Reply Brief — David D'Addario, et al., Petitioners v. Virginia A. D'Addario

d

No. 18-890

IN THE

Supreme Court of the United States

DAVID D’ADDARIO, MARY LOU D’ADDARIO KENNEDY,

GREGORY S. GARVEY, RED KNOT ACQUISITIONS, LLC,

SILVER KNOT, LLC, NICHOLAS VITTI,

Petitioners,

—v.—

VIRGINIA A. D’ADDARIO, individually, and on behalf of the F.

Francis D’Addario Testamentary Trust and the Virginia D’Addario

Trust; and VIRGINIA A. D’ADDARIO, EXECUTRIX, as Executrix of

the Probate Estate of Ann. T. D’Addario, Deceased, and on behalf

of the F. Francis D’Addario Testamentary Trust and the Ann T.

D’Addario Marital Trust,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF FOR PETITIONERS

JOSEPH W. MARTINI

BRIAN E. SPEARS

NATHAN J. BUCHOK

SPEARS MANNING &

MARTINI LLC

2425 Post Road, Suite 203

Southport, Connecticut 06890

(203) 292-9766

ALFRED U. PAVLIS

Counsel of Record

TONY MIODONKA

FINN DIXON & HERLING LLP

Six Landmark Square

Stamford, Connecticut 06901

(203) 325-5000

apavlis@fdh.com

Attorneys for Petitioners

Attorneys for Petitioners

David D’Addario, Mary Lou

Gregory S. Garvey and

D’Addario Kennedy, Silver

Red Knot Acquisitions, LLC

Knot, LLC and Nicholas Vitti

i

TABLE OF CONTENTS

PAGE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I.

1

The Decision Below On Proximate

Causation Conflicts With The

Precedent Of This Court And Other

Circuit Courts. . . . . . . . . . . . . . . . . . . . . .

1

II. The Plaintiffs Fail To Meaningfully

Dispute The Fact That The Second

Circuit’s Holding Cannot Be

Harmonized With Reves v.

Ernst & Young. . . . . . . . . . . . . . . . . . . . . .

8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

ii

TABLE OF AUTHORITIES

PAGE(S)

Cases

Bivens Gardens Office Bldg. v. Barnett Banks

of Florida, Inc.,

140 F.3d 898 (11th Cir. 1998) . . . . . . . . . . . . . . . . 5

Cadle Co. v. D’Addario,

268 Conn. 441 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 7

Crichton v. Golden Rule Ins. Co.,

576 F.3d 392 (7th Cir. 2009) . . . . . . . . . . . . . . . . 11

Dahlgren v. First Nat. Bank of Holdrege,

533 F.3d 681 (8th Cir. 2008) . . . . . . . . . . . . . . . . 11

Firestone v. Galbreath,

976 F.2d 279 (6th Cir. 1992) . . . . . . . . . . . . 2, 3, 4

First Capital Asset Management, Inc. v.

Satinwood, Inc.,

385 F.3d 159 (2d Cir. 2004).

(App., at 47a-48a) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Geremia v. Geremia,

159 Conn. App. 751 (2015) . . . . . . . . . . . . . . . . . . . 7

Hemi Grp. LLC v. City of N.Y., N.Y.,

559 U.S. 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 8

Holmes v. Securities Investor Protection

Corp.,

503 U.S. 258 (1992) . . . . . . . . . . . . . . . . . . . . . . . 3, 7

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

572 U.S. 118 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

iii

PAGE(S)

