Former Plaintiff

144. Catledge, James, Plaintiff

145. Catledge, Janie, Plaintiff-Intervenor

146. CCW Dominicana, S.A., Defendant

147. Cellwave Networks Limited, Defendant

148. Cendeja, Irma, Plaintiff-Intervenor

149. Cendejas, Jose, Plaintiff-Intervenor

150. Centeno, Marcelino, Former Plaintiff

151. Centeno, Maria, Plaintiff-Intervenor

152. Centeno, Ofelia, Former Plaintiff

153. Centeno, Victor, Plaintiff-Intervenor

154. Chase, Daphne, Former Plaintiff

155. Chavez, Israel, Former Plaintiff


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156. Chavez, Victor, Plaintiff

157. Christensen, Kathie, Plaintiff-Intervenor

158. Christensen, Kerry, Plaintiff-Intervenor

159. Christensen, Michelle, Plaintiff

160. Christensen, Paul, Plaintiff

161. Clawson, Robb, Former Plaintiff

162. Clendenning, Christene, Plaintiff

163. Clendenning, Christopher, Plaintiff

164. Cofresco Holdings, Inc., Defendant

165. Cofresi Developments, Inc., Defendant

166. Cole Scott & Kissane, Counsel to Special Master

167. Combs, Cheryl, Plaintiff-Intervenor

168. Combs, Ray, Plaintiff-Intervenor

169. Comsa, Mark, Former Plaintiff

170. Cole, Angela, Plaintiff

171. Cole, Antwon, Plaintiff

172. Concepcion, Carlos, Counsel to the Elliott Defendants

173. Concepcion, Sexton & Martinez, Counsel to the Elliott Defendants

174. Connor, Maria, Plaintiff-Intervenor

175. Connor, Michael, Plaintiff-Intervenor


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176. Cook, P. Stavan, Former Plaintiff

177. Correa, Juan, Former Plaintiff

178. Cortez, Amalia, Former Plaintiff

179. Cortez, Elsy, Former Plaintiff

180. Cossey, Darren, Plaintiff-Intervenor

181. Cossey, Debra, Plaintiff-Intervenor

182. Cossey, Jennifer, Plaintiff-Intervenor

183. Cossey, John, Plaintiff-Intervenor

184. Courgi, Doris, Plaintiff-Intervenor

185. Courgi, Karim, Plaintiff-Intervenor

186. Cox, Kathy, Plaintiff-Intervenor

187. Craner, Mark, Former Plaintiff

188. Craner, Melisa, Former Plaintiff

189. Crawford, Eleanor, Plaintiff-Intervenor

190. Crittenden, Tyler, Former Plaintiff

191. Cromer, Brent, Plaintiff-Intervenor

192. Crook, Bonnie, Plaintiff-Intervenor

193. Crook, Thomas, Plaintiff-Intervenor

194. Crotty, Aaron, Plaintiff

195. Cruz, Adolfo, Former Plaintiff


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196. Cruz, Patricia, Former Plaintiff

197. Cudmore, Elizabeth, Former Plaintiff

198. Cunningham, Daniel, Plaintiff-Intervenor

199. Cunningham, Judy, Plaintiff-Intervenor

200. Cunningham, Robert, Plaintiff-Intervenor

201. Currie, Margaret, Plaintiff

202. Currie, Maryann, Plaintiff

203. Dalton, Erin, Former Plaintiff

204. Davidson, Gary, Counsel to Plaintiffs, Case No. 09-20657 GOLD

205. Davis, Kristine, Plaintiff-Intervenor

206. Davis, Marjorie, Former Plaintiff

207. DCS Dominican Construction Services, S.A., Defendant

208. Dean, Debra, Plaintiff-Intervenor

209. De Marchena, Enrique, Defendant

210. De Marchena, Kaluche & Asociados, Defendant

211. De Niz Garcia, Severina, Plaintiff-Intervenor

212. Desarrollos Mirador Cofresi, S.A., Defendant

213. Dethvongsa, Bounlay, Former Plaintiff

214. Dethvongsa, Tiang, Former Plaintiff

215. Del Toro, Jesus, Former Plaintiff


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216. Diaz, Esmeralda, Former Plaintiff

217. Diaz, Gabriel, Plaintiff

218. Diaz, Michael, Counsel to Plaintiffs, Case No. 09-20657-GOLD

219. Diaz, Reus & Targ, LLP, Counsel to Plaintiffs, Case No. 09-20657 GOLD

220. Diele, Nancy, Plaintiff-Intervenor

221. Duffin, Bettie Ellen, Plaintiff-Intervenor

222. Dugmore, Geoffrey, Plaintiff

223. Duke, Elizabeth, Former Plaintiff

224. Dunn, Paul, Plaintiff-Intervenor

225. Durinick, Michael, Former Plaintiff

226. Durinick, Suzette, Former Plaintiff

227. Elbom, Jonathan, Plaintiff-Intervenor

228. Elliott, Derek, Defendant

229. Elliott, Frederick, Defendant

230. Elliott Miches Holdings, Inc., Defendant

231. Elliott Regent Holdings, Inc., Defendant

232. Elliot Toscana Holdings, Inc., Defendant

233. EMI Cofresi Developments, Inc., Defendant

234. EMI Resorts, Inc., Defendant

235. EMI Resorts Management (S.V.G), Inc., Defendant


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236. EMI Sun Village, Inc., Defendant

237. Escobedo, Maria Juana, Plaintiff

238. Esparza, Omar, Former Plaintiff

239. Eyre, Kelee, Former Plaintiff

240. Eyre, Pat, Former Plaintiff

241. Faenzi-Glass, Deanna, Plaintiff-Intervenor

242. Falkowski, Joanne, Plaintiff-Intervenor

243. Farias, Aracelis, Plaintiff

244. Farias, Victor, Plaintiff

245. Felton, Charles, Plaintiff-Intervenor

246. Ferdows, Sarah, Former Plaintiff

247. Ferguson-Johnson, Judith, Plaintiff

248. Fernandez, Maria (Marcia), Plaintiff-Intervenor

249. Fierro Hernandez, Maria, Plaintiff-Intervenor

250. Fillmore, Judy, Former Plaintiff

251. Fitzwater, Alice, Plaintiff-Intervenor

252. Flood, Gertrude, Plaintiff-Intervenor

253. Flood, Kathleen, Plaintiff-Intervenor

254. Flyn, Kerry, Plaintiff-Intervenor

255. Foust, Jaden, Former Plaintiff


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256. Frame, Brent, Former Plaintiff

257. Frame Sorenson, Robin, Plaintiff

258. Francom, Karen, Plaintiff

259. Francom, Rick, Plaintiff

260. Franklin, Barbara, Former Plaintiff

261. Freese, Thomas, Plaintiff-Intervenor

262. Fregoso, Linda, Plaintiff-Intervenor

263. Frye, Linda, Plaintiff

264. Gabriela Vera, Luz, Former Plaintiff

265. Galvan, Adan, Plaintiff

266. Garcia, Clementina, Plaintiff

267. Garcia, Kristi, Former Plaintiff

268. Garcia, Lamberto, Plaintiff

269. Garcia, Maly, Plaintiff

270. Garcia, Margarita, Former Plaintiff

271. Garcia, Presiliano, Former Plaintiff

272. Garcia, Ruben, Former Plaintiff

273. Garcia Ceja, Roberto, Former Plaintiff

274. Garcia-Lopez, Maria, Plaintiff-Intervenor

275. Garcia Ramos, Jesus, Former Plaintiff


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276. Gardea, Robert, Plaintiff-Intervenor

277. Gardiner, Diane, Plaintiff-Intervenor

278. Gardiner, John, Plaintiff-Intervenor

279. Gardner, Nanalee Kershaw, Former Plaintiff

280. Garza, Tracy, Plaintiff-Intervenor

281. Gayosso Negrete, Calixto, Plaintiff-Intervenor

282. Genter, Duane, Former Plaintiff

283. Genter, Judy, Former Plaintiff

284. Gervais, Jamie, Plaintiff

285. Gervais, Leila, Plaintiff-Intervenor

286. Gervais, Yves, Plaintiff

287. Gibson, Jeannie, Former Plaintiff

288. Gibson, Mike, Former Plaintiff

289. Gilbert, Douglas, Plaintiff-Intervenor

290. Giron, Argelio, Former Plaintiff

291. Giron, Cupertino, Former Plaintiff

292. Giron-Alvarez, Victor, Plaintiff-Intervenor

293. Goitom, Fessahaie, Plaintiff-Intervenor

294. Gold, Alan S. – District Court Judge

295. Gomez, Homobono, Plaintiff-Intervenor


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296. Gomez, Luisa, Former Plaintiff

297. Gomez, Pedro, Former Plaintiff

298. Gonzalez, Roberto, Former Plaintiff

299. Gonzalez, Albino, Plaintiff-Intervenor

300. Gonzalez, Ana, Plaintiff-Intervenor

301. Gonzalez, Antonio, Plaintiff-Intervenor

302. Gonzalez, Carlos, Former Plaintiff

303. Gonzalez, Carlos, Counsel to Plaintiffs, Case No. 09-20657-GOLD

304. Gonzalez, Cecilia, Former Plaintiff

305. Gonzalez, Fernando, Plaintiff

306. Gonzalez, Finy, Plaintiff

307. Gonzalez, Lisbeth, Plaintiff

308. Gonzalez, Maria, Plaintiff-Intervenor

309. Gonzalez, Moises, Plaintiff-Intervenor

310. Gonzalez, Santos, Plaintiff

311. Grant, Miles, Plaintiff

312. Gresset, Rosemarie, Former Plaintiff

313. Grijalava, Mary, Former Plaintiff

314. Groo, Neldon, Former Plaintiff

315. Groo, Peggy, Former Plaintiff


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316. Grozman, Lena, Plaintiff-Intervenor

