United States District Court, E.D. New York
Plaintiffs: Herbst Law PLLC, Robert L. Herbst, Esq., Giskan
Solotaroff Anderson & Stewart LLP, Iliana Konidaris,
Esq., Beldock Levine & Hoffman LLP, Jonathan C. Moore,
Esq., Emery Celli Brinckerhoff & Abady LLP, Matthew D.
Brinckerhoff, Esq., Wolf Haldenstein Adler Freeman &
Herz, LLP, Jeffrey G. Smith, Esq., Cuti Hecker Wang LLP,
Mariann Meier Wang, Esq., Law Offices of Martin E. Restituyo
Esq., Martin E. Restituyo, Esq.
Defendants: Nassau County Attorney's Office Carnell T.
Foskey County Attorney, Liora M. Ben-Sorek, Esq., Robert F.
Van der Waag, Esq.
MEMORANDUM & ORDER
R. HURLEY, UNITED STATES DISTRICT JUDGE
purpose of this Memorandum and Order is to address and, to
the extent necessary, resolve the issues raised in the
plaintiffs’ July 8, 2016 letter. By way of format, the
subjects will be discussed sequentially under the captions
utilized by plaintiffs.
Deadline by Which the County Must Deposit the Amount of
the Judgment into Court
Court’s final judgment, defendants were directed
“to deposit into Court the sum of $11, 508, 000 within
30 days.” (Apr. 11, 2014 Final Judgment at 2.) Stays
were thereafter put in place pending appeal.
Second Circuit affirmed the final judgment with its mandate
being issued on June 16, 2016. As a result, the deposit into
Court was to be made by July 16, 2016. Plaintiffs reminded
defendants of this obligation by, inter alia, a letter dated
June 17th. Hearing nothing in response, plaintiffs provided
the Court with a status report via their July 8th letter and
an implicit request for the Court’s assistance as to
this - should such prove to be necessary - and some other
“loose ends” discussed infra.
[T]he County, subsequent to this Court’s [April 11,
2014] Judgment, had the County Legislature approve the full
amount of the Judgment; and, approved the issuance of any and
all bonds to pay the Judgment, if necessary. Further, the
County now has a Litigation Fund sufficient to pay these
amounts. Incidentally, these developments are the elements
which the County did not have in place when it first asked
this Court to dispense with any deposit or bond posting.
Accordingly, the County is ready, willing and able to pay any
amount of that judgment into Court or a bank, if required.
However, the County requests that this Court modify its
initial directive since it is no longer necessary. It is
respectfully requested that the County, if this Court
directs, will deposit Five Million ($5, 000, 000.00) Dollars
into a Special Revenue Account which would be a segregated
account earmarked, and to be used solely, for this
litigation. As any further money is needed beyond that
amount, the County can and will make those payments from its
Litigation Fund. This is especially appropriate in the
instant case since we will not know what claims will be
submitted to the Administrator and their amounts. Again, the
timeframe for the claims to be filed will not even expire for
almost two years (February, 2018).
(Defs.’ July 13, 2016 Letter at 2.)
Court, like plaintiffs, is “glad to hear that County is
able to comply with [the] July 16 deadline to pay the amount
of the Final Judgment into Court in compliance with the
30-day period in the Final Judgment.” (Pls.’ July
13, 2016 Letter at 1.) Defendants’ concomitant request
that its payment provisions be restructured in the manner
suggested is rejected for several reasons including:
April 11, 2014 Judgment, including the appeal therefrom,
represents the law of the case, and defendants have proffered
no convincing reason to disturb the Court’s earlier
directive, see Yick Man Mui v. United States, 614
F.3d 50, 53 (2d Cir. 2010)(“The mandate rule prevents
re-litigation in the district court not only of matters
expressly decided by the appellate court, but also precludes
re-litigation of issues impliedly decided by the appellate
the extent the County may be concerned about the interest
earned on the deposited money prior to its disbursement, the
$11, 508, 000 shall be deposited by the Clerk of Court into
an interest bearing account with the interest earned inuring
to the benefit of the County;
County’s apparent suggestion that the $5, 000, 000 it
proposes be deposited into a “Special Revenue
Account” may ultimately prove to be sufficient to
satisfy the defendants’ payment obligations seems
unrealistic given that there is already a charge of over $4,
000, 000 against the judgment. (See Defs.’
July 13, 2016 Letter at 2; Apr. 11, 2014 Final Judgment at
3-4 (“. . . in accordance with the Memorandum and Order
dated April 7, 2014, class counsel are awarded
attorneys’ fees of $3, 836, 000, and expenses of $182,
030, 25, to be paid first from the Common Fund and then by
defendants if, after the claims period ends, there is
insufficient money in the common fund to pay all class ...