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ESSEX, SS SUPERIOR COURT
COMMONWEALTH OF MASSACHUSETS
SABA HASHEM, individually, and as a
Member of, and derivatively on behalf of,
D’ANGELO and HASHEM, LLC.
Plaintiff Civil Action No. 16CV1419
STEPHEN L. D’ANGELO, D’ANGELO
LAW GROUP, LLC, and D’ANGELO
AND HASHEM, LLC.
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v. *
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Defendants *
om
a
vs 8
DEFENDANTS’ MOTION FOR RECONSIDERATION OF DECISION REGARDIN 32
THE AWARD TO INTERVENOR PLAINTIFF’S. ATTORNEY’S FEES AND COSTS
FOR ATTORNEY’S FEES AND SANCTIONS PER MASS R. CIV. P 11, FOR THE
RELEASE OF ALL OF DEFENDANTS’ INCOME FROM ESCROW TO THE
DEFENDANT LAW FIRM ON AN EMERGENCY BASIS; AND FOR A STAY.
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NOW COMES, Defendants, through their Counsel and respectfully submits these
consolidated Motions for Reconsideration of the court’s Order regarding Attorney’s Fees, for
Reimbursement of Attorney’s Fees and Sanctions, for a Release of Earned fees from Escrow to
the Defendants, (on an emergency basis), and for an Order Staying Collection Efforts of the
Court’s Award, and for other relief, discussed hereinbelow.
Prefatory Statement to The Court
The problem with lies is that it is difficult to remember the last lies which led to the most
recent one. The Court’s decision was unwittingly necessarily based on fraudulent
information and should not be considered. The misrepresentations were made directly to
the Court in response to its two Procedural Orders. Aside from the conduct, the
information is not credible, so the underpinnings supporting the decision are not useable.
More importantly, it has unfairly damaged Defendants insofar as they had to pay
attorney’s fees to repeatedly respond to evasive pleadings, containing deliberate false
statements. It has adversely impacted Defendants’ Counsel, a fellow member of this Bar,
diverting significant time away from important cases to other clients, affecting his
1these litigants and this case, and those of public policy, this Counsel felt, and feels compelled to
file this Motion, as a result. However regretful the addition use of this Court’s time and attention
the Motions, specifically for Reconsideration of the Award Attorney’s Fees due to special
circumstances, and the Motion for Corrective and Just Relief pursuant to M.R.C.P. 11(a), is
another result significantly of the violations and conduct complained of.
It follows that the Defendants contend herein that facts (misrepresentations in pleading(s)
submitted, including in response to this Court’s Procedural Orders), were false and in violation
Mass. R. of Civ. Proc. and law, Rule 11 itself, and that these facts and violation of law were, we
believe, very likely not considered in this context when Your Honor, whose time, we suspect, is
and was spread thin; thus, justifying this Motion for Reconsideration, and for Attorney’s Fees
and Costs. Defendants also herein move for a release of Court-ordered earnings of Defendants to
the Defendants, the reasons for which are discussed in Section VI; as well as for a Stay of Order.
IL EVIDENCE OF SAID FACTS/MISREPRESENTATIONS IN VIOLATION OF
RULE 11 ARE AS FOLLOWS:
Intervenor-Plaintiff supplied to the Court a chart of fees in her first responsive pleading to the
Court’s First Procedural Order, dated 12-16-20, that her highest hourly billing rate for litigation
work in 2019 was $300.00. Yet this representation, presuming it’s accurate, points out the two
previous misrepresentations made to the Court about these attorney fees she seeks,
Misrepresentation 1: Counsel-for Intervenor-Plaintiff created and submitted “invoices”, (not
actual, contemporaneous billing records submitted under oath), informing the Court that all of
the hours allegedly incurred between February 1, 2019 through August 15, 2019 were billed at
the hourly rate of $425.00. (See Invoice labeled “2020-719”, apparently dated 7-13-2020, pp. 6
and 7 — then, previously filed with Court.)
Misrepresentation 2: Counsel for Intervenor-Plaintiff created and submitted a similar “invoice”
for those 2019 services where she represented those very same hours and services were billed at
$400.00 (See Invoice labeled “2019-573”, apparently dated 9-13-2019), She filed that
misrepresentation as part of her Motion to Compel submitted to the Court in October, 2019,
Docket paper #79.) However, in her response to this Court’s (Second) Procedural Order of
12-16-2020, she admits in a Chart she constructed that the highest hourly billing rate in
2019 was only $300! (See that portion of the Chart stating billing rates for 2019, about which
the Court asked/ordered disclosed to it at pages 2 and 3.)
Misrepresentation 3: Misrepresentation 2 proves that Invoice 2019-573 itself, admittedly
submitted to this Court in October, 2019 (Exhibit to Paper # 79), was false too. It also proves
that her written explanation to the Court’s (First) 11-16-2020 Procedural Order that she was
simply “correct[ing] an’ ‘undervaluation” from a“$400” level to $425, was false too, this is
proven by her own admission in her subsequent pleading to your Honor’s Second Procedural
Order, where it is admitted she never billed $400 per hour in 2019. (See pp 3-4 of said
3Ill. SPECIFIC REASONS IN THIS CASE WHY THE AWARD OF ATTORNEY’S
FEES SHOULD BE RECONSIDERED,
First, the first misrepresentations, concealing the settlement amount, and therefore the actual
remaining Judgment amount, has skewed what should have been an accumulation of
“reasonable” attorney’s fees over the course of nearly two years. The above recent
misrepresentations to the Court are simply a continuation of misrepresentations that have created
substantial unnecessary attorney’s fees, including to Defendants, which this Court had to
analyze perhaps not knowing of those misrepresentations or lies.
The conduct started with the purposeful omission of the 2019 Hashem settlement on the Court
Record and resulted in this Court unwittingly issuing a judgment for a much higher principal
amount and amount of interest. Counsel for my clients opponents must have known this, at least
Intervenor Plaintiff's as it was her obligation to file an accurate Partial Satisfaction, to provide
accurate notice, the sole purpose of the Statute? This misrepresentation by omission was
followed by subsequent expressed misrepresentation made directly to Defendant’s counsel, who
was trying to begin a discussion about settlement, during early June of 2020 that she “wanted the
whole judgment, $670,000” [[or $672,000] (plus a sale of and security on personal assets and
personal guaranty.)
Actually, despite that subterfuge, recent offers were made despite, and after being deprived of an
ability to evaluate and respond to the actual exposure since March 2019 and before the Pandemic
seriously impacted firm revenues and Defendants’ and its employee’s livelihoods. Of course,
whether a settlement would have been reached is impossible to say, but what is a fact is that
finances were undisputedly different for the better, which could have been applied to fund a
settlement, if Good Faith and truthful representation of the amount remaining after settlement
with Defendant Hashem-which was significant. Since then, 20 more months of statutory interest
unnecessarily accrued, and further attorneys’ fees in the tens of thousands of dollars,* were
3 This resulted in causing this Court to erroneously issue a judgment of an inaccurate principal amount of
approximately $471,000.00, and for an incorrectly inflate per diem statutory interest amount which continues.
This issue was briefed for the Court in Defendants’ Motion for an Order to File an (accurate) Partial Satisfaction
of Judgment.
