Leonard Cohen's Opposition to Plaintiffs Motion for Attorneys Fees

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&%3D%)-

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05-CV-01233-LTB-MJW NATURAL WEALTH REAL ESTATE, INC., a/k/a Greenberg & Associates, Inc., d/b/a Agile Advisors, Inc., a Colorado corporation; TACTICAL ALLOCATION SERVICES, LLC, d/b/a Agile Allocation Services, LLC, a Colorado limited liability company; AGILE GROUP, LLC, a Delaware limited liability company; GREENBERG & ASSOCIATES SECURITIES, INC., d/b/a Agile Group, a Colorado corporation; and NEAL R. GREENBERG, a Colorado resident, Plaintiffs and Defendants-on-counterclaim, v.

LEONARD COHEN, a Canadian citizen residing in California; KELLEY LYNCH, a United States citizen residing in California; and JOHN DOE, Nos. 1-25, Defendants, and, LEONARD COHEN, a Canadian citizen residing in California, Counterclaim Plaintiff, v.

TIMOTHY BARNETT, a Colorado citizen, Counterclaim Defendant.

LEONARD COHEN’S OPPOSITION TO PLAINTIFFS’ AND BARNETT’S MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-%3D%)-

TABLE OF CONTENTS TABLE OF CONTENTS ……………………...………………………………….……. i I.

INTRODUCTION …...…………..………………………………………..…… 1

II.

PLAINTIFFS, WHO INITIATED THIS LITIGATION, HAVE NEITHER PREVAILED NOR BEEN EXEMPT FROM THE COURT’S CRITICISM ………………………………………………………... 3

III.

THE COURT SHOULD DENY PLAINTIFFS’ REQUEST FOR SANCTIONS AND ATTORNEYS’ FEES UNDER COLO. REV. STAT. §13-17-101 ET SEQ. BECAUSE THE STATE’S STATUTE IS PREEMPTED BY RULE 11 ……….…………………………... 5

IV.

THE COURT SHOULD DENY PLAINTIFFS’ REQUEST FOR SANCTIONS UNDER FED.R.CIV.P. 56(g) BECAUSE THE ALLEGEDLY OFFENDING AFFIDAVITS DID NOT PREJUDICE THE OUTCOME OF PLAINTIFFS’ SUMMARY JUDGMENT MOTION ……………………………………………………….………………. 7 A. Adjudication of Plaintiffs’ Motion for Summary Judgment Was Not Delayed By the Allegedly Offending Rule 56(f) Affidavit, Nor Did the Consideration of Cohen’s Affidavit Prejudice the Favorable Disposition of Plaintiffs’ Summary Judgment Motion ……....…. 8 B. Plaintiffs Have Not Delineated What Portion of Their Requested Fees and Costs are “Reasonable Expenses Which the Filing of the Affidavits Caused the Other Party to Incur” As Required by the Language of Rule 56(g) ………………………………....... 9

V.

THE COURT SHOULD ALSO DECLINE TO AWARD PLAINTIFFS ANY FEES OR COSTS UNDER ITS INHERENT AUTHORITY ………………………………………………………………… 10 A. Legal Standard for Application of the “Bad Faith” Exception To the American Rule …………………………………………...…...…… 10 B. Awarding Plaintiffs Sanctions Against Cohen Under The Court’s Inherent Authority Would Not Further “Dominating Reasons of Justice.” ………………………………………………………. 11 1.

Plaintiffs Have Not Met Their Burden to Establish Cohen’s “Bad Faith” as a Basis for Fee Shifting …………………. 11

i

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.%3D%)-

a. Cohen’s Pursuit of Tort Counterclaims Does Not Merit An Award of Sanctions Under the Court’s Inherent Power …………………………………… 13 b. Cohen’s Motion for Leave to File Certificate of Review ……………………………………...………….. 17 c. Cohen’s Motion for Leave to Amend …………………….. 18 d. Cohen’s Opposition to Plaintiffs’ Motion for Summary Judgment ………………………………………. 19 e. Cohen’s Litigation Conduct Does Not Merit Sanctions Under This Court’s Inherent Powers …………………………………………………….. 23

VI.

2.

Plaintiffs’ Own Bad Faith Litigation Conduct Justifies a Denial of An Award of Requested Fees and Costs …………..…. 24

3.

Plaintiffs Unnecessarily Sought to Multiply and Delay These Proceedings to Impose Significant and Unnecessary Costs Upon Cohen and Kory ……………………….. 31

PLAINTIFFS CANNOT SEEK INDEMNITY UNDER EITHER THE LPA OR THE SA AGAINST COHEN ……………………………..….. 33 A. Plaintiffs Did Not Plead Claims for Indemnification …………………….. 34 B. The Court Cannot Hold Cohen Liable Under the LPA or the SA Because Cohen is Not a Party to Either of Those Contracts ………...……. 36 C. The Court Cannot Enter a Judgment for Indemnity Against Traditional Holdings Under the LPA or the SA Because Traditional Holdings is Not a Party to this Case ……………………..…… 39 D. Plaintiffs Have Not Demonstrated an Indemnifiable Loss Under the LPA or the SA Because Plaintiffs Do Not Have a Claim For Indemnity to the Extent Their Insurer Paid the Litigation Costs, And Plaintiffs Have Failed to Identify What Amounts They, As Opposed to Their Insurer, Paid …………………………...………………. 39 E. Plaintiffs’ Claim Under the LPA Fails for the Additional Reason That Agile Safety Fund, LP—Not Cohen—Is The Indemnitor Under Section 3.04(b) of the LPA, and No Judgment for Indemnity Against Agile Safety Fund Exists ……………………….…….. 40

ii

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%E%3D%)-

F. Plaintiffs’ Claim Under the SA Fails for the Additional Reason That Plaintiffs Have Not Sufficiently Demonstrated the Existence of Events That Give Rise to an Indemnity Obligation ………………….… 43 1.

Plaintiffs Do Not Provide Competent Evidence to Support Their Claims Under the SA ………………………….……………. 44

2.

None of the Actions Identified By Plaintiffs Give Rise to An Indemnity Obligation Under the SA ………..………………… 44

VII.

THE COURT SHOULD NOT AWARD ATTORNEY FEES OR COSTS AGAINST COHEN UNDER ANY OF PLAINTIFFS’ THEORIES, BUT IF IT DOES, PLAINTIFFS SHOULD RECOVER SUBSTANTIALLY LESS THAN THE $294,618.25 IN FEES SOUGHT; THE AMOUNTS CHARGED ARE UNREASONABLE ……….. 46

VIII.

CONCLUSION …………………………………………………………..…… 47

iii

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%)%3D%)-

Defendant and Counterclaim Plaintiff, Leonard Cohen (“Cohen”) hereby submits his Memorandum in Opposition to Plaintiffs’ and Barnett’s Motion for Award of Attorneys Fees and Costs.

I.

INTRODUCTION After filing a lawsuit against Cohen which this Court has called a “pre-emptive suit,”1

and thereafter having all but one2 of their ten claims dismissed pursuant to either FED.R.CIV.P. 12(b)(6)3 or FED.R.CIV.P. 41(a)(2)4, Plaintiffs, audaciously declaring themselves to be “prevailing parties,”5 now move for attorneys’ fees against Cohen.

Plaintiffs seek fees for seven discrete filings which Plaintiffs claim are the result of the purportedly “frivolous, dilatory, and vexatious” litigation conduct of Cohen and his lawyers.

(Plaintiffs’ Motion for Award of Fees and Costs, ¶ 49(a)-(g), p. 23, hereinafter, “Motion”).

Notable at the outset is that the appropriate procedure to address Cohen’s alleged litigation misconduct, would have been to file one or more timely motions in conformity with the “safe-harbor” provisions of FED.R.CIV.P. 11. At no time during the course of this threeyear litigation, however, have Plaintiffs ever served a proposed motion for sanctions upon

1

See Order (Dec. 4, 2006), Natural Wealth Real Estate, Inc. v. Cohen, 2006 WL 3500624 *6 (D. Colo.

2006).

2 Plaintiffs’ interpleader claim between Cohen and Lynch as to the ownership of the remaining Traditional Holdings funds is Plaintiffs’ sole surviving claim. Plaintiffs opposed Cohen’s Motion for Summary Judgment as to this claim and the Court has yet to rule upon Cohen’s motion.

3 See Dec. 4, 2006 Order dismissing Plaintiffs’ claims for intentional interference with a prospective business relation, civil extortion, civil conspiracy and violation of and conspiracy to violate COCCA. (Doc. No. 131).

4 See June 2, 2008 Order dismissing Plaintiffs’ claims for defamation, commercial disparagement, unjust enrichment, declaratory judgment and injunction with prejudice under FED. R. CIV. P. 41(a)(2). (Doc. No. 205).

5 See Plaintiffs’ Motion to Dismiss Certain Claims Pursuant to Fed. R. Civ. P. 41(a)(2) wherein Plaintiffs’ proclaim: “after three years of extensive motion practice, Plaintiffs have prevailed.” (Doc. No. 194, ¶ 7.).

1

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%F%3D%)-

Cohen’s counsel to challenge either a pleading or a motion for which they now seek punitive sanctions.6 In their Motion, Plaintiffs seek to shift $294,618.25 of their attorneys’ fees and $13,947.67 of their costs onto Cohen under four separate theories: (i) Colorado Revised Statute §13-17-101 et seq.; (ii) FED.R.CIV.P. 56(g); (iii) the inherent authority of the Court to award fees as a sanction on an equitable basis for “dominating reasons of justice”; and (iv) the indemnity provisions of the Agile Safety Fund, LP Limited Partnership Agreement (“LPA”) and the Subscription Agreement (“SA”) between Traditional Holdings, LLC and Agile Group, LLC. Each of these arguments fail either as a matter of law or as a result of Plaintiffs’ failure to show how Cohen’s litigation conduct is subject to punitive sanctions.

Further, given Plaintiffs’ appeal to this Court’s equitable inherent power to sanction misbehaving litigants, it becomes incumbent on Cohen to advise the Court of Plaintiffs’ own bad faith conduct—not to pursue Cohen’s own motion for fees—but rather to counter Plaintiffs’ wholly one-sided and misleading rendition of the facts.

Cohen opposes Plaintiffs’ Motion on six separate grounds. First, Plaintiffs’ effort to characterize themselves as prevailing parties, and Cohen as the sole party castigated by the Court for prolix motions and dilatory tactics, is simply wrong on the face of the record.

Second, Plaintiffs’ appeal to Colorado Revised Statute §13-17-101 et seq. is misguided because in a federal diversity action, the State’s statute is preempted by FED.R.CIV.P. 11.

Third, Plaintiffs’ request for sanctions under FED.R.CIV.P. 56(g) is inappropriate because Plaintiffs have not shown how the allegedly offending affidavits prejudiced the outcome of

6

Plaintiffs (through Scheid) first notified Cohen’s counsel of Plaintiffs’ intention to file a motion for fees and sanctions on May 20, 2008, two days before Plaintiffs’ response to Cohen’s Motion for Summary Judgment was due. (Exhibit A-1.). Plaintiffs filed their Motion a day later on May 21, 2008. (Doc. Nos. 197, 199).

2

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%<%3D%)-

Plaintiffs’ Motion for Summary Judgment. Fourth, with respect to Plaintiffs’ invitation for this Court to invoke its inherent power to sanction Cohen, Plaintiffs have failed to show that Cohen’s conduct meets the applicable Tenth Circuit test for bad faith in this context; and Plaintiffs have conveniently omitted to call the Court’s attention to their own bad faith litigation conduct which would preclude recovery of fees and costs under the equitable “unclean hands” doctrine. Fifth, Plaintiffs’ claims under the LPA and SA fail because, among other reasons, they are unpled and because Cohen is not a party to either contract.

Finally, if the Court elects to award fees, it should award an amount far less than Plaintiffs request; the fees charged are unreasonable.

II.

PLAINTIFFS, WHO INITIATED THIS LITIGATION, HAVE NEITHER PREVAILED NOR BEEN EXEMPT FROM THE COURT’S CRITICISM Throughout the course of this litigation, the Court has consistently characterized both

parties’ litigation conduct as unnecessarily fractious and vexatious. In their efforts to pursue attorney fees under various theories, Plaintiffs attempt to characterize Cohen as the sole source of this misbehavior. They meticulously document all of the perceived favorable language culled from the Court’s previous Orders in an effort to portray Cohen’s and his attorneys’ litigation conduct as solely deserving of this Court’s invoking its inherent power to sanction. (Motion, at pg. 4).

