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SILVA RUN WORLDWIDE LIMITED v. GAMING LOTTERY CORPORATION

United States District Court, Southern District of New York


April 4, 2003

SILVA RUN WORLDWIDE LIMITED, PLAINTIFF,
v.
GAMING LOTTERY CORPORATION, ET AL., DEFENDANTS. IN RE GAMING LOTTERY SECURITIES LITIGATION THIS DOCUMENT RELATES TO: PROSKAUER ROSE LLP, PETITIONER, V. GALAXIWORLD.COM LIMITED AND JACK BANKS, RESPONDENTS.

The opinion of the court was delivered by: Robert P. Patterson, Jr., United States District Judge

OPINION AND ORDER

On September 13, 2002, Proskauer Rose LLP ("Proskauer") moved for an order and judgment (1)(a) pursuant to Local Civil Rule 83.9(a) holding Respondent, Jack Banks, in civil contempt for his failure to comply with this Court's order dated May 8, 2002 requiring Banks to dismiss his Ontario action; (b) requiring Banks to pay weekly fines into Court until he complies with this Court's order dated May 8, 2002; and (c) awarding damages to Proskauer as compensation for fees and expenses incurred as a result of Banks' contempt of the order dated May 8, 2002, including the fees and costs incurred in making this motion, and providing for the future award of damages for future fees and expenses so incurred; and (2) directing entry of judgment against Respondents Banks and GalaxiWorld.com, Limited ("GalaxiWorld") (collectively, "Respondents") in the amount of the attorneys' fees and costs incurred by Proskauer as a result of Banks' and GalaxiWorld's noncompliance with this Court's January and March 2000 payment orders as authorized by this Court in its contempt order dated February 8, 2001. In re Gaming Lottery Security Litigation, 2001 U.S. Dist. Lexis 1204, *18 (S.D.N.Y. 2001). The motion was supported by an affirmation of Leon P. Gold dated September 10, 2002 ("Gold Affirmation"), an affidavit of Karen E. Clarke dated April 3, 2002 ("Clarke Affidavit"), and further supported by a reply affirmation of Gold dated October 14, 2002 ("Gold Reply Affirmation") attaching Proskauer's bills and expenses.

Facts

From January 2000 to February 2001, the Court and the Second Circuit Court of Appeals fully adjudicated an attorney/client dispute between Proskauer and GalaxiWorld and Banks, (the "Ancillary Proceeding") ancillary to two related actions before this Court, In re Gaming Lottery Securities Litigation, 96 Civ 5567, and Silva Run Worldwide Ltd. v. Gaming Lottery Corp., et al., 96 Civ 3231. During this period, this Court, attempting to enforce the Court's judgment, entered orders requiring Galaxi World and Banks, as President, to comply with post-judgment discovery demands by Proskauer in its efforts to cause Galaxi World to pay the outstanding fees (currently over $400,000) due Proskauer.*fn1 The Court of Appeals affirmed the judgments entered on January 10, 2001. Silva Run Worldwide Ltd., et. al. v. Galaxiworld.com Ltd., 242 F.3d 367 (2d Cir. 2001).

Finally, after a year of repeated enforcement orders, this Court in an opinion and order filed February 13, 2001, (1) held GalaxiWorld and Banks in contempt for their failures to comply with the January and March 2000 judgments and subsequent payment orders, and failures to appear, produce documents and give testimony concerning the location of GalaxiWorld's assets; (2) dismissed their affirmative claims asserted in the Silva Run case; and (3) ruled that Proskauer should be entitled to recover its attorneys' fees and costs incurred due to the Respondents' actions of noncompliance relating to the Court's payment orders of January 13, 2000, January 26, 2000 and March 6, 2000. (Gold Affm., Exh. F at 3-4. See also, In re Gaming Lottery Securities Litigation, 2001 U.S. Dist. Lexis 1204 (S.D.N.Y. 2001).

