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1
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HEARING MMM
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EXTRACTED KEY WORDS
TECHNOLOGY JURORS VARI SANDWICH MOLD LAY MAKING PLASTIC BOD PLASTIC BOD IES THA WORTH TOOLIN SOMEPLACE LOTUS |
d
d
W
3
0
a
H
-rl
n
u
I\. u 2
Q) A
0 k H
a, k d
cn m
rl u
0
P.
01 4 k
3
0
d
k
w
a
. - --
SNIPPETS:
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2
.
DELOREAN MEET W LAWYERS NOV 1984
|
EXTRACTED KEY WORDS
VOULD RECEIVERS ARTHUR ID8 PREPARING THA VITH TRUSTEE ANOTTCR COAPPRNY APPCARR HROE VAS SONE CONNECTED VITH DRUGS RTGUIRT RLOUNTR MADT TH8 TKR FEELING BCTN PAYMENTS PRCVIOSR COALD RECKONING IAVTSTI5ATION TTRRR PLACA |
t
* - t
1
isrues. It also contains some background which was uraful t o me as I
newcomer to t h e subject, though it may br familiar to otkerr. .
2. lfr Schadr began by outlining the general po8ition vith rcgrrd t o tbr
z
reeov~ry of assets from De Larcm. When the cmpany weat into
bankruptcy i t had no assets and the asstta'b*ing pursue! by creditors
- . 1
are represented by Claim8 against third p r t k i r s (Fc
Arthur Andrrstn and otherr). The normal proctdcre ia rcalisir.; assets
under a Chapter 7 procedure is that vhen realisad a e o u Z d K i d t 8
distribution and t h i 8 is implement if unehallrnggcd. I n
cast it i s pos8ible that De brcan himself or Rcnault Gigkt cli&le8~e
the ID8 claim. I t i s felt at p r e p t that 8uch a c?.alltr~c would b
unlikely iron e i t h e r quart&, mainly ttCause, i n t h e e r e of
Kr De hrcan he w u l d be CtTJlttd t o incur further r e t r a n t i a l
costa to rupport an action and because pursuit of r;ct UI
SNIPPETS:
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3
.
DEF REP MEM IN S MFJ ALT
|
EXTRACTED KEY WORDS
CORN SUP YORK ALLARD AUTHORITY TRANSIT MISC SUPP CERT COW DISTRICT BROTHERS CREDIT SEIDMAN LITIGATION HIRSCH CORCORAN AFFD BANK APP CIV CREDIT ALLIANCE CORN CURIALE PEAT MARWICK MITCHELL DERDIARIAN FELIX CONTRACTING CORN ERNST |
SUPRJZME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR, Trustee of
DeLorean Motor Company, Index No. 60 1473197
Plaintiff, Justice Gammerman
-against - IAS Part 27
ARTHUR ANDERSEN & CO. (U.S.A.),
ARTHUR ANDERSEN & CO. (Republic of Ireland), and
ARTHUR ANDERSEN & CO. (United Kingdom),
Defendants.
DEFENDANTS' REPLY MEMORANDUM IN FURTHER
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT OR IN THE: ALTERNATIVE A NEW TRIAL
BROWN &-WOOD LLP
Attorneys for Defendants
One World Trade Center
New York, New York 10048
(212) 839-5300
Table of Contents
Table of Authorities
Prellmlnary
. . Statement
I. ALLARD FAILED TO PROVE DAMAGES TO DMC
PROXIMATELY CAUSED BY ACTS OR OMISSIONS OF AA ...................................... 3
A. DMC Was Not Injured by Its Increased Indebtedness
B. As a Matter of Law, the Case Presented to the
Jury Did Not Establish Proximate Causation.,
SNIPPETS:
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4
.
SHIMER AFFIDAVIT
|
EXTRACTED KEY WORDS
TRUSTEE LOREAN JOHN PAID YORK COURT COUNTY DAVID ALLARD LOREAN MOTOR DEFENDANTS MOTION MEMORANDUM LAW REFERENCE PAYMENTS MANUFACTURING UTAH SNOW GROOMING EQUIPMENT MORTGAGES EXPENSES COURT ORDER FAMILY TRUST ROY NESSETH LAWYER THOMAS WHEREFORE TRUSTEE RESPECTFULLY REQUESTS ENTIRETY |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR., Trustee of
De Lorean Motor Company,
Plaintiff, Index No. 601473/97
: (Part 27)
Justice Gammerman
-against- AFFIDAVIT OF ZACHARY
: SHIMER IN OPPOSITION
ARTHUR ANDERSEN & CO. (U.S.A.),
ARTHUR TO DEFENDANTS'
ANDERSEN & CO. (Republic of Ireland) : MOTION FOR JUDGMENT
and ARTHUR ANDERSEN.& CO. (United NOTWITHSTANDING THE
Kingdom) , : VERDICT OR IN THE I
ALTERNATIVE A NEW
Defendants. : TRIAL
- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
STATE OF NEW YORK ) : s s . :
COUNTY OF NEW YORK
ZACHARY SHIMER, being duly sworn, deposes and says:
1. I am a member of Chadbourne & Parke LLP, counsel
f o r plaintiff, David W. Allard, Jr., Trustee of De Lorean Motor
Company (the llTrusteell). I am fully familiar with the prior
proceedings herein and am respectfully submitting this affidavit
in opposition to Defendants' Motion f o r Judgment Notwithstanding
the Verdict or i n the Alternative a New Trial.