317. Gurrola, Jose, Plaintiff-Intervenor

318. Gurrola, Sonia, Plaintiff-Intervenor

319. Gutierrez, Adan, Plaintiff

320. Gutierrez, Florita, Former Plaintiff

321. Gurtierrez, Manuela, Plaintiff

322. Guyman, Greg, Plaintiff-Intervenor

323. Guymon, Mark, Plaintiff-Intervenor

324. Guymon, Paige, Plaintiff-Intervenor

325. Guzman, Jesus, Plaintiff-Intervenor

326. Gyurkovitz, Diana, Plaintiff

327. Gyurkovitz, Gary, Plaintiff

328. Hadaway, Brant, Counsel to Plaintiffs, Case No. 09-20657-GOLD

329. Hall, Brian, Plaintiff-Intervenor

330. Hall, Bruce, Plaintiff-Intervenor

331. Hall, George, Plaintiff

332. Hall, Tyler, Plaintiff-Intervenor

333. Handy, Meghan, Plaintiff-Intervenor

334. Handy, Raymond, Plaintiff-Intervenor

335. Handy, Truman, Plaintiff-Intervenor


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336. Hansen, Alyson, Plaintiff-Intervenor

337. Hansen, Clayton, Plaintiff-Intervenor

338. Hansen, Karen, Plaintiff-Intervenor

339. Harris, Ann, Plaintiff-Intervenor

340. Hayes, Belinda, Plaintiff-Intervenor

341. Hayson, Russsell, Counsel to Defendant Inversiones Aviati

342. Heisler, Robert, Former Plaintiff

343. Henry, Cynthia, Plaintiff

344. Henry, Lawrence, Plaintiff

345. Hernandez, Alejandro, Former Plaintiff

346. Hernandez, Armando, Former Plaintiff

347. Hernandez, Jose, Former Plaintiff

348. Hernandez, Karina, Former Plaintiff

349. Hernandez, Maria Fierro, Plaintiff

350. Hernandez, Miguel Cortez, Plaintiff

351. Hernandez, Rogelio, Former Plaintiff

352. Hernandez, Yesenia, Former Plaintiff

353. Hernandez, Mauricio, Former Plaintiff

354. Hernandez,-Valle, Edwardo, Plaintiff-Intervenor

355. Herrera, Grace, Plaintiff


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356. Hez D., Blanca, Plaintiff-Intervenor

357. Hingham, James, Plaintiff-Intervenor

358. Hixson, Amy, Plaintiff

359. Hixson, Daniel, Plaintiff

360. Hofmann, Klaus, Plaintiff

361. Hoge, Peter, Plaintiff

362. Hopkins, Adam, Former Plaintiff

363. House, Gary, Plaintiff-Intervenor

364. Howard, David, Former Plaintiff

365. Howard, Ila, Former Plaintiff

366. Howard, Steve, Former Plaintiff

367. Howard, Susan, Former Plaintiff

368. Howard-Matuck, Norma, Former Plaintiff

369. HSV Holdings, S.A., Defendant

370. HSV Hoteles de Operadora, S.A., Defendant

371. Huay de Silva, Nicolasa, Plaintiff-Intervenor

372. Hudson, Trent, Plaintiff-Intervenor

373. Humphries, Kris, Plaintiff-Intervenor

374. Hyde, Claudia, Former Plaintiff

375. Hyde, Garnet, Former Plaintiff


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376. Ibarra, Antonio, Former Plaintiff

377. Ibarra, Carolina, Former Plaintiff

378. Inmobiliaria Canadaigua, S.A., Defendant

379. Inmobiliaria Liros Del Tropico, S.A., Defendant

380. Inmobiliaria Moncey, S.A., Defendant

381. Inversiones Aviati, S.A., Defendant

382. Inversiones Yubaso, S.A., Defendant

383. Iruegas, Gilbert, Plaintiff-Intervenor

384. Irvine, Cheryl, Former Plaintiff

385. Irvine, James, Former Plaintiff

386. Irvine, James Robert, Jr., Former Plaintiff

387. Jacinto, Elia, Plaintiff

388. Jacinto, Ignacio, Plaintiff

389. Jacks, Cheryl, Plaintiff-Intervenor

390. Javor, Chad, Former Plaintiff

391. Jenkins, Allen, Plaintiff-Intervenor

392. Jeong, In Young, Former Plaintiff

393. Jeong, Peter, Plaintiff

394. Jeong, Won, Former Plaintiff

395. Jimenez, Rodolfo, Former Plaintiff


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396. Jing, Gilbert, Plaintiff-Intervenor

397. Johnson, Edith, Plaintiff-Intervenor

398. Johnson, Michelle, Plaintiff-Intervenor

399. Jones, Don, Former Plaintiff

400. Jones, Evelyn, Plaintiff

401. Jones-Most, Yvonne, Former Plaintiff

402. Junio, Frank, Plaintiff-Intervenor

403. Junio, Rhonda, Plaintiff-Intervenor

404. Kahebram, S.A., Defendant

405. Kannady, Mariann, Counsel to Elliot Defendants

406. Kassel, John, Plaintiff-Intervenor

407. Kassel, Patricia, Plaintiff-Intervenor

408. Kaplin, Lawrence, Former Plaintiff

409. Kay, John, Plaintiff-Intervenor

410. Kazoku, LLC, Former Plaintiff

411. Kim, Moon, Plaintiff-Intervenor

412. Kirby, Sean, Plaintiff-Intervenor

413. Kirby-Irvine, Minh Thu, Former Plaintiff

414. Kitt, Carol, Plaintiff-Intervenor

415. Kitt, Robert, Plaintiff-Intervenor


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416. Koontz, Ann, Former Plaintiff

417. Kopriva, Crandon, Plaintiff-Intervenor

418. Krinsky, Alisa, Plaintiff-Intervenor

419. Krutt, Sharon, Former Plaintiff

420. Kuck, Donna, Plaintiff

421. Kuck, Shelia, Plaintiff

422. Lai, May Shin, Plaintiff

423. Laloli, Jeanne, Plaintiff-Intervenor

424. Lamb, Bryan, Plaintiff

425. Lamb, Susan, Plaintiff

426. Landmark Lending Corporation, Defendant

427. Lane, Yvonne, Former Plaintiff

428. Langford, Daniel, Former Plaintiff

429. Lappa, Lita, Former Plaintiff

430. Lara, Raul, Former Plaintiff

431. Lara, Sol, Former Plaintiff

432. Latourette, Amy, Plaintiff-Intervenor

433. Laura Espinoza, Dora, Former Plaintiff

434. Lawrence, James, Plaintiff-Intervenor

435. Lawrence, Wendy, Plaintiff-Intervenor


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436. Lawter, Michael, Defendant

437. Lawter, Tippy Tan, Defendant

438. Lee, May, Plaintiff-Intervenor

439. Lee, Richard, Plaintiff-Intervenor

440. Lee, Wayland, Plaintiff-Intervenor

441. Lewis, Barbara, Plaintiff-Intervenor

442. Leyva, Norma Julieta, Plaintiff-Intervenor

443. Leyva Aguilar, Martin, Plaintiff-Intervenor

444. Lieberman, Robert, Former Plaintiff

445. Linebaugh, Earl, Plaintiff-Intervenor

446. Linebaugh, Rita, Plaintiff-Intervenor

447. Lingzi, Li, Plaintiff

448. Littledike, Dan, Former Plaintiff

449. Littledike, Marcene, Former Plaintiff

450. Looper, Ed, Plaintiff-Intervenor

451. Looper, Emelia Plaintiff-Intervenor

452. Looper, Jill, Plaintiff

453. Looper, Louis (Tony), Plaintiff

454. Lopez, Ana, Former Plaintiff

455. Lopez, David, Former Plaintiff


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456. Lopez, Elvira, Former Plaintiff

457. Lopez, Fidencio, Plaintiff-Intervenor

458. Lopez, Jose, Plaintiff-Intervenor

459. Lopez, Leonor, Former Plaintiff

460. Lopez, Margarito, Plaintiff-Intervenor

461. Lopez, Tiburcio, Plaintiff-Intervenor

462. Louder, Judy, Plaintiff-Intervenor

463. Louder, Tony, Plaintiff-Intervenor

464. Luna, Fidel, Former Plaintiff

465. Luna, Nora, Former Plaintiff

466. Madrigal, Mayra, Former Plaintiff

467. Madsen, Carmen, Plaintiff-Intervenor

468. Madsen, Cheryl, Plaintiff-Intervenor

469. Madsen, Douglas, Plaintiff-Intervenor

470. Madsen, Mike, Plaintiff-Intervenor

471. Majoulet-Foust, Janet, Former Plaintiff

472. Maldonado, Alicia, Former Plaintiff

473. Mancebo, Eugene, Plaintiff

474. Mancebo, Geraldine, Plaintiff

475. Mancebo, Shawn, Plaintiff


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476. Mancilla, Nora, Plaintiff

477. Mancilla, Raul, Plaintiff

478. Manriquez, Elizabeth, Former Plaintiff

479. Manriquez, Sergio, Former Plaintiff

480. Manzo Alvarez, Ismael, Plaintiff-Intervenor

481. Manzo de Reyes, Rozalba, Plaintiff

482. Maravilla, Angel, Plaintiff-Intervenor

483. Maravilla, Piedad, Plaintiff-Intervenor

484. Martin, Anthony, Plaintiff-Intervenor

485. Martin, Belinda, Former Plaintiff

486. Martin, Lucia, Plaintiff-Intervenor

487. Martin, Ozzie, Former Plaintiff

488. Martin, Ozzie, Jr., Plaintiff-Intervenor

489. Martinez, Elba, Former Plaintiff

490. Martinez, Elio, Counsel to the Elliott Defendants

491. Martinez, Gerardo, Former Plaintiff

492. Mata, Judith, Former Plaintiff

493. Mavavilla, Rogelio, Plaintiff-Intervenor

494. McAliley, Chris, US Magistrate Judge

495. McCahen, J. Former Plaintiff


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496. McGirr, Michael, Plaintiff