4 Intervenor Plaintiff has been prolific in her litigiousness, certainly during 2019 and 2020, after Remand from
the Federal District Court for lack of Jurisdiction. The only most complex litigation, so-defined by I-P’s counsel
due to time consumption and “expense”/and or not being paid, including several petitions for attorney's fees
throughout those two years, disclosed is this case. The latest of those evoked a Rule 11 motion, painstakingly
supported with documentary proof of the violation, which Ds reluctant withdrew in an effort to perhaps
rekindle an atmosphere of reasonable discussion of a viable settlement, and in the interest of preserving Judicial
resources.
That decision appears to have been wrong and cost Defendants $5600.00, which further exacerbates D’s
financial condition and, frankly, this 55-year-old Counsel's ability to be paid and continue providing
representation due to the palpable strains on my firm and my family’s ability to pay bills, including mortgage
and college tuition, not to mention any ability fund a retirement IRA.
5reputation and relationships of trusts with them, some of which expressed dissatisfaction
about the lack of attention to, and with regard to explanations he was forced to utter. Most
importantly, they are a culmination of a pattern in this case, which has had an impact on
the cost of this case to litigants who do not deserve to be subjected to costs as a result of
such conduct, and whom should be able to not expect that type of litigation “on their
behalves.” Thus, it adds to a mistrust and dissatisfaction of we attorneys, who all have
undertaken the obligation to do nothing to undermine the perception of the integrity of the
Bar.
Most importantly, the conduct, particularly regarding the Court’s questioning about
billing rates, once the inconsistences were identified by opposing counsel, was direct, and a
flouting of the inconsistences Court’s authority, the duty of candor and truthfulness to it,
and in general under our ethical canons, and not unknowingly, directly caused a waste and
abuse of judicial resources, the Court’s time and attention.
So, Defendants submit there was “special circumstances” rendering the Award “Unjust”
under M.G.L. ec. 151B, Section 9. To this Court’s credit, it did not award attorney’s fees for
offending additional pleadings created and submitted in response to 2 Procedural Orders.
But, we believe the Court would agree, upon reconsideration, denial of those fees incurred,
and possibly eventually paid by Intervenor Plaintiff, did not go far enough to address the
collateral damage and actual causation of an increased appearance of impropriety of
members’ of the Bar, in this case, Defendants counsel, whose trust and faith, which he had
worked for, about his caring about, attention to and prioritization of those other clients and
members of the public, personal legal embroilments was, not insignificantly, undercut as a
direct result.!
Intervenor-Plaintiff, through her counsel’s latest untruth was made to this Court in her response
to (second) procedural order re plaintiff-intervenor’s petition for attorney’s fees and costs,
issued by the Court and dated 12/16/2020.
Counsel for Defendants is not happy to have to add this Motion(s) to an already
voluminous Court file.2, However, for all of the reasons touched upon herein, both limited to
+ This occurred while Defendants’ Counsel had to handle active and very active matters of his colleague-attorney
who took seriously ill, was hospitalized and unable to work for November and December. Like the theory of the
“Eggshell skulled Plaintiff”, a victim’s circumstances are what they are, and they are not unforeseeable, especially
to trained attorneys, who must “take their victims” as they are. Perhaps the they damage done to these attorney-
client relationships could have been avoided by management of time, but when doing the job of 2 attorneys, there
simply was not enough time eight 6-to-7-day weeks to prevent it. (In making this point, in no way do | to diminish
the plight of seriously-injured Plaintiffs.)
2 The ability to properly prepare a Motion was delayed due to these circumstances, and originally was to be ,
submitted as a Motion to Strike the Fee Petition and subsequent Responses to the Court’s two procedural orders,
and for the other relief sought herein. However, the Court has issued an Order. Hence, this Motion for
Reconsideration, and for that other relief prayed for.responsive pleading-to the First Procedural Order, issued 11-16-2020.) Obviously, leading the
Court to believe her rates increased only 6 “ % would appear more reasonable and therefore be
accepted by this Court, as opposed to the actual increase of 41 27 %, ($300 per hour to $425 per
hour.)
Misrepresentation 4: Counsel for Intervenor-Plaintiff has indicated to the Court in her
Response to the Court’s First Procedural Order, filed on December 4, 2020, that she has
billed the rate of $350.00 “in the past.” (See p. 4 of 7, near bottom of page). Yet in her
Response to the Court’s Second Procedural Order, filed December 28, 2020, she indicates a
$350 hourly rate was never charged until 2020, and that was on apparently on only 1.36%
of her firm’s litigation matters. Billing $350 in the same year, 2020, is not “in the past” as
the statement was intended to portray.
Importance: Beyond the figures or numbers, is the fact that the Court was placed in a
position, after it asked, not once, but twice for accurate billing rates information. In direct
response to BOTH Procedural Orders, Counsel for Intervenor Plaintiff lied. That was and
is extrinsic fraud upon this Court. Now, that the Court is aware of it, the integrity of the
adversarial process in our system, and the Court itself has been undermined and must be
addressed. It is a matter of fairness to the litigants and fundamental Public Policy.
I. STANDARD FOR RECONSIDERATION
In addition to Justice and to protect this Honorable Court’s Integrity, a Superior Court Judge has
stated the law well:
A motion for reconsideration is not an opportunity to submit a second draft of a pleading (or, as
here, take a third bite at the apple). See generally Hingham Mutual Fire Insurance Company v.
Travelers Insurance Company, 21 Mass. L. Rptr. No. 32, 735 (Sikora, J., then a Superior Court
Justice) (February 5, 2007).
A Motion for Reconsideration may be denied only if a moving party meets any one of five
conditions, as set forth in Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 622 (1989), Peterson v.
Hopson, 306 Mass. 597,600, (1940), Handrahan v. City of Boston, 53 Mass. App. Ct. 1114
(2002), and Clamp-All Corporation v. Foresta, 53 Mass.App.Ct. 795, 810.
None of those conditions exist here
There has also been, unwittingly, an overlooking of the law, violations of Rule 11, in this case.
So, the Defendants rely on errors of fact and law. See generally Town of Hopkinton v.
Bellantoni,_2010 Mass. Super. Lexis 40, 2-3 (Mass. Super. Ct. Feb. 18, 2010).incurred. Much of these attorney’s fees were unnecessary, unnecessarily hyperbolic, including
about exhibits, unnecessary repeating of the mantra about seeking “Justice” and the Defendant’s
supposed aloofness and disregard of I-P’s judgment or desire to settle.5
This conduct truly impacted an ability for the parties to settle early or sometime in 2019, pre-
Pandemic and before those significant attorneys’ fees were incurred on both sides. It has harmed
both parties, and wasted resources. The Court should reconsider addressing this, and the Award
of attorney’s fees which was formulated after being provided inaccurate and non-credible
evidence of reasonably incurred attorney’s fees.
The Court was lied to and duped into accepting as accurate these billing rates. Even if it wasn’t
it must, as a matter of integrity and perception of the integrity Court’s and the adversarial
process, simply as a matter of public policy.
Conduct like this from an Officer of the Court, with a Duty of Candor plus others, can not go
unaddressed and Orders based on those lies must be re-reviewed, unfortunately, in the interests
of actual justice and the integrity of the Court, even if unpleasant or tiresome. But that is not
Defendants’ fault. They simply are entitled to be subject to fair treatment by the Judiciary, even
if an inappropriate decision was based on assumptions that were not true, in this case, submitted
facts in pleadings that were false :
Defendants have done their best to try to respond to these numerous, lengthy, and labyrinthian
filings with regard to these “Petition submissions” for Fees. It is not fair, and costly, for the
Defendants and their Counsel to have to continually respond, or that this Court, must deal with
and sort through these convoluted and contradictory representations about these fees. Counsel
for Intervenor Plaintiff has had numerous chances and been given plenary time to submit
truthful, accurate records for consideration.
