Filing Electronically Filed PM JEFFREY EPSTEIN Plaintiff/Counter-Defendant vs SCOTT ROTHSTEIN individually and BRADLEY EDWARDS individually Defendant/Counter-Plaintiffs I IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO RESPONSE IN OPPOSITION TO PLAINTIFF/COUNTER-DEFENDANTS MOTION FOR FEES AND COSTS Defendant/Counter-Plaintiff BRADLEY EDWARDS by and through undersigned counsel hereby files this Response in Opposition to Plaintiff/Counter-Defendants Motion for Fees and Costs and as grounds therefor would state INTRODUCTION This case arises from Epsteins lawsuit against Edwards when Epstein sued Edwards merely for his legal representation of people accusing Epstein of misconduct Edwards counter sued Epstein for inter alia malicious prosecution Eventually Epstein voluntarily dismissed his own lawsuit As to Edwards counter-claim Epstein claimed that he was immune from liability under the litigation privilege even though Epstein is a non-lawyer This Court dismissed Edwards lawsuit concluding it was bound under case precedent from a single case from the Third District to apply the litigation privilege Epstein seeks attorneys fees pursuant to his Proposal for Settlement served in Over Edwards objection A A 4A E0 A4 DE a qr?q rq qrCX HhL Kg lg d?a d6U a M3 flW y??S m/y t0 I F/Z V/j 1a qC KS u?v vZ O5 a qr rCX qC 0V I I dc rM?M rM 10Cy n??m?n k?o?h I A I w?!ac qr MCX 10Cy ITy qr M3 Ґ??1rA5R h?H?T3P K?z X?K I v"x i X5 EO5 5a r?q CX 9r Cy rq rqC M3 ş?:c p/p0 5H V)V 6T Y2 G5 qrM?r?qr?r9 q?10Cy rCX qr l1 X?l 3K fm?Q Z2f CX CX gT L??T 2E Cy 3P EM3 J4T L?h??M q?ᡚ?Y r??O?rJt CTX X0T1i k3v Jh/e0h1 H(K W/Q0 CTX j?!k 5B r2 CTX A A A 4v z"p A A A0A?A AK CTX A A?!k CX qCX YCX i!d A fi8 l8 yuZ 6L pH m?c sP;0 6ZR Ni P0 0Q X(P0s s(s p0 Pp CTX qq dR B/J Va A y!k N?M??N rC f?Nla3 Yz N?q qr NEeD K?i N?M?qr EeD k??O I CTX U3 U3 U3 U3 S6 E"L I I I5K7C:I 9O U3 Cn qrr qr q??r?q 9qr CTX G5 qr CX rC l0 WS zN pf1 ODV8L?m jC1DxV CTX CTX A qr 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1K F1 KV yW Gd T?H CTX CTX I CK M?qr K?SK?PQZ I IRZX 8YCX 10Cy qr CX kv zg S5kB??a iG wA CTX U2 6Y CTX U2 6Y I K,,j j,s 6Y P!p qr 10Cy qr YY G?O 9K mSd X0 9r?yal 1d bY0 XNf??qN D?J CTX P!Z b!o C,C qrM 10Cy qr8 I fX2 9R lO KV CTX Oo CTX A qr r?qr rq YY Lsy7H4 C,6E IL CTX U3 CTX J,O3_3xx qrM?r q?CX Y9/C 9CX CTX Y10Cy CX CX CX YC YY FV uTl bEWa ȓjJ-8 Gc G??Q9E 9Wq CTX CTX Up i I A 9_ qr qr YY D.X 7s F??Y bc3_c iH CTX CTX A qr 10Cy YY EMq 7H AY mK9Z BY A2 P6L N7 CTX CTX a I I i qr rC CTX CTX 7O I FMM qr qr i I I3 CTX Z6 I L(K4 P:u Z6P CTX y8 Epstein has set this matter for UMC calendar this upcoming Monday June If this Court entertains this at UMC this Court should stay this fee entitlement proceeding Respectfully there is a legitimate basis for appellate reversal of the dismissal and appellate reversal will automatically negate any basis for fees In moving for and obtaining dismissal Epstein relied on a decision from the Third District Court of Appeal See Wolfe Foreman So.3d Fla 3d DCA No other reported decision in Florida or any jurisdiction in the country has extended absolute immunity of the litigation privilege to bar an otherwise properly pled claim for malicious prosecution The parties will unnecessarily waste resources and the valuable judicial resources of this Court addressing fee entitlement and fee amount if the Proposal is deemed valid Furthermore either party may appeal a fees decision by this Court which would only further burden the resources of their parties and the judicial system Alternatively if considered on the merits this Court should deny Epsteins Motion for Fees because he served a defective Proposal for Settlement He required Edwards to sign a confidentiality clause with vague and open-ended terms Controlling precedent from the Fourth District precludes this type of clause Furthermore Epsteins Proposal is invalid because he failed to assign a monetary value to the confidentiality clause and it is now impossible for him to prove he has beaten the Proposal Epsteins Proposal for Settlement Epsteins Proposal stated that as a condition of this Proposal Edwards was required to execute the General Release attached as Exhibit A See is Proposal for Settlement First Edwards was required to remise release acquit and discharge Epstein from all causes of action arising from this lawsuit Exhibit A at Additionally Edwards was required to agree to confidentiality Exhibit A at pp As further consideration I agree not to disclose the details of this release in settlement of all claims including the nature or the amount paid and the reasons for the payment to any person other than my lawyer accountant income tax preparer or by valid order of a Court of competent jurisdiction whether directly or indirectly To the extent that I must disclose any of the above information to any of the above named persons I shall instruct