This letter requests a pre-motion conference regarding an anticipated motion to dismiss an amended complaint filed against Digicel Haiti. It summarizes that the amended complaint should be dismissed for failing to meet pleading standards under FRCP 8(a), 9(b), and 12(b)(6), and based on the act-of-state doctrine and forum non conveniens. Specifically, the letter argues that the amended complaint does not provide a short, plain statement of claims, engages in impermissible group pleading, lacks specific allegations of fraud, and requires invalidating acts of the Haitian government.
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In this order, the United States District Court for the Middle District of Florida, Tampa Division, denies the defendants' motions to dismiss claims for breach of contract, theft of trade secrets in violation of the Defend Trade Secrets Act, 18 USC 1836 et. seq., fraud and aiding and abetting fraud.
In relevant part, the Court rejects the defendants' efforts to impose a summary judgment like burden at the pleading stage. Notable holdings include: (1) The question of whether information constitutes a trade secret is a question of fact normally resolved by a jury after full presentation of evidence. (2) A claim for misappropriation may exist not only where the defendant itself is alleged to have stolen trade secrets, but where the defendant is alleged to have obtained the trade secrets while knowing that they were acquired by improper means. (3) The allegation that a defendant induced a plaintiff to enter an NDA with no intention of honoring it states a claim for fraud in the inducement that is not barred by the independent tort doctrine.
The plaintiff is represented by Fort Lauderdale, Florida based Pollard PLLC. The firm has extensive experience litigating complex non-compete, trade secret, trademark and unfair competition claims. Their office can be reached at 954-332-2380.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
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In this order, the United States District Court for the Middle District of Florida, Tampa Division, denies the defendants' motions to dismiss claims for breach of contract, theft of trade secrets in violation of the Defend Trade Secrets Act, 18 USC 1836 et. seq., fraud and aiding and abetting fraud.
In relevant part, the Court rejects the defendants' efforts to impose a summary judgment like burden at the pleading stage. Notable holdings include: (1) The question of whether information constitutes a trade secret is a question of fact normally resolved by a jury after full presentation of evidence. (2) A claim for misappropriation may exist not only where the defendant itself is alleged to have stolen trade secrets, but where the defendant is alleged to have obtained the trade secrets while knowing that they were acquired by improper means. (3) The allegation that a defendant induced a plaintiff to enter an NDA with no intention of honoring it states a claim for fraud in the inducement that is not barred by the independent tort doctrine.
The plaintiff is represented by Fort Lauderdale, Florida based Pollard PLLC. The firm has extensive experience litigating complex non-compete, trade secret, trademark and unfair competition claims. Their office can be reached at 954-332-2380.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
Motion to Dismiss Claims for Misappropriation of Trade Secrets and Tortious Interference under Florida law. Tampa, Florida. Hillsborough County Circuit Court - Complex Business Litigation Division.
Pollard PLLC
P. 954-332-2380
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Contrary to respondents’ argument, CAFA’s “100 or more persons” phrase does not encompass unnamed persons who are real parties in interest to claims brought by named plaintiffs. Congress knew how to draft language to that effect when it intended such a meaning, see, e.g., §§1332(d)(5)(B), 1332(d)(1)(D). That it did not do so in the mass action provision indicates that Congress did not want the provision’s numerosity requirement to be satisfied by counting unnamed individuals who possess an interest in the suit
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The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
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Motion to Dismiss Claims for Misappropriation of Trade Secrets and Tortious Interference under Florida law. Tampa, Florida. Hillsborough County Circuit Court - Complex Business Litigation Division.
Pollard PLLC
P. 954-332-2380
The Cost of Litigation: A Case Study, Business Law, Plymouth State University...Kevin O'Shea
In 2009, I presented to Professor Forgues’ Business Law Class at Plymouth State University addressing the high cost of business litigation and using Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate Info. Servs. 642 F. Supp. 2d 58 (D. Mass. 2009) as a case study.
Contrary to respondents’ argument, CAFA’s “100 or more persons” phrase does not encompass unnamed persons who are real parties in interest to claims brought by named plaintiffs. Congress knew how to draft language to that effect when it intended such a meaning, see, e.g., §§1332(d)(5)(B), 1332(d)(1)(D). That it did not do so in the mass action provision indicates that Congress did not want the provision’s numerosity requirement to be satisfied by counting unnamed individuals who possess an interest in the suit
The relatively common strategy of resourceful creditors purchasing claims to block confirmation of a debtor’s chapter 11 plan may violate the intent underlying the Bankruptcy Code provision granting the court the power to disqualify votes. This program examines the the scope of the court's power to disqualify votes on a chapter 11 plan.