Conduct such as documented here necessitates as Reconsidered Award. Additionally,
misrepresntations, certainly repeated misrepresentation after being duly notice is deserved of
correction, in the interest of the integrity of the Courts. It is universally known by members
of the Bar that one who has chosen the practice of law and American jurisprudence
understands, or should be made to understand, that the Courts and the Courts’ decisions
simply cannot be tainted with falsity as they are the backbone of a civilized society.
In this case, this Honorable Court, in its Second Procedural Order, clearly reminded
Intervenor Plaintiff, under the specter of its discretion to award no attorneys fees, that it
required the billing information it had already asked for, and needed to render (a fair and
reasoned) decision based on that information The Court should not have had to expresslystate it expected truthful documentation. That was and is obvious. Accordingly,
consideration of that equitable solution should be placed back on the table.
Secondly, the Court in its Memorandum and Order states that the Defendants’ offered no
authority, that persuaded the Court regarding issuance of Attorney’s Fees. Defendants submit
that as part of the multiple Oppositional pleadings, that M.R.C.P. 54(b) clearly states in
truncated, relevant part, that:
“When more than one claim is presented in an action...or when multiple parties are
involved the court may direct the entry of a final judgment as to one or more but fewer
than all the claims or parties only upon an express determination that there is no just
reason for delay...” Mass R. Civ. P. 54(b).
Under all the circumstances, Defendants submit that the Intervenor-Plaintiff has not and cannot
make that case, particularly given the Commonwealth’s Courts’ sufficiently-established policy of
very judicious determinations under this Rule.
IV. MOTION FOR ATTORNEY’S FEES AND SANCTIONS PER MASS. R. CIV. P.
RULE 11 ARE WARRANTED AND APPROPRIATE.
As has been earlier briefed in Defendants’ prior-filed Motion, Rule 11(a) states in relevant
part:
" ... The signature of an attorney to a pleading constitutes a certificate by him that he has
read the pleading; that to the best of his knowledge, information, and belief there is a good
ground to support it; and that it is not interposed for delay. For a willful violation of this
rule an attorney may be subjected to appropriate disciplinary action."
This lack of truthfulness with the Court is not only a violation of Rule 11, again, but has delayed
a decision on the release from escrow funds that are critical to the Defendant’s continued
operations. Defendants counsel’s ability to do our job is made more tenuous because of this
conduct and the inability to get paid-for the better part of ayear. Accordingly, payment of
attorney’s fees and sanctions are also appropriate. It is not disproportionately harsh given the
facts and ramifications in this case, and to the integrity of the Judiciary.
Impact in this case.
To be sure, in addition to the elongating the deprivation of critical gross income from Defendants
and their employees and obliges, the Defendants have also had to incur thousands of further fees
responding to the same. Those fees my clients have been forced to incur, in addition to
“legitimate” defense fees will be submitted to the Court (and served) promptly.6 More to the
® Counsel for Defendants have not submitted an Affidavit regarding their fees since October 9, 2020. They will
file an updated document as soon as possible, (after double-checking for errors.)point, this Counsel contends, as a practical matter of reality, that in addition to the legal fees that
Defendants have been forced to incur dealing with these types of filings and this type of
litigation, that, frankly this 55 year-old Counsel’s, (in addition to my small two-person firm),
ability to be paid, and to continue providing representation due to the palpable strains on my firm
and my family’s ability to pay bills, including mortgage and college tuition, not to mention any
ability fund a retirement IRA has and is being affected as a direct result.
Defendants’ Counsel works in a small 2-person firm which can no longer absorb this lack of
gross income, as it has best tried to do, unsuccessfully.
Consistent with my clients’ recommendation of and this Court’s approval of allowing payment
of Defense fees and costs was the basis of my withdrawal of my earlier-filed Motion to
Withdraw, when the Court stated two things: that it would better certainly if Attorney LaPorte
was to stay in the case; and that the right to counsel was fundamental.
Defendant has been painted in a negative light by Counsel for Intervenor Plaintiff, as well as by
Mr. Hashem’s counsel, however, in so “painting” Intervenor Plaintiff's counsel, has omitted
many circumstances and facts to the contrary. Nonetheless, however this Court may have
perceived or may perceive the Defendants does not excuse “Crossing of the Line” from, in this
case, a clever attorney and Officer of the Court, whose intelligence would likely be indicative
that these repeated misrepresentations were made to cover up prior misrepresentations, and
therefore knowing and purposeful, (or made after forgetting prior misrepresentations, indicating
perhaps only partial purposefulness with a reckless disregard to what the truth when she was
drafting her narrative that she submitted to the Court.) In either event. the conduct is not in
accord with the Duty of Candor and other ethical duties of any attorney.
This motion has required 19.7 hours, of precious attorney time which couldn’t otherwise be
applied to other matters needing real attention, and has cost the Defendant at the vastly reduced,
(of 19.5%), hourly rate of $285 per hour, $5,614.50.7 Defendants’ Counsel has had to expend
11.4 hours equaling $3249.00, again, based on a greatly-reduced hourly rate, researching files
and the like for purposes of evidence of padded billing and to review and respond to all of these
pleadings containing the misrepresentations, filed in violation of Rule 11. Why should
Defendants have to pay for those hour Defendants’ counsel incurred?®?
7 The standard hourly rate has been for the better part of a year $350 per hour. At least 2 other cases are being
billed at $400 per hour, one involving an Appeal, and another involving a complex gender
discrimination/Massachusetts Wage Act, et al issues which has been removed by the corporate Defendant(s) to
Federal Court.
® Your Honor has not included intervenor Plaintiff's time spent crafting the responses to the Court’s Procedural and
Supplemental Procedural Orders.
° Defendants’ Counsel also genuinely could have devoted that time to other, serious matters and/or paying
clients, particularly because he was working, not just “covering” 2 lawyers’ full workloads, as Attorney
8Accordingly, Defendants submit that an award of sanctions at Defendants’ counsel’s standard
hourly rate of $350 for those hours, totaling $10,885.00, is just and right. The fees and sanctions
sought are a lot, but Defendants”’ counsel sincerely believes this matter is a serious one,
happened causing harms, and needed to be prepared thoroughly. Those hours could have and
would have been devoted to other cases, many of which are “behind.” (causing significant
negative reaction from at least 2 important clients, and others, who however were successfully
calmed time related to that forced uncomfortable exercise. Time for that is NOT included in this
Request for Sanctions.) Likewise, this Court’s time should, as best as is possible, devoted to
tuling on meritorious submissions. The Court may indeed consider and fashion a remedy for that
harm. Regarding Defendant-Movants, however, they submit for the Court’s consideration that
the amount of $10,815.00, which is based on a conservative calculation of hours, is right and
just.
VI. THE AWARD SHOULD BE STAYED TO THE END OF TRIAL.
As pointed out by the Court, it has fair that the Parties as a matter of fairness, have knowledge of
the amount of an Attorney’s Award by this Court, based on the financial documents required by
and produced to the Court, and in addition to arguments Defendants’ documented and worsening
financial condition, has not gotten better. Based on those submissions and the information
submitted today, it is submitted that collection of this Award, or any Award, this Court may
make after Reconsideration, should be stayed until the end of trial.
