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PERLES v. KAGY

August 29, 2005.

STEVEN R. PERLES, P.C., Plaintiff and Counterclaim-Defendant,
v.
ANNE MARIE KAGY, Defendant and Counterclaim-Plaintiff v. STEVEN R. PERLES, ESQ., Third-Party Defendant.



The opinion of the court was delivered by: ALAN KAY, Senior District Judge

MEMORANDUM OPINION

Currently before the Court are Plaintiff, Counterclaim-Defendant Steven R. Perles, P.C. and Third-Party Defendant Steven R. Perles' (collectively "Perles") motion to waive posting of a supersedeas bond ("Pl. Mot.")[121], Defendant and Counter-Plaintiff Anne-Marie Kagy's (hereinafter "Kagy") opposition and motion for relief from judgment under Rule 60(b) and motion for sanctions in the form of attorney's fees ("Def. Opp'n.") [124]/[125]*fn1 and Thomas Fortune Fay's motion and accompanying brief to intervene to oppose Perles' motion seeking waiver of the supersedeas bond ("Fay Mot." & "Fay Br.") [122].

BACKGROUND

  The issues currently before this Court arise out of two separate but related contract disputes over fees awarded to Perles based on his work in two wrongful death and state-sponsored terrorism lawsuits, Flatow v. Islamic Republic of Iran, No. 97-0396 (D.D.C.) and Eisenfeld and Duker v. Islamic Republic of Iran, No. 98-1945 (D.D.C.). Anne Marie Kagy, a recent law graduate at the time, worked for Perles on these cases with the understanding that Perles would pay her a percentage of the fees, should any award be forthcoming. The bulk of Kagy's work on the state-sponsored terrorism cases involved Flatow, with some work on the Eisenfeld and Duker cases as well.

  Although Judge Royce Lamberth entered judgment for the plaintiff in Flatow against the Iranian defendants in excess of $250 million (approximately $23 million of which was compensatory), the possibility of actually collecting on the judgment was remote. On January 4, 2001, however, Congress appropriated money to pay the judgments in the Flatow and Eisenfeld and Duker cases, among others.

  With the subsequent availability of funds to pay the judgment and attorney's fees, a dispute arose between Kagy and Perles regarding the compensation to which she was entitled for her work on the Flatow and Eisenfeld and Duker cases. Unable to agree on payment for legal services, Kagy asserted an "attorney's lien" of $2,000,000 on the net proceeds of the judgment payments. (Fay Br. at 2.) On Jan. 18, 2001, Fay and Perles jointly transferred $2,000,000 from the escrow account holding the proceeds of the two cases to a separate trust account,*fn2 (hereinafter "the Greenberg Traurig trust account"), established specifically in response to Kagy's equitable lien. Id.; see also Perles v. Kagy, 339 F.Supp.2d 47, 52 (D.D.C. 2004) (hereinafter "Flatow Order") (explaining that Kagy's lien for attorney's fees caused Perles to place funds subject to the lien in a separate trust account pending a determination of the validity of the lien).

  On Jan. 19, 2001, Perles filed suit against Kagy, seeking a declaratory judgment that Kagy was only entitled to hourly compensation rather than a percentage share of the net fees received by Perles. Kagy counter-claimed for a one-third percentage of the fees, or in the alternative, for a judgment in quantum meruit for the value of her work.

  Following a bench trial in January 2003, Judge Thomas Penfield Jackson (now retired) found the existence of an oral contract between Kagy and Perles and found that Kagy was entitled to one third of any net fees paid to Perles in the Flatow case. Perles v. Kagy, Civ. No. 01-105, (D.D.C. April 10, 2003) (Docket #60) (hereinafter "Jackson Order"). Judge Jackson subsequently referred the case to the undersigned for a determination of the net fees paid to Perles.*fn3 Beginning December 16, 2003, the undersigned held a combined evidentiary hearing to determine of the "net fees" received by Perles in the Flatow case,*fn4 and to decide Kagy's quantum meruit claim regarding her work on Eisenfeld and Duker. On April 20, 2005, this Court entered an amended final order and judgment, nunc pro tunc, [113] awarding Kagy $1,339,675.35 plus actual accrued interest in the Flatow case and $47,326.09, plus actual accrued interest for the value of her legal services provided in the Eisenfeld and Duker case.

  On May 20, 2005, Perles filed a notice of appeal [117]. Kagy cross-appealed [120] on May 27, 2005. On June 17, 2005, Perles moved for a stay pending appeal and waiver of the supersedeas bond [121]. On June 20, 2005, Mr. Thomas Fortune Fay, Perles' co-counsel in the state-sponsored terrorism litigation, filed a motion to intervene [122]. Fay has asserted an interest in the Greenberg Traurig trust account in the amount of $1 million and opposes the use of the trust fund as an alternative to a supersedeas bond. Plaintiff's motion to waive the supersedeas bond, Fay's motion to intervene and Defendant's motion for relief from judgment are discussed in turn.

  DISCUSSION

  1. Perles' Motion to Waive the Supersedeas Bond

  The district court has broad discretionary power to stay a judgment pending appeal without the requirement of a supersedeas bond in appropriate cases. See FED. R. CIV. PROC. 62(d) & (g); FED. R. APP. PROC. 8(a) (requiring appellant to seek suspension or modification of the bond requirement in the district court before seeking such relief in the court of appeals); see also Federal Prescription Service, Inc. v. American Pharmaceutical Assoc., 636 F.2d 755, 756-60 (D.C. Cir. 1980) (upholding district court's authority to grant stay pending appeal without posting of a bond based on defendant's "continuing ability to satisfy the judgment").

  Appropriate circumstances for waiver include cases in which the net worth of the judgment creditor far exceeds the amount of the judgment, Federal Prescription, 636 F.2d at 761, where available alternative security arrangements exist, id. at 758-59, and situations in which posting a bond would place defendant's other creditors in jeopardy, Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794, 798-99 (7th Cir. 1986).

  The purpose of the bond is to protect the prevailing party from losses that could result if execution of the judgment is delayed. Federal Prescription, 636 F.2d at 760. A supersedeas bond should be required therefore, when there is "some reasonable likelihood of the judgment debtor's inability or unwillingness to satisfy the judgment in full upon ultimate disposition of the case." Id. at 760; see also FDIC v. Ann-High Associates, 129 F.3d 113, 1997 U.S. App. LEXIS 35547 at *3 (D.C. Cir. Dec. 2, 1997) (noting burden on the appellant to provide "an acceptable alternative means of securing the judgment"). Ordinarily, the existence of a trust account established in response to ...


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