e a *
3. The Trustee's memorandum of law also makes
reference to certain exhibits in evidence at the trial. Such
exhibits are annexed as follows:
Exhibit B PX 2
Exhibit C PX 100
Exhibit D PX 175
Exhibit E PX 176
SNIPPETS:
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5
.
MEM IN OPP TO DEF ALT NEW
|
EXTRACTED KEY WORDS
YORK SUP CTY CONTRACT SUPP VERDICT DEPLT CITY CORCORAN APP ESTATE ILL LOREAN MOTOR MOTION CIR QUEENS CRENSHAW FOLLEY BOXBERSER BUNDT EMBRO BUTLER BROWN CAPITAL WIRELESS DELOITTE TOUCHE CEA HAMPTON AFFILIATES |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR., Trustee of
De Lorean Motor Company,
Plaintiff, Index No. 601473/97
: ( P a r t 2 7 )
-against - Justice Gammerman
ARTHUR ANDERSEN & CO. (U.S.A.),
ARTHUR
ANDERSEN & CO. (Republic of Ireland)
and ARTHUR ANDERSEN & CO. (United
Kingdom) ,
Defendants. :
MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANTS' MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR IN
THE ALTERNATIVE R NEW TRIAL
CHADBOURNE & PARKE LLP
Attorneys fox- P l a i n t i f f
3 0 Rockefeller Plaza
New York, New York 10112
( 2 1 2 ) 408-5100
Zachary Shimer
Marjorie L. Cohen
Timothy M. Hughes
Rachel L. Simon
Shelby K. Ulan
Of Counsel
TABLE OF CONTENTS
SNIPPETS:
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6
.
HEARING
|
EXTRACTED KEY WORDS
TOOLING BODY SHELL DRAWINGS ROBB CONFIRMATION SATISFACTION SANDWICH PRODUCTION DIGIOVANNA FOAM BEAMS CONTRACT VAGUE BOTTOM PLASTICS SHOT RPR CRR MOLD GAP DISAPPEAR STATIC POSITION SHAKES LUCK DMC-12 CHRISTMAS FOAM BEAMS FIT RECEIVED FIBERGLASS TOOLING MASS PRODUCTION BODY SHOP |
e
2 9 9
1 Mulholland - B y Plaintiff - Direct/Hess
2 what do you mean by that?
3 A Well, when I visited Lotus at that
4 particular time, they produced t h e body shell for
5 us.
6 I talk about a body shell, maybe I
7 should try and simplify it.
a I would describe it as a cheese
9 sandwich. The bottom p i e c e of the bread is the
1 0 female, naturally, tool and the top one is the
11 male. And in between you have the sandwiches.
12 W e l l , a body shell basically is a
1 3 bottom and a t o p with the p l a s t i c i n j e c t e d into the
14 s p a c e between it. Now, to do that, you have to
1 5 pull o u t the air and maintain t h e g a p to allow the
16 plastic to be shot into it. And once it is shot,
1 7 you've got to maintain a vacuum to ensure that that
18 gap doesn't disappear or become larger.
1 9 The Lotus system was that they
2 0 injected into t h e body shell on a trolly in a
2 1 static position, they give a few little shakes for
2 2 luck, and waited until it had set. Naturally, that
23 took time.
2 4 We c o u l d not adopt that particular
2 5 a p p r o a c h as to the production of the DMC-12. We
SNIPPETS:
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7
.
DEF MEM RE VERDICT OR ALT
|
EXTRACTED KEY WORDS
SUPP ALLARD APP UNITED STATES HIRSCH OVERSEAS INVESTORS YORK COUNTY CIV OVERSEAS SUP PARTNERSHIP LITIGATION TRANSIT HOLDINGS CORN AUTHORITIES JURY PROXIMATE CAUSATION CREDIT BANK DIV CERT TRUST MISC QUEENS MARINE CITIBANK |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR, Trustee of
Debrean Motor Company,
Index No. 601473197
Plaintiff,
Justice Gammerman
-against - IAS Part 27
ARTHUR ANDERSEN & CO. (U.S.A.),
ARTHUR ANDERSEN & CO. (Republic of Ireland), and
ARTHUR ANDERSEN & CO. (United Kingdom),
Defendants.
