u.s. district courtdistrict of colorado (denver)civil ... web viewkelley lynch c/o phil spector phil...

U.S. District CourtDistrict of Colorado (Denver)

CIVIL DOCKET FOR CASE #: 1:05-cv-01233-LTB

Greenberg & Associates, Inc. et al v. Cohen et alAssigned to: Judge Lewis T. BabcockCase in other court: Boulder County District Court, 05CV507

Cause: 28:1332 Diversity-Property Damage

Date Filed: 07/01/2005Date Terminated: 10/21/2008Jury Demand: BothNature of Suit: 380 Personal Property: OtherJurisdiction: Diversity

DefendantKelley Lynch a United States citizen residing in California and John Doe, Nos. 1-25

represented by Kelley Lynch C/o Phil Spector Phil Spector International 686 South Arroyo Parkway Penthouse Suite Pasadena, CA 91105 Email: [email protected] PRO SE

Date Filed # Docket Text

07/01/2005 1 NOTICE OF REMOVAL from Boulder County District Court, Case Number 2005CV507. ( Filing fee $ 250 Receipt Number 261197), filed by Robert Kory. (Attachments: # 1 Exhibit A# 2 Exhibit B, Part 1# 3 Exhibit B-Part 2-a# 4 Exhibit B, Part 2-b# 5 Exhibit B, Part 3# 6 Exhibit B, Part 4# 7 Exhibit B, Part 5# 8Exhibit B, Part 6# 9 Exhibit B, Part 7# 10 Exhibit B, Part 8# 11 Exhibit B, part 9# 12 Exhibit B, part 10# 13 Exhibit B, part 11# 14 Exhibit B, part 12# 15 Exhibit B, part 13# 16 Civil Cover Sheet and Supplement# 17 Civil Cover Sheet State Court)(bpm, ) Additional attachment(s) added on 7/5/2005 (bpm, ). Exhibits 1 through 10 to the State Court Complaint were attached on 7/14/05 (gms, ). (Modified on 7/14/2005 to indicate attachments added)(gms, ). (Entered: 07/05/2005)

07/08/2005 2 Stipulated MOTION For Extension of Time to Respond to Complaint by Defendant Robert Kory. (Livingston, Randall) (Entered: 07/08/2005)

07/11/2005 3 Minute ORDER granting 2 Dft Kroy's Stipulated Extension of Time to Respond to Complaint to and incl 8/1/05, by Chief Judge Lewis T. Babcock on 7/11/05. (erv, ) (Entered: 07/11/2005)

07/15/2005 4 Docket Annotation Exhibits 1 through 10 to the State Court Complaint were added to the 1 Notice of Removal entry as they were inadvertently not attached at case opening. Text only entry - no document attached. (gms, ) (Entered: 07/15/2005)

07/21/2005 5 Stipulated MOTION For Extension of Time to Respond to Complaint by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 07/21/2005)

07/22/2005 6 Minute ORDER granting 5 Dft Cohen's Stipulated Motion for Extension of Time to Respond to Complaint to and incl 8/10/05 by Chief Judge Lewis T. Babcock on 7/22/05. (erv, ) (Entered: 07/22/2005)

07/29/2005 7 Unopposed MOTION For Extension of Time to File Pleadings in Response to Complaint by Defendant Robert Kory. (Livingston, Randall) (Entered: 07/29/2005)

08/02/2005 8 AMENDED COMPLAINT and Jury Demand against all defendants, filed by Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical

https://ecf.cod.uscourts.gov/doc1/0390107080



























Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit Exhibit 1-2# 2 Exhibit Exhibit 3 - part 1 of 2# 3 Exhibit Exhibit 3 - part 2 of 2# 4 Exhibit Exhibit 4-5# 5 Exhibit Exhibit 6# 6 Exhibit EXhibit 7-10)(Chipman, David) (Entered: 08/02/2005)

08/02/2005 9 Minute ORDER granting Dft Kory's Unopposed 7 Motion for Extension of Time to File Pleadings in Response to Complaint to 8/10/05, by Judge Lewis T. Babcock on 8/2/05. (gms, ) (Entered: 08/02/2005)

08/09/2005 10 STATEMENT Re: Due Date for Filing on Amended Complaint by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 08/09/2005)

08/10/2005 11 MINUTE ORDER: Pursuant to Defendant's Docketing Statement re: 10 Due Date for Filing on Amended Complaint, Defendants Cohen and Kory's responsive pleading to the Amended Complaint is due on or before August 19, 2005, by Judge Lewis T. Babcock on 8/10/05. (emksl, ) (Entered: 08/10/2005)

08/18/2005 12 NOTICE of Entry of Appearance by Susan Ashlie Beringer on behalf of Leonard Cohen (Beringer, Susan) (Entered: 08/18/2005)

08/19/2005 13 MOTION to Dismiss by Defendant Robert Kory. (Livingston, Randall) (Entered: 08/19/2005)

08/19/2005 14 BRIEF in Support re 13 MOTION to Dismiss filed by Defendant Robert Kory. (Attachments: # 1 Affidavit Robert Kory)(Livingston, Randall) (Entered: 08/19/2005)

08/19/2005 15 MOTION to Dismiss for Lack of Jurisdiction by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 08/19/2005)

08/19/2005 16 Proposed Pretrial Order by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 08/19/2005)

08/19/2005 17 DECLARATION of Leonard Norman Cohen by Defendant Leonard Cohen. (Attachments: # 1 Exhibit Cohen Declaration Exhibit 1# 2 Exhibit Cohen Declaration Exhibit 2)(Beringer, Susan) (Entered: 08/19/2005)

08/19/2005 18 DECLARATION of Ashlie Beringer by Defendant Leonard Cohen. (Attachments: # 1 Exhibit Part 1 to Exhibit A# 2 Exhibit Part 2 Exhibit A# 3 Exhibit B# 4Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F)(Beringer, Susan) (Entered: 08/19/2005)

08/23/2005 19 SUMMONS Returned Executed by all plaintiffs. Kelley Lynch served on 8/10/2005, answer due 8/30/2005. (Chipman, David) (Entered: 08/23/2005)

08/30/2005 20 BRIEF in Opposition re 15 MOTION to Dismiss for Lack of Jurisdiction or Alternatively, to Stay the Proceedings filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit Exhibit 1# 2Exhibit Exhibit 2 Part 1# 3 Exhibit Exhibit 2 Part 2# 4 Exhibit Exhibit 2 Part 3# 5 Exhibit Exhibit 2 Part 4# 6 Exhibit Exhibit 2 Part 5# 7 Exhibit Exhibit 2 Part 6#8 Exhibit Exhibit 2 Part 7# 9 Exhibit Exhibit 2 Part 8# 10 Exhibit Exhibit 2 Part 9# 11 Exhibit Exhibits 3 and 4# 12 Exhibit Exhibit 5# 13 Exhibit Exhibits 6 - 9#14 Exhibit Exhibits 10 - 12# 15 Exhibit EXhibit 13)(Chipman, David) (Entered: 08/30/2005)

08/30/2005 21 CORPORATE DISCLOSURE STATEMENT of Greenberg & Associates Securities, Inc. dba Agile Group by Plaintiff Greenberg & Associates Securities, Inc.. (Chipman, David) (Entered: 08/30/2005)

08/30/2005 22 CORPORATE DISCLOSURE STATEMENT of Agile Group, LLC by Plaintiff Agile


















































Group, LLC. (Chipman, David) (Entered: 08/30/2005)

08/30/2005 23 CORPORATE DISCLOSURE STATEMENT of Tactical Allocation Services, LLC dba Agile Allocation Services, LLC by Plaintiff Tactical Allocation Services, LLC. (Chipman, David) (Entered: 08/30/2005)

08/30/2005 24 CORPORATE DISCLOSURE STATEMENT of Greenberg & Associates, Inc. dba Agile Advisors Inc. by Plaintiff Greenberg & Associates, Inc.. (Chipman, David) (Entered: 08/30/2005)

09/09/2005 25 First MOTION for Extension of Time to File Response/Reply as to 13 MOTION to Dismiss of Defendant Robert Kory by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Proposed Order (PDF Only) Proposed order)(Chipman, David) (Entered: 09/09/2005)

09/12/2005 26 Minute ORDER granting Plaintiff's 25 Unopposed Motion for Extension of Time to Respond to the 13 MOTION to Dismiss of Defendant Robert Kory to 9/26/05, by Judge Lewis T. Babcock on 9/12/05. (emksl, ) (Entered: 09/12/2005)

09/14/2005 27 REPLY to Response to Motion re 15 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Leonard Cohen. (Attachments: # 1 Affidavit Supplemental Declaration of Ashlie Beringer# 2 Exhibit A to Supplemental Declaration of Ashlie Beringer# 3 Exhibit B to Supplemental Declaration of Ashlie Beringer# 4Exhibit C to Supplemental Declaration of Ashlie Beringer# 5 Exhibit D to Supplemental Declaration of Ashlie Beringer# 6 Exhibit E to Supplemental Declaration of Ashlie Beringer# 7 Exhibit F to Supplemental Declaration of Ashlie Beringer# 8 Exhibit G to Supplemental Declaration of Ashlie Beringer# 9 Exhibit H to Supplemental Declaration of Ashlie Beringer# 10 Exhibit I to Supplemental Declaration of Ashlie Beringer)(Beringer, Susan) (Entered: 09/14/2005)

09/15/2005 28 CERTIFICATE OF SERVICE re 27 Reply to Response to Motion,,, by Defendant Leonard Cohen (Beringer, Susan) (Entered: 09/15/2005)

09/16/2005 29 MOTION to Deposit Funds Under Federal Rule of Civil Procedure 67 for An Order Permitting the Deposit of Interpleaded Funds Into Registry of the Court by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Proposed Order (PDF Only) Proposed order)(Chipman, David) (Entered: 09/16/2005)

09/20/2005 30 BRIEF in Opposition re 29 MOTION to Deposit Funds Under Federal Rule of Civil Procedure 67 for An Order Permitting the Deposit of Interpleaded Funds Into Registry of the Court filed by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 09/20/2005)

09/21/2005 31 ORDER holding in abeyance Plaintiff's Motion 29 for an Order Permitting the Deposit of Interpleaded Funds into Registry and Defendant Cohen's 30 Opposition. The parties are directed to file status reports every 20 days until further order of Court. Signed by Judge Lewis T. Babcock on 9/21/05. (emksl, ) (Entered: 09/22/2005)

09/26/2005 32 BRIEF in Opposition re 13 MOTION to Dismiss of Defendant Robert Kory filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit Exhibit A - Part 1# 2 Exhibit Exhibit A - Part 2# 3Exhibit Exhibit A - Part 3# 4 Exhibit Exhibit A - Part 4)(Chipman, David) (Entered: 09/26/2005)

09/26/2005 33 MOTION for Leave to to File Surreply In Opposition to Defendant Leonard Cohen's Motion to Dismiss Plaintiffs' Amended Complaint with Jury Demand or, Alternatively, to





































Stay the Proceedings Pending the Central District of California's Decision to Compel Arbitration by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Proposed Order (PDF Only) Proposed order)(Chipman, David) (Entered: 09/26/2005)

09/26/2005 34 SURREPLY re 33 MOTION for Leave to to File Surreply In Opposition to Defendant Leonard Cohen's Motion to Dismiss Plaintiffs' Amended Complaint with Jury Demand or, Alternatively, to Stay the Proceedings Pending the Central District of California's, 15 MOTION to Dismiss for Lack of Jurisdiction by Defendant Leonard Cohen filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Affidavit Attached Affidavit of Neal Greenberg)(Chipman, David) (Entered: 09/26/2005)

09/27/2005 35 ORDER denying Plaintiff's 33 Motion for Leave to File a Surreply in Opposition to Defendant Leonard Cohen's Motion to Dismiss. Signed by Judge Lewis T. Babcock on 9/27/05. (emksl, ) (Entered: 09/27/2005)

10/11/2005 36 STATUS REPORT by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 10/11/2005)

10/11/2005 37 STATUS REPORT by Plaintiffs Greenberg & Associates Securities, Inc., Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit Exhibit A to Plaintiffs' Status Report)(Chipman, David) (Entered: 10/11/2005)

10/11/2005 38 MOTION to Petition to Compel Arbitration by Defendant Leonard Cohen. (Attachments: # 1 Exhibit Ex. A to Defendant's Petition to Compel Arbitration# 2Exhibit Ex. B to Petition to Compel Arbitration# 3 Exhibit Ex. C to Petition to Compel Arbitration)(Beringer, Susan) (Entered: 10/11/2005)

10/11/2005 39 MOTION to Compel Arbitration by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 10/11/2005)

10/11/2005 40 DECLARATION of Joel A. Feuer regarding MOTION to Compel Arbitration 39 by Defendant Leonard Cohen. (Attachments: # 1 Exhibit Ex. A to Declaration# 2Exhibit Ex. B to Declaration# 3 Exhibit Ex. C to Declaration# 4 Exhibit Ex. D to Declaration# 5 Exhibit Ex. E to Declaration# 6 Exhibit Ex. F to Declaration# 7Exhibit Ex. G to Declaration# 8 Exhibit Ex. H to Declaration# 9 Exhibit Ex. I to Declaration# 10 Exhibit Ex. J to Declaration# 11 Exhibit Ex. K to Declaration# 12Exhibit Ex. L to Declaration# 13 Exhibit Ex. M to Declaration# 14 Exhibit Ex. N to Declaration# 15 Exhibit Ex. O to Declaration# 16 Exhibit Ex. P to Declaration)(Beringer, Susan) (Entered: 10/11/2005)

10/14/2005 41 REPLY to Response to Motion re 13 MOTION to Dismiss the Amended Complaint filed by Defendant Robert Kory. (Attachments: # 1 Exhibit Second Declaration of Robert Kory# 2 Exhibit C part 1# 3 Exhibit C part 2# 4 Exhibit C part 3# 5 Exhibit C part 4# 6 Exhibit D part 1# 7 Exhibit Exhibits D part 2, E and F)(Livingston, Randall) (Entered: 10/14/2005)

10/18/2005 42 MINUTE ORDER: In Court (Status/Scheduling) Hearing set for 11/8/2005 at 09:30 AM in Courtroom A 201 before Chief Judge Lewis T. Babcock, by Judge Lewis T. Babcock on 10/18/05. (emksl, ) (Entered: 10/18/2005)

10/19/2005 43 LETTER re: 38 MOTION to Petition to Compel Arbitration, 40 Declaration,, [attaching















































clearer copies of exhibits per court's request] by Defendant Leonard Cohen. (Attachments: # 1 (Attachment) Exhibit A to Defendant Cohen's Petition to Compel Arbitration (Dckt No. 38)# 2 (Attachment) Exhibit C to Declaration of J. Feuer in Support of Defendant Cohen's Motion to Compel Arbitration (Dckt No. 40))(Beringer, Susan) (Entered: 10/19/2005)


10/31/2005 45 NOTICE of Entry of Appearance by R. Daniel Scheid on behalf of All Plaintiffs (Scheid, R.) (Modified on 11/1/2005 to add All Plaintiffs)(pap2, ). (Entered: 10/31/2005)

10/31/2005 46 STATUS REPORT by all Plaintiffs. (Attachments: # 1 Exhibit Exhibit to Plaintiffs' Status Report)(Scheid, R.) (Modified on 11/1/2005 to correct filers to all plaintiffs) (gms, ). (Entered: 10/31/2005)

10/31/2005 47 RESPONSE to Motion re 38 MOTION to Petition to Compel Arbitration, 39 MOTION to Compel Arbitration filed by all Plaintiffs. (Attachments: # 1 Exhibit A to Response and Objection# 2 Exhibit B to Response and Objection# 3 Exhibit C to Response and Objection# 4 Exhibit D to Response and Objection# 5 Exhibit E to Response and Objection# 6 Exhibit F to Response and Objection# 7 Exhibit G to Response and Objection# 8 Exhibit H to Response and Objection# 9 Exhibit I to Response and Objection# 10 Exhibit J to Response and Objection# 11 Exhibit K to Response and Objection# 12 Exhibit L to Response and Objection# 13Exhibit M to Response and Objection# 14 Exhibit N to Response and Objection# 15 Exhibit O to Response and Objection# 16 Exhibit P to Response and Objection# 17 Exhibit Q to Response and Objection# 18 Exhibit R to Response and Objection# 19 Exhibit S to Response and Objection# 20 Exhibit T to Response and Objection)(Scheid, R.) (Modified on 11/1/2005 to correct filers to all plaintiffs and to correct description of Exhibit R) (gms, ). (Entered: 10/31/2005)

10/31/2005 48 NOTICE of Entry of Appearance by Norman Sherab Posel on behalf of all plaintiffs (Posel, Norman) (Entered: 10/31/2005)

11/01/2005 49 CERTIFICATE of Mailing/Service re 45 Notice of Entry of Appearance, 46 Status Report, 47 Response to Motion,,,,, 48 Notice of Entry of Appearance by Plaintiffs Greenberg & Associates Securities, Inc., Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Tactical Allocation Services, LLC, Agile Group, LLC. (Scheid, R.) (Entered: 11/01/2005)

11/01/2005 50 Docket Annotation re: 46 Status Report. This docket entry was modified to correct the filers to all plaintiffs. 47 Response to Motion. This docket entry was modified to correct the filers to all plaintiffs and to correct the description of Exhibit R. Text only entry - no document attached. (gms, ) (Entered: 11/01/2005)

11/01/2005 51 MOTION to Withdraw of Attorneys David S. Chipman and Meghan W. Martinez as Counsel for Plaintiffs by Plaintiff Agile Group, LLC. (Attachments: # 1 Notice of Withdrawal of David S. Chipman and Meghan W. Martinez# 2 Proposed Order (PDF Only))(Chipman, David) (Entered: 11/01/2005)

11/02/2005 52 CERTIFICATE of Mailing/Service re 32 Brief in Opposition to Motion,, 33 MOTION for Leave to to File Surreply In Opposition to Defendant Leonard Cohen's Motion to Dismiss Plaintiffs' Amended Complaint with Jury Demand or, Alternatively, to Stay the Proceedings Pending the Central District of California's, 34Surreply,,, 20 Brief in Opposition to Motion,,, 21 Corporate Disclosure Statement, 22 Corporate Disclosure Statement, 23 Corporate Disclosure Statement, 24Corporate Disclosure Statement by


















































Plaintiffs Greenberg & Associates Securities, Inc., Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Tactical Allocation Services, LLC, Agile Group, LLC. (Scheid, R.) (Entered: 11/02/2005)

11/02/2005 53 Minute ORDER granting 51 Motion to Withdraw. David S. Chipman and Meghan W. Martinez are allowed to withdraw as counsel for Plaintiffs herein, by Judge Lewis T. Babcock on 11/2/05. (emksl, ) (Entered: 11/02/2005)

11/04/2005 54 NOTICE of Entry of Appearance of Joel A. Feuer by Susan Ashlie Beringer on behalf of Leonard Cohen (Beringer, Susan) (Entered: 11/04/2005)

11/08/2005 55 Minute Entry for proceedings held before Chief Judge Lewis T. Babcock: Status Conference held on 11/8/2005. Oral Argument on Plaintiffs' Motion to Deposit Funds 29 is set Friday, December 16, 2005 at 9:00 a.m. (Court Reporter Gwen Daniel) (ltbcd) Modified on 11/9/2005 to correct date(emksl, ). (Entered: 11/08/2005)

11/09/2005 56 Amended MOTION to Deposit Funds Into the Registry of the Court Pursuant to Rule 67 (re: 29 ) by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Proposed Order (PDF Only))(Scheid, R.) (Modified on 11/14/2005 to create a linkage) (gms, ). (Entered: 11/09/2005)

11/14/2005 57 Docket Annotation re: 56 Amended MOTION to Deposit Funds Into the Registry of the Court Pursuant to Rule 67. This docket entry was modified to create a linkage to the motion it amends, Doc #29. Text only entry - no document attached. (gms, ) (Entered: 11/14/2005)

11/14/2005 58 ORDER granting Plaintiff's 56 Amended Motion to Deposit the interpleaded Funds into a Registry and denying Plaintiff's 29 Motion to Deposit Funds as Moot. Signed by Judge Lewis T. Babcock on 11/14/05. (emksl, ) Modified on 11/14/2005 to add linkage (emksl, ). (Entered: 11/14/2005)

11/15/2005 59 BRIEF re 39 MOTION to Compel Arbitration by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 11/15/2005)

11/15/2005 60 DECLARATION of Joel A. Feuer regarding Brief 62 by Defendant Leonard Cohen. (Attachments: # 1 Exhibit A to Supplemental Declaration of Joel A. Feuer# 2Exhibit B to Supplemental Declaration of Joel A. Feuer# 3 Exhibit C to Supplemental Declaration of Joel A. Feuer# 4 Exhibit D to Supplemental Declaration of Joel A. Feuer)(Beringer, Susan) (Modified on 11/17/2005 to change linkage from Doc 59 to 62)(gms, ). (Entered: 11/15/2005)

11/16/2005 61 NOTICE of Change of Address of Posel Law Offices by Norman Sherab Posel (Posel, Norman) (Entered: 11/16/2005)

11/16/2005 62 REPLY to Response to Motion re 39 MOTION to Compel Arbitration filed by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 11/16/2005)

11/17/2005 63 Docket Annotation re: 60 Declaration. This docket entry was modified to change the linkage from Doc 59 to Doc 62. Text only entry - no document attached. (gms, ) (Entered: 11/17/2005)

11/23/2005 64 NOTICE of Change of Address by Norman Sherab Posel. (emksl, ) (Entered: 11/23/2005)

12/05/2005 65 ORDER granting defendant Kory's 13 Motion to Dismiss. Plaintiff's claims against Mr. Kory are dismissed. Signed by Judge Lewis T. Babcock on 12/5/05. (gms, ) (Entered:




























12/05/2005)

12/14/2005 66 RECEIPT for $2665.88 by Agile Allocation Svcs pursuant to 58 Order on Motion to Deposit Funds of 11/14/05, (gms, ) (Entered: 12/14/2005)

12/14/2005 67 RECEIPT for $149,500.00 from Winchester Reserves pursuant to 58 Order on Motion to Deposit Funds of 11/14/05 (gms, ) (Entered: 12/14/2005)

12/16/2005 68 Minute Entry for proceedings held before Judge Lewis T. Babcock : Motion Hearing held on 12/16/2005: Defendant's Motion to Compel Arbitration 43 is Taken Under Advisement. (Court Reporter Kara Spitler.) (emksl, ) (Entered: 12/16/2005)

12/16/2005 69 AMENDED Minute Entry (Amending 68 ) for proceedings held before Judge Lewis T. Babcock : Motion Hearing held on 12/16/2005: Motion 38 to Petition to Compel Arbitration filed by Leonard Cohen and 39 MOTION to Compel Arbitration filed by Leonard Cohen, are Taken Under Advisement. (Court Reporter Kara Spitler.) (emksl, ) (Entered: 12/16/2005)

12/16/2005 70 ORDER taking under advisement Motions 38 and 39 pursuant to Minute Entry of 12/16/05. Text Only Entry - No Document Attached. (emksl, ) (Entered: 12/16/2005)

12/20/2005 71 MOTION for Attorney Fees and Other Costs by Defendant Robert Kory. (Attachments: # 1 Exhibit A Declaration of Randall M. Livingston# 2 Exhibit B History Bill to the Court# 3 Exhibit C Practice Profile)(Livingston, Randall) (Entered: 12/20/2005)

12/21/2005 72 MINUTE ORDER: Plaintiff's Response to the 71 MOTION for Attorney Fees and Other Costs filed by Robert Kory, due 1/10/06. Defendants Reply due 1/20/06, by Judge Lewis T. Babcock on 12/21/05. (emksl, ) (Entered: 12/21/2005)

12/21/2005 73 ORDER denying Cohen's 38 and 39 Motion to Compel Arbitration. Signed by Judge Lewis T. Babcock on 12/21/05. (emksl, ) (Entered: 12/22/2005)

01/05/2006 74 STIPULATION re 8 Amended Complaint, to Answer or Otherwise Respond by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 01/05/2006)

01/06/2006 75 MINUTE ORDER granting the Joint Stipulation 74 to Extend Time for Defendant Cohen to Answer the Complaint: Leonard Cohen answer due 1/20/2006, by Judge Lewis T. Babcock on 1/6/06. (emksl, ) (Entered: 01/06/2006)

01/10/2006 76 BRIEF in Opposition re 71 MOTION for Attorney Fees and Other Costs filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit A to Response to Motion for Attorney Fees)(Scheid, R.) (Entered: 01/10/2006)

01/17/2006 77 MOTION to Withdraw as Attorney by Defendant Leonard Cohen. (Attachments: # 1 Proposed Order (PDF Only) Order Permitting Withdrawal of Counsel)(Beringer, Susan) (Entered: 01/17/2006)

01/18/2006 78 MINUTE ORDER granting 77 Motion to Withdraw as Attorney. Attorney Susan Ashlie Beringer and Joel A. Feuer terminated, by Judge Lewis T. Babcock on 1/18/06. (emksl, ) (Entered: 01/18/2006)

01/18/2006 79 TRANSCRIPT of Hearing on Defendant Cohen's Motion to Compel Arbitration held on 12/16/05 before Judge Babcock. Prepared by: Kara Spitler. Pages: 1-27. (certified copy) Text Only Entry - Available in paper format at the Clerk's Office. (emksl, ) (Entered: 01/19/2006)

































01/19/2006 80 STIPULATION for Extension of Time by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Defendant Leonard Cohen. (Attachments: # 1 Proposed Order (PDF Only))(Scheid, R.) (Entered: 01/19/2006)

01/20/2006 81 MINUTE ORDER granting the 80 Stipulation for Second Extension of Time to File a Responsive Pleading, filed by Greenberg & Associates, Inc. Second Amended Complaint due 2/10/06, by Judge Lewis T. Babcock on 1/20/06. (emksl, ) (Entered: 01/20/2006)

01/20/2006 82 REPLY to Response to Motion re 71 MOTION for Attorney Fees and Other Costs Reply In Support of Motion for Attorney's Fees filed by Defendant Robert Kory. (Livingston, Randall) (Entered: 01/20/2006)

02/07/2006 83 ORDER denying 15 Motion to Dismiss for Lack of Jurisdiction . Signed by Chief Judge Lewis T. Babcock on 2/6/06. (erv, ) (Entered: 02/07/2006)

02/08/2006 84 ORDER denying Defendant Robert Kory's 71 Motion for Attorney Fees,Signed by Judge Lewis T. Babcock on 02/08/06. (rlp, ) (Entered: 02/09/2006)

02/10/2006 85 MOTION for Leave to Amend Caption and to File Second Amended Complaint by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit 1 to Motion for Leave to Amend Caption and to File Second Amended Complaint# 2 Exhibit 1 to Second Amended Complaint# 3 Exhibit 2 to Second Amended Complaint# 4 Exhibit 3 to Second Amended Complaint - part 1# 5 Exhibit 3 to Second Amended Complaint - part 2# 6 Exhibit 4 to Second Amended Complaint# 7 Exhibit 5 to Second Amended Complaint#8 Exhibit 6 to Second Amended Complaint# 9 Exhibit 7 to Second Amended Complaint# 10 Exhibit 8 to Second Amended Complaint# 11 Exhibit 9 to Second Amended Complaint# 12 Exhibit 10 to Second Amended Complaint# 13 Exhibit 11 to Second Amended Complaint# 14 Proposed Order (PDF Only) to Motion for Leave to Amend Caption and File Second Amended Complaint)(Scheid, R.) (Entered: 02/10/2006)

02/13/2006 86 MINUTE ORDER re: 85 MOTION for Leave to Amend Caption and to File Second Amended Complaint filed by Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, by Judge Lewis T. Babcock on 02/13/06. Defendants have until 03/05/06 to file a response, Plaintiff has until 03/15/06 to file reply.(rlp, ) Modified on 2/14/2006 to add deadlines to text(rlp, ). (Entered: 02/13/2006)

02/14/2006 87 Docket Annotation re: 86 Order, modified text to include deadlines. Text only entry - no document attached. (rlp, ) (Entered: 02/14/2006)

03/06/2006 88 RESPONSE to Motion re 85 MOTION for Leave to Amend Caption and to File Second Amended Complaint filed by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 03/06/2006)

03/06/2006 89 RESPONSE to Motion re 85 MOTION for Leave to Amend Caption and to File Second Amended Complaint filed by Defendant Robert Kory. (Livingston, Randall) (Entered: 03/06/2006)

03/15/2006 90 REPLY to Response to Motion re 85 MOTION for Leave to Amend Caption and to File Second Amended Complaint filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Scheid, R.) (Entered: 03/15/2006)

05/10/2006 91 ORDER granting in part and denying in part 85 Motion for Leave to Amend, plaintiffs'





































motion is GRANTED to the extent that it seeks to amend the first Amended Complaint to state new claims against Mr. Cohen, correct defects in the caption, and clarify introductory allegations; motion is DENIED to the extent that it seeks reconsideration of the previous order dismissing claims against Mr. Kory ; the plaintiffs shall, on or before May 24, 2006, file a Second Amended Complaint. Signed by Judge Lewis T. Babcock on 05/10/06. (rlp, ) PDF attachment added on 5/15/2006 to correct entry and attach PDF of Order (rlp, ). (Entered: 05/11/2006)

05/15/2006 92 Docket Annotation re: 91 Order on Motion for Leave, Added PDF of Order of 05/10/06 to correct entry. Text only entry - no document attached. (rlp, ) (Entered: 05/15/2006)

05/23/2006 93 AMENDED COMPLAINT and Jury Demand against all defendants, filed by Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit 1 to Second Amended Complaint and Jury Demand# 2 Exhibit 2 to Second Amended Complaint and Jury Demand# 3 Exhibit 3 to Second Amended Complaint and Jury Demand (part 1)# 4 Exhibit 3 to Second Amended Complaint and Jury Demand (part 2)# 5 Exhibit 4 to Second Amended Complaint and Jury Demand# 6 Exhibit 5 to Second Amended Complaint and Jury Demand# 7 Exhibit 6 to Second Amended Complaint and Jury Demand# 8 Exhibit 7 to Second Amended Complaint and Jury Demand# 9 Exhibit 8 to Second Amended Complaint and Jury Demand# 10 Exhibit 9 to Second Amended Complaint and Jury Demand# 11 Exhibit 10 to Second Amended Complaint and Jury Demand# 12 Exhibit 11 to Second Amended Complaint and Jury Demand)(Scheid, R.) (Entered: 05/23/2006)

05/31/2006 94 Mail Returned as Undeliverable re: 92 Docket Annotation Addressed to Kelley Lynch. (rlp, ) (Entered: 05/31/2006)

06/02/2006 95 Unopposed MOTION For Extension of Time to Respond to the Second Amended Complaint by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 06/02/2006)

06/06/2006 96 MINUTE ORDER granting 95 Defendant Leonard Cohen's Unopposed Motion to Extend Time Within Which to Respond to Second Amended Complaint, up to and including June 30, 2006. Signed by Judge Lewis T. Babcock on 06/06/06. (rlp, ) (Entered: 06/06/2006)

06/30/2006 97 Partial MOTION to Dismiss Second Amended Complaint by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 06/30/2006)

06/30/2006 98 BRIEF in Support re 97 Partial MOTION to Dismiss Second Amended Complaint filed by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 06/30/2006)

06/30/2006 99 MOTION for Joinder Additional Party as Defendant to Counterclaims and Amend Caption by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 06/30/2006)

06/30/2006 100 ANSWER to Amended Complaint Counterclaims, and Jury Demand by Leonard Cohen.(Livingston, Randall) (Entered: 06/30/2006)

07/03/2006 101 MINUTE ORDER: Plaintiffs have to and including July 18, 2006 to reply to Defendant Leonard Cohen's 99 Motion to Join Additional Party as Defendant to the Counterclaims and Amend Caption, by Judge Lewis T. Babcock on 07/03/06. (rlp, ) (Entered: 07/03/2006)

07/07/2006 102 Unopposed MOTION for Extension of Time to File Response/Reply as to 97 Partial MOTION to Dismiss Second Amended Complaint, 100 Answer to Amended Complaint by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Scheid, R.)





























