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1
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PLNTF REPLY MEMO
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EXTRACTED KEY WORDS
DISQUALIFICATION GELB REPRESENTATION CONFIDENCES DEFENDANT FINLEY KUMBLE ATTORNEY CONFIDENTIAL INFORMATION MOTION COURT LITIGATION TYTEL COUNSEL AFFIDAVIT HOWARD MEMORANDUM LAW PRIOR REASONS WAGNER PLAINTIFF HEAD LITIGATION DEPARTMENT CLIENT FISH PARTNER AFFILIATES DISCLOSURE PAST REPRESENTATION |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - f - - - - - - - - - l - - - - - - - X
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION, :
Plaintiff, :
- against - : Index No. 30530-91
COOPERS & LYBRAND, Certified :
Public Accountants, ..
Defendant.
f-------------ff---- - X
PLAINTIFF'S REPLY MEMORANDUM OF LAW IN SUPPORT
OF ITS MOTION TO DISQUALIFY ALAN GELB
AND FISCHBEIN, BADILLO & WAGNER
AS ATTORNEYS FOR DEFENDANT IN THIS ACTION
Preliminary Statement
Plaintiff Sillerman-Magee Communications Management
Corporation (llSillerman-Mageett) respectfully submits this reply
memorandum in further support of its motion to disqualify Alan
Gelb and Fischbein, Badillo & Wagner as attorneys for defendant
in this action.
The opposition papers of defendant Coopers & Lybrand
(IIC&L") argue, to the exclusion of all other issues, that
Sillerman-Magee's motion should be denied because of the lack of
any "substantial relationship It between the prior personal
representation of Sillerman-Magee by Mr. Gelb in his capacity as
head of the litigation department of Finley, Kumble, Wagner,
Heine, Underberg, Manley & Casey ("Finley Kumble") and the
circumstances giving rise to the present lawsuit. However,
2
SNIPPETS:
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2
.
NOTICE CROSS MOTION
|
EXTRACTED KEY WORDS
SUPREME COURT SWORN COMPLAINT SIMPSON THACHER BARTLETT ATTORNEYS PLAINTIFF MANAGEMENT CORPORATION COUNTY ALAN GELB DULY SWORN DEPOSES DISMISS |
File No. 4346(4)/riot-mot.djl
SUPREME COURT OF THE STATE OF NEW YORK
'COUNTY OF NEW YORK I
~ SILLERMAN-MAGEE COMMUNICATIONS I
~, MANAGEMENT CORPORATION, I
Plaintiff, I
I
-against- I
I
'~ COOPERS & LYBRAND, Certified Public 1
I: Accountants, I
pi
Defendant.
'8
SIRS l
PLEASE TAKE NOTICE, that upon the
Gelb, Esq., sworn to the 9th day of January
Verified Complaint, the undersigned will
at an IAS Part, at the Courthouse located
New York, New York, on January 13, 1992, at 9:30
order pursuant to CPLR 3211(a)(7) dismissing
Third, Fourth and Fifth Causes of Action
Complaint, upon the ground that each fails
action, together with such other, fu
as the Court may deem proper. :,
PLEASE TAKE FURTHER NOTIC
return date of this cross-motion is extended,,.b
3,
1992, pursuant to CPLR 2214(b), answering
SNIPPETS:
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3
.
DEF MEMO SUP MTD
|
EXTRACTED KEY WORDS
SILLERMAN FRAUD ACCOUNTANTS ALLEGE COMPLAINT FAILS COURT NEGLIGENCE REPORT YORK CONTRACT COOPERS PARTY JONES EASTERN COMPANIES LYBRAND PURPOSE COMMON LAW PLEADINGS BNE COMMUNICATIONS PROFESSIONALS PLAINTIFFS ALLEGATIONS MANAGEMENT CORPORATION EXAMINATION TRANSACTION REPRESENTATIONS CREDIT ALLIANCE MISREPRESENTATION OBLIGATION |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 30530
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION,
Plaintiff,
-against-
COOPERS & LYBRAND, Certified
Public Accountants,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF COOPERS &
LYBRAND'S CROSS-MOTION TO DISMISS THE COMPLAINT
FISCHBEIN*BADILLO*WAGNER
Attorneys for Coopers & Lybrand
909 Third Avenue
New York, New York 10022
(212) 826-2000
we l . l
TABLE OF CONTENTS
Pase
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
POINT I
THE CLAIM FOR COMMON LAW PROFESSIONAL NEGLIGENCE FAILS
TO STATE A CAUSE OF ACTION BECAUSE THERE
SNIPPETS:
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4
.