497. McKenna, Paul, Plaintiff-Intervenor

498. McNeil, Billie Sue, Former Plaintiff

499. McNeil, Michael, Former Plaintiff

500. McVay, Charles, Former Plaintiff

501. McVay, Diane, Plaintiff

502. Mejia, Rama, Plaintiff

503. Mejia, Rueben, Plaintiff

504. Mendoza, Ausreberta, Plaintiff-Intervenor

505. Mendoza, Almadelia, Plaintiff-Intervenor

506. Mendoza, Jose, Plaintiff-Intervenor

507. Meyer-Young, Chery, Plaintiff-Intervenor

508. Miles, Jode, Former Plaintiff

509. Miles, William, Former Plaintiff

510. Millan, Emma, Plaintiff-Intervenor

511. Millan, Jose, Plaintiff-Intervenor

512. Miller, James, Plaintiff-Intervenor

513. Mitchell, Marci, Former Plaintiff

514. Moore, Gloria, Plaintiff

515. Moore, Marla, Plaintiff


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516. Moore, Shirley, Plaintiff-Intervenor

517. Moran, Lorena, Former Plaintiff

518. Moran, Patricio, Former Plaintiff

519. Moreno, Alfredo, Plaintiff

520. Moreno Reyes, Sonia, Plaintiff

521. Morgan, Jeffrey, Plaintiff

522. Most, Lee, Former Plaintiff

523. MPS Ltd., S.A., Defendant

524. Munoz Perez, Benjamin, Former Plaintiff

525. Murray, Jilene, Plaintiff-Intervenor

526. Murray, Susan, Former Plaintiff

527. Musgrove, Thomas, Plaintiff-Intervenor

528. Myers, Don, Plaintiff-Intervenor

529. Myers, Shirley, Plaintiff-Intervenor

530. Nagel, Barbara, Plaintiff

531. Navarro, Rosa, Plaintiff-Intervenor

532. Navarro, Sergio, Plaintiff-Intervenor

533. Neilson, Daniel, Plaintiff-Intervenor

534. Nessen, Dallas, Plaintiff

535. Nessen, Deeann, Plaintiff


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536. Net Wealth Navigators, LLC, Defendant

537. Neville, Kent, Plaintiff

538. Neville, Linda, Plaintiff

539. Newbaum, Pam, Plaintiff-Intervenor

540. Newbaum, Walter, Plaintiff-Intervenor

541. Nielsen, Paul, Plaintiff

542. Nilsson, Cory, Plaintiff

543. Nilsson, Kirstin, Plaintiff

544. Novoa, Yolanda,, Former Plaintiff

545. Ochoa, Christobal, Former Plaintiff

546. Ochoa, Veronica, Former Plaintiff

547. O’Hagan, Tom, Former Plaintiff

548. O’Hagan, Ruth, Former Plaintiff

549. O’Hagan, Sheila, Former Plaintiff

550. Olvera-Quijas, Juan, Plaintiff-Intervenor

551. Orangeville Reservation Services, Ltd., Defendant

552. Orozco, Alberto, Plaintiff-Intervenor

553. Orozco, Norma, Plaintiff-Intervenor

554. Ortiz, Alejandro, Former Plaintiff

555. Ortiz, Loredana, Plaintiff-Intervenor


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Page 29 of 41

556. Ortiz, Mario, Plaintiff-Intervenor

557. Osborn, Alicia, Plaintiff

558. Osborn, James, Plaintiff

559. Ova, Kathy, Plaintiff

560. Padilla, Jacinto, Plaintiff-Intervenor

561. Padilla, Maria, Former Plaintiff

562. Page, Misty, Plaintiff-Intervenor

563. Page, Travis, Plaintiff-Intervenor

564. Palacio, Antonia, Former Plaintiff

565. Palacio, Nieves, Former Plaintiff

566. Palomino, Jesus, Former Plaintiff

567. Panigua, Adolfo, Plaintiff-Intervenor

568. Pardo, Herman, Former Plaintiff

569. Pardo, Maricela, Former Plaintiff

570. Parente, Matthew, Plaintiff-Intervenor

571. Park, Spencer, Plaintiff-Intervenor

572. Patton, Rae, Former Plaintifff

573. Paz, Cynthia J., Former Plaintiff

574. Paz, Ellis, Former Plaintiff

575. Pena, Jose, Former Plaintiff


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Page 30 of 41

576. Perez, David, Former Plaintiff

577. Perez, Daniel, Plaintiff-Intervenor

578. Perez, Felipe, Plaintiff-Intervenor

579. Perez, Guadalupe, Plaintiff-Intervenor

580. Perez, Jose Jesus, Former Plaintiff

581. Perez, Juan, Plaintiff-Intervenor

582. Perez, Marcos, Plaintiff-Intervenor

583. Perez, Maria, Plaintiff-Intervenor

584. Perez, Maria Plaintiff-Intervenor

585. Perez, Margarita, Former Plaintiff

586. Perez, Vicente, Plaintiff-Intervenor

587. Perry, Larae, Former Plaintiff

588. Perry, Rodney, Former Plaintiff

589. Peterson, Gary, Plaintiff

590. Peterson, Shirleen, Plaintiff

591. Peterson, Brian, Plaintiff-Intervenor

592. Peterson, Lori, Plaintiff-Intervenor

593. Petit, Milton, Plaintiff-Intervenor

594. Phillips, Jennie, Plaintiff-Intervenor

595. Phillips, Mildred, Plaintiff


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Page 31 of 41

596. Phillips, Nolan, Plaintiff-Intervenor

597. Phillips, Richard, Plaintiff

598. Piloto, Hilda, Counsel to Plaintiffs, Case No. 09-20526-GOLD

599. Picket, Nancy, Former Plaintiff

600. Pinto, Susan, Former Plaintiff

601. Platz, Barbara, Former Plaintiff

602. Polatis, Joyce, Plaintiff

603. Polatis, Randy, Plaintiff

604. Prater, Alice, Former Plaintiff

605. Prater, Joseph, Former Plaintiff

606. Price, Johnny, Former Plaintiff

607. Promotora Xara, S.A., Defendant

608. Puckett, Charles, Plaintiff-Intervenor

609. Quinonez, Amelia, Former Plaintiff

610. Rainey, Cindy, Plaintiff-Intervenor

611. Rainey, Kevin, Plaintiff-Intervenor

612. Ramirez, Adolfo, Plaintiff

613. Ramirez, Clementina, Former Plaintiff

614. Ramirez, Laura, Plaintiff

615. Ramirez Soto, Olga, Plaintiff


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Page 32 of 41

616. Raygoza, Rita, Former Plaintiff

617. Reid, Diane, Plaintiff

618. Reide, Darlene, Former Plaintiff

619. Reide, Norman, Former Plaintiff

620. Reyes, Alberto, Plaintiff

621. Reyes, Angela, Plaintiff

622. Reyes, Daniel, Plaintiff

623. Reyes, Enrique, Former Plaintiff

624. Reyes Espinoza, Francisco, Plaintiff

625. Reyes, Imelda, Plaintiff

626. Reyes, Josefina, Former Plaintiff

627. Reyes, Martin, Former Plaintiff

628. Reyes, Rafael, Plaintiff

629. Reyes, Sonia, Former Plaintiff

630. Reyes, Trinidad, Former Plaintiff

631. Reyes Espinosa, Vicente, Plaintiff

632. Rice, Linda, Plaintiff-Intervenor

633. Rice, Lowell, Plaintiff-Intervenor

634. Riendel, Terry, Plaintiff

635. Rightmyer, Robert, Counsel to Special Master


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Page 33 of 41

636. Rivera, Fructuso, Former Plaintiff

637. Rivera, Leonila, Plaintiff

638. Rivera, Martin, Plaintiff

639. Roberts-Cagle, Sharon, Plaintiff

640. Roberts, Charlyn, Plaintiff-Intervenor

641. Rocha, Abel, Plaintiff-Intervenor

642. Rocheford, Danielle, Plaintiff

643. Rocheford, David, Plaintiff

644. Rodriguez, Jovita, Former Plaintiff

645. Rodriguez, Juan, Plaintiff-Intervenor

646. Rodriguez, Victor, Former Plaintiff

647. Rogers, Judith, Plaintiff-Intervenor

648. Rosas, Elias, Former Plaintiff

649. Rosas Nieto, Jose, Former Plaintiff

650. Rosegreen, Warren, Former Plaintiff

651. Rossiter, Joe, Plaintiff-Intervenor

652. Rossiter, Ima Jean, Plaintiff-Intervenor

653. Royston, Tonia, Plaintiff

654. Rueda, Graciela, Former Plaintiff

655. Ruiz, Angel Osorio, Former Plaintiff


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Page 34 of 41

656. Ruvalcaba, Consuelo, Former Plaintiff

657. Ruvalcaba, Martin, Former Plaintiff

658. Ruvalcaba, Daisy, Former Plaintiff

659. Sabel, Marco, Plaintiff-Intervenor

660. Sabel, Sharon, Plaintiff-Intervenor

661. Saldana, Ester, Former Plaintiff

662. Saldana, Felipe, Former Plaintiff

663. Salter, David, Former Plaintiff

664. Salter, Kathryn, Former Plaintiff

665. Sanchez, David, Former Plaintiff

666. Sanchez, Jose Luis, Plaintiff-Intervenor

667. Sanchez, Martin, Former Plaintiff

668. Sanchez, Nancy, Former Plaintiff

669. Sanchez, Ruben, Former Plaintiff

670. Sanchez, Samuel, Plaintiff-Intervenor

671. Sanchez, Yolanda, Former Plaintiff

672. Sawyer, Greg, Former Plaintiff

673. Sayre, Terry, Former Plaintiff

674. Schneider, Richard, Former Plaintiff

675. Scott, Thomas, Special Master


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Page 35 of 41

676. Scott, Peter, Plaintiff-Intervenor

677. Shipton, Robert, Plaintiff-Intervenor

678. Shipton, Sondra, Plaintiff-Intervenor

679. Silva Barrera, Ramiro Esrain, Plaintiff-Intervenor

680. Silva, Raul, Plaintiff-Intervenor

681. Silva Meza, Miguel, Plaintiff-Intervenor

682. Simas, Angela, Plaintiff-Intervenor

683. Simpson, Allen, Former Plaintiff

684. Simpson, Dustin, Plaintiff-Intervenor

685. Simpson, Paul, Plaintiff-Intervenor

686. Shelton, Robert, Former Plaintiff

687. Sisa-At, Danou, Plaintiff-Intervenor

688. Skelton, Jared, Plaintiff-Intervenor

689. Skelton, Jenni, Plaintiff-Intervenor

690. Skelton, Susan, Former Plaintiff

691. Smith, Gloria, Plaintiff-Intervenor

692. Smith, Heidi, Plaintiff

693. Smith, Jerry, Former Plaintiff

694. Smith, Richard, Plaintiff

695. Snider, George, Former Plaintiff


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696. Snider, Martha, Plaintiff

