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Schatzki v. Weiser Capital Management, LLC

United States District Court, Second Circuit

December 4, 2013

DEBRA SCHATZKI and BPP WEALTH, INC., Plaintiffs,
v.
WEISER CAPITAL MANAGEMENT, LLC, WEISERMAZARS, LLP and HOITSZ (A/K/A

LAWLER MAHON & ROONEY LLP, Albert K. Lawler, Esq., Christopher S. Rooney, Esq., James J. Mahon, Esq, New York, NY, Attorneys for Plaintiff.

STARK & STARK, P.C. Scott I. Unger, Esq., Lawrenceville, NJ, Attorneys for Defendants.

OPINION

ROBERT W. SWEET, District Judge.

The Plaintiffs have made a motion in limine and the Defendants have made six similar motions with respect to evidence to be presented at the trial of this action. The disposition of these motions follows.

The Plaintiffs' Motion With Respect To The Testimony Of Reich And Love Is Granted In Part And Denied In Part

Hans-Linard Reich ("Reich") is an expert proffered by the Defendants to testify about whether Defendants had a justification for preventing the disclosure of confidential data to Schatzki following her termination. This proposed testimony relates to the effects of Regulation S-P. Reich may testify with respect to facts relating to the Regulation but not as to any opinion concerning its application because "[i]t is not for witnesses to instruct the jury as to applicable principles of law, but for the judge." Highland Cap. Mgmt., L.P. v. Schneider , 379 F.Supp.2d 461, 470 (S.D.N.Y. 2005) (quoting Marx & Co., Inc. v. Diners' Club Inc. , 550 F.2d 505, 509-10 (2d Cir.), cert. denied, 434 U.S. 861 , 98 S.Ct. 188, 54 L.Ed.2d 134 (1977)). "[I]t is axiomatic that an expert is not admitted to provide legal opinions, legal conclusions, or interpret legal terms; those roles fall solely within the province of the court." Id. at 470. Under Fed.R.Evid. 704, "an expert may opine on an issue of fact within the jury's province, [but] he may not give testimony stating ultimate legal conclusions based on those facts." U.S. v. Bilzerian , 926 F.2d 1285, 1294 (2d Cir. 1991).

In Marx Co. v. Diners' Club , 550 F.2d 505, the Second Circuit was presented with an appeal from a jury verdict in favor of the plaintiffs on a breach of contract claim arising from the defendant's alleged failure to use its best efforts to make a registration statement for shares that it sold to the plaintiff effective, where the verdict was based in part on rebuttal testimony from an expert in securities regulation. The Second Circuit held that the trial judge had properly permitted the expert to testify with regard to the practices and procedures ordinarily followed by attorneys and corporations in the course of filing a registration statement and following up with the SEC to ensure that it becomes effective. Marx & Co. v. Diners Club , 550 F.2d at 509.

However, the Circuit Court held that the trial court erred when it allowed the expert to go beyond the customary practices of the securities industry and give his opinion as to the legal standards that he believed to arise from the parties contract and which he believed should have governed the defendant's conduct.Id. In the Court's words:

Recognizing that an expert may testify to an ultimate fact, and to the practices and usage of a trade, we think care must be taken lest, in the field of securities law, he be allowed to usurp the function of the judge. In our view, the practice of using experts in securities cases must not be permitted to expand to such a point, and hence we must... conclude that the leeway allowed to [the expert] was highly prejudicial to the appellant.

Id. at 512.

Reich's opinion as to the meaning and proper interpretation of the legal obligations imposed by Regulation S-P, as they apply to the facts of this case are precluded.

Victor J. Love ("Love") is proffered with respect to damages. He may testify as to matters contained in his reports but not as to matters which are not contained in his reports.

Defendants' Motion To Bar Testimony Of Schatzki And Edelman With Respect To BPP Wealth Inc. Is Denied

Defendants seek to bar the testimony of Debra Schatzki ("Schatzki") and Brian Edelman ("Edelman") on the value of BPP. Relevance is the principal objection to the testimony of its owners with respect to the value of BPP Wealth, Inc. ("BPP"), an entity formed by Schatzki prior to her relationship with the Defendants. According to the Plaintiff, BPP licensed certain marks and processes to ...


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