REPLY MEMOC&L
|
EXTRACTED KEY WORDS
COMPLAINT FACTS FRAUD NEGLIGENCE NEGLIGENT MISREPRESENTATION FIDUCIARY DUTY TYTEL AFFIDAVIT COMMON LAW REPLEAD BREACH MOTION DISMISS IMPLIED COVENANT FAITH LEGAL THEORY MATERIAL FACT TRANSACTION ABETTING COMMON LAW JONES-EASTERN AVOID ACCOUNTANTS ALLEGATIONS PLAINTIFF ASSERTIONS SILLERMAN MEM SHIFTING ABANDONMENT DAMAGES LIABILITY |
TABLE OF CONTENTS
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . .
; 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT I
SILLERMZW CANNOT AVOID THE DISMISSAL OF ITS NEGLIGENCE
CLAIM BY SHIFTING ITS LEGAL THEORY FROM PROFESSIONAL
NEGLIGENCE TO NEGLIGENT MISREPRESENTATION . . . . . . . 3
A. The Abandonment of the Professional
Negligence Claim . . . . . . . . . . . . . . . . 3
B. No Claim of Negligent Misrepresentation Can
BePleaded. . . . . . . . . . . . . . . . . . . . 6
POINT I1
SILLERMAN'S FRAUD CLAIM IS FATALLY FLAWED BY THE
ABSENCE OF ANY FALSE STATEMENT OF MATERIAL FACT,
REASONABLE RELIANCE AND DAMAGES . . . . . . . . . . . . 9
POINT I11
SILLERMAN HAS FAILED TO STATE A CAUSE OF ACTION FOR
AIDING AND ABETTING COMMON LAW FRAUD . . . . . . . . . . 12
POINT 1V
SILLERMAN HAS FAILED TO STATE A CLAIM FOR THE BREACH OF
A FIDUCIARY DUTY . . . . . . . . . . . . . . . . . . . . 14
POINT V
SILLERMAN HAS FAILED TO STATE A CLAIM FOR THE BREACH OF
AN IMPLIED COVENANT OF GOOD FAITH . . . . . . . . . . . 16
POINT VI
EACH CAUSE OF ACTION IN SILLERMAN'S COMPLAINT MUST BE
DISMISSED WITHOUT LEAVE TO REPLEAD . . . . . . . . . . . 17
-i-
TABLE OF CONTENTS
(continued)
Pase
A. The Standard Of R e v i e w On A Motion To
Dismiss . . . . . . . . . . . . . . . . . . . 17
SNIPPETS:
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5
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OPPOSE MOTION
|
EXTRACTED KEY WORDS
LYBRAND COOPERS BANK REPRESENTATION MOVING JONES EASTERN FIRM FACTS CONNECTION AFFIDAVIT PLAINTIFF TRANSACTION AFFILIATES FINLEY KUMBLE MOTION ALLEGES SUBSTAN ASSERTION FINANCIAL STATEMENTS COMPLAINT ENGLAND PRIOR CONFIDENCES SILLEMAN-MAGEE MOVING PAPERS BUSINESS AGREEMENT FISH INVESTMENTS |
~
0 a
SUPREME COURT OF THE STATE OF NEW YORK ORlG
COUNTY, OF NEW YORK
- - - - - - - - - - - - - - - x
- 1 - -
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION,
Plaintiff , Index NO.
COOPERS & LYBRAND, Certified Publi
.c : Af E idavit in
Accountants, -
to Motion to
Defendants.
STATE OF NEW YORK }
} ss.
COUNTY "OF NEW YORK }
1. I am a member of the
Fischbein.Badillo*Wagner, attorneys f o r Coopers & L ~ b r a n d
have personal knowledge of the facts set forth herein. I s
this affidavit in opposition to plaintiff's motion to disquilify
me and my law firm pursuant to
' ' . A - 1 0 8 of
0
Professional Responsibility. ;$
2 . Plaintiff Is motion
Rule which permits disqualification only w
evidentiary demonstration that a prior representation Of a f mer
client is substantially related to the issues in a later ase '1
where disqualification is sought. The
prevent confidences gained in the first matter from being US
counsel in the later case against his prior client-
Plaintiff Silleman-Magee was remedy
never my
SNIPPETS:
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6
.