697. Sniezko, Jim, Plaintiff-Intervenor

698. Sola, Shirley, Plaintiff

699. Solorio Nunez, Jorge, Plaintiff-Intervenor

700. Soltero, Jose, Plaintiff-Intervenor

701. Soltero, Magdalena, Plaintiff-Intervenor

702. Soltis, James, Plaintiff-Intervenor

703. Soltis, Rosalind, Plaintiff-Intervenor

704. Sorenson, Norman, Plaintiff

705. Soria, Carlos, Former Plaintiff-Intervenor

706. Soto, Roberto, Plaintiff

707. Southwick, Jill, Plaintiff-Intervenor

708. Southwick, Stanton, Plaintiff-Intervenor

709. Spence, Martha, Plaintiff-Intervenor

710. Stewart, Clark, Plaintiff

711. Stewart, Myra, Plaintiff

712. Stockdale, Yasuko, Plaintiff-Intervenor

713. Stockle, Carly, Plaintiff

714. Stockle, Ryan, Plaintiff

715. Stockle, Thomas, Plaintiff-Intervenor


09-14183

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716. Sublette, Lori, Plaintiff-Intervenor

717. Sublette, William, Plaintiff-Intervenor

718. Sun Village Juan Dolio, Inc., Defendant

719. Syliphone, Sam, Plaintiff-Intervenor

720. Tabbert, Bill, Plaintiff-Intervenor

721. Tabbert, Linda, Plaintiff-Intervenor

722. Tanner, Kathleen, Plaintiff-Intervenor

723. Tanner, Steven, Plaintiff-Intervenor

724. Tapia, Maria, Plaintiff-Intervenor

725. Taylor, Chris, Plaintiff-Intervenor

726. Taylor, Clint, Former Plaintiff

727. Taylor, Kim, Former Plaintiff

728. Taylor, Nancy, Former Plaintiff

729. Tenedora HSV [B.P.], S.A., Defendant

730. Terrell-Lane, Warrenetta, Plaintiff-Intervenor

731. Tello, Georgina, Plaintiff-Intervenor

732. Teves, Larry, Plaintiff

733. Teves, Ruth, Plaintiff

734. Thomson, John, Former Plaintiff

735. Thompson, Gary, Plaintiff-Intervenor


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736. Thompson, Kerry, Plaintiff-Intervenor

737. Thorne, Nancy, Plaintiff

738. Thorton, Gordon, Plaintiff-Intervenor

739. Torres, Bonifacio, Former Plaintiff

740. Torres, Luis, Plaintiff-Intervenor

741. Torres, Maria, Plaintiff-Intervenor

742. Torres, Maribel, Plaintiff-Intervenor

743. Tran, Christol, Plaintiff-Intervenor

744. Tran, Kenny, Plaintiff-Intervenor

745. Traub, Pauline, Plaintiff-Intervenor

746. Valdez, Catherine, Plaintiff

747. Valdez, Ruth, Plaintiff-Intervenor

748. Valez C., Arturo, Former Plaintiff

749. Valencia, Griselda, Plaintiff-Intervenor

750. Valencia de Mendoza, Juan, Plaintiff-Intervenor

751. Valencia, Octavio, Plaintiff-Intervenor

752. Valencia, Pureza, Plaintiff-Intervenor

753. Vargas, Francisco, Plaintiff

754. Vargas, Rosa, Plaintiff

755. Varin, Jacques, Former Plaintiff


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756. Vaughn, George, Plaintiff

757. Vazquez, Dan, Former Plaintiff

758. Vazquez, Oscar, Former Plaintiff

759. Vega, Carmen, Former Plaintiff

760. Vega, Miguel, Former Plaintiff

761. Verano, Chris, Plaintiff

762. Verano, Cynthia, Plaintiff

763. Verano, Mario, Former Plaintiff

764. Verkaik, Jennifer, Plaintiff-Intervenor

765. Verkaik, John, Plaintiff-Intervenor

766. Vidas, Cheryl, Plaintiff

767. Vidas, Victor, Plaintiff

768. Villa Santa Ponca, S.A., Defendant

769. Villagomez, Marcella, Plaintiff-Intervenor

770. Villanueva, Luis, Former Plaintiff

771. Wallace, Kenneth, Plaintiff-Intervenor

772. Wallace, Kamille, Plaintiff-Intervenor

773. Walpole, Rolf, Plaintiff-Intervenor

774. Walters, David, Plaintiff

775. Walters, Elizabeth, Plaintiff


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776. Wann, Bobbi Li, Plaintiff

777. Wann, Richard, Plaintiff

778. Waring, Nancy, Plaintiff-Intervenor

779. Webb, John, Plaintiff-Intervenor

780. Webb, Terry, Plaintiff-Intervenor

781. Welsch, James, Plaintiff

782. Welsch, Teri, Plaintiff

783. White, Elva, Plaintiff

784. White, Justin, Plaintiff-Intervenor

785. White, Kecia, Plaintiff-Intervenor

786. Whiting, Lucille, Plaintiff-Intervenor

787. Wilcox, Heidi, Plaintiff-Intervenor

788. Wilcox, Lamont, Plaintiff-Intervenor

789. Wilcox, Pam, Plaintiff-Intervenor

790. Wilcox, Ray, Plaintiff-Intervenor

791. Wilson, Robert, Former Plaintiff

792. Williams, Graig, Plaintiff-Intervenor

793. Williams, Kay, Plaintiff-Intervenor

794. Winter, Charles, Former Plaintiff

795. Win, Sandra, Plaintiff-Intervenor


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796. Winter, Katherine, Former Plaintiff

797. Withington, Amy, Former Plaintiff

798. Wolf, Jeffrey, Plaintiff-Intervenor

799. Wolf, Lolita, Plaintiff-Intervenor

800. Woodward, Brent, Plaintiff

801. Woodward, Brian, Plaintiff-Intervenor

802. Woodward, Michele, Plaintiff

803. WWIN International Limited, Defendant

804. Yan Wong, Koil, Plaintiff-Intervenor

805. Yeager, Paul, Former Plaintiff

806. Yepez Uribe, Rafael, Plaintiff-Intervenor

807. Young, Rebecca, Plaintiff-Intervenor

808. Young, Steven, Plaintiff- Intervenor

809. Zamudio, Estela, Plaintiff-Intervenor

810. Zamudio, Martin, Plaintiff-Intervenor

811. Zavala, Francisco, Former Plaintiff

812. Zotti, Deborah, Plaintiff


09-14183


i

CORPORATE DISCLOSURE STATEMENT

No publicly held corporation owns 10% or more of any EMI Corporate

Defendant's stock. The EMI Corporate Defendants are privately held companies.


09-14183


ii

STATEMENT REGARDING ORAL ARGUMENT

This appeal challenges the District Court's Order Following Hearing on

Plaintiffs' Joint Motion for Order to show cause [DE 474]; Appointing Monitor by

Agreement of the Parties (the "Monitor Order") [D.E. 528], pursuant to which the

District Court expanded the duties of Special Master Thomas E. Scott by

appointing him "Monitor" based on the alleged agreement of the parties. As more

fully described in this Brief, although the EMI Corporate Defendants did agree to

expand the duties of the Special Master as circumscribed by the terms set forth in

the "One Page Memorandum" [D.E. 524-1] the EMI Corporate Defendants never

agreed to the appointment of a Monitor as more fully described herein. However,

the Monitor Order entered by the District Court is materially and adversely

different from the One Page Memorandum. Indeed, the EMI Corporate

Defendants did not have the opportunity to review, modify or comment upon the

draft of the Monitor Order prior to its entry by the Court. Accordingly, the EMI

Corporate Defendants did not and could not have agreed to the Monitor Order.

Oral argument will assist with the Court's analysis of what, exactly, was agreed

upon by the parties and why the District Court's entry of the Monitor Order

represents reversible error on the part of the District Court.


