Celestin_et_al_v_Martelly_et_al__nyedce-18-07340__0158.0 (1).pdf

1. MARCEL P. DENIS
D E N I S L A W G R O U P, P L L C
9602 Avenue L
Brooklyn, New York 11236
Telephone (404) 977-9733
Email: mdcounsel@gmail.com
July 17, 2023
Via ECF
Judge LaShann DeArcy Hall
United States District Court Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201
Re: Celestin, et al v. Martelly, et al; Case No. 1:18-cv-07340-LDH-JO;
Unitransfer USA, Inc.’s Motion for Sanctions pursuant to FRCP 11
Dear Judge DeArcy Hall:
In response to Unitransfer’s letter motion, Plaintiffs oppose Defendant Unitransfer USA, Inc’s
(“Unitransfer”) request for “a briefing schedule regarding its renewed motion for sanctions under
Rule 11.” Defendant Unitransfer believes that sanctions are warranted because Plaintiffs filed an
amended complaint “alleging Sherman Act and other claims against Unitransfer [ ]…without (1)
any direct evidence of Unitransfer ever entering into any price fixing or other improper agreement,
(2) any indirect evidence to support even a rational inference of such an agreement, including the
critical component of a plausible economic incentive for such agreement or (3) even any basis for
a likelihood of evidentiary support after discovery, especially in light of the economic disincentive
to enter into an agreement to charge a fee to be passed on to the Haiti government.” In further
support of its motion for sanction, Defendant Unitransfer cited Empire State Pharmaceutical Soc.,
Inc. v, Empire Blue Cross & Blue Shield, 778 F. Supp. 1253, 1259 (S.D.N.Y. 1991). According to
Defendant Unitransfer, the Court in Empire State imposed Rule 11 sanctions “under strikingly
similar circumstances.”
Before addressing Defendant’s baseless lack of evidentiary support argument, Plaintiffs
bring to the Court’s attention the lack of similarity between the factual allegations in the Empire
State case and the ones pending before it. In the Empire State matter, the Plaintiff filed suit against
Blue Cross & Blue Shield and several of its officers, directors, and employees “for violations of
the antitrust laws because Blue Cross charged plaintiff a higher rate for major medical insurance
coverage for its members than that charged to one of its competitors, Long Island Pharmaceutical.”
Id. at 1254. Empire subsequently amended its complaint to allege that “Blue Cross violated the
Robinson-Patman Act, 15 U.S.C. § 13 (1988), and engaged in a combination and conspiracy in
restraint of interstate commerce in violation of the Clayton Act, 15 U.S.C. § 12 (1988), and the
Sherman Act, 15 U.S.C. § 1 (1988).” Id. The Court allowed the plaintiff to conduct full discovery
and only after discovery did the Court ruled that the “plaintiff was not able to elicit any facts which
support a plausible inference that the difference in rates charged Empire State and Long Island was
Case 1:18-cv-07340-LDH-PK Document 158 Filed 07/17/23 Page 1 of 4 PageID #: 2035

2. the result of a conspiracy ...” Id. at 1257. In the present matter, Plaintiffs alleged that Defendant
Unitransfer conspired with other money transfer companies and governmental actors to charge
them higher remittance fees. Plaintiffs did not sue only Unitransfer who could have acted
unilaterally in charging higher Fee to remit money transfers. Therefore, Empire State cited by
Unitransfer is not controlling.
Plaintiffs conducted a reasonably inquiry and provided the Court with Prima Facie evidence:
The present matter involves several officials of the government of Haiti and a number of
companies based in the United States and/or licensed to conduct business in the United States who
developed a scheme to charge United States customers additional fees to send money and make
telephone calls to loved ones in Haiti. The wheel was put in motion by Michel Joseph Martelly,
an unsworn elected official.1
Mr. Martelly states in several recordings that before taking the oath
of office, he contacted the telephone companies and money transfer companies and requested that
they charge the additional fees which are the subject of this litigation. Mr. Martelly did not state
in the recordings that he consulted with the lawmakers of Haiti to increase telephone and money
remittance fees. Rather, Mr. Martelly contacted the private remittance companies “to demand that
they donate US $1.” After meeting with the money transfer companies, the proposed US$1
donation turned into a collection of US$1.50 as an additional fee imposed to send money to Haiti.
The recordings, already submitted to the Court, are direct evidence of the parties’ unlawful
agreement to raise and collect additional remittance fee.2
All the defendants, including Unitransfer,
knew of the antitrust nature of the fees as declared by Mr. Armand. TAC, ¶ 94. However, should
the Court determine that the video recordings are not direct evidence, a plausible inference can be
drawn that there is an agreement between the parties to collect the additional fee in violation of
United States antitrust laws. The established law in the Second Circuit is that Plaintiffs may
“present circumstantial facts supporting the inference that a conspiracy existed. Mayor & City
Council of Baltimore, Md. v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir. 2013). The money transfer
Defendants in the present matter collected the additional fee of US$1.50 under the same common
scheme. Therefore, strong inference is to be drawn that there is an agreement between the actors
for the collection of the added fee.
Unitransfer’s argument that it could not enter into a price-fixing agreement because it is not
economically plausible is a baseless legal argument: To support its argument of lack of
“economically plausible motive,” Unitransfer cited Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986). Plaintiffs maintain that Matsushita is misplaced without highlighting
the dissimilarity between the facts presented in the present matter and Matsushita. The ruling in
Matsushita hinges on the reasonableness of inferences that can be drawn on ambiguous evidence.
Petruzzi’s IGA v. Darling-Delaware, 998, F. 2d 1224, 1230 (3d Cir. 1993). See also In Re Flat
Glass Antitrust Litigation, 385 F.3d 350 (3d Cir. 2004). There is nothing ambiguous about the
evidence presented. Mr. Martelly, a co-conspirator, is captured on recordings stating that he spoke
1
Michel Joseph Martelly was elected president of Haiti in 2011, now declared persona non grata by the Canadian’s
government for financing and arming gangs in Haiti.
2
“Direct evidence” can be, amongst others, ‘… a recorded phone call in which two competitors agreed to fix prices
at a certain level.’ In re Interest Rate Swaps Antitrust Litigation, 261 F.Supp.3d 430, 461 (2017).
Case 1:18-cv-07340-LDH-PK Document 158 Filed 07/17/23 Page 2 of 4 PageID #: 2036