OPP TO MTD
|
EXTRACTED KEY WORDS
MISREPRESENTATION ALLEGES FACTS DEPLT FRAUD RELIANCE SILLERMAN-MAGEE JONES-EASTERN SCIENTER SUPP SILLEMAN-MAGEE PLAINTIFF COURT TYTEL AFF DEFENDANT BNE REPRESENTATIVES FIDUCIARY RELATIONSHIP ACCOUNTANTS EXAMINATION AFA PROTECTIVE SYSTEMS ALLEGATIONS COMMON LAW IRREGULARITIES FRAUDULENT FINANCIAL CONDITION ACCOUNTING FIRM PARTICULARITY CAPITOL RECORDS |
TABLE OF CONTENTS
Pacre
..-y
.-PRELIMINARY STATEMENT
-- . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENTS OF FACTS . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
POINT I
ON A MOTION TO DISMISS ALL FACTUAL
ALLEGATIONS OF THE NON-MOVING PARTY ARE
DEEMED TRUE AND ALL INFERENCES ARE DRAWN
INITSFAVOR. . . . . . . . . . . . . . . . . 7
POINT I1
THE FIRST CLAIM PROPERLY ALLEGES
FRAUDULENT MISREPRESENTATION . . . . . . . . . 8
A. The Complaint Alleges the Misrepresentation
of Material Existing Facts . . . . . . . . . . 9
B. The Complaint Alleges Scienter . . . . . . . . 14
C. The Complaint Plainly Alleges Reliance . . . . 15
D. The Complaint Alleges Damages Proximately
Caused by C&Lws Misrepresentations and
Omissions . . . . . . . . . . . . . . . . . . 16
POINT I11
THE COMPLAINT ALLEGES FRAUD
e- WITH THE REQUISITE .
PARTICULARITY . . . . . . 19
..* POINT IV
*
1
THE SECOND CLAIM PROPERLY ALLEGES
NEGLIGENT MISREPRESENTATION . . . . . . . . . 20
POINT V
THE THIRD CLAIM PROPERLY ALLEGES
THAT C&L AIDED AND ABETTED THE
FRAUD COMMITTED BY BNE AND THE
FDIC. . . . . . . . . . . . . . . . . . . . . 23
Pase
POINT VI
THE FOURTH CLAIM PROPERLY ALLEGES A
. . . . . . . . . . . . . .
BREACH OF CONTRACT 25
SNIPPETS:
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7
.
MEMO OF LAW SUP P MOTION
|
EXTRACTED KEY WORDS
GELB REPRESENTATION CLIENT CONFIDENCES ATTORNEY TYTEL FINLEY KUMBLE COOPERS LYBRAND FORMER CLIENT LITIGATION AFFILIATES DISQUALIFY TYTEL AFFIDAVIT FIRM GREENE FINANCING CONFLICT PROFESSIONAL RESPONSIBILITY COURTS IMPROPRIETY PARTNER YORK WAGNER BUSINESS DISCLOSU TERMINATION NEGOTIATIONS MATTER |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
SILLEFNAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION,
Plaintiff,
- against - Index No. 30530-91
COOPERS & LYBMND, Certified
Public Accountants,
Defendant.
MEMORANDUM OF L A W IN SUPPORT OF THE MOTION
OF PLAINTIFF SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION TO DISQUALIFY ALAN
GELB AND FISCHBEIN, BADILLO & WAGNER AS
ATTORNEYS FOR DEFENDANTS IN THIS ACTION
PRELIMINARY STATEMENT
Plaintiff Sillerman-Magee Communications Management
Corporation ("Sillerman-Magee") submits this memorandum together with I
the accompanying affidavit of Howard J. Tytel (the "Tytel Affidavit") in
support of its motion to disqualify Alan Gelb and his law firm,
Fischbein, Badillo & Wagner, as attorneys f o r defendant Coopers &
Lybrand, Certified Public Accountants ("Coopers & Lybrand") in this ;
action. Mr. Gelbls intimate knowledge of Sillerman-Magee, of its
financial condition and structure, of Mr. Tytel's litigation s t r a t e g y
and Sillerman-Magee's basic philosophy of doing business, all of which;
were obtained by Mr. Gelb through confidences shared with him in his
capacity as counsel for Sillerman-Magee, create a direct conflict of
SNIPPETS:
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8
.
MEMO DECISION
|
EXTRACTED KEY WORDS
REPRESENTATION COUNSEL CONFIDENCES FORMER CLIENT LITIGATION MOTION DISQUALIFY MOVING PARTY COURT AFFIDAVIT DEFENSE COUNSEL FINLEY KUMBLE SILLERMAN ASSERTS GELB OBTAINING DISCLOSURE SUPPORT YORK DEFENDANT ARGUES PARTNER LITIGATION DEPARTMENT BASIS CAREFUL CONFIDENTIAL DATA DISCIPLINARY RULE MATTER SECRETS |
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY I
1 PART /
PRESENT:
I Hon, Justrice.