VI. THE ATTORNEYS FEES ORDERED TO BE HELD IN ESCROW SHOULD BE
RELEASED TO THE DEFENDANTS.
As time has dragged on, including because of these unnecessarily extra Orders the Court has had
to make and analyze, the financial situation of the Defendants has not gotten better, To the
contrary, all loans sources of credit have been tapped. The Defendant law firm owes one of its
two attorneys under contract tens of thousands of dollars, for work he has done in good faith. He
has a family and obligations.
Also, as the Court knows, there are 8 employees that work for D’Angelo Law Group, LLC. So
far, none have been laid off to counsel’s knowledge, but hours have had to decreased.
The Defendants owe this Counsel and his small firm significantly more. This firm has 4
employees all of whom have families. Working without getting paid for so long indeed affected
ability to meet creditors’ bills, much less hand out any sort of Holiday bonuses to the staff. -
Cossingham was hospitalized on an emergency basis, then out of the office for all of November until December
27, 2020, when he came back for % days of 4 hours. Defendants’ counsel is wiling to show the Court his billing
records In Camera to corroborate same, and even serve the same to other counsel, after appropriate redaction.
9Defendants’ counsel, Attorney LaPorte, has a family, and amongst other things, college tuition, a
mortgage and other extraordinary expenses related to medical bills, the recent loss of two
vehicles and high costs related to a critical mechanical system at his residence.
Regarding the equities of the parties, it was revealed, after this Court recently required Intervenor
Plaintiff's ‘counsel, to divulge the payment amounts that her client had actually already been
paid. It was not a small amount, nor small on a relative basis. And Intervenor Counsel’s client is
scheduled to receive more. This Counsel is confident, haven spoken with her, that those
obligations are secured.
This Pandemic looks as if it has met its match in the form of vaccines, and that there will soon be
an end, hopefully, to it, and recovery thereafter. However, the financial situation of the
Defendants has not gotten better.
Moreover, their debt obligation to this Counsel has been unnecessarily increased as a result of
Intervenor Counsel’s conduct related to evasion of submission of actual billing rates in support
of Intervenor Plaintiff's Petition for Attorney’s Fees. Further, despite this conduct, because said
Counsel has boldly argued her client is entitled to be carved out a (not insignificant) portion from
this income which is critically needed for Defendants’ survival and to meet its substantial
obligations at this time, a decision on these revenues has been delayed by more than 2 months,
when the health situation has exploded, further financially weakening Defendants and their
fundamental right to defend themselves in a Court of Law.
The equities, at this unprecedented time and under these circumstances, simply favor the
Defendants. Accordingly, the Defendants request an Order releasing the Court-imposed escrow
to the Defendants.
VIL. FINAL OBSERVATIONS AND CONCLUSION
In sum, regarding Intervenor Plaintiff's Petition for Fees and related pleadings subsequently filed
and discussed herein, this sort or these sorts of misrepresentations in this case are not common
and are not an issue in any cases cited by Intervenor Plaintiff's Counsel. Therefore, it is
submitted that this Court re-evaluate the petition for fees, subsequent filings to the Court related
to same, for fees individually, and our Order against this background and now equipped with
revelation of these representations and tactics-which are included in the submitted “invoices”.
Upon reconsideration, an award of no attorneys’ fees may well be in order. The Court has
discretion to do so, as was indicated in the Second Procedural Order, dated 12/16/2020. Any
impact to the Intervenor Plaintiff herself, to the extent her Counsel is voluntarily sharing any
attorneys’ fees with her, is not the fault or caused by Defendants, nor by this Court. Counsel for
Intervenor Plaintiff has not served her client well, and has unfairly damaged Defendants and
their counsel, monetarily. Settlement opportunities have been lost, elongated litigation has
ensued, and attorneys’ fees to defend, and unnecessary fees have been accumulated by
Intervenor Plaintiff-which are supported by fraudulent pleadings and exhibit. The conduct has,
10perhaps, not entirely brought the parties, including her client, into the depths of a Pandemic-
induced economic depression where collection, which Counsel says she is championing, to
satisfy at least some of her remaining judgment is now much more threatened and difficult.
The Defendants also standby their previously submitted positions.!°
This brief is long, and not wished by Defendants, and we are sure, the Court should not have
been expected it on its docket but these episodes of fraud upon the Court have been continuous,
has affected the civility of this litigation and caused unnecessary fees, and waste of both legal
and judicial resources.
These events and deceit have gone beyond the rules governing litigation, affected a real
possibility a settlement could have been reached, and most importantly, have included
multiple deceptions directly made in response to this Court’s Orders.
It is serious. Redress is required. Therefore, in light of all of the above herein, and
submissions of pleadings, affidavits and financial information this Court has already
gathered Defendants, through their counsel, ask the Court to grant these Motions
including:
1) To Reconsider its Award of Attorney’s Fees to Counsel for Intervenor Counsel;
2) (a) For an Order of Reimbursement of unnecessarily caused Attorney’s fees caused
to Defendants, and (b) For Sanctions, for violations of the provisions regarding
certification by attorneys of statements made in pleadings mandated in Mass R Civ.
P 11(a); and
3) For and Order releasing from escrow the funds to Defendants, on an emergency
basis, based on a weighing of the equities, including the adverse effects to
Defendants’ ability to remain in business, to pay employees and Counsel; and
4) For a Stay on any Collection Attempts of Attorney’s Fees Awarded.
4° *the lack of essentiality and necessity of the petitioned-for fees;
*intentional padding of invoices submitted to this Court, alteration and re-submission of same to this Court, and
untruthful response to this Court’s question in its Second Procedural Order, which the Court was patient enough to
issue;
*that the Summary Judgment is interlocutory;
*the significant extra fees Defendants, and time, their Counsel have had to incur responding to, inter alia, this
Petition; and or in the alternative;
*that any award should be stayed until the completion of trial, in light of the circumstances surrounding this case,
as they are and have been, and because all of Intervenor Plaintiff's claimed fees through trial will be known, should
she prevail.
11Dated: February 4, 2021
Respectfully submitted,
Defendants, By their attorneys
/s/Thomas C. LaPorte
Thomas C. LaPorte, Esq.
Cossingham Law Office, P.C.
30 Massachusetts Avenue, Ste 404
North Andover, MA 01845
978-685-5686
tlaporte@acossinghamlaw.com
BBO No. 634194
12CERTIFICATE OF SERVICE
I, Thomas C. LaPorte, Esq., hereby certify that on this 4" day February of 2021 served a
copy of the foregoing to all parties via electronic mail and by first-class US Mail to:
Mernaysa Rivera-Bujosa, Esq
Rivera Bujosa Law, PC
Shipway Place
Unit C2
The Charlestown Navy Yard
Charlestown, MA 02129
mernaysa@riverabujosalaw.com
Albert I. Farrah, Esq. ~
Farrah and Farrah
800 Boylston Street, Suite 1600
Boston, MA 02199
Email: alfi@farrah-law.com
Thomas C. LaPorte, Esq.
13ee
COSSINGHAM LAW OFFICE, PC
30 Massachusetts Avenue, Suite 404
North Andover, MA 01845
TO:
Albert I. Farrah, Esq.
