UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

U.S. SECURITIES AND EXCHANGE 

COMMISSION, 

 Plaintiff, 

 v. 

JOHN J. BRAVATA, RICHARD J. 

TRABULSY, ANTONIO BRAVATA, BBC 

EQUITIES, LLC and BRAVATA 

FINANCIAL GROUP, LLC, 

 Defendants, 

 and 

SHARI A. BRAVATA, 

 Relief Defendant. 

____________________________________/ 

 

 

CIVIL ACTION No. 2:09-cv-12950 

Hon. David M. Lawson 

Hon. Magistrate Judge Virginia M. Morgan 

PLAINTIFF U.S. SECURITIES AND EXCHANGE COMMISSION’S 

MOTION FOR PROTECTIVE ORDER TO PRECLUDE BRAVATA 

DEFENDANTS FROM CALLING PLAINTIFF’S TRIAL COUNSEL AS WITNESS 

AT PRELIMINARY INJUNCTION HEARING AND FOR OTHER RELIEF 

 The Bravata Defendants seek to call Benjamin Hanauer, an attorney of record for 

Plaintiff United States Securities and Exchange Commission, as a witness at the upcoming 

preliminary injunction hearing. Their rationale for doing so is not entirely clear, although their 

focus seems to be his involvement with the Commission’s pre-lawsuit investigation of this 

matter. For the reasons set forth in the attached brief, this is not a viable justification for calling 

counsel of record as a witness. Moreover, to the extent they rely upon their equitable estoppel 

and “unclean hands” affirmative defenses to support calling Mr. Hanauer, such efforts fail, 

since such defenses are legally deficient. Thus, rather than supporting their attempt, the 

affirmative defenses should be struck. 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 1 of 39
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

U.S. SECURITIES AND EXCHANGE 

COMMISSION, 

 Plaintiff, 

 v. 

JOHN J. BRAVATA, RICHARD J. 

TRABULSY, ANTONIO BRAVATA, BBC 

EQUITIES, LLC and BRAVATA 

FINANCIAL GROUP, LLC, 

 Defendants, 

 and 

SHARI A. BRAVATA, 

 Relief Defendant. 

____________________________________/ 

 

 

CIVIL ACTION No. 2:09-cv-12950 

Hon. David M. Lawson 

Hon. Magistrate Judge Virginia M. Morgan 

PLAINTIFF U.S. SECURITIES AND EXCHANGE COMMISSION’S 

BRIEF IN SUPPORT OF ITS MOTION FOR PROTECTIVE ORDER 

TO PRECLUDE BRAVATA DEFENDANTS FROM CALLING 

PLAINTIFF’S TRIAL COUNSEL AS WITNESS AT PRELIMINARY 

INJUNCTION HEARING AND FOR OTHER RELIEF 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 2 of 39
ISSUE PRESENTED 

 Whether the Court should issue an order barring the Bravata Defendants from calling 

plaintiff’s trial counsel as a witness at the preliminary injunction hearing, and striking their 

equitable estoppel and “unclean hands” affirmative defenses, when; (a) such testimony would 

not illicit any relevant evidence; (b) the Bravata Defendants can obtain such evidence from 

other sources; (c) they are otherwise unable to meet the burden required to call trial counsel as 

a witness; and (d) when the affirmative defenses upon which they rely as the basis for doing so 

are legally deficient? 

 The SEC’s answer: “Yes.” 

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SIGNIFICANT AUTHORITIES CITED 

Picco v. General Electric Co., 2003 WL 21918628 

(N.D. Ind. Mar. 6, 2003)........................................................................2 

Oil Express National, Inc. v. D’Alessandro, 1997 WL 282899 

(N.D. Ill. May 16, 1997)........................................................................2 

Elmwood Village Center v. Kmart Corp., 1994 WL 500945 

(E.D. La. Sept. 9, 1994).........................................................................2 

SEC v. Jasper, No. 2009 WL 1457755 

(N.D. Cal. May 26, 2009).......................................................................2 

Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621 

(6th Cir. 2001)....................................................................................3 

Iron Workers Local No.25 Pension Fund v. Watson Wyatt & Co., 

2006 WL 1156723 (E.D. Mich. May 1, 2006)...............................................3 

SEC v. Prof’l Assocs., 731 F.2d 349 

(6th Cir. 1984)....................................................................................5 

McKeon Products, Inc. v. Cirrus Healthcare Products, LCC, 

2009 WL 1181897 (E.D. Mich. Apr. 30, 2009).............................................5 

SEC v. KPMG LLP, 2003 WL 21976733 

(S.D.N.Y. Aug. 20, 2003)......................................................................5 

SEC v. Rosenfeld, 1997 WL 400131 

(S.D.N.Y. July 16, 1997).......................................................................5

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 4 of 39
RELEVANT FACTS 

The Bravata Defendants have named Benjamin Hanauer, counsel for the Commission in 

this matter, as one of their potential witnesses at the upcoming preliminary injunction hearing. 

(Ex. 1 hereto, p. 3.) They include the following description of his anticipated testimony: 

(Id.) 

 A week after filing such disclosures, defendants’ counsel wrote the Commission 

reiterating his intention to call Mr. Hanauer as a witness: 

(Ex. 2 hereto.) Thereafter, counsel met-and-conferred about the matter, both in writing (Exs. 3 

and 4 hereto) and thereafter by phone, but were unable to resolve the matter themselves. 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 5 of 39
2

ARGUMENT 

 

A. BRAVATA DEFENDANTS SHOULD BE BARRED FROM 

CALLING PLAINTIFF’S TRIAL COUNSEL AS A WITNESS AT 

THE PRELIMINARY INJUNCTION HEARING. 

 Federal courts view with a jaundiced eye the practice of seeking the testimony of 

opposing counsel. See Picco v. Gen. Elec. Co., No. 1:01-CV-336O, 2003 WL 21918628, at *2 

(N.D. Ind. Mar. 6, 2003) (deposition of opposing counsel “provides a unique opportunity for 

harassment” and is thus viewed with a “jaundiced eye”); Oil Express Nat’l, Inc. v. 

D’Alessandro, No. 96 C 1528, 1997 WL 282899, at *1 (N.D. Ill. May 16, 1997) (“Deposing an 

opponent’s attorney is a drastic measure and is viewed with a jaundice eye and is infrequently 

proper.”). 

 Such wariness extends to efforts to call opposing counsel as a witness at trial or at an 

evidentiary hearing. See, e.g., Elmwood Village Center v. Kmart Corp., No. 94-2840, 1994 WL 

500945, at *1 (E.D. La. Sept. 9, 1994) (granting protective order precluding defendant from 

calling plaintiff’s counsel as witness during preliminary injunction hearing). 

 In SEC enforcement actions, courts routinely bar defendants from calling counsel for 

the Commission as witnesses. In SEC v. Jasper, for instance, defendant Carl Jasper served the 

Commission with a 30(b)(6) notice of deposition concerning the Commission staff’s prelawsuit interviews with two third-party witnesses – one of whom had since died. No. C07-

06122, 2009 WL 1457755 (N.D. Cal. May 26, 2009). In the course of granting the 

Commission’s motion for a protective order, the court found that the Rule 30(b)(6) notice was 

“the practical equivalent of an examination of the SEC’s attorneys.” Id. at *2. Since Jasper 

could have deposed the living witness, the court surmised that the defendant’s true goal was 

access to the “recollections of the SEC counsel who are prosecuting this matter – recollections 

which this court finds are not easily segregated from those attorney’s thoughts, mental 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 6 of 39
3

impressions, opinions or conclusion about this case.” Id. at *3. Even though one of the 

witnesses was dead, the court remained “unpersuaded that the stated need for the SEC’s 

deposition outweighs the SEC’s interest in protecting its attorneys’ work product.” Id. 

 Myriad other federal courts have rejected similar efforts to elicit the testimony of the 

Commission’s trial counsel.1

 

Before calling Mr. Hanauer to testify, the Bravata Defendants must establish that no 

other means exist to obtain the information elicited from such testimony, that the information 

sought is relevant and not privileged, and that the information is crucial to the preliminary 

injunction hearing. Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 

2001) (affirming denial of attempts to depose arbitration panel); Iron Workers Local No.25 

Pension Fund v. Watson Wyatt & Co., No. 04-40243, 2006 WL 1156723 (E.D. Mich. May 1, 

2006) (affirming magistrate judge’s denial of motion to compel deposition of counsel). 

 

1

 See SEC v. SBM Investment Certificates, Inc., No. DKC 2006-0866, 2007 WL 609888 (D. 