Notwithstanding that the attorney/client dispute had been fully adjudicated in the Ancillary Proceeding and affirmed by the Court of Appeals on January 10, 2001, Banks initiated an action in Ontario, Canada, on January 14, 2002, against Proskauer and several of its attorneys, one of whom was deceased, claiming $400,000,000 in compensatory damages and $10,000,000 in punitive damages. The claims either were, or could have been, litigated in the Ancillary Proceeding. Accordingly, on Proskauer's motion dated April 14, 2002, this Court issued an opinion and order dated May 8, 2002, enjoining Banks from proceeding with the Ontario action and ordering him to dismiss that action. (Gold Affm., Exh. C at 19.) See also, Silva Run Worldwide Ltd., v. Gaming Lottery Corp., 2002 U.S. Dist. Lexis 8307 (S.D.N.Y. 2002). Proskauer has brought the instant motion requesting damages and sanctions due to Banks' failure to obey this Court's order dated May 8, 2002, and also applying for the attorneys' fees permitted by this Court's order filed February 13, 2001.

Oral argument on Proskauer's motion was held on October 15, 2002. At that argument, Proskauer pointed out that Banks had pressed ahead with his Ontario action, despite the clear and unambiguous order of the Court dated May 8, 2002, and despite Proskauer's suggestion of a temporary stay of the Ontario suit pending Banks' appeal of the May 8, 2002 order. (October Hearing Transcript at 2-3.) Proskauer argued that Banks intentionally refused to comply with the Court's order dated May 8, 2002, and requested damages and an order imposing a fine of $1,000 per week for Banks' non-compliance with the order dated May 8, 2002. (Id. at 5.) Banks did not dispute that he had not obeyed this Court's order dated May 8, 2002, but argued that since he had appealed that order, this Court should take no action pending the appeal.*fn2 (Id. at 21, 23-24.) After hearing the parties, this Court granted Proskauer's request (1) for an order, pursuant to Local Civil Rule 83.9(a), holding Respondent Banks in civil contempt for failure to comply with this Court's order dated May 8, 2002 requiring Banks to dismiss his Ontario action, and (2) for an order requiring Banks to pay weekly fines of $1,000 into Court until he complies with the May 8, 2002 order. (Id. at 45-46, 56.) This order was fully justified because Banks had not obtained a stay pending appeal. See, Maness v. Meyers, 419 U.S. 449, 458 (1975); McDonald v. Head Criminal Court Supervisor Officer, et. al., 850 F.2d 121, 124 (2d Cir. 1988).

With respect to the second branch of the current motion, Proskauer pointed out in this Court's opinion and order filed February 13, 2001, holding Banks and GalaxiWorld in contempt for their failure to comply or make any reasonable or diligent efforts to comply with the Court's payment orders dated January 13, 2000, January 26, 2000, and March 6, 2000, the Court had also ordered that "Galaxi World and Banks . . . pay Proskauer's attorneys' fees and costs incurred as a result of their non-compliance with the Court's payment orders in an amount to be determined in a future supplemental proceeding upon Proskauer's application." (Gold Affm., Exh. F at 4; Oct. Hrg. Tr. at 9-10.) Banks argued in opposition to the motion, based on declarations attached to his opposing papers, that Banks had lacked the ability to cause Galaxi World to comply with the payment orders and that, therefore, there was no basis to hold Banks in contempt. (Declaration of Jack Banks, dated October 4, 2002, at ¶¶ 4, 6.) Banks' argument overlooks the following: (1) that the payment orders of January 13, January 26, and March 6, 2000, ordered Banks, who, at the time, was President and Chief Executive Officer of GalaxiWorld, to cause GalaxiWorld to pay Proskauer the outstanding fees, and that the Second Circuit affirmed those orders on January 10, 2001; (2)(i) that this Court's order dated February 9, 2001 found that GalaxiWorld and Banks had not met "their burden to demonstrate an inability to comply with the orders, either currently or in the past" (Gold Affm., Exh. F at 3); (ii) that `Banks had asserted an inability to comply with the orders but has not proffered any evidence thereof' (id.); (iii) that the Court ordered that "GalaxiWorld and Banks shall be required to pay Proskauer's attorneys fees and costs incurred as a result of their noncompliance . . ." (id. at 4); and (3) that Banks and Galaxi World did not file an appeal from the order dated February 9, 2001. Accordingly, it is clear that Respondents' opposing papers are collateral attacks on the prior orders of this Court dated January 13, January 16 and March 6, 2000, and February 9, 2001, and a collateral attack on the decision of the Second Circuit of January 10, 2001, affirming the payment orders of January and March 2000, each of which is res judicata.