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iii

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS................................................... i

CORPORATE DISCLOSURE STATEMENT..................................................... i

STATEMENT REGARDING ORAL ARGUMENT .......................................... ii

TABLE OF CITATIONS ........................................................................................v

STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER

PARTIES PURSUANT TO ELEVENTH CIRCUIT RULE 28-1(f) .............. viii

STATEMENT OF JURISDICTION.................................................................... ix

STATEMENT OF THE ISSUES............................................................................1

STATEMENT OF THE CASE...............................................................................2

I. Relevant Background ....................................................................................3

A. District Court Litigation............................................................................3

B. Turks and Caicos Islands Litigation ........................................................6

C. Dominican Republic Litigation .................................................................7

II. Course of Proceedings And Dispositions in District Court and

Statement of Facts ................................................................................................9

III. Standard of Review ..................................................................................17

SUMMARY OF THE ARGUMENT ...................................................................18


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iv

ARGUMENT AND CITATIONS OF AUTHORITY ........................................19

I. The Agreed Order Must be Analyzed Pursuant to the Law of Contracts .

II. The EMI Corporate Defendants Did Not Agree to the Terms of the Monitor Order as Entered.......................................................................22

CONCLUSION.......................................................................................................28

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

TYPEFACE REQUIREMENTS AND TYPE STYLE RQUIREMENTS .......29

CERTIFICATE OF SERVICE ............................................................................30

SERVICE LIST......................................................................................................31


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v

TABLE OF CITATIONS

CASES

Aureilo Aguilar et al. v. EMI Resorts, Inc., Case No. 09-20657 ...............................2

Boatman v. Sullivan, 1990 WL 146699 (N.D.Ill. Oct. 1, 1990) ..............................18

Brooks v. Georgia State Bd. of Elections, 59 F.3d 1114, 1119 (11th Cir. 1995) ....23

Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1373 (11th Cir. 2005).......21

Carroll v. Carroll, 532 So.2d 1109 (Fla. 4th DCA 1988) .......................................21

* City of Covington v. Covington Landing, Ltd. P'ship., 71 F.3d 1221, 1227 (6th

Cir.1995) ..................................................................................................... 17, 19, 23

Cotton v. Hinton, 559 F.2d 1326, 1331-1332 (5th Cir. 1977) .................................24

EEOC v. New York Times Co., 196 F.3d 72, 78 (2d Cir.1999) ...............................26

Elan Corp., PLC v. Andrx Pharmaceuticals, Inc., 272 F.Supp 2d. 1325, 1340

(S.D.Fla. 2002) rev'd on other grounds 366 F.3d 1336 (Fed,Cir. 2004) .................22

* Evans v. Jeff D., 475 U.S. 717, 727 (1986) .........................................................23

Holmes v. Continental Can Co., 706 F.2d 1144, 1160 (11th Cir. 1983).................23

In re 360 Inns, Ltd., 76 B.R. 573, 578 (Bankr.N.D.Tex.1987)................................18

In re Continental Airlines Corp., 907 F.2d 1500, 1508 n. 6 (5th Cir.1990)............18

* In re Delaney's II, Inc., 1991 WL 337625 at *2 (N.D.Ill. June 12, 1991).... 18, 20


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vi

* Local Number 93, Int'l Ass'n of Firefighters, AFL-CIO v. City of Cleveland, 478

U.S. 501, 522 (1986) ............................................................................................23

Jacksonville Branch, NAACP v. Duval County School Bd., 978 F.2d 1574, 1578

(11th Cir. 1992)........................................................................................................17

Long Term Mgmt., Inc. v. Univ. Nursing Center, Inc., 704 So.2d 669, 673 (Fla. 1st

DCA 1997) ...............................................................................................................21

Nelson v. Target Corp., 2009 WL 2150893 at * 2 (M.D.Fla. July 13, 2009) .........21

Paradise v. Prescott, 767 F.2d 1514, 1525 (11th Cir.1985), aff'd 480 U.S. 149

(1987) .......................................................................................................................17

* Reynolds v. Roberts, 202 F.3d 1303, 1313 (11th Cir. 2000) .................. 17, 24, 27

* Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985) ................................20

* Sands v. Wagner & Hunt, P.A., 2009 WL 2730469 at *2 (S.D.Fla. Aug. 28,

2009) .....................................................................................................................20

Schwartz v. Fla. Bd. of Regents, 807 F.2d 901, 905 (11th Cir.1987)......................20

United States v. ITT Continental Baking Co., 420 U.S. 223, 238 (1975) ...............17

* United States v. Ward Baking Co., 376 U.S. 327, 333-334 (1964) .....................23


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vii

STATUTES

18 U.S.C. § 1962(c) ...............................................................................................2, 9

28 U.S.C. § 1292(a)(2)....................................................................................... ix, 17

RULES

Fed. R. App. P. 4(a)(1)(A) ................................................................................. ix, 17

Fed.R.App.P. 32(a)(5)..............................................................................................30

Fed.R.App.P. 32(a)(6)..............................................................................................30

Fed.R.App.P. 32(a)(7)(B) ........................................................................................30

Fed.R.App.P. 32(a)(7)(B)(iii) ..................................................................................30

Fed. R. Civ. P. 53(a)(1)) ..........................................................................................10

TREATISES

Corbin on Contacts § 1.11 .......................................................................................22

* Restatement (Second) of Contracts, § 24………………………………………21

* Restatement (Second) of Contracts, § 26………………………………………21


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viii

STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER PARTIES PURSUANT TO ELEVENTH CIRCUIT RULE 28-1(f)

The EMI Corporate Defendants adopt by reference the following portions of

the Brief for Appellants Enrique De Marchena and De Marchena Kaluche &

Asociados (the "DMK Brief"):

1. Statement Regarding Oral Argument, DMK Brief at vii.

2. Statement of Jurisdiction, DMK Brief at 1.

3. Standard of Review, DMK Brief at 3.

4. Statement of the Facts, DMK Brief at 4 through 8.


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ix

STATEMENT OF JURISDICTION

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1292(a)(2)

as more fully described in the EMI Appellants' Response to Jurisdictional

Questions.

This Appeal is Timely

The Court entered the Monitor Order on July 17, 2009. On August 14,

2009, within 30 days of the entry of the Monitor Order, the EMI Corporate

Defendants filed their Notice of Appeal [D.E. 623] with the District Court pursuant

to Fed. R. App. P. 4(a)(1)(A).


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1

STATEMENT OF THE ISSUES

Whether the District Court erred by entering its Order Following Hearing on

Plaintiffs' Joint Motion for Order to show cause [DE 474]; Appointing Monitor by

Agreement of the Parties (the "Monitor Order") [D.E. 528] where the EMI

Corporate Defendants did not review, comment upon or agree to the terms of the

Monitor Order as entered.


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2

STATEMENT OF THE CASE

This case is a civil Racketeering Influenced and Corrupt Organizations

("RICO") case, pursuant to 18 U.S.C. § 1962(c), based on allegations made by

Appellee/Plaintiff Klaus Hoffman ("Plaintiff") against Frederick and Derek Elliott

(collectively, "the Elliotts") and their companies (collectively with the Elliotts, the

"Elliott Defendants") and other defendants (collectively with the Elliott

Defendants, the "Defendants")2. A companion case styled Aureilo Aguilar et al. v.

EMI Resorts, Inc., Case No. 09-20657 (collectively with Case No. 09-20626, the

"District Court Cases") was subsequently filed against the Defendants, but that

case was abruptly and voluntarily dismissed by the "Aguilar Plaintiffs" on October

17, 2009 after the District Court held that the Aguilar Plaintiffs failed to state a

claim "even when coupled with the Civil RICO Case Statement" (Omnibus Order

at 3 [D.E. 714]).

In an effort to assist this Court with its understanding of the procedural

complexities of this case that resulted in the Gordian knot the District Court was

trying to untangle when it appointed the Special Master and then Monitor, the EMI

2 Not all of the Elliott Defendants have participated in this Appeal. Accordingly, for the avoidance of confusion, while reference herein to the "Elliott Defendants" must necessarily include the EMI Corporate Defendants (a/k/a EMI Appellants) reference to the EMI Corporate Defendants does not include all Elliott Defendants.


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3

Corporate Defendants provide the following brief background of the genesis of the

District Court Cases and their relationship to cases pending in the Turks and

Caicos Islands and the Dominican Republic.

I. Relevant Background

A. District Court Litigation

1. Beginning in October 2008, James Catledge, the founder and Chief

Executive Officer of Impact, and its successors, Impact Networth, and Networth

Solutions – essentially network marketing companies – retained the law firm of

Diaz Reus to represent a group of investors (including without limitation, Rick

Hawker, Ruben Meja, David Rocheford, Richard Smith, Norm Sorensen, Steve

Thompson and Martha Valeria), who had formed a committee that wished to sue

the Elliotts, called the "EClient Committee" ("ECC").

2. The ECC – through the use of the internet (www.eclientscom.com)

and telephone solicitation – had been recruiting investors to join in a collective

action against the Elliott Defendants. James Catledge was a financial backer and

participant – if not the mastermind – of this group.

3. Sometime in November, 2008, the ECC was convinced to retain the


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4

Diaz Reus law firm to "investigate the actions of Derek & Frederick Elliott and

their representatives in connection with the sale of fractional real estate, residences

products and other interests in the Dominican Republic referred by Impact, Impact

Net Worth, Net Worth Solutions and/or other related entities and individuals."3

4. On November 13, 2008, Diaz wrote a letter to the members of the

ECC informing them that James Catledge and Impact officers Tom O'Hagan and

John Thomson had contributed to the ECC Retainer Fund and that the ECC would

not sue these individuals or Impact in any legal action.4

5. Over the ensuing four (4) months, the Diaz Reus team reviewed

thousands of documents "in the six figure range"5 and used the ruse of criminal

prosecution to purportedly "flip" Gregory Clark, the Elliott Companies' former

Chief Financial Officer, and improperly extract confidential and privileged

information from him regarding the operations of the "Elliott Group of

Companies."6

3 Diaz Reus Letter of November 13, 2008 at 1, [D.E. 617 -4]. 4 Id. at 2. 5 Transcript of February 17, 2009 Conference Call at 3, contained in Declaration of Rob Buenaflor [D.E. 173-9]. 6 R. Farzad, "Big Game Asset Hunters", at 5-6, [D.E. 617 -6].


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5

6. In a February 17, 2009, conference call with investors and ECC

Clients, Diaz told the investors that he had proof that they were victimized by the

Elliotts, and not Catledge:

There is overwhelming evidence that everyone that's on this phone is a victim of a million, several million dollar, hundreds of millions of dollar, in fraud. We have the evidence, not just the testimony. We have the actual documents that support the allegations that you were victimized. Not by the sales groups but by the Elliotts. We have worked tirelessly since around December when we first received the documents, and continue to receive additional documents that corroborate that you were victims of this massive fraud.7 7. During this same conference call, Richard Smith, head of the ECC,

explained the Diaz' strategy: "[W]e're taking the kind of action that when we

launch this lawsuit it will be so overwhelming that the battle will be won at the

time we launch."8

8. On March 3, 2009, the ECC "launched" its litigation by having Klaus

Hofmann file a 52-page RICO complaint. Subsequently, on March 13, 2009,

Aurelio Aguilar and 414 former Impact agents filed a RICO complaint that simply

parroted the Hofmann complaint, including attaching Hofmann's contracts as

7 Transcript of February 17, 2009 Conference Call at 6, contained in Declaration of Rob Buenaflor [D.E. 173-9] (emphasis added). 8 Id.