Md. Feb. 23, 2007) (quashing 30(b)(6) subpoena because such testimony invariably elicited the 

investigating attorneys’ thought processes and opinions, regardless of whether counsel of 

record served as the 30(b)(6) designee); SEC v. Buntrock, No. 02 C 2180, 2004 WL 1470278 

(N.D. Ill. June 29, 2004) (quashing 30(b)(6) subpoena concerning the Commission’s 

investigation, as “This Court has no doubt that Buntrock is not entitled to the type of discovery 

he seeks in his 30(b)(6) notice of deposition and that the deposition notice impermissibly seeks 

to invade the SEC’s attorney work product”); SEC v. Rosenfeld, 97 C 1467, 1997 WL 576021 

(S.D.N.Y. Sept. 16, 1997) (“Rosenfeld seeks to explore the extent of the SEC’s knowledge 

(how much it knows and how much it does not know) as a result of the investigative efforts of 

its attorneys. This Rule 30(b)(6) discovery is obviously aimed at finding the nature of the 

SEC’s attorney work product, and is denied for that reason.”). Accord FTC v. U.S. Grant 

Resources, LLC, No. Civ. A 04-596, 2004 WL 1444951, at *10 (E.D. La. June 25, 2004) 

(“Throughout the defendants’ memorandum in opposition, the argument is that they are entitled 

to discovery of the facts relevant to their defense to various consumer declarations and to the 

FTC’s claims. However, a close reading reveals that defendants seek to discover the FTC’s 

theories as to the underlying facts, the extent of the FTC’s knowledge (how much it knows and 

how much it does not know) as a result of the investigative efforts of its attorneys, counsel’s 

impressions regarding the significance of the facts, the nature of the FTC’s work product, the 

FTC’s legal position and how it arrived at that position. The defendants are not entitled to that 

type of discovery”). 

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4

The Bravata Defendants fail to meet a single one of these elements, much less all of 

them. They claim to need his testimony because, they allege, he has represented the 

Commission “during the course of the SEC investigation of the Defendants leading up to the 

filing of the Complaint; has knowledge of the events, discussions and procedures followed 

between the date the Complaint was filed and the issuance of the Court’s Emergency Ex-Parte 

Temporary Restraining Order on July 27, 2009; also has information and knowledge derived 

from the interviews conducted by the SEC with a number of BBC investors, including Mr. 

Roman Kuzma, Aaron D. Simon and others.” 

Far from being “crucial,” how the Commission ran its investigation is wholly irrelevant 

to the preliminary injunction hearing – and to this litigation generally. Rather, the preliminary 

injunction hearing is about whether defendants violated the federal securities laws and whether 

future violations by the Bravata Defendants are likely. See SEC v. Prof’l Assocs., 731 F.2d 

349, 353 (6th Cir. 1984). At the risk of stating the obvious, how the Commission conducted its 

investigation will not shed any light on whether the Bravata Defendants are likely to violate the 

law going forward. Even if Mr. Hanauer’s interviews with investors were somehow relevant – 

and, again at the risk of stating the obvious – the Bravata Defendants could learn about the 

interviews directly from the investors, many of whom are already scheduled to testify. 

Defendants may argue that such testimony is somehow relevant to their equitable 

estoppel and “unclean hands” affirmative defenses. For the reasons set forth below, rather than 

forming the basis for calling Mr. Hanauer, those affirmative defenses are fatally flawed and 

should be stricken. 

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5

B. THE BRAVATA DEFENDANTS’ “UNCLEAN HANDS” AND 

EQUITABLE ESTOPPEL AFFIRMATIVE DEFENSES, UPON 

WHICH THEY RELY TO CALL PLAINTIFF’S TRIAL 

COUNSEL AS A WITNESS, ARE LEGALLY IMPROPER AND 

SHOULD BE STRUCK. 

 An equitable estoppel affirmative defense will be stricken if, on the face of the pleading, 

it is not viable. See McKeon Products, Inc. v. Cirrus Healthcare Products, LCC, No. 08-

13266, 2009 WL 1181897, at *1-2 (E.D. Mich. Apr. 30, 2009) (granting motion to strike 

equitable estoppel affirmative defense as defendant “has not provided facts that would entitle it 

to relief even if equitable estoppel were cognizable as a cause of action”). 

 Courts are wary of equitable estoppel and “unclean hands” affirmative defenses against 

a government agency, particularly when the agency is merely attempting to enforce its 

congressional mandate in the public interest. SEC v. KPMG LLP, No. 03 Civ. 671, 2003 WL 

21976733, at *3 (S.D.N.Y. Aug. 20, 2003). Thus, courts uniformly require such an affirmative 

defense to include factual allegations that the agency’s misconduct was egregious and that the 

resulting prejudice rose to a constitutional level. Id. Further, the allegations must establish a 

causal nexus between the alleged misconduct and the deprivation of a constitutional right. SEC 

v. Rosenfeld, No. 97 C 1467, 1997 WL 400131, at *2 (S.D.N.Y. July 16, 1997). 

 Given this high hurdle, courts routinely strike equitable estoppel or “unclean hands” 

affirmative defenses asserted against the Commission. KPMG, 2003 WL 21976733, at *3 

(striking affirmative defense predicated upon alleged pre-lawsuit conversation KPMG had with 

SEC, as “the SEC was acting to further its congressional mandate to investigate potential 

violations of the securities laws, and defendants do not – and could not – contend that the 

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6

SEC’s failure specifically to identify a violation of GAAP constituted egregious misconduct or 

prejudice that rose to a ‘constitutional level’”).2

The Bravata Defendants’ defenses deserve the same fate. (Docket No. 52, pp. 28-31.) 

The first such affirmative defense alleges that it was this lawsuit, not defendants’ actions, that 

caused the business to fail. They further allege that this lawsuit is a byproduct of the 

Commission’s failure to appreciate the “J Curve” phenomenon – graphically depicted in the 

Bravata Defendants’ affirmative defenses. (Id., ¶¶ 7-9.) 

 

2

 See also SEC v. Follick, 00 Civ. 4385, 2002 WL 31833868, at *7 (S.D.N.Y. Dec. 18, 2002) 

(striking affirmative defense as “Nothing the SEC or any other Government actor is alleged to 

have done will prevent him from putting forth his defenses to this suit.”); SEC v. Thorn, No. 

2:01-CV-290, 2002 WL 31412440, at *2-3 (S.D. Ohio Sept. 30, 2002) (striking “unclean 

hands” affirmative defense that the SEC was the “sole reason” for the investors’ loss of control 

over their funds); SEC v. Rivlin, No. 99-1455, 1999 WL 1455758 (D.D.C. Dec. 20, 1999) 

(striking equitable estoppel and “unclean hands” affirmative defenses predicated upon 

allegations that SEC counsel failed to sufficiently communicate with defendant during, or 

permit him to participate in, the SEC investigation); SEC v. McCaskey, 56 F. Supp. 2d 323, 

326-27 (S.D.N.Y. 1999) (striking affirmative defense, as “the defendants have offered nothing 

to suggest they detrimentally relied on any misrepresentation by the SEC, let alone that such 

reliance resulted in prejudice to their case of a constitutional magnitude.”); SEC v. Rosenfeld, 

1997 WL 400131, at *1 (“Without more concrete and specific allegations in the Amended 

Answer of how defendant's ability to defend himself or defendant's access to witnesses or 

evidence which would aid in his defense have been compromised by the SEC's actions, 

defendant will not be permitted to use the affirmative defense to engage in a ‘fishing 

expedition’ to discover any potential prejudice.”) (citation omitted); SEC v. Lorin, No. 90 Civ. 

7461, 1991 WL 576895 (S.D.N.Y. June 18, 1991) ( “The SEC's alleged conduct neither 

violates a constitutional right nor constitutes egregious misconduct. In view of the strong public 

policy against dismissing securities enforcement actions prosecuted for the public good, and in 

view of the fact that the misconduct, if any, did not amount to a violation of constitutional 

rights or similarly egregious conduct, the defense of unclean hands is not available as a matter 

of law.”) (citation omitted); SEC v. Elec. Warehouse, Inc., 689 F. Supp. 53, 70-73 (D. Conn. 

1988) (striking “unclean hands” affirmative defense as “There is no nexus between the alleged 

misconduct and the Commission’s allegations against [defendant] and the Commission’s 

allegations against [defendant] or the evidence it seeks to introduce against him”). 

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7

Based upon the foregoing precedent, this affirmative defense is legally deficient. The 

Commission’s alleged ignorance does not rise to a “constitutional level,” it does not constitute 

egregious conduct, and it has not deprived defendants of the ability to defend themselves. 

The Bravata Defendants’ also allege that beginning in 2005 or so, the Commission had 

a budget shortfall attributed to certain facility costs. (Id., ¶¶ 10-12.) They allege that such 

internal controls deficiencies has rendered the Commission’s hands “unclean,” thus precluding 

it from seeking equitable relief. 