Farrah and Farrah
800 Boylston Street, Suite 1600
Boston, MA 02199
* 000.298
qyoupont ZP O18HUT NANT AANNATTNNNTTINANTGS
COSSINGHAM LAW OFFICE, PC
30 Massachusetts Avenue, Suite 404
North Andover, MA 01845
TO:
Memaysa Rivera-Bujosa, Esq,
Rivera-Bujosa Law, PC
Shipway Place, Unit C2
The Charlestown Navy Yard
Boston, MA 02129
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sve 02/04/2021 ZIP 01845 4
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Preview
we ESSEX, SS SUPERIOR COURT COMMONWEALTH OF MASSACHUSETS SABA HASHEM, individually, and as a Member of, and derivatively on behalf of, D’ANGELO and HASHEM, LLC. Plaintiff Civil Action No. 16CV1419 STEPHEN L. D’ANGELO, D’ANGELO LAW GROUP, LLC, and D’ANGELO AND HASHEM, LLC. * * * * * v. * * * * * Defendants * om a vs 8 DEFENDANTS’ MOTION FOR RECONSIDERATION OF DECISION REGARDIN 32 THE AWARD TO INTERVENOR PLAINTIFF’S. ATTORNEY’S FEES AND COSTS FOR ATTORNEY’S FEES AND SANCTIONS PER MASS R. CIV. P 11, FOR THE RELEASE OF ALL OF DEFENDANTS’ INCOME FROM ESCROW TO THE DEFENDANT LAW FIRM ON AN EMERGENCY BASIS; AND FOR A STAY. = = 3 a 3 w NOW COMES, Defendants, through their Counsel and respectfully submits these consolidated Motions for Reconsideration of the court’s Order regarding Attorney’s Fees, for Reimbursement of Attorney’s Fees and Sanctions, for a Release of Earned fees from Escrow to the Defendants, (on an emergency basis), and for an Order Staying Collection Efforts of the Court’s Award, and for other relief, discussed hereinbelow. Prefatory Statement to The Court The problem with lies is that it is difficult to remember the last lies which led to the most recent one. The Court’s decision was unwittingly necessarily based on fraudulent information and should not be considered. The misrepresentations were made directly to the Court in response to its two Procedural Orders. Aside from the conduct, the information is not credible, so the underpinnings supporting the decision are not useable. More importantly, it has unfairly damaged Defendants insofar as they had to pay attorney’s fees to repeatedly respond to evasive pleadings, containing deliberate false statements. It has adversely impacted Defendants’ Counsel, a fellow member of this Bar, diverting significant time away from important cases to other clients, affecting his 1these litigants and this case, and those of public policy, this Counsel felt, and feels compelled to file this Motion, as a result. However regretful the addition use of this Court’s time and attention the Motions, specifically for Reconsideration of the Award Attorney’s Fees due to special circumstances, and the Motion for Corrective and Just Relief pursuant to M.R.C.P. 11(a), is another result significantly of the violations and conduct complained of. It follows that the Defendants contend herein that facts (misrepresentations in pleading(s) submitted, including in response to this Court’s Procedural Orders), were false and in violation Mass. R. of Civ. Proc. and law, Rule 11 itself, and that these facts and violation of law were, we believe, very likely not considered in this context when Your Honor, whose time, we suspect, is and was spread thin; thus, justifying this Motion for Reconsideration, and for Attorney’s Fees and Costs. Defendants also herein move for a release of Court-ordered earnings of Defendants to the Defendants, the reasons for which are discussed in Section VI; as well as for a Stay of Order. IL EVIDENCE OF SAID FACTS/MISREPRESENTATIONS IN VIOLATION OF RULE 11 ARE AS FOLLOWS: Intervenor-Plaintiff supplied to the Court a chart of fees in her first responsive pleading to the Court’s First Procedural Order, dated 12-16-20, that her highest hourly billing rate for litigation work in 2019 was $300.00. Yet this representation, presuming it’s accurate, points out the two previous misrepresentations made to the Court about these attorney fees she seeks, Misrepresentation 1: Counsel-for Intervenor-Plaintiff created and submitted “invoices”, (not actual, contemporaneous billing records submitted under oath), informing the Court that all of the hours allegedly incurred between February 1, 2019 through August 15, 2019 were billed at the hourly rate of $425.00. (See Invoice labeled “2020-719”, apparently dated 7-13-2020, pp. 6 and 7 — then, previously filed with Court.) Misrepresentation 2: Counsel for Intervenor-Plaintiff created and submitted a similar “invoice” for those 2019 services where she represented those very same hours and services were billed at $400.00 (See Invoice labeled “2019-573”, apparently dated 9-13-2019), She filed that misrepresentation as part of her Motion to Compel submitted to the Court in October, 2019, Docket paper #79.) However, in her response to this Court’s (Second) Procedural Order of 12-16-2020, she admits in a Chart she constructed that the highest hourly billing rate in 2019 was only $300! (See that portion of the Chart stating billing rates for 2019, about which the Court asked/ordered disclosed to it at pages 2 and 3.) Misrepresentation 3: Misrepresentation 2 proves that Invoice 2019-573 itself, admittedly submitted to this Court in October, 2019 (Exhibit to Paper # 79), was false too. It also proves that her written explanation to the Court’s (First) 11-16-2020 Procedural Order that she was simply “correct[ing] an’ ‘undervaluation” from a“$400” level to $425, was false too, this is proven by her own admission in her subsequent pleading to your Honor’s Second Procedural Order, where it is admitted she never billed $400 per hour in 2019. (See pp 3-4 of said 3Ill. SPECIFIC REASONS IN THIS CASE WHY THE AWARD OF ATTORNEY’S FEES SHOULD BE RECONSIDERED, First, the first misrepresentations, concealing the settlement amount, and therefore the actual remaining Judgment amount, has skewed what should have been an accumulation of “reasonable” attorney’s fees over the course of nearly two years. The above recent misrepresentations to the Court are simply a continuation of misrepresentations that have created substantial unnecessary attorney’s fees, including to Defendants, which this Court had to analyze perhaps not knowing of those misrepresentations or lies. The conduct started with the purposeful omission of the 2019 Hashem settlement on the Court Record and resulted in this Court unwittingly issuing a judgment for a much higher principal amount and amount of interest. Counsel for my clients opponents must have known this, at least Intervenor Plaintiff's as it was her obligation to file an accurate Partial Satisfaction, to provide accurate notice, the sole purpose of the Statute? This misrepresentation by omission was followed by subsequent expressed misrepresentation made directly to Defendant’s counsel, who was trying to begin a discussion about settlement, during early June of 2020 that she “wanted the whole judgment, $670,000” [[or $672,000] (plus a sale of and security on personal assets and personal guaranty.) Actually, despite that subterfuge, recent offers were made despite, and after being deprived of an ability to evaluate and respond to the actual exposure since March 2019 and before the Pandemic seriously impacted firm revenues and Defendants’ and its employee’s livelihoods. Of course, whether a settlement would have been reached is impossible to say, but what is a fact is that finances were undisputedly different for the better, which could have been applied to fund a settlement, if Good Faith and truthful representation of the amount remaining after settlement with Defendant Hashem-which was significant. Since then, 20 more months of statutory interest unnecessarily accrued, and further attorneys’ fees in the tens of thousands of dollars,* were 3 This resulted in causing this Court to erroneously issue a judgment of an inaccurate principal amount of approximately $471,000.00, and for an incorrectly inflate per diem statutory interest amount which continues. This issue was briefed for the Court in Defendants’ Motion for an Order to File an (accurate) Partial Satisfaction of Judgment. 