A closer (and more accurate) examination of the record, however, reveals that the Court has chastised both parties for their litigation conduct. Early in the litigation, the Court noted the “fractiousness” of the litigants and the attorneys’ inability “to agree on anything.”

Order (Dec. 4, 2006), Natural Wealth Real Estate, Inc. v. Cohen, 2006 WL 3500624 *1 (D. Colo. 2006). The Court even noted that the parties had filed a “plethora” of motions and asked at one point that no more motions— by either party— be filed. Id.

3

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%>%3D%)-

When ruling on Cohen’s Motion to Dismiss in December 2006, the Court observed that Plaintiffs’ eighty-six page Second Amended Complaint (the “SAC”) contained “extraneous and salacious content.” Id. As the litigation wore on, the Court in its February 21, 2008 Order granting Plaintiffs’ Motion for Summary Judgment on Cohen’s contract counterclaim noted that Plaintiffs’ complaint contained “considerable extraneous and salacious content.” Order (Feb. 21, 2008), Natural Wealth Real Estate, Inc. v. Cohen, 2008 WL 511761 *1 (D. Colo. 2008)(emphasis supplied).

In its January 23, 2007 Order, the Court chastised both parties— Plaintiffs and Cohen— “for historically induc[ing] a ‘wasteful expenditure of resources by [the] court [] and litigating parties.” Order (Jan. 23, 2007), Natural Wealth Real Estate, Inc. v. Cohen, 2007 WL 201252 *4 (D. Colo. 2007). The Court further admonished both parties: “before filing any more motions, the parties would be well-advised to examine my numerous orders in this case and to avoid issues previously culled.” (Id.) (emphasis supplied.)

The Court in its October 26, 2007 Order denying Cohen’s Motion for Leave to Amend, found that both parties had engaged in vexatious litigation conduct: “after consideration of the parties’ circumlocutory, prolix, and splenetic papers” and found that “both parties insist on pursuing obfuscatory tactics to postpone the resolution of this matter on the merits.” Order (Oct. 26, 2007)(emphases supplied)(Doc. No. 175).

The Supreme Court found in Chambers v. NASCO that the imposition of sanctions under the Court’s inherent powers “depends not on which party wins the lawsuit, but on how the parties conduct themselves during litigation.” Chambers v. NASCO, Inc., 501 U.S. 32, 53 (1991). Thus, sanctions can be awarded for the bad faith conduct of either party in litigation.

Because the “underlying rationale of ‘fee shifting’ is, of course, punitive,” Chambers, supra,

4

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%G%3D%)-

501 U.S. at 53, it would be inequitable and not in furtherance of “dominating reasons of justice” to punish Cohen, given Plaintiffs’ own misconduct.

III.

THE COURT SHOULD DENY PLAINTIFFS’ REQUEST FOR SANCTIONS AND ATTORNEYS’ FEES UNDER COLO. REV. STAT. §13-17-101 ET SEQ. BECAUSE THE STATE’S STATUTE IS PREEMPTED BY RULE 11 Plaintiffs move pursuant to COLO. REV. STAT. § 13-17-101 et seq. for sanctions and

attorneys’ fees, asserting that Cohen’s pursuit of tort and contract counterclaims, motion to file a late certificate of review, motion for leave to amend and opposition to Plaintiffs’ motion for summary judgment were substantially frivolous, substantially groundless and/or substantially vexatious within the meaning of C.R.S. § 13-17-102(4). (Motion § IV (A-C), at pp. 24-31)(Doc. No. 199.).

The Court should deny Plaintiffs’ request for sanctions under C.R.S. § 13-17-101 et seq. because the Colorado statute does not provide a basis for recovery of attorneys’ fees and expenses in a federal diversity action. Hantz Air, LLC v. J. Mesinger Corp. Jet Sales, Inc., 2007 WL 1520106 *1 (D.Colo. 2007). In federal diversity actions, as here, courts refuse to apply Colorado’s sanctioning statute because “to the extent COLO.REV.STAT. §13-17-101 et seq. is inconsistent with the procedural safe-harbor provisions of Rule 11, it is preempted.”

Spratt v. Leinster, 2007 WL 2412826 *1 (D.Colo. 2007) (citing to McCoy v. West, 965 F. Supp. 34, 35 (D.Colo. 1997) (finding that “a federal district court in a diversity case is neither required, nor indeed permitted, to apply state law to a matter covered by a Federal Rule of Civil Procedure.”).

An important distinction between the federal and state statutes is that Rule 11 includes a “safe-harbor” provision not included within the Colorado statutes. See McCoy, 965 F. Supp. at 36; see also, FED.R.CIV.P.11(c)(1)(A). Rule 11(c)(1)(A) provides that a

5

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&(%3D%)-

motion for sanctions may not be filed with the court until 21 days after it has been served upon the opposing party and only if the opposing party has not withdrawn the challenged allegation or paper. Id. The language of the Rule requires that a request for sanctions must be made as a separate motion, not simply included as an additional prayer for relief in another motion. Roth v. Green, 466 F.3d 1179, 1192 (10th Cir. 2006). The Rule also requires a copy of the motion be served on the adverse party; a letter alone is insufficient to satisfy the notice requirements of subsection (c)(1)(A). Id. The Tenth Circuit has found that the safe-harbor provisions of Rule 11 were intended to: protect[ ] litigants from sanctions whenever possible in order to mitigate Rule 11’s chilling effects, formaliz[e] procedural due process considerations such as notice for the protection of the party accused of sanctionable behavior, and encourag[e] the withdrawal of papers that violate the rule without involving the district court.

Roth, 466 F.3d at 1192 (citing 5A Charles Alan Wright and Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1337.2, at 722 (3d ed. 2004)). Further, courts have also rejected motions for sanctions after a district court has dismissed a claim or granted summary judgment because it “prevents giving effect of the safe harbor provision or the policies or procedural protections it provides.” Roth, 466 F.3d at 1193 (and cases cited therein).

The matters for which Plaintiffs now seek sanctions under Colo.Rev.Stat. § 13-17101 et seq. are squarely within the scope of the subject matter addressable by the Federal Rule. Steinert v. Winn Group, Inc., 440 F.3d 1214, 1223 (10th Cir. 2006) (“Rule 11 focuses only on a challenged pleading or written motion.”). But at no prior time during the course of this nearly three-year litigation did Plaintiffs’ counsel ever serve Cohen’s counsel with a copy of a proposed motion for sanctions under FED.R.CIV.P. 11(c)(1)(A) challenging

6

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&&%3D%)-

Cohen’s counterclaims, motions or pleadings as frivolous, groundless or vexatious.7 This fact is determinative. To quote from a recent decision in the District of Colorado: “if Defendant’s legal positions were as abusive as Plaintiff[s] make them out to be, [they] w[ere] free to file a timely motion for sanctions under Rule 11.” Wind v. Aegis Security Ins. Co., 2007 WL 2045504 *1 n.1 (D.Colo. 2007) (denying motion for attorneys fees brought under C.R.S. §13-17-101 et seq. and 28 U.S.C. §1927 because Defendant could have, but failed, to bring a timely motion under Rule 11 for the allegedly offending conduct.) (emphasis in original).

Because Plaintiffs had ample opportunity during the course of this litigation to challenge Cohen’s counterclaims and pleadings under Rule 11, but did not, their Motion for Fees and Costs brought under C.R.S. §13-17-101 et seq. should be denied.

IV.

THE COURT SHOULD DENY PLAINTIFFS’ REQUEST FOR SANCTIONS UNDER FED.R.CIV.P. 56(g) BECAUSE THE ALLEGEDLY OFFENDING AFFIDAVITS DID NOT PREJUDICE THE OUTCOME OF PLAINTIFFS’ SUMMARY JUDGMENT MOTION Plaintiffs also seek sanctions pursuant to FED.R.CIV.P. 56(g) for Cohen’s affidavit

and Horowitz’s Rule 56(f) affidavit submitted in support of Cohen’s Opposition to Plaintiffs’ Motion for Summary Judgment on Cohen’s First Counterclaim. (See Motion, at § IV (C)).

Plaintiffs allege that Cohen submitted these affidavits in “bad faith” within the meaning of Rule 56(g). (Id., at pg. 29.) As a basis for seeking sanctions for Horowitz’s affidavit, Plaintiffs point to the Court’s Order denying Cohen’s request to delay the adjudication of the summary judgment motion because it found the 56(f) affidavit “inexplicably late.” (Id., at pg. 30.) As a basis for its request for 56(g) sanctions for Cohen’s affidavit, Plaintiffs list 7

Plaintiffs asserted C.R.S. § 13-17-101 et seq. as an “affirmative defense” to Cohen’s counterclaims. (Pls. Reply to Counterclaims, Aug. 10, 2006, Doc. No. 112, Affirmative Defense No. 31). In federal diversity actions, the state’s statute is preempted. Rule 11 has been found to govern frivolous, groundless and vexatious conduct in federal district courts.

7

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&-%3D%)-

alleged factual discrepancies and “contradictions” in Cohen’s affidavit and various pleadings submitted in this litigation (including a Proposed Amended Counterclaim, see ¶ 44(c)) as well as in Cohen’s NASD Statement. (Motion, at §IV (K), ¶¶ 43-44(a)-(e)).

A.

Adjudication of Plaintiffs’ Motion for Summary Judgment Was Not Delayed By the Allegedly Offending Rule 56(f) Affidavit, Nor Did the Consideration of Cohen’s Affidavit Prejudice the Favorable Disposition of Plaintiffs’ Summary Judgment Motion

Sanctions under Rule 56(g) are proper only if the affidavit is submitted in bad faith and prejudices the disposition of the summary judgment motion. See Jaisan, Inc. v. Sullivan, 178 F.R.D. 412, 417 (S.D.N.Y. 1997) (finding that “Plaintiffs’ conduct herein, while far from exemplary, was simply not of the type which has been found to warrant an award of attorneys’ fees under Rule 56(g)…even if it were ‘egregious’…it did not affect the outcome of the case and Rule 56(g) sanctions would be inappropriate for that reason.”); Faberge v.

Saxony Products, Inc., 605 F.2d 426, 429 (9th Cir. 1979) (Rule 56(g) sanctions not applied where affidavit did not prejudice disposition of motion even if court assumed it was submitted in bad faith.); United Energy Corp. v. United States of America, 622 F. Supp. 43, 47 (N.D.Cal. 1985) (finding that even though challenged declaration “unquestionably contained factual errors…[] failure to recall accurately the events as they occurred, however, does not constitute ‘bad faith’…no matter what version of the facts is employed, the United States is entitled to summary judgment.”).

Here, the allegedly offending affidavits of Cohen and Horowitz did not prejudice the outcome of Plaintiffs’ Motion for Summary Judgment—Plaintiffs won the summary judgment motion. Therefore, even if the Court were to agree with Plaintiffs’ argument that the two offending affidavits were submitted in bad faith, the award of attorneys’ fees under Rule 56(g) would be inappropriate.

8

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&.%3D%)-

B.

Plaintiffs Have Not Delineated What Portion of Their Requested Fees and Costs Are “Reasonable Expenses Which the Filing of the Affidavits Caused the Other Party to Incur” As Required by the Language of Rule 56(g)

Even if the Court were to find the allegedly offending affidavits sufficiently egregious to merit award of sanctions under Rule 56(g), Plaintiffs would not be entitled to recover all of their requested attorneys’ fees and costs for the Reply brief on the Motion for Summary Judgment as to Cohen’s First Counterclaim ($69,519.25 in fees and $3,880.36 in costs), but rather only “the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney’s fees” as the language of the Rule requires. FED.R.CIV.P. 56(g); (Motion, at § III (M), ¶ 49 (g), pg. 23); See Jaisan, 178 F.R.D. at 417 n. 3 (finding that “if Sullivan’s motion were granted, the attorney’s fees recoverable would be de minimis in any event. The only expenses arguably necessarily incurred by Sullivan as a result of the conduct of plaintiff…appear to have been those associated with simply pointing out again in his reply memorandum that plaintiff’s charter had been revoked and reiterating the arguments already set forth in his moving papers.”).

Thus, Plaintiffs would be entitled to— at most— fees and costs associated with preparing those portions of the Reply brief devoted to pointing out the alleged factual discrepancies and “contradictions” within Cohen’s affidavit proffered in opposition to Plaintiffs’ Motion for Summary Judgment on Cohen’s First Counterclaim and in opposing Cohen’s 56(f) request for a stay pending discovery. Plaintiffs, however, have not done the work of itemizing those fees and costs that relate to that work only. Instead they improperly ask for their fees and costs for the entire Reply. Therefore, the Court should deny Plaintiffs’ request for fees and costs under 56(g) on this additional basis. (Motion, at § III M, ¶ 49(f)(g), p. 23; Posel Aff. ¶ 5(d); Given Aff. ¶ 5(g); Scheid Aff. ¶ 5(g)).