(Entered: 07/07/2006)

07/10/2006 103 MINUTE ORDER granting 102 Motion for Extension of Time to File Response/Reply re 99 MOTION for Joinder Additional Party as Defendant to Counterclaims and Amend Caption. Reply due by 8/10/2006, by Judge Lewis T. Babcock on 07/10/06. (rlp, ) (Entered: 07/10/2006)

07/17/2006 104 NOTICE re 99 MOTION for Joinder Additional Party as Defendant to Counterclaims and Amend Caption by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC (Scheid, R.) (Entered: 07/17/2006)

07/18/2006 105 MINUTE ORDER granting 99 Defendant Cohen's Motion for Joinder, by Judge Lewis T. Babcock on 07/18/06. (rlp, ) (Entered: 07/18/2006)

07/20/2006 106 Mail Returned as Undeliverable re: 101 Order Addressed to Kelly Lynch. (rlp, ) (Entered: 07/20/2006)

07/20/2006 107 AFFIDAVIT/RETURN of Service of Answer to Second Amended Complaint, Counterclaims, and Jury Demand upon Timothy Barnett on 07-19-2006, filed by Defendant Leonard Cohen (Livingston, Randall) (Entered: 07/20/2006)

07/31/2006 108 Mail Returned as Undeliverable re: 103 Order on Motion for Extension of Time to File Response/Reply Addressed to Kelley Lynch. (rlp, ) (Entered: 07/31/2006)

07/31/2006 109 Unopposed MOTION to Deposit Funds Into the Registry of the Court Pursuant to Fed.R.Civ.P. 67 by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Proposed Order (PDF Only))(Scheid, R.) (Entered: 07/31/2006)

08/01/2006 110 ORDER granting 109 Motion to Deposit Funds, Leave is granted to Plaintiffs', to deposit into the Registry of the Court $2014.90, which amount is the additional funds which are the subject of the Interpleader Claim in the Second Amended Complaint, Signed by Judge Lewis T. Babcock on 08/01/06. (rlp, ) (Entered: 08/01/2006)

08/01/2006 111 Mail Returned as Undeliverable re: 105 Order on Motion for Joinder Addressed to Kelley Lynch. (rlp, ) (Entered: 08/01/2006)

08/10/2006 112 ANSWER to 100 Cohen's Counterclaims by Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett.(Scheid, R.) Modified on 8/11/2006 : this is answer to counterclaims in docket entry 100 (rlp2, ). (Entered: 08/10/2006)

08/10/2006 113 RESPONSE to Motion re 97 Partial MOTION to Dismiss Second Amended Complaint filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Tomothy Barnett. (Scheid, R.) (Entered: 08/10/2006)

08/10/2006 114 DESIGNATION OF NON-PARTY (ies) at Fault Pursuant to C.R.S. Sec. 13-21-111.5(3)(b) by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendant Timothy Barnett. (Scheid, R.) (Entered: 08/10/2006)

08/11/2006 115 Docket Annotation re: 113 Response to Motion,modified to add Barnett as filer in entry, 112 Answer to Complaint, modified to clarify entry and link to document 100. Text only entry - no document attached. (rlp2, ) (Entered: 08/11/2006)


























08/15/2006 116 RECEIPT for $2014.90 by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC per entry 110 Order on Motion to Deposit Funds, (rlp2, ) (Entered: 08/15/2006)

08/25/2006 117 Unopposed MOTION For Extension of Time to Reply in Support of Motion for Partial Dismissal of Second Amended Complaint by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 08/25/2006)

08/28/2006 118 MINUTE ORDER granting 117 Defendant Cohen's Unopposed Motion to Extend Time to File Reply in Support of Motion for Partial Dismissal of the Second Amended Complaint, up to and including September 15, 2006, by Judge Lewis T. Babcock on 08/28/06. (rlp2, ) (Entered: 08/28/2006)

08/28/2006 119 Mail Returned as Undeliverable re: 116 Receipt Addressed to Kelley Lynch. (rlp2, ) (Entered: 08/29/2006)

09/08/2006 120 Mail Returned as Undeliverable re: 118 Order on Motion for Extension of Time, Addressed to Kelley Lynch. (rlp2, ) (Entered: 09/08/2006)

09/15/2006 121 REPLY to Response to Motion re 97 Partial MOTION to Dismiss Second Amended Complaint filed by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 09/15/2006)

10/19/2006 122 MOTION for Judgment on the Pleadings as to Cohen's Second Through Eighth Counterclaims by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendant Timothy Barnett. (Scheid, R.) (Entered: 10/19/2006)

10/19/2006 123 BRIEF in Support re 122 MOTION for Judgment on the Pleadings as to Cohen's Second Through Eighth Counterclaims filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendant Timothy Barnett. (Scheid, R.) (Entered: 10/19/2006)

10/19/2006 124 AFFIDAVIT re 123 Brief in Support of Motion, 122 MOTION for Judgment on the Pleadings as to Cohen's Second Through Eighth Counterclaims of R. Daniel Scheid by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendant Timothy Barnett. (Attachments: # 1 Exhibit A to Affidavit of R.Daniel Scheid# 2 Exhibit B to Affidavit of R. Daniel Scheid# 3 Exhibit C to Affidavit of R. Daniel Scheid# 4 Exhibit D to Affidavit of R. Daniel Scheid# 5 Exhibit E to Affidavit of R. Daniel Scheid# 6 Exhibit F to Affidavit of R. Daniel Scheid# 7 Exhibit G to Affidavit of R. Daniel Scheid# 8 Exhibit H to Affidavit of R. Daniel Scheid-part1# 9 Exhibit H to Affidavit of R. Daniel Scheid-part 2# 10Exhibit H to Affidavit of R. Daniel Scheid-part 3# 11 Deposition Excerpts I to Affidavit of R. Daniel Scheid# 12 Exhibit J to Affidavit of R. Daniel Scheid# 13Exhibit K to Affidavit of R. Daniel Scheid# 14 Exhibit L to Affidavit of R. Daniel Scheid# 15 Exhibit M to Affidavit of R. Daniel Scheid# 16 Exhibit N to Affidavit of R. Daniel Scheid# 17 Exhibit O to Affidavit of R. Daniel Scheid# 18 Exhibit P to Affidavit of R. Daniel Scheid# 19 Exhibit Q to Affidavit of R. Daniel Scheid)(Scheid, R.) (Entered: 10/19/2006)

11/07/2006 125 Unopposed MOTION for Extension of Time to File Response/Reply as to 123 Brief in Support of Motion, 122 MOTION for Judgment on the Pleadings as to Cohen's Second Through Eighth Counterclaims, 124 Affidavit,,,,, by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 11/07/2006)









































11/08/2006 126 MINUTE ORDER granting 125 Motion for Extension of Time to File Response/Reply re 122 MOTION for Judgment on the Pleadings as to Cohen's Second Through Eighth Counterclaims Response due by 12/6/2006, by Judge Lewis T. Babcock on 11/08/06.(rlp, ) (Entered: 11/08/2006)

11/16/2006 127 MOTION for Leave to File Certificate of Review by Defendant Leonard Cohen. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Livingston, Randall) (Entered: 11/16/2006)

11/17/2006 128 Mail Returned as Undeliverable re: 126 Order on Motion for Extension of Time to File Response/Reply, Addressed to Kelley Lynch. (rlp, ) (Entered: 11/17/2006)

11/17/2006 129 MINUTE ORDER Plaintiffs have to and including December 7, 2006 to respond to Defendant Cohen's Motion to Accept Certificate or Review 127 . Defendant has to and including December 21, 2006 to reply, by Judge Lewis T. Babcock on 11/17/06. (rlp, ) (Entered: 11/17/2006)

11/27/2006 130 Mail Returned as Undeliverable re: 129 Order, Addressed to Kelly Lynch. (rlp, ) (Entered: 11/27/2006)

12/04/2006 131 ORDER granting in part and denying in part 97 Motion to Dismiss, the plaintiffs' claims for intentional interference with a prospective business relation, civil extortion, civil conspiracy, and violation of and conspiracy to violate COCCA are DISMISSED, Signed by Judge Lewis T. Babcock on 12/04/06.(rlp, ) (Entered: 12/04/2006)

12/06/2006 132 RESPONSE to Motion re 122 MOTION for Judgment on the Pleadings as to Cohen's Second Through Eighth Counterclaims filed by Defendant Leonard Cohen. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Livingston, Randall) (Entered: 12/06/2006)

12/07/2006 133 RESPONSE to Motion re 127 MOTION for Leave to File Certificate of Review and Objection filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Attachments: # 1 Exhibit A# 2Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I)(Scheid, R.) (Entered: 12/07/2006)

12/07/2006 134 AFFIDAVIT re 133 Response to Motion,, Exhibit A by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Scheid, R.) (Entered: 12/07/2006)

12/13/2006 135 Unopposed MOTION For Extension of Time to File Reply in Support of 22 Motion for Judgment on the Pleadings by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Attachments: # 1 Proposed Order (PDF Only))(Scheid, R.) Modified to correct motion event to add link on 12/14/2006 (rlp, ). (Entered: 12/13/2006)

12/14/2006 136 Docket Annotation re: 135 MOTION for Extension of Time to File Response/Reply. Modified to correct motion to add link on 12/14/2006 Text only entry - no document attached. (rlp, ) (Entered: 12/14/2006)

12/15/2006 137 MINUTE ORDER granting 135 Motion for Extension of Time to File Reply in Support






































of MOtion for Judgment on the Pleadings, reply due 01/16/07 by Judge Lewis T. Babcock on 12/15/06.(rlp, ) (Entered: 12/15/2006)

12/18/2006 138 Mail Returned as Undeliverable re: 131 Order on Motion to Dismiss, Addressed to Kelley Lynch. (rlp, ) (Entered: 12/19/2006)

12/21/2006 139 REPLY to Response to Motion re 127 MOTION for Leave to File Certificate of Review filed by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 12/21/2006)

12/27/2006 140 ORDER denying 127 MOTION for Leave to File Certificate of Review, Signed by Judge Lewis T. Babcock on 12/27/06.(rlp, ) (Entered: 12/27/2006)

01/04/2007 141 Mail Returned as Undeliverable re: 137 Order on Motion for Extension of Time to File Response/Reply Addressed to Kelley Lynch. (rlp, ) (Entered: 01/04/2007)

01/16/2007 142 REPLY to Response to Motion re 122 MOTION for Judgment on the Pleadings as to Cohen's Second Through Eighth Counterclaims filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Deposition Excerpts H)(Scheid, R.) (Entered: 01/16/2007)

01/23/2007 143 Mail Returned as Undeliverable re: 140 Order on Motion for Leave Addressed to Kelley Lynch. (rlp, ) (Entered: 01/23/2007)

01/23/2007 144 ORDER granting 122 the counterclaim defendants' motion for judgment on the pleadings, Mr. Cohen's second (breach of fiduciary duty), third (fraud), fourth (negligent misrepresentation), fifth (professional negligence), sixth and seventh (aiding and abetting), and eighth (negligence) claims are DISMISSED. Signed by Judge Lewis T. Babcock on 01/23/07.(rlp, ) (Entered: 01/24/2007)

02/06/2007 145 Mail Returned as Undeliverable re: 144 ORDER Addressed to Kelley Lynch. (dln, ) (Entered: 02/06/2007)

05/04/2007 146 NOTICE of Entry of Appearance by Jay Stanley Horowitz on behalf of Leonard Cohen (Horowitz, Jay) (Entered: 05/04/2007)

05/04/2007 147 NOTICE of Entry of Appearance by Peter C. Forbes on behalf of Leonard Cohen (Forbes, Peter) (Entered: 05/04/2007)

05/04/2007 148 MOTION for Summary Judgment As to Cohen's First Counterclaim by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Scheid, R.) (Entered: 05/04/2007)

05/04/2007 149 BRIEF in Support re 148 MOTION for Summary Judgment As to Cohen's First Counterclaim filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Affidavit # 2Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L#14 Exhibit M# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P# 18 Exhibit Q# 19 Exhibit R# 20 Exhibit S# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W#25 Exhibit X# 26 Exhibit
























































Y)(Scheid, R.) (Entered: 05/04/2007)

05/10/2007 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint , defendant leonard cohen's amended counterclaims and jury demand by Defendant Leonard Cohen. (Attachments: # 1 Proposed Document exhibit 1 - cohen's amended answer to second amended complaint, amended counterclaims and jury demand# 2 Exhibit exhibit a# 3 Exhibit exhibit b# 4 Exhibit exhibit c# 5 Exhibit exhbit d# 6 Exhibit exhibit e# 7 Deposition Excerpts exhibit f# 8 Exhibit exhibit g# 9 Exhibit exhibit h# 10 Exhibit exhibit i# 11 Exhibit exhibit j# 12 Exhibit exhibit k# 13 Exhibit exhibit l# 14 Exhibit exhibit m# 15 Exhibit exhibit n# 16Exhibit exhibit o# 17 Exhibit exhibit p# 18 Exhibit exhibit q# 19 Exhibit exhibit r# 20 Exhibit exhibit s# 21 Exhibit exhibit t# 22 Exhibit exhibit u# 23 Exhibit exhibit v# 24 Exhibit exhibit w# 25 Exhibit exhibit x# 26 Exhibit exhibit y# 27 Exhibit exhibit z# 28 Exhibit exhibit aa# 29 Exhibit exhibit bb# 30 Exhibit exhibit cc# 31 Exhibit exhibit dd# 32 Exhibit exhibit ee# 33 Exhibit exhibit ff# 34 Exhibit exhibit gg# 35 Exhibit exhibit hh# 36 Exhibit exhibit ii# 37 Exhibit exhibit jj#38 Exhibit exhibit kk# 39 Exhibit exhibit ll# 40 Exhibit exhibit mm# 41 Exhibit exhibit nn# 42 Exhibit exhibit oo# 43 Exhibit exhibit pp# 44 Exhibit exhibit qq#45 Exhibit exhibit rr# 46 Exhibit exhibit ss# 47 Exhibit exhibit tt# 48 Exhibit exhibit uu# 49 Exhibit exhibit vv# 50 Exhibit exhibit ww# 51 Exhibit exhibit xx# 52Exhibit exhibit yy# 53 Exhibit exhibit zz# 54 Exhibit exhibit aaa# 55 Exhibit exhibit bbb# 56 Exhibit exhibit ccc# 57 Exhibit exhibit ddd# 58 Exhibit exhibit eee#59 Exhibit exhibit fff# 60 Exhibit exhibit ggg# 61 Exhibit exhibit hhh# 62 Exhibit exhibit iii# 63 Exhibit exhibit jjj# 64 Exhibit exhibit kkk# 65 Exhibit exhibit lll#66 Exhibit exhibit mmm# 67 Exhibit exhibit nnn# 68 Exhibit exhibit ooo# 69 Exhibit exhibit 2# 70 Exhibit exhibit 3# 71 Proposed Order (PDF Only) proposed order)(Horowitz, Jay) (Entered: 05/10/2007)

05/14/2007 151 MINUTE ORDER re: 150 MOTION for Leave to File Amended 100 Answer to Second Amended Complaint, amended counterclaims and jury demand filed by Defendant Leonard Cohen. Plaintiffs and Counterclaim Defendants to file response by 6/4/07, Defendant to file reply by 6/14/07, by Judge Lewis T. Babcock on 5/14/07. (mrs, ) (Entered: 05/14/2007)

05/16/2007 152 MOTION to Stay re 148 MOTION for Summary Judgment As to Cohen's First Counterclaim -- stay briefing schedule until briefing upon cohen's motion for leave to amend has been completed and that motion decided by Defendant Leonard Cohen. (Attachments: # 1 Proposed Document proposed order)(Horowitz, Jay) (Entered: 05/16/2007)

05/17/2007 153 RESPONSE to Motion re 152 MOTION to Stay re 148 MOTION for Summary Judgment As to Cohen's First Counterclaim -- stay briefing schedule until briefing upon cohen's motion for leave to amend has been completed and that motion decided MOTION to Stay re 148 MOTION for Summary Judgment As to Cohen's First Counterclaim -- stay briefing schedule until briefing upon cohen's motion for leave to amend has been completed and that motion decided filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Scheid, R.) (Entered: 05/17/2007)

05/17/2007 154 MINUTE ORDER re: Defendant and Plaintiff-on-Counterclaim Leonard Cohen's 152 Request (MOTION) to Stay the briefing upon Defendants-on-Counterclaims148 MOTION for Summary Judgment. All other parties to respond to this Motion on or before 5/27/2007, by Judge Lewis T. Babcock on 5/17/07. (mrs, ) (Entered: 05/17/2007)

05/18/2007 155 ORDER granting Defendant and Plaintiff-on-Counterclaim Leonard
























































































Cohen's 152 Request (Motion) to Stay the Briefing Schedule. Signed by Judge Lewis T. Babcock on 5/18/07.(mrs, ) (Entered: 05/18/2007)

05/22/2007 156 Mail Returned as Undeliverable re: 151 Order, Addressed to Kelley Lynch. (mrs, ) (Entered: 05/22/2007)

05/25/2007 157 Mail Returned as Undeliverable re: 154 Order, Addressed to Kelley Lynch. (gms, ) (Entered: 05/25/2007)

05/29/2007 158 Mail Returned as Undeliverable re: 155 Order on Motion to Stay Addressed to Kelley Lynch. (gms, ) (Entered: 05/29/2007)

06/04/2007 159 RESPONSE to Motion re 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint , defendant leonard cohen's amended counterclaims and jury demand. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Deposition Excerpts D# 5 Exhibit E# 6 Exhibit F)(Scheid, R.) (Modified on 6/5/2007 to edit triplicated text)(erv, ). (Entered: 06/04/2007)

06/05/2007 160 Docket Annotation re: 159 Response to Motion, The Text was edited to correct Triplicative text that was pulled into the entry. Text only entry - no document attached. (erv, ) (Entered: 06/05/2007)

06/11/2007 161 MOTION for Extension of Time to File Response/Reply as to 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint , defendant leonard cohen's amended counterclaims and jury demand by Defendant Leonard Cohen. (Attachments: # 1 Proposed Order (PDF Only) proposed order)(Horowitz, Jay) Modified on 6/12/2007 to delete duplicated text (mrs, ). (Entered: 06/11/2007)

06/11/2007 162 SUPPLEMENT/AMENDMENT to 161 MOTION for Extension of Time to File Response/Reply as to 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint , defendant leonard cohen's amended counterclaims and jury demand by Defendant Leonard Cohen. (Horowitz, Jay) Modified on 6/12/2007 to delete duplicated text (mrs, ). (Entered: 06/11/2007)

06/12/2007 163 Docket Annotation re: 161 MOTION for Extension of Time to File Response/Reply as to 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint, defendant leonard cohen's amended counterclaims and jury demand. This docket entry was modified to delete duplicated text. Text only entry - no document attached. (mrs, ) (Entered: 06/12/2007)

06/12/2007 164 Docket Annotation re: 162 Supplement/Amendment, this docket entry was modified to delete duplicated text. Text only entry - no document attached. (mrs, ) (Entered: 06/12/2007)

06/12/2007 165 MINUTE ORDER GRANTING 161 Motion for Extension of Time to File Reply Brief in Support of 150 MOTION for Leave to Amend and the 162 Supplement to Request, Reply due by 6/21/2007, by Judge Lewis T. Babcock on 6/12/07.(mrs, ) (Entered: 06/12/2007)

06/21/2007 166 Mail Returned as Undeliverable re: 165 Order on Motion for Extension of Time to File Response/Reply Addressed to Kelley Lynch. (mrs, ) (Entered: 06/21/2007)

06/21/2007 167 REPLY to Response to Motion re 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint , defendant leonard cohen's amended counterclaims and jury demand filed by Defendant Leonard Cohen. (Attachments: # 1 Exhibit exhibit 1 - cohen's amended answer, second amended counterclaims, jury demand# 2 Exhibit exhibit 2)(Horowitz, Jay) Modified on 6/22/2007 to delete duplicated text (mrs, ). (Entered: 06/21/2007)









































06/22/2007 168 ORDER, Agile Group, LLC may file a sur-reply, no more than 10 pages within 10 days of the date of this Order. Cohen may file further reply, no more than 10 pages within 10 days thereafter. Signed by Judge Lewis T. Babcock on 6/22/07. (mrs, ) (Entered: 06/22/2007)

06/22/2007 169 Docket Annotation re: 167 Reply to Response to Motion, this docket entry modified to delete duplicated text. Text only entry - no document attached. (mrs, ) (Entered: 06/22/2007)

07/02/2007 170 SURREPLY re 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint , defendant leonard cohen's amended counterclaims and jury demand filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Timothy Barnett (Attachments: # 1 Exhibit A)(Scheid, R.) Modified on 7/5/2007 to correct filers (mrs, ). (Entered: 07/02/2007)

07/02/2007 171 Mail Returned as Undeliverable re: 168 Order Addressed to Kelley Lynch. (mrs, ) (Entered: 07/02/2007)

07/05/2007 172 Docket Annotation re: 170 Surreply, this docket entry modifed to correct filers. Text only entry - no document attached. (mrs, ) (Entered: 07/05/2007)

07/12/2007 173 SURREPLY re 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint , defendant leonard cohen's amended counterclaims and jury demand filed by Defendant Leonard Cohen. ATTACHED EXHIBITS ARE STRICKEN pursuant to Order dated 7/16/07.(Attachments: # 1 Exhibit A# 2 Exhibit B# 3Exhibit C# 4 Exhibit D)(Horowitz, Jay) Modified on 7/13/2007 to delete duplicated text generated by the system (mrs, ). Modified on 7/16/2007 (mrs, ). (Entered: 07/12/2007)

07/16/2007 174 ORDER re: 173 Surreply filed by Leonard Cohen. The attached exhibits are STRICKEN and will not be considered by the Court. Signed by Judge Lewis T. Babcock on 7/16/07. (mrs, ) (Entered: 07/16/2007)

10/26/2007 175 ORDER DENYING Cohen's 150 Motion for Leave to File His Amended Answer to Second Amended Complaint, His Amended Counterclaims, and His Jury Demand. Signed by Judge Lewis T. Babcock on 10/26/07.(mrs) (Entered: 10/29/2007)

11/13/2007 176 MOTION for Order to establish briefing schedule upon plaintiffs' motion for summary judgment by Defendant Leonard Cohen. (Attachments: # 1 Exhibit a, # 2Proposed Order (PDF Only))(Horowitz, Jay) (Entered: 11/13/2007)

11/14/2007 177 MINUTE ORDER GRANTING Defendant Leonard Cohen's 176 Motion for to Establish a Briefing Schedule Upon Plaintiffs' Motion for Summary Judgment. Defendant Cohen has up to and including 12/13/07 to file a response. Plaintiff Agile Group has up to and including 1/25/08 to file a reply, by Judge Lewis T. Babcock on 11/14/07.(mrs, ) (Entered: 11/14/2007)

12/06/2007 178 Unopposed MOTION for Extension of Time to File Response/Reply as to 148 MOTION for Summary Judgment As to Cohen's First Counterclaim to extend by one week the deadlines for the parties' filing of their remaining briefs by Defendant Leonard Cohen. (Attachments: # 1 Proposed Order (PDF Only))(Horowitz, Jay) (Entered: 12/06/2007)

12/07/2007 179 MINUTE ORDER GRANTING Defendant Leonard Cohen's Unopposed 178 Motion to Extend by One Week the Deadlines for the parties' filing their remaining briefs upon Plaintiffs' Motion for Summary Judgment. Defendant Cohen has up to and including 12/20/07 to file a response. Plaintiffs have up to and including 2/1/08 to file a reply, by Judge Lewis T. Babcock on 12/7/07.(mrs, ) (Entered: 12/07/2007)































12/20/2007 180 RESPONSE to Motion re 148 MOTION for Summary Judgment As to Cohen's First Counterclaim filed by Defendant Leonard Cohen. (Attachments: # 1 Affidavit leonard cohen - exhibit a, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11Exhibit 10, # 12 Deposition Excerpts 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, part 1, # 46 Exhibit 44, part 2, # 47 Pages summary of exhibits 1-44, # 48 Affidavit jay horowitz, exhibit b)(Horowitz, Jay) (Entered: 12/20/2007)

02/01/2008 181 REPLY to Response to Motion re 148 MOTION for Summary Judgment As to Cohen's First Counterclaim filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1Exhibit A)(Scheid, R.) (Entered: 02/01/2008)

02/21/2008 182 ORDER granting 148 Plaintiffs Motion for Summary Judgment as to Cohens First Counterclaim. Signed by Judge Lewis T. Babcock on 02/21/2008.(sah2, ) (Entered: 02/22/2008)

04/02/2008 183 Mail Returned as Undeliverable re: 182 Order on Motion for Summary Judgment Addressed to Kelley Lynch. (sah, ) (Entered: 04/02/2008)

04/29/2008 184 NOTICE of Entry of Appearance by Michelle Lorraine Rice on behalf of Leonard Cohen (Rice, Michelle) (Entered: 04/29/2008)

04/29/2008 185 MOTION for Summary Judgment by Defendant Leonard Cohen. (Rice, Michelle) (Entered: 04/29/2008)

04/29/2008 186 Exhibits in Support of 185 MOTION for Summary Judgment by Defendant Leonard Cohen. (Attachments: # 1 Exhibit A-2, # 2 Exhibit A-3, # 3 Exhibit A-4, # 4Exhibit A-5, # 5 Exhibit A-6, # 6 Exhibit A-7, # 7 Exhibit A-8, # 8 Exhibit A-9, # 9 Exhibit A-10, # 10 Exhibit A-11, # 11 Exhibit A-12, # 12 Exhibit A-13, # 13Exhibit A-14, # 14 Exhibit A-15, # 15 Exhibit A-16, # 16 Affidavit of Leonard Cohen, # 17 Exhibit B-1, # 18 Exhibit B-2, # 19 Exhibit B-3, # 20 Exhibit B-4, #21 Exhibit B-5, # 22 Exhibit B-6, # 23 Exhibit B-7, # 24 Exhibit B-8, # 25 Affidavit of Matthew Traub, # 26 Exhibit C-1, # 27 Exhibit C-2, # 28 Affidavit of Jarkko Arjatsalo, # 29 Exhibit D-1, # 30 Exhibit D-2, # 31 Exhibit D-3, # 32 Exhibit D-4)(Rice, Michelle) (Entered: 04/29/2008)

04/30/2008 187 MOTION to Withdraw as Attorney by Defendant Leonard Cohen. (Attachments: # 1 Proposed Order (PDF Only))(Horowitz, Jay) (Entered: 04/30/2008)

04/30/2008 188 NOTICE re 187 MOTION to Withdraw as Attorney by Defendant Leonard Cohen (Horowitz, Jay) (Entered: 04/30/2008)

05/02/2008 189 MINUTE ORDER granting 187 Motion to Withdraw as Attorney. Attorney Jay Stanley Horowitz terminated. Defendant Cohen will continue to be represented by Michelle Lorraine Rice of the Law Offices of Robert Kory by Judge Lewis T. Babcock on 05/02/2008.(sah, ) (Entered: 05/02/2008)

05/05/2008 190 NOTICE of Entry of Appearance by Andrew Wilson Myers on behalf of Leonard Cohen (Myers, Andrew) (Entered: 05/05/2008)





































































































05/05/2008 191 NOTICE of Entry of Appearance by Jeffrey A. Chase on behalf of Leonard Cohen (Chase, Jeffrey) (Entered: 05/05/2008)

05/06/2008 192 MOTION to Withdraw as Attorney by Defendant Leonard Cohen. (Attachments: # 1 Proposed Order (PDF Only))(Forbes, Peter) (Entered: 05/06/2008)

05/07/2008 193 MINUTE ORDER granting 192 Motion to Withdraw as Attorney. Attorney Peter C. Forbes terminated. Defendant Cohen will continue to be represented by Michelle Lorraine Rice of the Law Offices of Robert Kory by Judge Lewis T. Babcock on 05/07/2008.(sah, ) (Entered: 05/07/2008)

05/21/2008 194 MOTION to Dismiss Certain Remaining Claims Pursuant to Fed. R. Civ. P. 41(a)(2) by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Attachments: # 1 Exhibit A)(Scheid, R.) (Entered: 05/21/2008)

05/21/2008 195 MOTION to Stay re 185 MOTION for Summary Judgment Addressing Claims Subject to Rule 41(a)(2) Motion to Dismiss by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Attachments: # 1 Proposed Order (PDF Only))(Scheid, R.) (Entered: 05/21/2008)

05/21/2008 196 RESPONSE to Motion re 185 MOTION for Summary Judgment filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Scheid, R.) (Entered: 05/21/2008)

05/21/2008 197 MOTION for Attorney Fees and Costs Against Cohen by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Scheid, R.) (Entered: 05/21/2008)

05/21/2008 198 Mail Returned as Undeliverable re: 193 Order on Motion to Withdraw as Attorney, Addressed to Kelley Lynch. (sah, ) (Entered: 05/21/2008)

05/21/2008 199 BRIEF in Support re 197 MOTION for Attorney Fees and Costs Against Cohen filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg, Timothy Barnett. (Attachments: # 1 Exhibit A, # 2 Exhibit B to Brief, # 3 Exhibit Exhibits C and C-1, # 4 Exhibit C-2 to Brief, # 5 Exhibit C-3 (1 of 2) to Brief, # 6 Exhibit C-3 (2 of 2) to Brief)(Scheid, R.) (Entered: 05/21/2008)

05/22/2008 200 MINUTE ORDER re: 194 Plaintiffs have filed a Motion to Dismiss Certain Remaining Claims and 197 Plaintiffs and Barnett have filed a Motion for Award of Attorneys Fees and Costs Against Cohen. Defendants have up to and including 6/11/2008 to file a response to both motions. Plaintiffs and Barnett have up to and including 6/21/2008 to file a reply to both motions by Judge Lewis T. Babcock on 05/22/2008. (sah, ) (Entered:



























05/22/2008)

05/22/2008 201 ORDER granting 195 Plaintiffs Motion to Stay Briefing as to Portions of Defendant Cohens Summary Judgment Motion Addressing Claims Subject to Rule 41(a)(2) Motion to Dismiss. Signed by Judge Lewis T. Babcock on 05/22/2008.(sah, ) (Entered: 05/22/2008)

05/30/2008 202 Unopposed MOTION for Extension of Time to File Response/Reply as to 197 MOTION for Attorney Fees and Costs Against Cohen by Defendant Leonard Cohen. (Attachments: # 1 Proposed Order (PDF Only))(Myers, Andrew) (Entered: 05/30/2008)

05/30/2008 203 RESPONSE to Motion re 194 MOTION to Dismiss Certain Remaining Claims Pursuant to Fed. R. Civ. P. 41(a)(2) MOTION to Dismiss Certain Remaining Claims Pursuant to Fed. R. Civ. P. 41(a)(2) filed by Defendant Leonard Cohen. (Myers, Andrew) (Entered: 05/30/2008)

06/02/2008 204 MINUTE ORDER granting 202 Defendant Leonard Cohens Unopposed Motion for Twenty-Day Extension of Time to Respond to Plaintiffs Motion for Attorney Fees. Defendant has up to and including 7/1/2008 by Judge Lewis T. Babcock on 06/02/2008.(sah, ) (Entered: 06/02/2008)