4 Intervenor Plaintiff has been prolific in her litigiousness, certainly during 2019 and 2020, after Remand from the Federal District Court for lack of Jurisdiction. The only most complex litigation, so-defined by I-P’s counsel due to time consumption and “expense”/and or not being paid, including several petitions for attorney's fees throughout those two years, disclosed is this case. The latest of those evoked a Rule 11 motion, painstakingly supported with documentary proof of the violation, which Ds reluctant withdrew in an effort to perhaps rekindle an atmosphere of reasonable discussion of a viable settlement, and in the interest of preserving Judicial resources. That decision appears to have been wrong and cost Defendants $5600.00, which further exacerbates D’s financial condition and, frankly, this 55-year-old Counsel's ability to be paid and continue providing representation due to the palpable strains on my firm and my family’s ability to pay bills, including mortgage and college tuition, not to mention any ability fund a retirement IRA. 5reputation and relationships of trusts with them, some of which expressed dissatisfaction about the lack of attention to, and with regard to explanations he was forced to utter. Most importantly, they are a culmination of a pattern in this case, which has had an impact on the cost of this case to litigants who do not deserve to be subjected to costs as a result of such conduct, and whom should be able to not expect that type of litigation “on their behalves.” Thus, it adds to a mistrust and dissatisfaction of we attorneys, who all have undertaken the obligation to do nothing to undermine the perception of the integrity of the Bar. Most importantly, the conduct, particularly regarding the Court’s questioning about billing rates, once the inconsistences were identified by opposing counsel, was direct, and a flouting of the inconsistences Court’s authority, the duty of candor and truthfulness to it, and in general under our ethical canons, and not unknowingly, directly caused a waste and abuse of judicial resources, the Court’s time and attention. So, Defendants submit there was “special circumstances” rendering the Award “Unjust” under M.G.L. ec. 151B, Section 9. To this Court’s credit, it did not award attorney’s fees for offending additional pleadings created and submitted in response to 2 Procedural Orders. But, we believe the Court would agree, upon reconsideration, denial of those fees incurred, and possibly eventually paid by Intervenor Plaintiff, did not go far enough to address the collateral damage and actual causation of an increased appearance of impropriety of members’ of the Bar, in this case, Defendants counsel, whose trust and faith, which he had worked for, about his caring about, attention to and prioritization of those other clients and members of the public, personal legal embroilments was, not insignificantly, undercut as a direct result.! Intervenor-Plaintiff, through her counsel’s latest untruth was made to this Court in her response to (second) procedural order re plaintiff-intervenor’s petition for attorney’s fees and costs, issued by the Court and dated 12/16/2020. Counsel for Defendants is not happy to have to add this Motion(s) to an already voluminous Court file.2, However, for all of the reasons touched upon herein, both limited to + This occurred while Defendants’ Counsel had to handle active and very active matters of his colleague-attorney who took seriously ill, was hospitalized and unable to work for November and December. Like the theory of the “Eggshell skulled Plaintiff”, a victim’s circumstances are what they are, and they are not unforeseeable, especially to trained attorneys, who must “take their victims” as they are. Perhaps the they damage done to these attorney- client relationships could have been avoided by management of time, but when doing the job of 2 attorneys, there simply was not enough time eight 6-to-7-day weeks to prevent it. (In making this point, in no way do | to diminish the plight of seriously-injured Plaintiffs.) 2 The ability to properly prepare a Motion was delayed due to these circumstances, and originally was to be , submitted as a Motion to Strike the Fee Petition and subsequent Responses to the Court’s two procedural orders, and for the other relief sought herein. However, the Court has issued an Order. Hence, this Motion for Reconsideration, and for that other relief prayed for.responsive pleading-to the First Procedural Order, issued 11-16-2020.) Obviously, leading the Court to believe her rates increased only 6 “ % would appear more reasonable and therefore be accepted by this Court, as opposed to the actual increase of 41 27 %, ($300 per hour to $425 per hour.) Misrepresentation 4: Counsel for Intervenor-Plaintiff has indicated to the Court in her Response to the Court’s First Procedural Order, filed on December 4, 2020, that she has billed the rate of $350.00 “in the past.” (See p. 4 of 7, near bottom of page). Yet in her Response to the Court’s Second Procedural Order, filed December 28, 2020, she indicates a $350 hourly rate was never charged until 2020, and that was on apparently on only 1.36% of her firm’s litigation matters. Billing $350 in the same year, 2020, is not “in the past” as the statement was intended to portray. Importance: Beyond the figures or numbers, is the fact that the Court was placed in a position, after it asked, not once, but twice for accurate billing rates information. In direct response to BOTH Procedural Orders, Counsel for Intervenor Plaintiff lied. That was and is extrinsic fraud upon this Court. Now, that the Court is aware of it, the integrity of the adversarial process in our system, and the Court itself has been undermined and must be addressed. It is a matter of fairness to the litigants and fundamental Public Policy. I. STANDARD FOR RECONSIDERATION In addition to Justice and to protect this Honorable Court’s Integrity, a Superior Court Judge has stated the law well: A motion for reconsideration is not an opportunity to submit a second draft of a pleading (or, as here, take a third bite at the apple). See generally Hingham Mutual Fire Insurance Company v. Travelers Insurance Company, 21 Mass. L. Rptr. No. 32, 735 (Sikora, J., then a Superior Court Justice) (February 5, 2007). A Motion for Reconsideration may be denied only if a moving party meets any one of five conditions, as set forth in Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 622 (1989), Peterson v. Hopson, 306 Mass. 597,600, (1940), Handrahan v. City of Boston, 53 Mass. App. Ct. 1114 (2002), and Clamp-All Corporation v. Foresta, 53 Mass.App.Ct. 795, 810. None of those conditions exist here There has also been, unwittingly, an overlooking of the law, violations of Rule 11, in this case. So, the Defendants rely on errors of fact and law. See generally Town of Hopkinton v. Bellantoni,_2010 Mass. Super. Lexis 40, 2-3 (Mass. Super. Ct. Feb. 18, 2010).incurred. Much of these attorney’s fees were unnecessary, unnecessarily hyperbolic, including about exhibits, unnecessary repeating of the mantra about seeking “Justice” and the Defendant’s supposed aloofness and disregard of I-P’s judgment or desire to settle.5 This conduct truly impacted an ability for the parties to settle early or sometime in 2019, pre- Pandemic and before those significant attorneys’ fees were incurred on both sides. It has harmed both parties, and wasted resources. The Court should reconsider addressing this, and the Award of attorney’s fees which was formulated after being provided inaccurate and non-credible evidence of reasonably incurred attorney’s fees. The Court was lied to and duped into accepting as accurate these billing rates. Even if it wasn’t it must, as a matter of integrity and perception of the integrity Court’s and the adversarial process, simply as a matter of public policy. Conduct like this from an Officer of the Court, with a Duty of Candor plus others, can not go unaddressed and Orders based on those lies must be re-reviewed, unfortunately, in the interests of actual justice and the integrity of the Court, even if unpleasant or tiresome. But that is not Defendants’ fault. They simply are entitled to be subject to fair treatment by the Judiciary, even if an inappropriate decision was based on assumptions that were not true, in this case, submitted facts in pleadings that were false : Defendants have done their best to try to respond to these numerous, lengthy, and labyrinthian filings with regard to these “Petition submissions” for Fees. It is not fair, and costly, for the Defendants and their Counsel to have to continually respond, or that this Court, must deal with and sort through these convoluted and contradictory representations