Nevertheless, since Respondents' counsel objected to the amounts of time charges and expenses for which Proskauer was requesting payment (see Gold Reply Affm., Exhs. G, H, I and M), and had only received exhibits itemizing those charges the night before argument, the Court granted Respondents' application for a hearing with respect to Proskauer's time charges and expenses on both branches of Proskauer's motion. (Oct. Hrg. Tr. at 47.)

On December 18, 2002, this Court held an evidentiary hearing pursuant to Respondents' request during the argument of the motion. (Id. at 35-36.) At the December evidentiary hearing, Proskauer submitted documentary and testimonial evidence of (1) Proskauer's damages incurred as a result of Bank's contempt of the Court's May 8, 2002 anti-suit injunction order, which covered both bills submitted by Stikeman Elliott, Proskauer's Canadian counsel (December Hearing, Exhs. G and 10), and the attorneys' time charges and expenses incurred by Proskauer itself (Dec. Hrg., Exhs. 2, 3, 4, 5, 6, 7) arising from Banks' failure to observe the May 8, 2002 order, not including: (a) its fees in connection with Respondents' appeal of that order (see Oct. Hrg. Tr. at 49), and (b) time of Proskauer's partners conferring as clients with Stikeman Elliott (see id. at 50),*fn3 and (2) Proskauer's damages incurred as a result of Banks and GalaxiWorld's actions in failing to cooperate in judicial enforcement proceedings in contempt of the Court's January and March 2000 payment orders, based on only Proskauer's own internal fees and expenses. (See Dec. Hrg. Exh. 11.) The fees of Bart Schectman, outside collection counsel for Proskauer, were not included. (See id. at ¶ 7.)

Discussion

Stikeman Elliott Charges

With respect to the first branch of the application, Proskauer submitted four bills from Stikeman Elliott (Dec. Hrg., Exhs. G, 10), each of which contained Stikeman Elliott's attorneys' contemporaneous records of time and expenditures from mid-May to mid-November 2002 in connection with Banks' Canadian action (Gold Reply Affm. at ¶ 6, Exh. G; Dec. Hrg, Exhs. G, 10) and a summary chart identifying and totaling the portions of these bills for which Proskauer sought compensation in this contempt application (U.S. $26,044.76). (Dec. Hrg., Exh. 9; Dec. Hrg. Tr. at 128-130, 132-133.)

Respondents do not object to Stikeman Elliott's specific charges, but (1) argue that the U.S. dollar amounts requested should be calculated at the conversion rate applicable at the time that the Stikeman Elliott bills were paid, instead of at the date of the motion (Dec. Hrg. Tr. at 131); (2) state, without specification, that the bills reflect substantial duplication, especially in "conducting research" between Stikeman Elliott and Proskauer (Banks' Memorandum in Opposition dated December 27, 2002 at 8); and (3) argue that the amount and reasonableness of attorneys' fees in Canada will be determined by the Canadian court at the conclusion of the action and that this Court should await that determination. (Id.)

This Court accepts Respondents' argument that the conversion rate at the time the bills were paid applies; this results in a total of $26,074.13 due for payments to Stikeman Elliott (Proskauer's Post Hearing Memorandum at see id., Appendix 4). Respondents' third objection is frivolous. Respondents' second objection is based on speculation by Banks' counsel, who presented no evidence from Banks' Canadian counsel, or any other witness, to show that the bills were not justified or that they reflected substantial duplication of effort by Proskauer and Stikeman Elliott. Accordingly, Proskauer is awarded $26,074.13 for the Stikeman Elliott bills paid in 2002.