DEFENDANTS' MEMORANDUM IN SUPPORT OF
MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT OR IN THE ALTERNATIVE A NEW TRIAL
a
e
Of Counsel: BROWN & WOOD LLP
Attorneys
* James D.
Zirin for Defendants
t
a James J. Sabella One World Trade Center
Madeleine J. Dowling New York, New York 10048
(212) 839-5300
SNIPPETS:
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8
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PLF MEM IN OPP SUMM JUDGM
|
EXTRACTED KEY WORDS
SUPP MISC YORK APP CITIES SERVICE OIL BANKR LITIG MANAGEMENT DEL CPLR COURT MOTOR TRUSTEE STATUTE CORU TOUCHE BANK CONSOLIDATED COPPERMINES SUP GOUIRAN HOLDINGS PRINZI SPRINGER KEIFER GRANITE PARTNERS HANNOVER BECKNER FIRSCH HOLLAND ILL |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR., Trustee of : Index No. 97/601473
De Lorean Motor Company,
: Part11
Plaintiff,
: Justice Friedman
'
-against-
ARTHUR ANDERSEN & CO.
(U.S.A.),
ARTHUR ANDERSEN & CO.
(Republic of
Ireland) and ARTHUR ANDERSEN & CO.
(United Kingdom),
Defendants.
MOTION FOR SUMMARY JUDGMENT
CEIADBOURNE & PARFCE LLP
Attorneys for Plaintiff
30 Rockefeller Plaza
New York, New York 10112
(212) 408-5100.
TABLE OF CONTENTS
Preliminary Statement
SNIPPETS:
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9
.
DEF REQUEST TO CHARGE
|
EXTRACTED KEY WORDS
REQUESTS YORK TRUSTEE UNITED KINGDOM DEFENDANTS JURY SUPREME COURT COUNTY DAVID ALLARD DELOREAN MOTOR PLAINTIFF INTRODUCTORY DEFENSES CONTRACT FRAUD CHARGE RESERVES MOTION RAISE DIRECTED VERDICT PREJUDICE WAIVER CONTENTIONS MOTIONS HERETOFORE INSTRUCTIONS LAW OPINIONS RELATING |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR., Trustee of DeLorean Motor
Company,
Index No. : 601473/97
Plaintiff,
-against-
IAS Part 11
ARTHUR ANDERSEN & CO. (U.S.A.), ARTHUR
ANDERSEN & CO. (Republic of Ireland), and Justice Friedman
ARTHUR ANDERSEN & CO. (United Kingdom),
Defendants.
DEFENDANTS'
REQUESTS TO CHARGE
BROWN & WOOD LLP
Attorneys for Defendants
One World Trade Center
New York, New York 10048
(212) 839-5300
Table of Contents
Towic Request No.
I. INTRODUCTORY POINTS
SNIPPETS:
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10
.
DEF MEM IN SUP MFSUMM JUD
|
EXTRACTED KEY WORDS
ALLARD DAMAGES GPD ALLEGED CLAIM AUTOMOBILE MOTOR LIMITED PARTNERSHIP DMC CAR CONTRACT DMC-12 LOAN PRODUCTION HMG DMCL ENGINEERING DRLP PAYMENTS LOTUS TRUSTEE DEEPENING INSOLVENCY ALLEGED KICKBACK EXH ZIRIN RECOVER PREJUDICE AFF SUPP COMPLAINT |
". r' *i SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
'3
DAVID W. ALLARD, JR, Trustee of
DeLorean Motor Company, I Index No. 601473/97
1 Plaintiff, I IAS Part 11
-against -
Justice Friedman
ARTHUR ANDERSEN & CO. (USA.),
ARTHUR ANDERSEN & CO,
(Republic of Ireland)
ARTHUR ANDERSEN & CO. (United Kingdom),
Defendants.
I
DEFENDANTS' MEMORANDUM IN SUPPORT
OF MOTION FOR SUMlMGRY 'JUDGMENT
F\LED
BROWN & WOOD LLP
Of Counsel: Attorneys for Defendants
One World Trade Center
James D. Zirin New York, New York 10048
James J. Sabella (212) 839-5300
Table of Contents
Prellmlnary
. - Statement..
Statement of Facts
ARGUMENT
I. ALLARD LACKS STANDING TO PURSUE
THE ALLEGED CLAIMS AGAINST AA
SNIPPETS:
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11
.
