Opposition Brief — Lupo v. Cohen

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| OFFICE OF THE cL. .

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No. 91-96

In The

Supreme Court of the United States

October Term, 1991

vv

DAVID G. LUPO, JAMES STEMMLER,

JANE S. TSCHUDY, THOMAS W. YAGER,

MICHAEL J. KICKHAM, E. LOUIS WERNER,

AND RONALD B. BURT,

Petitioners,

IRVING COHEN, ET AL.,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

*

BRIEF FOR RESPONDENT IRVING

COHEN IN OPPOSITION

‘

Georce R. Kucik

Counsel of Record

JEANNE PHILBIN _

SHARON SCHROER

ARENT Fox KINTNER PLOTKIN

& KAHN

1050 Connecticut Avenue

Washington, D.C. 20036-5339

202/857-6000

STEFAN GLYNIAS

Evans & D1Ixon

314 North Broadway

St. Louis, Missouri 63102

314/621-7755

Counsel for Respondent

Irving Cohen

QUESTION PRESENTED

Did the Eighth Circuit correctly rule that an action

for malicious prosecution is not barred under the doctrine

of res judicata by a prior application for Rule 11 sanctions

in the underlying lawsuit?

ii

TABLE OF CONTENTS

Page

RMR WEED bc vccccucccccecéeceeaceses i

pee Be Aer errr errr errs roy ii

SPREE Ie UIP ERIIIE ED oc oo ccc cccseccendeepenees iii

NEI CEG 165 5609055 cdveececdccdrecences 1

STAT BRemes GP THE CASE... ccc cccccscccceccves 2

THE PETITION SHOULD BE DENIED............. 4

A. There is No Conflict Among the Circuits.... 4

B. The Decision Below is in Accord With This

Court’s Interpretation of Rule 11............. 5

C. The Decision Below Correctly Applied Tradi-

tional Notions of Res Judicata............... 7

CRRA ME <4 0's sn ior ees an bP aCEL ere diet ee ere er 12

iii

TABLE OF AUTHORITIES

Page

Cases

American International Airways, Inc. v. American

International Group, Inc., Civ. A. No. 90-7135

EE Is BUPUD ss coc ce ceccscvevetecevees: 5

Amwest Mortgage Corp. v. Grady, 925 F.2d 1162 (9th

eS bevy eeauer es cinpmenes tees oes 5,9

Bastien v. R. Rowland & Co., 116 F.R.D. 619 (E.D.

Mo. 1987), aff'd sub nom. Lupo v. R. Rowland &

Co., 857 F.2d 482 (8th Cir. 1988), cert. denied, 490

EGC ae re a a 3, 4

Bastien v. R. Rowland & Co., 631 F. Supp. 1554 (E.D.

Mo. 1986), aff'd, 815 F.2d 713 (8th Cir. 1987), cert.

ce Sy 2, 4

Brown v. Federation of State Medical Boards, 830 F.2d

RS ee or ee eee 11

Business Guides, Inc. v. Chromatic Communications

peeves, tnc., _.. US..__., 111 S. Ce. 922

ee bekeuereeees 6, 10

Chambers v. Nasco, Inc., __ U.S. __, 111 S. Ct. 2123

Nee ee te ep eects 7

Chris & Todd, Inc. v. Arkansas Department of Finance

& Administration, 125 F.R.D. 491 (E.D. Ark. 1989) ...7, 9

Cooter & Gell v. Hartmarx Corp.,___ U.S. __, 110S.

I aildls are 6, 9, 11

Damiani v. Adams, 657 F. Supp. 1409 (S.D. Cal.

EES ns AS: a 10

Doe v. Keane, 117 F.R.D. 103 (W.D. Mich. 1987)...... 10

Doering v. Union County Board of Chosen Eree-

holders, 857 F.2d 191 (3rd Cir. 1988)............... 11

iv

TABLE OF AUTHORITIES - Continued

Page

Federated Department Stores, Inc. v. Moitie, 452 U.S.

Se INN iD 3 CB y Gabe n 4d Fé WANs Vue P Sakae a Kew 8

Haswell v. Liberty Mutual Ins. Co., 557 S.W.2d 628

EE 20.82 0b t Sie cnc navasds vctuaetanneness 8, 9

Henderson v. Dept. of Public Safety, 901 F.2d 1288

I is inn sougis < eae hua au piauNee + ees a 10

Hilton Hotels Corp. v. Banov, 899 F.2d 40 (D.C. Cir.

