June 21, 2014

Kerik Answers Tacopina's Motion to Dismiss

Bernie Kerik and Joe Tacopina Square Off

It was already on, so now it's really, really on. Bernie Kerik's legal team has filed its opposition to Joe Tacopina's motion to dismiss Kerik's amended pleading and for sanctions against both Bernie and his lawyers. That this litigation was chock full of personal animosity between the litigants was clear. These papers confirm that it is getting personal for the lawyers as well.

For example, in the second paragraph of the introduction to his memorandum of law, Kerik's attorney Tim Parlatore, writes,
Defendant’s Motion to Dismiss is purely an emotional outburst1, severely lacking in substance, as he chooses to quote irrelevant materials outside the scope of the complaint, in a feeble effort to employ personal attacks on Plaintiff to compensate for the utter lack of legal support for his motion.
And in footnote 1, Parlatore goes a step further,
Defendant’s attorney, Judd Burstein, who is well known for his bullying tactics, appears to have become very personally emotionally invested in this case. Although the prior motion to disqualify has been withdrawn, his personal involvement in Tacopina’s activities have caused him to be named in the complaint as a co-conspirator in one of the racketeering acts, as well as a representative acting on Tacopina’s behalf for the other causes of action. The motion to disqualify will be re-filed after the disposition of this motion, as Plaintiff will need to depose Burstein in discovery.
There are then mentions of other people coming forward with various stories that suggest Tacopina lied to, cheated, and otherwise betrayed his clients, such as one claim that Tacopina charged a client for monies that he said he was paying to Kerik's security firm for services for that client, when it fact it never happened. Parlatore also writes, "Tacopina advertises on his website that he won a $9 million dollar jury verdict in a civil case. However, we are informed that this is a complete fabrication."

I should say this aspect of Kerik's response is a bit underhanded. If you have additional facts to plead then you ought to amend your complaint. But Parlatore concedes in his brief that these claims are unverified. If that's the case, then he really shouldn't bring them up at all. What seems to to have happened is that various people emerged with their own tales of woe. These may be completely, partially, or not even remotely accurate or reliable claims. Parlatore knows he can't adopt the claims, but he can't resist throwing them out there just the same. While it may be good grist for a newspaper story, it's not the best practice.

There's plenty more, and I haven't gotten to the merits of Tacopina's motion, which is grounded in no small part on statute of limitations arguments (meaning that Kerik waited too long to bring certain claims), as well as challenges to the legal sufficiency of the pleading, which is another way of saying that even if Kerik is factually correct, it doesn't make out a violation of any statutory or common law.

These are all discussions for another day, and Judge Koeltl's ruling will help bring some clarity to the legal debates.

A copy of Kerik's memorandum of law is here:

I, however, am more interested in the factual disputes, many of which are easily resolved. For instance, did Tacopina have at least five long proffer sessions with the government, as alleged, or was it only one or two short sessions to identify some documents? And if it is the former, why was he there and what did he say? Did he give up info on his good friend and client, or roll over on other colleagues (Ron Fischetti?) and clients? These sorts of questions can be summarily answered by the government.

Many of the racketeering allegations, particularly the more salacious claims, may be harder to prove, but promise hours of entertainment during discovery.


  1. Michael,

    Thank you for your coverage of this important lawsuit. I take no sides in this fight but I believe, as you say, the basic facts of 'proffer' agreements need to be answered and fully disclosed. If the government is hiding these documents, or prior impeachable records, that would have slanted the past, it will be a Red Flag. Moreover, if, and I say that as a spectator, "if," the A-Rod lawyer was capable or even threatened or pressured to turn on his clients, including Mr. Kerik, to cover his butt, I believe that is a pretty serious issue as it will undermine the basic principle of a breach of privacy and trust - all components of the age old "attorney-client privelege." The very foundation of Western law. If this absolute litigation right is violated, by the government, or, lawyers not telling the truth, no client, citizen, or party to a lawsuit is safe from possible interference for political reasons - especially under secrecy. In this matter, so many weird things have been reported on, to me, something is simply "not" adding up here. "IF" the government and A-Rod lawyers are hiding past impeachable information, as claimed by Kerik's lawyer, their inteference and threats may backfire and their actions may, as the Kerik lawyer call, should be investigated by an independent investigator. If Bernie has made-up the dirt about the A-Rod lawyer, he takes a big risk. It is hard to believe, however, after leaving prison, Bernie simply went crazy and wants to have more trouble. He is not that unwise. Whether you like him or not, Bernie, with a head that has no hair like Mr. Clean and with an ex-lawyer who has extra greasy wavy hair that glistens, the fact is, Kerik was one step away from Homeland Security Director and wanted to appoint the A-Rod lawyer as his advisor - can you imagine that senario....lol ?

    These two meglomanics manics who are in mortal combat - like the Gorn and Capatain Kirk - and as Len Levitt reported, only one of the two can be telling the truth. Someone is lying....someone is lying to the Courts, Press, all of us....why....what is the secret? So far, I do not like to see threats in litigation, especially as a means to silience the fact finding and if that pattern continues....well....it will speak volumes ..

    Michael, I demand you please pass that pop corn bag over to me and please pass a couple Twizzlers and a cheese pretzel stick...this is a wild one

    1. Just a couple of thoughts. The first is Levitt may not be entirely correct: they both could be lying. The second is that I agree that a most interesting point, which nobody really says anything about, is the role of the gov't. If Kerik is correct about the proffers and the snitching, then the government facilitated it and then hushed it up. It's not really wrong, but yet it's wrong just the same. Finally, I put my name on my posts. You ought to consider doing the same.