06/02/2008 205 ORDER granting 194 Plaintiffs Motion to Dismiss Certain Remaining Claims Pursuant to FED. R. CIV. P. 41(a)(2). Plaintiffs First Claim for Relief (Defamation) (Against Cohen) is DISMISSED WITH PREJUDICE. Each party shall bear its own attorney fees and costs incurred with respect to this claim. Plaintiffs Second Claim for Relief (Commercial Disparagement) (Against Cohen) is DISMISSED WITH PREJUDICE. Each party shall bear its own attorney fees and costs incurred with respect to this claim. Plaintiffs Fourth Claim for Relief (Quantum Meruit/Unjust Enrichment) (Against Cohen) is DISMISSED WITH PREJUDICE. Each party shall bear its own attorney fees and costs incurred with respectto this claim. Plaintiffs Eighth Claim for Relief (Injunction) (Against Cohen) is DISMISSED WITH PREJUDICE. Each party shall bear its own attorney fees and costs incurred with respect to this claim. Plaintiffs Ninth Claim for Relief (Declaratory Judgment) (Against Cohen and Lynch) is DISMISSED WITH PREJUDICE. Each party shall bear its own attorney fees and costs incurred with respectto this claim. Cohen shall have up to and including 6/20/2008 to file a Reply to Plaintiffs Response to Cohens Motion for Summary Judgment 196 . Signed by Judge Lewis T. Babcock on 06/02/2008.(sah, ) (Entered: 06/02/2008)

06/06/2008 206 Mail Returned as Undeliverable re: 200 Order, Addressed to Kelley Lynch. (sah, ) (Entered: 06/06/2008)

06/09/2008 207 Mail Returned as Undeliverable re: 179 Order on Motion for Extension of Time to File Response/Reply, Addressed to Kelley Lynch. (pap, ) (Entered: 06/09/2008)

06/09/2008 208 Mail Returned as Undeliverable re: 189 Order on Motion to Withdraw as Attorney, Addressed to Kelley Lynch. (pap, ) (Entered: 06/09/2008)

06/09/2008 209 Mail Returned as Undeliverable re: 177 Order on Motion for Order, Addressed to Kelley Lynch. (pap, ) (Entered: 06/09/2008)

06/20/2008 210 REPLY to Response to Motion re 185 MOTION for Summary Judgment filed by Defendant Leonard Cohen. (Attachments: # 1 Affidavit of Claudia Jones)(Myers, Andrew) (Entered: 06/20/2008)

06/21/2008 211 Mail Returned as Undeliverable re: 204 Order on Motion for Extension of Time to File Response/Reply. Addressed to Kelley Lynch. (sah, ) (Entered: 06/23/2008)


























07/01/2008 212 Mail Returned as Undeliverable re: 205 Order on Motion to Dismiss, Addressed to Kelley Lynch. (sah, ) (Entered: 07/01/2008)

07/01/2008 213 BRIEF in Opposition re 197 MOTION for Attorney Fees and Costs Against Cohen filed by Defendant Leonard Cohen. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit A-3, # 4 Exhibit A-4, # 5 Exhibit A-5, # 6 Exhibit A-6, # 7 Exhibit A-7, # 8 Exhibit A-8, # 9 Exhibit A-9, # 10 Exhibit A-10, # 11 Exhibit A-11, #12 Exhibit A-12, # 13 Exhibit A-13, # 14 Exhibit A-14)(Rice, Michelle) (Entered: 07/01/2008)

07/08/2008 214 Unopposed MOTION for Extension of Time to File Response/Reply as to 197 MOTION for Attorney Fees and Costs Against Cohen by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendants Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Greenberg & Associates Securities, Inc., Neal R. Greenberg. (Attachments: # 1 Proposed Order (PDF Only))(Scheid, R.) (Entered: 07/08/2008)

07/09/2008 215 MINUTE ORDER Granting 214 Motion for Extension of Time to File Response/Reply. Plaintiff has up to and including August 11, 2008 to file its reply. By Judge Lewis T. Babcock on 7/9/08.(psfcd) (Entered: 07/09/2008)

08/11/2008 216 REPLY to Response to Motion re 197 MOTION for Attorney Fees and Costs Against Cohen PLAINTIFF'S AND BARNETT'S REPLY IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES AND COSTS AGAINST COHEN filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3Exhibit B-1, # 4 Exhibit C)(Scheid, R.) (Entered: 08/11/2008)

08/22/2008 217 MOTION to Strike Submit Limited Surreply to 216 Plaintiffs' Reply in Support of Motion for Attorney Fees or, Alternatively, to Strike Opinion Letter of Daniel M. Reilly by Defendant Leonard Cohen. (Attachments: # 1 Proposed Order (PDF Only), # 2 Proposed Order (PDF Only))(Myers, Andrew) Modified on 8/25/2008 to create linkage to Plaintiffs reply(sah, ). (Entered: 08/22/2008)

08/22/2008 218 Docket Annotation re: 217 MOTION to Strike Submit Limited Surreply to Plaintiffs' Reply in Support of Motion for Attorney Fees or, Alternatively, to Strike Opinion Letter of Daniel M. Reilly. Entry modified to create linkage to Plaintiffs reply. Text only entry - no document attached (sah, ) (Entered: 08/25/2008)

08/25/2008 220 ORDER granting 217 Defendant Cohens Motion to Submit Limited Surreply to Plaintiffs Reply in Support of Motion for Attorney Fees or, Alternatively, to Strike Opinion Letter of Daniel M. Reilly. Defendant Cohen shall have up to and including 9/4/2008 to file a Surreply to Plaintiffs Reply in Support of Motion for Attorney Fees. Signed by Judge Lewis T. Babcock on 08/25/2008.(sah, ) (Entered: 08/26/2008)

08/26/2008 219 RESPONSE to Motion re 217 MOTION to Strike Submit Limited Surreply to Plaintiffs' Reply in Support of Motion for Attorney Fees or, Alternatively, to Strike Opinion Letter of Daniel M. Reilly filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendant Timothy Barnett. (Scheid, R.) (Entered: 08/26/2008)

09/04/2008 221 SURREPLY re 197 MOTION for Attorney Fees and Costs Against Cohen to Plaintiffs' Reply in Support of Motion for Attorneys Fees filed by Defendant Leonard Cohen. (Attachments: # 1 Exhibit A - Aisenberg rebuttal report)(Myers, Andrew) (Entered: 09/04/2008)










































09/05/2008 222 ORDER. Plaintiffs Tenth Claim for Relief for Interpleader is DISMISSED, denying as moot 185 Defendant Cohens Motion for Summary Judgment as to Plaintiffs Tenth Claim for Relief for Interpleader The interpleaded funds currently in the Registry of the Courtincluding any accrued interest, less the Court Registry handling feeshall be disbursed to Defendant Cohen within ten days of the date of this Order; Each party shall bear its own attorney fees and costs related to this motion. Signed by Judge Lewis T. Babcock on 09/05/2008.(sah, ) (Entered: 09/05/2008)

10/21/2008 223 ORDER denying 197 Plaintiffs Motion for Award of Attorneys Fees and Costs Against Cohen. Signed by Judge Lewis T. Babcock on 10/21/2008.(sah, ) (Entered: 10/21/2008)

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July 1, 2005Robert Kory files Notice of Removal.28 U.S.C. Section 1332(a)Entities organized under the State of Delaware … (with alleged places of business in ???)Cohen is a resident of California

Represented by James S. Bailey & Randall M. Livingston, Bailey & Peterson, P.C. Colorado

Date Filed # Docket Text

07/01/2005 1 NOTICE OF REMOVAL from Boulder County District Court, Case Number 2005CV507. ( Filing fee $ 250 Receipt Number 261197), filed by Robert Kory. (Attachments: # 1 Exhibit A# 2 Exhibit B, Part 1# 3 Exhibit B-Part 2-a# 4 Exhibit B, Part 2-b# 5 Exhibit B, Part 3# 6 Exhibit B, Part 4# 7 Exhibit B, Part 5# 8Exhibit B, Part 6# 9 Exhibit B, Part 7# 10 Exhibit B, Part 8# 11 Exhibit B, part 9# 12 Exhibit B, part 10# 13 Exhibit B, part 11# 14 Exhibit B, part 12# 15 Exhibit B, part 13# 16 Civil Cover Sheet and Supplement# 17 Civil Cover Sheet State Court)(bpm, ) Additional attachment(s) added on 7/5/2005 (bpm, ). Exhibits 1 through 10 to the State Court Complaint were attached on 7/14/05 (gms, ). (Modified on 7/14/2005 to indicate attachments added)(gms, ). (Entered: 07/05/2005)

08/18/2005 12 NOTICE of Entry of Appearance by Susan Ashlie Beringer on behalf of Leonard Cohen (Beringer, Susan) (Entered: 08/18/2005)

08/19/2005 17 DECLARATION of Leonard Norman Cohen by Defendant Leonard Cohen.

























(Attachments: # 1 Exhibit Cohen Declaration Exhibit 1# 2 Exhibit Cohen Declaration Exhibit 2)(Beringer, Susan) (Entered: 08/19/2005)

Exhibits are Cohen’s signed agreements with Greenberg

Not executed by me – thrown on the ground outside.

08/23/2005 19 SUMMONS Returned Executed by all plaintiffs. Kelley Lynch served on 8/10/2005, answer due 8/30/2005. (Chipman, David) (Entered: 08/23/2005)

09/16/2005 29 MOTION to Deposit Funds Under Federal Rule of Civil Procedure 67 for An Order Permitting the Deposit of Interpleaded Funds Into Registry of the Court by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Proposed Order (PDF Only) Proposed order)(Chipman, David) (Entered: 09/16/2005)

09/20/2005 30 BRIEF in Opposition re 29 MOTION to Deposit Funds Under Federal Rule of Civil Procedure 67 for An Order Permitting the Deposit of Interpleaded Funds Into Registry of the Court filed by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 09/20/2005)

09/21/2005 31 ORDER holding in abeyance Plaintiff's Motion 29 for an Order Permitting the Deposit of Interpleaded Funds into Registry and Defendant Cohen's 30 Opposition. The parties are directed to file status reports every 20 days until further order of Court. Signed by Judge Lewis T. Babcock on 9/21/05. (emksl, ) (Entered: 09/22/2005)


DOCUMENT 36:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05-

CV-01233-LTB-MJW GREENBERG & ASSOCIATES, INC., d/b/a Agile Advisors, Inc., a Delaware

corporation; TACTICAL ALLOCATION SERVICES, LLC, d/b/a/ Agile Allocation Services, LLC,

a Delaware limited liability company; AGILE GROUP, LLC, a Delaware limited liability

company; GREENBERG & ASSOCIATES SECURITIES, INC., d/b/a/ Agile Group, a Delaware

corporation; and NEAL R. GREENBERG, a Colorado resident, Plaintiffs, v. LEONARD COHEN,

a Canadian citizen residing in California; ROBERT KORY, a United States citizen

residing in California; KELLEY LYNCH, a United States citizen residing in California

and JOHN DOE, Nos. 1-25, Defendants.












DEFENDANT LEONARD COHEN'S STATUS REPORT

Pursuant to the Court's order of September 21, 2005, Defendant Leonard Cohen provides

the following status report of the proceedings in the United States District Court for

the Central District of California entitled, Leonard Norman Cohen, Petitioner v. Neal

R. Greenberg, et al., Respondents, Case No. CV 05-6047 RSWL.

In that case, Cohen sought an order compelling arbitration of (i) the purported claims

that Neal Greenberg and his companies, known as the Agile Group, have asserted against

Cohen in the action pending before this Court and (ii) Cohen's claims against

Greenberg and the Agile Group that Cohen has asserted in a Statement of Claim filed

with the NASD as the initial step in an arbitration proceeding.

On October 3, 2005, the federal court in Los Angeles held a hearing on Cohen's First

Amended Petition To Compel Arbitration and Greenberg and the Agile Group's motion to

stay proceedings in deference to the action pending in this Court. At the hearing on

October 3, 2005, the federal court announced its ruling from the bench. The court

granted Greenberg and the Agile Group's motion to stay proceedings on the ground that

the "first to file" rule applied and that the first filed action was before this

Court. It denied Cohen's motion to compel arbitration as moot and without prejudice.

Cohen respectfully contends that federal court in Los Angeles erred in applying the

first to file rule. Cohen, however, has decided to file his motion to compel

arbitration before this Court for resolution. Cohen intends to file the motion to

compel this week. Accordingly, Cohen respectfully requests that the Court defer any

ruling on the Agile Group's motion to deposit funds until it has ruled on Cohen's

motion to compel arbitration. Date: October 11, 2005

Respectfully submitted, s/S. Ashlie Beringer S. Ashlie Beringer GIBSON, DUNN &

CRUTCHER LLP 1801 California Street, Suite 4200 Denver, CO 80202-2642 Telephone: (303)

298-5700 Fax: (303) 296-5310 E-Mail: [email protected] D.C. Box No. 18 Attorneys

for Defendant Leonard Cohen

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10/11/2005 38 MOTION to Petition to Compel Arbitration by Defendant Leonard Cohen. (Attachments: # 1 Exhibit Ex. A to Defendant's Petition to Compel Arbitration# 2Exhibit Ex. B to Petition to Compel Arbitration# 3 Exhibit Ex. C to Petition to Compel Arbitration)(Beringer, Susan) (Entered: 10/11/2005)

10/11/2005 39 MOTION to Compel Arbitration by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 10/11/2005)














and JOHN DOE, Nos. 1-25, Defendants. DEFENDANT LEONARD COHEN'S MOTION TO COMPEL

ARBITRATION

TABLE OF CONTENTS Page I.

INTRODUCTION .........................................................................

.......................................... 1 II. FACTUAL

BACKGROUND............................................................................

...................... 5 III. THE AGILE GROUP IS CONTRACTUALLY OBLIGATED TO ARBITRATE

THE DISPUTES BETWEEN THE

PARTIES........................................................................ 7 A.

Cohen and the Agile Group Are Parties To Written Arbitration Agreements In The Form Of

The NASD Rules and In A Separate

Agreement.............................................................................

....................................... 8 1. Greenberg Securities and Neal Greenberg,

as NASD Members, Are Bound To Arbitrate Under NASD

Rules.................................................. 8 a. Greenberg Securities and

Neal Greenberg Admit That They Are Bound By The NASD Rules and Cohen is a

Customer................ 9 b. Greenberg & Associates, Inc., d/b/a Agile Advisors,

Inc.; TAS and Agile Group, LLC are bound by the NASD Rules............. 10 2. Cohen

Has A Written Agreement With TAS to Arbitrate Before The NASD in Los

Angeles ............................................................................

14 B. The Parties' Broad Arbitration Agreements Cover the Issues in

Dispute.................. 15 IV. CONCLUSION.......................................

TABLE OF AUTHORITIES Page(s) CASES Ansari v. Qwest Communications Corp., 404 F.3d 1214

(10th Cir.

2005) ................................................................................

..........................4 Brown v. Hyatt Corp., 128 F. Supp. 2d 697, 700 (D. Hawaii

2000).................................................................................

......6 Chiron Corp. v. Ortho Diagnostic Systems, Inc., 207 F.3d 1126, 1130 (9th Cir.

2000) ................................................................................

..................7 Dean Witter Reynolds, Inc, v. Byrd, 470 U.S. 213, 218

(1985)................................................................................

....................................7 Farkar Co. v. R.A. Hanson Disc, 583 F.2d 68 (2nd

Cir.

1978).................................................................................

.........................4, 12 Homestake Lead Co. v. Doe Run Resources Corp., 282 F.

Supp. 2d 1131, 1138 (N.D. Cal.

2003) ................................................................................

..14 J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315 (4th Cir.

1988) ................................................................................

......................15, 16 Kidder, Peabody & Co. v. Zinsmeyer Trusts P'ship, 41 F.3d

861, 863-64 (2d Cir.

1994) ................................................................................

....................8 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473

U.S. 614, 624 n.13

(1985)................................................................................

..........................14 Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460

U.S.1, 24

(1983)................................................................................

...........................................6 Multi-Financial Securities Corp. v. King,

386 F.3d 1364, 1367 (11th Cir.

2004) ................................................................................

........2, 3, 7 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 398

(1967)................................................................................

..............................6, 14 Pritzker v. Merrill Lynch, 7 F.3d 1110 (3d Cir.

1993).................................................................................

...............................12 Prograph International v. Barhydt, 928 F.Supp. 983

(N.D. Cal.

1996) ................................................................................

....................12 Roe v. Gray, 165 F.Supp. 2d 1164 (D.Colo.

2001).................................................................................

.................4 Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220, 226

(1987)................................................................................

....................................6 Simula, Inc. v. Autoliv, Inc., 175 F.3d 716 (9th

Cir.

1999) ................................................................................

............................15 United Steelworkers of America v. Warrior & Gulf, 363

U.S. 574

(1960)................................................................................

..........................................14 van't Rood v. County of Santa Clara, 113

Cal. App. 4th 549

(2003) ...............................................................................

............................11

Washington Square Securities v. Aune, 385 F.3d 432, 435(4th Cir.

2004) ................................................................................

.......................8

STATUTES 9 U.S.C. § 2 6 9 U.S.C. §

4.....................................................................................

........................................................7 RULES NASD Rule

0120(g) ..............................................................................

.................................................8 NASD Rule

10101 ................................................................................

..................................................7 NASD Rule

10301(a)..............................................................................

................................................7 NASD Rule

2270(b) ..............................................................................

.................................................8

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendant Leonard Norman Cohen ("Cohen") requests that this Court grant an order

compelling Plaintiffs Greenberg & Associates Securities, Inc., d/b/a/ Agile Group;

Tactical Allocation Services, LLC, d/b/a/ Agile Allocation Services, LLC; Agile Group,

LLC; Greenberg & Associates, Inc., d/b/a Agile Advisors, Inc. and Neal R. Greenberg

(collectively the "Agile Group") to arbitrate:

(i) The Agile Group's purported claims asserted against Cohen in an action now pending

before this Court; and

(ii) Cohen's claims against the Agile Group as alleged in his Statement of Claim filed

with the NASD Dispute Resolution ("NASD").1

Cohen is an internationally known poet, songwriter and artist. Beginning in the mid-

1990's, he was a customer of the Agile Group which runs, under the consolidated group

name, "Agile Group", an asset and investment management organization. The members of

the Agile Group includes a securities broker-dealer, Greenberg & Associates

Securities, Inc., d/b/a Agile Group ("Greenberg Securities"), as well as investment

managers and advisors, Tactical Allocation Services, LLC ("TAS"), d/b/a/ Agile

Allocation Services, LLC; Agile Group, LLC; and Greenberg & Associates, Inc., d/b/a/

Agile Advisors, Inc. Neal Greenberg is an owner, director and/or officer of each of

the entities comprising the Agile Group. Cohen retained the Agile Group to assist him

in creating an investment strategy that would preserve his assets for his retirement

and to provide an estate for his children.

FN 1 Declaration of Joel A. Feuer ("Feuer Decl."), Exh. A.

As alleged in Cohen's Statement of Claim before the NASD, the Agile Group failed Cohen

in numerous ways including (but not limited to): it designed an investment transaction

that incurred millions of dollars in transaction costs thereby reducing the value of

Cohen assets; it failed to implement investments that would be protected from the

wrongdoing of Cohen's business manager; and it aided and abetted Cohen's business

manager's tortious acts by making material misrepresentations and omissions to Cohen

about the accounts that they were managing for his benefit. The Agile Group's breaches

resulted in Cohen losing millions of dollars. Feuer Decl., Exh. A.

Several months ago, prior to filing his Statement of Claim with the NASD, Cohen

contacted the Agile Group, advised it of the bases for his claims against the Agile

Group, and sought a voluntary resolution through mediation. In an attempt to sidetrack

Cohen from pursuing his claims, the Agile Group first filed its own complaint in

Colorado state court alleging essentially that Cohen has no legitimate claim against

them and that Cohen's attempts to persuade them to mediate the dispute constitutes

tortious conduct on his behalf. The case was removed to this Court.

There are several grounds for this Court to order the Agile Group to arbitrate these

claims:

First, the Agile Group acknowledges that Greenberg Securities is a member of the NASD

and that Neal Greenberg is an associated person under the NASD rules because he is an

officer of Greenberg Securities.2 Because of these memberships, Greenberg Securities

and

Greenberg are governed by the NASD Rules, including Rule 10301(a) which obligate its

members and their associated persons to arbitrate before the NASD all claims brought

by a public customer arising out of the parties' relationship. See, e.g, Multi-

Financial Securities Corp. v. King, 386 F.3d 1364, 1367 (11th Cir. 2004)("...the

[NASD] Code serves as a sufficient written agreement to arbitrate [for purposes of the

Federal Arbitration Act], binding its members to arbitrate a variety of claims with

third-party claimants"). Cohen is a public customer of the members of the Agile Group,

including Greenberg Securities.

Second, TAS, Agile Group, LLC, and Greenberg & Associates, Inc., d/b/a/ Agile

Advisors, Inc. are also bound under the NASD Rules under the legal theory of agency

because (i) they have held themselves out as NASD members through the common use of

the "Agile Group" name in their public advertisements and private communications and

(ii) they have acted as the agents of Greenberg Securities in connection with the

investment management business of Agile Group. As explained in detail in this

Memorandum, the members of the Agile Group hold themselves out to the public as a

single organization on their website, www.agilefunds.com,3 sharing the same business

address, the same corporate officers, the same corporate organization and all doing

business under the same corporate group name "Agile Group", the d/b/a of Greenberg

Securities, the member of the NASD. The members of the Agile Group frequently use the

same letterhead which advises the reader that "Agile Group" is a member of the NASD.

They have acted as agents of Greenberg Securities by providing investment advise to

Cohen under the cover of Greenberg Securities letterhead. In filings with the

Securities & Exchange Commission ("SEC"), TAS has admitted that it and the other

members of the Agile Group are

FN 2 The NASD defines "associated person" as: "A person engaged in the investment

banking or securities business who is directly or indirectly controlled by an NASD

member, whether or not this person is registered or exempt from registration with

NASD. Every sole proprietor, partner, officer, director, or branch manager of any NASD

member." See www.nasd.com (glossary of terms). Feuer Decl., Exh. B. Greenberg is

registered under NASD rules and is a principal of the Agile Group.

3 Feuer Decl., Exh. C.

under common control.4 Moreover, Greenberg Securities, the NASD member, holds them out

as its agents in connection with its business. Federal law allows a court to require a

non-signatory to an arbitration agreement to arbitrate claims against it based upon

the fact that it was acting and operating as the agent of a person or entity that

agreed to arbitrate the claims. See e.g., Farkar Co. v. R.A. Hanson Disc, 583 F.2d 68

(2nd Cir. 1978) (sales agent subsidiary bound by arbitration agreement with third

party signed by corporate parent). Finally, Cohen and TAS are parties to a written

arbitration agreement that requires the parties to arbitrate all claims arising our of

their relationship before the NASD. TAS incorrectly contends that the scope of the

arbitration provisions in the written arbitration agreement are limited and do not

apply to the Agile Group's claims. TAS also incorrectly contends that the arbitration

agreements were superseded by new agreements even though they were never signed by

Cohen or anyone acting on his behalf. As shown in this Memorandum, TAS is mistaken in

its construction of the arbitration agreements and their effect. Accordingly, Cohen

requests that this Court order each of the members of the Agile Group to arbitrate

their purported claims and Cohen's claims before the NASD. Cohen originally asked this

Court to dismiss this action or to stay it pending the resolution of a Petition to

Compel Arbitration against the Agile Group that Cohen filed in the United States

District Court for the Central District of California. Cohen commenced that action

because under applicable Tenth Circuit law, this Court could not compel the Agile

Group to arbitrate their claims in Los Angeles, only in a location with the district

of Colorado. Ansari v. Qwest Communications Corp., 404 F.3d 1214 (10th Cir. 2005); and

see Roe v. Gray, 165 F.Supp. 2d 1164 (D.Colo. 2001). In response to Cohen's Petition

to Compel Arbitration in federal court in Los Angeles, the Agile Group filed a motion

to stay the proceedings in federal court in Los Angeles, relying upon the "first to

file" rule and pointing out that the action was first filed in Colorado state court

and then removed to this Court prior to Cohen commencing the action in Los Angeles

federal court. Cohen urged that the first to file rule did not apply because Cohen

could not obtain from this Court the relief he sought: an order compelling Agile Group

to arbitrate their claims in Los Angeles. Under the holdings of Ansari and Roe, Cohen

believed that it should seek its relief in the district in which the parties had

agreed to arbitrate.

On October 3, 2005, the federal court in Los Angeles granted the Agile Group's motion

to stay the action in Los Angeles in deference to the fact that this action was the

first filed. The federal court denied the petition to compel arbitration as moot and

without prejudice.

Cohen maintains that the order of the federal court in Los Angeles is erroneous.

Nevertheless, following the implied directions of the Los Angeles federal court, Cohen

has decided to petition this Court for an order compelling arbitration of the claims

asserted by Agile Group against Cohen and Cohen's claims against the Agile Group.

Cohen seeks an order compelling the Agile Group to arbitrate all claims before the

NASD without reference to the place of arbitration. The NASD can then determine the

place of arbitration by virtue of its rules and policies.

Feuer Decl., Exh. D.

FRAUD UPON COLORADO AND CENTRAL CALI COURTS

II. FACTUAL BACKGROUND

Cohen was introduced to the Agile Group in or about 1996 in connection with efforts by

Cohen and his then business manager, Kelly Lynch, to try to transform some of his

current royalty-producing assets in a manner that would reduce his potential tax

liability associated with the assets and to provide for investments that would fund

his retirement and provide money for his children after his death. Cohen received tax

advice, estate planning advice and investment advice from the Agile Group and placed

his money with the Agile Group.

In the fall of 2004, when Cohen learned that he had suffered staggering losses of

millions of dollars in some of the accounts for which the Agile Group was responsible.

Cohen, through his counsel, alleged that the Agile Group was liable to Cohen as a

result of its tortious acts and omissions and breaches of contractual, legal and

professional duties. Cohen subsequently attempted to resolve the matter through

mediation, but the Agile Group rebuffed Cohen's settlement overtures and instead

preemptively filed the Colorado action. The nature of Cohen's claims against the Agile

Group are set forth in the Statement of Claim and include breach of contract,

misrepresentation and negligence. All of the claims arise out of Cohen's relationship

with the Agile Group in connection with its business of advising him, managing his

assets and investments, and maintaining his accounts. Feuer Decl., Exh. A.

AGILE PUT THESE FUNDS BEFORE THE COURT TO PRESSURE LYNCH. GREENBERG WAS HYSTERICAL IN THE FALL OF 2004 AND CONTINUOUSLY URGED LYNCH TO BE “REASONABLE” WITH COHEN.

In the pending action in this Court, the Agile Group alleges five separate causes of

action against Cohen, including civil conspiracy, outrageous conduct, civil extortion,

defamation and a claim for interpleader for the purpose of determining entitlement to

certain funds that the Agile Group manages.5 The Agile Group bases these claims on

Cohen's alleged misconduct in connection with his efforts to recover the millions of

dollars of losses that resulted from the Agile Group's professional misconduct. Feuer

Decl., Exh. A.

While Cohen vigorously denies the Agile Group's allegations, they should be arbitrated

pursuant to the parties' agreement to arbitrate, rather than litigated in federal

court.

5 As to the interpleader claim, the Agile Group joined Lynch on the basis that she

claims entitlement to certain funds at issue. Any claim by the Agile Group against

Lynch, who acted as either the purported (albeit faithless) agent of Cohen or as a

purported customer of the Agile Group is also subject to arbitration under NASD member

rules.

III. THE AGILE GROUP IS CONTRACTUALLY OBLIGATED TO ARBITRATE THE DISPUTES BETWEEN THE

PARTIES

FRAUD RE. FEDERAL ARBITATION ACT. INTEFERENCE WITH COMMERCE.

The Federal Arbitration Act ("FAA") is applicable where, as here, the contract

containing an agreement to arbitrate "evidenc[es] a transaction involving commerce." 9

U.S.C. § 2. The "involving commerce" language is not to be construed narrowly, see

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 401 n.7, 87 S.Ct. 1801

(1967), and contracts involving interstate management of securities fall squarely

within the purview of the FAA. See, e.g., Brown v. Hyatt Corp., 128 F. Supp. 2d 697,

700 (D. Hawaii 2000).

The United States Supreme Court has recognized that the FAA established a strong

federal public policy in favor of arbitration, Moses H. Cone Mem. Hosp. v. Mercury

Constr. Corp., 460 U.S.1, 24, 103 S.Ct. 927 (1983), that requires courts to

"rigorously enforce agreements to arbitrate." Shearson/American Exp., Inc. v. McMahon,

482 U.S. 220, 226, 107 S.Ct. 2332 (1987). Indeed, by its very terms, the FAA "leaves

no place for the exercise of discretion by a district court, but instead mandates that

district courts shall direct the parties to proceed to arbitration on issues as to

which an arbitration agreement has been signed." Chiron Corp. v. Ortho Diagnostic

Systems, Inc., 207 F.3d 1126, 1130 (9th Cir. 2000) (emphasis in original) (quoting

Dean Witter Reynolds, Inc, v. Byrd, 470 U.S. 213, 218 (1985)). As such, the court

"shall make an order directing the parties to proceed to arbitration" 9 U.S.C. § 4

(emphasis added), upon determination that (1) a valid arbitration agreement exists,

and (2) the agreement encompasses the dispute at issue. Chiron Corp., supra, 207 F.3d

at 1130.

A. Cohen and the Agile Group Are Parties To Written Arbitration Agreements In The Form

Of The NASD Rules and In A Separate Agreement 1. Greenberg Securities and Neal

Greenberg, as NASD Members, Are Bound To Arbitrate Under NASD Rules

….

THE ALTER EGO. TH WAS THE ALLEGED CUSTOMER. WERE ALL OF GREENBERG’S FINANCIAL STATEMENTS TO TH EVIDENCE OF MAIL FRAUD, ETC?

The Agile Group certainly views Cohen as a customer. Their First Amended Complaint

begins with the allegation: This action presents a remarkable situation in which a

Colorado broker-dealer and investment advisor...is compelled to seek legal recourse

against one of its own clients." (emphasis added)

Similarly the correspondence between Greenberg, the associated person of Greenberg

Securities (and the other members of the Agile Group) and Cohen shows that Greenberg

Securities and the Agile Group considered Cohen as customer. Thus, Greenberg's e-mail

to Cohen of June 18, 2002 begins: Dear Leonard, Due to the unstable markets of late, I

wanted to take some time to review how we are handling your investments at this time.

In general, we move your investments between money markets and stocks and bonds....

Feuer Decl., Exh. G.

Likewise, in an undated memo on Greenberg Securities letterhead, Neal Greenberg

advised Cohen on Estate Tax Issues, again reflect a customer relationship with Cohen.

Feuer Decl., Exh. H.

In sum, there is an enforceable arbitration agreement under the NASD Rules between

Cohen the customer, on the one hand, and Greenberg Securities and Neal Greenberg the

NASD members, on the other hand, to arbitrate their disputes arising out of the

business of Greenberg Securities and Neal Greenberg before the NASD.

Much of the correspondence between the Agile Group and Cohen was by e-mail and sent by

Neal Greenberg using the e-mail address @gagroup.com so that there was no designation

indicating which member of the Agile Group was sending the e-mail. Because they act

together – TAS and Greenberg & Associates managing investments and buying and selling

securities through Greenberg Securities – there was no need to separate out the

entities in the e-mails. Feuer Decl., Exh. G.

Cohen Has A Written Agreement With TAS to Arbitrate Before The NASD in Los Angeles

Cohen and TAS – a member of the Agile Group – entered into an Investment Advisory

Agreement ("Investment Agreement"), pursuant to which TAS was to provide financial

advisory and management services to Cohen and which, notably, contain arbitration

clause. The Investment Agreements contains arbitration provisions, which state, "[a]ny

dispute or controversy rising out of or relating to this Agreement . . . or any breach

of this Agreement . . . or with respect to the relationship between [TAS] and [Cohen]

shall be settled by final and binding arbitration to be held in Colorado in accordance

with the rules in effect of the NASD Arbitration Association." (emphasis added) See

Feuer Decl. ¶14, Exh. M. 7

7 In the Los Angeles action, Cohen relied upon similar agreements providing for

arbitration in Los Angeles, Feuer Decl., Exh. P. Cohen is not insisting in this motion

that the parties arbitrate in Los Angeles, only that the arbitration be held before

the NASD as agreed upon.

