Metropolitan News-Enterprise
Friday, November
17, 2017
Page 1
C.A. Affirms Dismissal of Law Firms in Conspiracy Action
Justice Johnson Says Anti-SLAPP Motion Was Properly Granted
Where Conduct Took the Form Of Legal Representation; Ruling Is Latest
Installment in Protracted Litigation Over $35 Million
By a MetNews
Staff Writer
The Court of
Appeal for this district yesterday affirmed a judgment of dismissal, pursuant
to an anti-SLAPP motion, in an action that accused lawyers in two firms of
acting in collusion with their client in converting and fraudulently
transferring $13 million.
The
plaintiff is Optional Capital, Inc., a Korean venture capital firm that alleges
that one of its investors, DAS Corporation, along with certain
individualsErica Kim, Christopher Kim, and Bora Leetried to wrest control of
it in 2001, and pilfered $35 million of its funds. Litigation over the funds
has been going on since 2003 when DAS sued the Kim defendants.
A 2014
Court of Appeal opinion for this district observes that the case involves an
extremely tangled thicket of legal proceedings in both state and federal court,
as well as in Switzerland.
One
Installment
Justice
Jeffrey Johnson of Div. One, said in that opinionupsetting a dismissal of the
action against DAS following the granting of an anti-SLAPP motionthat the
appeal was but one installment in Optional Capital, Inc.s attempt to recover
monies it contends were looted from its corporate coffers in 2000 and 2001.
The
latest installment is yesterdays affirmance of Los Angeles Superior Court
Judge Teresa Sanchez-Gordon grant of an anti-SLAPP motion to DASs attorneys,
in an opinion again written by Johnson. Unlike the 2014 opinion, it was not
certified for publication.
The
prevailing defendants are Akin Gump Straus Hauer & Feld LLP, an
international law firm with more than 900 attorneys (denominated in the
opinion, Akin) and Parker Shumaker Mills LLP, a 10-lawyer firm, sued along
with its principals, David Parker and William K. Mills (referred to as
Parker).
First Prong
Johnson
said in yesterdays unpublished opinion that the first prong of the anti-SLAPP
statutethat the actions complained of arose from protected activityis met,
because they all arose directly out of the litigation in which they were
respectively representing DAS.
The
plaintiff wants to hold Akin accountable for the transfer of funds from a Swiss
account to DAS. More than $15 million in allegedly stolen funds were shifted to
an account in Genevas Credit Suisse Bank in 2003 by a company owned by the
Kims; in 2010, DAS, represented by Akin, settled with the Kims, through
mediation; Optional was not involved in that settlement; the Swiss government
unfroze the funds; about $13 million went to DAS.
Optional
avers that the defendants agreed on a common plan…to fraudulently transfer
13 million dollars from the Credit Suisse Bank account to DAS and thereby
hinder, delay or defraud OPTIONAL in recovering that property.
Federal Forfeiture
Action
Parker
represented DAS as a claimant in a federal forfeiture action the U.S.
government brought based on the Kim parties looting of Optional. Optional
contends it was prejudiced by Parkers alleged delay in informing the court of
the settlement.
Johnson
wrote:
In
short, the gravamen of Plaintiffs claims against Defendants is based on
protected activity, namely Defendants representation of DAS in litigation (the
state court action and the federal forfeiture action). Accordingly, we hold
that Defendants made a prima facie showing that Plaintiffs claims arise from
Defendants constitutionally protected petition rights.
Second Prong
He
said the second prong of the anti-SLAPP statuteprobability that the defendants
would prevail on the meritsis also met, declaring:
Here,
Defendants met their burden of showing that the litigation privilege applies
because the communicative conduct at issueas established by the pleadings and
documents submitted in connection with motionswas made in judicial or quasi-judicial
proceedings (i.e., the state court action, the federal forfeiture action, and
the private mediation in the state court action) by attorneys for DAS to
achieve the object of the proceedings and had some connection or logical
relation to the action.
The
case is Optional
Capital v. Akin Gump Strauss Hauer & Feld LLP, B275274.
Attorneys
on appeal were Ralph Rogari and Mary Lee for Optional; Gordon A. Greenberg and
Charles Edward Weir of McDermott, Will & Emery, for Akin Gump, Strauss,
Hauer & Feld LLP and Raul L. Martinez, Kenneth C. Feldman and Larissa G.
Nefulda of Lewis Brisbois Bisgaard & Smith for Parker Shumaker Mills LLP,
David Parker and William K. Mills.
Feldman
said yesterday:
We
are gratified that our client, Parker Mills LLP (formerly Parker Shumaker Mills
LLP) prevailed and that the Court of Appeal recognized the distinction between
litigants and the attorneys who loyally advocate and serve their interests.
Page 33 of the opinion is particularly telling wherein the Court of Appeal joined
with an earlier published case in expressing grave concern about inferring an
attorney-client conspiracy from the mere existence of an attorney-client
relationship.
As
someone whose practice is devoted almost exclusively to defending other lawyers,
I believe that litigants should think long and hard about suing former
adversary counsel, as this case demonstrates.
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2017, Metropolitan News Company