3. to the defendants, and they all agreed to increase the fees.3
After Martelly met and spoke with the
defendants, the fees on telephone calls and money transfers were added. Therefore, no ambiguity
exists as to the evidence presented. Moreover, evidence presented by the Plaintiffs “should not be
tightly compartmentalized [ ], but instead should [be] analyze[d] [] as a whole to see if it supports
an inference of concerted action.” In Re Flat Glass at 357 quoting Peruzzi’s IGA v. Darling-
Delaware, 998, F. 2d at 1230. Plaintiffs submit that at the very least the evidence presented thus
far strongly supports an inference of concerted action. As the Second Circuit held in Oreck Corp.
v. Whirlpool Corp., 639 F.2d 75, 79 (2d Cir. 1980), “[i]t is not necessary that [ a conspiracy] be
established by direct proof of oral or written agreements; it may be proven by inferences drawn
from circumstantial evidence, including the acts and conduct of the alleged conspirators.” Citing
Norfolk Monument Co., Inc. v. Woodlawn Memorial Garden, Inc., 394 U.S. 700, 704 (1969). The
acts and conduct of the defendants irrefutably established a conspiracy. The evidence presented by
Plaintiffs unequivocally ‘
“ exclude[s] the possibility ’that defendants acted independently of each
other.” In re Medical X-Ray Film Antitrust Litigation, 946 F. Supp. 209, 216 (E.D.N.Y. 1996);
quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 465 U.S. at 597-98.
There Is Economic Incentive for Unitransfer to Engage in the Conspiracy: Haiti’s government
is the most corrupt in the Caribbean and the second most corrupt in the Western Hemisphere.4
The
business and financial elites, which Unitransfer and Unibank are part of, contributed much to the
corruption. Unitransfer knew the corrupt nature of the government and nonetheless failed to
publish a yearly report as to what it collects and turns over to the Haiti government. In early March
2013, the Central Bank announced that100 million dollars had been collected for the free education
program. In September 2018, the Central Bank published a report claiming to have collected only
$120, 130, 745.50 on money transfers. The numbers reported in 2018 does not square with the
2013 numbers which are more aligned with the amount of funds Martelly said the government
would collect. Therefore, Unitransfer has significant “economic motive” to partake in the
conspiracy. Numbers do not lie and that is why there has been no reporting and publication as far
as the amount of funds collected since $.05 and 1.50 were added.
There is a basis in law to bring the state law claims based on the Act of State
Doctrine:The Second Circuit’s concurring opinion clearly established that even if the fees are
lawful, the theft thereof is not lawful under the laws of Haiti. Moreover, the collection of the funds
occurred here in the United States. The law in this Circuit is that “act of state doctrine applies only
to actions of a nation within its territory.” Lightwater Corporation v. Republic of Argentina, No.
02 Civ. 3804 (TPG), 02 Civ. 3808 (TPG), 02 Civ. 5932 (TPG), at *1 (S.D.N.Y. Apr. 14, 2003).
Therefore, the state law claims are sustained under the Act of State Doctrine. If Unitransfer did
not derive any benefit from the collection of the $1.50 fee, all it had to do from the inception of
the matter was to produce the report of all funds collected and turned over to the Haitian
government. Plaintiffs would have had no option but to withdraw all claims against Unitransfer.
3
Under Fed. R. Evid. 801 (c), “[h]earsay statements of a purported conspirator are [ ] admissible against a co-
defendant [where] there is independent, nonhearsay evidence that establishes the declarant’s participation in the
conspiracy. Oreck Corp. v. Whirlpool Corp., 639 F.2d 75, 80 (2d Cir. 1980); citing Schine Chain Theatres, Inc. v.
United States, 334 U.S.110, 116-17, United States v. Provenzano, 615 F. 2d 37, 44 (2 Cir. 1980); United States v.
Geaney, 417 F.2d 1116 (2 Cirr. 1969), cert. denied, 397 U.S. 1028 (1970).
4
Transparency International’s 2019 Corruption Perception Index.
Case 1:18-cv-07340-LDH-PK Document 158 Filed 07/17/23 Page 3 of 4 PageID #: 2037

4. Instead, Unitransfer opted to keep secret the amount of fee collected and turned over to Haitian
government.
Unitransfer’s request for a briefing schedule for a motion for rule 11 sanctions are
unwarranted and should not be granted. Unitransfer is not entitled to rule 11 sanctions against
Plaintiffs.
Respectfully,
Denis Law Group, PLLC
/S/ Marcel P. Denis
cc: All Counsel of Record via ECF
Case 1:18-cv-07340-LDH-PK Document 158 Filed 07/17/23 Page 4 of 4 PageID #: 2038