 Again, this affirmative defense fails to satisfy the requirements set forth above. Such 

factual allegations are not the stuff of egregious conduct, they do not constitute prejudice rising 

to a constitutional level, and they do not thwart defendants’ ability to defend themselves.3

 

It is conceivable that the Bravata Defendants will include as an additional defense 

allegations that the Commission’s counsel were unnecessarily brusque with some individuals 

interviewed during the investigation; that its investigation was inadequate because it failed to 

capture exculpatory evidence; that it failed to bring exculpatory evidence to the Court’s 

attention at the inception of this case; and that its motion for a TRO failed to comply with Rule 

65 of the Federal Rules of Civil Procedure. None of the allegations constitute egregious 

conduct or the deprivation of constitutional rights, nor has the alleged conduct prevented 

defendants from defending themselves. Moreover, even if one assumes the accuracy of these 

allegations for present purposes, they have nothing to do with the likelihood of defendants’ 

future violations. Thus, they do not justify defendants’ efforts to call Mr. Hanauer as a witness. 

 

3

 Taking the Bravata Defendants’ theory to its logical extension, the Commission may not seek 

equitable relief in any enforcement action because of the unclean hands it sustained from the 

2005 facilities cost issue. 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 11 of 39
8

Because these affirmative defenses are legally deficient, they cannot support the 

Bravata Defendants’ efforts to call Mr. Hanauer as a witness in this matter. Further, they 

should be struck. 

CONCLUSION 

For these reasons, the motion should be granted, a protective order should be issued 

barring the Bravata Defendants from calling plaintiff’s trial counsel as a witness at the 

preliminary injunction hearing, and this Court should issue an order striking the Bravata 

Defendants’ “unclean hands” and equitable estoppel affirmative defenses. 

Dated: September 15, 2009 

 Respectfully submitted, 

UNITED STATES SECURITIES AND 

EXCHANGE COMMISSION 

 By: /s/ Jonathan S. Polish _

 One of its attorneys 

Benjamin J. Hanauer 

James G. Lundy 

Jonathan S. Polish

Attorneys for Plaintiff 

Securities and Exchange Commission 

 175 West Jackson, Suite 900 

 Chicago, IL 60604 

 Telephone: (312) 353-8642 (Hanauer) 

Telephone: (312) 353-6884 (Polish) 

E-mail: HanauerB@sec.gov

 E-mail: PolishJ@sec.gov 

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EXHIBIT 1 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 13 of 39
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

U.S. SECURITIES AND EXCHANGE 

COMMISSION, 

 Plaintiff, 

 v. 

JOHN J. BRAVATA, RICHARD J. 

TRABULSY, ANTONIO BRAVATA, BBC 

EQUITIES, LLC and BRAVATA 

FINANCIAL GROUP, LLC, 

 Defendants, 

 and 

SHARI A. BRAVATA, 

 Relief Defendant. 

____________________________________/ 

 

 

CIVIL ACTION No. 2:09-cv-12950 

Hon. David M. Lawson 

Hon. Magistrate Judge Virginia M. Morgan 

JOINT RULE 26(f) SCHEDULING CONFERENCE REPORT

 By Order dated August 4, 2009 (Doc. No. 34), the Court required the parties to meet 

and confer regarding the scheduling of those matters addressed in Fed. R. Civ. Proc. 26(f), for 

purposes of scheduling and discovery in anticipation of the Court conducting an evidentiary 

hearing on Plaintiff’s request for a preliminary injunction, appointment of a receiver and 

continuation of the asset freeze, all of which were entered by the Court on July 27, 2009 (Doc. 

No. 22) and continued in the form of the Court’s August 4, 2009 Order. 

 Defendants, appearing by and through their respective counsel, have conferred with 

respect to the details of this Scheduling Conference Report (“Report”) and exchanged their 

positions with the Plaintiff with respect to the following matters. Accordingly, this Report is 

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2

hereby submitted as a proposed Joint Rule 26(f) Scheduling Conference Report for the limited 

purpose of scheduling and preparation for the evidentiary hearing. With regard to such a 

hearing, the parties are in agreement on the following proposal: 

 1. Response to Defendants’ Filings. On August 11, 2009, the Defendants filed 

three briefs requesting, inter alia, certain carve-outs of the asset freeze previously ordered by 

the Court. (See Docket Nos. 40-42). Further, the Bravata Defendants’ filing (Docket No. 42), 

additionally challenges the validity of the Temporary Restraining Order entered by the Court 

on July 27, 2009. The parties propose that the Commission be allowed to respond to these 

filings within 14 days, by August 25, 2009. 

 2. Rule 26(a)(1) Initial Disclosures. The parties propose that they shall exchange 

Rule 26(a)(1) initial disclosures and documents, but limited to information and documents that 

the parties may use to support their claims and defenses at a preliminary injunction hearing, no 

later than 14 days after the filing of this Report. Those documents included in the Defendants’ 

initial disclosures will be delivered or produced to the Plaintiff and all other Defendants, within 

that same time period. 

 3. Depositions and Written Discovery. The Plaintiff and Defendants are in 

disagreement as to whether further discovery should take place in advance of the evidentiary 

hearing. The parties’ respective positions are presented below: 

 Position of Plaintiff Commission in Support of Discovery: The Commission 

renews its motion for expedited discovery in advance of any evidentiary hearing, (See Docket 

No. 4), and proposes that such discovery commence immediately upon the exchange of the 

parties’ Rule 21(a)(1) disclosures. Defendants’ proposed witness list identifies, and their recent 

filings contain affidavits of, witnesses who the Commission would need the opportunity to 

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3

depose and request documents from in advance of any evidentiary hearing. Further, at the 

outset of this matter, the Commission was hopeful that the parties would be able to narrow the 

disputed issues, such that any hearing – to the extent one was needed – would relate to a few 

discrete areas. That has proven not to be the case. Rather, in their submission (Docket No. 42), 

the Bravata Defendants broadly challenge the Commission’s entitlement to a preliminary 

injunction. While the Commission is certainly prepared to do so, such an evidentiary showing 

requires a broad range of expedited discovery, including depositions. Moreover, Defendants’ 

filings reference documents which have not been produced to the Commission. Especially in 

light of Defendants’ recent filings, expedited discovery, which is authorized by Federal Rules 

of Civil Procedure 30(a), 33(b), and 34(b), is warranted. 

 Position of Defendants in Opposition to Discovery. All of the Defendants in this 

case oppose conducting depositions prior to the evidentiary hearing, due principally because 

the cost of conducting depositions on an expedited basis, at a time when the Court has not yet 

ruled on any pending motions requesting approval for the Defendants to access funds or other 

assets in order to retain counsel for their defense, remains pending. In short, counsel is hesitant 

to incur out-of-pocket deposition expenses until the Defendants are in a position to keep pace 

with legal fees and costs of the litigation. 

 Secondarily, counsel anticipate that document discovery and preparation for an 

evidentiary hearing on an expedited basis will require substantial time and effort and 

scheduling, attending and preparing for depositions in parallel will add complications to 

scheduling. Lastly, most if not all witnesses listed for all parties in this case reside in or near the 

Detroit metropolitan area and will be subject to not only compelling their attendance at a 

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4

hearing, but should be readily available for counsel for any party to discuss their anticipated 

testimony prior to the hearing.

 4. Disclosure of Proposed Witnesses for Evidentiary Hearing. As of the filing of 

this Report, the following are the names of witnesses that the parties may call as such at an 

evidentiary hearing along with an estimate of the amount of time needed for presentation of 

each witness’ direct testimony. The parties reserve the right to supplement the following 

names of witnesses based upon the initial disclosures made by the parties and any discovery 

conducted in advance of the evidentiary hearing. 

PLAINTIFF’S LIST OF WITNESSES 

Witness Name Anticipated Topic(s) of Testimony Anticipated 

Length of Direct 

Examination 

John J. Bravata Representations made to investors; uses of 

investor funds; authentication of documents; 

finances of entity defendants; entity 

defendants’ sales and compensation 

practices; compliance with injunction and 

asset freeze. 

60-90 minutes 

Richard J. Trabulsy Representations made to investors; uses of 

investor funds; authentication of documents; 

finances of entity defendants; entity 

defendants’ sales and compensation 

practices; compliance with injunction and 

asset freeze. 

60-90 minutes 

Antonio M. Bravata Representations made to investors; uses of 

investor funds; authentication of documents; 

finances of entity defendants; entity 

defendants’ sales and compensation 

practices; compliance with injunction and 

asset freeze. 

60-90 minutes 

Shari A. Bravata Uses of investor funds; compliance with 

injunction and asset freeze; other matters set 

forth in her declaration. 

20 minutes 

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Witness Name Anticipated Topic(s) of Testimony Anticipated 

Length of Direct 

Examination 

Luz M. Aguilar Defendants’ sources and uses of funds; 

authentication of documents. 

45-60 minutes 

Theresa Makowski Representations made to investors; entity 

defendants’ sales and compensation 

practices. 

30-45 minutes 

Tracy J. Ostrander Representations made to investors; entity 

defendants’ sales and compensation 

practices. 

30-45 minutes 

Aaron D. Simon Representations made to investors; entity 

defendants’ sales and compensation 

practices. 

30-45 minutes 

Robert J. DeFauw Representations made to investors. 30-45 minutes 

Diana Frye Representations made to investors; 

defendants’ sales practices; authentication 

of audio recordings. 