9

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&E%3D%)-

V.

THE COURT SHOULD ALSO DECLINE TO AWARD PLAINTIFFS ANY FEES OR COSTS UNDER ITS INHERENT AUTHORITY As an alternative basis for an award of the requested fees, Plaintiffs ask the Court to

exercise its equitable inherent power to sanction Cohen for filing his 1) Motion for Leave to Amend which Plaintiffs describe as “substantially frivolous, substantially groundless, and substantially vexatious within the meaning of C.R.S. §13-17-102(4)” and “represented bad faith subject to redress under the Court’s inherent authority” and 2) pursuit of his contract counterclaim which Plaintiffs describe as “substantially frivolous, substantially groundless, and substantially vexatious within the meaning of C.R.S. § 13-17-102(4)” and having involved the use of affidavits “submitted in bad faith within the meaning of Rule 56(g)” and “involved matters subject to redress under the Court’s inherent authority.” (Motion, at § IV(B-C), pp. 27-29).

A.

Legal Standard for Application of the “Bad Faith” Exception to the American Rule

Sanctions under the Court’s inherent power are appropriate when a party “has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers, 501 U.S. at 45-46.

This is the case when a party’s “entire conduct throughout the lawsuit evidenced bad faith and an attempt to perpetrate a fraud on the court,” id. at 51, and when a party attempts through “tactics of delay, oppression, harassment and massive expense to reduce plaintiff to exhaustive compliance.” Id. at 41. However, “[a] court must, of course, exercise caution in invoking its inherent power and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” Id. at 50. Further, when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the rules, the court ordinarily should rely on the rules rather than the inherent power. It

10

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&)%3D%)-

is in cases when “neither the statute nor the Rules are up to the task, [that] the court may safely rely on its inherent power.” Id. The Tenth Circuit has found that a “party acts in bad faith only when the claim brought “is entirely without color and has been asserted wantonly, for purposes of harassment or delay, or for other improper reasons.” Sterling Energy, Ltd. v. Friendly Nat’l Bank, 744 F.2d 1433, 1435 (10th Cir. 1984) (emphasis supplied) (holding that it was unable to affirm the award of attorneys’ fees because the district court failed to provide enough information from which it could determine that a finding of conscious wrongdoing was made.) The award of attorneys’ fees under the bad faith exception is punitive and can be imposed “only in exceptional cases for dominating reasons of justice.” U.S. Industries, Inc. v.

Touche Ross & Co., 854 F.2d 1223, 1241 (10th Cir. 1998) (emphasis supplied); see also, Autorama Corp. v. Stewart, 802 F.2d 1284, 1287 (10th Cir. 1986) (citing to Sterling, 744 F.2d at 1437.) “Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.” U.S. Industries, Inc., 854 F.2d at 1241 (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980)). Moreover, the Tenth Circuit has also cautioned that “the bad-faith exception to the general rule that attorneys fees may not be recovered requires more than a showing of a weak or legally inadequate case, and more than a finding of negligence, frivolity, or improvidence. It is a narrow exception indeed.”

Dreiling v. Peugeot Motors of Am., Inc., 850 F. 2d 1373, 1382-83 (10th Cir. 1988).

B.

Awarding Plaintiffs Sanctions Against Cohen Under The Court’s Inherent Authority Would Not Further “Dominating Reasons of Justice.”

1.

Plaintiffs Have Not Met Their Burden to Establish Cohen’s “Bad Faith” as a Basis for Fee Shifting

11

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&F%3D%)-

The party seeking the award of fees must demonstrate that the imposition of fees is required by dominating reasons of justice, showing that the opponent’s claim was entirely without color and undertaken for reasons of harassment or delay. Dreiling, 850 F.2d at 1373.

In the Tenth Circuit, the test for bad faith is conjunctive— it requires clear evidence of both a complete lack of color and an improper purpose. F.T.C. v. Kuykendall, 466 F.3d 1149, 1153 (10th Cir. 2006). Whether a bad faith exception applies turns on the party’s subjective bad faith. Id. at 1152.

In addressing the initial question of whether an action was “entirely without color,” the Tenth Circuit has said “we resist the urge to undertake a full merits review of the case.”

F.T.C. v. Freecom Comm., Inc., 401 F.3d 1192, 1201 (10th Cir. 2005). In determining whether an action is without color, the question is whether, viewed in light of the record evidence and underlying substantive law, the losing party’s claims lacked any legal or factual basis: A claim is entirely without color when it lacks any legal or factual basis. Conversely, a claim is colorable when it has some legal and factual support, considered in light of the reasonable beliefs of the [party] making the claim. The question is whether a . . . reasonable plaintiff . . . could have concluded that facts supporting the claim might be established, not whether such facts actually had been established. Thus, . . .we note that a claim that fails as a matter of law is not necessarily lacking any basis at all. A claim is colorable when it reasonably might be successful, while a claim lacks a colorable basis when it is utterly devoid of a legal or factual basis.

Id. In addition to the required finding that a claim is entirely without color, the Tenth Circuit also insists that the trial judge make a specific finding of bad intent or improper

12

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&<%3D%)-

motive by the misbehaving party before there can be an award of attorneys’ fees. Id. at 1200. a.

Cohen’s Pursuit of Tort Counterclaims Does Not Merit an Award of Sanctions under the Court’s Inherent Power

Plaintiffs challenge Cohen’s pursuit of tort counterclaims and the late certificate of review only as being “substantially frivolous and substantially groundless within the meaning of C.R.S. § 13-17-102(4).” (Motion, at § IV A, pp. 24-25). Because, as discussed above, the Colorado statute does not provide a substantive basis for relief in federal diversity actions, and Plaintiffs failed to challenge the tort counterclaims and the motion for the late certificate of review through a timely motion under FED.R.CIV.P.11, the Court for this reason alone should deny Plaintiffs’ request for sanctions.

Additionally, the Court should decline to sanction Cohen under its inherent power for his tort counterclaims because Plaintiffs have not proffered clear evidence that the dismissed tort claims meet both prongs of the conjunctive bad faith test— that is, the claims lacked color and they were brought with an improper motive. F.T.C. v. Kuykendall, 466 F.3d at 1153.

On June 30, 2006, Cohen filed his Answer to Plaintiffs’ Second Amended Complaint and asserted nine counterclaims against Plaintiffs. Cohen’s counterclaims included claims for breach of contract, breach of fiduciary duty, fraud, negligent misrepresentation, professional negligence, aiding and abetting breach of fiduciary duty, aiding and abetting fraud, negligence, and accounting. (Doc. No. 100). Plaintiffs’ Second Amended Complaint against Cohen included ten claims for relief: defamation, commercial disparagement, interference with prospective business advantage, quantum meruit/unjust enrichment, civil

13

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&>%3D%)-

extortion, civil conspiracy, violations of COCCA, injunction, declaratory judgment and interpleader. (Doc. No. 93).

Randall Livingston, Cohen’s Colorado counsel, drafted and filed Cohen’s counterclaims on behalf of Cohen. Livingston drafted Cohen’s counterclaims, in large part, from the factual analysis and statement of potential claims included in the April 10, 2005 claims letter Kory sent to Sherab Posel.8 The claims letter Kory sent Posel— in response to Posel’s invitation and repeated requests for a private mediation of Cohen’s claims against Plaintiffs— was drafted after Kory undertook an intensive five-month investigation of Cohen’s potential claims against Plaintiffs. Kory put “enormous effort into reviewing and organizing the evidence” and conducted “interviews with a ‘wide variety of people.’”

(Motion, at III A (1), pg.10.). Thus, Cohen’s counsel exercised reasonable inquiry into the factual and legal foundation of Cohen’s tort counterclaims.9 Plaintiffs filed a Motion for Judgment on the Pleadings on October 19, 2006 seeking dismissal of Cohen’s tort claims under the economic loss rule and for failure to file a timely certificate of review. (Doc. No. 122.) In the Court’s Order granting Plaintiffs’ Judgment on the Pleadings, the Court dismissed Cohen’s claims for negligence, professional negligence and breach of fiduciary duty for failing to file a timely certificate of review in compliance with COLO.REV.STAT. § 13-20-602 and the remainder of Cohen’s asserted tort claims (fraud, aiding and abetting breach of fiduciary duty, aiding and abetting fraud, negligent

8

The April 10, 2005 claims letter asserted Kory’s good faith belief, after diligent investigation of all the evidence available to him at the time, that in addition to state and federal securities claims, Cohen had potential tort claims for breach of fiduciary duty, common law fraud, and negligent misrepresentation against Plaintiffs. (Pls. Opp. to Kory’s Motion to Dismiss, Doc. No. 32, Exh. A.) These tort claims were asserted by Cohen as counterclaims in this action.

9 FED.R.CIV.P. 11 requires attorneys to make reasonable inquiry into both the facts and the law relevant to their pleadings and motions prior to signature.

14

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%&G%3D%)-

misrepresentation) under the economic loss rule. See Order (Jan. 23, 2007), Natural Wealth Real Estate, Inc. v. Cohen, 2007 WL 201252 (D.Colo. 2007).

The Court rejected Cohen’s argument that he should be able to plead his tort and contract theories in the alternative. (Id. at *6.) The Court found that “in the typical case, Mr. Cohen would be permitted to pursue alternative theories until summary judgment.” (Id.) (emphasis supplied.) However, because of Cohen’s prior motion practice, “Mr. Cohen has backed himself into a corner by filing motions – to compel arbitration, to dismiss the complaint, to dismiss the Second Amended Complaint, to file a late certificate of review – at every development of the pleadings.” (Id.) Plaintiffs argue that when Cohen filed his tort counterclaims in June 2006, “‘the law of the case’ had already established the 2002 Agreements as the governing documents” and that “there existed no rational argument to circumvent the economic loss rule.” (Motion, at pp. 26-27.) However, in its January 23, 2007 Order on Plaintiffs’ Motion for Judgment on the Pleadings, the Court declared “I will not revisit my previous ruling on the force and subject matter of the 2002 Agreements, which now comprises the law of the case [citation omitted] absent substantial and relevant evolution of the record.” Order (Jan. 23, 2007)(emphasis applied), 2007 WL 201252 *4. Thus, the Court left open the possibility that it would revisit its December 2005 ruling on the force and effect of the 2002 Agreements if the evidentiary record were to subsequently evolve through discovery, which had not been undertaken by either party.

The Court did not find that Cohen’s tort counterclaims dismissed in the January 23, 2007 Order for failure to file a certificate of review (negligence, professional negligence and breach of fiduciary duty) were lacking in color, or were interposed in subjective bad faith or

15

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-(%3D%)-

for an improper purpose. The Court, without passing upon the three claims’ legal or factual sufficiency, found that the claims must be dismissed through Cohen’s counsel’s inexcusable neglect for failing to comply with the procedural requirements of COLO.REV.STAT. §13-20602. Order (Jan. 23, 2007), 2007 WL 201252 *5 (D.Colo. 2007). Negligence is not sufficient to support a finding of bad faith. Dreiling, 850 F. 2d at 1382-83 (“the bad-faith exception to the general rule that attorneys fees may not be recovered requires more than a showing of a weak or legally inadequate case, and more than a finding of negligence, frivolity, or improvidence.”) (citing to Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir. 1981) (emphasis supplied).

Likewise, with respect to the remaining tort counterclaims dismissed under the economic loss rule, the Court found that because of the procedural posture of the case and the Court’s prior rulings, the “law of the case” doctrine subjected Cohen’s tort claims to dismissal prior to summary judgment, but did not find that Cohen’s tort counterclaims were filed for an improper purpose, the required second prong of the conjunctive bad faith test.

Order (Jan. 23, 2007), 2007 WL 201252 (D.Colo. 2007).

With regard to Cohen’s fraud counterclaim, the Court found that Cohen had identified “particular alleged omissions from periodic communications.” (Id. at *8). The Court’s statements regarding the factual inadequacies as to Cohen’s fraud counterclaim that Plaintiffs point out10 cannot be interpreted as a finding that Cohen acted with an improper purpose in

10

Plaintiffs point to the Court’s finding that “Cohen’s alleged communications pre-dating the 2002 Agreements were ‘irrelevant.’” (Pls. Motion for Fees and Costs, ¶ 24, p. 15.) Plaintiffs also point to the language in the Court’s January 23, 2007 Order regarding Cohen’s fraud allegations and claim that the Court “agree[d] that Mr. Cohen’s account seems implausible, yet stated: “I am obliged to accept all of his allegations as true, including the allegation that [Agile] divined that he would not receive the letters.” (Pls. Motion for Fees and Costs, ¶ 25, p.15.)(emphases in original).