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6

exhibits.

B. Turks and Caicos Islands Litigation

9. On March 3, 2009, a combination of purported innocent investors

(Klaus Hoffman, David Rocheford, and Steve Thompson) and Impact agent

investors (Norman Sorensen) filed a class action in the Turks and Caicos Islands

on behalf of "all other persons, which I estimate to number about 1500, who form a

class of persons who have contracted with the Defendants concerning the

acquisition of time shares, and fractional condominium interests in resorts located

in Puerto Plata and Juan Dolio in the Dominican Republic."9 This combination of

investors also took the ex parte District Court TRO to the Turks and Caicos Islands

and used it to obtain an ex parte Manerva Injunction from the Turks and Caicos

Islands court.

10. In obtaining the Turks and Caicos Islands Injunction, Plaintiffs10 and

their counsel never informed the Turks and Caicos Islands' court of the expiration

of the District Court TRO, and made additional misrepresentations concerning the

9 Carlos Gonzalez (of the Diaz law firm) Affidavit ¶ 4 (exhibits omitted), [D.E. 617 -11]. 10 "Plaintiffs" as used throughout this Brief refers to the Hoffman Plaintiff, the intervenor plaintiffs as detailed in D.E. 4 and the Aguilar Plaintiffs of Case No. 09-20657 collectively.


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7

background and status of this matter. After the Supreme Court of the Turks and

Caicos Islands learned of the Plaintiffs' deceit, on April 9, 2009 that court

discharged the Injunction, stating:

This case causes me some disquiet. The timing of an application of this nature at the same time as a similar action in Florida, the failure to mention so many clearly important material facts in an affidavit prepared by an attorney specifically for an ex parte application, the subsequent manner in which the order was publicized and the failure to take similar action to advise of the amendment to the original order all add to that disquiet.11 11. The District Court was likewise concerned with the candor of the

Plaintiffs in this case, because it quoted this observation by the Supreme Court of

the Turks and Caicos Islands in its Appointment Order. See D.E. 348 at 2-3.

C. Dominican Republic Litigation

12. On May 1, 2009 and May 29, 2009, the Hofmann Plaintiffs and the

Aguilar Plaintiffs each obtained ex parte TROs from two different Dominican

Republic courts, freezing the Elliott Group of Companies' assets and fatally

wounding the Elliott Defendants' ability to complete the Juan Dolio resort or

11 Supreme Court of the Turks and Caicos Islands, Reasons for Decision dated April 20, 2009, (emphasis added) [D.E. 209-1, ¶ 24].


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8

effectively operate the Cofresi resort.12 In obtaining such TROs, the Plaintiffs

informed the Dominican court that the United States and the Turks and Caicos

Islands entered a TRO and Injunction respectively, but never told the Dominican

court that this Court allowed the U.S. TRO to expire and that the Turks and Caicos

Islands' court discharged its ex parte Injunction.13

13. As a direct and proximate result of Plaintiffs' malicious ex parte

TROs, Banco Leon foreclosed on the Cofresi property and Banco de Reservas and

Banco del Progresso have foreclosed on the Juan Dolio property. The Elliott

Defendants are contesting the foreclosure of Cofresi in court while counsel for the

Aguilar Plaintiffs (now dismissed) and the Hofmann Plaintiffs refused to

voluntarily remove their wrongfully obtained TROs notwithstanding the Special

Master's recommendations that these injunctions be removed. See Report and

Recommendation in Accordance with the Court's Interim Order Following

Hearing on Preliminary Injunction; Preliminarily Appointing Special Master at p.

6 [D.E. 438].

12 See Dominican Republic TRO (translation) at 23, 37, 43, and 51 [D.E. 617-13, 14] [D.E. 394-2]. 13 Id.


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II. Course of Proceedings And Dispositions in District Court and Statement of Facts

14. On March 3, 2009, Appellee/Plaintiff Klaus Hoffman ("Plaintiff")

filed an invective-laced 52 page complaint against Frederick and Derek Elliott

(collectively, the "Elliotts") and their companies (collectively with the Elliotts, the

"Elliott Defendants") and other defendants (collectively with the Elliott

Defendants, the "Defendants")14 alleging violations of Racketeering Influenced and

Corrupt Organizations, 18 U.S.C. § 1962(c) ("RICO"), conspiracy to violate

Federal RICO, Florida RICO, conspiracy to violate Florida RICO, breach of

contract, unjust enrichment, fraud in the inducement, injunctive relief, equitable

lien, constructive trust, accounting, and false and misleading advertising among

other things.

15. On the same date, Plaintiff sought the entry of an injunction and the

appointment of a receiver [D.E. 2]. In response, all Defendants, including the

Elliott Defendants, jointly filed Motions to dismiss the complaint on the basis of

personal jurisdiction [D.E. 145], improper venue [D.E. 142], forum non conveniens

14 Not all of the Elliott Defendants have participated in this Appeal. Accordingly, for the avoidance of confusion, while reference herein to the "Elliott Defendants" must necessarily include the EMI Corporate Defendants, reference to the EMI Corporate Defendants does not include all Elliott Defendants.


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[D.E. 140] and failure to state a RICO claim [D.E. 207].

16. After holding successive hearings on April 1, 2, 9 and May 19, 2009,

the District Court entered its Interim Order Following Hearing on Preliminary

Injunction; Preliminarily Appointing Special Master (the "Order Appointing

Special Master") [D.E. 348] on May 22, 2009, pursuant to which the District Court

appointed Thomas E. Scott as Special Master pursuant to a general and non-

specific reference to Rule 53 of the Federal Rules of Civil Procedure [D.E. 348].15

17. On July 7, 2009, the Plaintiffs filed their Joint Emergency Motion for

Order to Show Cause (the "Order to Show Cause") [D.E. 474] pursuant to which,

among other things, the Plaintiffs sought an order to show cause why a receiver

should not be appointed for the Elliott Corporate Defendants.

15 Fed. R. Civ. P. 53(a)(1) provides that a court may appoint a master only to:

(A) perform duties consented to by the parties; (B) hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if the appointment is warranted by:

(i) some exceptional condition; or (ii) the need to perform an accounting or resolve a difficult computation of

damages; or (C) address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.

The District Court did not identify which subsection of Rule 53(a)(1) formed the basis for the Special Master's appointment, nor did it clarify under which statute the "Monitor" was appointed. See D.E. 348 at 9 and D.E. 528.


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18. On July 9, 2009 the District Court conducted a hearing to consider the

Order to Show Cause. During the hearing, the Elliott Defendants argued that the

District Court did not have authority to appoint a receiver in the Dominican

Republic where the EMI Corporate Defendants' properties are located. A legal

opinion to this effect was submitted to the Court by the Dominican law firm,

Pellerano and Associates, Santo Domingo, which is considered one of the most

respected law firms in the Dominican Republic [D.E. 515]. Nevertheless, the

District Court instructed the Plaintiffs' counsel to prepare a draft "receivership"

order with Special Master Thomas Scott. See July 9 Hr'g Tr., 74:2-6; 77:24-25;

78:1-9 [D.E. 492]. There is no question that the District Court was prepared to

enter a receivership order, and that Plaintiffs' counsel had a hand in drafting such

an order.

19. On July 14, 2009, the District Court conducted a further hearing on

the Order to Show Cause at which time the Elliott Defendants were faced with the

threat of the District Court to appoint a receiver. However, upon arrival at the

courtroom, Frederick Elliott,16 one of the two principals (the other being Derek

16 There is an issue as to the validity of any action taken by Frederick Elliott purporting to bind the corporate Elliott Defendants. Frederick Elliott does not have authority to bind the EMI Corporate Defendants as he is not an officer, director or authorized signatory of any EMI Corporate Defendant. There were no directors' or shareholders' resolutions authorizing


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Elliott) of the EMI Corporate Defendants, was pulled aside by Special Master

Scott, who told Frederick that he had a "deal" for him. Special Master Scott

presented Frederick with a draft of what came to be the One Page Memorandum

which, prior to that time, had not been seen by the Elliotts or the Elliott

Defendants' (then) counsel, Concepcion, Sexton & Martinez.

20. Special Master Scott insisted that the One Page Memorandum be

signed, or the alternative would be the immediate imposition of a receivership.17

Frederick, provided with scarcely little time to consider the draft Memorandum

before the hearing, and faced with what he thought was a loss of total control of the

corporate Elliott Defendants if he did not sign the Memorandum, felt that he had

no choice but to sign the Memorandum which provides as follows:

In accordance with a discussion between the Special Master and Frederick Elliott held prior to the hearing on July 14, 2009 at 5 p.m., Frederick Elliott and all Defendants companies, agrees (sic) as follows:

divestment of management. The Companies Ordinance of the Turks and Caicos Islands contains a complete code governing corporate liquidation (which applies to those EMI Corporate Defendants that are Turks and Caicos Islands corporations). Shareholder approval is required to initiate any such liquidation. Similar requirements apply in the Dominican Republic as well. 17 It remains unclear to the EMI Corporate Defendants exactly what basis the District Court would have to impose a receivership absent the consent of the EMI Corporate Defendants. Moreover, any receivership order entered in the United States must be domesticated in the Dominican Republic pursuant to an "exquadra" which can be contested. See July 14 Hr'g Tr. 6:5-9; 9:1-9; 11:3-6[D.E. 521]


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1. Frederick Elliott will provide strict, timely

and detailed reporting to the Special Master regarding the status of: (a) all ongoing construction projects at the Juan Dolio and Cofresi properties; (b) any and all foreclosure or default proceedings and notices relating to any property owned by Elliott or the Defendants companies in the Dominican Republic; (c) any and all ongoing settlement negotiations with Banco del Progresso, Banreservas, Banco Leon or any other banking institution;

2. Frederick Elliott will provide immediate, full access to the Special Master, or those in his employ, to any and all financial records and assets, and the accounting thereof;

3. There will be no deterioration of any assets or encumbrances of assets or holdings (in any jurisdiction) without prior disclosure and approval of the Special Master and/or District Court;

4. No actions will be taken without the advice and consent of the Special Master;

5. The Special Master may liaison with the parties through the Dominican counsel;

6. Costs and fees of the Special Master are to be borne by the Elliott Defendants;

7. This procedure is approved in lieu of receivership; and

8. Elliott agrees that any failure to comply with the above conditions will result in the entry of


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receivership by the District Court, upon the District Court's approval.