WOU r ee co 4s hho ks robe ne cae kee ed keen ses hata

In re Kunstler, 914 F.2d 505 (4th Cir. 1990), cert.

ee Pe te ae lh Uw. 11

International Shipping Co. v. Hydra Offshore, Inc.,

875 F.2d 388 (2nd Cir. 1989), cert. denied, 110 S.

alias ants Bia Paphitis ead F.Gaas cya esos 10

Jackson v. Law Firm of O’Hara, Ruberg, Osborne &

Taylor, 875 F.2d 1224 (6th Cir. 1989)............... 11

Lenoir v. Tannehill, 660 F. Supp. 42 (S.D. Miss. 1986) ..... 5

Lupo v. R. Rowland & Co., 857 F.2d 482 (8th Cir.

1988), cert. denied, 490 U.S. 1081 (1989)...... teeeee. 4

Lyles v. K Mart Corp., 703 F. Supp. 435 (W.D.N.C.

Ri nce ccs bee dis Raed s beaKe ee ones 8

Muraoka v. American Osteopathic Association, 117

eee ee ef ee 10

Murray v. Dominick Corporation of Canada, Ltd., 117

eM SR Se eee 10

Pony Express Courier Corporation of America v. Pony

Express Delivery Service, 872 F.2d 317 (9th Cir.

aE gp Par ton -ad r ee e n 10

Port Drum Co. v. Umphrey, 852 F.2d 148 (5th Cir.

WES hana ko pnd teaneee tabs ers Resse eeetiaees unex’ > 7

A ETRE A TR er ROR

Vv

TABLE OF AUTHORITIES - Continued

Page

Proctor v. Stevens Employment Services, Inc., 712

Fo | A 9

Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d

ie kick gs abe un 5 4:06ba 6 cawaerns ee se 8

Shelton v. American Motors, 805 F.2d 1323 (8th Cir.

TS OE irra Oren sey ore Tre Pere eee 8

Spiller v. ella Smithers Geriatric Center, 919 F.2d 339

I iu hicedveg.cd'ss 0's 6 040.4 d000 00% anes: 11

Stewart v. American International Oil & Gas Co., 845

F.2d 196 (9th Cir. 1988)...... akawt ikea ncueeww 10

Stix & Co. v. First Missouri Bank & Trust Co., 564

S.W.ae GF (Ge. Age. 1976) ....... qvigeses..... ran

Taylor v. Pennsylvania, 686 F. Supp. 492 (M.D. Pa.

PGR EUA CihinAtnh on thse ta nVtg mtedie cena ne cones 10

Traina v. United States, 911 F.2d 1155 (5th Cir. 1990).... 11

Unanue-Casal v. Unanue-Casal, 898 F.2d 839 (lst

ECG ad iavia hs sou + Koad eoeW es can sews owned 10

Unified Services Funds v. Ward, 121 F.R.D. 673 (D.

EE fas RUN ues da td ca xh dental ysarncedws 10

White v. General Motors Corp., 908 F.2d 675 (10th

ad cdikee sd renee bo cbiees kdek 0 e¥e eee 11

Wright v. Mullen, 659 S.W.2d 261 (Mo. App. 1983) ..... 8

STATUTE

Rules Enabling Act, 28 U.S.C. §§ 2071, 2072.......... 6

OTHER AUTHORITIES

Fed. R. Civ. P. 11, Notes of the Advisory Commit-

i EN ie ae badd Gee awie ren 6400 Vokes ed e4 passim

No. 91-96

°

In The

Supreme Court of the United States

October Term, 1991

4

DAVID G. LUPO, JAMES STEMMLER,

JANE S. TSCHUDY, THOMAS W. YAGER,

MICHAEL J. KICKHAM, E. LOUIS WERNER,

| AND RONALD B. BURT,

Petitioners,

IRVING COHEN, ET AL.,

Respondents.

