Friday, November 17, 2017
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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 individuals—Erica Kim, Christopher Kim, and Bora Lee—tried 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 opinion—upsetting a dismissal of the action against DAS following the granting of an anti-SLAPP motion—that 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 yesterday’s affirmance of Los Angeles Superior Court Judge Teresa Sanchez-Gordon grant of an anti-SLAPP motion to DAS’s 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Johnson said in yesterday’s unpublished opinion that the first prong of the anti-SLAPP statute—that the actions complained of arose from protected activity—is met, because they all “arose directly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 Geneva’s 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 Parker’s alleged delay in informing the court of the settlement.
Johnson wrote:
“In short, the gravamen of Plaintiff’s 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 Plaintiff’s claims arise from Defendants’ constitutionally protected petition rights.”
Second Prong
He said the second prong of the anti-SLAPP statute—probability that the defendants would prevail on the merits—is also met, declaring:
“Here, Defendants met their burden of showing that the litigation privilege applies because the communicative conduct at issue—as established by the pleadings and documents submitted in connection with motions—was 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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