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
Presentación de la Cancillería Argentina al Secretario de Estado John Kerry (...CFdeKirchner
El canciller Héctor Timerman informó que la embajadora argentina ante los Estados Unidos, Cecilia Nahón, presentó una nota al secretario de Estado norteamericano, John Kerry, advirtiendo sobre las consecuencias que podría tener la decisión judicial del juez Thomas Griesa, sobre una medida de ‘desacato’ que sería violatoria de la soberanía argentina.
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Presentaciones de la Argentina a Kerry y a Griesa
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Find Latest India News and Breaking News these days from India on Politics, Business, Entertainment, Technology, Sports, Lifestyle and Coronavirus News in India and the world over that you can't miss. For real time update Visit our social media handle. Read First India NewsPaper in your morning replace. Visit First India.
CLICK:- https://firstindia.co.in/
#First_India_NewsPaper
27052024_First India Newspaper Jaipur.pdfFIRST INDIA
Find Latest India News and Breaking News these days from India on Politics, Business, Entertainment, Technology, Sports, Lifestyle and Coronavirus News in India and the world over that you can't miss. For real time update Visit our social media handle. Read First India NewsPaper in your morning replace. Visit First India.
CLICK:- https://firstindia.co.in/
#First_India_NewsPaper
31052024_First India Newspaper Jaipur.pdfFIRST INDIA
Find Latest India News and Breaking News these days from India on Politics, Business, Entertainment, Technology, Sports, Lifestyle and Coronavirus News in India and the world over that you can't miss. For real time update Visit our social media handle. Read First India NewsPaper in your morning replace. Visit First India.
CLICK:- https://firstindia.co.in/
#First_India_NewsPaper
हम आग्रह करते हैं कि जो भी सत्ता में आए, वह संविधान का पालन करे, उसकी रक्षा करे और उसे बनाए रखे।" प्रस्ताव में कुल तीन प्रमुख हस्तक्षेप और उनके तंत्र भी प्रस्तुत किए गए। पहला हस्तक्षेप स्वतंत्र मीडिया को प्रोत्साहित करके, वास्तविकता पर आधारित काउंटर नैरेटिव का निर्माण करके और सत्तारूढ़ सरकार द्वारा नियोजित मनोवैज्ञानिक हेरफेर की रणनीति का मुकाबला करके लोगों द्वारा निर्धारित कथा को बनाए रखना और उस पर कार्यकरना था।
ys jagan mohan reddy political career, Biography.pdfVoterMood
Yeduguri Sandinti Jagan Mohan Reddy, often referred to as Y.S. Jagan Mohan Reddy, is an Indian politician who currently serves as the Chief Minister of the state of Andhra Pradesh. He was born on December 21, 1972, in Pulivendula, Andhra Pradesh, to Yeduguri Sandinti Rajasekhara Reddy (popularly known as YSR), a former Chief Minister of Andhra Pradesh, and Y.S. Vijayamma.
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03062024_First India Newspaper Jaipur.pdfFIRST INDIA
Find Latest India News and Breaking News these days from India on Politics, Business, Entertainment, Technology, Sports, Lifestyle and Coronavirus News in India and the world over that you can't miss. For real time update Visit our social media handle. Read First India NewsPaper in your morning replace. Visit First India.
CLICK:- https://firstindia.co.in/
#First_India_NewsPaper
In a May 9, 2024 paper, Juri Opitz from the University of Zurich, along with Shira Wein and Nathan Schneider form Georgetown University, discussed the importance of linguistic expertise in natural language processing (NLP) in an era dominated by large language models (LLMs).
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‘वोटर्स विल मस्ट प्रीवेल’ (मतदाताओं को जीतना होगा) अभियान द्वारा जारी हेल्पलाइन नंबर, 4 जून को सुबह 7 बजे से दोपहर 12 बजे तक मतगणना प्रक्रिया में कहीं भी किसी भी तरह के उल्लंघन की रिपोर्ट करने के लिए खुला रहेगा।
Welcome to the new Mizzima Weekly !
Mizzima Media Group is pleased to announce the relaunch of Mizzima Weekly. Mizzima is dedicated to helping our readers and viewers keep up to date on the latest developments in Myanmar and related to Myanmar by offering analysis and insight into the subjects that matter. Our websites and our social media channels provide readers and viewers with up-to-the-minute and up-to-date news, which we don’t necessarily need to replicate in our Mizzima Weekly magazine. But where we see a gap is in providing more analysis, insight and in-depth coverage of Myanmar, that is of particular interest to a range of readers.
1. DavisPolk
James H.R. Windels
Davis Polk & Wardwell LLP 212 450 4978 tel
450 Lexington Avenue 212 701 5978 fax
New York, NY 10017 james.windels@davispolk.com
February 27, 2019
Re: Celestin, et al. v. Martelly, et al.