Evidence Supporting Proskauer's Time Charges

At the evidentiary hearing on December 18, 2002, Proskauer submitted its own updated computer-maintained records reflecting time expended and expenses incurred by Proskauer's attorneys and staff, both in connection with (1) the anti-suit injunction motion, and (2) Proskauer's efforts to collect the outstanding fees owed to it pursuant to the Court's payment orders of 2001. (Dec. Hrg. Exhs. 2, 3, 4, 5, 6, 7, 11, 12.) Leon Gold and Karen Clarke testified for Proskauer at the hearing, establishing that those exhibits contained accurate, contemporaneous records of the time expended and expenses incurred by Proskauer on those matters, recorded by the individual timekeeper at or about the time the work was done, pursuant to Proskauer's policy of making accurate, timely reports of the time spent on every matter, and that these records were prepared and maintained in the same manner as for Proskauer's regular clients. (Dec. Hrg. Tr. at 11-17, 113, 140-41; see Gold Reply Affm. at ¶ 7.) The testimony also established that the hourly rates charged by Proskauer were the same on these matters as for Proskauer's client matters and are comparable to the rates charged by other comparable law firms in New York City. (See Dec. Hrg. Tr. at 12-13.)

The portions of Proskauer's time and disbursements for which Proskauer seeks compensation in the first branch of this application were calculated and now total $106,276.63. (See Dec. Hrg. Exhs. 2A, 3A, 4A, 8; Dec. Hrg. Tr. at 118-121, 126-128.) The portions of the time and expenses for which Proskauer seeks compensation in the second branch of this application were calculated and total $257,266.40 (Dec. Hrg. Exhs. 11, 12; Dec. Hgr. Tr. at 133-36, 140-144).

Fees and Expenses for Banks' Contempt of the Order Dated May 8, 2002

At the hearing in December 2002, Proskauer's attorneys, Mr. Gold, the partner in charge, and Ms. Clarke, the attorney responsible for most of the Court appearances, testified and were cross-examined as to the nature of the services performed by the various time keepers. Respondents argue that Proskauer's time should not be compensated because conferring with Canadian counsel is "a situation no different than any attorney/client communication" (Banks' Mem. in Opp. at 7). That argument overlooks the circumstances herein for which the time charges requested (a) did not include Proskauer's partners' time while in a client capacity (see Dec. Hrg. Tr. at 49-51); (b) required coordination between the ongoing Ontario actions and U.S. contempt proceeding; (c) included identification and assessment of the nature of those judicial actions which had taken place in the Galaxi World proceeding, which bore on the impropriety of Banks pursuit of the Ontario proceeding.

On cross examination, Respondents' counsel challenged principally the need for assigning junior personnel to do legal or factual research, instead of assigning that research to Clarke. (Id. at 150-51.) In every case, Proskauer had adequately responded by pointing out that, due to the time constraints and other work responsibilities of Ms. Clarke, a senior associate, the junior attorneys, and in one case, a summer associate, had been assigned to conduct that research. (Id. at 151 157, 159.) Respondents are particularly critical of the assignment of a summer associate for a task of research. (Id. at 157-58.) It must be recognized, however, that a summer associate's work, if useful, can be and is billed, albeit at a lesser hourly rate. Clarke, who was familiar with the summer associate's work, concluded that the summer associate's research was useful. (Id. at 116-17.) Respondents also objected to the number of hours charged by a first year associate. (Id. at 146, 150-51.) Clarke was also familiar with the first year associates' work and explained that the time expended was not exorbitant and was useful. (Id. at 115-16, 156.)

Banks' argument seems to be based on the theory that his own time and expenses in the proceedings were far less than those of Proskauer, and that the Court should be guided accordingly. Banks could have agreed to Proskauer's proposal of a stipulation to a stay of the Ontario action pending his appeal. Accordingly, Banks' own actions have caused these expenses by Proskauer. In the injunction proceeding, Proskauer had to draw up the motion papers and prepare the supporting memorandum, citing to the relevant cases, whereas Banks' counsel merely had to raise objections. Again, in connection with the application for, damages, Proskauer had to prepare the necessary motion papers, and assemble and prove the damages that Banks was causing, whereas Respondents' counsel has merely filed objections to Proskauer's papers. Banks has not shown any valid reason for this Court not to approve the fees and expenses Proskauer seeks for Banks' contempt of the order dated May 8, 2002.