DEF FURTH SUP OF MFSUMM J
|
EXTRACTED KEY WORDS
YORK MEDIATORS COURT TRUSTEE PLAINTIFF BAR LAW MEMORANDUM MOTION WAGONER COMMITTEE DEFENDANTS SUPPORT SUMMARY JUDGMENT ALLARD MEM CIR CREDITORS COMMITTEE BREACH SECOND CIRCUIT FIDUCIARY DUTY PLAINTIFF LACKS STANDING DAMAGES HIRSCH JUDGE RESORTS DISPUTING INTERPRETATION MOREOVER ALLEGATION |
SUPREME COURT OF THE STATE OF NEW Y O N
COUNTY OF NEW YOFX
DAVID W. ALLARD, JR, Trustee of
DeLorean Motor Company, Index No. 601473/97
Plaintiff,
IAS Part 1 1
-against-
a Justice Friedman
ARTHUR ANDERSEN & CO. (USA.),
ARTHUR ANDERSEN & CO. (Republic of Ireland)
ARTHUR ANDERSEN & CO. (United Kingdom),
Defendants.
8
DEFENDANTS' REPLY MEMORANDUM IN FURT**ER MbR 1 0 lW
SUPPORT OF MOTION FOR SUMMARY JUDGMENT
BROWN & WOOD LLP
Of Counsel: Attorneys for Defendants
One World Trade Center
James D.
Zirin New York, New York 10048
James J. Sabella (212) 839-5300
Table of Contents
I. PLAINTIFF LACKS STANDING TO
PURSUE THE ALLEGED CLAIMS AT BAR. .............................. 2
11. AA IS ENTITLED TO SUMMARY
JUDGMENT WITH RESPECT TO ALLEGED
DEEPENING INSOLVENCY" DAMAGES. ................................ 10
SNIPPETS:
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12
.
PLF PROP JURY INSTRUCTION
|
EXTRACTED KEY WORDS
INSTRUCTION EVIDENCE PROFESSIONAL MALPRACTICE REQUESTED INSTRUCTION YORK REASONABLY PRUDENT NEGLIGENCE CARE SOURCE/AUTHORITV INJURY DMC AUDITING RESPONSIBILITIES CERTIFIED PUBLIC ACCOUNTANT CONTRACT PREPONDERANCE STANDARD JURY INSTRUCTIONS YORK PATTERN JURY PROXIMATE INTERFERE ABILITY ACCORDANCE GAAS IRELAND UNITED KINGDOM DUTIES LAW TESTIMONY CIVIL |
SUPREME COURT OF THE STATL' OF NEW YORK
COUNTY OF NEW YORK
- _ - - - - - - - - - - - - - - - - - - - - - - - - - - - X
DAVID W. ALLARD, JR., Trustee of
De Lorean Motor Company,
Plaintiff, Index No. 601473/97
(Part 11)
-against Justice Gammerman
-
ARTHUR ANDERSEN & CO - (U.
S .A - ) ,
ARTHUR ANDERSEN & CO. (Republic of
Ireland) and ARTHUR ANDERSEN & CO.
(United Kingdom),
Defendants. :
- - _ - - - - - - - - - - - - - - -
I - - - - - - - - - - x
PLAINTIFF'S REQUESTED INSTRUCTION NO. 1
b The Parties Contentions Reqardinq AA's Conduct A t Issue
I have described your general duties and
considerations as jurors. Now, I will set forth some
a specific points of law that you are to use in reaching your
verdict.
In this case, the Trustee commenced an action
a against defendants Arthur Andersen & Co. ( U . S . A . ) , Arthur
Andersen & Co. (Republic of Ireland) and Arthur Andersen &
Co. (United Kingdom) (collectively 1IA.Al f) . The Trustee
Source/Authority
PLAINTIFF'S REQUESTED INSTRUCTION NO. 2
PreDonderance of the Evidence
The Trustee, as plaintiff in this case, has the
SNIPPETS:
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13
.
PLF MEM IN OPP MIN LIMINE
|
EXTRACTED KEY WORDS
BUSHELL GUILTY MOTION TRUSTEE MANUALS EXH GUILTY PLEA LOREAN PREJUDICE BUSHELL DOCUMENTS ADMISSIBILITY COURT PARTICIPATION RELATING MATERIALS YORK FRAUD PARTNER EXHIBIT GPD MEMORANDUM CONVICTION LIMINE EXCLUDE DED ACTION GPD CONTRACT CONSENT DECREE CONTENTION SABELLA AFF |
TABLE OF CONTENTS
I. EVIDENCE RELATING TO THE
BUSHELL GUILTY PLEA IS MATERIAL
AND aDMISSIBLE ...................................... 3
11. THERE IS NO NEED FOR THE COURT TO RULE
* ON THE ADMISSIBILITY OF EVIDENCE THAT THE
TRUSTEE HAS NOT INDICATED HE EXPECTS TO USE . . . . . . . . . 8
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR., Trustee of
De Lorean Motor Company,
Plaintiff, Index No 97/601473
- against
- IAS Part 11
ARTHUR ANDERSEN & CO. (U.