Manson v. Stacescu,

11 F.3d 1127 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . 5

NCNB Nat’l Bank v. Tiller,

814 F.2d 931 (4th Cir. 1987), overruled on

other grounds sub nom., Busby v. Crown

Supply, Inc., 896 F.2d 833 (4th Cir. 1990) . . . 5

Rand v. Anaconda-Ericsson, Inc.,

794 F.2d 843 (2d Cir. 1986) . . . . . . . . . . . . . . . . . . 5

Reves v. Ernst & Young,

507 U.S. 170 (1993) . . . . . . . . . . . . . . . 8, 10, 11, 12

Roeder v. Alpha Indus., Inc.,

814 F.2d 22 (1st Cir. 1987) . . . . . . . . . . . . . . . . . . 5

Schrager v. Aldana,

542 Fed. Appx. 101 (3rd Cir. 2013) (per

curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Sears v. Likens,

912 F.2d 889 (7th Cir. 1990) . . . . . . . . . . . . . . . . . 5

Sheshtawy v. Gray,

697 Fed. Appx. 380 (5th Cir. 2017), 138 S. Ct.

1298 (2018), 138 S. Ct. 1298 (2018) . . . . . . . . . . 4

Silver v. Holtman,

114 Conn. App. 438 (2009) . . . . . . . . . . . . . . . . . . . 7

Sparling v. Hoffman Constr. Co.,

864 F.2d 635 (9th Cir. 1988) . . . . . . . . . . . . . . . . . 5

United States v. Swan,

250 F.3d 495 (7th Cir. 2001) . . . . . . . . . . . . . . . . 11

Univ. of Maryland at Baltimore v. Peat,

Marwick, Main & Co.,

996 F.2d 1534 (3d Cir. 1993) . . . . . . . . . . . . . . . . 11

iv

PAGE(S)

Warren v. Manufacturer’s Nat’l Bank,

759 F.2d 542 (6th Cir.1985) . . . . . . . . . . . . . . . 2, 5

Whalen v. Carter,

954 F.2d 1087 (5th Cir. 1992) . . . . . . . . . . . . . . . . 5

Willis v. Lipton,

947 F.2d 998 (1st Cir. 1991) . . . . . . . . . . . . . . . . . 5

Statutes

18 U.S.C. §1962(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1

David D’Addario, Mary Lou D’Addario Kennedy,

Gregory S. Garvey, Red Knot Acquisitions, LLC,

Silver Knot, LLC and Nicholas Vitti respectfully

submit this Reply in further support of their

petition for a writ of certiorari.

ARGUMENT

I.

The Decision Below On Proximate

Causation Conflicts With The Precedent

Of This Court And Other Circuit Courts.

Contrary to the Plaintiffs’ assertions, the

Second Circuit’s decision on proximate causation

is not in “harmony” with existing precedent, but

instead represents a significant and unwarranted

expansion of the civil RICO statute. The decision

conflicts with this Court’s decision in Hemi Grp.

LLC v. City of N.Y., N.Y., 559 U.S. 1 (2010), which

made clear that in identifying a direct injury for

the purposes of the RICO statute, a court should

not look past the “first step.” Id. at 10. The Second

Circuit’s decision also conflicts with the decisions

of other circuit courts. If the Second Circuit’s

decision is permitted to stand, any disgruntled

beneficiary of an estate or trust, simply by

cobbling together two alleged predicate acts, will

be able to circumvent local procedures and

escalate a family probate dispute into a civil RICO

action against an executor, with the attendant

threat of reputational harm and treble damages.

In seeking to create the misimpression that the

Second Circuit’s decision does not create a circuit

split, the Plaintiffs sidestep the core reasoning of

the other circuit court decisions that are contrary

to the Second Circuit’s holding in this case. In

those decisions, the other circuits squarely held

2

that when the alleged predicate acts harm the

estate or trust as a whole, the injury to the

beneficiary is indirect and, therefore, inadequate

to support a RICO cause of action. For example,

the Sixth Circuit in Firestone v. Galbreath, 976

F.2d 279 (6th Cir. 1992), held as follows:

[The proximate cause] requirement forces

the plaintiff to demonstrate a direct

relation between the injury suffered and

the alleged injurious conduct. Thus, the

concept of direct injury refers to the

relationship between the injury and the

defendants’ actions, not the plaintiffs’

pocketbooks.

For example, our court has held that a

shareholder lacks standing to bring a suit

where the alleged injury is diminution or

destruction of the value of the stock due

to acts aimed at a corporation. Gaff v.

FDIC, 814 F.2d 311 (6th Cir.1987); Warren v.

Manufacturer’s Nat’l Bank, 759 F.2d 542

(6th Cir.1985). In these cases, the

shareholder’s injury is only indirect

because the decrease in the value of the

corporation precipitates the drop in the

value of the stock. The corporation, on the

other hand, suffers the direct injury in the

decreased value of its corporate assets.

