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### ,'<EI**rwr"',ri·Ir~~"** DEPARTMENT OF TRANSPORTATION ,'.n. \,,I**cHt~ :)/~)**  OFFICE OF HEARINGS WASHINGTON, DC

IN THE MATTER OF: FLEET AVIATION, LLC (Civil Penalty Action)
Monday, July 9, 2012 FDMS No. FAA-2011-1117 

### --b 

### P l:Sb

The above-entitled matter came on for litigation scheduling via teleconference, pursuant to notice, at 1:30 p.m.

BEFORE: THE HONORABLE J.E. SULLIVAN Administrative Law Judge

(202) 234-4433 

# RECEIVED JUL2·7

## 2012 

## HEARINGDOCKET

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• APPEARANCES:
On Behalf of the Respondent: GREGORY S. WINTON, ESQ. of: The Aviation Law Firm One Research Court, Suite 450 Rockville, MD 20850 (301) 294-8550 (301) 294-2525 fax On Behalf of the Complainant:
of:

(202) 234-4433 ZACHERY M. BERMAN, ESQ. Federal Aviation Administration Office of Regional Counsel AEA-7 1 Aviation Plaza Jamaica, NY 11434 (718) 553-3258 (718) 995-5699 fax

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### P-R-0-C-E-E-D-I-N-G-S 2 

### (1:28 p.m.) 3 

### JUDGE SULLIVAN: We are on the 4 record in the matter of Fleet Aviation, LLC. 5 

### This is Docket No. FAA-2011-117. Today is 6 Monday, July 9, 2012 and the parties have 7 convened by telephone for a 1:30 p.m. 8 litigation scheduling conference. 9 

### The FAA attorney, Zachery M. 10 Berman, is present. The Respondent attorney, 11 

### Gregory S. Winton is also present. Both 12 counsel are appearing by telephone. 13 Also present at the Office of 14 Hearings sitting as observers only are Melissa 15 Ngo, a law student intern with this office, as 16 well as Mark Soto, a law student intern with 17 this office. 18 Good afternoon, counsel. 19 

### MR. WINTON: Good afternoon. 20 JUDGE SULLIVAN: I'll just note 21 that on July 3, 2012, I received the jointly 22 

### proposed litigation scheduling and discovery
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### 1 plan from the attorneys. Thank you very much. 2 I do have a question to ask you 3 and I'll address this question first to Mr. 4 Berman. In the joint litigation schedule that 5 you presented to me, you were asking a Court 6 to essentially wait approximately four months 7 before initial discovery lS 

### even due with a 8 litigation discovery plan that extends the 9 actual hearing in this matter into next June 10 2013. 11 Given the fact that this matter 12 has been continued several times up until 13 today's date, you're talking about continuing 14 the matter for almost two years from the date 15 that it was referred to the Office of 16 Hearings. And I wanted to know why that is, 17 Mr. Berman. 18 

### MR. BERMAN: Well, to tell you the 19 truth, I originally

-- my proposed plan that 20 I submitted to Mr. Winton was about two months 21 earlier and he asked if we could push it back 22 two months and you're right, it has been
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### 1 postponed a lot. 2 

### I do note that the U.S. Attorney 3 is handling another case involving Fleet 4 Aviation and they're on the verge of a 5 settlement with Fleet Aviation that would 6 include these two cases. The only problem is 7 that the case looked like it was going to 8 settle all three of these cases, including 9 this one, but there's been a change in 10 management at Fleet and for whatever reason, 11 the settlement agreement is not going as 12 

### smoothly as we all hoped. 13 

### JUDGE SULLIVAN: So just so that I 14 understand when you refer to the U.S. 15 Attorney, you're talking about the U.S. 16 Attorney working under the Department of 17 Justice? 18 

### MR. BERMAN: Yes. 19 

### JUDGE SULLIVAN: Involving a case 20 in the Federal District Court? 21 

### MR. BERMAN: And we referred the 22 

### case that was originally being handled by the
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1 

### FAA, but since it was for over $50,000, the 2 FAA doesn't have jurisdiction, so we referred 3 it to the Justice Department for prosecution. 4 

### JUDGE SULLIVAN: Okay. So 5 essentially that portion of the disputes 6 involving Fleet Aviation is currently in the 7 Federal District Court being addressed by the 8 U.S. Attorney? 9 