…

Clearly Cohen's claims as articulated in the Statement of Claim fall within the

provisions; all concern Cohen's business relationship with the Agile Group. In brief,

Cohen alleges that the Agile Group's advice resulted in losses of millions of dollars

because they structured transactions to have millions in transaction costs, created an

investment vehicle for Cohen's benefit that was not designed to protect the funds in

the accounts they managed from being taken by Cohen's business manager and they made

material misrepresentations and omissions to Cohen regarding the transactions in his

accounts and the accounts for his benefit and the value of such accounts. Feuer Decl.,

Exh. A.

The Agile Group's tort claims against Cohen – civil conspiracy, outrageous conduct,

civil extortion, defamation and interpleader – arise out of Cohen's conduct when he

confronted the Agile Group with charges that their mishandling of his securities

accounts resulted in the loss of millions of dollar and are thus arbitrable. As to the

Agile Group's interpleader claim which seeks to resolve entitlement to certain funds

managed by the Agile Group for Cohen, it too is subject to arbitration because it

arises in connection with money held in accounts managed by Agile Group and to which

Cohen makes a claim.

CONCLUSION Pursuant to both (1) the parties' express agreement to arbitrate before the

NASD and (2) the arbitration requirements imposed by the NASD on its members and their

agents, each member of the Agile Group, including Neal Greenberg, is bound to

arbitrate the present dispute before the NASD. Accordingly, Petitioner Cohen

respectfully requests that his Petition to Compel Arbitration before the NASD be

granted. Date: October 11, 2005 Respectfully submitted, s/Ashlie Beringer S. Ashlie

Beringer GIBSON, DUNN & CRUTCHER LLP

[email protected]

Attorneys for Defendant Leonard Cohen

10/11/2005 40 DECLARATION of Joel A. Feuer regarding MOTION to Compel Arbitration 39 by Defendant Leonard Cohen. (Attachments: # 1 Exhibit Ex. A to Declaration# 2Exhibit Ex. B to Declaration# 3 Exhibit Ex. C to Declaration# 4 Exhibit Ex. D to Declaration# 5 Exhibit Ex. E to Declaration# 6 Exhibit Ex. F to Declaration# 7Exhibit Ex. G to Declaration# 8 Exhibit Ex. H to Declaration# 9 Exhibit Ex. I to Declaration# 10 Exhibit Ex. J to Declaration# 11 Exhibit Ex. K to Declaration# 12Exhibit Ex. L to Declaration# 13 Exhibit Ex. M to Declaration# 14 Exhibit Ex. N to

















mailto:[email protected]

Declaration# 15 Exhibit Ex. O to Declaration# 16 Exhibit Ex. P to Declaration)(Beringer, Susan) (Entered: 10/11/2005)

10/19/2005 43 LETTER re: 38 MOTION to Petition to Compel Arbitration, 40 Declaration,, [attaching clearer copies of exhibits per court's request] by Defendant Leonard Cohen. (Attachments: # 1 (Attachment) Exhibit A to Defendant Cohen's Petition to Compel Arbitration (Dckt No. 38)# 2 (Attachment) Exhibit C to Declaration of J. Feuer in Support of Defendant Cohen's Motion to Compel Arbitration (Dckt No. 40))(Beringer, Susan) (Entered: 10/19/2005)

Exhibits Attached to 43

1 (Attachment) Exhibit A to Defendant Cohen's Petition to Compel Arbitration

7 pages 371 kb

2 (Attachment) Exhibit C to Declaration of J. Feuer in Support of Defendant Cohen

8 pag










and JOHN DOE, Nos. 1-25, Defendants. DEFENDANT LEONARD COHEN'S STATUS REPORT Pursuant

to this Court's Order of September 21, 2005, Defendant Leonard Cohen provides the

following status report. There have been no significant developments in this action or

in the related proceedings in the United States District Court for the Central

District of California entitled, Leonard Norman Cohen, Petitioner v. Neal R.











Greenberg, et al., Respondents, Case No. CV 05-6047 RSWL, since the date of Cohen's

last status report filed on October 11, 2005.

Date: October 31, 2005 Respectfully submitted, s/S. Ashlie Beringer S. Ashlie Beringer

GIBSON, DUNN & CRUTCHER LLP 1801 California Street, Suite 4200 Denver, CO 80202-2642

Telephone: (303) 298-5700 Fax: (303) 296-5310 E-Mail: [email protected]

Attorneys for Defendant Leonard Cohen

11/04/2005 54 NOTICE of Entry of Appearance of Joel A. Feuer by Susan Ashlie Beringer on behalf of Leonard Cohen (Beringer, Susan) (Entered: 11/04/2005)

11/15/2005 59 BRIEF re 39 MOTION to Compel Arbitration by Defendant Leonard Cohen. (Beringer, Susan) (Entered: 11/15/2005)

DEFENDANT LEONARD COHEN'S REPLY BRIEF IN FURTHER SUPPORT OF HIS PETITION AND MOTION TO

COMPEL ARBITRATION

THE CLAIMS BELONGED TO TH.

The Agile Group's Argument That Cohen Does Not Have Standing To Complain About

Accounts In The Name Of Traditional Holdings Is Irrelevant To The Issue Of Arbitration

The Agile Group urges that Cohen does not have standing to assert the claims he

alleged against the Agile Group in his Statement of Claim before the NASD on the basis

that those claims belong to an entity known as Traditional Holdings, LLC. Although the

Agile Group's analysis is wrong, more importantly, it is irrelevant to the issue of

whether arbitration should be compelled. Cohen's standing to assert the claims is a

procedural issue that can be resolved by the arbitrator. See Aluminum Brick & Glass

Workers Int'l Union v. AAA Plumbing Pottery Corp., 991 F.2d 1545, 1550 (11th Cir.

1993) (defense of standing goes to the merits of the dispute or questions of procedure

that should be left to the arbitrator); Howsam v. Dean Witter Reynolds, Inc, 537 U.S.

79, 82-85, 123 S.Ct. 588 (2002) (in enforcing an arbitration provision, courts will

only determine limited gateway issues that do not concern the procedure or merits of

the dispute); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909

(1964) ("Once it is determined . . . that the parties are obligated to submit the

subject matter of a dispute to arbitration, 'procedural' questions which grow out of

the dispute and bear on its final disposition should be left to the arbitrator").1




ALL CLAIMS AT ISSUE ARE COVERED BY THE BROAD LANGUAGE CONTAINED WITHIN THE TAS

AGREEMENT AND THE NASD RULES

All claims at issue here, whether cast in tort or contract, stem from Cohen's

allegations that the Agile Group was responsible for his losses of millions of

dollars. Cohen's claims, that he first discovered and brought to Plaintiffs' attention

in the fall of 2004 and ultimately filed with the NASD, include: breach of contract,

breach of the implied covenants of good faith and fair dealing, breach of fiduciary

duty, fraud, negligent misrepresentations and negligence. See Feuer Decl., Exh. A.

All of these claims are based on the Agile Group's misconduct that led to Cohen's

losses, including (1) its negligent misrepresentations concerning the sale of Cohen's

three royalty-producing assets (2) its permitting Lynch to loot Cohen's accounts and

(3) its misrepresentations concerning the status and balance of Cohen's accounts and

omissions regarding Kelley Lynch's substantial withdrawals.

The Agile Group's claims, which include civil extortion, civil conspiracy, defamation

and outrageous conduct, purportedly arose when Cohen first informed Plaintiffs of his

claims against them and sought to settle them through mediation. Indeed, the gravamen

of Plaintiffs' complaint is that Cohen (and his co-defendant Kory) defamed their

professional competence and attempted to extort them into settling Cohen's claims

against them.

The Broad Language Of The TAS Agreement Is Not Limited To Any Specific Account And

Covers All The Claims At Issue The language of the TAS agreement's arbitration clause

is sweeping in scope as it applies to "[a]ny dispute or controversy rising out of or

relating to this Agreement . . . or any breach of this Agreement . . . or with respect

to the relationship between TAS and Client [Cohen] shall be settled by final and

binding arbitration . . . " (emphasis added) See Feuer Decl., Exh. M. The second

sentence of the Agreement further reveals its breadth: "The purpose of this Agreement

is for TAS to evaluate and manage the portfolio of Client's assets among specified

mutual funds and/or variable annuity accounts registered in the Client's name and to

arrange for all necessary transfers to keep the portfolio aligned with TAS's

determination of investment values." Id.

Plaintiffs' argument that the TAS Agreement's arbitration clause applies only to a

specific account is contrary to this plain language, and there is nothing else on the

face of the Agreement – which the Agile Group itself drafted – that could in any way

support such a limited reading.

V. CONCLUSION For the reasons discussed above and in Cohen's initial moving papers,

Cohen respectfully requests that this Court issue an Order Compelling Plaintiffs to

submit to arbitration before the NASD.

11/15/2005 60 DECLARATION of Joel A. Feuer regarding Brief 62 by Defendant Leonard Cohen. (Attachments: # 1 Exhibit A to Supplemental Declaration of Joel A. Feuer# 2Exhibit B to Supplemental Declaration of Joel A. Feuer# 3 Exhibit C to Supplemental Declaration of Joel A. Feuer# 4 Exhibit D to Supplemental Declaration of Joel A. Feuer)(Beringer, Susan) (Modified on 11/17/2005 to change linkage from Doc 59 to 62)(gms, ). (Entered: 11/15/2005)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 05-cv-01233-LTB-MJW GREENBERG & ASSOCIATES, INC., d/b/a Agile

Advisors, Inc., a Delaware corporation; TACTICAL ALLOCATION SERVICES, LLC, d/b/a/

Agile Allocation Services, LLC, a Delaware limited liability company; AGILE GROUP,

LLC, a Delaware limited liability company; GREENBERG & ASSOCIATES SECURITIES, INC.,

d/b/a/ Agile Group, a Delaware corporation; and NEAL R. GREENBERG, a Colorado

resident, Plaintiffs, v. LEONARD COHEN, a Canadian citizen residing in California;

ROBERT KORY, a United States citizen residing in California; KELLEY LYNCH, a United

States citizen residing in California and JOHN DOE, Nos. 1-25, Defendants.

SUPPLEMENTAL DECLARATION OF JOEL A. FEUER IN SUPPORT OF DEFENDANT LEONARD COHEN'S

MOTION TO COMPEL ARBITRATION

SUPPLEMENTAL DECLARATION OF JOEL A. FEUER

I, Joel A. Feuer, declare: 1. I am an attorney licensed to practice law in the State

of California, and I have been admitted pro hac vice to practice before this Court in

the above matter. I am a partner in the firm of Gibson, Dunn & Crutcher LLP, counsel

for Petitioner and Defendant Leonard Norman Cohen. I make this declaration in further

support of Cohen's Petition and Motion For An Order Compelling Arbitration and his

Motion to Compel Arbitration. The facts stated in this declaration are from my

personal knowledge, and if called as a witness, I would and could testify competently

thereto. 2. On or about August 24, 2005, I received a letter from NASD Dispute







Resolution regarding the Statement of Claim that I had caused to be filed on behalf of

Leonard Cohen against the members of the Agile Group. A copy of the letter is attached

as Exhibit C to the Agile Group's Opposition to Cohen's Motion To Compel Arbitration.

The letter advised me of two "deficiencies" regarding the Statement of Claim. The

first was that the NASD required the original of the Uniform Submission Agreement, a

form the NASD requires, executed by Mr. Cohen. I had only sent copies. I have since

provided the NASD with the original NASD Uniform Submission Agreement executed by Mr.

Cohen. The second deficiency was that, according NASD records, three of the five

respondents named in the Statement of Claim, Agile Group, LLC, Tactical Allocation

Services LLC and Greenberg & Associates, Inc. were not members of the NASD. The NASD

indicated that it could assert jurisdiction over these parties pursuant to a court

order compelling arbitration.

On or about September 6, 2005 and again on October 5, 2005, I sent letters to the NASD

regarding the proceedings to compel arbitration pending in the United States District

Court for the Central District of California. Prior to sending each letter, I orally

advised the NASD administrator, Ms. Andrade, of the status and was advised that,

pending the outcome of Cohen's efforts to compel arbitration, the NASD would not

dismiss the claims against the nonNASD members. Copies of my letters to Ms. Andrade

are attached hereto as Exhibits A and B. 4. After reviewing the Agile Group's

Opposition arguments regarding the status of Cohen's Statement of Claim before the

NASD, I called Ms. Andrade's office at the NASD and requested that the NASD provide me

with a letter describing the current status of Cohen's arbitration against the Agile

Group members. Attached hereto as Exhibit C is a letter dated November 3, 2005 from

Ms. Katrina Key advising me that the "matter remains pending" on the NASD's docket. 5.

Attached hereto as Exhibit D is a copy of the General Instructions and Glossary of

Terms for Form ADV as published by the Securities & Exchange Commission and found at

www.sec.gov/about/forms/formadv-instructions.pdf. The Glossary of Terms starting on

page 27 of this Declaration includes the definitions of terms for "Advisory Affiliate"

and "Control," which are referred to in the Reply Brief, filed with this Declaration.

I declare under penalty of perjury under the laws of the United States that the

foregoing is true and correct. Executed this 15th day of November, 2005 at Los

Angeles, California. s/Joel A. Feuer JOEL A. FEUER

Document Number: 60 3 pages 14 kb

Attachment Description

1 Exhibit A to Supplemental Declaration of Joel A. Feuer

3 pages 57 kb

2 Exhibit B to Supplemental Declaration of Joel A. Feuer

3 pages 76 kb

3 Exhibit C to Supplemental Declaration of Joel A. Feuer

2 pages 32 kb

4 Exhibit D to Supplemental Declaration of Joel A. Feuer

25 pages 1.0 mb

Exhibit A – Letter to NASD (Los Angeles)

Exhibit B – Letter to NASD (Los Angeles)

Exhibit C – NASD Letter to Joel Feuer (Gibson Dunn, Los Angeles)

Exhibit D – NASD Forms

12/14/2005 66 RECEIPT for $2665.88 by Agile Allocation Svcs pursuant to 58 Order on Motion to Deposit Funds of 11/14/05, (gms, ) (Entered: 12/14/2005)

12/14/2005 67 RECEIPT for $149,500.00 from Winchester Reserves pursuant to 58 Order on Motion to Deposit Funds of 11/14/05 (gms, ) (Entered: 12/14/2005)

12/21/2005 73 ORDER denying Cohen's 38 and 39 Motion to Compel Arbitration. Signed by Judge Lewis T. Babcock on 12/21/05. (emksl, ) (Entered: 12/22/2005)

BABCOCK ORDER RE. COHEN’S MOTION TO COMPEL

ARBITRATION

ORDER IS REPLETE WITH FRAUD













IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Lewis T. Babcock,

Chief Judge Civil Case No. 05-cv-01233-LTB-MJW GREENBERG & ASSOCIATES. INC., d/b/a

Agile Advisors, Inc. a Delaware corporation, TACTICAL ALLOCATION SERVICES, LLC, d/b/a

Agile Allocation Services, LLC, a Delaware limited liability company, AGILE GROUP,

LLC, a Delaware limited liability company, GREENBERG & ASSOCIATES SECURITIES, INC.,

d/b/a Agile Group, a Delaware corporation, and NEAL R. GREENBERG, a Colorado resident,

Plaintiffs, v. LEONARD COHEN, a Canadian citizen residing in California, KELLEY LYNCH,

a United States citizen residing in California, and JOHN DOE, Numbers 1-25,

Defendants.

______________________________________________________________________________

ORDER

______________________________________________________________________________

The defendant Leonard Cohen moves for an order compelling arbitration of the

plaintiffs’ claims against him. The parties have provided briefs, exhibits, and oral

arguments. For the reasons stated below, I DENY the motion. I. Allegations The

allegations of the Amended Complaint are substantially the following. In 1997, Mr.

Cohen, a resident of California, retained the plaintiffs, directed by the plaintiff

Neal Greenberg and headquartered in Boulder, Colorado, to create for him charitable

trusts and to manage the assets placed into those trusts. Mr. Cohen allegedly drew

extravagant sums from the trusts, depleting the principal amounts and impeding the

plaintiffs’ efforts successfully to invest the funds in profitable ventures. The

defendant Kelley Lynch, Mr. Cohen’s manager, oversaw and had power of attorney over

all of Mr. Cohen’s financial dealings. Mr. Greenberg allegedly warned Ms. Lynch and

Mr. Cohen on occasions that Mr. Cohen was spending too much and, absent a change of

habit, would become destitute.

In October, 2004, Mr. Cohen and Ms. Lynch allegedly parted ways and began to issue

competing directives to the plaintiffs. They each blamed the other for Mr. Cohen’s

financial distress. Mr. Cohen claimed that Ms. Lynch had deprived him of substantial

sums of money. Thereafter, Mr. Cohen and his personal attorney, Robert Kory, allegedly

conspired to extort the lost sums from the plaintiffs by tarnishing the plaintiffs’

reputation, asserting spurious claims, and coercing a settlement from the plaintiffs’

insurance carrier. This they intended to accomplish using Mr. Cohen’s fame as a

prominent recording artist to publish defamatory statements about the plaintiffs. They

tried to compel Ms. Lynch to participate in their project by, among other tactics,

having her arrested on false pretenses and initiating proceedings to deprive her of

her children. The Amended Complaint does not indicate that this purported thuggery was

effective.

Mr. Kory, acting on Mr. Cohen’s behalf, sent an allegedly defamatory demand letter to

Mr. Greenberg’s attorney, wrongly accusing the plaintiffs of fraud and various

breaches of fiduciary duty. After the plaintiffs filed this lawsuit, Messrs. Cohen and

Kory allegedly published defamatory statements on Mr. Cohen’s web site, blaming the

plaintiffs for the lost monies, asserting that the plaintiffs had wrongfully permitted

Ms. Lynch to withdraw unauthorized sums, and asserting that the plaintiffs had

provided Mr. Cohen with fraudulent accounting records.

Mr. Cohen and Ms. Lynch now dispute entitlement to the funds remaining in the trusts.

Each seeks immediate acquisition of the funds. The plaintiffs have filed an

interpleader action

against both Mr. Cohen and Ms. Lynch and assert additional claims against Mr. Cohen

for civil conspiracy, outrageous conduct (emotional distress), civil extortion, and

defamation.

II. Evidentiary Materials

Mr. Cohen asks this Court to enforce an arbitration clause contained in a January,

1997 services agreement (“1997 Agreement”) to which he and the plaintiff Tactical

Allocation Services, LLC (“Tactical”) were parties. That clause states, Any dispute or

controversy rising out of or relating to this Agreement, any document or instrument

delivered pursuant to, in connection with, or simultaneously with this Agreement or

any breach of this Agreement or such documentation or instrument, or with respect to

the relationship between TAS and Client shall be settled by final and binding

arbitration to be held in Boulder, Colorado in accordance with the rules in effect of

the NASD Arbitration Association. Judgment may be entered on the arbitrator’s decision

in any court having jurisdiction, and the parties irrevocably consent to the

jurisdiction of the Colorado courts for this purpose.

The plaintiffs respond that a series of February 26, 2002 agreements, signed by Ms.

Lynch on Mr. Cohen’s behalf, supersede the 1997 Agreement and control here. One of the

2002 agreements (“Tactical Agreement”), ostensibly between Mr. Cohen and Ms. Lynch as

“CLIENT” and Tactical as “ADVISER,” provides, This Agreement supersedes and replaces,

in its entirety, all previous investment advisory agreement(s) between the parties. To

the extent not inconsistent with applicable law, this Agreement shall be governed by

and construed in accordance with the laws of the State of Colorado. In addition, to

the extent not inconsistent with applicable law, the venue (i.e. location) for the

resolution of any dispute or controversy between ADVISER and CLIENT shall be the

County of Boulder, State of Colorado.

Tactical Agreement ¶ 20. The arbitration clause of the Tactical Agreement provides,

Subject to the conditions and exceptions noted below, and to the extent not

inconsistent with applicable law, in the event of any dispute pertaining to ADVISER’s

services under this Agreement, both ADVISER and CLIENT agree to submit the dispute to

arbitration in accordance with the auspices and rules of the American Arbitration

Association (“AAA”), provided that the AAA accepts jurisdiction. ADVISER and CLIENT

understand that such arbitration shall be final and binding, and that by agreeing to

arbitration, both ADVISER and CLIENT are waiving their respective rights to seek

remedies in court, including the right to a jury trial. CLIENT acknowledges and agrees

that in the specific event of non-payment of any portion of Adviser Compensation

pursuant to paragraph 2 of this Agreement, ADVISER, in addition to the aforementioned

arbitration remedy, shall be free to pursue all other legal remedies available to it

under law, and shall be entitled to reimbursement of reasonable attorneys fees and

other costs of collection. Tactical Agreement ¶ 15

Paragraph 2, referenced in the arbitration clause, sets forth the principles and

formulae by which Tactical’s compensation is to be determined and paid. “Adviser’s

services,” described at length over several paragraphs, are summarized as

responsibility “for the investment and reinvestment of those assets of the CLIENT

designated by the CLIENT to be subject to the ADVISER’S management.” Tactical

Agreement ¶ 1(a). The Tactical Agreement contains numerous ancillary provisions,

including various acknowledgments, promises, and liability waivers by the CLIENT; the

ADVISER’s promise to provide to the CLIENT periodic reports; and provisions for

termination and assignment of the agreement and severability of its provisions.

A second February 26, 2002 agreement (“G&A Agreement”) by and between Mr. Cohen and

Ms. Lynch as “CLIENT” and the plaintiff Greenberg & Associates, Inc. (“G&A”) as

“PLANNER,” requires G&A to “provide CLIENT with some or all of the following services:

estate planning, tax planning, retirement planning, insurance advice, and investment

advice.” G&A Agreement ¶ 1. Like the Tactical Agreement, the G&A Agreement “supersedes

and replaces, in its entirety, all previous financial planning agreement(s) between

the parties, and is governed by Colorado law. G&A Agreement ¶ 7. Resolutions of all

disputes is to occur in Boulder, Colorado

The G&A Agreement contains an arbitration clause, which states,

Subject to the conditions and exceptions noted below, and to the extent not

inconsistent with applicable law, in the event of any dispute pertaining to PLANNER’s

services under this Agreement, both PLANNER and CLIENT agree to submit the dispute to

arbitration in accordance with the auspices and rules of the American Arbitration

Association (“AAA”), provided that the AAA accepts jurisdiction. PLANNER and CLIENT

understand that such arbitration shall be final and binding, and that by agreeing to

arbitration, both PLANNER and CLIENT are waiving their respective rights to seek

remedies in court, including the right to a jury trial. CLIENT acknowledges that

he/she/it has had a reasonable opportunity to review and consider this arbitration

provision prior to the execution of this Agreement.

G&A Agreement ¶ 5. Like the Tactical Agreement, the G&A Agreement contains provisions

other than those circumscribing the services G&A is to provide.

The Tactical Agreement and the G&A Agreement each contain separate signature lines for

Ms. Lynch and Mr. Cohen. In each agreement, the signature line for Ms. Lynch contains

a signature, apparently hers, and the line for Mr. Cohen is blank. By affidavit, Mr.

Greenberg explains, Over the years, Mr. Cohen has routinely designated Kelley Lynch to

represent his interests and convey his instructions with regard to his investment

accounts managed by [Tactical]. In addition, we accepted Ms. Lynch’s signature on Mr.

Cohen’s two new customer agreements in February 2002 (one for [Tactical] and one for

G&A) because of this standing practice, and because we were then in possession of a

broad and durable power of attorney Mr. Cohen previously had granted Ms. Lynch. Ms.

Lynch was also the secondary trustee on one of the Cohen trust accounts – the Cohen

Family Trust – which gave her additional authority to issue instructions in Mr.

Cohen’s absence. The “Client” on each new 2002 contract was identified as “Kelley

Lynch and Leonard Cohen.” It is my recollection that this recognized their relatively

interchangeable execution of account documentation on Mr. Cohen’s behalf.

Greenberg Affidavit, ¶ 5.

Mr. Greenberg avers that the Tactical and G&A Agreements were among a series of

contracts that Tactical and G&A utilized early in 2002, intending to supersede all

existing contracts with clients. The new contracts “contain limited arbitration

provisions that stipulate venue in Colorado and AAA arbitration.” Greenberg Affidavit,

¶ 4.

Mr. Cohen has submitted an abundance of materials intended to demonstrate that the

plaintiffs are bound by the rules of the National Association of Securities Dealers,

Inc. (“NASD”) to arbitrate their claims before the NASD’s dispute resolution entity.

As the plaintiffs concede, Greenberg & Associates Securities, Inc. is a member of the

NASD. Mr. Cohen argues that the other plaintiffs also come under NASD arbitration

rules by principles of agency and corporate veil piercing. However, the plaintiffs

have produced a letter from the NASD, mailed to Mr. Cohen after Mr. Cohen filed an

arbitration complaint against the plaintiffs in an NASD venue in Los Angeles,

California, denying that the NASD has jurisdiction over Agile Group, LLC, Tactical,

and G&A. The letter indicates that the NASD is willing to arbitrate Mr. Cohen’s claims

if Mr. Cohen provides a pre-dispute agreement to arbitrate or a court order mandating

arbitration.

In light of the NASD’s declination, I will not consider the materials Mr. Cohen has

produced concerning the inter-relations among the plaintiffs and their purported

connections to the NASD. First, I will not second-guess the NASD’s evaluation of the

limits of its own jurisdiction. Second, the claims Mr. Cohen has asserted in his

arbitration complaint are not before me; the existence of Mr. Cohen’s arbitration

claims in California does not affect the narrow question I must answer here

WE JOINTLY OWNED IT? SO WHAT IS GOING ON?

The plaintiffs proffer a limited partnership agreement (“ASF Agreement”) governing an

entity known as Agile Safety Fund, LP (“ASF”). On February 26, 2002, Ms. Lynch signed

the ASF Agreement on behalf of an entity known as Traditional Holdings, LLC

(“Traditional”). Mr. Greenberg avers, and Mr. Cohen does not dispute, that Ms. Lynch

and Mr. Cohen jointly owned Traditional; that Traditional subscribed to ASF as a

limited partner and invested significant portions of its assets in ASF; that this

arrangement effectuated the plaintiffs’ investment plan for Mr. Cohen’s assets; and

that all was performed pursuant to the Tactical and G&A Agreements. Indeed, in his

complaint to the NASD, a copy of which he has provided, Mr. Cohen alleged that

Traditional was created to hold and invest his assets for his benefit during his

lifetime, that he gave Ms. Lynch authority to manage Traditional, and that he was

aware of Traditional’s investment in ASF.

The ASF Agreement contains no arbitration clause. It requires that any action or

proceeding arising out of it “must be commenced and prosecuted in the State of

Colorado.” ASF Agreement §14.06. It provides that the partners may enforce the rights

and obligations contained in it “by specific performance, injunction or other

equitable remedy” and “in equity as well as at law or otherwise.” ASF Agreement

§14.12(b).

III. Discussion I first must determine which, if any, arbitration agreement controls.

I can resolve this fact question based upon the materials the parties have provided.

Second, I must determine whether the plaintiffs’ claims come under the governing

arbitration clause. That question I resolve as a matter of law. Howsam v. Dean Witter

Reynolds, Inc., 537 U.S. 79, 83, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002). As an

initial matter, I note that no plaintiffs other than Tactical were parties to the 1997

Agreement.

A. Which agreement governs The plaintiffs assert that the Tactical and G&A Agreements

expressly supersede the 1997 Agreement. Mr. Cohen points out that he never signed the

2002 Agreements and contends that Ms. Lynch acted on her own behalf, without his

authority, when she signed. Both parties have focused on the question of Ms. Lynch’s

actual authority. The parties have not stipulated whether Colorado or California law

applies. However, both Colorado and California courts have recognized the doctrine of

apparent authority in recent decisions. Rush Creek Solutions, Inc. v. Ute Mountain Ute

Tribe, 107 P.3d 402 (Colo. App. 2004); Seneca Ins. Co. v. County of Orange, 13 Cal.

Rptr. 3d 1 (Cal. App. 2004). In Rush Creek Solutions, the Colorado Court of Appeals

ruled that, in the absence of express authority, a purported principal may be bound by

the actions of his agent when his written or spoken words or other conduct “causes a

person to believe that the principal consents to have the act done on his behalf by a

person purporting to act for him.” Rush Creek Solutions, 107 P.3d at 407. The court

held that an agent who at all times was authorized to enter into contracts on behalf

of a Native American tribe had apparent authority to waive sovereign immunity for the

tribe because nothing appeared in the authorization to limit the agent’s exercise of

authority. Id. In Seneca Ins. Co., the California Court of Appeal stated that a

principal is liable for the act of an ostensible agent if: 1) the person dealing with

the agent does so with a reasonable belief in the agent’s authority; 2) the belief is

generated by some act or neglect of the principal sought to be charged; and 3) the

third person in relying on the agent's apparent authority is not guilty of negligence.

Seneca Ins. Co., 13 Cal. Rptr. 3d at 6.

COHEN WAS TRAVELING

Ms. Lynch had apparent authority to sign the 2002 Agreements on Mr. Cohen’s behalf

under both Rush Creek Solutions and Seneca Ins. Co.. As Mr. Greenberg stated in his

affidavit and Mr. Cohen alleged in his NASD complaint, Mr. Cohen granted to Ms. Lynch

the authority to oversee and manage the investment of his assets. The plaintiffs

possessed a durable power of attorney that Mr. Cohen had granted to Ms. Lynch. Mr.

Cohen designated Ms. Lynch the secondary trustee of one of his trusts, granting to her

ostensible authority to issue instructions in his absence. He allowed Ms. Lynch for

several years to execute on his behalf documents that the plaintiffs tendered. By all

of this conduct, Mr. Cohen caused the plaintiffs reasonably to believe that Ms. Lynch

had authority to execute agreements on his behalf. Mr. Cohen in no way expressed to

the plaintiffs limitations on Ms. Lynch’s authority and the plaintiffs demonstrated no

negligence by relying upon the long-standing practice. See also, Garrison v. Superior

Court, 33 Cal. Rptr. 3d 350 (Cal. App. 2005) (daughter had authority to enter into an

arbitration agreement on mother’s behalf where mother granted daughter a durable power

of attorney without limitations on the exercise of authority).

LYNCH HAD UNFETTERED ACCESS TO NOTHING

Though the signature lines over Mr. Cohen’s name remain blank, it is not reasonable to

infer that Ms. Lynch signed the documents solely on her own behalf. Both the Tactical

Agreement and the G&A Agreement identify Mr. Cohen and Ms. Lynch as the CLIENT. And,

as Mr. Cohen alleged in his NASD complaint, the purpose of the arrangement was to

manage his assets for his benefit. Indeed, the wrongs he supposes the plaintiffs to

have committed consist primarily of allowing Ms. Lynch unfettered access to his

assets, which the plaintiffs managed pursuant to the Tactical, G&A, and ASF

Agreements.

Mr. Cohen cites Homestake Lead Co. of Missouri v. Doe Run Resources Corp., 282 F.

Supp. 2d 1131 (N.D. Cal. 2003) for the proposition that the arbitration clause in the

1997 Agreement survived the execution of the 2002 Agreements. An arbitration provision

in a contract survives the termination of that contract unless the parties expressly

or clearly imply an intent to override this presumption. Riley Mfg. Co., Inc. v.