In addition to the foregoing, after further negotiation between Frederick

Elliott, counsel for the Hofmann and Aguilar Plaintiffs and Special Master

Scott, the following two additional handwritten terms were added to the One

Page Memorandum:

9. [Defendants] to drop all jurisdictional issues

+ FNC questions; and

10. This Memo does not reach the issues of judicial liens which will be considered on a case by case basis for removal.

One Page Memorandum [DE 524-1].

21. Importantly, it is quite clear in the One Page Memorandum that the

term "Monitor" is not even used. The term "Special Master" is used throughout.

This is not surprising, as the term "Monitor" was never even discussed. Indeed, the

word "Monitor" does not even appear in the transcript of the hearing on July 14,

2009. See D.E. 521].

22. In any event, after the parties agreed to the terms of the One Page

Memorandum, Special Master Scott advised the District Court of the agreement

and proposed:


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15

MR. SCOTT: Maybe we can have each party initial the memo, at least for tonight, and then what I propose is that each side can submit within 24 hours a proposed order with this contemplated and then we will meet and confer and submit the order for your approval."

July 14 Hr'g Tr. 26:24-25; 27:1-3 [D.E. 521] (emphasis added).

23. The parties did as Mr. Scott proposed and initialed the One Page

Memorandum. See D.E. 524-1. In furtherance of their understanding of the

Special Master's proposal, the Elliott Defendants timely submitted their proposed

order which simply tracked the language of the One Page Memorandum as was

understood to be the basis for the Monitor Order which would be "in lieu of

receivership." [D.E. 524-1 at ¶7].18

24. However, here is where the breakdown in the process occurred. There

never was a meet and confer, and the Elliotts were never presented with any form

of the Monitor Order before its submission.

25. However, it is abundantly clear that the Plaintiffs submitted what was

to have been the order appointing receiver they had been previously tasked to draft

by the District Court on July 9, 2009 with cosmetic changes to adopt the "monitor"

nomenclature. The Special Master apparently submitted the Plaintiffs' version of

18 A true and correct copy of the Elliott Defendants' proposed order is included with the EMI Appellants' Record Excerpts. [D.E. 539-1]


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the Monitor Order to the District Court without providing an opportunity for

comment and revision by the Elliott Defendants. Put differently, the Plaintiffs,

who always wanted a receiver appointed, got precisely that with the name

"monitor."

26. On July 17, 2009, the District Court entered its Order Following

Hearing on Plaintiffs' Joint Motion for Order to show cause [DE 474]; Appointing

Monitor by Agreement of the Parties (the "Monitor Order") [D.E. 528] pursuant to

which the District Court appointed Special Master Thomas Scott as "Monitor."

27. On July 27, 2009 the Elliott Defendants' then counsel, Concepcion,

Sexton & Martinez filed a motion for reconsideration (the "Motion for

Reconsideration") of the Monitor Order, since it was not reflective of the One Page

Memorandum [D.E. 539]. Although the District Court denied the Motion for

Reconsideration [D.E. 696], for the purposes of this Appeal, there should be no

question of waiver. Simply put, the Elliott Defendants did not agree to the Monitor

Order and preserved their rights with respect to objecting to the Monitor Order by

(1) filing the instant Appeal and (2) moving for reconsideration of the Monitor

Order.

28. On August 14, 2009, within 30 days of the entry of the Monitor Order,


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the EMI Corporate Defendants filed their Notice of Appeal [D.E. 623] with the

District Court pursuant to Fed. R. App. P. 4(a)(1)(A).

29. On or before December 2, 2009, the EMI Appellants (EMI Corporate

Defendants) filed their response to this Court's jurisdictional questions, pursuant to

which the EMI Appellants responded that the basis for this Court's jurisdiction

over this appeal is 28 U.S.C. § 1292(a)(2).

III. Standard of Review

30. Appellate review of the district court's construction of the One Page

Memorandum and the allegedly "agreed" Monitor Order is de novo. See Reynolds

v. Roberts, 202 F.3d 1303, 1313 (11th Cir. 2000) citing Jacksonville Branch,

NAACP v. Duval County School Bd., 978 F.2d 1574, 1578 (11th Cir. 1992) (for

purposes of enforcement, consent agreements are interpreted under the principles

of contract law). See Jacksonville Branch, NAACP, 978 F.2d at 1578 citing United

States v. ITT Continental Baking Co., 420 U.S. 223, 238 (1975); Paradise v.

Prescott, 767 F.2d 1514, 1525 (11th Cir.1985), aff'd, 480 U.S. 149 (1987).

"Agreed" orders are analogous to consent agreements, and are likewise interpreted

under the principles of contract law. See City of Covington v. Covington Landing,

Ltd. P'ship., 71 F.3d 1221, 1227 (6th Cir.1995) (a district court's interpretation of


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18

agreed orders and consent decrees is subject to de novo review because they are

contractual in nature and therefore governed by principles of contract

interpretation). "An Agreed Order is a contract and its interpretation is governed

by basic rules of contract construction." In re Delaney's II, Inc., 1991 WL 337625

at *2 (N.D.Ill. June 12, 1991) citing In re Continental Airlines Corp., 907 F.2d

1500, 1508 n. 6 (5th Cir.1990) (settlement agreement is an enforceable contract,

the interpretation of which is reviewed de novo); Boatman v. Sullivan, 1990 WL

146699 (N.D.Ill. Oct. 1, 1990) (an agreed order is essentially a contract); In re 360

Inns, Ltd., 76 B.R. 573, 578 (Bankr.N.D.Tex.1987) ("agreed order is in the nature

of a contract and is subject to the rules of construction of contracts").

SUMMARY OF THE ARGUMENT

31. At bottom, what is at issue in this appeal is whether the District Court

erred in entering the Monitor Order appointing Special Master Thomas E. Scott as

Monitor where the Elliott Defendants did not review or agree to the terms of the

purportedly "agreed" Monitor Order. The EMI Corporate Defendants respectfully

submit that the District Court has, indeed, committed reversible error by imposing

its imprimatur on an agreement that was never agreed to by the Elliott Defendants

(which includes the EMI Corporate Defendants).


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32. Usually, opposing parties negotiate the terms of an agreed order prior

to its submission to the court. Drafts will be exchanged, language massaged, but at

the end of the day, an agreed order is nothing more than a contract to which a court

affixes its imprimatur as an order. However, in this case, the Special Master failed

to adhere to the very procedures he himself outlined to the District Court for a

"meet and confer" whereby the language of the Monitor Order would have been

negotiated.

33. As more fully described in the Argument, basic rules of contract

interpretation apply to agreed orders. By reference to the laws of contract, the

Elliott Defendants did not have the requisite intent to enter into the Monitor Order,

and as such, it cannot be a binding obligation of the Elliott Defendants. As such, it

was reversible error for the District Court to enter the Monitor Order under such

circumstances.

ARGUMENT AND CITATIONS OF AUTHORITY

I. The Agreed Order Must be Analyzed Pursuant to the Law of Contracts

34. At bottom the Monitor Order is purported to be an "agreed" Order.

As such, it is subject to review pursuant to the law of contracts. See City of

Covington v. Covington Landing, Ltd. P'ship., 71 F.3d 1221, 1227 (6th Cir.1995)


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20

(a district court's interpretation of agreed orders and consent decrees is subject to

de novo review because they are contractual in nature and therefore governed by

principles of contract interpretation). "An Agreed Order is a contract and its

interpretation is governed by basic rules of contract construction." In re Delaney's

II, Inc., 1991 WL 337625 at *2 (N.D.Ill. June 12, 1991).

35. When determining whether a contract is enforceable, courts look to

traditional notions of "offer" and "acceptance" and to basic contract law. Sands v.

Wagner & Hunt, P.A., 2009 WL 2730469 at *2 (S.D.Fla. Aug. 28, 2009) ("Florida

applies an 'objective test' to determine whether a contract, or a settlement, may be

duly enforced) citing Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985)

("The making of a contract depends not on the agreement of two minds in one

intention, but on the agreement of two sets of external signs-not on the parties

having meant the same thing but on their having said the same thing."); see also

Schwartz v. Fla. Bd. of Regents, 807 F.2d 901, 905 (11th Cir.1987) ("The Court's

role is to determine the intention of the parties from the language of the agreement,

the apparent objects to be accomplished, other provisions in the agreement that cast

light on the question, and the circumstances prevailing at the time of the

agreement.").


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21

36. The party seeking to enforce a settlement agreement bears the burden

of showing that the opposing party assented to the terms of the agreement. See

Carroll v. Carroll, 532 So.2d 1109 (Fla. 4th DCA 1988); Long Term Mgmt., Inc. v.

Univ. Nursing Center, Inc., 704 So.2d 669, 673 (Fla. 1st DCA 1997) (noting that

the party seeking to enforce a settlement agreement has the burden of establishing

"a meeting of the minds or mutual reciprocal assent to a certain and definite

position" and such a finding "must be supported by competent substantial

evidence").

37. A contract requires, at a minimum, an offer, acceptance and

consideration. See Nelson v. Target Corp., 2009 WL 2150893 at * 2 (M.D.Fla.

July 13, 2009). An "offer" is "the manifestation of willingness to enter into a

bargain, so made as to justify another person in understanding that his assent to

that bargain is invited and will conclude it." Caley v. Gulfstream Aerospace Corp.,

428 F.3d 1359, 1373 (11th Cir. 2005) citing Restatement (Second) of Contracts, §

24.

38. Restatement (Second) of Contracts § 26 on "preliminary negotiations"

is further instructive:

A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that


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22

the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.