It should be noted that Plaintiffs’ claim that “Cohen never did present evidence that Agile somehow ‘divined’ he would not receive them [the purported “warning” letters] is manifestly untrue. (Pls. Motion for

16

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-&%3D%)-

bringing this claim. F.T.C. v. Kuykendall, 466 F.3d at 1153 (“Our statements regarding the factual inadequacies in the FTC’s case do not shed light on whether the FTC subjectively acted with an improper purpose. In fact there is no evidence to suggest as much.”). Thus, the Court should decline to exercise its equitable inherent powers to sanction Cohen for the filing of his tort counterclaims. b.

Cohen’s Motion for Leave to File Certificate of Review

Plaintiffs cite to this Court’s Order denying Cohen leave to file a late certificate which found Cohen’s arguments “manifestly frivolous” and found that Cohen had provided only a “subjective, frivolous, and post facto justification” for not needing to file a certificate.

(Motion, at III E ¶¶ 19-20, pg. 14.) Cohen’s failure to file a timely certificate of review, while arguably an act of professional negligence and inexcusable neglect on the part of Cohen’s counsel, which redounded to Plaintiffs’ benefit, does not support a finding of subjective bad faith sufficient to invoke the Court’s inherent power to sanction. A finding of frivolity or negligence is not enough to merit sanctions. Dreiling, 850 F. 2d at 1382-83.

Further, the Court noted that if Cohen’s proffered certificate were allowed, Plaintiffs and Barnett “would not suffer prejudice as a result of the late filing.” Order (Dec. 27, 2006), 2006 WL 3833893 *1 (D.Colo. 2006).

Thus, the Court should decline to exercise its equitable inherent power to sanction Cohen for his counsel’s failure to file a certificate of review.

Fees and Costs, ¶ 25, p.15.) In Cohen’s Answer and Counterclaims, at paragraphs 25-26, Cohen pointed to an e-mail communication dated February 3, 2004 with Tim Barnett in which Lynch admitted that Cohen had not received the January 16, 2004 warning letter because Cohen was traveling and Lynch didn’t know when he would return. (Doc. No. 100, ¶¶25-26). Cohen also produced the February 3, 2004 e-mail as an exhibit to his affidavit in Opposition to Plaintiffs’ Motion for Summary Judgment (Cohen’s Opp. to Pls. Motion for Summary Judgment, Cohen Aff. ¶ 51, Exh. 37, Doc. No. 180.) (Exhibit A-2.).

If Plaintiffs knew Cohen did not receive the January 16, 2004 “warning letter” because he was traveling and Lynch advised Plaintiffs “I do not know when he will be back”, they could have suspected that there was also a chance that Cohen would not receive the subsequently sent June 25, 2004 “warning letter.”

17

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%--%3D%)-

c.

Cohen’s Motion for Leave to Amend

In the Order denying Cohen’s Motion for Leave to Amend, the Court found that: “both parties insist on pursuing obfuscatory tactics to postpone the resolution of this matter on the merits.” Order (Oct. 26, 2007)(emphasis supplied)(Doc. No. 175). Prior to filing his motion for leave to amend on May 10, 2007, Cohen had not previously sought amendment of his answer and counterclaims, whereas Plaintiffs had amended their complaint twice after Kory’s removal from the Boulder District court. (Id.) The Court’s reference to both parties’ “obfuscatory tactics to postpone the resolution of the matter on the merits” could equally apply to Plaintiffs’ Motion for Leave to File a Second Amended Complaint in February 2006. (Doc. No. 85). In that motion, Plaintiffs challenged this Court’s prior Order of December 4, 2005 dismissing all claims against Kory for lack of personal jurisdiction by attempting to reinstate three previously dismissed claims (outrageous conduct, civil conspiracy and extortion) and to add seven new ones against Kory.

Through Plaintiffs’ second amendment, Plaintiffs also successfully added seven new claims against Cohen which delayed Cohen’s filing of his Answer and Counterclaims by four months because Cohen and Kory were forced to file separate briefs opposing Plaintiffs’ Motion for Leave to Amend to File a Second Amended Complaint. Ultimately the claims added through Plaintiffs’ second amendment were either dismissed upon Cohen’s motion to dismiss under Fed.R.Civ.P.12(b)(6) for failure to state a claim upon which relief can be granted or were voluntarily dismissed with prejudice by Plaintiffs under FED.R.CIV.P. 41(a)(2) when faced with Cohen’s Motion for Summary Judgment. Plaintiffs’ attempt to reinstate three previously dismissed claims against Kory and to add seven additional claims against Cohen, including an ill-founded claim of criminal conduct under COCCA, all of

18

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-.%3D%)-

which were ultimately dismissed (with the exception of Plaintiffs’ interpleader claim between Cohen and Lynch), unnecessarily delayed the resolution of the case and unnecessarily increased the costs of this litigation.

Because the Court chastised both parties in its Order denying Cohen’s leave to amend for pursuing “obfuscatory” tactics to delay the resolution of the litigation, the Court should decline to exercise its equitable inherent power to sanction Cohen for his Motion for Leave to Amend his Answer and Counterclaims because of Plaintiffs’ own dilatory tactics. To sanction Cohen without also sanctioning Plaintiffs for unnecessarily delaying this proceeding would be inequitable and not in the furtherance of “dominating reasons of justice.” d.

Cohen’s Opposition to Plaintiffs’ Motion for Summary Judgment

Plaintiffs filed their Motion for Summary Judgment on May 4, 2007 after Cohen’s prior counsel, Jay Horowitz, sought to comply with Local Rule 7.1 to confer with Plaintiffs regarding Cohen’s intention to file a Motion for Leave to Amend Cohen’s Answer and Counterclaims. Horowitz and Peter Forbes of the Denver law firm Horowitz and Forbes, entered their appearance on behalf of Cohen prior to Plaintiffs filing their Motion for Summary Judgment. (Doc. Nos. 146, 147, 148.). In a transparent effort to cut-off Cohen’s opportunity for amendment and knowing that motions for leave to amend are subject to additional scrutiny following a summary judgment motion,11 Plaintiffs immediately filed for summary judgment on Cohen’s contract counterclaim on the same day Cohen’s new counsel entered their appearance. (See Motion, ¶ 29).

In dismissing Cohen’s tort counterclaims in its January 23, 2007 Order, the Court found that “Mr. Cohen is seeking tort damages for alleged conduct that constitutes a breach 11

In this Court’s Order denying Cohen’s Motion for Leave to Amend, the Court found that “motions to amend are subject to additional scrutiny when filed in response to a motion for summary judgment.” Order (Oct. 26, 2007)(Doc. No. 175).

19

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-E%3D%)-

of contract.” Order (Jan. 23, 2007), 2007 WL 201252 *9 (D.Colo. 2007). The Court in its Order granting Plaintiffs’ summary judgment as to Cohen’s contract counterclaim, did not find that Cohen’s breach of contract counterclaim, in a case which was framed as a breach of contract case through the Court’s prior rulings, lacked color, that is, it lacked any legal or factual basis, the first prong of the subjective bad faith test. The Court found that Cohen’s counsel had not marshaled the supporting evidence in the record or in Cohen’s various submissions (including the exhibits supporting Cohen’s affidavit) to defend his breach of contract counterclaim.12 Order (Feb. 21, 2008), 2008 WL 511761 *6 (D.Colo. 2008).

The Court found that Cohen “fail[ed] to offer any specific facts that support his contention that Plaintiffs should have disregarded Lynch’s authority or instructions” to “remodif[y]” Cohen’s alleged March 21, 2002 oral agreement with Greenberg to require the inclusion of details of the “loans.” (Id. at *5.) In Cohen’s Answer and Counterclaims, Cohen had alleged that Lynch told Greenberg in an e-mail dated January 23, 2003 to not report her self-dealing loans to Cohen, which was subsequent to her purported September 27, 2002 “directive” to Plaintiffs to not include the details of the “loans.”13 What is more, there was other evidence that Plaintiffs themselves produced as exhibits to their summary judgment motion that suggested that Plaintiffs knew (or at the very least suspected) that 12

The Court found that “while there may have been other “withdrawals of funds” Greenberg did not report to Cohen, it is the duty of Cohen – not the Court – to provide and point to evidence in the record supporting this position.” Order (Feb. 21, 2008), 2008 WL 511761 *6. Further, the Court strongly castigated Cohen’s counsel saying “It is not this Court’s task to comb through Cohen’s submissions in an effort to link alleged facts to his arguments.” (Id.).

13 Lynch told Greenberg in January 23, 2003: I need to borrow $100,000 from [the account] as well. I made $28,000 from Leonard last year and when he is back [from traveling in India] we will negotiate something because he is basically retired. I know I have taken another loan this year and both of these must stay on the statements as Shareholders Loans and not be deducted when Leonard receives his e-mails.

(Cohen’s Answer and Counterclaims, ¶ 21, Doc. No. 100, Pls. Motion for Summary Judgment, Exh. O, AG13441)(emphasis supplied).

20

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-)%3D%)-

Lynch was self-dealing, acting contrary to Cohen’s interests and without his authority when she requested that the loans she took for her benefit not be reported to Cohen.14 In particular, there was an e-mail from Greenberg to Lynch in August 21, 2003 in which Greenberg questioned Lynch about whether she had discussed the “loans” she made for her benefit from Traditional Holdings with Cohen: “I presume all of the loans have been discussed with him [Cohen] thus far. I don’t need to independently talk to him. Is that right?” (Exhibit A-4.).

(Pls. Motion for Summary Judgment, Exh. O, AG13257.) Lynch responded: “Dear Neal, That’s correct. All the best. Kelley.” Id. The first prong of the subjective bad faith test is to determine whether an asserted claim lacks color. F.T.C. v. Freecom Communs., Inc., 401 F.3d at 1201 (finding that “the question is whether a . . . reasonable plaintiff . . . could have concluded that facts supporting the claim might be established, not whether such facts actually had been established.”) (emphasis supplied). Further, “a claim that fails as a matter of law is not necessarily lacking any basis at all. A claim is colorable when it reasonably might be successful, while a claim lacks a colorable basis when it is utterly devoid of a legal or factual basis.” Id. 14

See, e.g., selected e-mail communications from Plaintiffs’ Motion for Summary Judgment Exhibit O, attached hereto as Exhibit A-3:

In an e-mail dated January 27, 2003, Lynch told Greenberg: “I’m desperate and need to know when I can write the check from Rydex. (Pls. MSJ, Exh. O, AG13429)(emphasis supplied).

The next day, on January 28th, Lynch writes: “Just let me know when I can write the check.

What’s the problem [sic] I’d be curious to know…What’s up? Is there a problem?” (Id. AG13426)(emphasis supplied).

In an e-mail to Barnett on February 20, 2003, Lynch writes: “The 100k is what needs to be discussed with Neal [Greenberg] and should be listed as Shareholder Loan and not deducted [from account balances in Cohen’s monthly e-mail reports] (Id. AG14569)(Cohen’s Opp. to Pls. Motion for Summary Judgment, Cohen Aff., Exh. 42.).

What is more, there was a cryptic reference to the need for a “side agreement” with Lynch: In an e-mail dated May 21, 2004, Barnett wrote Lynch in an e-mail with the subject line: “Disbursements going forward”: This will mean planning ahead as much as possible. In reviewing the withdrawal history of TH, the most that has been withdrawn in any given month is $295k. Accordingly, I suggest that $300k be wired to Rydex at the end of this month to cover. There will also be a special side agreement that we will have to send to you in connection with this request. Do you think $300k will be enough? (MSJ, Exh. O, AG13905)(emphasis supplied).

21

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-F%3D%)-

Cohen’s breach of contract claim ultimately failed because of a failure by counsel to marshal existing supporting evidence in the record to defend Cohen’s breach of contract claim, not because Cohen’s contract claim lacked legal or factual basis. Evidence existed in the record to support Cohen’s claim of breach(es) of the alleged March 21, 2002 agreement Cohen formed with Greenberg to report all withdrawals to Cohen in his monthly e-mails during the relevant time period framed by the Court in its February 21, 2008 Order.15 Thus,

15

The Court found that “excluding the time before Cohen’s March 20, 2002 “directive” and after Lynch’s September 27, 2002, “directive”, leaves a six-month period in which Plaintiffs could have breached a contract, had one existed.” Order (Feb. 21, 2008) Attached as Exhibit A-5 are two e-mails contained in Exhibit O of Plaintiffs’ Motion for Summary Judgment which support a claim of breach of the March 21, 2002 agreement with Greenberg during the March 21, 2002-September 27, 2002 time period.