S

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

«

BRIEF FOR RESPONDENT IRVING

COHEN IN OPPOSITION

¢

INTRODUCTION

This case presents the question of whether a motion

for sanctions under Rule 11 of the Federal Rules of Civil

Procedure operates to bar a subsequent diversity suit for

malicious prosecution. The Eighth Circuit answered that

| question in the negative, holding that “Rule 11 cannot

abridge the substantive state law of malicious prosecu-

tion, nor was it adopted to serve as a surrogate for an

action based upon a claim of malicious prosecution

iinet

resulting from frivolous harassing or vexatious litiga-

tion.” (4a)! The decision below was a correct application

of well-settled res judicata principles; it raises no novel

question warranting plenary review by this Court.

.

STATEMENT OF THE CASE

Respondent Irving Cohen’s malicious prosecution

claim is based on a frivolous thirteen-count complaint

filed against him in 1982 by attorneys David A. Lupo and

James Stemmler on behalf of eight individual plaintiffs

(the “Bastien case”). After four years of discovery the trial

court granted summary judgment in favor of respondent

and every other defendant, finding that plaintiffs had no

probative evidence to support any of their allegations.

Bastien v. R. Rowland & Co., 631 F. Supp. 1554 (E.D. Mo.

1986), aff'd, 815 F.2d 713 (8th Cir. 1987), cert. denied, 484

U.S. 854 (1987). The court explained (at 1559):

Since the essence of defendant’s motions [for

summary judgment] lay in plaintiffs’ failure to

produce any evidence in support of their claims,

the Court admonished plaintiffs to come for-

ward at the outset of trial with anything that

would satisfy the Rule 56(e) burden on a non-

moving party on motion for summary judgment.

Tria! proceeded for three-and-a-half days, dur-

ing which time plaintiffs completed the direct

examination of one witness. At that point the

Court recessed the action. Plaintiffs were

' The reference in the text is to the Appendix to the

Petition for Writ of Certiorari.

3

granted an additional ten days to file materials

in opposition to defendants’ motion prior to a

hearing on March 31st. At the hearing plaintiffs

argued fervently for their legal theories but once

again failed to come forward with any evidence

that supported any underlying fact of their com-

plaint. The court therefore granted defendants’

motions from the bench. [emphasis in original.]

Cohen and the other Bastien defendants then jointly

moved for an award of Rule 11 sanctions against the

Lupo & Stemmler lawyers and the Bastien plaintiffs. The

court granted that motion. Bastien v. R. Rowland & Co., 116

F.R.D. 619, 621 (E.D. Mo. 1987), aff'd sub nom., Lupo v. R.

Rowland & Co., 857 F.2d 482 (8th Cir. 1988), cert. denied,

490 U.S. 1081 (1989). (41a) Finding that after the Bastien

case was assigned to him in 1985, the litigation had been

“conducted .. . in a manner that escalated costs unneces-

sarily and vexatiously,” id. at 621 (42a), District Judge

Gunn decided that “a partial fee award is appropriate in

this case.” Id. at 620. (40a)

In reaching that result, Judge Gunn specifically

declined to make findings as to the reasonableness of the

attorney’s fees and litigation expenses incurred by Irving

Cohen. Fixing the aggregate sanction payable to all 32

defendants at $100,000, Judge Gunn held -

$100,000 represents a fraction of the fees and

costs in this suit. The Court will not, therefore,

engage in a determination of the reasonableness

of particular fees and costs charged to its

defense. The Court finds the amount appropriate

as a sanction for bad faith conduct on the part of

plaintiffs and their counsel.

116 F.R.D. at 622. (43a) (emphasis added.)

4

On appeal, the Eighth Circuit affirmed. The appellate

court held that “[oJur review of the facts reveals over-

whelming support for the imposition of the sanctions,”

and found that their amount “was certainly well within

the parameters of reasonability. ...” Lupo v. R. Rowland

& Co., 857 F.2d 482, 486 (8th Cir. 1988), cert. denied, 490

U.S. 1081 (1989). (34a)

Thereafter, in October 1988, respondent Cohen filed

the instant malicious prosecution lawsuit against the Bas-

tien plaintiffs and their attorneys. The district court dis-

missed the complaint, finding that the claim was barred

by res judicata. The Eighth Circuit reversed concluding

that Cohen’s malicious prosecution claim was not actu-

ally litigated and could not have been properly raised

and determined in the Bastien litigation. (3a) In addition,

the court held that the imposition of rule 11 sanctions

could not bar Cohen’s malicious prosecution claim

because “Rule 11 cannot abridge the substantive state law

of malicious prosecution.” (4a)

°

THE PETITION SHOULD BE DENIED

A. There is No Conflict Among the Circuits

Every federal court which has considered the issue

has determined that a motion for Rule 11 sanctions is not

a claim of the kind that would trigger application of the

doctrine of res judicata. There are no reported decisions in

which a court has accorded res judicata effect to a motion

for Rule 11 sanctions.