-ag&t -
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION,
Plaintiff, Index No. 3 0 5 3 0 / 9 1
-against-
COOPERS & LYBRAND, Certified
Public Accountants,
Defendant.
CAROL H . ARBER, J. :
Plaintiff moves to disqualify defendant's attorney from
representing defendant on the grounds that he previously
represented plaintiff and that the former representation w i l l
provide defense counsel with an "inappropriate advantage" in this
case.
Defendant opposes the application, denies that there is
. any conflict of interest and argues that plaintiff has failed to
establish one.
Defense counsel, Alan G e l b was previously a partner in
and executive committee member of the litigation department at
Finley Kumble. From 1978 to 1986 the firm represented Sillerman-
SNIPPETS:
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9
.
AFF
|
EXTRACTED KEY WORDS
COOPERS LYBRAND FINANCIAL STATEMENTS JONES AFFIDAVIT TYTEL JONES EASTERN YORK COMPLAINT PURCHASE REPRESENTATIONS FIRM FACTS DISQUALIFY SUPPORT TRANSACTION BASIS SWORN PARTNER MOTION HOWARD TYTEL GENERALIZATIO BUSINESSTT DEBT CONNECTION AGREEMENT INCOME TAX VICE EXHIBITS |
a e e
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - - X
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION,
Plaintiff, Index No. 305,30
COOPERS & LYBRAND, Certified Public : Affidavit in Oppositic 1
Accountants, : to Motion to Disauali: ?
STATE OF NEW YORK } } ss.
COUNTY OF NEW YORK }
Robert Fish, being duly sworn, deposes and says:
1. I am a partner in the firm of Coopers & Lybranc
have personal knowledge of the facts set forth herein and subm
this affidavit in opposition to the motion by plainti
Sillerman-Magee to disqualify Messrs. Fischbein-Badillo-Wagne:
and its partner, Alan M. Gelb, who has been in charge of tl ?
defense of this matter since its inception.
2. I have read the Verified Complaint as well as tl
affidavit of Howard Tytel submitted in support of the motion '
disqualify our attorneys. The purpose of this affidavit is '
respond to those assertions in the Tytel affidavit which ma:
generalized claims (never supported by any facts or detail) ab01
the Itfinancial structure and condition of [Sillerman-Magee a:
its affiliatesJtt (IS) ; their Itcorporate organization, structurl
financial condition and businesstt (q6) and like generalizatio:
which appear in the Tytel papers (see, e.g. n1[8,9). While I ,
* e e
I advised that Mr. Gelb disputes the assertions of
affidavit, none of these matters involves a
confidence a5 to Coopers
# ' & Lybrand.
SNIPPETS:
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10
.
AFF TYTEL
|
EXTRACTED KEY WORDS
LYBRAND SILLERMAN-MAGEE SILLEMAN-MAGEE REPRESENTATIVES JONES EASTERN COMPANIES BNE YORK OUTSTANDING INDEBTEDNESS BANK FINANCIAL CONDITION JONES-EASTERN COMPANIES COMPLAINT EXAMINATION MANAGEMENT CORPORATION HOWARD TYTEL MISREPRESENTATIONS SILLEMAN-MAGEE COMMUNICATIONS MANAGEMENT ACCOUNTANTS IRREGULARITIES ROBERT FISH COUNTY PUBLIC ACCOUNTANTS DULY SWORN ACCOUNTING SIGNIFICANT INJURY RECOVER DAMAGES FINANCIAL RECORDS DEFENDANT COOPERS |
SUPREME.COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - X
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION,
Plaintiff,
-
against -
COOPERS & LYBRAND, Certified
Public Accountants,
Defendant.
I - c - I - - - I - - - - c - c - c X
STATE OF NEW YORK 1
ss.
COUNTY OF NEW YORK 1
HOWARD J. TYTEL, being duly sworn, deposes and says:
1. I am an Executive Vice-president, a Director, and the
General Counsel of Silleman-Magee Communications Management
Corporation (nSilleman-Mageell), plaintiff in the above-captioned
action, This affidavit is submitted in support of Silleman-Mageels
reply memorandum of law in opposition to the motion of Coopers &
Lybrand to dismiss Silleman-Mageels claims. I am fully familiar w i t
the matters asserted herein, baseG on personal knowledge, having been
.I
r
the principal representative of S d m a n - M a g e e in all relevant
negotiations between BNE,(th% s, ae
0
dealings with Coopers & Lyb'ra$f-+?qeerth
2. In the spring of
$& *o&F,astern
its affiliated companies +cj
(collectlve
were in default on their outstanding indebtedness to the Bank of New
England ( IIBNE " ) . See Sillerman-Magee's Complaint ( vlComplaintll) at T[ E
(attached hereto as Exhibit A). BNE, with repeated references to
Sillerman-Mageels holding of subordinated debt and non-voting stock i r
the Jones-Eastern Companies, pressured Sillerman-Magee into
negotiations to purchase such outstanding indebtedness. Id.