The relationship between the Grandchildren’s alleged injury and the injurious

conduct here parallels that of the injured

stockholders. The Grandchildren allege

that by stealing from their grandmother

during her lifetime, the defendants

decreased the size of Dorothy Galbreath’s

3

estate, and consequently the size of their

inheritance. This is only an indirect injury

because any harm to the Grandchildren

flows merely from the misfortunes allegedly

visited upon Dorothy Galbreath by the

defendants. See Holmes, 503 U.S. at ––––,

112 S.Ct. at 1318. The estate suffered the

direct harm; it, not the Family Trust, lost

the

property.

Consequently,

the

Grandchildren lack standing to bring an

individual RICO claim, and the district

court correctly dismissed it.

976 F.2d at 285 (footnote omitted). The reasoning

could not be clearer.

Similarly, in Schrager v. Aldana, 542 Fed. Appx.

101 (3rd Cir. 2013) (per curiam), the Third Circuit

held:

Applying the multi-factor analysis test

of Holmes to the present case, we

conclude that Schrager, as a beneficiary of

the Estate, cannot maintain his claim

based on § 1962. Schrager argues that

Appellee conspired with her mother

Lipton and family-friend Rosenblatt to

defraud the Estate of Rosyln Schrager,

through a pattern of racketeering activity,

of over $1 million and thereby caused

Schrager, a beneficiary of the Estate, to

suffer a direct monetary injury. The direct

victim of Appellee’s conduct was the

Estate, not Schrager. It was the Estate

that lost value due to the fraudulent

activities of Appellee and her coconspirators and therefore the Estate is in

a better position to bring a civil RICO

4

claim. See Firestone v. Galbreath, 976

F.2d 279, 285 (6th Cir.1992) (holding that

grandchildren, as beneficiaries of decedent’s

estate, lacked standing to bring a RICO

claim because the estate suffered the

direct harm). Consequently, Schrager

lacks standing to bring an individual

RICO claim.

542 Fed. Appx. at 104 (footnote omitted).

In Sheshtawy v. Gray, 697 Fed. Appx. 380 (5th

Cir. 2017) (per curiam), cert. denied, 138 S. Ct.

1298 (2018), the Eighth Circuit held:

Plaintiffs’ suggest that their injury comes

in the form of financial losses to their

property interests in their respective

probate proceedings. However, the alleged

injury to their share of the estate or trust

is merely an expectancy interest that is

too speculative and indirect to satisfy

RICO standing. See Gil Ramirez Grp.,

L.L.C. v. Hous. Indep. Sch. Dist., 786 F.3d

400, 409–410 (5th Cir. 2015); In re

Taxable Mun. Bond Sec. Litig., 51 F.3d at

522–23; see also Firestone v. Galbreath,

976 F.2d 279, 285 (6th Cir. 1992) (affirming

the district court’s dismissal of plaintiffs’

RICO claims for lack of standing because

the

estate,

not

certain

potential

beneficiaries, suffered direct harm).

Therefore, we affirm the district court’s

determination that Plaintiffs lack RICO

standing . . . .

697 Fed. Appx. at 382.

5

The rule followed by the Third, Sixth and Eighth

Circuits is consistent with numerous cases holding

that shareholders in a corporation do not suffer a

direct injury for the purposes of RICO when the

harm is to the corporation as a whole. See, e.g.,

Willis v. Lipton, 947 F.2d 998, 1000 (1st Cir.

1991); Roeder v. Alpha Indus., Inc., 814 F.2d 22,

29 (1st Cir. 1987) (shareholder lacked standing to

bring RICO action based on the payment of a bribe

that injured corporation); Manson v. Stacescu, 11

F.3d 1127, 1131 (2d Cir. 1993) (“A shareholder

generally does not have standing to bring an

individual action under RICO to redress injuries

to the corporation in which he owns stock.”); Rand

v. Anaconda-Ericsson, Inc., 794 F.2d 843, 849 (2d

Cir. 1986) (shareholders in a bankrupt corporation

lacked standing to bring a nonderivative RICO action

against the corporation’s principal creditor because

“[t]he legal injury, if any, was to the firm. Any

decrease in value of plaintiffs’ shares merely

reflects the decrease in the value of firm”); NCNB

Nat’l Bank v. Tiller, 814 F.2d 931, 937 (4th Cir.