that person or persons to keep the information confidential Epstein did not assign a monetary amount for the confidentiality clause nor did he explain what portion of the was for compensatory damages Epstein did not state the length of time for the confidentiality or explain the penalty for breaching the clause Moreover Epstein did not explain if he was subject to confidentiality i.e whether he was allowed to freely disclose matters regarding the lawsuit or settlement ARGUMENT Case Law on Proposals for Settlement Because Fla Stat and Fla.R.Civ.P act as penalizing mechanisms in derogation of the common law rule otherwise requiring each party to pay its own fees the statute and rule must be strictly construed See Campbell Goldman So.2d Fla Consistent with this principle all terms of an offer must be stated with particularity See Papouras BellSouth Telecommunications Inc So.2d Fla 4th DCA As the First District Court of Appeal reminded parties earlier this week in striking a Proposal for failing to comply with Rule provision on punitive damages see R.J Reynolds Tobacco Ward WL Fla 1st DCA June Our supreme court has recently and repeatedly said that the rule and statute must be strictly construed In Ward the First District also cited numerous other cases where courts invalidated other proposals for failing to strictly comply with the rule and statute Fla.R.Civ.P also requires proposals to state with particularly all relevant conditions Subsection requires proposals to state with particularity all nonmonetary terms A proposal fails to satisfy the particularity requirement if an ambiguity could reasonably affect the offerees decision to accept or reject See Nationwide Mut Fire Ins Co Pollinger So.3d Fla 4th As the Supreme Court has noted State Farm Mut Auto Ins Co Nichols So.2d Fla The rule intends for a proposal for judgment to be as specific as possible leaving no ambiguities so that the recipient can fully evaluate its terms and conditions Furthermore if accepted the proposal should be capable of execution without the need for judicial interpretation Proposals for settlement are intended to end judicial labor not create more The rule requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification Nichols So.2d at It is well-settled that the burden of clarifying the intent or extent of a settlement proposal cannot be placed on the party to whom the proposal is made Saenz Campos So.2d Fla 4th DCA Epsteins Proposal for Settlement is Invalid Because it Failed to Include a Summary of Important Confidentiality Terms As noted above Epsteins Proposals required Edwards but perhaps or perhaps not Epstein to keep confidential the details of the settlement The Proposal is invalid because Epstein failed to explain material terms of the confidentiality clause and its implications In Swartsel Publix Supermarkets Inc So 2d Fla 4th DCA the Fourth District invalidated an offer of judgment based in large part on similar deficiencies in the confidentiality provision So.2d at For example with regard to the confidential settlement agreement being proposed it would be crucial to know what is being made confidential who is covered by the confidentiality whether there is any period to the confidentiality and what the remedies are in the event of a breach Here the confidentiality provision did not explain or describe the terms of that agreement There was no mention of the period of this confidentiality Significantly Epstein did not suggest what the remedies would be in the event of a breach Would Epstein try and recover liquidated damages from Edwards if he breached the agreement How would Edwards have to pay for a breach Would he forfeit a portion of the settlement funds All of it Would Epstein sue Edwards for damages beyond the settlement funds The inclusion of these terms was critical to Edwards ability to make an informed decision of acceptance or rejection One aspect of Swartsel was disagreed with by the Supreme Court Nichols In Swartsel the Fourth District held parties were required to specify all terms of a settlement So.2d at Then in Nichols the Supreme Court held parties could summarize all material terms within the proposal as long as the proposal is sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification So.2d at Swartsel discussion of the importance of including confidentiality terms has never been disagreed with by any appellate court Indeed in Nichols while the Supreme Court held a summary of release terms was sufficient the Court also explained that the proposal must eliminate any reasonable ambiguity about its scope So.2d at Epsteins Proposal necessarily did not eliminate any reasonable ambiguity about its scope He neglected to include relevant and material terms which any person in Edwards position would want to have specified within the Release This is particularly true with an