DEFENDANTS’MOTION FOR LEAVE

TO SUPPLEMENT THE RECORD

Robert C. Weaver, Jr., OSB #801350

E-Mail: rweaver@gsblaw.com

Gary I. Grenley, OSB #751380

E-Mail: ggrenley@gsblaw.com

Paul H. Trinchero, OSB #014397

E-Mail: ptrinchero@gsblaw.com

Eryn Karpinski Hoerster, OSB #106126

E-Mail: ehoerster@gsblaw.com

Daniel L. Keppler, OSB #923537

E-Mail: dkeppler@gsblaw.com

Garvey Schubert Barer

121 SW Morrison Street, Eleventh Floor

Portland, Oregon 97204-3141

Telephone: (503) 228-3939

Peter A. Wald (admitted pro hac vice)

E-Mail: peter.wald@lw.com

Gavin M. Masuda (admitted pro hac vice)

E-Mail: gavin.masuda@lw.com

Nicole C. Valco (admitted pro hac vice)

E-Mail: nicole.valco@lw.com

Marcy C. Priedeman (admitted pro hac vice)

E-Mail: marcy.priedeman@lw.com

Latham & Watkins LLP

505 Montgomery Street, Suite 2000

San Francisco, California 94111

Telephone: (415) 391-0600

Attorneys for Defendant Deloitte & Touche LLP

(Additional Counsel Listed on Signature Page)

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

LAWRENCE P. CIUFFITELLI, for himself 

and as Trustee of CIUFFITELLI 

REVOCABLE TRUST, et al., 

Plaintiffs, 

v. 

DELOITTE & TOUCHE LLP; 

EISNERAMPER LLP; SIDLEY AUSTIN 

LLP; TONKON TORP LLP; TD 

AMERITRADE, INC.; INTEGRITY BANK 

& TRUST; and DUFF & PHELPS, LLC

Defendants. 

Case No. 3:16-cv-00580-AC 

MOTION FOR LEAVE TO SUPPLEMENT 

THE RECORD REGARDING PLAINTIFFS’

AMENDED MOTION FOR PRELIMINARY 

APPROVAL OF PARTIAL SETTLEMENT

BY DEFENDANTS DELOITTE & TOUCHE 

LLP, TD AMERITRADE, INC., 

EISNERAMPER LLP, AND DUFF & 

PHELPS, LLP

Expedited Consideration Requested

Case 3:16-cv-00580-AC Document 453 Filed 02/07/19 Page 1 of 6
Page 1 – DEFENDANTS’ MOTION FOR LEAVE

TO SUPPLEMENT THE RECORD

LR 7-1 CERTIFICATION

Pursuant to LR 7-1, it is certified that the parties made a good faith effort to resolve this 

dispute and have been unable to do so.

Counsel for Deloitte also conferred with counsel for Plaintiffs and Tonkon Torp LLP 

(“Tonkon”) regarding Defendants’ request for expedited consideration of this Motion for Leave 

to Supplement the Record (“Motion for Leave”). Tonkon represented that it “does not oppose 

the expedited schedule the non-settling defendants have proposed, but in doing so, . . . does not 

admit that the motion is timely.” Plaintiffs do not consent to the request for expedited 

consideration or briefing of this Motion for Leave. 

MOTION

Defendants Deloitte, TD Ameritrade, Inc. (“TD Ameritrade”), EisnerAmper LLP, and 

Duff & Phelps, LLC (collectively, the “Non-Settling Defendants”), hereby request leave to 

supplement the record related to Plaintiffs’ Amended Motion for Preliminary Approval of Partial 

Settlement (Dkt. 350) (“Motion”) between Plaintiffs and Defendant Tonkon (the “Proposed 

Tonkon Settlement”). Specifically, Non-Settling Defendants seek to submit briefing filed by 

Deloitte and TD Ameritrade in the Multnomah County Circuit Court (the “Circuit Court”), 

addressing legal issues as to which that Court has now deferred to this Court. See Declaration of 

Gavin M. Masuda in Support of Motion for Leave (“Masuda Decl.”), at Exs. 1, 2.

1

Non-Settling Defendants also request that this Motion for Leave be considered on an 

expedited basis because the hearing on Plaintiffs’ Motion for Preliminary Approval of Partial 

Settlement is scheduled for February 27, 2019. Non-Settling Defendants propose the following 

 

1 For purposes of this Motion, Non-Settling Defendants have submitted a redacted copy of the 

opposition brief to the Proposed Tonkon Settlement filed in the Circuit Court as Exhibit 1 to the 

Masuda Declaration. The information redacted therein has already been presented to this Court 

under seal in Non-Settling Defendants’ Response to Motion for Preliminary Approval of 

Settlement with Tonkon. See Dkt. 370, at 29-30. If the Court grants the Motion for Leave, Non- Settling Defendants will file unredacted versions of their briefs and all supporting exhibits with 

the Court, under seal as necessary to protect Tonkon’s financial information and to comply with 

the terms of confidentiality agreements between Tonkon and the Non-Settling Defendants.