1987), overruled on other grounds sub nom., Busby

v. Crown Supply, Inc., 896 F.2d 833, 840-41 (4th

Cir. 1990); Whalen v. Carter, 954 F.2d 1087, 109192 (5th Cir. 1992); Warren v. Manufacturers Nat’l

Bank, 759 F.2d 542, 544 (6th Cir. 1985); Sears v.

Likens, 912 F.2d 889, 892 (7th Cir. 1990); Sparling

v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir.

1988); Bivens Gardens Office Bldg. v. Barnett

Banks of Florida, Inc., 140 F.3d 898, 906 (11th

Cir. 1998).

Here, as in the corporation/shareholder cases,

the direct injury is to the Estate as a whole and

the alleged injury to Plaintiffs’ anticipated

inheritance is indisputably derivative and

6

indirect. Hemi, 559 U.S. at 10 (explaining that

RICO standing does not extend beyond the “first

step” and concluding that “[b]ecause the

[plaintiff’s] theory of causation requires us to

move well beyond the first step, that theory

cannot

meet

RICO’s

direct

relationship

requirement”) (internal citations and quotations

omitted).

Relying on Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118 (2014), Plaintiffs

attempt to avoid this established principle by

arguing that David D’Addario’s wrongful conduct

was directed primarily at his sister, Virginia, not

simply the Estate. However, Lexmark involved a

claim for false advertising under the Lanham Act,

not a claim under the RICO statute. As this Court

has stated in the RICO context, the legal standard

for proximate cause under RICO does not turn on

intent or foreseeability, but rather on what entity

(here the Estate) suffered harm directly from the

alleged RICO violations. Hemi, 559 U.S. at 12

(rejecting argument that proximate cause

requirement was satisfied because harms alleged

were both foreseeable and intended because “[o]ur

precedents make clear that in the RICO context,

the focus is on the directness of the relationship

between the conduct and the harm”). In addition,

if Plaintiffs are allowed to proceed, this case

would involve a clear risk of duplicative recovery

(because the Estate is still open) and involve the

complicated procedure of apportioning damages

between the Estate and its various beneficiaries

7

and creditors. See Holmes v. Securities Investor

Protection Corp., 503 U.S. 258, 269 (1992). 1

Finally, Plaintiffs implicitly acknowledge the

weakness of their position by now arguing that

Virginia may have the ability to sue on behalf of

the Estate. However, Plaintiffs did not plead or

pursue this theory below. Moreover, under wellsettled Connecticut law, only duly-appointed

executors (or administrators) have standing to

assert claims on behalf of a probate estate. See,

e.g., Silver v. Holtman, 114 Conn. App. 438, 443

(2009) (executrix “is the only person who has

standing to bring these claims [on behalf of the

probate estate] because of her representative

capacity”); Geremia v. Geremia, 159 Conn. App.

751, 781 (2015) (same; collecting authorities). 2

1

Though Plaintiffs argue that it is unreasonable to

expect that David D’Addario, as executor, would authorize

the Estate to institute an action against himself, this

contention cannot confer RICO standing. Under

Connecticut law, Plaintiffs can seek to have the executors

removed or have them surcharged. In fact, both Virginia

D’Addario and a creditor of the estate filed motions to

remove David D’Addario as executor, and in both instances,

these motions were denied. See Amended Complaint ¶ 106;

Cadle Co. v. D’Addario, 268 Conn. 441, 450 (2004). Despite

many motions and appeals, there has been no finding, by

any court, that David D’Addario has engaged in any

wrongdoing in connection with his administration of the

Estate.

2

In addition, Virginia cannot sue on behalf of the

Estate under the terms of her earlier settlement agreement

with the Estate, which barred her from taking part in

deliberations or decisions relating to the Estate or its

property. Given this settlement, her prior unsuccessful

effort to have the executors removed, and Connecticut law,

8

This Court should accept review to resolve the

circuit split and avoid the confusion and risks

created by the Second Circuit’s overly-expansive

reading of proximate causation under RICO. By

accepting certiorari, the Court would have the

opportunity to build on Hemi and create a clear,

simple and enforceable rule so that family probate

disputes are not escalated into civil RICO cases

based on the allegations of one disgruntled

beneficiary.