30-45 minutes 

Kenneth Kruger Representations made to investors. 30-45 minutes 

Patricia Philliben Representations made to investors. 30-45 minutes 

Kendra Sparks Representations made to investors. 30-45 minutes 

Joan Weiss Representations made to investors. 30-45 minutes 

FRE 702 Witness 

(TBD) 

Valuation of BBC Equities’ real estate 

portfolio and other assets; accuracy of 

representations to investors when such 

representations were being made. 

45-60 minutes 

DEFENDANTS’ LIST OF WITNESSES 

Witness Name Anticipated Topic(s) of Testimony Anticipated 

Length of Direct 

Examination 

Melissa Traver CFO for Bravata Financial Group, LLC. 30 minutes 

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She will testify concerning the duties she 

had at BBC and BFG; the manner that the 

financial books and records were kept 

during the relevant time period and that no 

one from the SEC ever spoke to her prior to 

the present action being filed. 

Bruce Coleman Compliance Officer for Bravata Financial 

Group, LLC. Hired in March 2009, Mr. 

Coleman was only just beginning to handle 

compliance matters for BFG, which 

included the recent approval of the firm by 

the SEC of its application to become a 

registered investment advisor, which was 

approved; policies and procedures in the 

firm on the offering process and related 

matters. 

30 minutes 

John Sellers, Esq. Former General Counsel for Bravata 

Financial Group, LLC and BBC Equities, 

LLC. Mr. Sellers formerly was a partner in 

the law firm retained by BBC and BFG for 

legal services related to the drafting of all 

offering materials for BBC, including the 

February 7, 2007 “PPM” and subscription 

documents associated therewith. Mr. Sellers 

left his firm to come in house in that same 

capacity with BBC and BFG and functioned 

as their in house securities counsel until 

June 2009. 

60 minutes 

Roman Kuzma Business associate of John J. Bravata and 

co-investor in two real estate projects predating BBC Equities, LLC. He will testify 

to the facts set forth in his Sworn Statement 

filed with Defendants’ papers on August 11, 

2009 and will dispute several of the factual 

inaccuracies contained in the SEC’s 

Complaint regarding his participation in 

BBC and the time frame of his investments. 

30 minutes 

Dylite Adams investor in BBC Equities, LLC and 

grandmother of Antonio M. Bravata. Ms. 

Adams will testify essentially to the facts 

stated in her Affidavit on file in this case, 

plus the hardships she has recently sustained 

30 minutes 

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7

as a result of her bank account being frozen 

in the Court’s asset freeze. 

Lily Trabulsy Investor in BBC Equities, LLC and 

grandmother of Richard J. Trabulsy. If 

necessary, Ms. Trabulsy will testify as to 

her willingness to extend as collateral an 

interest in her home as stated in her 

Affidavit attached to Richard Trabulsy’s 

Petition for Limited Release of Frozen 

Assets Allowing Him to Borrow Money 

Against His Life Insurance Policy to Pay 

Legal Expenses (Docket No. 41). Ms. 

Trabulsy may also testify regarding her 

frozen bank account. 

20 minutes 

 

 5. Appointment of a Receiver. Defendants maintain that the filing of the 

Plaintiff’s civil enforcement action has irreparably impacted BBC Equities, LLC and Bravata 

Financial Group, LLC as going concerns. In light of the already pending civil litigation 

brought against some of the Defendants primarily by lenders and vendors, Defendants are 

prepared to consent to the appointment of a receiver if: (i) the receivership covers only the two 

corporate Defendants and not the individual Defendants; (ii) the scope of the receivership and 

duties of the receiver are satisfactory to the Defendants; and (iii) the text of the order 

appointing a receiver is acceptable in form and substance to counsel for the Defendants. 

Concerning (i), Plaintiff agrees with Defendants’ proposal to limit the scope of the receivership 

to the two corporate Defendants. Plaintiff disagrees to the remaining two conditions asserted 

by Defendants – (ii) and (iii) – and renews its request for a receivership substantially in the 

form set forth in the proposed receivership order previously provided to the Court. 

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8

Dated this 12th day of August, 2009. 

Respectfully submitted, 

/s/ Benjamin J. Hanauer

Benjamin J. Hanauer 

James G. Lundy 

Jonathan S. Polish

Attorneys for Plaintiff 

 Securities and Exchange SEC 

 175 West Jackson, Suite 900 

 Chicago, IL 60604 

 Telephone: (312) 353-8642 (Hanauer) 

 Telephone: (312) 353-0878 (Lundy) 

Telephone: (312) 353-6884 (Polish) 

 E-mail: HanauerB@sec.gov

 E-mail: LundyJ@sec.gov

 E-mail: PolishJ@sec.gov 

s/ with consent of Michael J. Riordan /s/ with consent of George B. Donnini

MICHAEL J. RIORDAN George B. Donnini 

Assistant United States Attorney Attorney for BBC Equities, LLC and Bravata 

211 West Fort Street, Suite 2001 Financial Group, LLC 

Detroit, MI 48226 Butzel Long, a professional corporation 

Telephone: (313) 226-9602 150 West Jefferson Ave. 

Facsimile: (313) 226-3800 Detroit, MI 48226 

Email: Michael.riordan@usdoj.gov Telephone: (313) 225-7000 

 E-mail: donnini@butzel.com

/s/ with consent of Gregory Bartko, Esq. /s/ with consent of Gary Saretsky, Esq. 

Law Office of Gregory Bartko, LLC /s/ with consent of Jonathan M. Sterling, Esq. 

Michigan Bar No. P30052 SARETSKY HART MICHAELS & GOULD PC 

Counsel for Bravata Defendants 995 S. Eton 

3475 Lenox Road, Suite 400 Birmingham, MI 48009 

Atlanta, GA 30326 Counsel for Richard J. Trabulsy 

Telephone: (404) 238-0550 248.502.3300 (phone) 

Facsimile: (866) 342-4092 248.502.3301 (fax) 

gbartko@securitieslawcounsel.com JSterling@saretsky.com

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9

CERTIFICATE OF SERVICE

 Benjamin J. Hanauer, an attorney, hereby certifies that on August 12, 2009, he caused 

the foregoing submission to be filed with the Clerk of Court using the CM/ECF system

 s/ Benjamin J. Hanauer _

 

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EXHIBIT 2 

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EXHIBIT 3 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 25 of 39
 UNITED STATES 

 SECURITIES AND EXCHANGE COMMISSION 

 CHICAGO REGIONAL OFFICE 

 175 WEST JACKSON BOULEVARD, SUITE 900 

 CHICAGO, ILLINOIS 60604 

 

Jonathan S. Polish (312) 353-6884 

Senior Trial Counsel PolishJ@sec.gov 

Division of Enforcement 

September 2, 2009 

VIA EMAIL (gbartko@securitieslawcounsel.com) 

Gregory Bartko 

Law Office of Gregory Bartko, LLC 

3475 Lenox Road, Suite 400 

Atlanta , GA 30326 

 Re: Securities and Exchange Commission v. John Bravata, et al., 2:09-cv-12950 

Dear Greg: 

 I am writing both in response to your letter from earlier this morning and to meet-and-confer with 

you on the matters enumerated below. For the reasons set forth below, the Bravata Defendants’ equitable 

estoppel and “unclean hands” affirmative defense are improper, as is their request to call Ben Hanauer as a 

witness at the upcoming preliminary injunction hearing. 

THE BRAVATA DEFENDANTS’ EQUITABLE ESTOPPEL AND 

“UNCLEAN HANDS” AFFIRMATIVE DEFENSES ARE IMPROPER 

 

 An equitable estoppel affirmative defense will be stricken if, on the face of the pleading, it is not 

viable. See McKeon Products, Inc. v. Cirrus Healthcare Products, LCC, No. 08-13266, 2009 WL 1181897, 

at *1-2 (E.D. Mich. Apr. 30, 2009) (granting motion to strike equitable estoppel affirmative defense as 

defendant “has not provided facts that would entitle it to relief even if equitable estoppel were cognizable as 

a cause of action”). 

 Based upon this standard, if the Bravata Defendant refused to withdraw their affirmative defense, it 

should be stricken. As a general matter, equitable estoppel and “unclean hands” may not be invoked 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 26 of 39
Gregory Bartko 

September 2, 2009 

Page 2 

against a government agency that is attempting to enforce its congressional mandate in the public interest. 

SEC v. KPMG LLP, No. 03 Civ. 671, 2003 WL 21976733, at *3 (S.D.N.Y. Aug. 20, 2003). An affirmative 

defense may only be pled against a government agency if it includes factual allegations that the agency’s 

misconduct was egregious and the resulting prejudice rose to a constitutional level. Id. Further, the 

allegations must establish a causal nexus between the alleged misconduct and the deprivation of a 

constitutional right. SEC v. Rosenfeld, No. 97 C 1467, 1997 WL 400131, at *2 (S.D.N.Y. July 16, 1997). 