On June 27, 2002 Lynch wrote to Bettsee Robertson an e-mail directing: for the sum of $150,000 to be sent, in a check to my address as below listed.

For Neal’s [Greenberg’s] records, I will put a copy of the promissory note in the mail tomorrow.”

The address Lynch gave was care of “Kelley Lynch, 419 N. Larchmont Blvd, #9, LA CA 90004.” (Exhibit A-5).

This disbursement of $150,000 from Traditional Holdings was not reported to Cohen in his July 2002 monthly e-mail report. (Cohen’s Opp. to Pls. Motion for Summary Judgment, Cohen Aff., Exh. 27).

In the e-mail Greenberg sent Cohen dated July 19, 2002 reporting upon the previous month’s account performance (the month which Lynch took the loan from Traditional Holdings), Greenberg wrote Cohen without reporting Lynch’s withdrawal of $150,000 to pay her personal income taxes: Good news for you. In spite of terrible market performance, we managed to show a modest profit of $3,988.

Current Balance: $5,876,435 Expenditures: $68,700 for trust distributions $44,000 for Promisory [sic] note payment (Exhibit A-5.).

Furthermore, there is no evidence that Lynch ever followed through on the promise of sending Neal Greenberg a “promissory note” for her loan to pay her personal income tax obligation to the IRS. In an e-mail dated September 4, 2002, Lynch told Greenberg: I need to take the profit [from Traditional Holdings] now; log it as part of the loan; and we’ll settle up when my commissions come in.

(Exhibit A-5.).

22

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-<%3D%)-

the first prong of the two-pronged conjunctive bad faith test is not met because there was some evidence supporting Cohen’s claim. The Court should decline to sanction Cohen for his breach of contract counterclaim. e. Cohen’s Litigation Conduct Does Not Merit Sanctions Under This Court’s Inherent Powers In sum, Cohen respectfully submits that his litigation conduct does not merit sanctioning under the Court’s inherent powers. Plaintiffs cite to the U.S. Supreme Court’s decision in Chambers v. NASCO, Inc., for the standard for invocation of a court’s inherent power to sanction a litigant for bad faith conduct. (Motion, at§ II. B, pg. 8.) The Chambers court found that the district court properly invoked its inherent power in awarding fees and costs to NASCO because Chambers’ bad faith conduct included a clear fraud perpetrated on the court, the fraudulent transfers of properties in defiance of a district court’s orders, and the extraordinary costs imposed on NASCO throughout the litigation. Chambers, 501 U.S. at 32.

Chambers’ conduct was found to be “fraudulent” and “brazenly unethical.” Id. at 58.

Chambers filed “a series of meritless motions and pleadings and delaying actions”, id. at 38, and ignored “repeated timely warnings…that his conduct was sanctionable.” Id. at 56.

This is hardly the case here, where Cohen’s litigation conduct did not involve “fraudulent and brazenly unethical efforts.” Perhaps Cohen’s litigation conduct for which Plaintiffs now seek sanctions could be described as a series of unfortunate negligent acts on the part of his counsel or misguided judgment in litigation strategy. But, courts applying their inherent powers have consistently refused to issue a punitive sanction for litigation

The distribution for Lynch’s advance on her commissions requested in September 2002 were not reported to Cohen in the monthly e-mail report sent to Cohen reporting upon account activity in September 2002.

(Cohen’s Opp. to Motion for Summary Judgment, Cohen Aff. Exh. 31) (Exhibit A-5.).

23

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%->%3D%)-

conduct that was merely frivolous, negligent or improvident without clear and convincing evidence of subjective bad faith intent. As discussed in Section II above, both parties received rather stern rebukes from the Court regarding “dilatory” and “obfuscatory” tactics to postpone a final judgment on the merits. The Court stopped short, however, of notifying Cohen or his counsel that Cohen’s conduct was sanctionable.

Cohen respectfully submits that Cohen’s litigation conduct falls far short of meeting the requirements for invoking the bad faith exception to the American Rule as set out in Chambers, and the Court should decline to exercise its inherent power to sanction Cohen.

Further, the alleged litigation misconduct for which Plaintiffs now seek redress through the Court’s inherent powers, could have been addressed through timely Rule 11 motions.

2.

Plaintiffs’ Own Bad Faith Litigation Conduct Justifies a Denial of An Award of Requested Fees and Costs

Plaintiffs appeal to the Court’s equitable inherent powers to award sanctions against Cohen for Cohen’s litigation conduct. The maxim “he who comes into equity must come with clean hands” is: a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.

That doctrine is rooted in the historical concept of a court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be “the abettor of iniquity.” Thus while “equity does not demand that its suitors shall have led blameless lives”, as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue.

United States v. Kilgore, 1994 WL 401066 *3 (D. Kan. 1994) (quoting from Precision Instrument Manuf. Co. v. Automotive Maintenance Machinery, Co., 324 U.S. 806, 814-815 (1945))(emphasis supplied).

24

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%-G%3D%)-

The equitable relief Plaintiffs seek should be denied under the unclean hands doctrine because of Plaintiffs’ own bad faith litigation conduct. See Fakhri v. United States, 507 F. Supp. 2d 1305, 1321 (C.I.T. 2007) (denying claimaint’s request for recovery of expenses and fees under the Equal Access to Justice Act (“EAJA”) under the unclean hands doctrine, despite finding the Government’s position in the case was without merit, because of Fakhri’s “series of misrepresentations to this court” and “fail[ure] to disclose existence of its corporation.”); Litton Sys. v. American Tel. & Tel. Co., 700 F.2d 785, 826 (2nd Cir. 1983) (finding that Litton’s attorneys had engaged in a “pattern of intentional concealment of evidence” and “willful misconduct” and denied “Litton recovery of all costs and attorneys’ fees to which it would otherwise be entitled as a matter of law, including those under Section 4 of the Clayton Act, 15 U.S.C. § 15.”)

It is also recognized that even a prevailing party may be denied costs it would otherwise be entitled to under FED.R.CIV.P. 54(d)16, in the exercise of the Court’s discretion, if that party acted in bad faith during the course of the litigation. Cantrell v. Int’l Brotherhood of Electrical Workers, 69 F.3d 456, 459 (10th Cir. 1995) (recognizing the exception and citing to Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 539 (5th Cir. 1990); McFarland v. Gregory, 425 F.2d 443, 449 (2nd Cir. 1970)).

Plaintiffs’ misconduct in this case is so egregious as to merit this Court, sitting in equity, denying Plaintiffs their requested relief. First, Plaintiffs unnecessarily instituted this action against Cohen and his attorney, Kory, notwithstanding Plaintiffs’ protestations to the

16

FED. R. CIV. P. 54(d) creates a presumption that the district court will award costs to a prevailing party absent a persuasive reason for not doing so. Cantrell v. Int’l Brotherhood of Electrical Workers, 69 F.3d 456, 458-9 (10th Cir. 1995). Plaintiffs have indicated in their Motion for Award of Fees and Costs Against Cohen that “to date no final judgment has been entered pursuant to Rule 54(d) or 79(b)….As to taxable expenses, Agile reserves its right to file a bill of costs within 10 days after entry of final judgment.” (Doc. No. 197, ¶ 9). This Court has not yet declared who is the “prevailing party” in this litigation.

25

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.(%3D%)-

Court that they were forced to file this litigation to foreclose an extortionate scheme. The fact is that Posel told Kory in February 2005 that Cohen’s claims against Greenberg were subject to mandatory arbitration in Colorado.17 As a result, Kory agreed to mediate confidentially and prepared a detailed claims letter on behalf of Cohen at Posel’s invitation.

There is no evidence that Plaintiffs were “forced” to litigate.

There is evidence, however, that Plaintiffs filed this lawsuit, intentionally alleging nonarbitrable tort claims for the improper purpose of frustrating Cohen’s legitimate efforts to pursue his claims through alternative dispute resolution, rather than litigation. Posel had promised Kory a “written response” to Kory’s claims letter in anticipation of a planned mediation in Colorado.18 Posel’s “written response” sent on the eve of the planned mediation was not a mediation brief as promised, but rather a surprise draft complaint alleging claims of outrageous conduct, civil conspiracy and extortion against Cohen and Kory. The draft complaint, sent by e-mail to Kory, also referenced an exhibits binder (containing over 100 pages of exhibits). Shortly after the exhibits arrived on June 6th, Kory proposed to Posel by email on June 9th to reschedule the mediation in view of a transmittal letter suggesting that 17

See Exhibit A-6, February 10, 2005 e-mail wherein Posel told Kory: “I promised to get back to you about the investment advisory and financial planning agreements between LC and Agile (formerly TAS). As anticipated, there is a binding choice of forum and choice of law clause in both contracts, requiring AAA arbitration in Boulder, Colorado.” Thus, Posel affirmed as early as February 2005 that Cohen’s potential claims, arising out of Plaintiffs’ provision of services to Cohen under the investment advisory agreements, would be subject to mandatory confidential arbitration.

18 See the following e-mail exchanges between Cohen’s counsel and Posel: On May 12, 2005, merely three weeks before filing of the pre-emptive Boulder complaint on June 5th, Posel e-mailed Kory informing him that he was “transitioning his law practice” [from Boies Schiller & Flexner LLP] and would be “hanging out his shingle (as of May 16).” Posel further reassured Kory that “this transition should have no impact on the schedule for our response to your recent letter on behalf of Leonard Cohen.” (Exhibit A-7) (emphasis supplied.).

In an e-mail from Michelle Rice to Sherab Posel June 1, 2005, Rice told Posel: “In anticipation of Sunday’s meeting, it is my understanding through your previous e-mails and phone conversations with Robert [Kory] that you agreed to provide us with your initial written response to our April 10, 2005 letter a few days in advance so as to make Sunday’s discussion as productive as possible for all parties.”

Posel responded: “We are anticipating faxing you something Friday afternoon, most likely with a list of exhibits, and then sending a full set by fedex for Saturday delivery, if that works for you.”

(Exhibit A-7.).

26

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.&%3D%)-

the draft complaint had not been filed.19 Unbeknownst to Kory when he sent the June 9th email, the Plaintiffs had electronically filed their complaint on June 5th and later issued a press release the evening of June 9th publicizing its contents.

Ample evidence suggests that Plaintiffs filed their initial complaint alleging extortion, civil conspiracy and outrageous conduct without any legal or factual basis for these claims.

Plaintiffs knew or should have known that there is no legal basis to allege a conspiracy between an attorney and his client under the agent-immunity rule, and that there is no civil claim for extortion in Colorado.20 These claims were the heart of Plaintiffs’ complaint and were without any legal basis.

The so-called “factual” allegations predicating their extortion, civil conspiracy, and outrageous conduct claims contained in their Boulder complaint were largely “on information and belief” and “according to Lynch.” (See, e.g., Boulder Complaint, ¶¶ 122123(a)-(f)); FAC ¶129(a)-(f); SAC ¶¶142-146.) Plaintiffs never proffered credible evidence during the course of this litigation which substantiated these purportedly factual allegations.

To the contrary, Plaintiffs concealed from the Court communications that would cast serious doubt on all of the purported “factual” allegations in the Complaint. That evidence includes private e-mail communications between Posel and Lynch, which were forwarded by Lynch

19

See e-mail June 9, 2005, in which Kory told Posel: I am writing to follow-up on the materials that you sent in advance of our meeting that had been planned for this past Sunday. Needless to say, we are surprised by the allegations in the draft complaint and, of course, deny all of those allegations. Our communications about a confidential mediation involving all the parties were clear on their face. We have at all times acted in a good faith effort to address the loss of my client’s life savings managed by your client. We have also at all times proceeded on a path of confidentiality at your client’s behest in the hope of a reasoned, confidential discussion.

(Exhibit A-8.).