Anchor Glass Container Corp., 157 F.3d 775, 781 (10th Cir. 1998); GATX Management

Services, LLC v. Weakland, 171 F. Supp. 2d 1159, 1164 (D. Colo. 2001); Encore

Productions, Inc. v. Promise Keepers, 53 F. Supp. 2d 1101, 1108 (D. Colo. 1999). Here,

the parties have expressly overridden the presumption of continuity. Both 2002

Agreements expressly “supersede[] and replace[], in [their] entirety, all previous

investment advisory agreement(s) between the parties.” Homestake Lead is not contrary.

In that case, the court concluded that an arbitration clause survived a subsequent

agreement, which expressly incorporated the prior agreement and excepted the

arbitration clause from replacement. The court concluded that the parties did not

intend to supersede the arbitration clause. Homestake Lead, 282 F. Supp. 2d at 1142-

1143. The Tactical and G&A Agreements control here. By their express terms, they

supersede the 1997 Agreement.

B. Whether the claims come under the agreement “To determine whether a particular

dispute falls within the scope of an agreement's arbitration clause, a court should

undertake a three-part inquiry.” Cummings v. Fedex Ground Package System, Inc., 404

F.3d 1258, 1261 (10th Cir. 2005). First, recognizing there is some range in the

breadth of arbitration clauses, a court should classify the particular clause as

either broad or narrow. Next, if reviewing a narrow clause, the court must determine

whether the dispute is over an issue that is on its face within the purview of the

clause, or over a collateral issue that is somehow connected to the main agreement

that contains the arbitration clause. Where the arbitration clause is narrow, a

collateral matter will generally be ruled beyond its purview. Where the arbitration

clause is broad, there arises a presumption of arbitrability and arbitration of even a

collateral matter will be ordered if the claim alleged implicates issues of contract

construction or the parties' rights and obligations under it. Id. (emphasis original),

quoting Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218,

224 (2d Cir. 2001), cert. denied, 534 U.S. 1020, 122 S. Ct. 546, 151 L. Ed. 2d 423

(2001). In Cummings, the court interpreted a clause that subjected to arbitration

disputes arising out of termination of the contract “but no others.” Cummings, 404

F.3d at 1260. The court concluded, “[T]he parties clearly manifested an intent to

narrowly limit arbitration to specific disputes regarding the termination.” Id. at

1262. Here, as in Cummings, the Tactical and G&A Agreements address matters not

encompassed within the arbitration clauses; the scope of the Agreements and the scope

of the arbitration clauses are not contiguous. The parties agreed to arbitrate

disputes pertaining to the plaintiffs’ services but not all disputes arising out of

the Agreements. Gelco Corp. v. Baker Industries, Inc., 779 F.2d 26, 28 (8th Cir.

1985). I therefore find and conclude that the parties manifestly intended narrowly to

limit the scope of the arbitration clauses. Evidence external to the Agreements

commends this conclusion. The 2002 arbitration clauses are considerably more

circumscribed than the clause contained in the 1997 Agreement, which required

arbitration of “[a]ny dispute or controversy rising out of or relating to this

Agreement, any document or instrument delivered pursuant to, in connection with, or

simultaneously with this Agreement or any breach of this Agreement or such

documentation or instrument, or with respect to the relationship between” Tactical and

Mr. Cohen. Also, the ASF Agreement, which Ms. Lynch signed on Mr. Cohen’s behalf on

February 26, 2002, expressly

reserves to ASF partners all legal and equitable remedies and contemplates the filing

of actions and proceedings. All of these provisions are consistent with Mr.

Greenberg’s objective, expressed in his affidavit, of limiting the disputes that the

plaintiffs would be required to arbitrate. “Under a narrow arbitration clause, a

dispute is subject to arbitration only if it relates to an issue that is on its face

within the purview of the clause, and collateral matters will generally be beyond its

purview.” Cummings, 404 F.3d at 1262. The plaintiffs’ claims in this case – for

allegedly tortious conduct in which Mr. Cohen engaged – are collateral to the

plaintiffs’ provision of services, which constitutes the only arbitrable subject

matter. Id. at 1262. Accordingly, it is ORDERED that: 1) Mr. Cohen’s motion to compel

arbitration [38, 39] is DENIED. Dated: December 21 , 2005, in Denver, Colorado. BY THE

COURT: s/Lewis T. Babcock Lewis T. Babcock, Chief Judge

LYNCH NOT SERVED THIS AMENDED COMPLAINT

HAS NOT PURCHASED THIS AMENDED COMPLAINT AND HAS NO INTENTION OF DOING SO. THIS WAS

AMENDED AFTER THE ENTRY OF DEFAULT JUDGMENT IN LA CONFIDENTIAL.

05/23/2006 93 AMENDED COMPLAINT and Jury Demand against all defendants, filed by Greenberg & Associates Securities, Inc., Neal R. Greenberg, Greenberg & Associates, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Exhibit 1 to Second Amended Complaint and Jury Demand# 2 Exhibit 2 to Second Amended Complaint and Jury Demand# 3 Exhibit 3 to Second Amended Complaint and Jury Demand (part 1)# 4 Exhibit 3 to Second Amended Complaint and Jury Demand (part 2)# 5 Exhibit 4 to Second Amended Complaint and Jury Demand# 6 Exhibit 5 to Second Amended Complaint and Jury Demand# 7 Exhibit 6 to Second Amended Complaint and Jury Demand# 8 Exhibit 7 to Second Amended Complaint and Jury Demand# 9 Exhibit 8 to Second Amended Complaint and Jury Demand# 10 Exhibit 9 to Second Amended Complaint and Jury Demand# 11 Exhibit 10 to Second Amended Complaint and Jury Demand# 12 Exhibit 11 to Second Amended Complaint and Jury Demand)(Scheid, R.) (Entered: 05/23/2006)

05/31/2006 94 Mail Returned as Undeliverable re: 92 Docket Annotation Addressed to Kelley Lynch. (rlp, ) (Entered: 05/31/2006)

06/30/2006 97 Partial MOTION to Dismiss Second Amended Complaint by Defendant Leonard Cohen. (Livingston, Randall) (Entered: 06/30/2006)

KL EMAIL ADDRESS AT THIS TIME WAS ALLEGEDLY TSERINGMA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05-cv-

01233-LTB-MJW NATURAL WEALTH REAL ESTATE, INC., d/b/a Agile Advisors Inc. a Colorado

corporation; TACTICAL ALLOCATION SERVICES, LLC, d/b/a Agile Allocation Services, LLC,

a Colorado limited liability company; AGILE GROUP, LLC, a Delaware limited liability

company; GREENBERG & ASSOCIATES SECURITIES, INC., d/b/a Agile Group, a Colorado

corporation; and NEAL R. GREENBERG, a Colorado resident, Plaintiffs v. LEONARD COHEN,

a Canadian citizen residing in California; KELLEY LYNCH, a United States citizen

residing in California; and JOHN DOE, Nos. 1-25. Defendants and LEONARD COHEN, a
















Canadian citizen residing in California Counterclaim Plaintiff v. TIMOTHY BARNETT, a

Colorado citizen Counterclaim Defendant.

DEFENDANT COHEN’S MOTION FOR PARTIAL DISMISSAL OF THE SECOND AMENDED COMPLAINT

Defendant Leonard Cohen (“Cohen”), by and through counsel, Bailey & Peterson, A

Professional Corporation, pursuant to Fed.R.Civ.P. 12(b)(6), and for the reasons and

authorities stated in Defendant Cohen’s Memorandum Brief in Support of Motion for

Partial Dismissal of the Second Amended Complaint, filed contemporaneously herewith

and incorporated herein by this reference, moves the Court to dismiss for failure to

state a claim upon which relief can be granted Plaintiffs’ Third Claim for Relief

(interference with prospective business advantage), Fifth Claim for Relief (civil

extortion), Sixth Claim for Relief (conspiracy), Seventh Claim for Relief (violation

of Colorado Organized Crime Control Act), Eighth Claim for Relief (injunction), and

Ninth Claim for Relief (declaratory judgment). WHEREFORE, Defendant Leonard Cohen

prays that the Court dismiss the Third, Fifth, Sixth, Seventh, Eighth, and Ninth

Claims for Relief from the Second Amended Complaint for failure to state claims upon

which relief can be granted, without leave to amend. DATED this 30th day of June,

2006.

Respectfully submitted, BAILEY & PETERSON, A Professional Corporation s/ Randall M.

Livingston James S. Bailey, Jr. Randall M. Livingston 1660 Lincoln Street, Suite 3175

Denver, Colorado 80264 Telephone: (303) 837-1660 Facsimile: (303) 837-0097 E-mail:

[email protected] [email protected] ATTORNEYS FOR DEFENDANT LEONARD COHEN Case

1:05-cv-01233-LTB Document 97 Filed 06/30/06 USDC Colorado Page 2 of 3 3 CERTIFICATE

OF SERVICE I hereby certify that on this 30th day of June, 2006, I served true and

correct copies of the foregoing DEFENDANT COHEN’S MOTION FOR PARTIAL DISMISSAL OF THE

SECOND AMENDED COMPLAINT electronically on the following: R. Daniel Sheid

[email protected] Sherab Posel [email protected] Kelley Lynch [email protected] s/

Linda J. Simmons

07/31/2006 109 Unopposed MOTION to Deposit Funds Into the Registry of the Court Pursuant to Fed.R.Civ.P. 67 by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC. (Attachments: # 1 Proposed Order (PDF Only))(Scheid, R.) (Entered: 07/31/2006)

08/01/2006 110 ORDER granting 109 Motion to Deposit Funds, Leave is granted to Plaintiffs', to deposit





into the Registry of the Court $2014.90, which amount is the additional funds which are the subject of the Interpleader Claim in the Second Amended Complaint, Signed by Judge Lewis T. Babcock on 08/01/06. (rlp, ) (Entered: 08/01/2006)

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05-CV-

01233-LTB-MJW NATURAL WEALTH REAL ESTATE, INC., d/b/a Agile Advisors Inc., a Colorado



company; GREENBERG & ASSOCIATES SECURITIES, INC., d/b/a Agile Group, a Colorado



residing in California; and JOHN DOE, NOS. 1-25, Defendants. and LEONARD COHEN, a

Canadian citizen residing in California; Counterclaim Plaintiff, v. TIMOTHY BARNETT, a

Colorado citizen, Counterclaim Defendant. PLAINTIFFS’ UNOPPOSED MOTION FOR LEAVE TO

DEPOSIT ADDITIONAL FUNDS INTO THE REGISTRY OF THE COURT PURSUANT TO Fed.R.Civ.P. 67

Plaintiffs Natural Wealth Real Estate, Inc., d/b/a Agile Advisors Inc.; Tactical

Allocation Services, LLC, d/b/a Agile Allocation Services LLC; Agile Group, LLC;

Greenberg & Associates Securities, Inc., d/b/a Agile Group; and Neal R. Greenberg

(“Plaintiffs”), through Case 1:05-cv-01233-LTB Document 109 Filed 07/31/06 USDC

Colorado Page 1 of 3 2 undersigned counsel, respectfully request, pursuant to

Fed.R.Civ.P. 67 and Local Civil Rule 67.2, that the Court issue an order permitting

the deposit of additional funds into the registry of the Court. 1. On November 14,

2005, this Court entered an Order allowing Plaintiffs’ to deposit interpleaded funds

into the Registry of the Court in the amount of $152,165.88. On December 12, 2005,

Plaintiffs’ deposited that amount into the Registry of the Court, per the Court’s

Order. 2. Upon finalization of the Traditional Holdings, LLC accounting statements,

Plaintiffs’ have determined that additional funds, in the amount of $2,014.90 are

still being held by Traditional Holdings, LLC. This amount represents the remainder of

the funds invested by Traditional Holdings, LLC in the Agile Safety Fund. Defendants

Leonard Cohen and Kelley Lynch both claim rights to these interpleaded funds.

Plaintiffs request that the Court enter an Order allowing the deposit of these

additional funds, which are the subject of the Interpleader Claim in the Second

Amended Complaint. 3. Through this Motion, Plaintiffs are providing notice to every

other party as Fed.R.Civ.P. 67 requires. Defendant Lynch has filed no objection to

Plaintiffs’ previous Motions to deposit the funds at issue. Counsel for Defendant

Cohen has indicated that they have no objection to the deposit of these additional

funds. WHEREFORE, Plaintiffs respectfully request that this Court issue an order

permitting deposit of the additional $2,014.90 of interpleaded funds into the Registry

of the Court. Case 1:05-cv-01233-LTB Document 109 Filed 07/31/06 USDC Colorado Page 2

of 3 3 DATED: July 31, 2006. Respectfully Submitted, s/R. Daniel Scheid R. Daniel

Scheid LEWIS SCHEID, LLC 2300 15th Street, Suite 320 Denver, CO 80202 Telephone: (303)

534-5040 ext. 202 Facsimile: (303) 534-5039 E-mail: [email protected] Sherab Posel

POSEL LAW OFFICES 5468 Fall Clove Road DeLancey, NY 13752 Telephone: (845) 676-4034 E-

mail: [email protected] ATTORNEYS FOR PLAINTIFFS AND COUNTERCLAIM DEFENDANT

CERTIFICATE OF SERVICE I hereby certify that on July 31, 2006, I electronically filed

the foregoing PLAINTIFFS’ MOTION FOR LEAVE TO DEPOSIT ADDITIONAL FUNDS INTO THE

REGISTRY OF THE COURT PURSUANT TO Fed.R.Civ.P. 67 with the Clerk of Court using the

CM/ECF system which will send notification of such filing to the following: Randall M.

Livingston ([email protected]) I hereby certified that I served the foregoing

document on the following non CM/ECF participants by e-mail and U.S. First Class Mail,

postage prepaid to the following: Kelley Lynch 2648 Mandeville Canyon Road Los

Angeles, CA 90049 [email protected] s/R. Daniel Scheid Case 1:05-cv-01233-LTB

Document 109 Filed 07/31/06 USDC Colorado Page 3 of 3 1 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO Civil Action No. 05-CV-01233-LTB-MJW NATURAL WEALTH REAL

ESTATE, INC., d/b/a Agile Advisors Inc., a Colorado corporation; TACTICAL ALLOCATION

SERVICES, LLC, d/b/a Agile Allocation Services, LLC, a Colorado limited liability

company; AGILE GROUP, LLC, a Delaware limited liability company; GREENBERG &

ASSOCIATES SECURITIES, INC., d/b/a Agile Group, a Colorado corporation; and NEAL R.

GREENBERG, a Colorado resident, Plaintiffs, v. LEONARD COHEN, a Canadian citizen

residing in California; KELLEY LYNCH, a United States citizen residing in California;

and JOHN DOE, NOS. 1-25, Defendants. and LEONARD COHEN, a Canadian citizen residing in

California; Counterclaim Plaintiff, v. TIMOTHY BARNETT, a Colorado citizen,

Counterclaim Defendant. ORDER PERMITTING THE DEPOSIT OF INTERPLEADED FUNDS INTO THE

REGISTRY OF THE COURT THIS MATTER comes before the Court on Plaintiffs’ Unopposed

Motion for Leave to Deposit Additional Funds Into the Registry of the Court Pursuant

to Fed.R.Civ.P. 67 (Doc ____). The Court has reviewed the Motion and being fully

advised thereon, hereby Case 1:05-cv-01233-LTB Document 109-1 Filed 07/31/06 USDC

Colorado Page 1 of 2 2 ORDERS that Plaintiffs’ Motion is GRANTED. Leave is granted to

Plaintiffs’, under Federal Rule of Civil Procedure 67 and Local Civil Rule 67.2, to

deposit into the Registry of the Court $2014.90, which amount is the additional funds

which are the subject of the Interpleader Claim in the Second Amended Complaint.

DATED: ________________________, 2006 BY THE COURT: ______________________________

Lewis T. Babcock, Chief Judge Case 1:05-cv-01233-LTB Document 109-1 Filed 07/31/06

USDC Colorado Page 2 of 2


10/19/2006 123 BRIEF in Support re 122 MOTION for Judgment on the Pleadings as to Cohen's Second Through Eighth Counterclaims filed by Plaintiffs Greenberg & Associates Securities, Inc., Neal R. Greenberg, Natural Wealth Real Estate, Inc., Tactical Allocation Services, LLC, Agile Group, LLC, Counter Defendant Timothy Barnett. (Scheid, R.) (Entered: 10/19/2006)

I hate to ask the obvious. What do the emails to Cohen from Greenberg have to do with TH? Nothing.

I asked repeatedly for profit/loss for each entity. Is that a crime? I allegedly owned part of TH. This

document, which I don't need to go all the way through is extremely importantly and they are all lying.

As I have repeatedly said - as of 2002,, this was pre-meditated - RIGHT DOWN TO ASKING ME to

execute the POA, having me execute documents while Cohen traveled to India, etc. What were they

scared of? IRS. The $1 million and $7 million INADVERTENT 1099s. This is what they all came up with

and this is why I decided to go to IRS. By the fall of 2004, I felt I had enough evidence.

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05-CV-

01233-LTB-MJW NATURAL WEALTH REAL ESTATE, INC., d/b/a Agile Advisors Inc., a Colorado



company; GREENBERG & ASSOCIATES SECURITIES, INC., d/b/a Agile Group, LLC, a Colorado







residing in California; and JOHN DOE, NOS. 1-25, Defendants, and LEONARD COHEN, a

Canadian citizen residing in California; Counterclaim Plaintiff, v. TIMOTHY BARNETT, a

Colorado citizen, Counterclaim Defendant. PLAINTIFFS’ AND BARNETT’S MEMORANDUM IN

SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS AS TO COHEN’S SECOND THROUGH EIGHTH

COUNTERCLAIMS Plaintiffs Natural Wealth Real Estate, Inc. (“Natural Wealth”); Tactical

Allocation Services, LLC (“TAS”); Agile Group, LLC; Greenberg & Associates Securities,

Inc. (“Greenberg Securities”); Neal R. Greenberg (“Greenberg”) and Counterclaim

Defendant Timothy Barnett (“Barnett”) (collectively, “Counter-Defendants”), by

undersigned counsel, pursuant to Fed.R.Civ.P. 12(c), submit their Memorandum in

Support of Motion for Judgment on the Pleadings as to Cohen’s Second Through Eighth

Counterclaims.

I. INTRODUCTION

By this motion, Counter-Defendants seek dismissal of each tort Counterclaim brought by

Defendant Leonard Cohen (“Cohen”). The grounds for dismissal are: (a) application of

the economic loss rule to the negligence, breach of fiduciary duty, and fraud claims

(Second through Fourth and Sixth through Eighth Claims); (b) failure to plead fraud

with particularity (Third and Seventh Claims); (c) failure to sufficiently plead fraud

as a matter of law (Third and Seventh Claims); (d) failure to plead the existence of a

third party transaction necessary to sustain a negligent misrepresentation claim

(Fourth Claim); and (e) failure to file a certificate of review necessary to bring the

professional negligence, negligence, and fiduciary duty claims. (Second, Fifth, Sixth,

and Eighth Claims).

II. LEGAL STANDARD UNDER RULE 12(c) After an answer has been filed,1 a party may move

for judgment on the pleadings under Rule 12(c) and (h)(2). Steele v. Federal Bur. of

Prisons, 355 F.3d 1204, 1212 n. 4 (10th Cir. 2003). A Rule 12(c) motion applies the

same standard as a Rule 12(b)(6) motion to dismiss. Atlantic Richfield Co. v. Farm

Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). In reviewing such

motion, the Court must accept all well-pled allegations as true and view those

allegations in the light most favorable to the nonmoving party. Id.; Colo. Nat’l Bank

of Denver v. Adventura Assoc., 757 F.Supp. 1167, 1170 (D. Colo. 1991). However, the

Court need only accept the non-movant's “well-pleaded factual contentions, not his

conclusory allegations.” Full Draw Prod. v. Easton Sports, Inc., 85 F.Supp. 2d 1001,

1005 (D. Colo. 2000). Dismissal is proper when “it is evident from the [counterclaim]

that the [counterclaim] defendant is not liable to the [counterclaim] plaintiff.”

Colo. Nat’l Bank, 757 F. Supp. at 1170. 1 Cohen filed his counterclaims on June 30,

2006. Counter-Defendants filed their Reply to Cohen’s Counterclaims on August 10,

2006.

Although the Court should limit its review to the four corners of the counterclaims,

it may consider unattached documents that: (a) appear in the record of the case

(Porous Media Corporation v. Pall Corporation, 186 F. 3d 1077, 1079 (8th Cir. 1999));

or (b) are referred to in the counterclaims and are central thereto, so long as

authenticity is undisputed. GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d

1381, 1384 (10th Cir. 1997). If the rule were otherwise, “a [party] with a deficient

claim could survive a motion to dismiss simply by not attaching a dispositive document

upon which the [party] relied.” Id. at 1385. Where the counterclaim refers to a

document and the document is central to the party’s claim, “the [claimant] is

obviously on notice of the document’s contents . . . .” Id.; See also, Robinson v.

Board of Regents of the Univ. of Colo., 390 F. Supp. 2d 1011, 1015 (D. Colo. 2005).

Counter-Defendants have attached as Exhibits A-Q certain documents (including

contracts) that are referenced in, relied upon, or otherwise central to Cohen’s

counterclaim allegations. There should be no dispute as to their authenticity. Indeed,

Cohen has admitted the execution of various contracts in his Answer,2 and the Court

has previously ruled on the validity and applicability of many of these same

documents.

III. SUMMARY OF COUNTERCLAIM ALLEGATIONS A. GENERAL ALLEGATIONS Parties. Counter-

Plaintiff Cohen is a Canadian citizen. Countercl. ¶ 1. CounterDefendant Greenberg is a

Colorado citizen and a principal of each corporate Counter-Defendant. Id. ¶ 2.

Counter-Defendant Barnett is also a Colorado citizen and a vice-president of TAS. Id.

2 See, e.g. Cohen Answer at ¶ 72 (admits signing Durable Power of Attorney dated

January 31, 2002). See also, Counterclaims ¶ 17 (admits investment of Traditional

Holdings’ funds into the Agile Safety Fund); ¶ 54 (admits entering into “written

agreements”). 3 See, Greenberg & Associates v. Cohen, 2005 WL 3527294 (D. Colo. Dec.

21, 2005) **2-6. In Cohen’s memorandum briefs addressing the arbitrability issues

resolved by this Court’s Dec. 21, 2005 Order, Cohen freely discussed the written

contracts between the parties, without challenging authenticity. See, e.g. Cohen’s

Reply Brief in Further Support of His Petition and Motion to Compel Arbitration (Nov.

15, 2005) pp. 8-9.

Each corporate Counter-Defendant (Natural Wealth, TAS, Agile Group, LLC, and Greenberg

Securities) has its principal place of business in Colorado. Id. ¶¶ 4-7. Cohen does

not allege that any Counter-Defendant acted as an agent or alter ego of the other.

Nonetheless, the corporate Counter-Defendants are collectively referred to – without

supporting basis – as “the Agile Group.” 4 Id. Cohen’s Sale of Assets (1997).

Before 1997, Cohen had three royalty-producing assets: LCSMI, Artist Royalties, and

Writer’s Royalties. Id. ¶ 9.

Greenberg allegedly “worked with” Cohen’s manager, Kelley Lynch (“Lynch”), and a

lawyer/tax professor, Richard Westin (“Westin”), to sell LCSMI in 1997. Id. ¶ 10.

Cohen does not specify, however, any manner in which Greenberg purportedly did so. Id.

Nor does he allege any deficiency in whatever Greenberg purportedly did. Id.

The proceeds of the 1997 sale were used to fund two Trusts allegedly “administered” by

Greenberg and “the Agile Group.” Id. ¶ 11.

Cohen does not allege any deficiency in their administration or performance. 5 Id.

Cohen’s Sale of Assets (2001).

Cohen also alleges that Greenberg “worked with” Lynch and Westin to sell the Artist

Royalties in 2001. Id. ¶ 12.

Once again, Cohen does not specify any manner in which Greenberg purportedly did so.

Id. The sales price for the Artist Royalties was $8 M. Id. ¶ 13.

The unidentified “transaction costs” purportedly exceeded $3 M. Id.

Although Cohen does not allege that any Counter- 4 As seen below, the manner in which

this collective term is consistently used throughout the counterclaims in an effort to

allege collective duties or conduct is misleading and inappropriate. 5

LYNCH WAS NOT A CLIENT

A sample copy of one of at least 30 Investment Advisory Agreements executed between

TAS, as ADVISER, and Cohen, Lynch, and/or the Trusts, as CLIENTS, between January 1997

and late 2001, is attached hereto as Exh. A. See also, Pl. Memo in Opposition to Def.

Leonard Cohen’s Motion to Dismiss Pl.’s Am Cmplt or, Alternatively, to Stay to

Proceedings, Exh. 2 (entire set of pre-2002 TAS Agreements).

INTERESTING THAT THIS OCCURRED, WHILE COHEN WAS IN INDIA, AND I WAS ASKED TO EXECUTE A

POA

Each pre-2002 TAS Agreements was later superseded and replaced by the February 26,

2002 Investment Advisory Agreement executed between TAS, as ADVISER, and Cohen and

Lynch, as CLIENTS. Infra § V.A (Exh. O); See also, Greenberg & Associates v. Cohen,

2005 WL 3527294 (D. Colo. Dec. 21, 2005) **2-6.

Defendant made a “recommendation to sell” the Artist Royalties (or was ever retained

or compensated in any manner regarding such sale), he contends that such a

recommendation was negligent. Id. ¶ 15.

Among other things, Cohen alleges that Greenberg and the corporate Counter-Defendants

“did not explain the transaction to Cohen.” Id.

Cohen does not specify, however, the source of any purported duty to do so. Id. He

also ignores his prior consummation of a similar sale transaction in 1997. Id. ¶ 10.

NEXUS $5 MILLION FRAUD IN KORY’S JANUARY 2005 MEMORANDUM. THIS IS ALL PRE-MEDITATED.

Nonetheless, Cohen contends that, as a consequence of such alleged negligence, he sold

an asset worth $8 M - but received only $5 M. Id. ¶ 16.

Cohen does not identify any particular “transaction cost” that should not have been

incurred. Id.

NOTHING WAS PLACED IN KENTUCKY AND LYNCH CONTROLLED NOTHING

Nor does he allege that any Counter Defendant caused or received the benefit of any

such item. Id. Cohen’s Creation of Traditional Holdings. The net proceeds of the 2001

sale (about $5 M) were placed in a Kentucky entity, Traditional Holdings, LLC,

controlled by Lynch.6 Id. ¶ 14.

Cohen alleges that this transaction occurred “at the recommendation of Greenberg and

the Agile Group, with support of Westin.” Id.

THE PROCEEDS WENT TO GREENBERG – NOT LYNCH OR TH

In turn, Traditional Holdings issued a private annuity contract to Cohen.7 Id. Through

a structure that Greenberg, “the Agile Group,” and Westin purportedly “designed,”

Lynch received control over the Traditional Holdings assets that were to fund the

annuity.8 Id.

Cohen does not specify any manner in which Greenberg or “the Agile Group” purportedly

recommended or designed such structure. Id. In fact, the Counterclaims acknowledge

that it was Cohen and Westin who “established” the structure. Id.

However, they 6 Traditional Holdings’ Articles of Organization and Operating Agreement

previously executed by Cohen in December 2000 are attached hereto as Exhs. B and C,

respectively.

See also, Sec. Am. Compl. ¶ 56 (Exh. 3). Cohen was a co-member and co-manager of

Traditional Holdings. 7 The Private Annuity Agreement previously executed by Cohen in

Dec. 2000 is attached hereto as Exh. D. See also, Sec. Am. Compl. ¶ 62 (Exh. 4). 8

The Durable General Power of Attorney executed by Cohen in Jan. 2002 that gave Lynch

unlimited authority over Cohen’s business and financial affairs is attached hereto as

Exh. E. See also, Sec. Am. Compl. ¶ 72 (Exh. 5); See also, Traditional Holdings’

Operating Agreement (Exh. C).

…somehow did so “without Cohen’s knowledge or consent.” Id.; Cf., supra, fns. 6-8 (and

Exhs. BE attached).

FASCINATING ARGUMENT PARTICULARLY AS COHEN BORROWED OR CAUSED TO BE EXPENDED OVER $8

MILLION

Cohen alleges that the structure was “so poorly designed” that his manager (Lynch)

could steal Traditional Holdings’ funds. Id. ¶ 16.

COHEN SIGNED ALL DOCUMENTS, A STOCK CERTIFICATE SHOWING HIS SHARE WAS .5%, AND LYNCH HAD WESTIN CLARIFY ALL OF THIS IN HIS MARCH 6, 2002 LETTERS TO LYNCH & COHEN.

Despite his status as co-member and co-manager, and his voluntary execution of the

relevant transaction documents (supra fns. 6-8), Cohen claims that he did not

understand the structure and ownership of Traditional Holdings until late 2004. Id. ¶

52.

COHEN SIGNED THE ORIGINAL DOCUMENT AUTHORIZING HIS PERSONAL TRANSACTION FEES. LYNCH FAXED IT TO GREENBERG. WHY HASN’T GREENBERG MENTIONED THAT?

Had he understood the structure, costs, and risks, he allegedly would not have gone

forward with “the transaction.” Id. Investment of Traditional Holdings’ Assets.

Traditional Holdings’ funds were invested in the Agile Safety Fund.9 Id. ¶¶ 14, 17. It

was these invested funds that were to be used to fund Traditional Holdings’ private

annuity obligation to Cohen. Id. ¶ 14.

Cohen alleges that he expected to receive “regular reports” from “the Agile Group”

regarding the status of these investments. Id.

He also alleges that Greenberg and “the Agile Group” knew that Cohen wanted such

reports to be accurate and complete. Id. Traditional Holdings’ Withdrawal of Assets.

Conceding that Lynch “controlled” Traditional Holdings’ assets (id. ¶ 14), Cohen

alleges that she requested “the Agile Group” to create an account from which

Traditional Holdings could access its funds that would be withdrawn from the Agile

Safety Fund. Id. ¶ 18-9.

During 2002 to 2004, Lynch did, in fact, cause Traditional Holdings to make

withdrawals from the Agile Safety Fund. Id. ¶¶ 20, 23-4, 27, 40-1. Lynch represented

to “the Agile Group” that certain of these withdrawals were loans that she would pay

back. Id. ¶ 21-2.

She allegedly told “the Agile Group” that there was no need to ??????

9

The Limited Partnership Agreement and the related Subscription Agreement, each of

which were signed by Lynch on behalf of Traditional Holdings pursuant to the Power of

Attorney, are attached hereto as Exhs. F and G, respectively. See also, Sec. Am.

Compl. ¶ 74;

The Confidential Private Placement Memorandum for the Agile Safety Fund, also signed

by Lynch on behalf of Traditional Holdings (acknowledging receipt thereof), is also

attached hereto as Exh. H. At all relevant times, the relationship between Agile

Group, LLC, as General Partner of the Agile Safety Fund, and Traditional Holdings

and/or its individual members (Lynch and Cohen), as Limited Partner, were governed by

the terms and provisions of the Limited Partnership Agreement, Subscription Agreement,

and PPM.

report to Cohen any decline in value of the Traditional Holdings account as a result

of such withdrawals. Id. ¶ 21.

GREENBERG IS THE INDIVIDUAL WHO DETERMINED THAT THE LOANS SHOULD BE TREATED AS ASSETS. HE ALSO PREPARED FINANCIAL STATEMENTS. Thus, she allegedly directed “the Agile Group” not to report these loans or

withdrawals to Cohen.10 Id. ¶ 22.

On January 16, 2004, during the same time that these loans or withdrawals were

purportedly being concealed, a warning letter was sent to Cohen (with a copy to Lynch)

advising of the remaining balance, the rate of spending, and the potential

consequences of such spending. Id.11 ¶ 24.

Cohen acknowledges that follow-up efforts were also made to verify receipt of the

letter and arrange a meeting with Cohen. Id. ¶¶ 25-26.