adversary such as Epstein who after all sued Edwards for representing people accusing Epstein of misconduct Epsteins Confidentiality Clause is Also Invalid Because He Can Never Prove He Has Obtained a Better Result than He Proposed Within His Release Epsteins Proposal is also invalid when he failed to apportion the monetary value of the confidentiality provision It is clear that Epstein believed there was some value to this provision See Danow Law Office of David Borack P.A WL at 11th Cir Feb The Law Offices Offer of Judgment also contained a condition-that Danow sign a confidential release While it is difficult to assess the value of this condition it presumably was worth something to the Law Office signifying that Danows ultimate recovery which did not contain this condition was more favorable to Danow than that provided in the Offer of Judgment italics in original In Danow a defendant law firm offered to settle a debt collection lawsuit brought against it by offering in damages and in fees and costs The defendant law firm did not assign value for a required confidentiality clause The plaintiff rejected the offer the lower court eventually awarded the plaintiff in damages and both parties moved for fees The lower court granted the plaintiffs request for fees On appeal the defendant law firm asserted i1 was entitled to fees because the plaintiff received exactly what the defendant law firm offered him and which he rejected The Eleventh Circuit affirmed the denial of fees Fed Appx at The Eleventh Circuit recognized that because the confidentiality clause had some unspecified in the Proposal monetary value the defendant law firm could never prove if it had beaten the offer at the conclusion of the case After all the defendant law firm now has no confidentiality clause Similarly in this case the fact the confidentiality clause had some monetary value makes it impossible to know whether Epstein beat the Proposal The Fourth District has specifically contemplated that so-called non-monetary terms can have a monetary value a principal which made the proposal invalid in Zalis M.E.J Rich Corp So.2d Fla 4th DCA In that case the inclusion of a condition of acceptance that the plaintiff and his attorneys would ever again bring another lawsuit against defendant and those associated with him rendered the proposal invalid The appellate court explained Id at the condition that a plaintiff relinquish all rights to sue about anything at any point in the future is intrinsically a condition incapable of being stated with the particularity required under section of the Florida Statutes No reasonable estimate can be assigned to such a waiver The defendants offer simply did not give the plaintiff a determinable value with which to weigh his chances at trial The Fourth Districts reasoning was that the condition had a value which could not be known thereby making the proposal invalid Similarly Judge Griffin noted in Dryden Pedemonti So.2d Fla 5th DCA specially concurring that the inclusion of such non-monetary terms with monetary value thwarted the calculation necessary to uphold the proposal Section Florida Statutes appears to contemplate a straightforward and exclusively mathematical test compare the amount of the rejected offer to the amount of the plaintiffs verdict and apply the twenty-five percent differential Under section you offer an amount not a deal You cant apply mathematics to non-monetary offers As a later panel of the Fifth District noted One might logically posit in fact that the only enforceable non-monetary condition allowable under the rule is one that does not go beyond what the offeror would be entitled to by operation of law upon settlement Sparklin Southern Indus Assocs So.2d n.l Fla 5th DCA quoting Dryden So.2d at Griffin specially concurring Judge Cope of the Third District came to the same conclusion in a special concurrence in Earnest Stewart Inc Codina So.2d Fla 3d DCA I disagree with the majority opinion however insofar as it suggests that a person making an offer of judgment could include the requirement that the offeree enter into a hold harmless agreement A hold harmless agreement is in substance a contract of indemnity It is a contractual arrangement whereby one party assumes the liability inherent in a situation thereby relieving the other party of responsibility Blacks Law Dictionary 6th The person making the offer of judgment would be demanding that the offeree hold the offeror harmless in the event of claims by third persons who are not parties to the action Of course if the case were tried to conclusion there is no procedure by which the winning party can compel the losing party to execute a hold harmless agreement The majority opinion in Codina was abrogated on different point in State Farm Mutual Ins Co Nichols So.2d Fla Judge Cope finished by explaining that because