Proskauer Fees and Expenses Incurred in its Efforts to Collect on the Judgment

In connection with Proskauer's collection efforts on the judgments entered in January and March 2000, Banks and Galaxi World have failed to pay any sums to Proskauer and have not only failed to cooperate in post-judgment discovery but have also taken actions to frustrate that discovery. GalaxiWorld, with Banks' assistance, by removing itself from the United States and Canada to Bermuda, to the British Virgin Islands and then, to Gibraltar, has prevented ordinary post-judgment collection efforts from proceeding. They also have failed to obey a number of discovery orders of the Court. The result is that, due to the actions of Banks and GalaxiWorld, post-judgment endeavors have required extraordinary efforts by Proskauer to locate any assets that might be subject to collection. Thus, the tactics employed by Respondents and their counsel have caused considerable effort and expense to Proskauer, just as by demanding an evidentiary hearing as opposed to briefing, Proskauer's expenses on the contempt proceeding increased the cost to Proskauer.

Counsel for the Respondents first makes a general objection in that Proskauer's exhibits of time charges and expenses do not "as a general matter" meet the factors to be considered in determining the reasonableness of attorneys' fees. (Banks' Mem. in Opp. at 2-3, citing R. Rossi's Attorneys' Fees § 5.1 (3d ed. 2001), citing Rule 1.5(a) of the Rules of Professional Conduct of the American Bar Association, and this Court's opinion in Cottonwood Holdings. Inc. v. C3, Inc., No. 94 Civ. 3438 (RPP), 1994 U.S. Dist. Lexis 15663, at *67 (S.D.N.Y. Nov. 3, 1994.))

As a preliminary matter, this Court in Cottonwood Holdings reduced the fees claimed by the plaintiff in that case due to a "reasonable attorneys' fees" clause contained in an agreement between the parties. Cottonwood Holdings, 1994 U.S. Dist. Lexis 15663 at *4-*5 Such cases are decided pursuant to a different standard than an application for reimbursement of fees caused by Respondents. See Diamond D. Enterprise U.S.A., Inc. v. Steinsvaag, 979 F.2d 14 (2d Cir. 1992); In Time Products. Ltd. v. Toy Biz, Inc., 38 F.3d 660 (2d Cir. 1994). Secondly, in Cottonwood Holdings, this Court concluded that the claims for time of plaintiffs attorneys were too high because the time charges showed that the name partners in the firm accounted for 70% of the time and more junior attorneys only 30%, the reverse of what should be the case in a simple collection on a note and the reverse of the situation here.*fn4 The time charges here show that Proskauer did not assign senior partners to take "the laboring oar" but assigned that task to Ms. Clarke, a senior associate, already familiar with the underlying case, and to junior attorneys.

The Court has considered the following factors enumerated in Rossi § 5.1 as possibly relevant to Proskauer's application:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly;
(2) the likelihood that certain Proskauer attorneys' time was precluded by other employment;*fn5
(3) the fees customarily charged in the locality for similar legal services;
(4) the amount involved in the Canadian action and the time charges sought for that action;
(5) the time limitations imposed by the circumstances;*fn6 and
(6) the experience, reputation, and ability of the lawyer or lawyers performing the services,
and concludes that the fees and expenses sought by Proskauer do not, on their face, violate these standards.

Despite the Court's conclusion that the fees and expenses that Proskauer seeks to recover on both matters were properly recorded, the total fees of $257,260 incurred by Proskauer in seeking to collect the $420,000, plus interest, owed by Banks and Galaxi World pursuant to the judgments entered by the Court in January and March 2000, appear high. However, taking into account the conduct of Respondents, particularly the refusal of Banks and Galaxi World to take any action (1) to turn over any corporate documents of Gaming Lottery, (2) to provide any oral or written discovery to Proskauer, despite several motions to this Court in which Banks' and Galaxi World's owners [and] executives were ordered to appear for discovery but did not, and (3) to pay any portion of the judgment voluntarily, the total fees claimed by Proskauer appear to be justified under those circumstances. Nevertheless, the Court will proceed to examine each of Respondents' specific objections to the time record expenditures submitted by Proskauer to determine whether any deductions should be made.