20 See Order (Dec. 4, 2006), Natural Wealth Real Estate, Inc. v. Cohen, 2006 WL 3500624 (D. Colo. 2006).

27

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.-%3D%)-

to others, to the effect that Posel knew Lynch to be a liar21 and in which Lynch accused Posel of “using” and “taking advantage” of her emotionally to manipulate her testimony and to gain information on behalf of his client, Greenberg.22 Fourth, Plaintiffs then compounded their bad faith deceit with a defamatory press release issued just four days after filing of the Boulder District Court complaint. To this day, Plaintiffs persist in their fraud upon the Court by failing to admit to this Court that they published a defamatory press release five days before Cohen made any public comment about Plaintiffs, much less this litigation. Plaintiffs issued their press release for the sole purpose of provoking a public response from Cohen and procuring defamation, commercial 21

In August 2005, Posel called into question Lynch’s fundamental veracity and repeatedly called Lynch a “liar.” In an e-mail dated August 1, 2005, Posel accused Lynch of: telling highly slanted and edited, redacted and distorted versions of stories to whoever will listen, for whatever purposes you imagine in the moment you tell the story.

(See Exhibit A-9, p. 4 of 4.).

22

For example, in an August 11, 2005 e-mail Lynch told Posel: “I am not talking about Neal [Greenberg] until you and I have sorted out our personal relationship. I am in love with Sherab. You know this. You said you were in love with me.” (See Exhibit A-10, p. 5 of 5.). Lynch asked Posel: Do you love me or not? If you love me then I will not feel betrayed. I just started to feel as though you were taking advantage of me. For instance, when you came to California to translate for Hung-ri, you said you would see me. Then, when you called me, it just seemed as though you wanted an Affidavit for Neal [Greenberg].

You were aware of my feelings for you and I thought they were reciprocal. Were they lies? You said you were madly in love with me.

(Exhibit A-10., p. 4 of 5.).

Posel also tells Lynch: “there is not one unkind word about you anywhere in our lawsuit – quite the opposite.” To which Lynch responds: That wasn’t and isn’t my perception of your lawsuit. It feels, to me, as though you have used me all over your lawsuit. Why would you have said to me that in order to avoid a slander suit by Leonard, you need an affidavit from me? Can you clarify this? (Exhibit A-10, p. 2 of 5.).

Despite Posel having called Lynch a “liar” with a penchant for telling “stories”, Plaintiffs moved to amend their complaint in February 2006 to add “additional allegations which state with greater particularity the unlawful means used to accomplish the unlawful purposes which form the bases for the civil conspiracy claim asserted against Cohen and Kory.” (Pls. Motion for Leave to Amend Caption and File Second Amended Complaint, Doc. 85-1, ¶ 2.). Several of the “additional allegations” purportedly supporting Plaintiffs’ amended conspiracy claim against Cohen added in ¶ 245(c)-(e) of the SAC involved allegations of “witness tampering” based upon Lynch’s fanciful and wholly unfounded accusations.

28

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%..%3D%)-

disparagement and injunction claims against Cohen.23 After Cohen publicly responded on June 14th to the accusations of criminal conduct in Plaintiffs’ June 9th press release, Plaintiffs amended their complaint to assert claims for defamation against Cohen and Kory. (Pls. First Amended Complaint, Doc. No. 8, ¶¶ 156-163).

Plaintiffs also sought through a second amendment of their complaint against Cohen to add a claim for injunctive relief, which sought to silence Cohen. (SAC ¶¶ 259-264). This claim is remarkable because at the end of June 2005, Posel had granted an interview (declined by Cohen) to a reporter for the DENVER WESTWORD NEWS declaring that Agile “had decided to take [its] chances with the court of public opinion.”24 Notwithstanding Posel’s public declaration, Plaintiffs’ injunction claim appealed to this Court’s equitable powers to issue an order suppressing Cohen’s speech regarding Plaintiffs, ostensibly preventing Cohen from defending himself “in the court of public opinion” against Plaintiffs’ unfounded accusations of criminal conduct. This request for injunctive relief can only be seen as interposed in bad faith and for the improper purpose of harassment and oppression.

When Cohen brought Plaintiffs’ deliberate concealment of their June 9th defamatory press release to the Court’s attention in Cohen’s Motion for Summary Judgment, Plaintiffs turned tail and quickly sought an exit strategy which would minimize their exposure to an award of fees to Cohen for the dismissed claims and even possible sanctions from this Court.25 See Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 390 (1990) (finding that

23

See (Cohen’s Motion for Summary Judgment, Statement of Undisputed Facts, ¶¶ 5-14, Exhibit A-2) ( Doc. No. 186-1.)

24 See (Cohen’s Motion for Summary Judgment, Statement of Undisputed Facts ¶¶ 16-17, Cohen Aff. ¶¶ 11-12, Exh. B-8)(Doc. No. 185).

25 See (Plaintiffs’ Motion to Dismiss Certain Claims Pursuant to Rule 41(a)(2))(Doc. No. 194).

29

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.E%3D%)-

sanctions must “be available in appropriate circumstances notwithstanding a private party's effort to cut its losses and run out of court, using Rule 41 as an emergency exit.”).26 Merely two weeks after this Court’s June 2, 2008 Order granting Plaintiffs’ motion to voluntarily dismiss their defamation, disparagement, unjust enrichment, injunction and declaratory relief claims under FED.R.CIV.P. 41(a)(2) with prejudice, Plaintiffs issued on June 17, 2008, through Stephen Erwin of Agile Group, another press release (“Agile’s June 17, 2008 Press Release”) once again through Business Wire, disseminated on the Internet by Bloomberg News, entitled “Federal Court Rejects and Dismisses All Counterclaims by Recording Artist Leonard Cohen against Agile Group; Agile Group Voluntarily Dismisses Its Defamation and Disparagement Claims.” (Exhibit A-11.).

The June 17, 2008 Press Release, falsely proclaimed that “the U.S. Federal Court in Denver had dismissed all of Cohen’s counterclaims against Agile Group.” (Id.)27 The Press Release also repeats the defamatory allegations contained in the complaint filed in June 2005 that accused Cohen and Kory of “threaten[ing] to tarnish Agile Group’s professional reputation in order to extract millions of dollars from Agile Group and its insurers.” (Id.).

Plaintiffs do not mention that the legally unsustainable and factually unsubstantiated claims of wrongdoing leveled against Cohen and Kory in the complaint were dismissed by the Court in December 2006.

26

Plaintiffs expressly conditioned their voluntary dismissal upon Cohen relinquishing his right to seek fees and costs for the dismissed claims which were improperly brought and maintained against him. See (Plaintiffs’ Motion to Dismiss Certain Claims Pursuant to Fed. R. Civ. P. 41(a)(2), ¶ 2 )(Doc. No. 194).

27 Cohen’s counterclaim for an accounting against Plaintiffs has not been dismissed.

30

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.)%3D%)-

3.

Plaintiffs Unnecessarily Sought to Multiply and Delay These Proceedings to Impose Significant and Unnecessary Costs Upon Cohen and Kory

Plaintiffs assert that Cohen filed pleadings which unnecessarily delayed these proceedings (namely Cohen’s Leave to Amend his Answer and Counterclaims and Cohen’s Opposition to Plaintiffs’ Summary Judgment on Cohen’s Breach of Contract Counterclaim).

(Motion, at § IV B, C, pp. 27, 31.). Plaintiffs also sought to unnecessarily delay and multiply these proceedings. Once this case was removed by Kory from the Boulder District court to this Court on July 1, 2005, Plaintiffs amended their complaint twice, once in August 2005 to add a defamation claim against Kory and Cohen for Kory’s June 14th Response to Agile’s June 9th Press Release28 and again on May 2006 to add seven additional claims against Cohen.29 Plaintiffs’ animosity and vindictiveness towards Cohen and Kory was further demonstrated through Plaintiffs’ attempt to abuse the liberal amendment standards of FED.R.CIV.P. 15(a) to assert seven additional claims against Kory through a second amendment to their complaint two months after Kory had been dismissed for lack of jurisdiction under FED.R.CIV.P. 12(b)(2) and after this Court dismissed all of Plaintiffs’ claims against him. See Order (Dec. 5, 2005)(Doc. No. 65).

Plaintiffs, through Posel, did not confer in good faith and did not inform Cohen’s and Kory’s counsel that Plaintiffs would seek to 1) reassert additional claims against Kory who had been previously dismissed from the litigation; and 2) add seven additional claims against

28

See (Cohen’s Motion for Summary Judgment, Statement of Undisputed Facts, ¶ ¶ 20-21.)(Doc. No. 185).

Through the SAC, Plaintiffs added claims for commercial disparagement, interference with contract, interference with prospective business advantage, quantum meruit/unjust enrichment, violations of the Colorado Organized Crime Control Act (“COCCA”), injunction and declaratory relief against Cohen.

29

31

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.F%3D%)-

Cohen, including a COCCA claim, allegedly supported by criminal predicate acts of mail and wire fraud, suborning false testimony and witness tampering.30 Posel sent a letter to Joel Feuer of Gibson Dunn on January 13, 2006 informing him that “in light of other recent Orders by the Court,31 Plaintiffs intend to move for leave to file a Second Amended Complaint. Such amendment, in all likelihood, would eliminate one or more of the claims in the operative Amended Complaint.” (See Exhibit A-12) (emphasis supplied). Through Posel’s letter, Plaintiffs sought a stipulation whereby Cohen, who was due to respond to Plaintiffs’ Amended Complaint on or before January 20, 2006, would refrain from answering the FAC and allow Plaintiffs an additional 30 days to proffer a second amended complaint. (Id.). While Plaintiffs did drop the previously asserted outrageous conduct claim through their second amendment, Posel, through his efforts to meet and confer with Cohen’s counsel, did not disclose Plaintiffs’ intention to attempt vindictively to reinstate the previously dismissed civil conspiracy and extortion claims against Kory, add new claims against Kory and to add additional criminal claims against Cohen.

Cohen opposed Plaintiffs’ Second Amended Complaint on the basis of the futility.

(Docket 88, ¶ 4). Kory successfully opposed Plaintiffs’ proposed amendment by arguing that Plaintiffs’ leave to amend to assert claims against him was an untimely motion for reconsideration under FED.R.CIV.P. 60(b) of this Court’s previous Order of December 5, 2005 dismissing him from the litigation for this Court’s lack of personal jurisdiction under FED.R.CIV.P. 12(b)(2) and dismissing Plaintiffs’ claims against him. (Docket 89; Order (May 30

It should be noted that the so-called “predicate acts” giving rise to Plaintiffs’ purported civil conspiracy claim against Cohen included an allegation that Cohen had issued a defamatory press release, when in fact Plaintiffs had issued their own press release publicizing their lawsuit and allegations of extortion and civil conspiracy against Cohen and Kory on June 9, 2005 which predated any public statement or publication made by Cohen. (SAC ¶¶ 244(b), 245(f); Cohen MSJ, Statement of Undisputed Facts ¶¶ 5-14, Exh. A-2.)

31 The Court dismissed Kory for lack of personal jurisdiction through its December 5, 2005 Order. (Doc. No. 65).

32

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.<%3D%)-

10, 2006); Doc. No. 91.). This Court granted Plaintiffs’ proposed amendment as to Cohen, but invited Cohen to submit a timely motion to dismiss under Rule 12. Order (May 10, 2006) (Doc. No. 91.) Plaintiffs’ Motion for Leave to Amend to File a Second Amended Complaint unnecessarily delayed this litigation and imposed significant additional unnecessary costs upon Cohen.

Cohen submits that Plaintiffs’ litigation conduct should be found to be “part of a sordid scheme of deliberate misuse of the judicial process designed to defeat [Cohen’s] claims by harassment, repeated and endless delay, mountainous expense and waste of financial resources.” Chambers, 501 U.S. at 56-57. In light of Plaintiffs’ own litigation misconduct, this Court should decline to exercise its inherent powers to sanction Cohen and to reward Plaintiffs’ bad faith actions.

VI.

PLAINTIFFS CANNOT SEEK INDEMNITY UNDER EITHER THE LPA OR THE SA AGAINST COHEN Sections D and E of Plaintiffs’ Motion for Fees raise unpled claims of contractual

indemnity against Cohen, under the LPA and the SA, for the $308,565.92 in attorney fees and costs Plaintiffs seek. Both the LPA and the SA are contracts entered into by Traditional Holdings in connection with its investments with Agile. Cohen is not a party to either contract.

Plaintiffs’ claims fail for a multitude of separate and independent reasons, both procedural and substantive. First, Plaintiffs did not plead these claims. Second, Cohen is not a party to either contract, and Traditional Holdings is not a party to this lawsuit. Third, Plaintiffs have not demonstrated that any party indemnified under either the LPA or SA has suffered a covered loss. Fourth, Agile Safety Fund—not Cohen—is the indemnitor under the

33

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.>%3D%)-

LPA. Fifth, Plaintiffs have not identified any events that would give rise to an indemnity obligation under the SA. A.