### MR. BERMAN: Right, but the 10 settlement agreements that is being worked on 11 would include things that we have before us 12 

### today, one is the subject of this conference. 13 

### JUDGE SULLIVAN: When you say that 14 the U.S. Attorney is involved, do you know if 15 in that case there has been a trial date set 16 or any type of pretrial conference deadline 17 set while they're working on settlement? 18 

### MR. BERMAN: I would have to
-- I 19 don't know. Maybe Mr. Winton would know the 20 answer to that. 21 

### JUDGE SULLIVAN: Okay, well, Mr. 22 Winton, why don't I turn to you. Are you the
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### 1 attorney who is also litigating in the Federal 2 

### District Court with the U.S. Attorney 3 involving your client? 4 

### MR. WINTON: Yes, Your Honor. I 5 

### am involved in that case. As far as 6 litigating the case, the complaint has not yet 7 been issued and that's why we're trying to 8 resolve it pre-suit. 9 So settlement agreement from the 10 U.S. Attorney has been forwarded to my office, 11 sent to my client. I'm waiting for approval 12 

### on the settlement agreement and if and when 13 it's approved, then a complaint, along with a 14 voluntary dismissal would be filed together. 15 So it's really not in litigation yet. 16 JUDGE SULLIVAN: 

### Okay, when you 17 say that you're involved, does that mean that 18 you are the primary counsel representing your 19 client or you're simply being kept advised by 20 someone else? 21 

### MR. WINTON: I guess I'm the only 22 

### counsel at this point so I would say primary,
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1 certainly. But remember, if you do recall 2 from our last conference there was counsel for 3 the company that was dealing with the 4 mediation, I'm sorry, arbitration. And I'm 5 relying on that counsel to advise me when 6 there's going to be a wind down of the 7 corporation and anything else having to do 8 with it. 9 JUDGE SULLIVAN: Okay. I actually 10 don't have that specific note in my last 11 conference notes, so thank you for reminding 12 me. Just so that I'm clear, you have pre13 settlement negotiations going on in which 14 you're primary counsel, but you're consulting 15 with an arbitration lawyer who is also doing 16 an arbitration in this matter? 17 MR. WINTON: Your Honor, Your 18 Honor, and forgive me for the confusion. I 19 have on my calendar today both Zachery Berman 20 and yourself, two conferences scheduled for 21 two different cases. I want to make sure 22 we're all talking about the proper case. I
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1 

### know you gave us the number. What is the 2 caption of the case? 3 

### JUDGE SULLIVAN: We're talking 4 about the matter of Fleet Aviation. 5 

### MR. WINTON: Fleet Aviation, 6 

### correct, okay. 7 

### JUDGE SULLIVAN: F-L-E-E-T 8 

### Aviation. 9 

### MR. WINTON: That is the one in 10 

### which the U.S. Attorney has not filed a 11 

### complaint and I'm waiting for an answer from 12 

### the client for the settlement approval. So 13 actually there were three different matters. 14 Two, the FAA has filed; one is sitting with 15 the U.S. Attorney, no complaint has been 16 issued. 17 

### JUDGE SULLIVAN: Okay. 18 

### MR. WINTON: And the settlement 19 agreement would resolve all three. 20 

### JUDGE SULLIVAN: In general, not 21 

### specifically for this particular case, but in 22 general, based on your experience, how much
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1 time does it usually take for a response to 2 come back from your client and get forwarded 3 to the U.S. Attorney's Office? 4 MR. WINTON: Typically, and I've 5 been working with this client now going on 6 almost two years, I would have immediate 7 response. My understanding, over the last 120 8 days, the company has switched ownership or 9 management twice, so the current management 10 structure I am completely unfamiliar with. 11 Nobody advised me of what was going on there
. 12 And two principals from which I 13 understand I am waiting an answer for, I don't 14 even have direct contact with. So when you 15 ask me typically or normally, there is no more 16 typical or normal because it's a completely 17 different corporation as far as I know. 18 JUDGE SULLIVAN: Well, there's a 19 difference between switching management 20 representatives and switching ownership. So 21 let me ask you this, just in general, and in 22 terms of your general experience, how long
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### 1 have you usually taken with a client to 2 respond to the U.S. Attorney if you've had 3 that experience before? 4 