No. 18-cv-7340 (LDH) (PK)
Honorable LaShann DeArcy Hall
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Dear Judge DeArcy Hall:
New York
Northern California
Washington DC
Sao Paulo
London
Paris
Madrid
Tokyo
Beijing
Hong Kong
We represent Defendant Unigestion Holding, S.A. ("Digicel Haiti") in the above-referenced action
and are writing pursuant to Your Honor's Individual Practices to request a pre-motion conference
regarding Digicel Haiti's anticipated motion to dismiss the Amended Complaint pursuant to
Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6), as well as on the basis of the act-of-
state doctrine and forum non conveniens. We respectfully submit that the Amended Complaint
should be dismissed in its entirety with prejudice for multiple reasons, as set forth below.
Background. Digicel Haiti is a telecommunications company based in Port-au-Prince, Haiti,
which provides cellular communications and related services to its customers. Certain Plaintiffs
in this action allege that they are U.S. customers of Digicel Haiti and assert claims under a
variety of federal and state statutes and common law theories, including consumer protection,
fraud, and civil theft statutes in New York, Florida, and California. See Amended Complaint
("Campi.") ~~ 176-285. Although Plaintiffs do not formally plead all of the claims they reference,
the core accusation in the Amended Complaint is that Digicel Haiti, in coordination with the other
Defendants, defrauded a class of its U.S. customers by conspiring with the Haitian government
to charge callers an illegally-levied $0.05 per minute tax on calls between Haiti and the U.S. The
stated purpose for this tax was educational funding, but Plaintiffs allege the funds were
improperly diverted for the benefit of members of the Haitian government.
Pleading Standards Applicable to the Amended Complaint. Under FRCP 8(a)(2), Plaintiffs
are required to provide "a short and plain statement of the claim showing that [they are] entitled
to relief." This pleading standard requires "more than a mere possibility of a right to relief,"
Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 197 (2d Cir. 2013), and
is not satisfied where the allegations are "wholly conclusory and speculative." Galiano v. Fid.
Nat. Title Ins. Co., 684 F.3d 309, 314 (2d Cir. 2012). In the Second Circuit, a plaintiff may not
group defendants together in a complaint but instead must distinguish among defendants'
2. Honorable LaShann DeArcy Hall 2 February 27, 2019
individualized conduct to provide "fair notice of what the plaintiff's claim is." Elias v. City of New
York, 2010 WL 5475809, at *3 (E.D.N.Y. 2010).
Claims based on fraud are subject to the heightened pleading standard of FRCP 9(b), which
requires a plaintiff to "state with particularity the circumstances constituting fraud or mistake." To
comply with FRCP 9(b), a plaintiff must "(1) specify the statements that the plaintiff contends
were fraudulent, (2) identify the speaker, (3) state where and when the statements were made,
and (4) explain why the statements were fraudulent. " Nakahata, 723 F.3d at 197.
All Counts in the Amended Complaint Should Be Dismissed. All 13 counts of the Amended
Complaint fail to satisfy the pleading standards of FRCP 8(a) and 9(b) and also should be
dismissed as failing to state a claim under FRCP 12(b)(6).
Contrary to FRCP 8(a)(2)'s requirement of "a short and plain statement of the claim," the
Amended Complaint includes rambling, unintelligible factual allegations and cites to a variety of
unrelated statutes and legal claims. Plaintiffs repeatedly engage in impermissible group pleading
in both their factual allegations, see, e.g., Compl. rrrr 58 & 145, and their assertion of legal claims.
See Compl. f'rf'r 175-285. As it is difficult for Digicel Haiti to understand precisely what it is being
accused of, the Amended Complaint should be dismissed under FRCP 8(a)(2). See Ochre LLC
v. Rockwell Architecture Planning & Design, P.C., 2012 WL 6082387, at *6-7 (S.D.N.Y. 2012).