The Ninth Circuit has specifically held that denial of

a Rule 11 motion does not bar a subsequent civil claim for

a

malicious prosecution. Amwest Mortgage Corp. v. Grady,

925 F.2d 1162, 1165 (9th Cir. 1991). In Amwest, the defen-

dant in a state court malicious prosecution action sought

a federal court injunction to stay the state case based on

the federal court’s earlier denial of Rule 11 sanctions in

the underlying lawsuit. The district court rejected this

proposition; the Ninth Circuit affirmed reasoning that a

Rule 11 proceeding does not give the parties a fair oppor-

tunity to fully litigate the disputed issues.”

The Fifth Circuit has similarly held that Rule 11 does

not create an independent cause of action for bad faith

litigation — i.e., that Rule 11 does not create a “claim” that

could trigger application of res judicata in a subsequent

suit. Port Drum Co. v. Umphrey, 852 F.2d 148, 150 (5th Cir.

1988). Applying a similar rationale in Lenoir v. Tannehill,

660 F. Supp. 42, 44 (S.D. Miss. 1986), the court held that a

party cannot counterclaim for Rule 11 sanctions.

The decision below is fully consistent with the

Amwest and Port Drum decisions of the Ninth and Fifth

Circuits.

B. The Decision Below is in Accord With This Court's

Interpretation of Rule 11

While this Court has not directly addressed the pre-

cise issue of whether Rule 11 motions may have res

2 The Federal District Court for the Eastern District of

Pennsylvania has also rejected the argument that an earlier

denial of Rule 11 sanctions is a res judicata bar to an action for

malicious prosecution. American International Airways, Inc. v.

American International Group, Inc., Civ. A. No. 90-7135, slip op.

(E.D. Pa. May 21, 1991).

judicata effect in a subsequent malicious prosecution law-

suit, the decision below is consistent with this Court’s

recent interpretations of Rule 11 as a procedural device to

deter the filing of baseless lawsuits.

Cooter & Gell v. Hartmarx Corporation, __ U.S. __, 110

S. Ct. 2447, 2453 (1990), held that Rule 11 must be inter-

preted in light of the Rules Enabling Act, 28 U.S.C. § 2072,

which allows this Court to adopt procedural rules which

do not abridge the litigants’ substantive rights.* Justice

O’Connor, writing for the majority, concluded, “It is now

clear that the central purpose of Rule 11 is to deter

baseless filings in District Court and thus, consistent with

the Rule Enabling Act’s grant of authority, streamline the

administration and procedure of the federal courts.” 110

S. Ct. at 2454. The Court further indicated that the impo-

sition of Rule 11 sanctions would not create a res judicata

bar against the offending party’s underlying claim: “Even

if a district court indicated that a complaint was not

legally tenable or factually well founded for Rule 11

purposes, the resulting Rule 11 sanction would neverthe-

less not preclude the refiling of a complaint.” 110 S. Ct. at

2456.

In Business Guides, Inc. v. Chromatic Communications

Enterprises, Inc.,___ U.S. __, 111 S. Ct. 922, 933 (1991), the

petitioner argued that Rule 11 violated the Rules

Enabling Act because it “effectively creates a federal tort

of malicious prosecution, thereby encroaching upon var-

ious state law causes of action.” This Court rejected peti-

tioner’s argument holding:

3 The Aci expressly provides, 28 U.S.C. § 2072: “Such rules

shall not abrige, enlarge ur modify any substantive rights... . ”

7

The main objective of the Rule is not to reward

parties who are victimized by litigation; it is to

deter baseless filings and curb abuses. Imposing

monetary sanctions on parties that violate the

Rule may confer a benefit on other litigants, but

the Rules Enabling Act is not violated by such

incidental effects on substantive rights. Addi-

tionally, we are confident that District Courts will

resist the temptation to use sanctions as substitutes

for tort damages.