In their post-hearing memorandum and exhibits, Respondents assert that Proskauer should not receive attorneys' fees and expenses relating to Proskauer's efforts to collect Galaxi World funds from G.Cash amounting to $47,302.75 (Banks' Mem. in Opp., Exh. 1, Schedule A) as requested, for the period January 28, 2000 to December 31, 2000 (Dec. Hrg. Exh. 11). Banks, in his post-hearing memorandum, also contends that Proskauer's efforts to collect funds from G.Cash should have been accomplished with less expense. (Banks' Mem. in Opp. at 4.) Proskauer's effort to collect Galaxi World's funds from G.Cash were based on a reasonable analysis of the facts then available to Proskauer. GalaxiWorld was continuing to conduct its gambling business in the United States over the internet and, in that connection, directed that customers use "g.cash" (internet money) to be created and provided by G.Cash, a newly formed company without any other customer for its "g.cash," and which was also located in Gibraltar. Based on these facts, Proskauer's conclusion that G.Cash was a Galaxi World subsidiary being utilized to continue to conduct business in the United States was not unreasonable. Accordingly, Proskauer's efforts in 2000 to attach G.Cash's funds at Bank Hapoalim and at Hong Kong Shanghai Bank Corporation ("HSBC") which were to be remitted to Galaxi World were reasonable efforts to recover the funds Galaxi World owed to Proskauer. The fact that G.Cash managed to mislead the Court initially into believing that there were no house receipts owing to Galaxi World does not subvert the reasonableness of Proskauer's making that effort to collect Galaxi World funds. Ultimately, Proskauer did collect over $10,500 of GalaxiWorld's funds from G.Cash. It also finally obtained a turnover order from the Court over GalixiWorld's objection, requiring Galaxi World to turn over those funds it received from G.Cash. (Gold Affm., Exh F at 3-4.) See also, In re Gaming Lottery, 2001 U.S. Dist. Lexis 1204 (S.D.N.Y. 2001). Needless to say, GalaxiWorld has not complied with that order.

Over objections by Respondents, Proskauer was also able to attach and collect funds held for GalaxiWorld at the Royal Bank of Scotland. (See id.) Respondents list in their Schedule E, $29,828.75 of entries in Schedule A which they assert reflect duplication of assignments by the attorneys involved (Banks' Mem. in Opp., Exh. 1, Sched. E); however, only the first four entries on Respondent's Schedule E correspond to entries in Respondents' Schedule. A. Two of those entries for Ms. Clarke reflect several types of work performed and, thus, it cannot be concluded from the entry that it consists of a duplication of another attorney's work as opposed to review of that work, as testified to by Ms. Clarke. A third entry for $440, reflects Mr. Gold's review of the motion to be filed. For the partner in charge to take less than one hour to review a motion to be filed, is not duplication, and this time charge is an appropriate charge for such a review; the last entry, a charge for Mr. Bruce Boyden, is not duplication of time expended by Mr. Bart Schectman, as claimed by Respondents, since Mr. Schectman's charges as outside collection counsel are not being requested by Proskauer. (Dec. Hrg. Exh. 11 at ¶ 9.) Thus, Respondents' claim of duplicating charges of $47,302.75 is totally without support. The Court does find, however, that there is no evidence that Banks caused any of the charges involved in the G.Cash collection effort. Accordingly, Respondent Banks will not be held jointly liable for Proskauer's charges of $47,302.75 on G.Cash matters, which Proskauer acknowledges is a fair approximation of those charges. (Proskauer Post Hrg. Mem. at 6, n. 2.)