3. In March 1990, representatives of Silleman-Magee,
SNIPPETS:
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11
.
REQUEST JUDICIAL INTERVEN
|
EXTRACTED KEY WORDS
REQUIRED INFORMATION PARTY RELATED ACTIONS RIDER SHEETS DEFENDANT INSURANCE CARRIERS AFFIREI PENALTY PERJURY KNOWUDGE QUEST ATTACH RIDER SHEETS PRO TIT PRXEEDINGS REQUEST FRO ILTLE DDRON PROTEEDRNG LYPID PRIIIIFD OPPLLRONT STUB |
- .
.
.
. - . . *
-
Name Addr e s s Phone
Kenneth
R . Logan Simpson Thacher
& Bartlett ( 2 1
4 2 5 Lexington Avenue
New York, New York 1 0 0 1 7 - 3 9 0 9
ATTORNEY ( I j FOR DEFENDANT ( s /RX?J - ~=X
Name
- Address Phone
Alan Gelb Fischbein, Badillo & Wagner ( 2 1 2 ) 826- 2000
909. Third Avenue
New York, New York 1 0 0 2 2
N M E S OF INSURANCE CARRIERS (if applicable and available)
ELATED CASES (if none, write "NONE" below)
T i t l e Index # Court Nature of
I AFFIREi UNDER PENALTY OF PERJURY THAT, TO MY KNOWUDGE, OTHER THAN As
THERE ARE AND HAVE BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A =QUEST FOR J U D I C
INTERVENTION PREVIOUSLY BEEN
Dated: December 2 3 , 1991
Kenneth R. Logan
(PRINT OR TYPE NAME)
Simpson Thacher & B a . r t l
ATTORNEY FOR PLAINTIFF
Sillerman-Maqee Communications
SNIPPETS:
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12
.
MEMO & ORDER
|
EXTRACTED KEY WORDS
SILLERMAN-MAGEE ALLEGES BNE MISREPRESENTATIONS PLAINTIFF WRITTEN AGREEMENT CONTRACT PARTIES MOTION DEFENSES COUNTERCLAIMS TURNER COURT BANK REASONS SILLEMAN-MAGEE NBNE AFFIRMATIVE DEFENSES REPRESENTATIONS RELIANCE DISMISS DEFENDANT JONES-EASTERN OMISSIONS CONTENDS STRIKE MATTER NEGOTIATIONS PROVISION |
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
1
NEW BANK OF NEW ENGLAND, N.A., 1
Plaintiff 1
- 1
V. 1
SILIXRMAN-MAGEE'COMMUNICATIONS 1
MRNAGEMENT CORP., 1
Defendant 1 1
SILLERMAN-MAGEE COMMUNICATIONS . ) -\.
MANAGEMENT CORP., 1 '3
Counterclaim-plaintiff ) )
V.
1
.NEW BANK OF NEW ENGLAND, N.A., 1
and FEDERAL DEPOSIT INSURANCE 1
c o w . , 1
Counterclaim-defendants )
Memorandum and Order
March 5, 1992
Plaintiff New Bank of New England ( llNBNE1l) brings this
action to recover the principal sum of $3,950,400 due and owing
from Defendant Silleman-Magee Communications C o w . (" Silleman -
Mageem1) pursuant to an-agreement entered into with the failed Bank
of New England (IIBNEII) in May of 1990. Sillerman-Magee has filed
counterclaims against NBNE and FDIC, alleging that both parties
fraudulently induced Sillerman-Magee to enter i n t o the agreement
at issue. FDIC has moved to be substituted for NBNE as
counterclaim-defendant because the FDIC, not NBNE, retains the
' . 2
liabilities of the old BNE. As. Silleman-Magee has not filed an
opposition to the motion, FDIC's motion to substitute (Docket No.
9, filed October 31, 1991) is allowed.
I.
In May of 1990 Sillerman-Magee entered' into a written
agreement with BNE to purchase the indebtedness of the Jones-
SNIPPETS:
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13
.