### MR. WINTON: This is the first 5 client I've had where the case has been 6 forwarded to the U.S. Attorney and again as 7 Mr. Berman said, it was because the amount in 8 controversy is in excess of the jurisdictional 9 limitations of the FAA, $50,000. 10 JUDGE 

### SULLIVAN: The reason I'm 11 asking you for some time responses, Mr
. 12 Winton, is to get a sense of whether this is 13 going to take two days, two weeks, two months, 14 or two years. I currently have a litigation 15 scheduling plan signed by you and Mr. Berman 16 suggesting that it may take up to a year and 17 that seems somewhat unusual to me. Would you 18 care to enlighten me? 19 

### MR. WINTON: I would certainly, 20 Judge. I just sent another email this morning 21 to the client who emailed me 13 days ago 22 saying that I will advise you as soon as I
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### 1 know, meaning within a day or two. Needless 2 to say two weeks have gone by and I haven't 3 

### received a response. 4 

### So the timeliness of the 5 responsiveness from my client has been 6 unintentional as far as what they're trying to 7 accomplish, but I understand the frustrations 8 that the key contact I have in dealing with 9 the new management as provided to us in this 10 litigation. 11 So I don't have an answer as far 12 as days, weeks, or months. I can tell you 13 that if I don't have an answer within 30 days, 14 a decision will have to be made as to whether 15 I continue as their counsel or dissolve or 16 find somebody else to represent them. 17 

### Mr. Berman and I have been in 18 discussion trying again to accomplish the 19 ultimate goal of settlement and resolution of 20 the cases. I think we both agreed that if we 21 pushed all the dates out 120 days from what he 22 had initially proposed, unfortunately, that
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### 1 did take us to the one year point with the 2 understanding and the expectation that we 3 would never get to that one year trial in June 4 

### of 2013. 5 So I apologize, Judge, if it looks 6 like we're stringing this along, but we're 7 just making it so that we don't have another 8 conference in three months and you say to us 9 again where are we, gentlemen? Why do we need 10 again to delay it inevitably to get to where 11 we need to be in a year from now? 12 JUDGE SULLIVAN: 

### Well, I 

### 13 appreciate that. My concern is that if you 14 end up moving to withdraw in 30 days, we're 15 going to end up having a conference anyway. 16 

### MR. WINTON: Possibly. 17 JUDGE SULLIVAN: 

### Very possibly, 18 particularly if your client has failed to 19 respond to you and we need to perfect the 20 record in terms of your withdrawal motion. 21 So let me turn back to you, Mr. 22 Berman. In terms of this litigation
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1 scheduling plan that was filed on July 3, 2 2012, was that your intent as well to just 3 give the parties in this case a little bit 4 more time to
-- 5 MR. BERMAN: Yes. 6 JUDGE SULLIVAN: You anticipated 7 me, but thank you. When you say yes, it's a 8 little bit more time to figure out if 9 settlement is going to occur or not? 10 MR. BERMAN: Yes. 11 JUDGE SULLIVAN: Okay, thank you. 12 Counsel, what I think this Court would like to 13 do is just continue this matter for another 14 six weeks or so, rather than setting up an 15 entire litigation schedule. The reason I say 16 that is because once I set up an entire 17 litigation schedule, that puts you on a 18 completely different track and it puts your 19 client, Mr. Winton, in a disadvantaged 20 position if, in fact, settlement does not 21 occur and you withdraw. So I'd much rather 22 have one more continuance of this particular
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### 1 case and if circumstances are such that Mr. 2 Winton, you feel that you need to withdraw in 3 30 days, we have a conference set up so that 4 you can file your motion and appear with 5 either your client or substitute counsel at 6 the next conference. That way if your client 7 does not settle, I will at least have the 8 ability to find out who the contact person is 9 going to be if you choose to move on to a 10 different case and a different client. 11 I don't want to be in a position 12 where six months from now I find out that 13 settlement didn't occur and nothing has been 14 done on the case because the client either has 15 essentially disappeared or doesn't have the 16 