about these fees. Counsel for Intervenor Plaintiff has had numerous chances and been given plenary time to submit truthful, accurate records for consideration. Conduct such as documented here necessitates as Reconsidered Award. Additionally, misrepresntations, certainly repeated misrepresentation after being duly notice is deserved of correction, in the interest of the integrity of the Courts. It is universally known by members of the Bar that one who has chosen the practice of law and American jurisprudence understands, or should be made to understand, that the Courts and the Courts’ decisions simply cannot be tainted with falsity as they are the backbone of a civilized society. In this case, this Honorable Court, in its Second Procedural Order, clearly reminded Intervenor Plaintiff, under the specter of its discretion to award no attorneys fees, that it required the billing information it had already asked for, and needed to render (a fair and reasoned) decision based on that information The Court should not have had to expresslystate it expected truthful documentation. That was and is obvious. Accordingly, consideration of that equitable solution should be placed back on the table. Secondly, the Court in its Memorandum and Order states that the Defendants’ offered no authority, that persuaded the Court regarding issuance of Attorney’s Fees. Defendants submit that as part of the multiple Oppositional pleadings, that M.R.C.P. 54(b) clearly states in truncated, relevant part, that: “When more than one claim is presented in an action...or when multiple parties are involved the court may direct the entry of a final judgment as to one or more but fewer than all the claims or parties only upon an express determination that there is no just reason for delay...” Mass R. Civ. P. 54(b). Under all the circumstances, Defendants submit that the Intervenor-Plaintiff has not and cannot make that case, particularly given the Commonwealth’s Courts’ sufficiently-established policy of very judicious determinations under this Rule. IV. MOTION FOR ATTORNEY’S FEES AND SANCTIONS PER MASS. R. CIV. P. RULE 11 ARE WARRANTED AND APPROPRIATE. As has been earlier briefed in Defendants’ prior-filed Motion, Rule 11(a) states in relevant part: " ... The signature of an attorney to a pleading constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay. For a willful violation of this rule an attorney may be subjected to appropriate disciplinary action." This lack of truthfulness with the Court is not only a violation of Rule 11, again, but has delayed a decision on the release from escrow funds that are critical to the Defendant’s continued operations. Defendants counsel’s ability to do our job is made more tenuous because of this conduct and the inability to get paid-for the better part of ayear. Accordingly, payment of attorney’s fees and sanctions are also appropriate. It is not disproportionately harsh given the facts and ramifications in this case, and to the integrity of the Judiciary. Impact in this case. To be sure, in addition to the elongating the deprivation of critical gross income from Defendants and their employees and obliges, the Defendants have also had to incur thousands of further fees responding to the same. Those fees my clients have been forced to incur, in addition to “legitimate” defense fees will be submitted to the Court (and served) promptly.6 More to the ® Counsel for Defendants have not submitted an Affidavit regarding their fees since October 9, 2020. They will file an updated document as soon as possible, (after double-checking for errors.)point, this Counsel contends, as a practical matter of reality, that in addition to the legal fees that Defendants have been forced to incur dealing with these types of filings and this type of litigation, that, frankly this 55 year-old Counsel’s, (in addition to my small two-person firm), ability to be paid, and to continue providing representation due to the palpable strains on my firm and my family’s ability to pay bills, including mortgage and college tuition, not to mention any ability fund a retirement IRA has and is being affected as a direct result. Defendants’ Counsel works in a small 2-person firm which can no longer absorb this lack of gross income, as it has best tried to do, unsuccessfully. Consistent with my clients’ recommendation of and this Court’s approval of allowing payment of Defense fees and costs was the basis of my withdrawal of my earlier-filed Motion to Withdraw, when the Court stated two things: that it would better certainly if Attorney LaPorte was to stay in the case; and that the right to counsel was fundamental. Defendant has been painted in a negative light by Counsel for Intervenor Plaintiff, as well as by Mr. Hashem’s counsel, however, in so “painting” Intervenor Plaintiff's counsel, has omitted many circumstances and facts to the contrary. Nonetheless, however this Court may have perceived or may perceive the Defendants does not excuse “Crossing of the Line” from, in this case, a clever attorney and Officer of the Court, whose intelligence would likely be indicative that these repeated misrepresentations were made to cover up prior misrepresentations, and therefore knowing and purposeful, (or made after forgetting prior misrepresentations, indicating perhaps only partial purposefulness with a reckless disregard to what the truth when she was drafting her narrative that she submitted to the Court.) In either event. the conduct is not in accord with the Duty of Candor and other ethical duties of any attorney. This motion has required 19.7 hours, of precious attorney time which couldn’t otherwise be applied to other matters needing real attention, and has cost the Defendant at the vastly reduced, (of 19.5%), hourly rate of $285 per hour, $5,614.50.7 Defendants’ Counsel has had to expend 11.4 hours equaling $3249.00, again, based on a greatly-reduced hourly rate, researching files and the like for purposes of evidence of padded billing and to review and respond to all of these pleadings containing the misrepresentations, filed in violation of Rule 11. Why should Defendants have to pay for those hour Defendants’ counsel incurred?®? 7 The standard hourly rate has been for the better part of a year $350 per hour. At least 2 other cases are being billed at $400 per hour, one involving an Appeal, and another involving a complex gender discrimination/Massachusetts Wage Act, et al issues which has been removed by the corporate Defendant(s) to Federal Court. ® Your Honor has not included intervenor Plaintiff's time spent crafting the responses to the Court’s Procedural and Supplemental Procedural Orders. ° Defendants’ Counsel also genuinely could have devoted that time to other, serious matters and/or paying clients, particularly because he was working, not just “covering” 2 lawyers’ full workloads, as Attorney 8Accordingly, Defendants submit that an award of sanctions at Defendants’ counsel’s standard hourly rate of $350 for those hours, totaling $10,885.00, is just and right. The fees and sanctions sought are a lot, but Defendants”’ counsel sincerely believes this matter is a serious one, happened causing harms, and needed to be prepared thoroughly. Those hours could have and would have been devoted to other cases, many of which are “behind.” (causing significant negative reaction from at least 2 important clients, and others, who however were successfully calmed time related to that forced uncomfortable exercise. Time for that is NOT included in this Request for Sanctions.) Likewise, this Court’s time should, as best as is possible, devoted to tuling on meritorious submissions. The Court may indeed consider and fashion a remedy for that harm. Regarding Defendant-Movants, however, they submit for the Court’s consideration that the amount of $10,815.00, which is based on a conservative calculation of hours, is right and just. VI. THE AWARD SHOULD BE STAYED TO THE END OF TRIAL. As pointed out by the Court, it has fair that the Parties as a matter of fairness, have knowledge of the amount of an Attorney’s Award by this Court, based on the financial documents required by and produced to the Court, and in addition to arguments Defendants’ documented and worsening financial condition, has not gotten better. Based on those submissions and the information submitted today, it is submitted that collection of