The proposed order linked a few posts down has been signed by Judge Boyle.
See Ted’s comment for some good analysis.
Is the 12(c) judgement still in play? I’d have to say yes. One notable doc we saw Monday was the one linked above where both parties agreed to a discovery timeline. That motion was granted. The other notable doc was the Trust’s dispute of the validity of a 12(c) motion for judgement on the pleadings. We have not had a ruling on that yet (or at least I’m not aware of one).
Warning, I’m not a lawyer; way out of my element.
4 thoughts on “Discovery Timeline for Declaratory Judgement + Injunction Set”
And with these new filings. we have new dates for the legal processes, agreed to by HK/Softvest/Oliver (Counterclaim Plantiffs) and the Trustees (Counterclaim Defendants), and signed by Judge Boyle.
It appears Judge Boyle believes some discovery process is necessary before having the hearing and ruling on the motion for a declaratory judgement and injunction, so the earlier timeframes are no more. This is why federal cases can take years just to get to trial. Also, this is just a specific discovery stage. If the motion is not successful by the Counterclaim Plantiffs, there will be a much larger discovery process in the future.
New dates to track:
o Identified discovery documents for both Counterclaim Plantiffs and CounterClaim Defendants are due by July 30th.
o Depositions of four CounterClaim Plantiffs, Eric Oliver, Murray Stahl, Jay Kesslen, and Alan Tessler are to be held August 6-16. Depositions of CounterClaim Defendants are to be held the same time period.
o CounterClaim Defendants have until August 30th to file fheir final objections to the motion taking into account what they have learned in discovery.
o Counterclaim Plantiffs have until September 13th to file their final arguments in support of their motion, also taking into account what they have learned in discovery.
o Court hearing on the motion to be held September 25-26.
If the CounterClaim Plantiffs prevail, or mostly prevail, the case could be effectively over. If the do not, its likely to grind on for years. Its also worth observing that the depositions might yield some very damning facts, now under oath for either side, which then could work wonders in getting an out of court negotiated settlement.
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Thanks again Ted for helping us translate this. Here’s what I don’t understand that I would like to get some clarity: is the 12c decision still going to be coming up early August?
What it seems to me is that we have two separate things going by Softvest Group, et al and that is the 12c to dismiss the lawsuit, and not allowing discovery on that case until the Judge rules on the 12c. That would be a huge win for Softvest.
The second big thing, is the counterclaim for judgement on whether or not Barry should be sitting as a trustee due to the concerns of how he was elected to begin with due to it being a non-routine meeting. The way that I’m reading all of this, is that we are still waiting for the judges motion on the 12c. This recent timeline appears to me that it is for the amended counterclaim that is trying to get a ruling on whether or not Barry was elected properly. On this part of the lawsuit, it seems as though discovery is going to have to happen and that’s what the timeline is for. One huge piece that I noticed is that a representative from the NYSE will be requested for a testimony, which I would think is sotvest’s advantage… another huge piece is that Softvest wants all documents regarding the election and all of the votes from Barry’s election. Am I seeing this right? Someone please help clarify!
Lastly, the answer that the trustees had in the 54 page response appears to me as though it’s just a bunch of random darts that side is trying to hit and just praying that something hits. Ted previously alluded to this. When I was reading all of the points, there is a multitude where I’m thinking that they are just factually inaccurate by trying to cut/paste certain things and not putting the sentence or two before or after that point which would show how they are wrong… that and minimal evidence to substantiate a multitude of their claims. Any and all feedback and responses are greatly appreciated.
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Like TPLBlogger, I am not a lawyer, and the closest I got to law school was attending my brother’s law school graduation decades ago. (None of my comments should be construed as legal advice. Not FDIC insured. Batteries not included. Your mileage may vary. Sorry, my lawyer brother said I had to disclose this. LOL)
Since there are some questions on 12(c), here is hopefully something that helps. Apologies since its going to be long. My brother says in this case 12(c) is simply the Federal rules for responding to a lawsuit that may have few merits.
The original lawsuit was alleging Federal Securities violations and filed by the trustee Plantiffs. HK/Softvest/Oliver have pushed back on the original complaint with the 12(c) defense, essentially saying its bogus and the Plantiff has not asserted enough to meet the standard for a Federal Securities lawsuit. Judge Boyle issued a stay on any discovery on the Federal Securities suit only. There is a discovery process underway on the more limited declaratory judgement CounterClaim. This is still an outstanding Federal Securities lawsuit, with a 12(c) defense, with no planned court hearings yet.
Then HK/Softvest/Oliver filed a Counterclaim, asking for both a Declaratory Judgement and Injunctive relief. This and the 12(c) path have put the Trustees legal team on the defensive.
A declaratory judgment is a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. By seeking a declaratory judgment, the party making the request is seeking for an official declaration of the status of a matter in controversy. A declaratory judgment is binding but is distinguished from other judgments or court opinions in that it doesn’t provide a method of enforcement.
And this is where the Injunctive relief comes in. If the court finds in favor of HK/Softvest/Oliver, they can also then decide if Trustee Barry was correctly elected, and if until Oliver is seated on the board, no substantial decisions be made by the Trustees. The key here is you have to win on the declaratory judgement to then have a chance for the Judge to rule on your injunctive requests.
The advantages of having a declaratory judgement is it will sort out what is real, were any rights stepped on, and who is right or wrong. HK/Softvest/Oliver are using this to cut through the legal smokesceen to essentially tear apart the Plantiffs case and the legality of the 11th hour lawsuit to stop the election. And to have Judge Boyle hear this by late September, instead of a year or two from now.
With legal decisions made on the Declaratory Judgement and Injunctive relief motion, the Federal Securitues case and the 12(c) motions become the next venue for controversy. A strong win on the declaratory judgement and injunctions by HK/Softvest/Oliver would make it likely they would prevail, with the case dismissed. A split victory could mean a year or so of discovery processes and depositions and then a civil federal trial. Thats why its 22 months on average to trial, if a case gets to trial.
More likely is from the declaratory judgement and 12(c) decisions will come a negotiated settlement, as the strengths and weaknesses of positions are revealed. Remember only about 10% of filed federal cases ever land before a judge at trial.
Hope this helps explain the moving pieces of the case.
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This is super helpful. Thank you. It does provide a lot of clarity. And I know that you aren’t a lawyer, as you have stated this before! I’m not a lawyer either so don’t ever take anything I say remotely close to legal advice. I’m the first to admit that I’m ignorant on all of this. Please know your commentary is greatly appreciated. Thanks again.
Until the next motion……
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