Case 3:16-cv-00580-AC Document 453 Filed 02/07/19 Page 2 of 6
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TO SUPPLEMENT THE RECORD

briefing schedule for this Motion for Leave: Plaintiffs/Tonkon file opposition briefs by February 

14, and Non-Settling Defendants file their reply brief by February 20.

MEMORANDUM

As the Court is aware, the Proposed Tonkon Settlement is part of a “global” resolution of 

claims asserted against Tonkon in this action, the Albers, et al. v. Deloitte & Touche LLP action, 

Case No. 3:16-cv-02239-AC, also pending before this Court, and the Wurster, Pommier, 

Ramsdell, Layton and Cavanagh actions pending before Judge Kathleen Dailey of the Circuit 

Court.2 The Proposed Tonkon Settlement is conditioned upon both this Court and the Circuit 

Court entering orders barring non-settling defendants from asserting claims for contribution 

against Tonkon while providing those defendants with only a dollar-for-dollar (“pro tanto”) 

reduction of any judgment against them. If either court does not enter the bar order Plaintiffs and 

Tonkon request, Plaintiffs will exercise their option to withdraw from the Proposed Tonkon 

Settlement. See Dkt. 350, at 9-10.

Plaintiffs moved this Court for preliminary approval of the Proposed Tonkon Settlement 

on August 21, 2018. That Motion asks the Court to preliminarily approve the entry of the 

requested bar order based on an interim order issued by Multnomah County Circuit Judge David

Rees in Merrihew v. Charles Schwab, et al., No. 0907-10596 (the “Interim Merrihew Order”). 

As the parties’ briefing regarding the Motion demonstrates, the parties disagree as to (i) whether 

Merrihew states the correct rule of law, and (ii) whether Tonkon can in any event invoke that 

rule based on the financial information it has produced in this litigation to-date. Briefing on the 

Motion was completed on October 19, 2018, and this Court took the Motion under advisement 

on October 22, 2018.

 

2 The following five state court actions are pending before Judge Dailey: Wurster, et al. v. 

Deloitte & Touche LLP (Case No. 16CV25920), Pommier, et al. v. Deloitte & Touche LLP

(Case No. 16CV36439), Ramsdell, et al. v. Deloitte & Touche LLP (Case No. 16CV40659), 

Layton, et al. v. Deloitte & Touche LLP (Case No. 17CV42915), and Cavanagh, et al. v. 

Deloitte & Touche LLP (Case No. 18CV09052). 

Case 3:16-cv-00580-AC Document 453 Filed 02/07/19 Page 3 of 6
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TO SUPPLEMENT THE RECORD

Tonkon elected not to move for approval of its settlement with the plaintiffs in the state 

court cases until December 20, 2018. At that time, Tonkon and the state court plaintiffs filed 

Joint Motions for Entry of Limited Judgment of Dismissal (“State Court Motions”) with the 

Circuit Court. Like the Motion in this Court, the State Court Motions asked the Circuit Court to 

follow the Interim Merrihew Order. However, unlike the Motion, which focused largely on 

whether the Court should preliminarily approve the settlement, certify a settlement class, and 

whether the Proposed Tonkon Settlement is “fair, reasonable and adequate,” the State Court 

Motions focus exclusively on the legal and factual merits of the bar order that Tonkon seeks to 

have entered in all cases pending against it. Among other things, the State Court Motions 

advance arguments regarding the Interim Merrihew Order that were either not made or not fully 

discussed in the Motion. Deloitte’s response to the State Court Motions, attached as Exhibit 1 to 

the Masuda Declaration, and TD Ameritrade’s response, attached as Exhibit 2 to the Masuda 

Declaration, respond to these arguments.3

On January 31, 2019, Judge Dailey informed counsel that she will defer to this Court’s 

ruling on the “legality and fairness of” the Proposed Tonkon Settlement—meaning that this 

Court’s ruling on the Motion will inevitably impact the rights of parties to the state court actions, 

including Non-Settling Defendants. See Masuda Decl. Ex. 3. Therefore, to enable this Court to 

obtain a complete picture—and as a matter of fairness and due process— Non-Settling 

Defendants urge this Court to consider the full record, including the positions taken by Tonkon 

and Non-Settling Defendants in both actions. See S.E.C. v. McCarthy, 322 F.3d 650, 659 (9th 

Cir. 2003) (holding that fairness and due process require an opportunity to be heard “before the 

 

3 For example, the State Court Motions contain an extensive discussion of certain Oregon trial 

court orders that Tonkon claims support application of the Interim Merrihew Order to the facts of 

its proposed settlement. None of these trial court orders are even mentioned in the Motion. See 

Dkt. 350, at 16 (stating that a pro tanto credit is “appropriate under the circumstances” without 

discussion of how Oregon trial courts have addressed the question). The Non-Settling 

Defendants’ response brief also explains why no Oregon court actually has followed the Interim 

Merrihew Order, and why the other Oregon orders upon which Plaintiffs rely do not support their 

position. See Masuda Decl. Ex. 1, at 12-15. 