C&L MEMO OF LAW
|
EXTRACTED KEY WORDS
MOTION REPRESENTATION COOPERS LYBRAND PLAINTIFF JONES PURCHASE SILLERMAN-MAGEE TRANSACTION FACTS ACCOUNTANTS ALLEGES BASIS MOVING FORMER CLIENT GELB FIRM PURCHASE AGREEMENT CONNECTION LITIGATION AFFIDAVIT SUBSTANCE CONFIDENCES BANK JONES EASTERN ASSERTIONS COUNSEL CONCLUSORY TYTEL LETTER |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY-OF NEW YORK
- - - - - - - - - - - - I - - - - - -
X
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION,
Plaintiff,
COOPERS & LYBRAND, Certified Public :
Accountants,
Defendants.
X
COOPERS & LYBRAND MEMORANDUM OF LAW IN OPPOSITION TO
THE MOTION TO DISOUALIFY ITS ATTORNEYS IN THIS CASE
-*-
PRELIMINARY STATEMENT
Plaintiff has moved to disqualify counsel f o r Coopers &
Lybrand in this case, the law firm of Fischbein. Badillo. Wagner and
its partner Alan M. Gelb. Claim is made that the representation of
the accounting firm is barred under Disciplinary Rule 5-108 by
c virtue of undescribed legal services as to unidentified subjects,
allegedly rendered an unspecified number of years ago, by Mr.
Gelbl s prior law firm, Finley Kumble, etc. That firm has been
defunct f o r several years.
The present case involves events which began in April and
May, 1990 and continued through May, 1991. The complaint alleges
,,Q that on May 21, 1990, plaintiff Sillerman-Magee entered into an
agreement with Bank of New England. A borrower from the Bank of
New England, Jones Eastern Radio, Inc., and its affiliates (called
the "Jones Eastern CompaniesRR), was in default on $8.7 million of
debt. Under the May 21, 1990 transaction, Silleman-Magee agreed
f
to purchase the defaulted debt f o r $6 million, payable over a
-0 period of a year. One year later, when the last installment of the
purchase price was due, Sillerman-Magee defaulted under the May 21,
1991 agreement and was sued by the Bank of New England by virtue of
SNIPPETS:
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14
.
NOTICE OF ENTRY
|
EXTRACTED KEY WORDS
COURT YORK PLAINTIFF SILLERMAN-MAGEE DEFENSE COUNSEL LITIGATION MOTION AFFIDAVIT MOVING PARTY PAPERS GELB FINLEY KUMBLE ASSERTS DISCIPLINARY RULE SUPREME COURT SILLERMAN-MACGEE COMMUNICATIONS LYBRAND ACCOUNTANTS FOREGOING DEFENDANT PARTNER LITIGATION DEPARTMENT BASIS NEGOTIAPIONS CAREFUL CONFIDENTIAL DATA NY2D NYS2D PROBABILITY |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK X /: p 5
c - - - - - - - - - - - - - - - - - _ - _---- - - - - - - - - - - I I
~SILLERMAN-MACGEE COMMUNICATIONS
&ANAGEMENT CORPORATION, \\>X*,?''
I
I Plaintiff (s)
, INDEX # 3
-against- NOTICE OF
$OOPERS & LYBRAND, Certified Public :
'accountants,
PLEASE TAKE NOTICE, that the. within is a true COPY of
decision and order duly entered in the office of the clerk of the
"'y, i t h i n named court on April 22, 1992.
;, ' I
l~Dated:
New York, New York
#I
, 1' April 27, 1992
, ,'
Fischbein-Badillo*Wagner*Itzler
Attorneys f o r Defendant
909 Third Avenue
New York, New York 1 0 0 2 2
(212) 8 2 6 - 2 0 0 0
TO :
Simpson, Thacher & Barlett
Attorneys for Plaintiff
425 Lexington Avenue
New York, NY 10017
-
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
SNIPPETS:
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15
.
STIPULATION
|
EXTRACTED KEY WORDS
MOTION DEFENDANT DISMISS COMPLAINT MEMORANDUM COURT STIPULATION DISQUALIFY SUPREME COURT COUNTY YORE CIVIL PRACTICE LAW DISQUALIFY ALAN GELB FISCHBEIN BADILLO WAGNER ATTORNEYS CROSS-MOTION CONSENT OPPOSITION CROSSMOTION PLAINTIFF CLERK |
*. . .