Later, during the same time that these loans or withdrawals were still purportedly

being concealed, another warning letter was sent to Cohen and Lynch again advising

them of the remaining balance, the rate of spending, and Lynch’s prior directions

concerning the preparation of financial statements.12 Id. ¶ 27.

In fact, throughout the entire time frame relevant to the counterclaims, Cohen

acknowledges that numerous other reports were also sent to Cohen, on a regular monthly

basis, itemizing all loans and withdrawals.13 Id. ¶¶ 37, 47.

Cohen alleges no deficiency concerning these other written monthly statements. Id.

He simply claims that he never “requested or even knew about them.” Id.

Nonetheless, Cohen alleges that, beginning in mid-December 2001, “the Agile Group”

began to send “monthly portfolio performance reports” by email to Cohen. Id. ¶¶ 29-35,

43-4, 10

WHAT DOES MY REQUEST FOR INFORMATION HAVE TO DO WITH COHEN, THE EMAILS HE AND GREENBERG AGREED TO, OR THE FINANCIAL STATEMENTS SENT? I WAS ENTITLED TO INFORMATION.I COULD NEVER GET THE LOSS/GAIN PER ENTITY. THAT WAS RELEVANT RE. PROFIT AND LOSS SHARING. THIS INFORAMTION WAS CO-MINGLED.

In fact, such directions related solely to the monthly email reports described later

in Cohen’s counterclaims (discussed below). See, e.g. Lynch emails to T. Barnett

(dated Sept. 27, 2002) (Exh. I attached hereto) (“with respect to the monthly [email]

statements, could I simply have a recap (and not details) of the total amount per

entity and loss/gain per entity. Not the details that are also contained in the

individual statements.”) 11

A copy of the January 16, 2004 letter is attached hereto as Exh. J. See also, Sec. Am.

Compl. ¶ 91 (Exh. 7). 12 A copy of the June 25, 2004 letter is attached hereto as Exh.

K. See also, Sec. Am. Compl. ¶ 93 (Exhibit 8). 13 Copies of samples of these monthly

reports are attached hereto as Exh. L. See, Sec. Am. Compl. ¶¶ 75-76 (Exh. 6); See

also, Exh. F hereto (last page) (written notice of record address per LPA § 14.01).

Each monthly email was sent: (a) in a format reviewed and directed by Lynch, (id. ¶¶

21- 2, 48); and (b) “per Lynch’s instructions.”14 Id. ¶ 49.

During 2002, these emails confirmed Traditional Holdings’ withdrawals by amount and

purpose. Id. ¶ 33. At some later point, however, Cohen alleges that “the Agile Group

stopped copying Cohen on email confirmations as to withdrawals or stopped sending them

altogether.” Id. ¶ 34: See also, supra fn. 10 (re Lynch’s Sept. 27, 2002 directions –

prior to commencement of any of the alleged “unauthorized” withdrawals).

Despite the numerous other monthly reports (id. ¶¶ 37, 47), Cohen alleges that he was

never made aware of the withdrawals that Lynch caused Traditional Holdings to make

“beginning in January 2003.” Id. ¶ 36.

Cohen further alleges that such withdrawals occurred without his permission.15 Id.

Thus, Cohen alleges that the Agile Group “cultivated” Cohen’s purported reliance on

the brief monthly emails as the “primary form” of informing him about the status and

value of his accounts. Id. ¶ 37-9, 45.

THIS IS NOT WHAT GREENBERG’S IRS DANGER WARNING LETTERS STATE.

Because these monthly emails were prepared in the format instructed by his own agent

(Lynch), they did not report shareholder loans. Id. ¶¶ 39, 48-9.

Cohen concedes, however, that the shareholder loans were specifically itemized in the

other periodic statements sent by mail addressed to Cohen. Id. ¶ 47; supra, fn. 13.

Each statement was sent to the designated record address for Traditional Holdings.

See, e.g. Exh. F (signature page to LPA and subsequent email from K. Lynch to T.

Barnett dated June 30, 3003); Exh. L.

Despite all of these other communications (monthly statements and warning letters),

Cohen alleges that the monthly emails - directed by his agent - “misled” Cohen into

believing his accounts were worth more than they were, and failed to advise him of

loans Lynch was making to herself. Id. ¶ 48-9, 51. 14

A copy of a sample monthly email is attached hereto as Exh. M. See also, Sec. Am.

Compl. ¶ 77(e) (Exh. 6). 15 Cohen’s Counterclaims do not identify the date or amount

of funds withdrawn by Lynch that purportedly occurred without Cohen’s knowledge or

permission. Id. ¶¶ 56; see infra, §V.B.1. (failure to plead fraud with particularity).

B. CLAIMS FOR RELIEF

Distilled to their essence, Cohen’s counterclaims are based upon: (a) his authorized

agent’s exercise of her well-documented right and authority to withdraw Traditional

Holdings’ funds from the Agile Safety Fund; (b) Counter-Defendants’ alleged failure to

inform Cohen of the withdrawals; and/or (c) Counter-Defendants’ alleged failure to

accurately report the status and value of Traditional Holdings’ account.

The counterclaims are asserted despite the fact that Lynch was the 99.5% owner of

Traditional Holdings and held a broad durable power of attorney executed by Cohen, and

multiple letters and reports were sent to Cohen and his agent (Lynch) providing clear

notice and warning of the rapid depletion and remaining balance of Traditional

Holdings’ account. See, Exhs. B, E, J, K, and L. 1. Breach of Contract. Cohen asserts

a claim for breach of written and oral agreements against “the Agile Group.” Id. ¶¶

53-6 (First Claim). The alleged contract duties include: (a) to “faithfully protect”

funds and assets; (b) to “exercise prudence” in handling funds; (c) to “faithfully

report” all transactions; (d) to “bring to Cohen’s attention” any activities or

transactions contrary to Cohen’s interest; and (e) to “take reasonable care” in

protecting capital. Id. ¶ 54(a)-(e). (emphasis added). The alleged breaches include:

(a) “permitting” Lynch to withdraw funds; (b) failing to “communicate with Cohen

directly” to advise him of Lynch’s conduct; (c) “failing to report accurately and

completely” to Cohen; (d) “failing to follow Cohen’s directions and instructions;” and

(e) “misrepresenting the value” of the assets in his account. Id. ¶ 55(a)-(f).

As damages, Cohen seeks recovery of economic loss (i.e., amounts withdrawn by Lynch

and not reported to him). Id. ¶ 56.

2. Tort Claims. Despite Cohen’s clear and unequivocal assertion that Counter-

Defendants’ alleged duties to properly protect, handle, and issue reports concerning

Traditional Holdings’ assets were the subject of contract (including alleged contract

duties to exercise prudence, reasonable care, and report accurately and completely),

he asserts several tort claims based upon purported breaches of these exact same

contract duties.

Breach of Fiduciary Duty. Cohen asserts a fiduciary duty claim against Greenberg,

Barnett, and “the Agile Group.” Id. ¶¶ 57-62 (Second Claim).

As to the alleged duties owed, Cohen contends that Counter-Defendants were entrusted

with “conserving and caring for (Cohen’s) assets” and engendered Cohen’s reliance upon

them “to hold his assets safely, obtain information regarding his assets, and report

(such) information accurately to him.” Id. ¶ 59; Cf. ¶ 54 (same alleged duties used to

support breach of contract claim). Cohen alleges that CounterDefendants breached these

duties, causing economic loss. Id. ¶¶ 60-1.

Fraud/Negligent Misrepresentation. Cohen asserts fraud and negligent misrepresentation

claims against Greenberg, Barnett, and “the Agile Group.” Id. ¶¶ 63-9 (Third Claim);

70-78 (Fourth Claim). The alleged misrepresentations were the monthly email reports.

Id. ¶¶ 64, 71. Cohen alleges that the reports were prepared with knowledge of falsity,

reckless disregard for truth, or negligence (i.e. lack of reasonable care). Id. ¶¶ 64,

74; Cf. ¶¶ 54-5 (same alleged duties – and purported breaches thereof – used to

support breach of contract claim).

Aiding and Abetting Breach of Fiduciary Duty.

Cohen asserts a claim against Greenberg, Barnett, and “the Agile Group” for aiding and

abetting Lynch’s breach of her fiduciary duties owed to Cohen. Id. ¶¶ 86-92 (Sixth

Claim).

The alleged breach committed by Lynch was the withdrawal of funds from Traditional

Holdings, and her personal use of such funds. Id. ¶ 88.

???? LYNCH’S BREACH OF WHAT?

Cohen alleges that Counter-Defendants “knowingly participated” in Lynch’s breach in

various respects, which involved either: (a) the monthly email reports; (b) the non-

acquisition of documentation regarding Traditional Holdings’ loans; and/or (c) the

purported sending of warning letters and financial reports only to Lynch. Id. ¶ 89(a)-

(e)); Cf. ¶¶ 54-5 (same alleged duties – and purported breaches thereof – used to

support breach of contract claim).

Aiding and Abetting Fraud. Cohen asserts a claim against Greenberg, Barnett, and “the

Agile Group” for aiding and abetting the fraud perpetrated by Lynch on Cohen. Id. 93-

99 (Seventh Claim). Lynch allegedly committed fraud by concealing and/or failing to

document her shareholder loans, failing to forward copies of correspondence regarding

concerns as to the rate of withdrawals, and editing monthly emails. Id. ¶ 95.

Cohen alleges that Counter-Defendants “knowingly participated” in Lynch’s fraud in the

same manner that they purportedly aided her breach of fiduciary duty. Id. ¶ 96 (a)-(e)

(same allegations as ¶89 (a)-(e)); Cf. ¶¶ 54-5.

Negligence. Cohen asserts a negligence claim against Greenberg, Barnett, and “the

Agile Group.” Id. ¶¶ 100-105 (Eighth Claim). The source of the alleged tort duty is

that CounterDefendants purportedly undertook to advise Cohen regarding the status of

his accounts “independent of any contract or agreement.” Id. ¶101.

The manner in which they purportedly did so was the monthly email reports. Id. ¶¶ 48-

9; 102; Cf. ¶¶ 54-5 (same alleged duties – and purported breaches thereof – used to

support breach of contract claim). Cohen again alleges that Counter-Defendants were

negligent in the preparation of the emails, causing economic loss. Id. ¶¶ 103-4; Cf. ¶

74 (same allegation used to support negligent misrepresentation claim).

Professional Negligence. Cohen asserts a professional negligence claim against “the

Agile Group.” Id. ¶¶ 79-85 (Fifth Claim). The first alleged duty is premised on the

assertion that the corporate Counter-Defendants undertook to “advise” Cohen regarding

his royalty producing assets, and therefore owed a duty “to make reasonable

recommendations.” Id. ¶ 80.

Cohen alleges that the purported “recommendation to sell” the Artist Royalties (in

2001) was negligent for various reasons. Id. ¶¶ 15, 81.

The second alleged duty is premised on the assertion that the corporate

CounterDefendants undertook to “structure the sale” of the royalty producing assets

(in 2001), and therefore owed a duty to do so in a manner that “benefited Cohen and

not Lynch.” Id. ¶ 82.

Cohen alleges that the “execution of (the) recommendation” and “structure of the sale”

was negligent for various reasons.16 Id. ¶ 83.

IV. CHOICE OF LAW A. LEGAL STANDARDS FOR CHOICE OF LAW ANALYSIS Colorado has adopted

Restatement (Second) Conflicts of Law for tort actions. ITT Specialty Risk Serv. v.

Avis Rent A Car Sys., Inc., 985 P.2d 43, 47 (Colo. Ct. App. 1998). Under the

Restatement, this Court must consider a general list of policy factors set forth in §

6,17 together with lists of particularized factors depending on the specific area of

law at issue. The particularized contacts to be considered for tort claims include:

(i) the place where the injury occurred; (ii) the place where the conduct causing the

injury occurred; (iii) the domicile, residence, nationality, place of incorporation,

and place of business of the parties; and, 16 Since these allegations relate solely to

the sale of the Artist Royalties (id. ¶¶ 81, 83), the professional negligence claim

relates solely to Cohen’s sale of assets in 2001. The 2001 sale occurred prior to the

execution of the Feb. 2002 contracts with TAS, Natural Wealth, and Agile Group, LLC.

See, Exhs. F, G, O, and P. It also occurred prior to Traditional Holdings’ investment

of assets in, and withdrawal of assets from, the Agile Safety Fund. As a result,

Counter-Defendants have not asserted the application of the economic loss rule to this

claim. In fact, CounterDefendants vigorously deny that there ever existed any contract

pursuant to which it owed any duty to perform any services with regard to the 2001

sale or the prior creation or structuring of Traditional Holdings. CounterDefendants

also deny having performed any services related thereto. Dismissal of this

professional negligence claim remains appropriate, however, due to Cohen’s failure to

file a certificate of review as required by C.R.S. § 13- 20-602. Infra § V.D. To the

extent, however, that Cohen’s noncompliance with C.R.S. § 13-20-602 does not mandate

immediate dismissal, Counter-Defendants would intend to submit a further Rule 56

motion concerning this claim. 17 The § 6 factors include: (a) the needs of the

interstate and international systems; (b) the relevant policies of the forum state;

(c) the relevant policies of other interested states and the relative interests of

those states in the determination of the particular issues; (d) the protection of

justified expectations; (e) the basic policies underlying the particular field of law;

(f) certainty, predictability, and uniformity of result; and, (g) ease in the

determination and application of the law to be applied. Rest.2d Confl. § 6 (1971).

(iv) the place where the parties’ relationship is centered. Rest.2d Confl. §§ 145(2)

(torts), 148(2) (fraud); Hamilton v. Cunningham, 880 F.Supp. 1407, 1413 (D. Colo.

1995); Dworak v. Olson Constr. Co., 551 P.2d 198, 200 (Colo. 1976). The comments to

Restatement § 145 give direction regarding particularized factors that carry more or

less weight for specific torts. Where the primary purpose of the tort rule involved is

to deter or punish conduct, the state where the conduct took place must be the state

of dominant interest. Rest.2d Confl. § 145, cmt. c. For torts such as fraudulent

misrepresentation, the place of injury is much less significant. Id. cmt. f.

Restatement § 148 provides additional rules which specifically address fraud and

misrepresentation claims. Where misrepresentations and reliance take place in

different states, the following factors are considered: (1) where plaintiff acted in

reliance on the representations; (2) where plaintiff received the representations; (3)

where defendant made the representations; (4) domicile, residence, nationality, place

of incorporation and places of business of parties; and (5) where any tangible subject

of the transaction was situated. Rest.2d Confl. § 148(2). B. COLORADO LAW APPLIES TO

COHEN’S TORT COUNTERCLAIMS Cohen alleges tort claims for fraud, negligent

misrepresentation, negligence, and breach of fiduciary duty. The claims are based upon

alleged conduct related to the investment, management, and/or reporting of Traditional

Holdings’ assets. Unlike Plaintiffs’ claims against Cohen, these claims do not involve

injury to reputation, disparagement, or interference with contract. See, Pl. Resp. to

Def. Cohen’s Motion for Partial Dismissal of the Sec. Am. Compl. (Aug 10, 2006) § III.

B. (pp. 10-13). Rather, Cohen’s counterclaims seek to impose liability based upon

alleged deficiencies in the performance of professional services. Where torts of this

kind are involved, the location of the alleged conduct (i.e., the place where the

services are performed) is the most important contact. See, Trierweiler v. Croxton &

Trench Holding Corp., 90 F.3d 1523, 1536 (10th Cir. 1996) (discussing attorney

malpractice). Colorado has a particular interest in applying its law to the

professional negligence, negligence, and fiduciary duty claims because Colorado

requires a certificate of review to be filed as a condition precedent to the pursuit

of such claims against licensed professionals (while California does not). Id. at 1536

(applying law of Colorado, rather than Michigan, for same reason); infra § V.D.

(failure to file certificate of review as required by C.R.S. § 13-20-602). In this

case, each Counter-Defendant is domiciled or has its principal place of business in

Colorado. Countercl. ¶¶ 2-7. The services rendered to Traditional Holdings, Cohen

and/or Lynch under the parties’ contracts (and thus, all services that are the subject

of the counterclaim allegations) were rendered in Colorado.

The information related to these services, including all letters and reports

referenced in Cohen’s counterclaims, were generated in and sent from Colorado.

BY SONY

Traditional Holdings’ assets were sent to Colorado to be managed by Colorado entities

who performed their services in Colorado, and were paid fees in Colorado. Thus, the

place where the parties’ relationship was centered was Colorado. See also, Pl. Resp.

to Def. Cohen’s Motion for Partial Dismissal of the Sec. Am. Compl. § III.B. (p. 13).

Unlike Plaintiffs’ claims against Cohen, there is not one clearly ascertainable place

of alleged injury. Cohen is a Canadian citizen, and Traditional Holdings was a

Kentucky LLC. Countercl. ¶ 1; See Exhs. B and C.

Nor does Cohen allege the location where he received or purportedly relied upon the

“monthly emails.” Cohen’s own emails indicate that he often received and/or accessed

his emails while traveling out of the country.18 18 See, e.g., January 18, 2003 email

from L. Cohen to T. Barnett (Exh. N attached) (indicating Cohen’s location as “in

bombay”).

Based upon the principles and factors of Restatement §§ 145 and 148, Colorado has the

“most significant relationship” to Cohen’s tort counterclaims.19

V. COHEN’S SECOND THROUGH EIGHTH CLAIMS SHOULD BE DISMISSED A. THE NEGLIGENCE, BREACH

OF FIDUCIARY DUTY, AND FRAUD CLAIMS ARE BARRED BY THE ECONOMIC LOSS RULE The economic

loss rule limits tort liability when a contractual relationship exists between the

parties. Town of Alma v. Azco Const., Inc., 10 P.3d at 1262-64. Such limitation is

appropriate because nonperformance can be adequately addressed by the parties during

the bargaining process. Id. Limiting tort remedies holds parties to the terms of their

bargain, and ensures predictability in commercial transactions.20 Id. The key to

determining the availability of a contract or tort action lies in determining the

source of the duty that forms the basis of the action. Id. A breach of a duty arising

under the provisions of a contract must be redressed under the contract, and a tort

action will not lie. Id. 1262. To support a tort action, a duty allegedly breached

must arise independently of any contract duties. Id.; Grynberg v. Agri Tech, Inc., 10

P.3d 1267, 1268 (Colo. 2000); Elrich v. Menezes, 981 P.2d at 983; Robinson Helicopter

Co., Inc. v. Dana Corp., 102 P.3d at 273-74. 19 As seen below, Counter-Defendants seek

dismissal of Cohen’s negligence, breach of fiduciary duty, and fraud claims based upon

the economic loss rule. Infra §V.A. There is no conflict, however, between the law of

Colorado and California concerning the applicability of this rule. Id.; See, e.g.,

Town of Alma v. Azco Const., Inc., 10 P.3d 1256, 1262-64 (Colo. 2000); Tuchman v. Pell

Rudman Trust Co., 245 F.Supp. 2d 1156, 1159 (D. Colo. 2003); Elrich v. Menezes, 981

P.2d 978, 983 (Cal. 1999); Robinson Helicopter Co., Inc. v. Dana Corp., 102 P.3d 269,

272- 74 (Cal. 2004) (discussed infra at § V. A.) Thus, in evaluating whether the

negligence, fiduciary duty, and fraud claims are barred by the economic loss rule, no

choice of law analysis may even be required. See, e.g. Air Prods. and Chem., Inc. v.

Eaton Metal Prods. Co., 272 F.Supp. 2d 482, 490 (E.D. Penn 2003) (determining whether

economic loss rule in three different jurisdictions conflicted before application of

the rule). Rather, the application of the law of either Colorado or California should

result in the dismissal of such claims. 20 The California Supreme Court has also

adopted the economic loss rule. Aas v. Superior Court, 12 P.3d 1125, 1135 (2000) (“A

person may not ordinarily recover in tort for the breach of duties that merely restate

contractual obligations”). Thus, breaches of contractual promises will generally be

enforced only through contract law. Id. Conduct amounting to a breach of contract

becomes tortious “only when it also violates a duty independent of the contract

arising from principles of tort law.” Robinson Helicopter, 102 P.3d at 274. Case 1:05-

cv-01233-LTB Document 123 Filed 10/19/06 USDC Colorado Page 15 of 32 16 The

fundamental distinction in cases allowing or not allowing tort claims in addition to

claims for breach of contract is not that the common law recognized a duty of care

that is independent generally of duties that may be bargained for in contract, but

whether the duty of care recognized in common law truly is, in a particular case,

independent of the duties the parties have, in fact, allocated to each other in

contract. The court in Grynberg articulated this distinction succinctly in

distinguishing cases where courts had allowed a plaintiff to maintain a tort action

for purely economic losses independently of a claim for breach of contract: In those

cases, the duty asserted by the parties alleging negligence arose from an independent

duty of care recognized under the common law but not contemplated under the terms of

the contract. Tuchman v. Pell Rudman Trust Co., 245 F. Supp. 2d at 1159 (citing

Grynberg v. Agri Tech, Inc., 985 P.2d 59, 62 (Colo. Ct. App. 1999)) (emphasis added).

Thus, if the contractual obligation is the “same as or subsume[s] the duties of care

imposed by law, then the duty of care imposed in tort is no longer ‘independent’ of

that agreed to in contract.” Tuchman, 245 F. Supp. 2d at 1159; Elrich, 981 P.2d at 98-

4. In this case, Cohen’s Counterclaims allege deficiencies in the performance of

services rendered pursuant to specific contractual relationships. The scope of the

duties owed, including all applicable limitations, is governed by the relevant terms

and provisions of these contracts. The parties who owed such duties, and the parties

to whom such duties were owed, are also governed by these contracts. As recognized by

the Colorado Supreme Court, limiting CounterDefendants’ duties to the terms and

provisions of these contracts is necessary to meet the expectations of the parties.

Town of Alma, 10 P.3d at 1262-64.

WTF? WHERE IS THE COURT OBTAINING JURISDICTION TO EVEN CONSIDER TH INFORMATION?

In that regard, this Court has recognized that the relationship between Traditional

Holdings, as Limited Partner, and Agile Group, LLC, as General Partner of the Agile

Safety Fund, was governed by the Limited Partnership Agreement (and the related

Subscription Agreement) executed on Feb. 26, 2002. See, Exhibits F and G; Greenberg &

Associates, Inc. v. Cohen, 2005 WL 3527294 (D. Colo. Dec. 21, 2005) *6-8. Other

contracts that governed the Case 1:05-cv-01233-LTB Document 123 Filed 10/19/06 USDC

Colorado Page 16 of 32 17 various services rendered thereunder (during the time they

were applicable) were: (a) the Feb. 26, 2002 Investment Advisory Agreement between

TAS, as ADVISER, and Cohen and Lynch, as CLIENTS (Exh. O attached); (b) the Feb. 26,

2002 Financial Planning Agreement between Greenberg & Associates, Inc. (n/k/a Natural

Wealth), as PLANNER, and Cohen and Lynch, as CLIENTS (Exh. P attached); and (c) the

Investment Advisory Agreements executed between TAS, as ADVISER, and Cohen and Lynch,

as CLIENTS prior to Feb. 26, 2002, which were later superseded and replaced by the

Feb. 26, 2002 TAS Agreement. (supra, fn. 5 and Exh. A attached). Greenberg &

Associates, Inc. v. Cohen, 2005 WL 3527294 (D. Colo. Dec. 21. 2005) **2-6. The terms

and provisions of these agreements defined the duties owed with respect to the

services rendered thereunder, and the parties who owed them. No tort duties arose

independently from these contracts. No tort claim may be asserted against any Counter-

Defendant for the breach of any duty allocated to a specific party pursuant to such

contracts.

1. Negligent Misrepresentation and Negligence Cohen asserts a negligent

misrepresentation claim based upon Counter-Defendants’ alleged negligence in obtaining

or communicating the information contained in the “monthly email reports.” Countercl.

¶¶ 71, 74 (Fourth Claim).

Cohen also asserts a separate negligence claim based upon the same alleged negligence

in the preparation of these same emails. Id. ¶ 103 (Eighth Claim). Both of these

claims allege that Counter-Defendants failed to meet a tort duty of care concerning

the preparation and issuance of reports concerning Traditional Holdings’ investments

with the Agile Safety Fund. However, Cohen’s breach of contract claim specifically

alleges that Cohen and “the Agile Group” entered into written and oral agreements that

included, among their terms, the duty to “faithfully report all transactions;” to

“bring to Cohen’s attention” Case 1:05-cv-01233-LTB Document 123 Filed 10/19/06 USDC

Colorado Page 17 of 32 18 various activities or transactions; and to take “reasonable

care” in protecting Cohen’s capital from any type of action causing loss. Id. ¶ 54

(c)-(e).

Cohen also alleges that “the Agile Group” breached these duties by “failing to report

accurately and completely to Cohen” regarding the Traditional Holdings account. Id. ¶

55(d). In fact, any duties actually owed by “the Agile Group” concerning the

preparation and issuance of reports concerning Traditional Holdings’ assets were

specifically allocated to Agile Group, LLC under the terms of the Limited Partnership

Agreement and the Subscription Agreement. See, Limited Partnership Agreement (Exh. F)

§§ 3.02(m); 3.04(a); 3.07(b); 14.01;21 Subscription Agreement (Exh. G) §§ 2.04, 3.02,

3.15.22 These provisions describe the types of 21 The Limited Partnership Agreement

provides that Agile Group, LLC’s powers and duties as General Partner of the Agile

Safety Fund include the following: Section 3.02. Powers of the General Partner . . .

the General Partner shall have the right, power, and authority, on behalf of the

Partnership: . . . (m) To prepare, or cause to be prepared . . . and deliver any and

all instruments to effectuate the business of the Partnership, including but not

limited to, annual and/or interim reports, a copy of which shall be delivered to each

Partner, as provided in Section 3.07 and 13.04 hereof; . . . (emphasis added) Section

3.04. Liability and Indemnification. (a) The General Partner shall not be liable to

the Partnership or the Limited Partners for any action taken or omitted to be taken in

connection with the business or affairs of the partnership so long as such entity

acted in good faith and is not found to be guilty of gross negligence or willful

misconduct with respect thereto. (emphasis added) Section 3.07. Duty to Keep Books,

Financial and Tax Reports . . . (b) The General Partner shall cause to be prepared and

distributed to each Partner as soon as practicable following each Fiscal Year an

annual financial statement prepared in accordance with U.S. generally accepted

accounting principles . . . . (emphasis added) Section 14.01. Address and Notices. The

address of each Partner for all purposes shall be the address set forth on the

signature page of the Agreement or such other address of which the General Partner has

received written notice. (emphasis added) 22 The Subscription Agreement further

provides as follows: 2.04 Representations and Warranties by the Subscriber. The

Subscriber represents and warrants to the General Partner that: (a) The Subscriber is

acquiring the interests for the Subscriber’s own account . . . (c) the Subscriber has

such knowledge and experience in financial and business matters that he or she is

capable of evaluating the merits and risks of investing in the Partnership, and all

information that the Subscriber has provided concerning the Subscriber, the

Subscriber’s financial position, and knowledge of financial and business matters is

true, correct, and complete . . . (emphasis added) (h) . . . the person signing this

Agreement on behalf of [the Subscriber] has been duly authorized by such entity to do

so. (emphasis added) Case 1:05-cv-01233-LTB Document 123 Filed 10/19/06 USDC Colorado

Page 18 of 32 19 reports which Agile Group, LLC had a duty to deliver or distribute to

the Limited Partner (i.e. Traditional Holdings); the relevant address of the Limited

Partner for purposes of such reports; the scope of the duty owed by Agile Group, LLC

(good faith); the agreed limitations on liability (i.e. gross negligence or willful

misconduct required); and the Limited Partner’s specific agreement to indemnify and

hold Agile Group, LLC harmless for any false representation made to Agile Group, LLC

in any document furnished to the General Partner (including directions given

concerning such reports). Id. These provisions concerning reports to Limited Partners

were further described and disclosed to Traditional Holdings in the Confidential PPM.

See, Confidential PPM (Exh. H) pp. 6 (Reports to Limited Partners); 7 (Limitation of

Liability and Indemnification); Exh. A, p. 8 (Reports to Limited Partners). In BRW,

Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004), the Colorado Supreme Court

discussed the application of the economic loss rule to a similar claim of negligence

and/or negligent misrepresentation. The court stated that “the contract [between the

parties] contained the duty to carefully and non-negligently report on the Project's

status. Because [plaintiff] alleges that [defendant] breached this duty, and the duty

is contained in the interrelated contracts, the economic loss rule bars the negligent

misrepresentation claim.” Id. at 75. The court distinguished Keller v. A.O. Smith

Harvestore Prod. Inc., 819 P.2d 69 (Colo. 1991): In Keller, we held that “a

contracting party's negligent misrepresentation of material facts prior to the

execution of an agreement may provide the basis for an independent tort claim.” 819

P.2d at 72 (emphasis added). In contrast, the alleged negligent misrepresentation

complained of in this case occurred during 3.02. Addresses and Notices. The address of

each party for all purposes shall be the address set forth on the first page of the

Agreement or on the signature page annexed hereto, or such other address of which the

other parties have received written notice (emphasis added) . . . . 3.15 Indemnity.

The undersigned agrees to indemnify and hold harmless the General Partner and the

Partnership and each other person, if any, who controls such entity . . . against any

and all loss, liability, claims, damages, and expenses whatsoever . . . arising out of

or based upon any breach or failure by the undersigned to comply with any

representation, warranty, covenant, or agreement made by the undersigned herein, or in

any other document furnished by the undersigned to any of the foregoing in connection

with this Agreement. (emphasis added) Case 1:05-cv-01233-LTB Document 123 Filed

10/19/06 USDC Colorado Page 19 of 32 20 performance, by which time the parties had

bargained for the allocation of risks, duties, and remedies. BRW, Inc., 99 P.3d at

75.23 Cohen’s negligence and negligent misrepresentation claims are both premised upon

the purported existence of a tort duty concerning the issuance of reports as to

Traditional Holdings’ investments in the Agile Safety Fund. Those same duties are

specifically alleged in Cohen’s breach of contract claim and are governed by the

Limited Partnership Agreement and Subscription Agreement. As in BRW v. Dufficy, the

alleged misrepresentations (i.e., the monthly emails) purportedly occurred during

performance of the applicable contracts – not prior to execution. Thus, Cohen’s

negligence and negligent misrepresentation claims are barred.

2. Fiduciary Duty/Aiding and Abetting Breach of Fiduciary Duty

Cohen asserts a breach of fiduciary duty claim based upon Counter-Defendants’ alleged

failure to properly conserve, care for, and issue accurate reports concerning

Traditional Holdings’ assets. Countercl. ¶ 59 (Second Claim).

Cohen also asserts a separate claim for aiding and abetting Lynch’s breach of

fiduciary duties based upon alleged deficiencies as to the manner in which: (a) Lynch

was permitted to withdraw funds; and (b) such withdrawals were reported to Cohen. Id.

¶ 89. Both of these claims allege that Counter-Defendants failed to meet professional

duties concerning the protection, handling, or issuance of reports concerning

Traditional Holdings’ assets.

However, Cohen’s breach of contract claim specifically alleges that Cohen and “the

Agile Group” entered into written and oral agreements that included these same duties.

Id. ¶¶ 54(a)-(e); Supra § III.B.1 (including duties to “faithfully” protect; exercise

“prudence” in 23 Nor does California recognize any claim based in negligence for

breach of contractual duties. Rather, when the duties underlying the contract are

breached, a tort may also lie only in specific circumstances, such as where the tort

is one based in fraud or deceit, or where the party engaged in intentional conduct.

Elrich, 981 P.2d at 984; Robinson Helicopter Co, Inc., 102 P.3d at 273. “Focusing on

intentional conduct gives substance to the proposition that a breach of contract is

tortious only when some independent duty arising from tort law is violated.” Id.