The Amended Complaint also suffers from substantive pleading deficiencies in each of the
counts and thus fails to state a claim under FRCP 12(b)(6). For example, to properly state a
claim under N.Y. Gen. Bus. Law§ 349 ("GBL 349"), plaintiffs "must allege that a defendant has
engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff
suffered injury as a result of the allegedly deceptive act or practice." Prue v. Fiber Composites,
LLC, 2012 WL 1314114, at *7 (E.D.N.Y. 2012) (quoting City of New York v. Smokes-Spirits.Com,
Inc., 12 N.Y.3d 616, 621 (2009)). But the Amended Complaint contains no allegation that
Plaintiffs were misled , and their allegation that each Defendant "adopt[ed the] statements" of
another of the Defendants (former Haitian President Michel Martelly, see Compl. rr 57) about the
purpose of the tax is insufficient to state a claim. See Compl. rrrr 146-47. Plaintiffs do not allege
a single specific fact about Digicel's representations to its customers about the $0.05 fee, which
is fatal to their claim under GBL 349. See Moss v. BMO Harris Bank, N.A. , 258 F. Supp. 3d 289,
309-10 (E.D.N.Y. 2017) (dismissing claim under GBL 349 because the complaint did "not assert
any contact between defendant or plaintiff whatsoever"). New York courts have also held that
under GBL 349, "[t]he transaction in which the consumer is deceived must occur in New York,"
Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 (2002), yet Plaintiffs do not allege
that any particular transaction occurred in New York.1
Many of the counts in the Amended Complaint would also be subject to FRCP 9(b)'s heightened
pleading standard (see, e.g., Counts 3, 5, 6, 8, 9, 10 and 12). None of these counts includes
specific statements, speakers, relevant details of alleged events, or explanations of the purported
fraud , as required in the Second Circuit. Nakahata, 723 F.3d at 197.
1 Digicel Haiti submits that similar pleading gaps and deficiencies under FRCP 12(b)(6) exist with respect to
all of Plaintiffs' claims and can provide further specifics as and when would be helpful to the Court.
3. Honorable LaShann DeArcy Hall 3 February 27, 2019
Finally, although Plaintiffs refer to a purported antitrust conspiracy and several antitrust statutes,
they do not attempt to plead a violation of any of these statutes, nor could they based on their
factual allegations. See Campi. ~~ 1, 6, 20-29, 49, 175 and Prayer for Relief "G" (Sherman Act);
Campi. ~~ 1, 6, 20-29 (Clayton Act); Campi. ~~ 1 & 20, and Prayer for Relief "G" (Donnelly Act).
The Amended Complaint Should Be Dismissed Under the Act-of-State Doctrine. All of the
counts in the Amended Complaint require the Court to rule on the validity of acts of the Haitian
government, which requires dismissal under the act-of-state doctrine. Under the doctrine,
"United States courts [are directed] to refrain from deciding a case when the outcome turns upon
the legality or illegality (whether as a matter of U.S., foreign, or international law) of official action
by a foreign sovereign performed within its own territory." In re Vitamin C Litig., 810 F. Supp. 2d
522, 546 (E.D.N .Y. 2011 ). On a motion to dismiss, application of the act-of-state doctrine "must
be made on the basis of the pleadings alone." Konawa/off v. Metro. Museum ofArt, 2011 WL
4430856, at *5 (S.D.N.Y. 2011) (quoting Oaventree Ltd. v. Republic ofAzerbaijan, 349 F. Supp.
2d 736, 754-55 (S.D.N.Y. 2004)), aff'd, 702 F.3d 140, 145-46 (2d Cir. 2012).
No cause of action in this suit can be decided without first establishing whether the circulars and
presidential orders referenced in the complaint, see e.g., Campi.~ 2, constituted illegal taxes in
Haiti. The act-of-state doctrine precludes U.S. courts from making precisely this type of
assessment. Kashef v. BNP Paribas SA , 316 F. Supp. 3d 770, 777-78 (S.D.N.Y. 2018).
The Amended Complaint Should Be Dismissed on the Basis of Forum Non Conveniens. In
deciding a motion of forum non conveniens, the Court should "(i) determine the degree of
deference to be accorded the plaintiffs choice of forum; (ii) determine whether an adequate
alternative forum to entertain plaintiffs claims exists; and (iii) balance the private and public
interest factors identified by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
(1947)." Base Metal Trading Ltd. v. Russian Aluminum, 98 F. App'x 47, 49 (2d Cir. 2004).
Here, all three prongs point clearly to dismissal. In particular, the private Gilbert factors will
weigh heavily in favor of a Haitian court, as many of the relevant acts took place in Haiti, key
witnesses are Haitian citizens, documentary evidence (such as financial , contractual and
legislative information) will be located in Haiti, and the case will turn on the adoption and validity
of a Haitian tax. See Campi.~~ 20-22, 27-30, 36-48, 74, 94, 129-40, 145. The public factors
also favor dismissal, as the Haitian justice system would have a much greater interest in the
outcome of the lawsuit and would be best positioned to interpret Haitian law.
* * *
Based on the foregoing , Digicel Haiti respectfully submits that there are multiple grounds on
which the Amended Complaint should be dismissed with prejudice. Given the numerous bases
for dismissal, motions based on the various arguments summarized above could be sequenced
in a manner that is convenient to the Court and the parties.
Respectfully yours,
((fro~"'""~
James H.R. Windels
cc: All counsel of record (by ECF)