 Given this high hurdle, courts routinely strike equitable estoppel or “unclean hands” affirmative 

defenses asserted against the Commission. KPMG, 2003 WL 21976733, at *3 (striking affirmative defense 

predicated upon alleged pre-lawsuit conversation KPMG had with SEC, as “the SEC was acting to further 

its congressional mandate to investigate potential violations of the securities laws, and defendants do not – 

and could not – contend that the SEC’s failure specifically to identify a violation of GAAP constituted 

egregious misconduct or prejudice that rose to a ‘constitutional level’”); SEC v. Follick, 00 Civ. 4385, 2002 

WL 31833868, at *7 (S.D.N.Y. Dec. 18, 2002) (striking affirmative defense based upon alleged threats and 

intimidation by SEC counsel, as defendant “has not demonstrated that any of the improper actions he 

alleges are prejudicing him in his defense of this action. Nothing the SEC or any other Government actor is 

alleged to have done will prevent him from putting forth his defenses to this suit.”); SEC v. Thorn, No. 2:01-

CV-290, 2002 WL 31412440, at *2-3 (S.D. Ohio Sept. 30, 2002) (striking “unclean hands” affirmative 

defense that the SEC was the “sole reason” for the investors’ loss of control over their funds); SEC v. 

Rivlin, No. 99-1455, 1999 WL 1455758 (D.D.C. Dec. 20, 1999) (striking equitable estoppel and “unclean 

hands” affirmative defenses predicated upon allegations that SEC counsel failed to sufficiently 

communicate with defendant during, or permit him to participate in, the SEC investigation); SEC v. 

McCaskey, 56 F. Supp. 2d 323, 326-27 (S.D.N.Y. 1999) (“Here, the defendants have offered nothing to 

suggest they detrimentally relied on any misrepresentation by the SEC, let alone that such reliance resulted 

in prejudice to their case of a constitutional magnitude. Thus, the defense has no basis in fact. Likewise, 

there is no question of law which might allow defendants' estoppel defense to succeed. Moreover, allowing 

the defense to remain would prejudice the SEC by needlessly lengthening and complicating the discovery 

process and trial of this matter. Therefore, defendants' equitable estoppel defense is stricken.”); SEC v. 

Rosenfeld, No. 97 C 1467, 1997 WL 400131, at *1 (S.D.N.Y. July 16, 1997) (“Defendant's allegation that 

the SEC's alleged misconduct constituted a criminal breach of Ontario securities laws satisfies the pleading 

requirement that it be egregious. Defendant's assertion in his Amended Answer that the alleged misconduct 

was severely prejudicial to him, a claim clarified in his responsive papers on this motion, does not state 

particulars about how he has been prejudiced, and the prejudice alleged is ‘entirely non-specific and 

conclusory’. There is no allegation that Pruitt or anyone else spread confidential or privileged information 

which did in fact prejudice the defense of this matter. Prior to initiating a proceeding against a defendant, 

the SEC is entitled to make inquiries concerning the facts it is investigating. Without more concrete and 

specific allegations in the Amended Answer of how defendant's ability to defend himself or defendant's 

access to witnesses or evidence which would aid in his defense have been compromised by the SEC's 

actions, defendant will not be permitted to use the affirmative defense to engage in a ‘fishing expedition’ to 

discover any potential prejudice.”) (citation omitted); SEC v. Lorin, No. 90 Civ. 7461, 1991 WL 576895 

(S.D.N.Y. June 18, 1991) (striking “unclean hands” affirmative defense predicated on allegation that the 

SEC, in violation of a court order, received deposition transcript from another case, as “The SEC's alleged 

conduct neither violates a constitutional right nor constitutes egregious misconduct. In view of the strong 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 27 of 39
Gregory Bartko 

September 2, 2009 

Page 3 

public policy against dismissing securities enforcement actions prosecuted for the public good, and in view 

of the fact that the misconduct, if any, did not amount to a violation of constitutional rights or similarly 

egregious conduct, the defense of unclean hands is not available as a matter of law.”) (citation omitted); 

SEC v. Electronics Warehouse, Inc., 689 F. Supp. 53, 70-73 (D. Conn. 1988) (striking “unclean hands” 

affirmative defense predicated upon “troubling” allegations that “if true, may raise a serous question of the 

conduct of one or more of the Commission’s employees,” since “There is no nexus between the alleged 

misconduct and the Commission’s allegations against [defendant] and the Commission’s allegations 

against [defendant] or the evidence it seeks to introduce against him”). 

 Here, the Bravata Defendants’ “unclean hands” and collateral estoppel affirmative defenses are 

predicated upon their allegations that the Commission’s lawsuit reflects a “complete lack of understanding 

or appreciat[ion] for the customary growth curve of a start up blind pool real estate fund,” that the 

Commission itself has failed to properly keep and maintain its own financial books and records, and other 

unspecified misconduct by the Commission, both with respect to this matter and generally. None of these 

factual allegations satisfy the aforementioned legal standards. Accordingly, such affirmative defenses are 

improper, and we ask that you withdraw them. 

THE BRAVATA DEFENDANTS’ REQUEST TO CALL SEC COUNSEL 

AS A WITNESS AT THE PRELIMINARY INJUNCTION HEARING IS IMPROPER 

 Federal courts view with a jaundiced eye the practice of seeking the testimony of opposing 

counsel. See Picco v. General Electric Co., No. 1:01-CV-336O, 2003 WL 21918628, at *2 (N.D. Ind. Mar. 

6, 2003) (deposition of opposing counsel “provides a unique opportunity for harassment,” and is thus 

viewed with a “jaundiced eye”); Oil Express National, Inc. v. D’Alessandro, No. 96 C 1528, 1997 WL 

282899, at *1 (N.D. Ill. May 16, 1997) (“Deposing an opponent’s attorney is a drastic measure and is 

viewed with a jaundice eye and is infrequently proper.”). 

 

 The federal judiciary’s skepticism concerning this tactic extends to Commission enforcement 

actions. In SEC v. Jasper, for instance, defendant Carl Jasper served the Commission with a 30(b)(6) 

notice of deposition concerning the Commission staff’s pre-lawsuit interviews with two third-party witnesses 

– one of whom had since died. No. C07-06122, 2009 WL 1457755 (N.D. Cal. May 26, 2009). In the 

course of granting the Commission’s motion for a protective order, the court found that the Rule 30(b)(6) 

notice was “the practical equivalent of an examination of the SEC’s attorneys.” Id. at *2. Since Jasper 

could have chosen to depose the living witness for the information, the court surmised that the defendant’s 

true goal was access to the “recollections of the SEC counsel who are prosecuting this matter – 

recollections which this court finds are not easily segregated from those attorney’s thoughts, mental 

impressions, opinions or conclusion about this case.” Id. at *3. Notwithstanding the fact that one of the 

witnesses was dead, the court was “unpersuaded that the stated need for the SEC’s deposition outweighs 

the SEC’s interest in protecting its attorneys’ work product.” Id. 

 Along the same lines, in SEC v. SBM Investment Certificates, Inc., No. DKC 2006-0866, 2007 WL 

609888 (D. Md. Feb. 23, 2007), the court quashed a Rule 30(b)(6) notice issued by defendant Eric 

Westbury to the Commission regarding its pre-lawsuit investigation, holding that such testimony invariably 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 28 of 39
Gregory Bartko 

September 2, 2009 

Page 4 

elicited the investigating attorneys’ thought processes and opinions. Id. at *26. Westbury proposed that 

the Commission could avoid such problems by designating Andrea Dittert, the SEC’s supervisory staff 

accountant staffed on the case, as its 30(b)(6) witness. Id. at *24. The Court summarily rejected that 

suggestion, holding that even a non-attorney designee “would have to be fully and completely prepared by 

the investigating attorneys to discuss the noticed topics, including the attorney’s opinion work product, and 

in addition, an SEC examiner like Ms. Dittert works under the supervision of the SEC’s investigating 

attorneys, and may already be familiar with such opinion work product.” Id. 

 Myriad other federal courts have rejected similar efforts to elicit the testimony of the Commission’s 

trial counsel. See, e.g., SEC v. Buntrock, No. 02 C 2180, 2004 WL 1470278 (N.D. Ill. June 29, 2004) 

(quashing 30(b)(6) subpoena concerning the Commission’s investigation of Waste Management, as “This 

Court has no doubt that Buntrock is not entitled to the type of discovery he seeks in his 30(b)(6) notice of 

deposition and that the deposition notice impermissibly seeks to invade the SEC’s attorney work product”); 

SEC v. Rosenfeld, 97 C 1467, 1997 WL 576021 (S.D.N.Y. Sept. 16, 1997) (“Rosenfeld seeks to explore the 

extent of the SEC’s knowledge (how much it knows and how much it does not know) as a result of the 

investigative efforts of its attorneys. This Rule 30(b)(6) discovery is obviously aimed at finding the nature of 

the SEC’s attorney work product, and is denied for that reason.”). Accord FTC v. U.S. Grant Resources, 

LLC, No. Civ. A 04-596, 2004 WL 1444951, at *10 (E.D. La. June 25, 2004) (“Throughout the defendants’ 

memorandum in opposition, the argument is that they are entitled to discovery of the facts relevant to their 

defense to various consumer declarations and to the FTC’s claims. However, a close reading reveals that 

defendants seek to discover the FTC’s theories as to the underlying facts, the extent of the FTC’s 

knowledge (how much it knows and how much it does not know) as a result of the investigative efforts of its 

attorneys, counsel’s impressions regarding the significance of the facts, the nature of the FTC’s work 

product, the FTC’s legal position and how it arrived at that position. The defendants are not entitled to that 

type of discovery”). 