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORE
SILLERMAN-MAGEE COMMUNICATIONS :
MANAGEMENT CORPORATION, :
Plaintiff, :
- against - STIPULATION
:
COOPERS & LYBRAND, certified Index No. 30530-91
Public Accountants, :
Defendant. :
--------------------x
IT IS HEREBY STIPULATED AND AGREED by and among all
parties to this action that: (1) this Stipulation is pursuant to
Rule 2104 of the Civil Practice Law and Rules; (2) the return
date on plaintiff's motion to disqualify Alan Gelb and Fischbein,
Badillo & Wagner as attorneys for defendant in this action and on
defendant's cross-motion to dismiss the complaint shall be
adjourned by consent to March 9, 1992, at 9:30 a.m.;
(3) plaintiff's memorandum in opposition to defendant's cross-
motion to dismiss the complaint shall be served upon defendant on
February 21, 1992; (4) plaintiff's reply memorandum on its motion
to disqualify shall be served upon defendant on February 28,
1992; (5) defendant's reply memorandum on its motion to dismiss
the complaint shall be served upon plaintiff on March 4, 1992;
and (6) this Stipulation may be filed without further notice with
the Clerk of the Court.
Dated: New York, New York
January 16, 1992
SNIPPETS:
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16
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CROSS MOTION TO DISMISS
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EXTRACTED KEY WORDS
SILLERMAN COOPERS LYBRAND YORK COURT JONES EASTERN COMPANIES BNE FRAUD COMMUNICATIONS SILLEMAN-MAGEE DEBT ACCOUNTANTS MANAGEMENT ALLEGE PURCHASE REPRESENTATIVES ALLEGATIONS CPLR MISREPRESENTATIONS EXAMINATION COMPLAINT FAILS NEGLIGENCE CREDIT ALLIANCE CROSS-MOTION FIDUCIARY DUTY FINANCIAL CONDITION TRANSACTION DEFENDANT COOPERS ROBERT FISH |
a - e e a
File No. 4346(4)/not-mot.djl
SUPREME COURT OF THE STATE OF NEW YORK
II '! COUNTY OF NEW YORK I
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPOmTION,
I
I
I
Plaintiff, NOTICE OF CROSS-
I I MOTION TO DISMISS
-against- I EACH CAUSE OF ACTIO
IN THE COMPLAINT
I COOPERS & LYBRAND, Certified Public j
Accountants, I
I
I Index No. 30530/91
PLEASE TAKE NOTICE, that upon the affidavit of A l a r vl.
Gelb, Esq., sworn to the 9th day of January 1992, and the
Verified Complaint, the undersigned will cross-move this COUI
at an IAS Part, at the Courthouse located at 60 Centre Streel
New York, New York, on January 13, 1992, at 9 : 3 0 a.m., for a1
order pursuant to CPLR 3211(a)(7) dismissing the First, Secol I
Third, Fourth and Fifth Causes of Action of the Verified
Complaint, upon the ground that each f a i l s to state a cause t
action, together with such other, further and different relii
as the Court may deem proper.
PLEASE TAKE FURTHER NOTICE, that in the event that he
return date of this cross-motion is extended beyond January I
1992, pursuant to CPLR 2214(b), answering papers, if any, mu
c I) ' e e a
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17
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NOICE OF MOTION
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EXTRACTED KEY WORDS
LYBRAND SILLERMAN-MAGEE YORK SILLEMAN-MAGEE JONES EASTERN COMPANIES BNE ATTORNEYS DEFENDANT COURT LAW REPRESENTATION SILLERMAN-MAGEE COMMUNICATIONS HOWARD WAGNER COMMUNICATIONS MANAGEMENT FINANCIAL CONDITION PUBLIC ACCOUNTANTS DISQUALIFY ALAN FINLEY KUMBLE MISREPRESENTATIONS PLAINTIFF SILLERMAN-MAGEE COMMUNICATIONS AFFILIATES COMPENSATORY DAMAGES EXAMINATION SUPREME COURT EXHIBITS ANNEXED THERETO NEGOTIATIONS LITIGATION SIGNIFICANT INJURY |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION, NOTICE OF MOTION
Plaintiff, TO DISQUALIFY
DEFENDANTS ATTORNEYS
- against - Index No. 30530-91
COOPERS & LYBRAND, Certified
Public Accountants,
Defendant.
S I R S :
PLEASE TAKE NOTICE that upon the affidavit of
Howard T y t e l , sworn to the 20th day of December 1991, the
exhibits annexed thereto, and the Memorandum of Law in support of
t h e Motion of Plaintiff Sillerman-Magee Communications Management
Corporation to Disqualify Alan G e l b and Fischbein, Badillo &
Wagner as Attorneys f o r Defendants in this action, the
undersigned will move this Court at an IAS Part, of the Supreme
Courthouse of the State of New York, County of New York, 60
Center Street, New York, New York on the 13th day of January,
_c---. -
--. -
~ ..