S .A.
) , Justice Friedman
ARTHUR ANDERSEN & CO. (Republic of
Ireland) and ARTHUR ANDERSEN & CO.
(United Kingdom),
Defendants + :
PLAINTIFF'S mORANDm OF LAW
IN OPPOSITION TO DEFENDANT'S
MOTION IN LIMINE TO EXCLUDE EVIDENCE
INTRODUCTION
Lorean Motor Company ( llDMC") and its affiliates, AA claims
that Bushellls guilty plea to a charge of fraud committed
against DMC and its affiliates is too prejudicial to be
SNIPPETS:
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14
.
STATEMENT
|
EXTRACTED KEY WORDS
PLEA DEFENDANTS PLAINTIFF EVIDENCE GUILTY PLEA BUSHELL FACTS MOTION THIRD PARTIES JUNCTURE SEEKING PERMIT HEARSAY PREMATURE MATTER IMPLICATES GUILT PARTICIPATION PROSECUTING ADMISSIBILITY RES JUDICATA COLLATERAL ESTOPPEL FERNANDEZ CIGNA PROPERTY CAS AD2D REFER NUMEROUS AUTHORITIES SCOPE |
Plaintiff,
Index No. 601473/97
- against - SEQ. NO. 002
ARTHUR ANDERSEN & CO. (USA), ARTHUR
ANDERSEN & CO. (Republic of Ireland), ARTHUR
ANDERSEN & CO. (United Kingdom),
LEWIS R. FRIEDMAN, Justice
Defendants move for an in limine order precluding plaintiff from offering certain
material in evidence at the upcoming trial of this case.
Plaintiffs response has been that at this juncture it is premature to pass on the
points raised since it may well be that the evidence defendants challenge in this motion will
not be introduced at the trial. Plaintiff notes that the settlement of the Trustee with third
parties, defendants' audit manuals, and the consent decree of one of defendants' partners with
the SEC are not even on the list of potential trial exhibits that plaintiff seeks to offer. Under
those circumstances the court finds that resolution of the issues raised by the motion would
be premature and purely hypothetical at this juncture.
The only matter that defendants address in this motion that implicates matter that
plaintiff states it will introduce concerns the guilty plea of Bushell to conspiracy to defraud
DMCL. Plaintiff contends that he is not seeking to use the plea "to prove AA's guilt or
participation with Bushell, but is seeking to introduce the Bushell plea as evidence that there
was a fraud perpetrated through the GPD contract" (memo. p. 5). Defendants note that the
documents plaintiff is apparently seeking to introduce contain extensive statements by the
prosecuting attorney and the court concerning the facts which were developed during the
criminal investigation and are beyond the evidence which will be offered at this trial. The
ALLAE2D v. ARTHUR ANDERSEN & CO.
Index No. 601473/97 Page - 2
court is aware that it appears that there are bases for the introduction of guilty pleas by third
parties in unusual cases to help establish facts at issue during the case at bar, even though the
plea would not by binding under the rules of res judicata or collateral estoppel (see,
Fernandez v Cigna Property h Cas. Ins. Co., 188 AD2d 700, 703). There is no need to
refer to the numerous authorities for the proposition that guilty pleas are generally
admissible to show merely the guilt or participation of third parties.
The court is not willing at this juncture to pass on the question of the admissibility
of the Bushel1 plea, the statement that he was guilty or the scope of the documentation of the
plea that would be permitted. The development of the facts at the trial will determine
whether the fact that Bushell was convicted or his statements, either in open court or
SNIPPETS:
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15
.
DEF MEM IN LIMINE IRR,MIS
|
EXTRACTED KEY WORDS
DELOREAN EVIDENCE CARS GPD AUDIT EXCLUDE MOTION MEMORANDUM DIRECTORS REFERENCE CONTRACT DMCL DMC-12 ENGINEERING DRLP PAYMENTS YORK IRELAND UNITED KINGDOM ALLEGED DEPARTURES DEFENDANTS SUPPORT SABELLA EVIDENCE RELATING LOTUS DELOREAN MOTOR COMPANY COUNSEL JURY REFERS |
SUPREME COURT OF THE STATE OF NEW YORK
I COUNTY OF NEW YORK
F DAVID W. ALLARD, JR, Trustee of
DeLorean Motor Company, Index No. 601473/97
Plaintiff,
IASPart 11
Io -against- Justice Friedman
ARTHUR ANDERSEN & CO. (U.S.A.),
ARTHUR ANDERSEN & CO. (Republic of Ireland)
ARTHUR ANDERSEN & CO. (United Kingdom),
c Defendants.