Plaintiffs Did Not Plead Claims for Indemnification.

A claim of indemnity under a contract is no different than any other cause of action based on contract—it must be pleaded and proved by the party asserting a right to indemnification. See Levy v. HLI Operating Co., Inc., 924 A.2d 210, 222 (Del.Ch. 2007) (describing a claim of indemnification as a “cause of action”); see also, Delphi Eastern Partners, LP v. Spectacular Partners, Inc., 1993 WL 328079 (Del.Ch., August 6, 1993)32 (discussing the elements of a contractual indemnity claim, including the satisfaction of the terms of the agreement that contains the indemnity rights).33 Plaintiffs, however, did not bring a claim for indemnity against Cohen in their Complaint, Amended Complaint, or Second Amended Complaint. As such, they cannot simply raise this issue for the first time by motion three years into the case.

Plaintiffs’ affirmative defenses 23 and 24 (see Reply to Cohen’s Counterclaims, Docket # 112, at Affirmative Defenses, ¶¶ 23, 24) do not save them. In those affirmative defenses Plaintiffs stated only that “Cohen’s claims asserted with regard to matters related to Traditional Holdings and/or The Agile Safety Fund are barred by the terms and provisions of the [LPA and SA].” (See id.) The defenses go on to refer to a variety of different paragraphs of the LPA and SA. (See id.) The indemnification provision of the LPA, Section 3.04(b), is not even cited.

And although the indemnification provision of the SA, Section 3.15, is cited, it is cited only as one of many other provisions of the SA that, according to Plaintiffs, bar 32

Unpublished opinion. For the Court’s reference, a copy of the case is attached as Exhibit A-13.

Both the LPA (see Section 14.05) and the SA (see Section 3.07) provide that they shall be construed in accordance with and governed by Delaware law.

33

34

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%.G%3D%)-

Cohen’s claims. Indeed, Plaintiffs intentionally omit from their citation of Section 3.15 the portion of that provision that refers to expenses incurred by Plaintiffs in defending against litigation. (See id., at Affirmative Defenses, ¶ 24, last bullet point.) Had Plaintiffs intended for defense 24 to cover their supposed indemnity rights for their attorney fees and costs incurred in this case, they certainly would have included that section. Finally, nowhere in the affirmative defenses, or any other pleading, do Plaintiffs demand any affirmative relief against Cohen based on the provisions of the LPA or SA. For these reasons, the issues reasonably raised by defenses 23 and 24 do not include whether the terms of the LPA or SA give Plaintiffs indemnification rights against Cohen for their attorney fees incurred in this lawsuit. Even liberally construed, Plaintiffs’ affirmative defenses do not give Cohen fair notice that Plaintiffs were preserving their supposed right to have a money judgment entered against Cohen for their litigation costs and attorney fees.

See Fortner v. United States, 2008 WL 410396, *9 (D. Colo. 2008) (“The requirements of Rule 8(a) guarantee that defendants enjoy fair notice of what the claims against them are and the grounds upon which they rest.”) (internal punctuation omitted).

Plaintiffs cite to Fed.R.Civ.P. 54(d)(2) and Northeast Controls, Inc. v. Fisher Controls Int’l, LLC, 2008 WL 678701 (D.Del., March 12, 2008), as support for the proposition that they may make a claim under the indemnity provisions against Cohen for the first time by motion. (See Plaintiffs’ Response to Motion for Summary Judgment, Docket # 196, at pg. 8.) Neither of these authorities support Plaintiffs’ position. First, Rule 54(d)(2) governs motions for attorney fees recoverable as costs by a prevailing party only after entry of judgment. It does not address the proper procedure for asserting a contractual claim for indemnification seeking attorney fees as damages. Moreover, Plaintiffs are not prevailing

35

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%E(%3D%)-

parties, and the Court did not enter a judgment in their favor entitling them to seek costs or fees within 14 days before Plaintiffs filed their Motion for Attorney Fees (see Rule 54(d)(2)(B)(i) (motions under Rule 54(d) must be filed no later than 14 days after the entry of judgment)).

Northeast Controls is similarly unavailing. In that case the plaintiffs filed a claim for relief of indemnification against the defendant, and then moved for summary judgment on the claim. See Northeast Controls, 2008 WL 678701, at *1. The Court granted summary judgment for the plaintiff on the claim and the plaintiff, as the prevailing party, timely filed a motion under Rule 54(d) to recover attorney fees and costs incurred in prosecuting the claim.

Id. The court denied the Rule 54 motion as to the fees for lack of a basis for recovery. Id. at *2. Nothing about that case suggests that one party may bring an unpleaded, substantive claim for relief for indemnification against another for the first time by motion three years into a case.

For the foregoing reasons, the Court should deny the Motion to the extent it is based upon the indemnity provisions of the LPA and SA. B.

The Court Cannot Hold Cohen Liable Under the LPA or the SA Because Cohen is Not a Party to Either of Those Contracts.

It is a fundamental principle of contract law that a contract binds only those persons who have consented to its terms. It is undisputable that Cohen is not a party to the LPA or SA. His signature is found nowhere on those contracts. As such, Cohen is not bound by the terms of those agreements.

36

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%E&%3D%)-

Plaintiffs nevertheless argue that Cohen is judicially estopped34 from denying liability under those agreements. (See Motion, at pg. 33.) Plaintiffs, however, come nowhere close to meeting the standard for judicial estoppel. Plaintiffs cannot show that Cohen’s denial of liability under the LPA and SA is directly inconsistent with any prior position Cohen has succeeded in persuading a court to accept.

The United States Supreme Court test for application of judicial estoppel looks to, among other factors, whether a party’s later position is “clearly inconsistent” with its earlier position, and whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (internal citations omitted). “Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity.” Id. Similarly, under Colorado law (which Plaintiffs rely upon), application of judicial estoppel is appropriate only if the two positions are totally inconsistent such that “the truth of one position must necessarily preclude the truth of the other position.” Farmers High Line Canal and Reservoir Co. v. City of Golden, 975 P.2d 189, 202 (Colo. 1999). Also, “the party taking the positions must have been successful in maintaining the first position and must have received some benefit in the first proceeding.” Id.

34

Plaintiffs also use the term equitable estoppel, but do not cite any law or set forth any facts that could even arguably establish such a theory. Under Colorado law, the following elements must be established to support an argument of equitable estoppel: (1) the party to be estopped must know the facts and either intend the conduct to be acted on or so act that the party asserting estoppel must be ignorant of the true facts, and (2) the party asserting estoppel must rely on the other party's conduct with resultant injury.

Comm. for Better Health Care for All Colo. Citizens v. Meyer, 830 P.2d 884, 891-92 (Colo. 1992).

37

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%E-%3D%)-

Here, nothing in Plaintiffs’ laundry list of Cohen’s actions warrants estopping Cohen from denying liability under contracts he is not a party to. Plaintiffs first argue that, in this lawsuit, Cohen has ignored the distinction between himself and Traditional Holdings by asserting rights under the LPA and SA and by failing to join Traditional Holdings as an indispensable party. (See Motion, at pp. 33-34.) Even if true, this does not meet the judicial estoppel test. Neither of those examples is a position directly contrary to a denial of liability for indemnity obligations under the LPA and SA. Moreover, Cohen has not previously succeeded in persuading the Court to accept these positions such that it would create inconsistent rulings for the Court to now conclude Cohen is not liable under the LPA or SA. Plaintiffs make no attempt to argue to the contrary.

Plaintiffs next point out that Cohen supposedly urged the California Court to adopt the view that he is the “rightful owner” of all Traditional Holdings assets. Again, even if true, such a position is not totally or clearly inconsistent with Cohen’s denial that he is a party to the LPA or SA. Also, a decision of this Court adopting Cohen’s position would not be inconsistent with the California Court determining that as between Cohen and Lynch, Cohen is the owner of the assets of Traditional Holdings.

The last two examples Plaintiffs rely upon are not even positions Cohen has taken in this or any other case. Plaintiffs note that “the Court recognized that the LPA effectuated Agile’s investment plan for Mr. Cohen’s assets” (see Motion, at pg. 34) and that “Cohen is the sole member of Traditional Holdings who asserted the claims that fall within Section 3.15, and caused Agile to incur the litigation costs that fall within the scope of the indemnity” (see id.). In addition, neither of these propositions have anything to do with Cohen not being

38

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%E.%3D%)-

a signatory to the LPA or SA, much less are they totally or clearly inconsistent with that fact.

Neither supports the application of judicial estoppel.

In summary, Cohen is not a party to the LPA or SA, and thus cannot be held liable for indemnity obligations thereunder. Plaintiffs have not made a showing sufficient to require the Court to stray from that fundamental rule of law.

C.

The Court Cannot Enter a Judgment for Indemnity Against Traditional Holdings Under the LPA or the SA Because Traditional Holdings is Not a Party to this Case.

It is unclear whether Plaintiffs seek an award of costs and fees against Traditional Holdings in their Motion for Attorney Fees. To the extent they do, that relief is unavailable because Traditional Holdings is not a party to this case.

Plaintiffs’ claims to the funds interpleaded into the registry of the Court (see Motion, at pg. 33) are fully addressed in Cohen’s previously filed Reply in Support of Motion for Summary Judgment. As explained there, Plaintiffs are judicially estopped from making any claim to the interpleaded funds because they have disclaimed any interest in those funds for the last three years. Also, even if they are not estopped, Cohen’s current entitlement to the interpleaded funds defeats Plaintiffs speculative and contingent claims to the funds.

D.

Plaintiffs Have Not Demonstrated an Indemnifiable Loss Under the LPA or the SA Because Plaintiffs Do Not Have a Claim For Indemnity to the Extent Their Insurer Paid the Litigation Costs, And Plaintiffs Have Failed to Identify What Amounts They, As Opposed to Their Insurer, Paid

To the extent Plaintiffs’ insurance carrier paid the $308,565.92 in litigation costs Plaintiffs seek, Plaintiffs have no claim for indemnification under either the LPA or SA. See Levy v. HLI Operating Co., Inc., 924 A.2d 210, 222-23 (Del.Ch. 2007) (under Delaware common law of indemnification, “a party who has not and will not sustain any actual out-of-

39

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%EE%3D%)-

pocket loss’ as the result of a claim against it has no indemnification claim.”) (internal punctuation omitted).35 Here, Plaintiffs have failed to specify what amounts Plaintiffs, as opposed to their insurer, have paid. Instead, Plaintiffs state summarily that “all defense costs sought by this motion were paid for by: (a) TAS and Agile Group, LLC’s insurance carrier; and (b) TAS.” (Motion, at pg. 31-32.) This failure leaves Cohen, and the Court, to guess at TAS’ share of the $308,565.92 in fees and costs not covered by insurance—the only portion that is indemnifiable. TAS may have been responsible for only the deductible, while its insurance carrier paid the rest. In any event, by failing to identify what portion of the $308,565.92 TAS has borne, Plaintiffs have not demonstrated any indemnifiable loss. The Court should therefore deny the Motion to the extent it is based upon the indemnity provisions of the LPA and SA. E.

Plaintiffs’ Claim Under the LPA Fails for the Additional Reason that Agile Safety Fund, LP—Not Cohen—Is The Indemnitor Under Section 3.04(b) of the LPA, and No Judgment for Indemnity Against Agile Safety Fund Exists.

In addition to those reasons expressed above, the particular language of the LPA defeats Plaintiffs’ claim of indemnity. Indeed, even a cursory review of the LPA reveals that Plaintiffs’ claims under the LPA are utterly without merit.

Plaintiffs acknowledge in the Motion that Agile Safety Fund is the indemnitor under section 3.04 of the LPA. (See Motion, at pg. 35 (“Within the LPA, the ASF agreed to indemnify Agile Group, LLC, its members, and its affiliates . . . .”).); see also, LPA, § 35

The collateral source doctrine is not applicable because this is a matter of contractual indemnity, not tort liability. Plaintiffs do not seek damages under the LPA or SA against Cohen as a tortfeasor. See State Farm Mut. Auto. Ins. Co. v. Nalbone, 569 A.2d 71, 73 (Del. 1989) (“The rationale for the collateral source rule appears to emphasize the deterrent and quasi-punitive functions of tort law. It is considered better that the innocent plaintiff receive a windfall than that the wrongdoing defendant bear less than the full cost of his negligent conduct.”).

40

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%E)%3D%)-

3.04(b) (“The Partnership agrees to indemnify and hold harmless the General Partner and its managers, members, officers, affiliates and employees . . . .”).) This undisputed fact alone defeats Plaintiffs claim under the LPA. Plaintiffs do not, and cannot, explain how this Court should ignore the plain language of the LPA and hold Cohen liable for Agile Safety Fund’s obligation.