 Before calling Mr. Hanauer to testify, the Bravata Defendants must establish that no other means 

exist to obtain the information elicited from such testimony, that the information sought is relevant and not 

privileged, and that the information is crucial to the preliminary injunction hearing. Nationwide Mut. Ins. Co. 

v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2001) (affirming denial of attempts to depose arbitration 

panel); Iron Workers Local No.25 Pension Fund v. Watson Wyatt & Co., No. 04-40243, 2006 WL 1156723 

(E.D. Mich. May 1, 2006) (affirming magistrate judge’s denial of motion to compel deposition of counsel). 

They will be unable to make this showing. They claim to need his testimony because, they allege, he has 

represented the Commission “during the course of the SEC investigation of the Defendants leading up to 

the filing of the Complaint; has knowledge of the events, discussions and procedures followed between the 

date the Complaint was filed and the issuance of the Court’s Emergency Ex-Parte Temporary Restraining 

Order on July 27, 2009; also has information and knowledge derived from the interviews conducted by the 

SEC with a number of BBC investors, including Mr. Roman Kuzma, Aaron D. Simon and others.” This fails 

each and every element set forth above. Bravata Defendants could elicit testimony from the 

aforementioned individuals to learn about conversations they had with Mr. Hanauer. Moreover, far from 

being “crucial,” how the Commission ran its investigation is wholly irrelevant to the preliminary injunction 

hearing – and to this litigation generally. Furthermore, to the extent you will argue that such testimony is 

somehow relevant to the equitable estoppel and “unclean hands” affirmative defenses, for the reasons set 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 29 of 39
Gregory Bartko 

September 2, 2009 

Page 5 

forth above, those affirmative defenses are fatally flawed, and should be stricken. For these reasons, we 

ask that you withdraw your request to call Mr. Hanauer as a witness at the preliminary injunction hearing. 

* * * 

 Concerning the other matters addressed in your letter: (1) I have been advised by Ms. Aguilar that 

she does not have an updated resume or vitae. To the extent you are requesting that we generate such a 

document between now and the hearing, we decline to do so, as such an exercise is beyond the scope of 

pre-hearing discovery. (2) Please produce documents responsive to the following paragraphs of your 

clients’ disclosures: 2, 3, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 21, 22, 23. 

 Lastly, please confirm that you represent Ms. Traver in this matter. (When we last discussed this 

matter, you informed us that the retention agreement consummating the representation was in the mail.) 

Absent such a confirmation by September 8th, we will operate under the assumption that you do not 

represent her. 

 I am available to discuss this matter with you further at your convenience. Please apprise us of 

your position regarding the foregoing no later than Tuesday, September 8th. 

Sincerely, 

 Jonathan S. Polish 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 30 of 39
EXHIBIT 4 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 31 of 39
 

 

“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

 

VIA EMAIL AND 

FIRST CLASS MAIL

September 8, 2009

SECURITIES AND 

EXCHANGE COMMISSION

Jonathan S. Polish, Esq., and

Benjamin J. Hanauer, Esq.

Senior Trial Counsel, Div. of Enforcement

175 West Jackson Boulevard, Suite 900

Chicago, Illinois 60604

Re: United States Securities and Exchange Commission

Vs. John J. Bravata, et al.; United States District Court—Eastern 

District of Michigan; File No.: 2:09-cv-12950-DML

Dear Counsel:

I have spent considerable time reviewing your September 2, 2009 letter. It is confusing to me why the 

Commission would spend time and legal resources attacking my clients’ responsive pleadings at this premature 

stage of the proceedings at hand. It is equally confusing why the Commission would object so strenuously in 

opposition to our interest in calling Ben Hanauer as a witness at the October 1-2, 2009 evidentiary hearing. I 

would like to take time today to outline my clients’ legal position on why the Commission’s arguments are 

flawed on several fronts. Your letter requests my clients to (i) withdraw their affirmative defenses; and (ii) 

discontinue any efforts in calling Ben Hanauer as a witness at the evidentiary hearing. Although we decline both 

invitations, a good start might be for Mr. Hanauer to provide a detailed factual affidavit that identifies each of 

the steps taken by the Commission in obtaining the ex-parte relief we believe to be inappropriate.

Affirmative Defenses

In SEC v. Blavin, 760 F.2d 706, 1985 U.S. App. LEXIS 31030, Fed. Sec. L. Rep. (CCH) P 92,021, the 

Sixth Circuit made it clear that equitable estoppel may be pleaded as an affirmative defense against the 

Government and/or agencies thereof. The Blavin decision is still good law in the Eastern District of Michigan. I 

did not see the decision mentioned anywhere in your letter. Demanding that the Bravata Defendants withdraw 

certain affirmative defenses raised in opposition to the Commission’s Complaint when no Defendant in the 

action has had any opportunity to conduct discovery is nonsense. Even more so since the Commission has had 

an unfettered power of investigation of the affairs of BBC and BFG since late March, 2009. The Federal Rules

of Civil Procedure do not require the Bravata Defendants to establish a detailed factual basis for any affirmative 

defense at this stage in the proceedings. Instead, as explained below, the Commission’s threats of moving to 

strike our affirmative defenses shiould be denied if “any state of facts . . . could be proved in support of the 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 32 of 39
Jonathan S. Polish, Esq., and

Benjamin J. Hanauer, Esq.

Senior Trial Counsel, SEC Div. of Enf.

September 8, 2009

pg. 2

 

“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

 

defense.” FDIC v. Gladstone, 44 F. Supp. 2d 81, 84-85 (D. Mass. 1999). At this stage of the proceeding, our 

affirmative defenses have been raised in good faith and are appropriate in defense of the Commission’s claims 

for equitable relief. In order to seek equity—one must do equity. 

Surreptiously filing a motion seeking emergency, ex-parte relief as the Commission did in this action on 

July 27, 2009 violates a number of legal requirements, principals and trampled unmercifully the due process 

rights of the Bravata Defendants. The Commission knew who was representing the Defendants. The 

Government has to play fair and square; follow the rules as any private litigant has to and should be prohibited 

from gaining an enormous advantage over any Defendant in this case based upon the Commission’s own 

shortcuts and gorilla-like tactics.1

The process of discovery is likely to reveal and clarify additional facts and evidence relating to the 

Commission’s conduct that contributed to the Bravata Defendants being in their current predicament—that is 

suffering the ill effects of a complete asset freeze and ruination of a promising managed real estate fund. 

Neither the case law nor the Federal Rules of Civil Procedure contemplate the striking of affirmative defenses 

before there is a full opportunity to discover all relevant facts. 

Motions to Strike Affirmative Defenses Are Disfavored. 

Your letter implies rather strongly that if the Bravata Defendants do note accede to Commission

demands, that a motion to strike our affirmative defenses will be filed. In general, motions to strike affirmative 

defenses under Fed. R. Civ. P. 12(f) are disfavored and “should be granted only when it is beyond cavil that the 

defendant could not prevail on them.” Honeywell Consumer Prods., Inc. v. Windmere Corp., 993 F. Supp. 22, 

24 (D. Mass. 1998) (Gorton, J.) (citing Coolidge v. Judith Gap Lumber Co., 808 F. Supp. 889, 893 (D.N.J. 

1991)). Accord FDIC v. Gladstone, 44 F. Supp. 2d 81, 84-85 (D. Mass. 1999) (motion to strike “will be granted 

only if it clearly appears that the plaintiff would succeed despite any state of facts which could be proved in 

support of defense”). Courts disfavor such motions because they “are often used as delaying tactics, and 

because of the limited importance of pleadings in federal practice.” SEC v. Sands, 902 F.Supp. 1149, 1165-66 

(C.D. Cal. 1995) (citations omitted), aff’d sub nom., SEC v. First Pacific Bancorp, 142 F.3d 1186 (9th Cir. 

1998); accord 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1381, at 421 (3d 

ed. 2004). 