DEFENDANTS' MEMORANDUM IN SUPPORT OF
MOTION LIMINE TO EXCLUDE EVIDENCE THAT IS
IRRELEVANT, MISLEADING AND UNDULY PREJUDICIAL
@
e
Y
BROWN & WOOD LLP
I) Of Counsel: Attorneys for Defendants
One World Trade Center
James D. Zirin New York, New York 10048
James J. Sabella (212) 839-5300
Q
-0
Table of Contents
STATEMENT OF FACTS
ARGUMENT
I. THE COURT SHOULD EXCLUDE EVIDENCE AS TO
SNIPPETS:
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16
.
DEF REPLY MEM IN LIMINE
|
EXTRACTED KEY WORDS
MANUALS MOTION COURT SETTLEMENTS PLAINTIFF MEM LIMINE REFER JURY EXCLUDE CONSENT DECREE ASSERTS STANDARDS SUPPORT PREJUDICE REFERENCE SABELLA SABELLA AFF EXH BUSHELL CONVICTION DEFENDANTS MEMORANDUM AUTHORITIES MOVING PROPOSITIONS LAW CONTRADICTION EXPLICIT DENY |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
, .
DAVID W. ALLARJI, JR, Trustee of
DeLorean Motor Company, Index No. 601473/97
Plaintiff,
IAS Part 1 1
-against-
Justice Friedman
ARTHUR ANDERSEN & CO. (U.S.A.),
ARTHUR ANDERSEN & CO. (Republic of Ireland)
ARTHUR ANDERSEN & CO. (United Kingdom),
Defendants.
DEFENDANTS' REPLY MEMORANDUM IN SUPPORT OF
MOTION IN LIMINE TO EXCLUDE EVIDENCE THAT IS
IRRELEVANT, MISLEADING AND UNDULY P'RIEJUDICIAL
The authorities cited in AA's moving brief' establish that the Schoemer consent decree
and alleged vio1,ations of AA's audit manuals are plainly inadmissible, highly prejudicial, and
appropriate for exclusion on motion in limine. Plaintiff Allard's brief does not even purport to
discuss any of the authorities relied on by AA for any of these points. Not one. These
propositions are essentially conceded by Allard.
Instead, the essence of Allard's opposition to this motion is that it is premature. He
asserts, for example, that he may not refer at trial to AA's manuals or the Schoemer consent
decree, and that AA should wait until he does before objecting. With all due respect, that is a
frivolous position. Allard ignores that when dealing with prejudicial matter, the law is well-
1 Defendants' Memorandum in Support of Motion in Limine, dated Nov. 26, 1997 ("AA Mem.").
settled that it is appropriate to move in advance of trial, because once the
SNIPPETS:
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17
.
ANSWER
|
EXTRACTED KEY WORDS
ALLEGATIONS INFORMATION SUFFICIENT DENY DMC TRUTH ADMIT GPD ALLEGE GPD CONTRACT RESPONSE DELOREAN DMCL DEFENDANTS ENGAGEMENT MONEY PAID AUDIT REPORTS REPEAT REALLEGE YORK ALLARD PLAINTIFF DRLP REFER JOHN DIRECTORS PAYMENTS SUPP JUDGE MUKASEY |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR., Trustee of 1
DeLorean Motor Company,
Plaintiff, ) Index No. 601473/97
-against- ) IASPart11
1
ARTHUR ANDERSEN & CO. (U.S.A.), ) Justice Friedman
ARTHUR ANDERSEN & CO. (Republic of
h... -,
Ireland) and ARTHUR ANDERSEN & CO.
(United Kingdom),
Defendants. )
'r SEP 2 6 1997
Defendants Arthur Andersen & Co. (U.S.A.) (now knovin a$ Arthur Andersen
LLP), Arthur Andersen & Co. (Republic of Ireland), and Arthur Andersen & Co. (United
Kingdom), by their attorneys, Brown & Wood LLP, as and for their answer to the Complaint
dated March 20,1997:
1 * Are without knowledge or information sufficient to form a belief as to the
truth of the allegations of Paragraph 1, except admit that the action by David W. Allard, Trustee
of the DeLorean Motor Company, in the United States District Court for the Southern District of
New York, 84 Civ. 7703 (MBM), was dismissed in February, 1997; admit that plaintiff purports
to rely on CPLR 205(a); and allege that some or all causes of action asserted herein fall outside
the scope of said statute.
2. Deny the allegations of Paragraph 2, except admit that Arthur Andersen &
CO. (U.S.A.) was a partnership which at all relevant times was engaged in the practice and
* Q..
-.?
SNIPPETS:
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18
.