the theory of Fla Stat is to have an apples to apples comparison between the offer and the judgment obtained in financial terms the inclusion of a demand for another condition like a hold harmless agreement in the offer destroys the comparison because the financial worth of the offer cannot be meaningfully compared to the financial result of the trial The confidentiality clause in this case similarly destroys the comparison Epstein offered money but with a confidentiality clause Now Epstein does not owe Edwards any money but he also has no confidentiality clause Which is the better result for Epstein This Court cannot make a conclusion that no money owed plus no confidentiality clause better result for Epstein So Epstein cannot claim entitlement to fees because he cannot prove he has beaten his Proposal or even that he has equaled his Proposal As the Florida Supreme Court explained in invalidating Proposals which include equitable claims the rule and statute require a pure mathematical comparison between offer and result This Court cannot determine if Epstein has any better any worse or the same result See Diamond Aircraft Indus Inc Horowitch So.3d Fla As further explained by the appellate decisions above Epstein required Edwards to execute an agreement with the confidentiality clause which also definitely goes beyond what could be achieved in a trial of the claim See Llt Dryden Sparklin supra The Confidentiality Agreement would give Epstein rights that exceed those which could be obtained by a resolution of Edwards claim The Clause is accordingly not contemplated or permissible under Rule or Some non-monetary terms are permissible An example is a requirement that a party execute a stipulation of dismissal within ten days But the ability to include some non-monetary terms does not mean that all non-monetary terms are proper In this case the addition of language attempting to get agreements and rights which are not part of the dispute makes the offer invalid Because the offer would actually increase Edwards risk it is worth less than nothing to him A math example demonstrates that Epstein cannot prove he has beaten or even equaled his Proposal and that confidentiality clauses can never fit within Rule and If for sake of argument the Confidentiality Agreement has a value of then the net damages value of the proposal would have been But the Confidentiality Agreement could just as well be valued at the full to Epstein or even beyond that value to him In that scenario the net damages value of the proposal could be or even have a negative value It is easy to understand that for a public figure like Epstein the Confidentiality Clause can be the entire value of the Proposal for Settlement Epstein now has no confidentiality clause and a judgment A zero verdict/judgment at the end of a contested case would be exactly the same as the compensatory value of the Proposal And if the confidentiality clause were worth more than the offer to Epstein then he now has less than he offered and has achieved a worse result Epstein did not beat or even equal the proposal and is not entitled to fees Epstein could never prove what the value of the proposal was so he can never prove compliance with Fla Stat This Court could not enforce Epsteins proposal without that proof Accordingly this Court should defer ruling on Epsteins Motion for Fees or alternatively if heard on the merits this Court should conclude Epstein is not entitled to Fees I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list by email on June jw William King Esq SEARCY DENNEY SCAROLA BARNHART SHIPLEY P.A Palm Beach Lakes Blvd West Palm Beach FL eservice searcylaw.com wbk searcylaw.com and BURLINGTON ROCKENBACH P.A Courthouse Commons/Suite West Railroad A venue West Palm Beach FL Attorneys for Bradley Edwards aah FLAppellateLaw.com jew FLAppellateLaw.com By Andrew A Harris ANDREW A HARRIS Florida Bar No Epstein Rothstein/Edwards Case No Chester Brewer Jr Esq CHESTER BREWER JR P.A Australian Ave Ste West Palm Beach FL wcblaw aol.com wcbcg aol.com Attorneys for Jeffrey Epstein Fred Haddad Esq FRED HADDAD P.A Financial Plaza Ste Fort Lauderdale FL haddadfm aol.com fred fredhaddadlaw.com dee fredhaddadlaw.com Attorneys for Jeffrey Epstein Mark Nurik Esq LAW OFFICES OF MARC NURIK Broward Blvd Ste Fort Lauderdale FL marc nuriklaw.com Attorneys for Scott Rothstein SERVICE LIST Jack Goldberger Esq ATTERBURY,GOLDBERGER WEISS P.A Australian Ave Ste West Palm Beach FL goldberger agwpa.com smahoney agwpa.com Attorneys for Jeffrey Epstein Tonja Haddad Coleman Esq TONJA HADDAD P.A SE 7th Street Ste Fort Lauderdale FL tonj a tonjahaddad.com efiling tonj ahaddad com Attorneys for Jeffrey Epstein Bradley Edwards Esq FARMER JAFFE WEISS ING EDWARDS FISTOS LEHRMAN P.L Andrews Ave Ste Fort Lauderdale FL staff.efile pathtojustice.com brad pathtoj usti ce com