Restatement (Second) of Contracts § 26 (emphasis added).

39. Acceptance has been defined as the exercise of the power conferred

by the offer, by the performance of some other act or acts. See Elan Corp., PLC v.

Andrx Pharmaceuticals, Inc., 272 F.Supp 2d. 1325, 1340 (S.D.Fla. 2002) rev'd on

other grounds 366 F.3d 1336 (Fed.Cir. 2004) citing Corbin on Contracts § 1.11.

40. As described below, there was no "meeting of the minds" with respect

to agreement on the terms of the Monitor Order as entered. Indeed, the only

agreement to which the EMI Corporate Defendants agreed is the One Page

Memorandum, and is more accurately considered a "preliminary negotiation"

because the parties considered the One Page Memorandum as the preliminary step

of agreement prior to a "meet and confer" in which the parties would negotiate the

terms of the Monitor Order.

II. The EMI Corporate Defendants Did Not Agree to the Terms of the Monitor Order as Entered

41. The District Court breached the bounds of its authority by entering the

Monitor Order which deviates dramatically from the negotiated terms of the

parties' One Page Memorandum. Case law on "consent decrees" is particularly


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informative to the matter before this Court, as consent decrees, like agreed orders,

are contractual in nature. See City of Covington v. Covington Landing, Ltd.

P'ship., 71 F.3d 1221, 1227 (6th Cir.1995) (agreed orders and consent decrees are

contractual in nature and therefore governed by principles of contract

interpretation).

42. Absent a trial, "it is the parties' agreement that serves as the source of

the court's authority to enter any judgment at all." Local Number 93, Int'l Ass'n of

Firefighters, AFL-CIO v. City of Cleveland, 478 U.S. 501, 522 (1986) citing

United States v. Ward Baking Co., 376 U.S. 327, 333-334 (1964) (a district court

"may not enter a 'consent' judgment without the actual consent" of both parties to

the entirety of the judgment). Accordingly, a district court lacks any "power . . . to

modify a proposed consent decree and order its acceptance over either party's

objection." Evans v. Jeff D., 475 U.S. 717, 727 (1986). The rule is simple: "Courts

are not permitted to modify settlement terms or in any manner to rewrite the

agreement reached by the parties." Holmes v. Continental Can Co., 706 F.2d 1144,

1160 (11th Cir. 1983). Accord Brooks v. Georgia State Bd. of Elections, 59 F.3d

1114, 1119 (11th Cir. 1995) (finding "no authority for the proposition that a federal

court may modify the terms of a voluntary settlement agreement between parties


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before a decree has been entered"); Cotton v. Hinton, 559 F.2d 1326, 1331-1332

(5th Cir. 1977).

43. However, by entering the Monitor Order in the absence of agreement

or consent on the part of the EMI Corporate Defendants, the District Court did, in

effect, modify the terms of the voluntary settlement in this case – the One Page

Memorandum.

44. Had the District Court signed the Elliott Defendants' proposed order,

or something bearing at least some resemblance to the One Page Memorandum,

there may have been no basis for this Court to assert jurisdiction over this Appeal.

However, the facts belie this assumption. Moreover, the EMI Appellants were not

even given the opportunity to revise and edit the proposed Monitor Order before it

was submitted to the Court. Thus, what has actually occurred as a result of the

entry of the Monitor Order is a deprivation of the EMI Appellants' rights without

due process.

45. Although this Court's decision in Reynolds v. Roberts, 202 F.3d 1303

(11th Cir. 2000) was primarily concerned with standing to challenge a consent

decree, the very nature of the inquiry regarding standing is informative to the

underlying merits of this Appeal. Specifically, this Court held in Reynolds that


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25

As a general rule, '[a] party normally has no standing to appeal a judgment to which he or she consented.' . . . . There are exceptions to the general rule; one is that an appeal will lie if 'the judgment allegedly deviates from the terms of the parties' agreement.'

Reynolds, 202 F.3d at 1312 (emphasis added, internal citations omitted).

46. In this case, the EMI Corporate Defendants allege that the Monitor

Order as drafted does not reflect (or even resemble) the parties' agreement in the

One Page Memorandum. The One Page Memorandum, which was agreed to by

the Elliott Defendants "deviated" into the 11 page Monitor Order which was

simply not consented to by the EMI Corporate Defendants.

47. Proof of the deviation from the One Page Memorandum and the

Monitor Order is manifest, as it would defy logic to assert that agreement to the

One Page Memorandum is tantamount to agreement to the Monitor Order,

especially since the Special Master did not adhere to the procedures he himself

outlined to the Court with respect to the process for drafting, negotiation and

submission of the draft Monitor Order to the District Court for approval.

48. In any event, it was beyond the purview of the District Court to

simply replace the One Page Memorandum with the Monitor Order without the

express agreement of the EMI Corporate Defendants, even if it thought the terms

of the Monitor Order were an improvement over the One Page Memorandum. See


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26

EEOC v. New York Times Co., 196 F.3d 72, 78 (2d Cir.1999) ("[A] court may not

replace the terms of a consent decree with its own, no matter how much of an

improvement it would make in effectuating the decree's goals." (quotation

omitted)).

49. The best argument asserted by the Appellee to suggest consent on the

part of the Elliott Defendants to the Monitor Order is that "the appellants also

agreed that the Memorandum was simply a blueprint for a more detailed order."

Appellee's Response to Jurisdictional Questions (the "Appellee Jurisdictional

Response") at 50. However, the Appellee attempts to prove too much with this

argument. First, even if the parties understood that the One Page Memorandum

would form the basis for an order to be submitted later, it is an enormous logical

leap the Appellee asks the Court to take when it suggests that such an

understanding translates into the Elliott Defendants' approval of any final order

sight unseen.

50. Second, to the extent the One Page Memorandum constitutes

anything, it constitutes a "preliminary negotiation" as defined by the Restatement

(Second) on Contracts § 26 because the Special Master and the Plaintiffs knew or

had reason to know that the Elliott Defendants did not intend to agree to the


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27

appointment of a Monitor on terms other than the One Page Memorandum unless

the Elliott Defendants "further manifested their assent" by engaging in the process

outlined by the Special Master at the hearing on July 9, 2009; namely, the "meet

and confer." Specifically, the Special Master advised the Court:

MR. SCOTT: Maybe we can have each party initial the memo, at least for tonight, and then what I propose is that each side can submit within 24 hours a proposed order with this contemplated and then we will meet and confer and submit the order for your approval."

July 14 Hr'g Tr. 26:24-25; 27:1-3 [D.E. 521] (emphasis added).

51. As noted above, there was no "meet and confer" and no drafts of the

Monitor Order were exchanged by the parties. There was no ability to scrutinize

and edit the "boilerplate" provisions in the Monitor Order, much less the additional

substantive provisions included in the Monitor Order that were not even addressed

by the parties in the One Page Memorandum.

52. This Court's decision in Reynolds v. Roberts, 202 F.3d 1303, 1313

(11th Cir. 2000) is particularly instructive. In that case, this Court was considering

a consent decree which had a "no appeal" clause. The Reynolds Court analogized a

consent decree to a contract. See Reynolds, 202 F.3d at 1312-13. Such an analogy

is particularly apt in this case, because contractual concepts such as capacity or

authority to bind a corporation (Frederick Elliott's authority to sign the One Page


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28

Memorandum), duress (Frederick Elliott's feeling pressured by the Special Master

to agree to the One Page Memorandum or face a receiver) and consideration are

capable of application to the instant dispute.19

CONCLUSION

For the foregoing reasons, the EMI Corporate Defendants respectfully

request that the Court (a) vacate the Monitor Order of July 17, 2009 or, in the

alternative (b) restore the EMI Corporate Defendants' management which was

displaced by the Monitor Order and (c) grant such other and further relief as the

Court deems just and proper.

Respectfully submitted:

/s/James C. Moon James Moon, Esq. Fla. Bar No. 938211 Peter D. Russin, Esq. Fla. Bar No. 765902 MELAND RUSSIN & BUDWICK, P.A. 200 South Biscayne Boulevard, Suite 3000 Miami, Florida 33131 Phone: (305) 358-6363; Fax (305) 358-1221

Counsel for Appellants, EMI Resorts, Inc. et al.

19 The Elliott Defendants gave up jurisdictional and forum non conveniens arguments in the One Page Memorandum – the Plaintiffs gave up nothing, as the issue of the removal of judicial liens was specifically side-stepped by the One Page Memorandum.


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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE

REQUIREMENTS AND TYPE STYLE RQUIREMENTS

1. This Brief complies with the type-volume limitation of Fed.R.App.P.

32(a)(7)(B) because this Brief contains 5,421 words, excluding the parts of the

brief exempted by Fed.R.App.P. 32(a)(7)(B)(iii).

2. This Brief complies with the typeface requirements of Fed.R.App.P. 32(a)(5)

and the type style requirements of Fed.R.App.P. 32(a)(6) because this Brief has

been prepared in a proportionally spaced typeface using Microsoft Word 2000 in

14 point Times New Roman font.

Dated: December 8, 2009 Miami, Florida

By: /s/James C. Moon James C. Moon

Counsel for Appellants, EMI Resorts, Inc. et al.


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CERTIFICATE OF SERVICE

I hereby certify that the foregoing document is being served this 8th day of

December, 2009 on all counsel of record on the attached Service List by U.S. mail.

/s/James C. Moon James C. Moon


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SERVICE LIST

Hilda Piloto, Esquire ARNSTEIN & LEHR, LLP 200 S. Biscayne Blvd. Suite 3600 Miami, Florida 33131 Counsel for Hofmann Appellee/Plaintiff Scott A. Burr, Esquire Carlos Concepción, Esquire CONCEPCIÓN, SEXTON & MARTINEZ 335 Alhambra Circle, Suite 1250 Coral Gables, Florida 33134 Counsel for Appellants Enrique De Marchena and De Marchena Kaluche & Asociados

11th Circuit Appellate Brief of Monitor Order: December 9, 2009

Documents

Transcript of 11th Circuit Appellate Brief of Monitor Order: December 9, 2009