 1 Because we are prepared to set forth specific allegations regarding Commission misconduct in any opposition to a motion 

to strike that may be contemplated by the Commission, the cases relied upon by the SEC for the contention that we have 

failed to plead grounds for the affirmative defense of estoppel are inapplicable. See SEC v. Sarivola, No. 95 Civ. 9270 

(RPP), 1996 WL 304371, at *2 (S.D.N.Y. June 6, 1996) (striking defense where defendant failed to plead “or set forth in 

their motion papers” any inequitable conduct by government); SEC v. Hayes, No. CA 3-90-1054-T, 1991 WL 236846, at *2 

(N.D. Tex. July 25, 1991) (defendants failed to set forth government misconduct in either answer or in response to SEC’s 

motion to strike). If the Court prefers, the Bravata Defendants may seek to amend the Answer and Affirmative Defenses to 

include more specific factual allegations of Commission misconduct. Because none of the Commission’s allegations have 

yet been tested in the discovery process, we do not accept all of the Commission’s allegations as necessarily true or 

supported by any evidence other than the self-serving Declaration of Luz Aguilar. 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 33 of 39
Jonathan S. Polish, Esq., and

Benjamin J. Hanauer, Esq.

Senior Trial Counsel, SEC Div. of Enf.

September 8, 2009

pg. 3

 

 

“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

 

 

For these reasons, the Commission must show that it will be prejudiced if the affirmative defenses raised are not 

stricken. See Augustus v. Board of Pub. Instruction, 306 F.2d 862, 868 (5th Cir. 1962) (“[W]hen there is no 

showing of prejudicial harm to the moving party, the courts generally are not willing to determine disputed . . . 

questions of law upon a motion to strike.”); see also Breedlove v. Cabou, 296 F. Supp. 2d 253, 275 (S.D.N.Y. 

2003); 2 James Wm. Moore et al., Moore’s Federal Practice ¶ 12.37[3] (3d ed. 2005); Wright & Miller § 1381, 

at 421-22. 

Motions to strike affirmative defenses are particularly disfavored where, as here, they are brought prior 

to the completion of discovery. See Augustus, 306 F.2d at 868 (“Under such circumstances, the court may 

properly, and we think should, defer action on the motion and leave the sufficiency of the allegations for 

determination on the merits.”); Wright & Miller § 1381, at 423-25. Accordingly, district courts have routinely 

denied pre-discovery motions to strike filed by the SEC. See, e.g., Sands, 902 F. Supp. at 1165 (SEC’s initial 

motion to strike defendant’s equitable defenses denied without prejudice until after discovery); SEC v. CS First 

Boston Corp., No. SA CV 96-1253 GLT, slip op. at 2 (C.D. Cal. Feb. 24, 1997) (“At this pleading stage in the 

proceedings, the court cannot rule out the possibility the defendants can show the SEC acted in a manner which 

caused serious injustice to Defendants.”); SEC v. Downe, No. 92 Civ. 4092 (PKL), 1994 WL 67826, at *2 

(S.D.N.Y. Mar. 3, 1994) (denying motions to strike defenses because issues are better addressed in concrete 

factual setting). In this case, it is hardly “beyond cavil” that the Bravata Defendants will not be able to prevail on 

an equitable estoppel defense. 

Controlling Case Law Allows Bravata Defendants to Assert the Defense of Estoppel Against the 

Commission.

Your letter cites only legal precedent intimating that the Commission is never subject to the defense of 

equitable estoppel. In FDIC v. Gladstone, however, the court specifically held that the defense may be asserted 

against the Government. 44 F. Supp. 2d at 90. In fact, the Court based its conclusion on the same Supreme Court 

decision in 1984 cited regularly for that very proposition: Heckler v. Community Health Servs., Inc., 467 U.S. 51 

(1984). In Heckler, the Supreme Court acknowledged the possibility that “the public interest in ensuring that the 

Government can enforce the law free from estoppel might be outweighed by the countervailing interest of 

citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government.” 

Id. at 60-61, quoted in Gladstone, 44 F. Supp. 2d at 90. The Gladstone ruling is consistent with the 

overwhelming weight of authority that has addressed the issue. See, e.g., Fredericks v. Commissioner of 

Internal Revenue, 126 F.3d 433, 438 (3d Cir. 1997) (“This court is among the majority of circuits recognizing 

estoppel as an equitable defense against government claims.”); Portmann v. United States, 674 F.2d 1155, 1165 

(7th Cir. 1982) (“Our conclusion that equitable estoppel may be available against the government . . . is 

supported by numerous decisions of this and other courts of appeal.”); Watkins v. United States Army, 875 F.2d 

699, 706 (9th Cir. 1989) (“where justice and fair play require it, estoppel will be applied against the 

government”) (citations omitted); Investors Research Corp. v. SEC, 628 F.2d 168, 174 n.34 (D.C. Cir. 1980) 

(“The fundamental principle of equitable estoppel applies to government agencies, as well as private parties.”).

Courts have therefore rejected your contention that the Commission is immune to the defense of estoppel. See 

Investors Research Corp. v. SEC, 628 F.2d at 174 n.34; SEC v. Sands, 902 F. Supp. at 1166 (stating that 

defendants asserted “viable” estoppel defense and that the “Court should not weigh the evidence for purposes of 

a motion to strike an affirmative defense”); SEC v. Dunlap, No. 01-8437-CIV-MIDDLEBROOKS, slip op. at 4 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 34 of 39
Jonathan S. Polish, Esq., and

Benjamin J. Hanauer, Esq.

Senior Trial Counsel, SEC Div. of Enf.

September 8, 2009

pg. 4

 

“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

 

(S.D. Fla. Nov. 14, 2001) (defendant “should not be precluded now from at least attempting to develop this 

theory of defense”); SEC v. CS First Boston Corp., at 2 & n.1 (holding that dismissal was improper at “this 

pleading stage” and finding “no support in recent case law for the SEC’s argument that it cannot be estopped 

from enforcing laws of general applicability”); SEC v. Downe, No. 92 Civ. 4092 (PKL), 1994 WL 67826, at *2 

(S.D.N.Y. Mar. 3, 1994) (defense challenging alleged government misconduct “would be better addressed in a 

concrete factual setting”). Even one of the SEC’s own administrative law judges acknowledged that the 

Supreme Court’s decision in Heckler “leaves open the possibility that a situation could arise where estoppel 

would apply against the government.” See In the Matter of Thorn, Welch & Co., Inc., Admin. Pro. File No. 3-

8400, 1994 WL 570073 (Oct. 13, 1994). 

We do, however, agree with you in one respect, which is that, “the government may not be estopped on 

the same terms as any other litigant.” Heckler, 467 U.S. at 60. Specifically, the First Circuit has observed that 

in considering an estoppel defense asserted against the Government, a court should weigh private interests and 

principles of fairness against the public interest in “the enforcement of congressionally mandated public policy.” 

United States v. Ven-Fuel, Inc., 758 F.2d 741, 761 (1st Cir. 1985). Nevertheless, like the Supreme Court, the 

First Circuit has consistently rejected a “flat rule” against estoppel in cases involving the Government, see 

Heckler, 467 U.S. at 60-61, but instead has left it to district courts to exercise their equitable discretion after 

hearing and assessing all the relevant facts and circumstances. (emphasis added) See, e.g., Frillz, Inc. v. Lader, 

104 F.3d 515, 518 (1st Cir. 1997) (affirming summary judgment where record contained “absolutely no 

evidence” supporting estoppel claim against government); Ven-Fuel, 758 F.2d at 761 (affirming decision to 

deny estoppel defense where “all of the proof on the question” was before district court, and judge “carefully 

examined the relevant evidence”). 

The cases relied upon in your letter are by no means controlling authority in the Eastern District of 

Michigan. Your letter fails to recognize or even discuss SEC v. Blavin, 760 F.2d 706, 712 (6th Cir. 1985),

(describing district court’s statement of law as “questionable” and declaring that “[e]stoppel may be available 

against the Commission in the present case,” but affirming summary judgment where defendant’s evidence did 

not establish traditional elements of estoppel).2 The Commission wishes to focus strictly on the Bravata 

Defendants, when in fact, the Commission is a litigant like many others, required to “follow the rules of fair 

play” or suffer the consequences of not doing so. Mischaracterizing statements of “fact” in its papers in support 

of emergency, ex-parte relief; badgering third-party witnesses who do not wish to concur with the 

Commission’s theory of its case; failing to interview key witnesses in its investigation, such as the Chief 

Financial Officer for BBC and BFG; failing to even review the entire set of Quick Books financial reporting for 

BBC and BFG before declaring a dire emergency requiring ex-parte relief;3

 2 Even if the question of whether the affirmative defense of equitable estoppel is available against the Government were 

close, which it is not, the existence of such a disputed legal issue would preclude striking the defense. See Sands, 902 F. 

Supp. at 1166 (“Even when the defense under attack presents a purely legal question, courts are reluctant to determine 

disputed or substantial questions of law on a motion to strike.”); Wright & Miller § 1381, at 423-25. 

failing to manage its own agency 

3 Although any assertion at this juncture must be made upon information and belief, the Bravata Defendants’ review of 

ALL materials submitted to the Court in support of the Commission’s emergency motion for ex-parte relief on July 27, 

2009 suggests rather strongly that Michigan Rules of Professional Conduct 3.3(d) was NOT complied with during the 

Commission’s efforts to obtaining ex-parte relief against the Defendants in this case. The Comments to Rule 3.3(d) state: 

Ex Parte Proceedings Ordinarily: An advocate has the limited responsibility of presenting one side of the matter that a 

tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. 