II. The Plaintiffs Fail To Meaningfully

Dispute The Fact That The Second

Circuit’s Holding Cannot Be

Harmonized With Reves v. Ernst &

Young.

The Plaintiffs fail to offer any explanation as to

how the Second Circuit’s holding—that outside

parties, who “assist” a member of a RICO

enterprise in his operation or management of the

enterprise or act as a “necessary tool” thereof,

have themselves “participated in the operation or

management of the enterprise” and can therefore

be held liable under RICO—can be harmonized

with this Court’s holding in Reves v. Ernst &

Young, 507 U.S. 170 (1993).

Instead, the

Plaintiffs simply state, with no analysis, that the

Second Circuit did not so hold. (Pl. Opp. at 21).

Confusingly, however, the only support for this

bald assertion is the Plaintiffs’ block quotation of

the same portion of the Second Circuit’s holding

wherein the court states just that. (Pl. Opp. at 22).

Virginia cannot purport to act on behalf of the Estate

without Probate Court approval.

9

The relevant portion of the holding below, quoted

by both parties, is:

The individual defendants (Mary Lou,

Garvey, and Vitti) are alleged to have

actively assisted David when he operated

the Estate to effectuate his schemes,

which directly affected his management of

the

Estate.

Although

the

entity

defendants (Silver Knot and Red Knot)

were used simply to effectuate David’s

schemes, they also can be understood to

have sufficiently assisted David in his

conduct of the Estate’s affairs simply by

their formation and existence: they were

necessary

tools

for

the

schemes’

operation. Such assistance may fairly be

considered

“participation”

in

the

operation

or

management

of

an

enterprise, at least in the circumstances

alleged here.

(App., at 48a). Under the Second Circuit’s analysis

of the alleged facts, the RICO enterprise was the

Estate, and David D’Addario was a member of

that enterprise. (App., at 46a, n.13). The Second

Circuit reasoned that neither the individual

defendants Mary Lou, Garvey, and Vitti, nor the

entity defendants, Silver Knot and Red Knot, were

members of the alleged enterprise. (App., at 46a).

Thus, the Second Circuit clearly held that outside

individuals, i.e. Mary Lou, Garvey, and Vitti, could

be liable for participating in the operation or

management of the enterprise itself, i.e. the Estate,

simply because they assisted a single member of the

enterprise, i.e. David D’Addario, in the operation of

one of his alleged schemes which affected his

management of the enterprise. (App., at 48a). As to

10

the outside entities, Silver Knot and Red Knot, the

Second Circuit held that these defendants could

be liable for participating in the operation or

management of the enterprise simply by virtue of

their existence, since they were “necessary tools,”

for a single member, i.e., David D’Addario, to

effectuate his purported “schemes.” Id. The

Plaintiffs offer no explanation as to how this

holding is consistent with Reves, nor could they,

as it is directly contrary.

In a misleading attempt to tie the Second

Circuit’s reasoning to the holding in Reves v. Ernst

& Young, the Plaintiffs claim that “[a]fter

discussing the parameters of the ‘operation and

management’ test set forth by this Court in Reves,

the Second Circuit ruled that ‘[t]he same analysis

applies to the remaining defendants . . . .”‘ (Pl.

Opp. at 22). What the Plaintiffs attempt to

obfuscate is that the “same analysis” the Second

Circuit was applying was not, as the Plaintiffs’

claim, this Court’s analysis in Reves, but rather

was the Second Circuit’s own flawed analysis in

First Capital Asset Management, Inc. v.

Satinwood, Inc., 385 F.3d 159, 179 (2d Cir. 2004).