111 S. Ct. at 934 (emphasis added, citations omitted).

Employing a similar rationale in Chambers v. Nasco,

Inc., __ U.S. __, 111 S.Ct. 2123, 2134 (1991), the Court

held that Rule 11 and other statutes and rules providing

for sanctions do not displace a court’s common law inher-

ent power to impose sanctions for bad faith conduct. See

also Port Drum, 852 F.2d at 150 (Rule 11 “is no more a

‘law’ under which a cause of action may arise than are its

companion rules”); Chris & Todd, Inc. v. Arkansas Depart-

ment of Finance & Administration, 125 F.R.D. 491, 493-94

(E.D. Ark. 1989) (“Rule 11 sanctions are not to be deemed

a substitute for an action for malicious prosecution”).

C. The Decision Below Correctly Applied Traditional

Notions Of Res Judicata

(1) Essentially disregarding the cases discussed above,

petitioners have attempted to create a conflict by arguing

that the Eighth Circuit ignored a substantial body of law

regarding the doctrine of res judicata. That argument is

not well taken.

Under the doctrine of res judicata, “[a] final judgment

on the merits of an action precludes that parties or their

privies from relitigating issues that were or could have

been raised in that action.” Federated Department Stores,

Inc. v. Moitie, 452 U.S. 394, 398 (1981). In the instant case,

Missouri law, which governs Cohen’s malicious prosecu-

tion claim, does not permit counterclaims for malicious

prosecution. Wright v. Mullen, 659 S.W.2d 261, 263 (Mo.

App. 1983). Therefore, Cohen’s claim did not even accrue

until the litigation was terminated in his favor and the

Bastien plaintiffs’ appeals were decided. Ripley v. Bank of

Skidmore, 355 Mo. 897, 198 S.W.2d 861, 866 (Mo. 1947);

Stix & Co. v. First Missouri Bank & Trust Co., 564 S.W.2d 67,

70 (Mo. App. 1978). Respondent’s malicious prosecution

claim, in short, could not have been adjudicated in the

Bastien case.

(2) In addition, a proceeding for the imposition of Rule

11 sanctions is entirely different than a suit for an award

of malicious prosecution damages. Rule 11 is an exclu-

sively federal remedy which must be invoked by filing a

motion in a pending lawsuit or by the court, sua sponte.

See, e.g., Lyles v. K Mart Corp., 703 F. Supp. 435 (W.D.N.C.

1989). Malicious prosecution is a state common law tort

which must be brought by civil complaint.

Under Missouri law, a malicious prosecution claim-

ant is entitled to the normal range of discovery options,

pretrial motions practice, and a trial by jury. Haswell v.

Liberty Mutual Insurance Co., 557 S.W.2d 628 (Mo. 1977). In

contrast, a motion for Rule 11 sanctions must be deter-

mined at a hearing (not a trial) by a judge (not a jury)

with limited or no discovery. (132a). See Shelton v. Ameri-

can Motors, 805 F.2d 1323 (8th Cir. 1986). It was these

procedural differences between a Rule 11 motion and a

civil tort lawsuit which led the Ninth Circuit to conclude

that Rule 11 proceedings do not have a res judicata effect

in a subsequent action for malicious prosecution. Amwest

v. Grady, 925 F.2d at 1165.

(3) There are also fundamental differences in the allow-

able relief under Rule 11 and in a malicious prosecution

suit. Malicious prosecution is a tort action, the purpose of

which is to fully compensate the plaintiff for injuries

suffered as a result of wrongfully initiated litigation.

Once the elements of the tort are established, the plaintiff

is entitled to recover all l»sses caused by the wrongful

lawsuit, including attorneys’ fees and consequential dam-

ages. Haswell, 557 S.W.2d at 637-638. If malice is proved,

the plaintiff has the right to ask the jury for a punitive

damage award as well. Proctor v. Stevens Employment Ser-

vices, Inc., 712 S.W.2d 684, 687 (Mo. 1986) (en banc).

By way of contrast, Rule 11’s “central purpose . . . is

to deter baseless filings in District Court... . ” Cooter &

Gell, 110 S. Ct. at 2454. “Rule 11 is not a fee-shifting

Statute. ... A movant under Rule 11 has no entitlement to

[attorney’s] fees or any other sanction... .” Cooter & Gell,

110 S.Ct. at 2462 (quoting American Judicature Society,

Rule 11 Transition, The Report of the Third Circuit Task

Force on Federal Rules of Civil Procedure 11, at 49 Bur-

bank 1989).