Case 3:16-cv-00580-AC Document 453 Filed 02/07/19 Page 4 of 6
Page 4 – DEFENDANTS’ MOTION FOR LEAVE

TO SUPPLEMENT THE RECORD

district court issues a judgment impacting [] rights and property”). Tonkon refused Deloitte’s 

request to submit to this Court the full record presented to the Circuit Court on these issues. 

Accordingly, Non-Settling Defendants request leave to supplement the record before this Court

with their respective response briefs and supporting exhibits filed in the Circuit Court. In the 

interest of providing the Court with a complete record, Non-Settling Defendants stipulate that 

Tonkon may submit its State Court Motion and any related reply brief to this Court, should it so 

choose.

4

Dated: February 7, 2019

Pursuant to L.R. 11-1(d), counsel listed below consent to the inclusion of their electronic

signatures on this submission.

THE FERRANTI FIRM LLC

By: _s/ William P. Ferranti

William P. Ferranti, OSB No. 160069

1819 SW 5th Avenue, Suite 403

Portland, OR 97201

Telephone: (503) 877-9220

Email: wpf@ferrantiappeals.com

-And –

Linda T. Coberly (admitted pro hac vice)

Joanna Rubin Travalini (admitted pro hac vice)

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, IL 60601

Telephone:(312) 558-5600

Email: lcoberly@winston.com

jtravalini@winston.com

Attorneys for Defendant EisnerAmper

LLP

LATHAM & WATKINS LLP

By: s/ Peter A. Wald 

Peter A. Wald (admitted pro hac vice) 

Gavin M. Masuda (admitted pro hac vice)

Nicole C. Valco (admitted pro hac vice)

Marcy C. Priedeman (admitted pro hac vice)

505 Montgomery Street, Suite 2000

San Francisco, CA 94111-6538

Telephone: (415) 391-0600

Email: peter.wald@lw.com

gavin.masuda@lw.com

nicole.valco@lw.com

marcy.priedeman@lw.com

–And–

Nicholas J. Siciliano (admitted pro hac vice)

LATHAM & WATKINS LLP

330 North Wabash Avenue, Suite 2800

Chicago, IL 60611

Telephone: (312) 876-7700

 

4 Judge Dailey wrote the parties to inform them that she would defer to this Court’s ruling on the 

Proposed Tonkon Settlement before Tonkon’s reply in support of the Joint Motions was due. In 

conferring about this Motion, Deloitte offered to agree that Tonkon could file a reply brief in 

Judge Dailey’s court, for purposes of completing the record before Judge Dailey. Tonkon 

refused this invitation as well. See Masuda Decl. Ex. 4; ¶ 6-7.

Case 3:16-cv-00580-AC Document 453 Filed 02/07/19 Page 5 of 6
Page 5 – DEFENDANTS’ MOTION FOR LEAVE

TO SUPPLEMENT THE RECORD

Email: nicholas.siciliano@lw.com

–And–

Robert C. Weaver, Jr., OSB No. 801350

Gary I. Grenley, OSB No. 751380

Paul H. Trinchero, OSB No. 014397

Eryn Karpinski Hoerster, OSB No. 106126

Daniel L. Keppler, OSB No. 923537

GARVEY SCHUBERT BARER, P.C.

121 SW Morrison Street, 11th Floor

Portland, OR 97204

Telephone: (503) 228-3939

Email: rweaver@gsblaw.com

ggrenley@gsblaw.com

ptrinchero@gsblaw.com

ehoerster@gsblaw.com

dkeppler@gsblaw.com

Attorneys for Defendant Deloitte & Touche 

LLP

HARRANG LONG GARY RUDNICK P.C.

By: s/ Sharon A. Rudnick

William F. Gary, OSB No. 770325

Sharon A. Rudnick, OSB No. 830835

360 E. 10th Avenue, Suite 300

Eugene, OR 97401-3273

Telephone: (541) 485-0220

Email: william.f.gary@harrang.com

sharon.rudnick@harrang.com

-And –

Stephen V. D’Amore (admitted pro hac vice)

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, IL 60601

Telephone: (312) 558-6468

Email: sdamore@winston.com

Attorneys for Defendant Duff & Phelps, LLC

HART WAGNER, LLP

By: s/ Matthew J. Kalmanson

Matthew J. Kalmanson, OSB No. 041280

Lindsay Howk Duncan, OSB No. 120974

1000 SW Broadway, Twentieth Floor

Portland, OR 97205

Telephone: (503) 222-4499

Email: mjk@hartwagner.com

lhd@hartwagner.com

-And –

Bruce M. Bettigole (admitted pro hac vice)

Nicholas Christakos (admitted pro hac vice)

EVERSHEDS SUTHERLAND (US), LLP

700 Sixth Street NW, Suite 700

Washington, D.C. 20001-3980

Telephone: (202) 383-0100

Email: brucebettigole@eversheds-sutherland.com

nicholaschristakos@eversheds-sutherland.com

Attorneys for Defendant TD Ameritrade, Inc.

Case 3:16-cv-00580-AC Document 453 Filed 02/07/19 Page 6 of 6