Metropolitan News-Enterprise


Thursday, March 17, 2005


Page 3


Court Upholds Judgment Won by Prominent Jockeys


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed a multimillion dollar judgment won by two Hall of Fame jockeys who sued their former money managers in 1989 and have bounced back and forth between trial and appellate courts ever since.

A three-judge panel that heard argument in the case in July 2003 issued an unpublished memorandum upholding the judgment in favor of Laffit Pincay Jr. and Chris McCarron.

The panel was directed to decide the appeal on its merits after an en banc ruling last November that the district judge did not abuse his discretion by allowing the defendants to file a belated appeal.

Jurors found for Pincay and McCarron on their federal racketeering claims—based on allegations of wire and mail fraud—and on state claims of breach of contract and breach of fiduciary duties.

Pincay was awarded $670,000 in compensatory damages and $2.25 million in punitive damages; McCarron got $313,000 in compensatory damages and $1.3 million in punitive damages.

Senior U.S. District Judge Wm. Matthew Byrne Sr. awarded attorney fees—available only under the Racketeer Influenced and Corrupt Organizations Act—of more than $600,000 to Pincay and more than $250,000 to McCarron.

The Andrewses’ first appeal, filed in 1998, resulted in a reversal based on the panel’s finding that the RICO claims were time-barred. On remand, judgment was entered solely on the basis of the state claims, leaving the plaintiffs with more than $4.6 million, not counting interest.

The law firm representing the defendants, Boies, Schiller & Flexner of Armonk, N.Y. failed to file an appeal within the 30 days allowed by rule, but moved for leave to file under Rule 4(a)(5) of the Federal Rules of Civil Procedure, which allows an extension if the motion is filed no later than 30 days after the deadline and the moving party shows “excusable neglect or good cause.”

The Ninth Circuit panel, in a 2-1 decision, held that the attorneys’ reliance on a calendaring clerk, who thought the rule allowed 60 days to appeal, was inexcusable. But the en banc court, voting 8-3, said the district judge’s decision was entitled to deference.

 In its disposition yesterday, the panel—Judges Andrew Kleinfeld and Kim M. Wardlaw and Senior Judge John T. Noonan—said the claim for breach of fiduciary duty was timely under California law because the parties’ fiduciary relationship ended less than three years before suit was filed.

The panel explained that the jury, based on instructions that were not objected to by defense counsel, found that the defendants were fiduciaries, and that the plaintiffs justifiably relied on representations that the jury found to be false. The plaintiffs testified that they did not discover the facts on which they sued until after 1986, the judges added.

The defendants cannot now attack the jury findings and instructions, the court said.

The case is Pincay v. Andrews, 02-56491.


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