… handling; “faithfully” report; and take “reasonable care” in protecting). Once

again, any duties actually owed by “the Agile Group” concerning Traditional Holdings’

requests for withdrawals and/or the preparation and issuance of reports were

specifically allocated to Agile Group, LLC under the terms of the Limited Partnership

Agreement and the Subscription Agreement. See, Limited Partnership Agreement (Exh. F)

§§ 3.04(a), 7.01, 7.02, 7.03;24 Subscription Agreement (Exh. G) § 3.15;25 See also,

supra fns. 20 and 21 (with regard to issuance of reports).

These provisions describe Traditional Holdings’ right, as a Limited Partner, to make

withdrawals; Agile Group, LLC’s obligation, as the General Partner, to pay such

withdrawals; certain limited circumstances (not applicable here) in which the Limited

Partner may not withdraw its funds; other limited circumstances (not applicable here)

in which Agile Group, LLC may suspend such withdrawals; the scope of the duty owed by

the 24 The Limited Partnership Agreement provides, inter alia, the following rights

and duties with regard to the withdrawal of funds by a Limited Partner: Section 3.04.

Liability and Indemnification. (o) The General Partner shall not be liable to the

Partnership or the Limited Partners for any action taken or omitted to be taken in

connection with the business of affairs of the partnership so long as such entity

acted in good faith and is not found to be guilty of gross negligence or willful

misconduct with respect thereto. (emphasis added) Section 7.01. Permissible

Withdrawals. A Limited Partner may withdraw all or any of the value in such Limited

Partner’s Capital Account in the manner and to the extent provided in Section 7.02

below. (emphasis added) Section 7.02. Withdrawal Procedure. . . . Partial withdrawals

may not be made by any Limited Partner if they would reduce a Limited Partner’s

capital account balance below $50,000, unless the General Partner consents . . . . The

following provision shall apply to withdrawals: (a) A Limited Partner who requests a

withdrawal of less than ninety (90%) percent of the value of such Limited Partner’s

Capital Account shall be paid within 30 days after the applicable Withdrawal Date.

(emphasis added) Section 7.03. Suspension of Payment of Withdrawals. The Partnership

may suspend or postpone the payment of any withdrawals from Capital Accounts . . . (a)

[not applicable]; (b) [not applicable]; (c) for such other reasons or for such other

periods as the General Partner may in good faith determine (including but not limited

to in the event that Limited Partners, in the aggregate, request withdrawals of

twenty-five (25%) percent or more of the Partnership’s Capital Accounts as of any date

of withdrawal). (emphasis added) 25 The pertinent text of Section 3.15 and other

provisions of the Subscription Agreement are set forth in fn. 21 above. Case 1:05-cv-

01233-LTB Document 123 Filed 10/19/06 USDC Colorado Page 21 of 32 22 Agile Group, LLC

(good faith); the agreed limitations on liability (i.e. gross negligence or willful

misconduct required); and the Limited Partner’s specific agreement to indemnify and

hold Agile Group, LLC harmless for any false representation made in any document

furnished to the General Partner (including requests for withdrawals). These

provisions concerning requests for withdrawals were further described and disclosed to

Traditional Holdings in the Confidential PPM. See, Confidential PPM (Exh. H) pp. 2-3

(Withdrawals); 7 (Limitation of Liability and Indemnification); Exh. A pp. 3-4

(Withdrawals from Capital Accounts). In Tuchman v. Pell Rudman Trust Co., N.A., the

District Court for Colorado discussed the application of the economic loss rule to

breach of fiduciary duty and negligence claims virtually identical to those asserted

here by Cohen. 245 F. Supp. at 1157. There, plaintiff had alleged violations of

professional tort duties arising out of investment services provided by a trust

company. Id. The services were provided under a Client Services Agreement that

prescribed certain obligations and standards of care that would apply to the handling

of plaintiff’s investments. Id. The court applied the economic loss rule to bar

plaintiff’s fiduciary duty and negligence claims. Id. In doing so, the court rejected

plaintiff’s argument that “because Colorado tort law imposes professional and

fiduciary duties of care on financial advisors/brokers…independently of any duties an

advisor/broker may assume in contract” he was entitled to maintain both an action for

breach of the services contract and actions for negligence and breach of fiduciary

duty. Id. In rejecting the argument, the court stated: Plaintiff misapprehends what

the state Supreme Court meant by “independent” in Azco. The mere fact that independent

duties exist as a matter of law does not mean that, once a broker/advisor enters into

a contractual relationship with a client, those duties remain “independent” of those

assumed and allocated by the contract. The salient inquiry is into the nature of the

obligations assumed: if they are the same as or subsume the duties of care imposed by

law, then the duty of care imposed in tort is no longer “independent” of that agreed

to in contract. Id.; See also, Micale v. Bank One N.A., 382 F. Supp. 2d 1207, 1220-21

(D. Colo. 2005) (economic loss rule barred fiduciary duty and negligence claims where

Investment Advisory Account Agreement encompassed same duties and obligations alleged

as basis for tort claims). Cohen’s fiduciary duty claims are premised upon the

purported existence of professional tort duties that are the same as or subsumed by

the contract duties alleged in Cohen’s breach of contract claim, and governed by the

Limited Partnership Agreement and Subscription Agreement. Cohen cannot assert a right

to recover in tort for these same matters. See, Monroe Property, LLC v. Bachelor Gulch

Resort, LLC, 374 F. Supp. 2d 914, 922 -923 (D. Colo. 2005). 3. Fraud/Aiding and

Abetting Fraud Cohen asserts a fraud claim based upon allegations that Counter-

Defendants knowingly or recklessly disseminated or approved false or incomplete

statements contained in the monthly email reports. Countercl. ¶ 64 (Third Claim).

Cohen also asserts a separate claim for aiding and abetting Lynch’s fraud based upon

the same conduct described in the aiding and abetting fiduciary duty claim. Id. ¶

96(a)-(e) (Seventh Claim); Cf. ¶ 89(a)-(e) (Sixth Claim). Each tort claim based upon

the monthly email reports simply restates Cohen’s breach of contract claim. Id. ¶¶

54(c)-(e) (duty to “faithfully report”); 55(d) (failure to “report accurately and

completely”). These alleged duties are governed by the Limited Partnership Agreement

and the Subscription Agreement. Supra § V.A.1; fns. 21-22.

Similarly, each aiding and abetting claim concerns matters related to the protection,

handling, and/or issuance of reports concerning Traditional Holdings’ assets. These

are the same matters that are the subject of Cohen’s breach of contract claim. Id.;

see also, ¶¶ 54(a)-(b) (duties to “faithfully protect;” “exercise prudence” in

handling); 55(a)-(b) (“permitting” withdrawal of funds).

These alleged duties are also governed by the Limited Partnership Agreement and

Subscription Agreement. Supra § V.A.2; fns. 24-25. Case 1:05-cv-01233-LTB Document 123

Filed 10/19/06 USDC Colorado Page 23 of 32 24 Although no Colorado court appears to

have ruled on the issue of whether fraud can be precluded by the economic loss rule,

the fraud claims asserted by Cohen fall squarely within the same policy

considerations. Cohen’s fraud claims allege facts that occurred during the performance

of the parties’ contracts. They did not occur prior to execution, and thus, did not

fraudulently induce the execution of the contracts. Like the other tort claims

asserted by Cohen, the allegations of misconduct merely relabel the breach of contract

claims. Other states have consistently applied the economic loss rule to bar fraud and

fraudulent non-disclosure claims. See e.g., Grynberg v. Questar Pipeline Company, 70

P.3d 1, 10-14 (Utah 2003); Excess Risk Underwriters, Inc. v. Lafayette Life Insur.

Co., 208 F.Supp. 2d 1310, 1316 (S.D. Fla. 2002); Reilly Foam Corp. v. Rubbermaid

Corp., 206 F.Supp. 2d 643, 658-59 (E.D. Penn. 2002); Bracco Diagnostics, Inc. v.

Bergen Brunswig Drug Col, 226 F.Supp. 2d 557, 563 (D.N.J. 2002); General Elec. Co. v.

Latin Am. Imports, S.A., 214 F.Supp. 2d 758,762 (W.D. Ky. 2002). In these states, the

economic loss rule mandates that if the alleged fraud is connected to an act of

performance under the contract, the claim is barred. General Elec., 214 F.Supp. 2d at

764. 26 Cohen’s fraud claims are premised upon purported violations of tort duties

that are the same as or subsumed by the relevant contracts. The alleged

misrepresentations were acts of performance – not inducement. Thus, the fraud claims

should be barred. 26 Under California law, where the wronged party alleges purely

economic loss, only intentional conduct violating a duty “completely independent” from

the putative defendant’s contractual duty will support a tort claim. Elrich, 981 P.2d

at 984. California courts will parse out the allegations of a fraud and intentional

misrepresentation claim to determine if the economic loss rule applies. Cf. Robinson

Helicopter, 102 P.3d at 274-75 (“[w]e hold the economic loss rule does not bar

Robinson’s fraud and intentional misrepresentation claims because they were

independent of Dana’s breach of contract”). Unlike the contract in Robinson, which

concerned only the sale of goods, CounterDefendants’ reporting obligations in this

case were governed by the parties’ contracts.

THE FRAUD CLAIMS ARE NOT SUFFICIENTLY PLED 1. Cohen’s Fraud Allegations Lack the

Requisite Particularity. In all averments of fraud, the circumstances constituting

fraud must be alleged with particularity. Fed. R. Civ. P. 9(b).27 Specifically, a

plaintiff must: (a) identify the particular defendants with whom the plaintiff dealt;

(b) designate the occasion(s) on which the fraudulent statements were made, and by

whom; and (c) describe what misstatements or half-truths were made, and how. Saine v.

A.I.A., Inc., 582 F.Supp. 1299, 1303 (D. Colo. 1984); See also, Ambraziunas v. Bank of

Boulder, 846 F.Supp. 1459, 1462 (D. Colo. 1994).

Cohen’s fraud allegations contained in his aiding and abetting claim are also subject

to the heightened standards of Rule 9(b). In re Storage Technology Corp. Securities

Litigation, 147 F.R.D. 232, 235 (D. Colo. 1993) (because fraud is an essential element

of an aiding and abetting claim, that element must be pled with particularity). Here,

Cohen has failed to properly identify the specific Counter-Defendants who allegedly

made the purported misrepresentations. Agile Group, LLC was the sole CounterDefendant

who: (a) was a General Partner of the Agile Safety Fund; (b) was a party to the

Limited Partnership Agreement and Subscription Agreement; and (c) owed any duties with

regard to the protection, handling, or issuance of reports concerning Traditional

Holdings’ assets. Since there are no allegations of alter ego or agency relationships,

the inclusion of all corporate Counter-Defendants within the single misleading term

(“the Agile Group”) fails to meet the heightened standards of Rule 9(b).

Cohen has also failed to identify the specific time or content of the allegedly false

representations. Rather, his fraud claim is based upon unidentified “false statements”

contained in unidentified “monthly emails.” See, e.g. Countercl. ¶ 64.

The only paragraphs of the General 27 The dismissal of a claim for failing to satisfy

Rule 9(b) is treated as a dismissal under Rule 12(b)(6) for failure to state a claim.

Brooks v. Bank of Boulder, 911 F.Supp. 470, 473 (D. Colo. 1996).

Allegations which identify the date or content of any “monthly emails” are ¶¶ 29, 31

and 32. None of these paragraphs identify a “fraudulent statement.”28

Because Cohen’s own pleadings have generated inconsistencies, it is critical that each

monthly email that contained a purported misrepresentation be identified with

particularity. It is further critical that Cohen be required to allege, in good faith,

each withdrawal that purportedly occurred without his knowledge or permission.

For example, Cohen first alleges that Lynch made withdrawals without Cohen’s knowledge

and permission “beginning in January 2003.” Id. ¶ 36.

Later, however, he acknowledges that

certain of those withdrawals did occur with

his knowledge and permission. Id. ¶ 41

(acknowledging his awareness of withdrawals

to purchase real estate in the amount of

$592,000).29

Yet, Cohen also alleges that unauthorized withdrawals dissipated Traditional Holdings’

funds from $4.7 M in December 2001 (over a year prior to the alleged commencement of

unauthorized withdrawals) to less than $150,000 in October 2004. Id.

If this Court determines that Cohen’s fraud claims are not barred by the economic loss

rule, he should be required to identify the date and content of each “monthly email”

during 2003 and 2004 in which he claims a misrepresentation or non-disclosure

occurred. He should also be required to allege, in good faith, each withdrawal that he

claims he did not: (a) authorize; 30 (b) know about; or (c) ultimately receive and/or

use for his own benefit. He should also limit his allegations to the sole party with

whom Traditional Holdings had a relationship concerning the invested funds (i.e. Agile

Group, LLC). 28 For example, ¶ 29 describes a Dec. 18, 2001 email to Cohen which

reported a $7.5 M balance “amongst all accounts.” Id. ¶ 29.

There is no allegation that this statement was inaccurate. In fact, Cohen later

contends that Lynch’s unauthorized withdrawals did not begin until January 2003 – over

a year later. Id. ¶ 36. Similarly, ¶ 31 describes a March 12, 2002 email reporting

“two large disbursements” which Cohen acknowledges he had requested and was “already

aware.” Id. ¶31.

Finally, ¶ 32 describes a March 18, 2002 email in which Greenberg proposed a practice

of sending a confirmation email every time a disbursement report is made. Id. ¶ 32.

Later, however, Cohen’s own agent (Lynch) directed otherwise. Id. ¶¶ 48-49. 29

In addition, Cohen expected to spend several hundred thousand dollars per year just to

cover his ordinary living expenses and pay taxes. See, e.g. April 13, 2001 letter from

N. Greenberg to L. Cohen (Exh. Q attached). 30

By virtue of the Durable General Power of Attorney and Lynch’s status as 99.5% owner

of Traditional Holdings, there is not a single withdrawal that Lynch did not have

authority to make.

In short, Cohen’s fraud allegations are not remotely sufficient to meet the heightened

pleading requirement of Rule 9(b). Koch v. Koch Indus., Inc., 203 F.3d 1202, 1237

(10th Cir. 2000) (statement that alleged misrepresentations were made “during 1982 and

continuing to the present time;” recitation that the Defendants “fail[ed] to disclose

the ownership, condition and true value of assets and property;” and failure to

identify any specific Defendant who made alleged misrepresentations or omissions

resulted in dismissal pursuant to Rule 9(b)); see also, Rosales v. AT & T Info. Sys.

Inc., 702 F.Supp. 1489, 1499 (D. Colo. 1988). 2.

Has Failed to Sufficiently Plead Reliance and Scienter. Even if Cohen attempts to

replead his fraud claims with requisite particularity, such claims still fail as a

matter of law.

Traditional Holdings executed contracts (and received a PPM) describing the reports to

be distributed by Agile Group, LLC. See, Exh. F, G, and H. The contracts specified the

address of record to which such reports were to be sent. Exh. F and G. Thus, Cohen was

on notice of the existence of such reports, and the manner in which they were being

distributed. He cannot, therefore, allege that he reasonably relied exclusively upon

the monthly emails. See, e.g., Doehla v. Wathne Limited, Inc., 1999 WL 566311

(S.D.N.Y.) *11.

Similarly, Cohen has not alleged – and cannot allege – the requisite degree of

scienter to sustain his fraud claims. He acknowledges that numerous reports were sent

by mail, on a regular monthly basis, itemizing all loans and withdrawals from the

Agile Safety Fund. Countercl. ¶¶ 37, 47. At least two warning letters were also sent

to Cohen in January and June 2004. Id. ¶¶ 24, 27. These reports were sent to Cohen

throughout the time that Counter-Defendants had the purported intent of concealing

such transactions from Cohen. Thus, there is no plausible basis upon which Cohen can

allege facts giving rise to the requisite “strong inference” of fraudulent intent.

Cohen has not – and cannot – allege facts showing that Counter-Defendants: (a) had any

possible motive or intent to deceive or mislead Cohen; (b) engaged in conscious

misbehavior or Case 1:05-cv-01233-LTB Document 123 Filed 10/19/06 USDC Colorado Page

27 of 32 28 recklessness;31 or (c) could – or did – receive any possible benefit from

doing so. See, e.g. Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128-29 (2d.

Cir. 1994); Powers v. British Vita, PLC, 57 F.3d 176, 184 (2d Cir. 1995). Nor can

Cohen allege that Counter-Defendants intended Cohen to rely exclusively on the monthly

emails. In short, Cohen has not – and cannot – sufficiently plead the necessary

elements of his fraud-based claims.

C. THE NEGLIGENT MISREPRESENTATION CLAIM SHOULD BE DISMISSED FOR FAILURE TO PLEAD A

THIRD PARTY TRANSACTION If this Court determines that the negligent misrepresentation

claim is not barred by the economic loss rule, the claim must still be dismissed.

Cohen has not alleged that the purported misrepresentations were provided to him for

his use in a business transaction with a third party. The law in this jurisdiction is

clear that a plaintiff must plead and prove a third-party transaction to state a claim

for negligent misrepresentation. Snoey v. Advanced Forming Tech., Inc., 844 F.Supp.

1394, 1400 (D. Colo. 1994) (dismissing plaintiff’s claim where alleged negligent

misrepresentations occurred only in connection with his relations with the defendants

and not a third party); See also, Colo. Nat’l Bank of Denver v. Adventura Assoc.,

L.P., 757 F.Supp. 1167, 1172-73 (D. Colo. 1991); Rosales v. AT & T Information Sys.

Inc., 702 F.Supp. at 1500. In Adventura Assoc., this Court detailed the rationale

behind such a rule by stating that the “claim of (negligent) misrepresentation is

limited by this requirement because for most pecuniary damages resulting out of

business transactions there are adequate remedies under the law of sales and

contract….” Id. The Court also relied on Colorado Jury Instruction 9:3B(3), which

explicitly requires a finding that “[t]he defendant gave the information to the

plaintiff for 31 Cohen’s aiding and abetting claims are based solely upon allegations

of knowing conduct. Id. ¶¶ 89, 96. Case 1:05-cv-01233-LTB Document 123 Filed 10/19/06

USDC Colorado Page 28 of 32 29 the (guidance) (use) of the plaintiff in a business

transaction with a person other than the defendant.” Id. at 1173 (citing Colo. Jury

Instruc. Civ.3d 9:3B) (emphasis added). Here, Cohen has failed to allege that the

purported misrepresentations contained in the “monthly e-mails” were provided to him

for guidance or use in a business transaction with a third party. In fact, Cohen

specifically alleges that Counter-Defendants “gave the information to Cohen for his

guidance and use in a business transaction or transactions.” Countercl. ¶ 73.

(emphasis added). It is further clear from the General Allegations that Cohen did not

rely on the “monthly e-mail” misrepresentations for any purpose other than to monitor

his own portfolio. Id. ¶¶ 47, 51, 68.32 Due to the absence of a third party

transaction, Cohen’s claim for negligent misrepresentation is deficient as a matter of

law. D. THE PROFESSIONAL NEGLIGENCE, NEGLIGENCE, AND FIDUCIARY DUTY CLAIMS ARE BARRED

BY COHEN’S FAILURE TO COMPLY WITH C.R.S. § 13-20-602 C.R.S. § 13-20-602(1)(a)

provides: In every action for damages . . . based upon the alleged professional

negligence of . . . a licensed professional, the plaintiff’s or complainant’s attorney

shall file with the court a certificate of review for each . . . licensed professional

named as a party, as specified in subsection (3) of this section, within sixty days

after the service of the complaint, counterclaim or cross-claim against such person

unless the court determines that a longer period is necessary for good cause shown.

(emphasis added) 32 For example, the Counterclaims allege that: (a) “Cohen . . .

relied solely on the monthly email investment reports . . . for understanding the

value of his portfolio . . .” Id. ¶ 47. (emphasis added) (b) “The Agile Group’s

misrepresentations and omissions in its monthly . . . emails to Cohen misled Cohen

into believing that the accounts were worth more . . .” Id. ¶ 51. (emphasis added) (c)

“Cohen has suffered damages in that, he relied on the false and misleading

statements . . . and that reliance impaired Cohen’s ability to make decisions

regarding the purchase, sale, or value of the securities in his portfolio with the

Agile Group. Id. ¶ 68. (emphasis added) Case 1:05-cv-01233-LTB Document 123 Filed

10/19/06 USDC Colorado Page 29 of 32 30 Under subsection (4), the failure to file a

certificate of review in accordance with this section shall result in the dismissal of

the…counterclaim.” C.R.S. § 13-20-602(4) (emphasis added). At ¶¶ 2-3 of the

Counterclaims, Cohen alleges that Greenberg and Barnett each “holds a license as an

investment advisor.” Countercl. ¶¶ 2-3. Although not specifically alleged in the

counterclaims, Natural Wealth, TAS, and Agile Group, LLC are Colorado registered

investment advisors. See, Sec Am. Cmpl ¶¶ 1-3. In addition, Greenberg Securities is a

“K-1 Limited Business broker-dealer.” Id. ¶4. As his Fifth Claim, Cohen asserts a

claim for “professional negligence” against each Counter Defendant. Id. ¶¶ 79-85. The

claim is based upon their alleged failure to: (a) make “reasonable recommendations

regarding the royalty-producing assets;” or (b) structure the sale of the royalty-

producing assets “in a manner that benefited Cohen and not Lynch.” Id. ¶¶ 80, 82;

Supra § III.B.2. C.R.S. § 13-20-602(1)(a) applies to all claims against licensed

professionals wherein expert testimony is required to establish the scope of the

professional’s duty or the failure to meet that duty. See, Martinez v. Badis, 842 P.2d

245 (Colo. 1992). Thus, the statute does not apply solely to claims designated as

“professional negligence.” Rather, it applies to all claims “which require proof of

professional negligence as a predicate to recovery, whatever the formal designation of

the claim might be.” Id. at 251 (emphasis added). In that regard, Colorado courts have

determined that “except in clear and palpable cases,” expert testimony is necessary to

establish the standards of acceptable professional conduct. Boigegrain v. Gilbert, 784

P.2d 849, 850 (Colo. App. 1989); Williams v. Boyle 72 P.3d 392, 397 (Colo. App. 2003)

(“expert testimony is required to establish prima facie case of professional

negligence in the great majority of cases”). Unless the alleged misconduct concerns

subject matter within the common knowledge or experience of an ordinary person, both

the Case 1:05-cv-01233-LTB Document 123 Filed 10/19/06 USDC Colorado Page 30 of 32 31

standard of care and the defendant’s failure to meet that standard must be established

by expert opinion testimony. Tracz v. Charter Centennial Peaks Behavioral Health

Systems, Inc., 9 P.3d 1168, 1173 (Colo. App. 2000). In this case, Cohen has asserted

claims against registered investment advisors and a licensed broker/dealer concerning

duties or services that were purportedly “assumed” by those entities. Lay persons are

not generally knowledgeable as to standard industry practice or other standards of

care that govern the conduct and responsibilities of registered investment advisors or

broker/dealers. Thus, expert testimony will be required in order for Cohen to

establish his prima facie case. Cohen was required, therefore, to file a certificate

of review as to all claims requiring such testimony (i.e. professional negligence,

negligence, and fiduciary duty). Cohen filed and served his Counterclaim on June 30,

2006. Pursuant to C.R.S. § 13-20- 602, Cohen had 60 days (i.e. until August 29) to

file a certificate of review. Counter-Defendants placed Cohen on notice in their Reply

that he was required to file such certificate. See, Reply to Cohen’s Counterclaims,

Affirmative Defenses, ¶ 28 (p. 37). Cohen has had more than adequate time to comply.

His failure to do so mandates immediate dismissal. VI. CONCLUSION Based on the

foregoing, Counter-Defendants request that Cohen’s Second through Eighth Counterclaims

be dismissed pursuant to Fed. R. Civ. P. 12(c). DATED: October 19th, 2006.

Respectfully submitted, s/R. Daniel Scheid R. Daniel Scheid LEWIS SCHEID LLC 2300

Fifteenth Street, Suite 2300 Denver, CO 80202 Telephone: (303) 534-5040 Facsimile:

(303) 534-5039 Email: [email protected] Case 1:05-cv-01233-LTB Document 123 Filed

10/19/06 USDC Colorado Page 31 of 32 32 Sherab Posel POSEL LAW OFFICES 5468 Fall Clove

Road DeLancey, NY 13752 Telephone: (845) 676-4034 Email: [email protected] ATTORNEYS

FOR PLAINTIFFS AND COUNTERCLAIM DEFENDANT CERTIFICATE OF SERVICE I hereby certify that

on October 19th, 2006, I electronically filed the foregoing PLAINTIFFS’ AND BARNETT’S

MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS AS TO COHEN’S SECOND

THROUGH EIGHTH COUNTERCLAIMS with the Clerk of Court using the CM/ECF system which

will send notification of such filing to the following: Randall M. Livingston

([email protected]) I hereby certified that I served the foregoing document on

the following non CM/ECF participants by e-mail and U.S. First Class Mail, postage

prepaid to the following: Kelley Lynch 2648 Mandeville Canyon Road Los Angeles, CA

90049 [email protected] s/R. Daniel Scheid Case 1:05-cv-01233-LTB Document 123 Filed

10/19/06 USDC Colorado Page 32 of 32

05/10/2007 150 MOTION to Amend/Correct/Modify 100 Answer to Amended Complaint , defendant leonard cohen's amended counterclaims and jury demand by Defendant Leonard Cohen. (Attachments: # 1 Proposed Document exhibit 1 - cohen's amended answer to second amended complaint, amended counterclaims and jury demand# 2 Exhibit exhibit a# 3 Exhibit exhibit b# 4 Exhibit exhibit c# 5 Exhibit exhbit d# 6 Exhibit exhibit e# 7 Deposition Excerpts exhibit f# 8 Exhibit exhibit g# 9 Exhibit exhibit h# 10 Exhibit exhibit i# 11 Exhibit exhibit j# 12 Exhibit exhibit k# 13 Exhibit exhibit l# 14 Exhibit exhibit m# 15 Exhibit exhibit n# 16Exhibit exhibit o# 17 Exhibit exhibit p# 18 Exhibit exhibit q# 19 Exhibit exhibit r# 20 Exhibit exhibit s# 21 Exhibit exhibit t# 22 Exhibit exhibit u# 23 Exhibit exhibit v# 24 Exhibit exhibit w# 25 Exhibit exhibit x# 26 Exhibit exhibit y# 27 Exhibit exhibit z# 28 Exhibit exhibit aa# 29 Exhibit exhibit bb# 30 Exhibit exhibit cc# 31 Exhibit exhibit dd# 32 Exhibit exhibit ee# 33 Exhibit exhibit ff# 34 Exhibit exhibit gg# 35 Exhibit exhibit hh# 36 Exhibit exhibit ii# 37 Exhibit exhibit jj#38 Exhibit exhibit kk# 39 Exhibit exhibit ll# 40 Exhibit exhibit mm# 41 Exhibit exhibit nn# 42 Exhibit exhibit oo# 43 Exhibit exhibit pp# 44 Exhibit exhibit qq#45 Exhibit exhibit rr# 46 Exhibit exhibit ss# 47 Exhibit exhibit tt# 48 Exhibit exhibit uu# 49 Exhibit exhibit vv# 50 Exhibit exhibit ww# 51 Exhibit exhibit xx# 52Exhibit exhibit yy# 53 Exhibit exhibit zz# 54 Exhibit exhibit aaa# 55 Exhibit exhibit bbb# 56 Exhibit exhibit ccc# 57 Exhibit exhibit ddd# 58 Exhibit exhibit eee#59 Exhibit exhibit fff# 60 Exhibit exhibit ggg# 61 Exhibit exhibit hhh# 62 Exhibit exhibit iii# 63 Exhibit exhibit jjj# 64 Exhibit exhibit kkk# 65 Exhibit exhibit lll#66 Exhibit exhibit mmm# 67 Exhibit exhibit nnn# 68 Exhibit exhibit ooo# 69 Exhibit exhibit 2# 70 Exhibit exhibit 3# 71 Proposed Order (PDF Only) proposed order)(Horowitz, Jay) (Entered: 05/10/2007)


12/04/2006 131 ORDER granting in part and denying in part 97 Motion to Dismiss, the plaintiffs' claims for intentional interference with a prospective business relation, civil extortion, civil conspiracy, and violation of and conspiracy to violate COCCA are DISMISSED, Signed by Judge Lewis T. Babcock on 12/04/06.(rlp, ) (Entered: 12/04/2006)














































































IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Lewis T. Babcock,

Chief Judge Civil Case No. 05-cv-01233-LTB-MJW NATURAL WEALTH REAL ESTATE, INC., d/b/a

Agile Advisors, Inc. a Colorado corporation, TACTICAL ALLOCATION SERVICES, LLC, d/b/a

Agile Allocation Services, LLC, a Colorado limited liability company, AGILE GROUP,

LLC, a Delaware limited liability company, GREENBERG & ASSOCIATES SECURITIES, INC.,

d/b/a Agile Group, a Colorado corporation, and NEAL R. GREENBERG, a Colorado resident,

Plaintiffs and Counterclaim Defendants, v. LEONARD COHEN, a Canadian citizen residing

in California, Defendant and Counterclaim Plaintiff, and KELLEY LYNCH, a United States

citizen residing in California, and JOHN DOE, Numbers 1-25, Defendants, v. TIMOTHY

BARNETT, a Colorado citizen, Counterclaim Defendant.

______________________________________________________________________________ ORDER

______________________________________________________________________________ The

defendant, Leonard Cohen, moves for partial dismissal of the Second Amended Complaint

of the plaintiffs. This motion is the latest of a plethora filed in this case during

its nascency. Though the ink is barely dry on the plaintiffs’ reply to Mr. Cohen’s

counterclaims, this Court has previously disposed of a motion to compel arbitration, a

motion to dismiss, a motion Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC

Colorado Page 1 of 18 2 for attorney fees, and a motion for leave to file a second

amended complaint. The pending motion is adequately briefed and oral argument will not

materially aid its resolution. The attorneys, apparently unable to agree on anything,

also dispute the propriety of a certificate of review, which Mr. Cohen proffers

pursuant to Colo. Rev. Stat. § 13-20-602. Mr. Cohen has filed a motion for leave to

file the certificate. The plaintiffs and Timothy Barnett move for judgment on the

pleadings dismissing several of Mr. Cohen’s counterclaims in part on the ground that a

certificate is lacking. Briefing of these motions is not yet complete and this latest

demonstration of fractiousness must be addressed in yet another, subsequent order. I.

Plaintiffs’ allegations The allegations of the Second Amended Complaint, stripped of

extraneous and salacious content, are substantially the following. In 1996, Mr. Cohen,

a resident of California, retained the plaintiff Tactical Allocation Services, LLC

(“Tactical”), directed by the plaintiff Neal Greenberg and headquartered in Boulder,

Colorado, to invest for him the assets placed into three charitable trusts. The assets

derived from sales of Mr. Cohen’s intellectual property and were intended to provide

long-term financial support for him. However, Mr. Cohen allegedly drew extravagant

sums from the trusts, depleting the principal amounts and impeding the plaintiffs’

efforts successfully to invest the funds in profitable ventures. The defendant Kelley

Lynch, Mr. Cohen’s manager, oversaw and had power of attorney over all of Mr. Cohen’s

financial dealings. Mr. Greenberg allegedly warned Ms. Lynch and Mr. Cohen on

occasions that Mr. Cohen was spending too much and, absent a change of habit, would

become destitute. Ms. Lynch and Mr. Cohen dismissed Mr. Greenberg’s forecasts. In

April, 2001, Mr. Cohen sold additional intellectual property. Upon the advice of a tax

Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC Colorado Page 2 of 18 3

attorney, Richard Westin, who is not a party to this case, Mr. Cohen conveyed the

intellectual property to an entity of his creation, called Traditional Holdings LLC,

in which he held a one percent interest. Ms. Lynch controlled Traditional Holdings

with a 99% ownership interest. Traditional Holdings sold the intellectual property to

Sony Music International and received from Sony the proceeds. It then served as an

annuity for Mr. Cohen, under Ms. Lynch’s management. This arrangement enabled Mr.