Rule 11 sanctions are not to be deemed a

substitute for an action for malicious prosecu-

tion. Such sanctions are not intended to make

the moving party ‘whole’ for any and all dam-

ages he or she may have sustained by virtue of

the malicious prosecution of a meritless claim.

Chris & Todd, Inc., 125 F.R.D. at 493-494 (E.D. Ark. 1989).

10

In fact, appropriate relief under Rule 11 includes

non-monetary sanctions, e.g., oral warnings, Taylor v.

Pennsylvania, 686 F. Supp. 492, 503 (M.D. Pa. 1988); repri-

mands in open court, Unanue-Casal v. Unanue-Casal, 898

F.2d 839, 842 (1st Cir. 1990); public censure, Pony Express

Courier Corporation of America v. Pony Express Delivery

Service, 872 F.2d 317, 319 (9th Cir. 1989); compulsory

education, Henderson v. Dept. of Public Safety, 901 F.2d

1288, 1291 (5th Cir. 1990); dismissal of the complaint,

Murray v. Dominick Corporation of Canada, Ltd., 117 F.R.D.

512 (S.D.N.Y. 1987); and injunctions against filing addi-

tional suits without the court’s permission, Damiani v.

Adams, 657 F. Supp. 1409 (S.D. Cal. 1987).

The permissible monetary sanctions under the rule

may fall short of full compensation and cannot include

consequential damages. Business Guides, 111 S. Ct. at 934.

As happened in the instant case, many courts have

ordered that the aggrieved party be paid less than its

reasonable attorney’s fees, e.g., Hilton Hotels Corp. v.

Banov, 899 F.2d 40 (D.C. Cir. 1990) ($5,000 sanction

imposed although $68,000 in legal fees had been

incurred); International Shipping Co. v. Hydra Offshore, Inc.,

875 F.2d 388, 393 (2nd Cir.), cert. denied, __ U.S. __, 110

S.Ct. 563 (1989) ($10,060 sanction, $48,000 in legal fees);

Stewart v. American International Oil & Gas Co., 845 F.2d

196, 202 (9th Cir. 1988); Unified Services Funds v. Ward, 121

F.R.D. 673, 678 (D. Alaska 1988); Doe v. Keane, 117 F.R.D.

103 (W.D. Mich. 1987); Muraoka v. American Osteopathic

Association, 117 F.R.D. 616 (N.D. Ill. 1987) (50% or less of

the aggrieved parties’ fees).

11

The above decisions are specific illustrations of the

principle that compensation or fee-shifting is not the

purpose of Rule 11 sanctions. See Cooter & Gell, 110 S. Ct.

at 2462. Accord, White v. General Motors Corp., 908 F.2d 675,

685 (10th Cir. 1990); Spiller v. Ella Smithers Geriatric Center,

919 F.2d 339, 347 (Sth Cir. 1990); In re Kunstler, 914 F2d

505, 522 (4th Cir. 1990), cert. denied, US. __, 111 S. Ct.

1607 (1991); Traina v. United States, 911 F.2d 1155, 1158

(Sth Cir. 1990); Jackson v. Law Firm of O'Hara, Ruberg,

Osborne & Taylor, 875 F.2d 1224, 1229 (6th Cir. 1989);

Doering v. Union Couniy Board of Chosen Freeholders, 857

F.2d 191, 194 (3rd Cir. 1988); Brown v. Federation of State

Medical Boards, 830 F.2d 1429, 1437 (7th Cir. 1987).

In sum, the remedial discretion of a judge in assess-

ing sanctions to deter baseless litigation fundamentally

differentiates a Rule 11 proceeding from a tort action for

malicious prosecution, where full compensatory damages

must be awarded - even to the extent of shifting all of the

plaintiff’s attorney’s fees to the malicious prosecution

defendant. The decision below correctly applied that dis-

tinction.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Georce R. Kucik

Counsel of Record

JEANNE PHILBIN

SHARON SCHROER

ARENT Fox KINTNER PLOTKIN

& KAHN

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5339

(202) 857-6000

Counsel for Respondent

Irving Cohen