Perhaps in an attempt to distract attention from the fact that Cohen is not the indemnitor under the LPA, Plaintiffs proceed to make a complicated argument about how the indemnity obligation of Agile Safety Fund should be allocated completely to the investments Traditional Holdings used to have in the fund. (See Motion, at pg. 35-37.) This argument is flawed on several levels. First, absent a judgment for indemnity against Agile Safety Fund, no allocation is necessary. It is nonsensical to discuss the allocation of payment of an obligation that does not exist.

Second, even assuming for the sake of argument that it makes sense to determine the proper allocation, Traditional Holding’s former investments in Agile Safety Fund could not properly be used to satisfy any indemnity obligation of Agile Safety Fund under the LPA. As Plaintiffs point out, LPA Section 3.04(b) expressly provides that “[a]ny indemnity under this Section shall be paid from and to the extent of Partnership assets only . . . .” (See LPA, § 3.04(b) (emphasis added).) Under any reasonable reading, “Partnership assets” cannot include money that is no longer invested in Agile Safety Fund. If the drafters of the LPA had intended for “Partnership assets” to include former investments with the fund, they could easily have included language to that effect.

This conclusion is further supported by the limited liability provisions of Section 5 of the LPA. Section 5.03 of the LPA provides that “[n]o Limited Partner shall be obligated to

41

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%EF%3D%)-

provide any contributions to the Partnership other than the Original Capital Contribution (as defined in Section 9.02 below) of such Limited Partner.” And Section 5.02(b) provides that once a limited partner receives a return of its capital contribution, the limited partner may be liable to the partnership to return that original capital contribution only if the limited partner knew at the time of the distribution that the partnership was prohibited under Delaware law from making the distribution. For three years, Plaintiffs have argued that the withdrawals of Traditional Holdings of its original capital contributions from the Agile Safety Fund were wholly proper and not prohibited by the law of Delaware or any other state. As such, Plaintiffs thus cannot now come after Traditional Holdings (much less Cohen) for the return of Traditional Holding’s original capital contribution. Section 5.03 of the LPA specifically prohibits Plaintiffs from doing so.

Moreover, a determination that “Partnership assets” includes funds no longer invested with Agile Safety Fund would render meaningless the clause in Section 3.04(b) that limits the fund’s indemnity obligation “to the extent of” Partnership assets. See Council of Dorset Condo. Apartments v. Gordon, 801 A.2d 1, 7 (Del. 2002) (“A court must interpret contractual provisions in a way that gives effect to every term of the instrument, and that, if possible, reconciles all of the provisions of the instrument when read as a whole.”). That provision exists so that Agile Safety Fund can never be liable under Section 3.04(b) for any amount greater than balance of the assets invested with it. To read Section 3.04(b) to include former investments would defeat the purpose of that provision.

Plaintiffs also argue that the interpleaded funds can be used to satisfy Agile Safety Fund’s (nonexistent) indemnity obligation, baldly asserting that “the only balance [presumably of Traditional Holdings’ investments with Agile Safety Fund] that remains is

42

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%E<%3D%)-

the interpled funds ($154,180.78) which is less than the indemnity obligation.” (See Motion, at pg. 35.) This argument fails because Plaintiffs previously disclaimed any interest in the interpleaded funds when they brought the interpleader action and deposited those funds into the Court’s registry. (See Cohen’s Reply in Support of Motion for Summary Judgment, at pp. 2-8.) Plaintiffs cannot plausibly now claim that the interpleaded funds are assets of Agile Safety Fund.

Finally, the question of allocation of payment of Agile Safety Fund’s obligation under Section 3.04(b) (were Agile Safety Fund ever to incur such a liability) is a matter entirely separate from whether an indemnity obligation under the LPA exists in the first place. None of Plaintiffs’ pleadings preserve this issue for determination. In fact, in all likelihood only Agile Safety Fund, who is not a party to this case, would have standing to bring such a claim against Traditional Holdings.

To summarize, the Plaintiffs in this case, none of which are Agile Safety Fund, are asking the Court to: (1) enter a judgment against Cohen or from the interpleaded funds that Agile Safety Fund can use to pay an indemnity obligation under the LPA that does not exist; and (2) determine that the “assets” of Agile Safety Fund includes money properly withdrawn no longer invested with it. No law or fact supports these assertions, and the Court should accordingly deny the Motion to the extent it is based on the LPA. F.

Plaintiffs’ Claim Under the SA Fails for the Additional Reason That Plaintiffs Have Not Sufficiently Demonstrated the Existence of Events That Give Rise to an Indemnity Obligation.

Plaintiffs identify six supposed breaches and failures by Traditional Holdings that purportedly give rise to an indemnity obligation of Cohen under the SA. (See Motion, at pp.

32-33, ¶¶ (a)-(f).) These events are insufficient because: (1) Plaintiffs fail to supply

43

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%E>%3D%)-

competent evidence of the identified actions; and (2) Plaintiffs have not shown that the litigation expenses of this case (even assuming they were incurred by an indemnified party) arise out of or are based upon a breach of, or failure by Traditional Holdings to comply with, a representation it made in either the SA or other document it furnished in connection with the SA. 1.

Plaintiffs Do Not Provide Competent Evidence to Support Their Claims Under the SA.

First, Plaintiffs’ claims under the SA fail for lack of competent evidence of any indemnifiable event. Plaintiffs’ examples of supposed breaches and failures by Traditional Holdings consists merely of Plaintiffs’ lawyers’ subjective descriptions of various alleged representations and actions by Lynch and Cohen. (See Motion, at pp. 32-33, ¶¶ (a)-(f).)

Plaintiffs neither cite to nor supply with their Motion any properly authenticated evidence of record supporting their claims. This defect alone requires the Motion, to the extent it is based upon the SA, to be denied.

2.

None of the Actions Identified By Plaintiffs Give Rise to An Indemnity Obligation Under the SA.

Even if Cohen were a party to the SA, and even if an indemnified party had suffered a covered loss under the SA, and even if Plaintiffs had supplied admissible evidence, none of the actions of Traditional Holdings identified by Plaintiffs in their Motion give rise to an indemnity obligation under that agreement. Broken out into elements, Section 3.15 of the SA provides as follows: (1) The undersigned agrees to indemnify and hold harmless; (2) the General Partner and the Partnership, and each other person, if any, who controls such entity with the meaning of Section 15 of the Securities Act; (3) against any and all loss, liability, claim, damages and expenses whatsoever (including, but not limited to, any and all expenses whatsoever reasonably

44

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%EG%3D%)-

incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever); (4) arising out of or based upon; (5) any breach or failure by the undersigned to comply with; (6) any representation, warranty, covenant or agreement; (7) made by the undersigned; (8) herein or in any other document furnished by the undersigned to any of the foregoing in connection with this Agreement.

Plaintiffs must satisfy each of these elements with respect to any event they claim gives rise to indemnity under the SA for the costs of this litigation. They do not.

Most fundamentally, the costs of this litigation, as a whole, were caused by Plaintiffs filing this lawsuit against Cohen and by Cohen filing counterclaims. Those costs do not arise out of or have their basis in Traditional Holdings’ “breach” or “failure to comply with” a representation it made in, or in connection with, the SA. For that to be true, Traditional Holdings would have had to have agreed that Cohen would not sue the Plaintiffs. Plaintiffs do not and cannot identify any such representation or agreement. Moreover, none of the seven discrete events that took place in this lawsuit for which Plaintiffs now seek indemnification arise from a supposed breach of a representation by Traditional Holdings. It should go without saying that Traditional Holdings never made any representations or agreements in the SA about how Cohen’s lawyers would litigate a lawsuit against the Plaintiffs.

Additionally, none of the events identified in paragraphs (a) through (f) are representations, warranties, covenants, or agreements made in the SA or in any other document furnished in connection with the SA. For example, the events identified in the “or” clauses are either not representations at all, or not representations made in documents.

Instead, they consist of supposedly “false representations” (made somewhere) or purported “violations” of Cohen’s or Lynch’s duties to Traditional Holdings.

45

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%)(%3D%)-

As to the rest (the portions preceding the “or” clauses), none of those things are representations made in a document furnished by Traditional Holdings to Plaintiffs “in connection with” the SA. Letters sent by Lynch to Agile’s employees over the years following Traditional Holdings’ execution of the SA are not documents furnished by Traditional Holdings in connection with the SA. That clause of the SA concerns documents such as the Investor Questionnaire and financial statements meant to determine whether Traditional Holdings was an accredited investor. Plaintiffs have also failed to identify how Traditional Holdings supposedly “breached” or “failed to comply with” any of the representations they describe.

For all of the foregoing reasons, Plaintiffs’ Motion should be denied.

VII.

THE COURT SHOULD NOT AWARD ATTORNEY FEES OR COSTS AGAINST COHEN UNDER ANY OF PLAINTIFFS’ THEORIES, BUT IF IT DOES, PLAINTIFFS SHOULD RECOVER SUBSTANTIALLY LESS THAN THE $294,618.25 IN FEES SOUGHT; THE AMOUNTS CHARGED ARE UNREASONABLE Submitted with this Response is the opinion letter of Bennett S. Aisenberg. (Exhibit

A-14.). Mr. Aisenberg has practiced law in Denver for over forty years. He is, by all accounts, a distinguished member of the Bar, an experienced litigator, and former president of the Denver and Colorado Bar Associations. Without belaboring his qualifications, he has received virtually every honor that a Colorado lawyer can receive.

Cohen’s counsel requested Mr. Aisenberg to give his opinion as to the reasonableness of the $294,618.25 in attorney fees36 sought by Plaintiffs in their Motion. In Mr. Aisenberg’s opinion, the attorney fees sought by Plaintiffs for each of the seven discrete tasks are unreasonable. The crux of Mr. Aisenberg’s opinion is that Plaintiffs’ use of three different law firms and up to eight different lawyers for these tasks led to substantial inefficiency and 36

Plaintiffs also seek $13,947.67 in costs, bringing the total amount to $308,565.92.

46

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%)&%3D%)-

duplication. Mr. Aisenberg also points out that there was nothing novel or difficult in the legal questions at issue for many or all of the tasks. Mr. Aisenberg concludes that, if the Court were to award fees, a reasonable fee for the tasks at issue here would be in the neighborhood of $77,500.00, rather than the $294,618.25 Plaintiffs request.

For the reasons expressed in Mr. Aisenberg’s opinion, Cohen respectfully requests the Court to greatly reduce the amount of fees sought by Plaintiffs in the event the Court awards any fees at all.

VIII. CONCLUSION For all of the foregoing reasons, Cohen respectfully requests that Plaintiffs’ Motion or An Award of Fees and Costs be denied in its entirety. Balancing of the equities in this case should lead the Court to find that each party should bear its own fees and costs.

DATED: July 1, 2008

Respectfully Submitted, /s/ Michelle L. Rice LAW OFFICES OF ROBERT B. KORY 9300 Wilshire Boulevard, Suite 200 Beverly Hills, California 90212 Telephone: (310) 285-1630 Facsimile: (310) 274-7681 Email: mrice@rbklaw.com Jeffrey A. Chase Andrew W. Myers JACOBS CHASE FRICK KLEINKOPF & KELLEY, LLC 1050 17th Street, Suite 150 Denver, Colorado 80265 Telephone: 303.685.4800 Fax No.: 303.685.4869 Email: jchase@jcfkk.com amyers@jacobschase.com ATTORNEYS FOR DEFENDANT-COUNTERCLAIM PLAINTIFF LEONARD COHEN

47

!"#$%&'()*+,*(&-..*/01%%%23+45$67%-&.%%%89:$;%(<=(&=(>%%%?@2!%!3:3A";3%%%B"C$%)-%3D%)-

CERTIFICATE OF SERVICE I hereby certify that on July 1, 2008, I electronically filed the foregoing LEONARD COHEN’S OPPOSITION TO PLAINTIFFS’ AND BARNETT’S MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: R. Daniel Scheid (dan@lewisscheid.com) Kurt S. Lewis (kurt@lewisscheid.com) Sherab Posel (poselaw@gmail.com) I hereby certify that I served the foregoing document on the following non CM/ECF participant by e-mail and U.S. First Class Mail, postage prepaid to the following: Kelley A. Lynch C/o Phil Spector Phil Spector International 686 S. Arroyo Parkway Penthouse Suite Pasadena, CA 91105 odzerchenma@gmail.com /s/ Michelle L. Rice

48