(App., at 47a-48a). As discussed in detail in

Defendants’ Petition, in First Capital, the Second

Circuit erroneously reasoned, in dicta, that

liability under the “operation or management

test” was analogous to liability for aiding and

abetting. First Capital, 385 F.3d at 179 (citing 18

U.S.C. § 2, the aiding and abetting statute, as an

analogous authority supporting its application of

the operation or management test). In Reves,

however, this Court rejected that same premise,

and held that participation in the operation or

management of the conduct of an enterprise’s

11

affairs has a “narrower” meaning than the

meaning of “aid and abet.” Reves, 507 U.S. at 17879. Similarly, every other Circuit to address the

issue has held that, under Reves, simply assisting

the enterprise is not sufficient to establish

liability under §1962(c). See, e.g., Univ. of

Maryland at Baltimore v. Peat, Marwick, Main &

Co., 996 F.2d 1534, 1539 (3d Cir. 1993); United

States v. Swan, 250 F.3d 495, 499 (7th Cir. 2001);

Crichton v. Golden Rule Ins. Co., 576 F.3d 392,

399 (7th Cir. 2009); Dahlgren v. First Nat. Bank

of Holdrege, 533 F.3d 681, 690 (8th Cir. 2008).

The Plaintiffs also attempt to support the

Second Circuit’s holding below by arguing that the

“operation or management” test is satisfied simply

based on the allegations of the Defendants’

“knowing and active participation” in the various

“Predicate Acts.” (Pl. Opp. at 24). This argument

only further highlights the flaws in the Plaintiffs’

position and the Second Circuit’s ruling. Again,

this same argument was expressly rejected by this

Court in Reves. In Reves, this Court held that “‘to

participate . . . in the conduct of . . . affairs’ must

be narrower than ‘to participate in affairs’ or

Congress’ repetition of the word ‘conduct’ would

serve no purpose.” Reves, 507 U.S. at 179. Rather

than simply participating in the affairs, Reves

requires that a defendant have “some part in

directing those affairs.” Id.

The underlying facts in Reves further emphasize

the point. The accounting firm in Reves

participated in the underlying predicate acts -- in

fact, they were convicted of underlying counts of

securities fraud.

Reves, 507 U.S. at 176.

Nevertheless, this Court held that such

participation in the affairs of the enterprise did

12

not amount to participation in the conduct of the

enterprise’s affairs, as necessary to establish

liability under §1962(c). Id. at 178-79.

Thus, as the Plaintiffs themselves argue, under

the Second Circuit’s holding below, mere

participation in the enterprise affairs, i.e. the

predicate acts, would be sufficient to establish

participation in the operation or management of

the enterprise’s affairs. (Pl. Br. at 24). That

holding is directly contrary to the binding

precedent of this Court set forth in Reves v. Ernst

& Young, as well as the holdings of the Third,

Seventh, and Eighth Circuits. Accordingly, the

Plaintiffs’ argument in opposition only further

underscores the need for this Court to grant

review and align the law in the Second Circuit

with this Court’s binding precedent and resolve

the circuit split created by the Second Circuit’s

holding below. 3 See Supreme Court R. 10(a) and

(c).

3

In a tacit acknowledgment of the weakness of their

argument in opposition, the Plaintiffs claim that whether

the Second Circuit’s holding as to the operation and

management test was erroneous is irrelevant because the

Plaintiffs have alleged co-conspirator liability under 18

U.S.C. §1962(d). (Pl. Br. at 24) This Court need not consider

the flaws of that single-sentence argument, as the

substantive adequacy of the Plaintiffs’ §1962(d) claims was

never addressed by the District Court, or the Second

Circuit.

13

CONCLUSION

For the foregoing reasons, as well as those

contained in the Petition for Certiorari, the

petition should be granted.

Dated: February 22, 2019

Respectfully submitted,

ALFRED U. PAVLIS

Counsel of Record

TONY MIODONKA

FINN DIXON & HERLING LLP

Six Landmark Square

Stamford, Connecticut 06901

(203) 325-5000

apavlis@fdh.com

Attorneys for Petitioners

David D’Addario, Mary Lou

D’Addario Kennedy, Silver

Knot, LLC and Nicholas Vitti

JOSEPH W. MARTINI

BRIAN E. SPEARS

NATHAN J. BUCHOK

SPEARS MANNING & MARTINI LLC

2425 Post Road, Suite 203

Southport, Connecticut 06890

(203) 292-9766

Attorneys for Petitioners

Gregory S. Garvey and

Red Knot Acquisitions, LLC