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 35 of 39
Jonathan S. Polish, Esq., and

Benjamin J. Hanauer, Esq.

Senior Trial Counsel, SEC Div. of Enf.

September 8, 2009

pg. 5

 

 

“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

 

 

books and records as declared to the public by its own Office of Inspector General—all are considerations that 

should be explored during the pendency of this case. We believe the defenses of estoppel and unclean hands are

appropriately asserted. See United States v. Rexach, 558 F.2d at 43 (applying equitable estoppel where 

government changed its position); United States v. Lazy FC Ranch, 481 F.2d 985, 989-90 (9th Cir. 1973) 

(applying equitable estoppel because agency regulations arguably permitted conduct in question); Sands, 902 F. 

Supp. at 1166 (allegations that SEC “tacitly approved all alleged conduct” were sufficient to state viable 

estoppel defense). The key question in evaluating an estoppel defense against a Government agency such as the 

Commission is whether citizens like the Bravata Defendants are entitled to “some minimum standard of 

decency, honor, and reliability in their dealings with the Government,” see Heckler, 467 U.S. at 60-61 ― not 

whether they have been treated fairly by the particular Government agency that has filed a lawsuit against them. 

As noted earlier, in United States v. Rexach, the First Circuit held that in a case involving misconduct by one 

Government department (the State Department) but prosecuted by a different one (the Justice Department), the 

defendant could proceed with a defense of estoppel “against the United States.” 558 F.2d at 43. “The right 

hand,” the First Circuit explained, “will not be permitted to demand payment for something which the left hand 

has taken away.” Id. 

The Commission Cannot Establish That It Will Be Prejudiced If the Affirmative Defenses are not 

Stricken. 

Your letter establishes no showing of any prejudicial harm that could result from the assertion of our 

affirmative defenses, which is an independent ground for denying any motion to strike. The Commission is 

unable to suggest or establish that it will experience some unusual hardship if the Bravata Defendants are 

allowed to proceed. Instead, your letter implies that striking our affirmative defenses will narrow and simplify 

the presentation of the case and save the parties and the Court time and resources. Using that theory, one could 

assert that prohibiting the defendants in civil litigation from presenting evidence or examining witnesses called 

by a plaintiff would be appropriate as a means of saving time and judicial resources. This is wholly insufficient. 

See SEC v. Thrasher, No. 92 Civ. 6987 (JFK), 1995 WL 456402, at *5 (S.D.N.Y. Aug. 2, 1995) (denying SEC’s 

motion to strike affirmative defense because it failed “to specify what time or expense would be saved, or what 

complexity would be eased, by granting the request . . . [and] rel[ied] only on a suggestion that the inclusion of 

the defense will increase the time and expense of trial”). In fact, the Commission cannot make any real showing 

of prejudice because the factual predicates for our estoppel defenses are interwoven with the elements of the 

Commission’s prima facie case on all counts in the Complaint. We will seek through discovery information 

about the Commission’s misconduct, mistakes, and misrepresentations not only to prove our affirmative 

defenses, but also to explain why the Commission’s claims should be dismissed due to its own malfeasant 

conduct leading up to the filing of this action on July 26, 2009. 

SEC v. Packetport.com, Inc. et al., U.S. District Court for the District of Connecticut, Case No. 3:05-cv1747 (JCH), 2006 U.S. Dist. LEXIS 73638, September 28, 2006 is illustrative of the availability of several types 

 

However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of 

presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. 

The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented 

party has the correlative duty to make disclosures of material facts that are known to the lawyer and that the lawyer 

reasonably believes are necessary to an informed decision.

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 36 of 39
Jonathan S. Polish, Esq., and

Benjamin J. Hanauer, Esq.

Senior Trial Counsel, SEC Div. of Enf.

September 8, 2009

pg. 6

 

“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

 

of affirmative defenses in SEC civil enforcement actions. In Packetport.com, Inc., the defendants' affirmative 

defenses included the doctrines of estoppel, waiver, and laches claiming that those defenses were a bar to the 

SEC seeking relief against them. The SEC contended, as you do in your letter, that it is exempted from these 

common law defenses because it is effectuating its public mission by bringing civil enforcement cases. The 

court found no legal basis for the application of the laches doctrine because the Government was acting in the 

public interest in bringing an enforcement action. (See SEC v. Willis, 777 F.Supp. 1165, 1175 (S.D.N.Y. 1991) 

("[T]he SEC is acting in the public interest by attempting to enforce effectively the federal securities laws under 

its statutory mandate."). However, the court refused to strike the defendants' equitable estoppel defense.

(emphasis added) The court remarked that “[T]o establish a defense of equitable estoppel, a defendant must 

demonstrate that: 1) the party to be estopped [made] a misrepresentation of fact to the other party with reason to 

believe that the other party [would] rely upon it; 2) and the other party reasonably relie[d] upon it; 3) to her 

detriment." Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 725 (2d Cir. 2001). While the 

court voiced no opinion in SEC v. Packetport.com, Inc. et al, supra, on whether the defendants' affirmative 

defense of equitable estoppel would survive a summary judgment motion, the court concluded that striking the 

defense on the pleadings alone would be premature. The court refused to consider whether the length of delay 

and the manner in which it occurred could not constitute conditions severe enough to constitute "affirmative 

misconduct by the government." See id. “As such, the court cannot conclude at this time that there is no set of 

facts provable under the pleadings that would entitle the defendants to prevail on their affirmative defense.” Id.

4

 

Propriety of Calling Ben Hanauer as a Witness at the Evidentiary Hearing

Your letter mistakenly evaluates this issue against several SEC cases where defendants sought to 

compel deposition testimony by a Rule 30(b)(6) witness employed by the Commission. We have issued no 

notices to take any depositions—in fact, that is prohibited in this case as you know. It is no secret that Mr. 

Hanauer was integrally involved in the investigation of the Bravata Defendants prior to the July 26, 2009 filing 

of the Commission’s Complaint. We believe he was instrumental in the process of obtaining emergency, exparte relief from the Court which we believe strongly to have been violative of Fed. R. Civ. Pro. 65(b), MCPR 

3.3(d) and other requirements. We have reason to believe that Mr. Hanauer inappropriately badgered on or more 

witnesses into signing sworn affidavits or declarations unfavorable to the Bravata Defendants when in fact, at 

least one such witness flatly refused to do so. At the evidentiary hearing, we expect the propriety of obtaining 

the emergency, ex-parte relief by the Commission will be highly relevant—making Mr. Hanauer a witness we 

are entitled to elicit testimony from. I can assure you we are not engaging in dramatics or clumsy strategies as 

your letter implies, but we are interested in evidencing the steps Mr. Hanauer took in securing emergency, exparte relief far in excess of even that which was warranted assuming the allegations in the Commission’s 

Complaint were deemed to be true. This stage of the proceeding is still very relevant to where we are today, 

 4 SEC v. Packetport.com, Inc. supra, is an interesting case. Even though the SEC ultimately convinced the District Court to 

reconsider its dismissal of the case against multiple defendants, the SEC ultimately realized that it simply was not able to

establish violations of the securities laws. Subsequent to reconsideration, an upon motion of the SEC, the claims brought by 

the Commission were subsequently dismissed. SEC v. Packetport.com, Inc., 2007 U.S. Dist. LEXIS 20839 (D. Conn., Mar. 

21, 2007). Of course this was after years of litigation, irreparable damage to reputations and hundreds of thousands of 

dollars of legal fees if not more. Legal commentators have espoused the view that cases such as Packetport.com should give 

rise to the manner that the Commission chooses to bring enforcement actions and under what circumstances.

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 37 of 39
Jonathan S. Polish, Esq., and

Benjamin J. Hanauer, Esq.

Senior Trial Counsel, SEC Div. of Enf.

September 8, 2009

pg. 7

 

 

“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

 

 

since if the rules had been followed by the Commission, the Bravata Defendants would have had their due 

process rights remain intact rather than eviscerated by the Commission.

I am available pretty much this entire coming week to confer with your further if you believe that is 

required, i.e. if the Commission intends to file any motion for relief requiring a conference with counsel as a 

predicate thereto. 

Sincerely,

Gregory Bartko, Esq.

Law Office of Gregory Bartko, LLC

Cc: George B. Donnini, Esq. (via email)

 Gary Saretsky, Esq. (via email)

 Melissa Traver (via email)

 John J. Bravata (via email)

 Earle I. Erman, Esq. (via email)

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 38 of 39
CERTIFICATE OF SERVICE 

 Jonathan S. Polish, an attorney, hereby certifies that on September 15, 2009, he caused 

the foregoing submission to be filed with the Clerk of Court using the CM/ECF system. 

 /s/ Jonathan S. Polish _

Case 2:09-cv-12950-DML-VMM Document 65 Filed 09/15/2009 Page 39 of 39