Page 1 – DEFENDANT TD AMERITRADE, INC.’S REPLY IN SUPPORT OF MOTION 

FOR RECONSIDERATION OF DISCOVERY ORDER (DOC. 213)

Matthew J. Kalmanson, OSB No. 041280

Email: mjk@hartwagner.com

Lindsay Howk Duncan, OSB No. 120974

Email: lhd@hartwagner.com

HART WAGNER LLP

1000 SW Broadway, Twentieth Floor

Portland, Oregon 97205

Telephone: (503) 222-4499

Facsimile: (503) 222-2301

Bruce M. Bettigole (admitted pro hac vice)

Email: brucebettigole@eversheds-sutherland.com

Nicholas T. Christakos (admitted pro hac vice)

Email: nicholaschristakos@eversheds-sutherland.com

Gail L. Westover (admitted pro hac vice)

Email: gailwestover@eversheds-sutherland.com

EVERSHEDS SUTHERLAND (US) LLP 

700 Sixth Street NW, Suite 700

Washington, DC 20001

Telephone: (202) 383-0100

Facsimile: (202) 637-3593

Attorneys for Defendant TD Ameritrade, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

LAWRENCE P. CIUFFITELLI, for himself 

and as Trustee of CIUFFITELLI 

REVOCABLE TRUST; GREG and ANGELA 

JULIEN; JAMES and SUSAN 

MACDONALD, as Co-Trustees of the 

MACDONALD FAMILY TRUST; R.F. 

MACDONALD CO.; ANDREW NOWAK, 

for himself and as Trustee of the ANDREW 

NOWAK REVOCABLE LIVING TRUST 

U/A 2/20/2002; WILLIAM RAMSTEIN; and 

GREG WARRICK, for himself and, with 

SUSAN WARRICK, as Co-Trustees of the 

No. 3:16-cv-00580-AC

DEFENDANT TD AMERITRADE, INC.’S 

REPLY IN SUPPORT OF MOTION FOR 

RECONSIDERATION OF DISCOVERY

ORDER (DOC. 213)

Oral Argument Requested

Case 3:16-cv-00580-AC Document 239 Filed 04/05/17 Page 1 of 4
Page 2 – DEFENDANT TD AMERITRADE, INC.’S REPLY IN SUPPORT OF MOTION 

FOR RECONSIDERATION OF DISCOVERY ORDER (DOC. 213)

WARRICK FAMILY TRUST, individually 

and on behalf of all others similarly situated,

Plaintiffs,

v.

DELOITTE & TOUCHE LLP; 

EISNERAMPER LLP; SIDLEY AUSTIN 

LLP; TONKON TORP LLP; TD 

AMERITRADE, INC.; and INTEGRITY 

BANK & TRUST,

Defendants.

TD Ameritrade, Inc. submits this reply in response to Plaintiffs’ Opposition to TD 

Ameritrade, Inc.’s Motion for Reconsideration in order to address and differentiate the 

authorities relied on by Plaintiffs in arguing that TD Ameritrade failed to raise the issue of its 

arbitration rights in its Motion for Protective Order. 

TD AMERITRADE SUFFICIENTLY RAISED THE ISSUE OF ITS 

ARBITRATION RIGHTS IN ITS MOTION FOR PROTECTIVE ORDER

Plaintiffs are simply incorrect when they argue that TD Ameritrade did not adequately 

raise its arbitration rights in its Motion for Protective Order. TD Ameritrade specifically 

discussed this issue in a footnote in its Motion for Protective Order (Doc. No. 171 at 4, n.2), as 

Plaintiffs acknowledge. Moreover, the sequence of class certification discovery and the impact 

on TD Ameritrade’s arbitration rights was the focus of the parties F.R.C.P. Rule 26(f) Joint 

Report, which was also discussed in that Motion. Id. at 3-4, n.2. 

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Case 3:16-cv-00580-AC Document 239 Filed 04/05/17 Page 2 of 4
Page 3 – DEFENDANT TD AMERITRADE, INC.’S REPLY IN SUPPORT OF MOTION 

FOR RECONSIDERATION OF DISCOVERY ORDER (DOC. 213)

In Plaintiffs’ Opposition, they argue that making a point in a footnote is not sufficient to 

“raise the issue.” Doc. No. 228 at 6, n.8. The cases Plaintiffs cite, however, involve appeals of 

agency or district court decisions where the issue on appeal was not raised in the matter below. 

It is well settled that an issue cannot be raised for the first time on appeal. Rothman v. Hospital 

Service of Southern California, 510 F.2d 956, 960 (9th Cir. 1975) (citations omitted). It is also 

true, however, that no “bright line rule exists to determine whether a matter has been properly 

raised below.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992) (citations 

omitted). As the Ninth Circuit noted in Whittaker, “a workable standard, however, is that the 

argument must be raised sufficiently for the trial court to rule on it.” Id. (citing In re E.R. Fegert, 

Inc., 887 F.2d 955, 957 (9th Cir. 1989)). This allows the district court the opportunity “to 

reconsider its rulings and correct its errors.” Id. (citing Morrow v. Greyhound Lines, Inc., 541 

F.2d 713, 724 (8th Cir. 1976). TD Ameritrade sufficiently raised the issue of its arbitration 

rights.

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Case 3:16-cv-00580-AC Document 239 Filed 04/05/17 Page 3 of 4
Page 4 – DEFENDANT TD AMERITRADE, INC.’S REPLY IN SUPPORT OF MOTION 

FOR RECONSIDERATION OF DISCOVERY ORDER (DOC. 213)

Plaintiffs’ cases involving reconsideration motions are also inapposite because they, too, 

address a situation where a party has not raised the issue at all. See Kona Enters. v. Estate of 

Bishop, 229 F.3d 877 (9th Cir. 2000) (plaintiffs raised choice of law issue for the first time in

their motion for reconsideration); Redwind v. W. Union, LLC, No. 3:14-cv-01699-AC, 2017 WL 

1025184, at *3 (D. Or. Mar. 16, 2017) (plaintiff did not assert that she would be unable to pay an 

attorneys’ fees award or that an award of costs would be improper because of disparity in 

resources or chilling effect on other plaintiffs).

Dated this 5th day of April, 2017.

Respectfully submitted,

/s/ Nicholas T. Christakos

Bruce M. Bettigole (admitted pro hac vice)

Email: brucebettigole@eversheds-sutherland.com

Nicholas T. Christakos (admitted pro hac vice)

Email: nicholaschristakos@evershedssutherland.com

Gail L. Westover (admitted pro hac vice)

Email: gailwestover@eversheds-sutherland.com

EVERSHEDS SUTHERLAND (US) LLP

700 Sixth Street, NW, Suite 700

Washington, DC 20001

Telephone: (202) 383-0100

Facsimile: (202) 637-3593

/s/ Matthew J. Kalmanson

Matthew J. Kalmanson

Email: mjk@hartwagner.com

Lindsay Howk Duncan

Email: lhd@hartwagner.com

HART WAGNER LLP

1000 S.W. Broadway, Twentieth Floor

Portland, Oregon 97205

Telephone: (503) 222-4499

Facsimile: (503) 222-2301

Attorneys for Defendant TD Ameritrade, Inc.

Case 3:16-cv-00580-AC Document 239 Filed 04/05/17 Page 4 of 4