this Award, or any Award, this Court may make after Reconsideration, should be stayed until the end of trial. VI. THE ATTORNEYS FEES ORDERED TO BE HELD IN ESCROW SHOULD BE RELEASED TO THE DEFENDANTS. As time has dragged on, including because of these unnecessarily extra Orders the Court has had to make and analyze, the financial situation of the Defendants has not gotten better, To the contrary, all loans sources of credit have been tapped. The Defendant law firm owes one of its two attorneys under contract tens of thousands of dollars, for work he has done in good faith. He has a family and obligations. Also, as the Court knows, there are 8 employees that work for D’Angelo Law Group, LLC. So far, none have been laid off to counsel’s knowledge, but hours have had to decreased. The Defendants owe this Counsel and his small firm significantly more. This firm has 4 employees all of whom have families. Working without getting paid for so long indeed affected ability to meet creditors’ bills, much less hand out any sort of Holiday bonuses to the staff. - Cossingham was hospitalized on an emergency basis, then out of the office for all of November until December 27, 2020, when he came back for % days of 4 hours. Defendants’ counsel is wiling to show the Court his billing records In Camera to corroborate same, and even serve the same to other counsel, after appropriate redaction. 9Defendants’ counsel, Attorney LaPorte, has a family, and amongst other things, college tuition, a mortgage and other extraordinary expenses related to medical bills, the recent loss of two vehicles and high costs related to a critical mechanical system at his residence. Regarding the equities of the parties, it was revealed, after this Court recently required Intervenor Plaintiff's ‘counsel, to divulge the payment amounts that her client had actually already been paid. It was not a small amount, nor small on a relative basis. And Intervenor Counsel’s client is scheduled to receive more. This Counsel is confident, haven spoken with her, that those obligations are secured. This Pandemic looks as if it has met its match in the form of vaccines, and that there will soon be an end, hopefully, to it, and recovery thereafter. However, the financial situation of the Defendants has not gotten better. Moreover, their debt obligation to this Counsel has been unnecessarily increased as a result of Intervenor Counsel’s conduct related to evasion of submission of actual billing rates in support of Intervenor Plaintiff's Petition for Attorney’s Fees. Further, despite this conduct, because said Counsel has boldly argued her client is entitled to be carved out a (not insignificant) portion from this income which is critically needed for Defendants’ survival and to meet its substantial obligations at this time, a decision on these revenues has been delayed by more than 2 months, when the health situation has exploded, further financially weakening Defendants and their fundamental right to defend themselves in a Court of Law. The equities, at this unprecedented time and under these circumstances, simply favor the Defendants. Accordingly, the Defendants request an Order releasing the Court-imposed escrow to the Defendants. VIL. FINAL OBSERVATIONS AND CONCLUSION In sum, regarding Intervenor Plaintiff's Petition for Fees and related pleadings subsequently filed and discussed herein, this sort or these sorts of misrepresentations in this case are not common and are not an issue in any cases cited by Intervenor Plaintiff's Counsel. Therefore, it is submitted that this Court re-evaluate the petition for fees, subsequent filings to the Court related to same, for fees individually, and our Order against this background and now equipped with revelation of these representations and tactics-which are included in the submitted “invoices”. Upon reconsideration, an award of no attorneys’ fees may well be in order. The Court has discretion to do so, as was indicated in the Second Procedural Order, dated 12/16/2020. Any impact to the Intervenor Plaintiff herself, to the extent her Counsel is voluntarily sharing any attorneys’ fees with her, is not the fault or caused by Defendants, nor by this Court. Counsel for Intervenor Plaintiff has not served her client well, and has unfairly damaged Defendants and their counsel, monetarily. Settlement opportunities have been lost, elongated litigation has ensued, and attorneys’ fees to defend, and unnecessary fees have been accumulated by Intervenor Plaintiff-which are supported by fraudulent pleadings and exhibit. The conduct has, 10perhaps, not entirely brought the parties, including her client, into the depths of a Pandemic- induced economic depression where collection, which Counsel says she is championing, to satisfy at least some of her remaining judgment is now much more threatened and difficult. The Defendants also standby their previously submitted positions.!° This brief is long, and not wished by Defendants, and we are sure, the Court should not have been expected it on its docket but these episodes of fraud upon the Court have been continuous, has affected the civility of this litigation and caused unnecessary fees, and waste of both legal and judicial resources. These events and deceit have gone beyond the rules governing litigation, affected a real possibility a settlement could have been reached, and most importantly, have included multiple deceptions directly made in response to this Court’s Orders. It is serious. Redress is required. Therefore, in light of all of the above herein, and submissions of pleadings, affidavits and financial information this Court has already gathered Defendants, through their counsel, ask the Court to grant these Motions including: 1) To Reconsider its Award of Attorney’s Fees to Counsel for Intervenor Counsel; 2) (a) For an Order of Reimbursement of unnecessarily caused Attorney’s fees caused to Defendants, and (b) For Sanctions, for violations of the provisions regarding certification by attorneys of statements made in pleadings mandated in Mass R Civ. P 11(a); and 3) For and Order releasing from escrow the funds to Defendants, on an emergency basis, based on a weighing of the equities, including the adverse effects to Defendants’ ability to remain in business, to pay employees and Counsel; and 4) For a Stay on any Collection Attempts of Attorney’s Fees Awarded. 4° *the lack of essentiality and necessity of the petitioned-for fees; *intentional padding of invoices submitted to this Court, alteration and re-submission of same to this Court, and untruthful response to this Court’s question in its Second Procedural Order, which the Court was patient enough to issue; *that the Summary Judgment is interlocutory; *the significant extra fees Defendants, and time, their Counsel have had to incur responding to, inter alia, this Petition; and or in the alternative; *that any award should be stayed until the completion of trial, in light of the circumstances surrounding this case, as they are and have been, and because all of Intervenor Plaintiff's claimed fees through trial will be known, should she prevail. 11Dated: February 4, 2021 Respectfully submitted, Defendants, By their attorneys /s/Thomas C. LaPorte Thomas C. LaPorte, Esq. Cossingham Law Office, P.C. 30 Massachusetts Avenue, Ste 404 North Andover, MA 01845 978-685-5686 tlaporte@acossinghamlaw.com BBO No. 634194 12CERTIFICATE OF SERVICE I, Thomas C. LaPorte, Esq., hereby certify that on this 4" day February of 2021 served a copy of the foregoing to all parties via electronic mail and by first-class US Mail to: Mernaysa Rivera-Bujosa, Esq Rivera Bujosa Law, PC Shipway Place Unit C2 The Charlestown Navy Yard Charlestown, MA 02129 mernaysa@riverabujosalaw.com Albert I. Farrah, Esq. ~ Farrah and Farrah 800 Boylston Street, Suite 1600 Boston, MA 02199 Email: alfi@farrah-law.com Thomas C. LaPorte, Esq. 13ee COSSINGHAM LAW OFFICE, PC 30 Massachusetts Avenue, Suite 404 North Andover, MA 01845 TO: Albert I. Farrah, Esq. Farrah and Farrah 800 Boylston Street, Suite 1600 Boston, MA 02199 * 000.298 qyoupont ZP O18HUT NANT AANNATTNNNTTINANTGS COSSINGHAM LAW OFFICE, PC 30 Massachusetts Avenue, Suite 404 North Andover, MA 01845 TO: Memaysa Rivera-Bujosa, Esq, Rivera-Bujosa Law, PC Shipway Place, Unit C2 The Charlestown Navy Yard Boston, MA 02129 & be Fat dE FRST-OLASSHINL Rf soos? sve 02/04/2021 ZIP 01845 4 LE: waves