PRE ARGUEMENT SYATEMENT
|
EXTRACTED KEY WORDS
COURT YORK DISCOVERY PLAINTIFF JUSTICE FRIEDMAN IRELAND UNITED KINGDOM STATUTE LIMITATIONS DISMISS CPLR AMENDMENTS DOCTRINE SUPREME COURT DAVID ALLARD TRUSTEE DELOREAN MOTOR INDEX PARTIES AUDITORS DAMAGES BASIS MOTION ABUSE DELAYS BLAME DEFENDANTS REMEDY RUSH |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
DAVID W. ALLARD, JR., Trustee of Index No. 601473/97
DeLorean Motor Company, in the court below
Plaintiff-Respondent,
- against - PRE -ARGUMENT STATEMENT
ARTHUR ANDERSEN & CO. (U.S.A.),
ARTHUR ANDERSEN & CO. (Republic
of Ireland) and ARTHUR ANDERSEN
& CO. (United Kingdom),
Defendants-Appellants.
Defendants-Appellants Arthur Andersen & Co. (U.S.A.), Arthur Andersen & Co.
(Republic of Ireland), and Arthur Andersen & Co. (United Kingdom) ("defendants" or AA")
respectfully submit this Pre-Argument Statement in support of their appeal from the order of the
Supreme Court of the State of New York, New York County (Friedman, J.), entered September
18, 1997.
1. The title of the action is David W. Allard, Jr., Trustee of DeLorean Motor
company, Plaintiff v. Arthur Andersen & Co. (U.S.A.), Arthur Andersen & Co. (Republic of
Ireland), and Arthur Andersen & Co. (United Kingdom), Defendants, Index No. 601473/97.
2. The full names of the original parties to the action are:
Plaintiff: David W. Allard, Jr.
Defendants: Arthur Andersen & Co. (U.S.A.)
Arthur Andersen & Co. (Republic of Ireland)
Arthur Andersen & Co. (United Kingdom)
There have been no changes in the names of the parties.
3. The name, address and telephone number of counsel for appellant are:
BROWN & WOOD LLP
One World Trade Center
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ZIRIN AFF VACATE
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EXTRACTED KEY WORDS
DEFENDANTS YORK DMCL ALLARD PLAINTIFF DEPOSITION ENGAGEMENT LETTER DISCOVERY COURT COUNTY IRELAND UNITED KINGDOM SWORN DEPOSES AFFIDAVIT MOTION MATERIALS CIV COMPLAINT SECOND AMENDED COMPLAINT NOTWITHSTANDING BAR OBTAINING DISCOVERY DEEPENING INSOLVENCY DAMAGES FORMER OFFICERS EMPLOYEES CONTEMPLATING JOHN DELOREAN |
-- ? 4.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID W. ALLARD, JR., Trustee of
DeLorean Motor Company, Index No. 601473/97
Plaintiff, AFFIDAVIT OF JAMES D.
- against - ZIRIN IN SUPPORT OF
MOTION TO DISMISS
ARTHUR ANDERSEN & CO . ( V S .A. , AND TO VACATE NOTE
I
ARTHUR ANDERSEN & CO. (Republic OF ISSUE
of Ireland) and ARTHUR ANDERSEN
& CO. (United Kingdom)
,
Defendants.
STATE OF NEW YORK ) ) ss.:
COUNTY OF NEW YORK)
JAMES D. ZIRIN, being duly sworn, deposes and says:
1. 1 am a member of Brown & Wood LLP, attorneys for
defendants Arthur Andersen & Co. (U.S.A.), Arthur Andersen & Co.
(Republic of Ireland), and Arthur Andersen & Co. (United
Kingdom), I make this affidavit in support of defendants' motion
to dismiss and to vacate the note of issue filed by plaintiff.
2 . The principal purpose of this affidavit is to
place before the Court the factual material on which defendants'
motion is based. Because these documents are voluminous, rather
than annex them hereto they have been bound and submitted
separately.
3. The materials contained in the exhibit volumes are
as follows:
Exh. 1: Excerpts from the deposition of M.. Thatcher
Exh. 2 : DMCL audited financial statements, Nov. 3 0 ,
1979
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20
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STATEMENT
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EXTRACTED KEY WORDS
TRUSTEE SDNY STATUTE SUPP REPORTS LIMITATIONS COMPANION ECONOMIC DEVEL DMC AUDIT CONTINUATION COMPLAINT CPLR PAPERS AUDITOR ACCOUNTANT DISMISSING MOTION BREACH FIDUCIARY DUTY ALLARD BANKRUPTCY CONTENDS RELIEF CONTRACT AUTHORITY CONTINUOUS REPRESENTATION DOCTRINE JUSTICE AD2D |
is but the continuation of an extensive litigation in the United States District Court for the
Southern District of New York. The claims were first asserted in the federal proceeding in
October 1984. After twelve years of litigation the federal court ultimately dismissed this
action in February 1997 finding an absence of federal jurisdiction. There is a companion
case, Department of Economic Development v Arthur Andersen & Co., Index No.