### funds to continue to pay for counsel. I'd 

### 17 rather find that out sooner rather than later. 18 So let's talk about setting this 19 matter up for one more time on our calendars 20 and hopefully if all goes according to what I 21 hear as the primary plan, this particular 22 conference may not ever come to fruition.
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### Today is July 9th. Mr. Berman, 2 looking at your calendar first, I will be out 3 of the office for the last two weeks of 4 September. Back in the office the first 5 I'm sorry, the last two weeks of August, 6 excuse me, and back in the office for 7 Wednesday, Thursday, and Friday of September 8 5th, 6th, and 7th. Do any of those days work 9 for you? 10 MR. BERMAN: Let me just check. 11 Which dates in September? 12 JUDGE SULLIVAN: This will be the 13 week of September 2nd through the 8th. It's 14 

### the first full week of September. And I'm 15 talking about the days of Wednesday, September 16 5, 2012; Thursday, September 6, 2012; and 17 Friday, September 7, 2012. 18 MR. BERMAN: Let me just check one 19 thing. 20 (Pause.) 21 I'm available on September

-- only 22 on September 5th and 6th, not the 7th
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### JUDGE SULLIVAN: When you say 2 you're available, does that mean the world is 3 our oyster and you have no blackout times? Or 4 that you have some specific times you want to 5 

### share? 6 

### MR. BERMAN: All day, both days. 7 

### JUDGE SULLIVAN: Thank you. Mr. 8 Winton, turning to you, do you have any time 9 available on either September 5, 

### 2012 or 10 September 6, 2012? 11 

### MR. WINTON: Yes, Judge, I'm wide 12 open on those two days at this point. If I 13 

### may, I think I appreciate what you're 14 offering to do and I think that's the best way 15 

### to handle this case. I'm just wondering if 16 six weeks is enough or we should realistically 17 go for a 60 to 90-day period where I think 18 realistically we're either going to wrap this 19 up or I will have made that motion and we can 20 get new representation in place. I would hate 21 to do this again in six weeks. 22 JUDGE SULLIVAN: We're talking
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1 

### about eight weeks at this point. 2 

### MR. WINTON: Is it eight? Okay. 3 

### JUDGE SULLIVAN: We're talking 4 about two months from now and quite frankly if 5 your client is dilatory at this point in time 6 in responding to you in terms of the 7 settlement, presumptively you'll know in a 8 month or less whether or not this settlement 9 is going to go through. 10 MR. WINTON: I could give them 11 that deadline and certainly if I don't hear 12 something in 30 to 45 days that will be fine 13 before the conference. So I'm available all 14 day the 5th and 6th of September. 15 JUDGE SULLIVAN: I would encourage 16 you to give them an even shorter deadline than 17 that, but that's just my advice and an 18 observation. 19 How about if we plan on Thursday, 20 September 6th at the same time as this 21 conference, 1:30 in the afternoon, Eastern 22 

### Standard Time?
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• 19 1 MR. BERMAN: That works. 2 

### MR. WINTON: That,s fine. 3 

### JUDGE SULLIVAN: Then I, 11 

### plan on 4 either talking to you on Thursday, 9/6/2012 at 5 

### 1:30 p.m. for a litigation scheduling 6 conference or perhaps hearing from you prior 7 to Thursday, September 6, 2012 that you don,t 8 need my services any more. 9 

### With that, Mr. Berman, on behalf 10 of the FAA, is there anything else that you 11 would like to add or discuss on the record 12 today? 13 MR. BERMAN: No, Your Honor. 14 

### JUDGE SULLIVAN: Mr. Winton, on 15 behalf of the Respondent, anything else you 16 would like to add or discuss? 17 

### MR. WINTON: Nothing, Judge, but 18 thank you for the opportunity. 19 JUDGE SULLIVAN: Thank you very 20 much for your time. Counsel, it appears our 21 business is complete. We can go off the 22 

### record and I wish you all a good day.
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### MR. WINTON: Thank you. 2 

### MR. BERMAN: Thank you. 3 

### JUDGE SULLIVAN: Thank you, bye4 bye. 5 

### (Whereupon, at 1:47 p.m., the 6 teleconference was concluded.) 7 8 9 10 11 12 13 

### 14 15 16 

### 17 18 19 20 21 22

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Neal R. Gross & Co., Inc. 202-234-4433 Page 24

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• 25 C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Fleet Aviation

Before: 

### us DOT

Date: 07-09-12

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234-4433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE.,N.W. WASHINGTON,D.C. 20005-3701 www.nealrgross.com