1992 at or as soon thereafter as counsel can be heard f o r an
together with such other and further relief as to this court
finds j u s t and proper.
DATED : New York, New York
December 23, 1991
SIMPSON THACHER & BARTLETT
(a partnership which includes
professional corporations)
Attorneys f o r Plaintiff
Sillerman-Magee Communications
Management Corporation
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18
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SUMMONS&VER COMPLAINT
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EXTRACTED KEY WORDS
LYBRAND YORK JONES EASTERN COMPANIES SILLEMAN-MAGEE SILLERMAN-MAGEE BNE DEFENDANT COMPLAINT FINANCIAL CONDITION MISREPRESENTATIONS REPRESENTATIVES OMISSIONS PUBLIC ACCOUNTANTS SUMMONS DEBT EXAMINATION RECOVER DAMAGES ROBERT FISH OUTSTANDING INDEBTEDNESS SUFFERED SIGNIFICANT INJURY SILLERMAN-MAGEE OPERATIONS LYBRANDLS MISREPRESENTATIONS IRREGULARITIES ACCOUNTING HOWARD TYTEL COMMUNICATIONS MANAGEMENT CORPORATION FINANCIAL RECORDS BUSINESS RELATIONSHIP FIDUCIARY DUTY |
T
0
c 1 ~~- Surnrnons
without Notice. Supreme Court.
Pcrsonal or Substilulcd Servicc. 8-88
.
r 5
Mnltrt nuf l f p B&$P nf Pq,m unrk
SILLERMAN-MAGEE COMMUNICATIONS
MANAGEMENT CORPORATION,
Plaintiff
against
COOPERS & LYBRAND, C e r t i f i e d
Public Accountants,
, m
Defendant
T o the above named Defendant
a$# bl?rl?by BummdnPh to answer the complaint in this action and to Serve
a copy of your answer, or, if the complaint is not served with this summons, t o
appearance, on the PIaintiffs Attorneyls) within 20 days after the service of this summons,
of the day of service (or within 30 days after the service i s complete if this summons
delivered to you within the State of New York); and in case of your failure to appear or
ment will be taken against you by default for the relief demanded in the complaint.
Dated, October 30, 1991
I '
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19
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VERIFIEDCOMPLAINT
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EXTRACTED KEY WORDS
LYBRAND SILLEMAN-MAGEE DEBT JONES EASTERN COMPANIES PURCHASE YORK BNE OUTSTANDING COMPLAINT MISREPRESENTATIONS OMISSIONS REPRESENTATIVES PLAINTIFF SILLEMAN-MAGEE COMMUNICATIONS MANAGEMENT EXAMINATION SILLERMAN-MAGEE SILLEMAN AGREEMENT FINANCIAL CONDITION RECOVER DAMAGES ACCOUNTANTS ROBERT FISH DEFENDANT COOPERS OUTSTANDING INDEBTEDNESS IRREGULARITIES SIGNIFICANT INJURY COUNTY PUBLIC ACCOUNTANTS HOWARD TYTEL |
r) 0 *
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
S I L L E W - M A G E E COMMUNICATIONS V E R I F I E D
MANAGEMENT CORPORATION, COMPLAINT
Plaintiff,
Index No.
-V-
COOPERS & LYBRAND, Certified
Public Accountants,
Defendant.
Plaintiff Silleman-Magee Communications Management
Corporation ( glSilleman -Magee " )r by its a t t o r n e y s , Simpson
Thacher & B a r t l e t t (a p a r t n e r s h i p which includes p r o f e s s i o n a l
corporations), as and f o r its complaint h e r e i n , alleges upon
knowledge as t o itself and its own acts and upon information and
belief as to o t h e r matters as follows:
Nature of the Action
1. This action f o r common law professional negligence
and fraud arises out. of events leading up to the purchase by
Silleman-Magee of the outstanding debt of Jones-Eastern Radio,
Inc. and its affiliated-companies ( t h e ''Jones Eastern Companies")
owed t o the Bank of New England ( tlBNEI 1) on May 21, 1990. At the
re.quest of BNE, Silleman- Magee agreed to purchase the Jones
Eastern Companies' outstanding debt t o BNE in the approximate sum
Of $8,700,000 f o r a discounted purchase price of $ 6 , 0 0 0 , 0 0 0 .
Silleman- Magee agreed to purchase t h e debt, relying to a
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