601474/97, also pending before this court.
In this motion the Arthur Andersen defendants (collectively "AA")
the fust, second and fifth causes of action in the complaint on the grounds that they are
barred by the statute of limitations' and that the breach of fiduciary duty cause of action is
I The court notes that the substance of AA's arguments were reserved for its reply
discussion of the relevant statute of limitations and the 1996 amendment to CPLR 214[6] is
than 2 pages of the moving memorandum and consumes nearly 19 pages of the reply. This procedure
"playing fast and loose" with the court's reasonable procedures. The court is also concerned
raises an issue of the application of the statute of limitations under Michigan law. AA admits
was not addressed at all in its moving papers (reply memo. p. 32, n.21). The court will not
on which the Trustee was intentionally deprived of his right to respond. The court is not
apparent threat that the issue would have to be considered in the future inter alia on a motion
on the pleadings." There is no such procedure under the CPLR. The Trustee and HMG have described
position on the future course of the litigation to be that AA would prefer any procedure that
trial of this or the companion case, at least in this court. The court's reading of the papers
Footnote continued
e ALLARD v. ARTHUR ANDERSEN & CO.
Index No. 601473197 Page - 2
legally insufficient. In addition AA moves to strike the Note of Issue, which is allegedly
premature. The motion does not address or effect the remaining causes of action.
This and the companion case are outgrowths of the failure of the DeLorean Motor
Company (,,DMC"). In this case plaintiff, the Trustee in -bankruptcy of DMC (the
"Trustee"), seeks damages from AA which had acted as auditors of DMC. In the companion
case the plaintiff, a branch of the Government of the United Kingdom (for convenience
referred to as "HMG"), which was a major investor in DMC, brings similar claims. After the
completion of discovery in the federal action the court granted summary judgment dismissing
the federal causes of action but denied the motion on the Trustee's common law claims
(Allard v Arthur Andersen & Co., 924 F Supp 488, 495-6 [SDNY 19961). The facts
underpinning this case are set forth at length in that decision, and the many reported
in the companion case. (Department of Economic Devel v Arthur Andersen & Co., 924 F
Supp 449 [SDNY 19961; Allard v Arthur Andersen & Co., 924 F Supp 488 [SDNY 19961;
Department of Economic Devel v Arthur Andersen & Co., 683 F Supp 449 [SDNY 19881;
Department of Economic Devel v Arthur Andersen & Co., 747 F Supp 922 [SDNY 19901;
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21
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MEM IN OPP TO VACATE NOI
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EXTRACTED KEY WORDS
MOTION BREACH DISMISS FIDUCIARY DUTY LITIGATION ALLARD MOTOR TRUSTEE DEFENDANT COMPLAINT UNITED KINGDOM MEMORANDUM POSTPONE FRAUD DISCOVERY FEDERAL ACTION CONTRACT MALPRACTICE LIABILITY MCKENZIE STATUTES LAW COURT YORK DAVID LOREAN MOTOR COMPANY IRELAND OPPOSITION VACATE |
TABLE OF CONTENTS
Pase
TABLE OF AUTHORITIES. . *. * . * . . . . . . . . . . . . . . . . . . . . . . . ii
PRELIMINARY STATEMENT .................................. 2
BACKGROUND ............................................. 3
A. AA's Fraudulent Misconduct . . . . . . . . . . . . . . . . . . . 3
B. The Summary Judgment Motion In The
Federal Action ............................. 4
ARGUMENT I AA'S MOTION TO DISMISS THE TRUSTEE'S
f BREACH OF CONTRACT, MALPRACTICE
AND BREACH OF FIDUCIARY DUTY
CLAIMS IS MERITLESS . . . . . . . . . . . . . . . . . . . 6
A. The Trustee's Breach Of Contract And
Malpractice Claims Are Timely . . . . . . . . . . . . . . 6
B . The Trustee's Breach Of Fiduciary Duty
Claim Should Not Be Dismissed . . . . . . . . . . . . . . 10
1. The Breach Of Fiduciary Duty Claim
Is Part O f The Same Transaction Or
Occurrence As The Claims In The
Federal Action ........................ 11
2 . Accountants Like AA Owe A Fiduciary
Duty To Their Clients . . . . . . . . . . . . . . . . . 13
ARGUMENT 11. THE TRUSTEE'S NOTE OF ISSUE WAS
APPROPRIATELY FILED, AND THE COURT
SHOULD IMMEDIATELY SCHEDULE A
TRIAL IN THIS TWELVE-YEAR-OLD
LITIGATION ............................ .14
i
TABLE OF AUTHORITIES
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