Respondents next claim that in Respondents' Exhibit 1, Schedule B of the post-hearing memorandum, there are "entries containing no explanation." (Banks' Mem. in Opp. at 4.) The first two entries on Exhibit B are not contained in Proskauer's record of time charges. (Banks Mem. in Opp. Exh. 1, Sched. B.) Nor is there any charge of $350 for September 25, 2000 as claimed by Respondents. (Id.) Furthermore, an examination of all the other entries in Exhibit B do show an explanation of the charges, contrary to Respondents' claim of no explanation. In view of these findings, Respondents' claim with respect to Exhibit B is rejected.

Respondents next object to Schedule C, a list of time charges which total $12,753.75 which they state pertain to Respondents' February/March 2000 request for turnover of Proskauer's legal file. (Banks' Mem. in Opp., Exh. 1, Sched. C.) However, examination of Schedule C shows that the first two items on February 19, 2000, totaling $5,103.75, pertain not only to Respondents' request for the turnover of Proskauer's documents, but also Proskauer's right to a retaining lien in view of Respondents' challenge of that right. The remaining time charges relate not to Respondents' demand for a turnover of Proskauer's legal file and other documents, but to Proskauer's efforts in obtaining a turnover order in October 2000 with respect to Galaxi World's receipt of funds from G.Cash, which resulted in Proskauer's obtaining a turnover order requiring Galaxi World to turn over funds received from G.Cash and, thus, do not relate to the February! March 2000 turnover of Proskauer's legal file demanded by Banks, as explained in the opinion and order filed February 13, 2001. These charges are appropriate because, as found by the Court, Proskauer had a right to a turnover order. As for the two items of charges totaling $5,103.75 in February 19, 2000, these items reflect that, due to Respondents' challenge in Court to Respondents' right to a retaining lien, Proskauer was obliged to do research and prepare a brief for the Court supporting its claim for a retaining lien. In this case, $5,103.75 does not appear out of line under the circumstances.

Respondent Banks also objects to charges that he claims pertain to his appeal of this Court's payment orders (Banks' Mem. in Opp., Exh. 1, Sched. D), although Proskauer has stated that its time charges relating to Respondents' appeals of both this Court's payment orders and the injunction order are not included on this application (Dec. Hrg. Tr. at 84, 127). Review of the time charges shows by their reference to "BS" (Bart Schectman)*fn7 that these services relate to Proskauer's filing an appeal of the Court's decision in favor of G.Cash (based on misleading information) and do not relate to an appeal of this Court's decision in favor of Proskauer and against Respondents in January or March 2000 as claimed by Respondents.*fn8

Conclusion

Accordingly, the Court (1) reaffirms its holding on October 15, 2002 that Jack Banks is in contempt of this Court's order dated May 8, 2002, requiring Banks to dismiss his Ontario lawsuit, and (2) reaffirms its finding on October 15, 2002 that Jack Banks' contempt to have been a willful and deliberate decision, and imposes a fine of $1,000 a week as of October 15, 2002, for his continued contempt of this Court's order dated May 8, 2002, and that said fine shall be paid to the Clerk of the Court forthwith. The Court also awards to Proskauer $132,350.76 to be paid by Banks for damages caused Proskauer due to Banks' continued contempt of this Court's order dated May 8, 2002, and directs that a money judgment be entered against Jack Banks in that amount. Furthermore, if Banks does not forthwith dismiss the Ontario action or continues to flout the May 8, 2002 order of this Court, future damages for Proskauer's fees and expenses may be awarded against Banks. The Court also directs that in connection with the January and March 2000 payment orders, a money judgment of $257,266.40 be entered in favor of Proskauer and against Galaxi World for its contemptuous conduct in disregarding various orders of the Court in attempting to enjoin the January and March 2000 judgments of this Court affirmed by the Court of Appeals, and that Banks be jointly liable for $209,943.65 of the $259,266.40 judgment against Galaxi World for his contemptuous conduct in refusing to obey valid orders of this Court to cause Galaxi World to make such payments and to submit to post-judgment discovery. Proskauer is ordered to submit proposed judgments on five days notice to Respondents.

SO ORDERED.


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