Cohen to benefit financially from the sale without suffering adverse tax consequences.

Mr. Westin advised Mr. Cohen that Ms. Lynch’s controlling interest, though favorable

for tax purposes, gave her considerable discretion over Mr. Cohen’s affairs. Mr. Cohen

allegedly indicated that he trusted Ms. Lynch. None of the plaintiffs were involved in

the creation or management of Traditional Holdings. Traditional Holdings hired the

plaintiffs to invest its assets, an amount approaching five million dollars. The

plaintiff Agile Group LLC was commissioned to perform the service. It allegedly kept

Mr. Cohen and Ms. Lynch apprised of its efforts by means of monthly statements and

other communications. Similarly, Tactical communicated monthly with Mr. Cohen

concerning the assets under its management. Mr. Cohen instructed the plaintiffs to

follow Ms. Lynch’s directions concerning management of Traditional Holdings’ assets.

Purportedly at Mr. Cohen’s direction and on his behalf, Ms. Lynch continued to make

unsustainable withdrawals from the trusts and from Traditional Holdings. By January

16, 2004, Ms. Lynch had reduced Traditional Holdings’ assets to $2.1 million. Mr.

Greenberg admonished Mr. Cohen, by letter of that date, to slow his diminution of the

funds, to no avail. By June 25, 2004, Mr. Cohen had withdrawn an additional $1,170,000

from Traditional Holdings. Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC

Colorado Page 3 of 18 4 In October, 2004, Mr. Cohen and Ms. Lynch allegedly parted

ways and began to issue competing directives to the plaintiffs. Each blamed the other

for Mr. Cohen’s financial distress. Mr. Cohen claimed that Ms. Lynch had deprived him

of substantial sums of money. Thereafter, apprising as slim their chances of

recovering money from Ms. Lynch, Mr. Cohen and his personal attorney, Robert Kory

(previously dismissed from this case for lack of personal jurisdiction), allegedly

conspired with two other persons, Steve Lindsay and Betsy Superfon, to extort the lost

sums from the plaintiffs. This they attempted by asserting spurious claims and

demanding that the plaintiffs elicit a settlement from their insurance carrier or

submit to private mediation. They tried to compel Ms. Lynch to participate in their

project by, among other tactics, having her arrested on false pretenses and paying

paroled convicts to make false accusations against her son. However, rather than

cooperating with Messrs. Cohen and Kory, Ms. Lynch informed the plaintiffs of the

scheme and documented for them Mr. Cohen’s chicanery. The plaintiffs then filed their

complaint in this case. Mr. Kory, acting on Mr. Cohen’s behalf, sent a demand letter

to Mr. Greenberg’s attorney, wrongly accusing the plaintiffs of fraud and various

breaches of fiduciary duty. After the plaintiffs filed this lawsuit, Messrs. Cohen and

Kory allegedly used Mr. Cohen’s fame as a prominent recording artist to publish

defamatory statements about the plaintiffs. They posted their calumnies on Mr. Cohen’s

web site and submitted them to the press, blaming the plaintiffs for the loss of the

monies. The Second Amended Complaint delineates ten claims. These are defamation;

commercial disparagement; interference with prospective business advantage; unjust

enrichment; civil extortion; civil conspiracy; violation of the Colorado Organized

Crime Control Act, Colo. Rev. Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC

Colorado Page 4 of 18 5 Stat. § 18-17-101 et seq. (“COCCA”); injunctive relief;

declaratory judgment; and interpleader, against Ms. Lynch and Mr. Cohen, to determine

rightful ownership of the remaining Traditional Holdings funds. II. Discussion Mr.

Cohen moves for dismissal of all but the plaintiffs’ defamation, commercial

disparagement, unjust enrichment and interpleader claims. I must first determine

whether California or Colorado law governs the challenged claims. A. Choice of law A

federal court sitting in diversity must apply the choice-of-law provisions of the

forum state. Shearson Lehman Bros., Inc. v. M & L Investments, 10 F.3d 1510, 1514

(10th Cir. 1993). Colorado has adopted the “most significant relationship test” of

Restatement (Second) Conflicts of Laws (1971) for tort actions. Hawks v. Agri Sales,

Inc., 60 P.3d 714, 715 (Colo. Ct. App. 2001). The Restatement generally provides, (1)

The rights and liabilities of the parties with respect to an issue in tort are

determined by the local law of the state which, with respect to that issue, has the

most significant relationship to the occurrence and the parties under the principles

stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6

to determine the law applicable to an issue include: (a) the place where the injury

occurred, (b) the place where the conduct causing the injury occurred, (c) the

domicile, residence, nationality, place of incorporation and place of business of the

parties, and (d) the place where the relationship, if any, between the parties is

centered. These contacts are to be evaluated according to their relative importance

with respect to the particular issue. Restatement (Second) of Conflicts of Laws § 145

(1971). Reference to the factors identified in Section 145(2) alone does not dispose

of the Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC Colorado Page 5 of 18 6

question. The plaintiffs suffered alleged injury predominantly in Colorado, where they

reside. Mr. Cohen engaged in the allegedly tortious conduct in California, where he

resides. Mr. Cohen and Traditional Holdings engaged the plaintiffs in Colorado to

manage Mr. Cohen’s assets for his benefit in California. The comments to Section 145

provide additional guidance. Comment c states, inter alia, [T]he interest of a state

in having its tort rule applied in the determination of a particular issue will depend

upon the purpose sought to be achieved by that rule and by the relation of the state

to the occurrence and the parties. If the primary purpose of the tort rule involved is

to deter or punish misconduct, as may be true of rules permitting the recovery of

damages for alienation of affections and criminal conversation, the state where the

conduct took place may be the state of dominant interest and thus that of most

significant relationship... . On the other hand, when the tort rule is designed

primarily to compensate the victim for his injuries, the state where the injury

occurred, which is often the state where the plaintiff resides, may have the greater

interest in the matter. And the Restatement explains that the relative importance of

the factors varies according to the tort involved. Comment f states, inter alia, In

situations involving the multistate publication of matter that injures the plaintiff’s

reputation... or causes him financial injury... or invades his right of privacy... the

place of the plaintiff’s domicile, or on occasion his principal place of business, is

the single most important contact for determining the state of the applicable law. The

substance of the plaintiffs’ interference with prospective business advantage claim is

that Mr. Cohen disparaged them in media accessible in multiple states and thus

encouraged potential clients to look elsewhere for service. Mr. Cohen’s multi-state

publication of matter, which allegedly caused financial injury to the plaintiffs, is

most closely analogous to commercial disparagement or defamation. Indeed, the same

allegations predicate the plaintiffs’ defamation, commercial disparagement, and

interference with prospective business advantage claims. As the comments to Section

145 suggest, and as Section 150 makes explicit, Colorado – the state of Mr. Case 1:05-

cv-01233-LTB Document 131 Filed 12/04/06 USDC Colorado Page 6 of 18 7 Greenberg’s

domicile and the corporate-plaintiffs’ principal place of business – has the most

significant relationship to the alleged wrongdoing. Restatement (Second) of Conflicts

of Laws § 150 (1971). The plaintiffs’ claims for civil extortion and civil conspiracy

rest upon Messrs. Cohen’s and Kory’s alleged secret plot to force the plaintiffs into

mediation by threatening publicly to assert spurious claims. Civil extortion in

California (Colorado has recognized no such claim) constitutes a cause of action for

the recovery of money obtained by the wrongful threat of criminal or civil

prosecution. Fuhrman v. California Satellite Systems, 231 Cal. Rptr. 113, 122 (Cal.

Ct. App. 1986), overruled on other grounds, Silberg v. Anderson, 786 P.2d 365 (Cal.

1990). “It is essentially a cause of action for moneys obtained by duress, a form of

fraud.” Id. Not all unjust extractions are cognizable. The Restatement admonishes, The

threat of beginning a civil action to enforce a claim, if made in good faith and

unaccompanied by threatened seizure of property of the person or by other oppressive

circumstances, is not duress and, if payment is made without mistake of fact, there

can be no restitution even though the claim is baseless and the claimant is

unreasonable in believing that it has validity. Restatement (First) of Restitution §

71 cmt. b (1937). Properly viewed, then, the gravamen of the plaintiffs’ claim is not

the unwarranted payment by them in response to a threat of litigation but rather the

bad faith of Mr. Cohen in threatening suit. Thus, California, the state in which Mr.

Cohen allegedly acted, possesses the dominant interest and its law applies to this

claim. The conspiracy claim allows joint recovery of damages against all defendants

who united or cooperated in inflicting a tortious wrong – here, civil extortion –

against the plaintiffs. Mox, Inc., v. Woods, 262 P. 302, 303 (Cal. 1927); More v.

Johnson, 568 P.2d 437, 439-440 (Colo. 1977). “A conspiracy cannot be alleged as a tort

separate from the underlying wrong it is Case 1:05-cv-01233-LTB Document 131 Filed

12/04/06 USDC Colorado Page 7 of 18 8 organized to achieve.” Applied Equipment Corp.

v. Litton Saudi Arabia Ltd., 869 P.2d 454, 459 (Cal. 1994). “A bare agreement among

two or more persons to harm a third person cannot injure the latter unless and until

acts are actually performed pursuant to the agreement. Therefore, it is the acts done

and not the conspiracy to do them which should be regarded as the essence of the civil

action.” Id. at 457. The California Supreme Court discerned from these principles a

clear distinction between criminal and civil conspiracy. “The gist of the crime of

conspiracy is the agreement to commit the unlawful act, while the gist of the tort is

the damage resulting to the plaintiff from an overt act or acts done pursuant to the

common design.” de Vries v. Brumback, 349 P.2d 532, 536 (Cal. 1960) (citations

omitted). Similarly, the Colorado Supreme Court has stated, “The essence of a civil

conspiracy claim is not the conspiracy itself, but the actual damages resulting from

it.” Jet Courier Service, Inc. v. Mulei, 771 P.2d 486, 502 (Colo. 1989). Thus,

Colorado, the state where the plaintiffs here reside and allegedly suffered injury, is

the state with the dominant interest. The COCCA claim must be analyzed under the

Colorado statute that predicates it; the parties do not identify an analogous

California statute. The parties agree that the claims for injunctive and declaratory

relief are procedural, and therefore governed by federal law. B. The claims 1.

Interference with prospective business advantage Colorado recognizes the tort of

intentional interference with a prospective business relation and defines the tort

with reference to the Restatement (Second) of Torts (1979). Amoco Oil Co. v. Ervin,

908 P.2d 493, 500 (Colo. 1995). Section 766B of the Restatement provides, One who

intentionally and improperly interferes with another’s prospective contractual Case

1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC Colorado Page 8 of 18 9 relation

(except a contract to marry) is subject to liability to the other for the pecuniary

harm resulting from loss of the benefits of the relation, whether the interference

consists of (a) inducing or otherwise causing a third person not to enter into or

continue the prospective relation or (b) preventing the other from acquiring or

continuing the prospective relation. Demonstration of the tort requires a showing of

intentional and improper interference preventing formation of a contract. Amoco Oil

Co., 908 P.2d at 500. Mr. Cohen challenges as inadequate the plaintiffs’ allegations

of protected relationships. The plaintiffs have identified two prospective clients who

declined to engaged the plaintiffs after referencing Mr. Cohen’s alleged calumnies,

which they had read. One reneged on a prior pledge to invest with the plaintiffs after

her accountant discovered Mr. Cohen’s press release on the internet. The other was

referred to the plaintiffs by a current client before finding the press release on the

internet. Taking these allegations as true, as I must at this stage, I find that the

plaintiffs have alleged a “reasonable likelihood or probability that a contract would

have resulted.” Klein v. Grynberg, 44 F.3d 1497, 1506 (10th Cir. 1995), cert. denied,

516 U.S. 810, 116 S. Ct. 58, 133 L. Ed. 2d 22 (1995). See Duran v. Clover Club Foods

Co., 616 F. Supp. 790, 794 (D. Colo. 1985); Behunin v. Dow Chemical Co., 650 F. Supp.

1387, 1393 (D. Colo. 1986). Citing Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d

937 (Cal. 2003), Mr. Cohen next argues that the claim fails for failure to plead that

he acted for the purpose of interfering with a particular relationship of which he had

knowledge. However, as I determined above, Colorado, not California law applies to

this claim. Furthermore, the Korea Supply court held, We conclude that the tort of

intentional interference with prospective economic advantage does not require a

plaintiff to plead that the defendant acted with the specific intent, or purpose, of

disrupting the plaintiff's prospective economic advantage. Instead, to satisfy the

intent requirement for this tort, it is sufficient to plead that the defendant knew

that the interference was certain or substantially certain to occur as a result of its

action. Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC Colorado Page 9 of 18

10 Id. at 949-950. The parties have identified no Colorado cases explicating the

requisite intent. However, the Restatement, which the Colorado courts have adopted,

accords with the Korea Supply decision. “The interference with the other’s prospective

contractual relation is intentional if the actor desires to bring it about or if he

knows that the interference is certain or substantially certain to occur as a result

of his action.” Restatement (Second) of Torts § 766B cmt. d (1979). The Restatement

goes on to explain that a defendant’s purpose goes to the question whether any

interference was improper. One [factor] is the actor’s motive and another is the

interest sought to be advanced by him. Together these factors mean that the actor’s

purpose is of substantial significance. If he had no desire to effectuate the

interference by his action but knew that it would be a mere incidental result of

conduct he was engaging in for another purpose, the interference may be found to be

not improper. Ibid. The end for which Mr. Cohen acted when he released his statement

on the internet and to the press does not commend a finding of impropriety. The

plaintiffs allege that Messrs. Cohen and Kory kept their assertions secret as they

attempted to force the plaintiffs to submit a claim to their insurer. Only after the

plaintiffs filed this pre-emptive suit did Mr. Cohen respond publicly with his version

of events. Even assuming, as I must, that Mr. Cohen’s public assertions were

defamatory and untrue, I am left with no grounds on which to find that any

interference with the plaintiffs’ prospective business relations was anything other

than incidental to his purpose. The plaintiffs allege that Mr. Cohen’s invariable

purpose has been to obtain from them the monies he could not obtain from Ms. Lynch.

Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC Colorado Page 10 of 18 11 The

Restatement cautions that other factors bear upon the degree of impropriety and refers

to Section 767. To determine whether the defendant acted improperly, a court is to

consider: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the

interests of the other with which the actor’s conduct interferes, (d) the interests

sought to be advanced by the actor, (e) the social interests in protecting the freedom

of action of the actor and the contractual interests of the other, (f) the proximity

or remoteness of the actor’s conduct to the interference and (g) the relation between

the parties. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859, 873 (Colo.

2004) (citing Restatement (Second) of Torts § 767 (1979)). Nothing in the Second

Amended Complaint indicates that Mr. Cohen persuaded or intimidated prospective

clients into rejecting the plaintiffs’ services. Krystkowiak, 90 P.3d at 874. Nowhere

do the plaintiffs allege that Mr. Cohen used or threatened physical violence, fraud,

or civil or criminal prosecution against their prospective clients. Amoco Oil Co., 908

P.2d at 502. To the extent that Mr. Cohen’s motives and interests can be discerned

from the allegations, it appears that he was attempting to refute the plaintiffs’

allegations and to strong-arm the plaintiffs into mediating his purportedly spurious

claims. And Mr. Cohen compromised the plaintiffs’ reputation only after they first

filed suit against him. The claim for intentional and improper interference must be

dismissed. 2. Civil extortion California recognizes the tort of civil extortion and

defines it as “the recovery of money obtained by the wrongful threat of criminal or

civil prosecution.” Fuhrman, 231 Cal. Rptr. at 122. “To be actionable the threat of

prosecution must be made with the knowledge of the falsity of the claim.” Id. Also,

the plaintiff must have paid the money demanded. Id. Expenditures of Case 1:05-cv-

01233-LTB Document 131 Filed 12/04/06 USDC Colorado Page 11 of 18 12 attorney fees do

not constitute actual damages for the purpose of establishing the tort. Id. The

plaintiffs allege that the scheme concocted by Messrs. Cohen, Kory, and Lindsay and

Ms. Superfon failed when Ms. Lynch exposed their plot. The plaintiffs did not accede

to Mr. Cohen’s demands for repayment. Nor do they allege that they submitted a claim

to their insurer. They claim only to have expended corporate resources providing

information about Traditional Holdings’ investments to Mr. Cohen – an effort, they

concede, that they undertook to be cooperative, not in response to undue threats – and

to have paid attorney fees prosecuting this action. The claim for civil extortion must

be dismissed. 3. Civil conspiracy The plaintiffs must allege the five elements of a

civil conspiracy claim. “There must be: (1) two or more persons, and for this purpose

a corporation is a person; (2) an object to be accomplished; (3) a meeting of the

minds on the object or course of action; (4) one or more unlawful overt acts; and (5)

damages as the proximate result thereof.” Jet Courier Service, 771 P.2d at 502. “The

essence of a civil conspiracy claim is not the conspiracy itself, but the actual

damages resulting from it.” Id. The conspiracy claim fails for two reasons. First, the

unsuccessful extortion attempt by Messrs. Cohen, Kory, and Lindsay and Ms. Superfon –

the alleged unlawful overt act – does not serve. “[C]onspiracy is a derivative cause

of action that is not actionable per se.” Double Oak Const., L.L.C. v. Cornerstone

Development Intern., L.L.C., 97 P.3d 140, 146 (Colo. App. 2003). “If the acts alleged

to constitute the underlying wrong provide no cause of action, then there is no cause

of action for the conspiracy itself.” Id. The alleged civil extortion provides no

cause of action because civil extortion in not recognized in Colorado and, in any

event, the plaintiffs did Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC

Colorado Page 12 of 18 13 not accede to Mr. Cohen’s demands. Messrs. Cohen’s and

Kory’s scheme to publish libelous defenses of their conduct might predicate a distinct

conspiratorial objective. However, this purported scheme lacks the requisite

numerosity of participants because an agent – Mr. Kory here – “cannot be held liable

for conspiracy with his principal where the agent acts within the scope of his

authority and do not rise to the level of active participation in a fraud.” Astarte,

Inc. v. Pacific Indus. Systems, Inc., 865 F. Supp. 693, 708 (D. Colo. 1994). Mr.

Kory’s alleged participation in the published defense of his client, whether or not

that defense was true in all respects, was well within the scope of his authority as

an attorney. Because Mr. Lindsay and Ms. Superfon are not alleged to have participated

in the scheme to defame the plaintiffs, Mr. Cohen is not alleged to have conspired

with anyone for that purpose. Second, the plaintiffs have alleged no damages.

Conceding that they made no payments in response to the threats of litigation, the

plaintiffs nevertheless propose three categories of damages. First, they claim to

suffered injury to their reputation. However, any such injury resulted not from the

failed extortion attempt, which the plaintiffs allege Mr. Cohen veiled in secrecy, but

rather from the subsequent alleged defamation. Second, they allege that they diverted

corporate resources in order to respond to Messrs. Cohen’s and Kory’s demands for

information concerning Traditional Holdings in the weeks following Ms. Lynch’s

dismissal. However, nothing in the Second Amended Complaint indicates that the

plaintiffs undertook these efforts as a result of the extortion attempt. Indeed, the

Second Amended Complaint proclaims that Mr. Kory extolled the plaintiffs’ voluntary

cooperation in the aftermath of the Cohen-Lynch separation. Third, the plaintiffs

assert that they may recover attorney fees expended in defense of Case 1:05-cv-01233-

LTB Document 131 Filed 12/04/06 USDC Colorado Page 13 of 18 14 Mr. Cohen’s advances.

However, attorney fees are recoverable as damages only when they accrue in litigation

with a third party that naturally and probably results from the defendant’s wrongful

act. Stevens v. Moore and Co. Realtor, 874 P.2d 495, 496 (Colo. App. 1994). Absent

this or some other exception, Colorado adheres to the American Rule, under which each

party bears its own fees. Bunnett v. Smallwood, 793 P.2d 157, 160, 163 (Colo. 1990);

Double Oak Const., 97 P.3d at 150. 4. COCCA Colo. Rev. Stat. § 18-17-104(3) provides,

“It is unlawful for any person employed by, or associated with, any enterprise to

knowingly conduct or participate, directly or indirectly, in such enterprise through a

pattern of racketeering activity or the collection of an unlawful debt.” To state a

primary violation of COCCA section 104(3), a plaintiff is required to prove the

defendant (1) through the commission of two or more predicate acts (2) which

constitute a pattern (3) of racketeering activity (4) directly or indirectly conducted

or participated in (5) an enterprise and (6) the plaintiff was injured in its business

or property by reason of such conduct. F.D.I.C. v. Refco Group, Ltd., 989 F. Supp.

1052, 1074 (D. Colo. 1997). Mr. Cohen argues that the Second Amended Complaint fails

adequately to allege the existence of an enterprise, predicate acts, and injury. The

plaintiffs’ COCCA claim fails for the same reasons that their conspiracy claim

miscarried: they allege that they did not succumb to Mr. Cohen’s machinations. The ill

effects of Mr. Cohen’s litigation threats and the purported conspirators’ attempts to

secure Ms. Lynch’s perjurious cooperation were limited to the plaintiffs’ expenditures

of attorney fees. Civil remedies for violations of COCCA are available only to a

person “injured by reason of” a violation. Colo. Rev. Stat. § 18-17-106(7). The

plaintiffs are required to allege that one or more injuries resulted Case 1:05-cv-

01233-LTB Document 131 Filed 12/04/06 USDC Colorado Page 14 of 18 15 from each of the

predicate acts. Floyd v. Coors Brewing Co., 952 P.2d 797, 803 (Colo. App. 1997), rev’d

on other grounds, 978 P.2d 663 (Colo. 1999). They have alleged no damage resulting to

them from the predicate acts. Again, the plaintiffs reference the injury to their

reputation resulting from Mr. Cohen’s calumny. They rightly identify the defamation as

the source of any damages they have suffered. However, the published statements were

not part of – indeed, were inconsistent with – any pattern of racketeering activity.

Indeed, the allegations are that Messrs. Cohen and Kory reversed their tactics –

changing from secret extortion to public declamation – after the extortion scheme

failed. Subsection 4 of Section 18-17-104 makes it unlawful to “conspire or endeavor”

to violate Subsection 3. Citing People v. Young, 694 P.2d 841 (Colo. 1985) and New

Crawford Valley, Ltd. v. Benedict, 877 P.2d 1363 (Colo. App. 1993), the plaintiffs

argue that Mr. Cohen violated Subsection 4 by his mere attempt to violate Subsection

3. However, as the New Crawford Valley court made clear, civil remedies for

conspiracies and attempts under Subsection 4 are available only to those who have

suffered actual damages. New Crawford Valley, 877 P.2d at 1374. As explained above,

the plaintiffs have not satisfied this requirement. 5. Injunction Mr. Cohen asks me to

dismiss the injunction claim because it constitutes a prayer for prior restraint of

his speech. Citing New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140,

29 L. Ed. 2d 822 (1971) he notes that injunctions against future speech are disfavored

under the First Amendment. The plaintiffs respond that defamation is properly enjoined

because it is not protected speech. They also point out that Mr. Cohen already

published the speech and Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC

Colorado Page 15 of 18 16 that an injunction would merely prohibit him from repeating

the alleged calumny. When constructed narrowly to restrain only unprotected speech,

injunctions against the assertion of factual claims do not impermissibly infringe upon

First Amendment rights. United States v. Bell, 414 F.3d 474, 484 (3d Cir. 2005);

United States v. Kaun, 827 F.2d 1144, 1150, 1151-1152 (7th Cir. 1987); United States

v. White, 769 F.2d 511, 517 (8th Cir. 1985). See also B. Willis, C.P.A., Inc. v.

Goodpaster, 183 F.3d 1231, 1233-1234 (10th Cir. 1999), cert. denied, 528 U.S. 1046,

120 S. Ct. 581, 145 L. Ed. 2d 483 (1999). A defamatory statement of fact not touching

a matter of public concern or a public figure does not enjoy the First Amendment

protection identified in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710,

11 L. Ed. 2d 686 (1964). Quigley v. Rosenthal, 327 F.3d 1044, 1057-1061 (10th Cir.

2003), cert. denied, 540 U.S. 1229, 124 S. Ct. 1507, 158 L. Ed. 2d 172 (2004). See

Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S. Ct. 2997, 41 L. Ed. 2d 789

(1974). It is equally well settled that speech on matters calculated to redress a

personal grievance does not involve a matter of public concern. Salehpoor v.

Shahinpoor, 358 F.3d 782, 788 (10th Cir. 2004), cert. denied, 543 U.S. 812, 125 S. Ct.

47, 160 L. Ed. 2d 16 (2004). Mr. Cohen replies that the Second Amended Complaint’s

prayer is too broad; it does not merely ask me to forfend the repetition of defamatory

speech but rather seeks the suppression of any statements about the plaintiffs that do

not meet with the plaintiffs’ prior approval. While the scope of the requested

injunction is, no doubt, unduly ambitious, the proper response is not dismissal of the

entire claim. Assuming the plaintiffs’ allegations to be true, I find it possible to

craft a constitutional injunction in response to the plaintiffs’ prayer and I will not

dismiss this cause of action. Case 1:05-cv-01233-LTB Document 131 Filed 12/04/06 USDC

Colorado Page 16 of 18 17 6. Declaratory judgment Mr. Cohen asks me to exercise my

discretion to dismiss the plaintiffs’ declaratory judgment claim. He argues that the

requested declarations concerning the plaintiffs’ lack of involvement in the

management of Traditional Holdings and Ms. Lynch’s authority, as attorney in fact, to

manage his assets, constitute procedural fencing and are best understood as

affirmative defenses to his own counterclaims. Citing St. Paul Fire and Marine

Insurance Co. v. Runyon, 53 F.3d 1167, 1169 (10th Cir. 1995), he argues that

declaratory judgment would not settle the controversy, would not clarify the legal

relations at issue, and is requested merely for procedural fencing, and that

resolution of these issues in the context of his own counterclaims would be more

effective. Mr. Cohen misapprehends the plaintiffs’ allegations. Foundational to the

charges of the Second Amended Complaint is the assertion that Mr. Cohen accused the

plaintiffs of violating duties that they did not owe. Clarifying what obligations, if

any, the plaintiffs owed to Mr. Cohen to protect him against mismanagement of

Traditional Holdings will clarify the legal relations of the parties and assist in

settling the controversy at the center of this action. Furthermore, because these

questions bear upon the plaintiffs’ claims as well as Mr. Cohen’s counterclaims, I am

not convinced that the plaintiffs request declaratory judgment as a procedural fencing

device. The controversy is definite and concrete, touching the legal relations of the

parties. 28 U.S.C. § 2201(a); Kunkel v. Continental Cas. Co., 866 F.2d 1269, 1273

(10th Cir. 1989). A live need exists for a declaration of the plaintiffs’ rights and

duties. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 983-984 (10th Cir. 1994). I

decline to dismiss the declaratory judgment claim. Case 1:05-cv-01233-LTB Document 131

Filed 12/04/06 USDC Colorado Page 17 of 18 18 Accordingly, it is ORDERED that: 1) Mr.

Cohen’s motion to dismiss is GRANTED in part and DENIED in part; and 2) the

plaintiffs’ claims for intentional interference with a prospective business relation,

civil extortion, civil conspiracy, and violation of and conspiracy to violate COCCA

are DISMISSED. Dated: December 4 , 2006, in Denver, Colorado. BY THE COURT: s/Lewis T.

Babcock Lewis T. Babcock, Chief Judge Case 1:05-cv-01233-LTB Document 131 Filed

12/04/06 USDC Colorado Page 18 of 18

12/20/2007 180 RESPONSE to Motion re 148 MOTION for Summary Judgment As to Cohen's First Counterclaim filed by Defendant Leonard Cohen. (Attachments: # 1 Affidavit leonard cohen - exhibit a, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5,









# 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11Exhibit 10, # 12 Deposition Excerpts 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, part 1, # 46 Exhibit 44, part 2, # 47 Pages summary of exhibits 1-44, # 48 Affidavit jay horowitz, exhibit b)(Horowitz, Jay) (Entered: 12/20/2007)

GO THROUGH COHEN’S DECLARATION WORD BY WORD

Cohen Affidavit – Exhibit A – Response to Motion ….

EXHIBIT A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil

Action No. 05-CV-01233-LTB-MJW NATURAL WEALTH REAL ESTATE, INC., d/b/a Agile Advisors,

Inc., a Colorado corporation; TACTICAL ALLOCATION SERVICES, LLC, d/b/a Agile

Allocation Services, LLC, a Colorado limited liability company; AGILE GROUP, LLC, a

Delaware limited liability company; GREENBERG & ASSOCIATES SECURITIES, INC., d/b/a

Agile Group, a Colorado corporation; and NEAL R. GREENBERG, a Colorado resident,

Plaintiffs, v. LEONARD COHEN, a Canadian citizen residing in California; KELLEY LYNCH,

a United States citizen residing in California; and JOHN DOE, Nos. 1-25, Defendants.

and LEONARD COHEN, a Canadian citizen residing in California, Counterclaim Plaintiff,

v. TIMOTHY BARNETT, a Colorado citizen, Counterclaim Defendant. AFFIDAVIT OF LEONARD

COHEN State of California ) ) ss.: County of Los Angeles )

Leonard Cohen, being first duly sworn, states as follows:

1. I am a defendant in this case and I also am the plaintiff-on-counterclaim in this

case. I submit this affidavit in accordance with F.R.Civ.P. 56(e) in opposition to the

Motion For Summary Judgment filed on behalf of defendants-on-counterclaim (jointly

“the Agile Group” or “Greenberg”). I make this affidavit upon personal knowledge. I am

competent to testify to the matters stated in this affidavit. Many of the exhibits

attached to and incorporated into this affidavit are e-mails sent by me or received by

me and I attest to the authenticity of those emails. However, I also have attached to

this affidavit, and incorporated into it, as exhibits, documents which are exhibits to











































the Motion For Summary Judgment, including documents I never saw or was told about

before October, 2004 when I first began to learn of the wrongful actions of Kelley

Lynch (“Lynch”) and Greenberg’s role in connection with those actions which gives rise

to this lawsuit. By referring to these documents, and attaching them as exhibits, I am

not admitting their authenticity and I refer to them only to facilitate my discussion

of the facts. 2. I am and have been a songwriter and musical performing artist for the

past forty years. Over the course of my career, I have created a body of over 130

published, copyrighted songs as well as fourteen record albums that have generated

substantial publishing, songwriter and record royalties. 3. Having devoted my life to

artistic and creative endeavors, I often have relied upon others, including business

managers, lawyers and financial advisors, to manage the business aspects of my career

including the negotiation of recording agreements, the management of investments and

financial affairs, and the handling of tax matters. 4. Notwithstanding my reliance

upon others for performing the tasks of negotiation, management and investment, it has

been my practice to stay informed about my financial affairs by asking my legal,

financial and business advisors to provide me with regular and freCase 1:05-cv-01233-

LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 2 of 34 — 3 — quent summaries of

financial matters such as, by way of illustration, bank balances and withdrawals. As

detailed below, in connection with my decision in 2001 to entrust more than $7 million

of my retirement savings to plaintiff and defendant-on-counterclaim Greenberg’s

management, in connection with my further agreement that Greenberg could invest about

$4 million of those funds in one of his mutual funds, and in connection with my

decision to continue between 2002 and 2004 to leave those funds invested with

Greenberg and managed by him, I obtained Greenberg’s agreement, commitment and promise

to send me regular monthly e-mails summarizing the status of my accounts, and I

obtained his agreement, commitment and promise to obtain my written consent before

permitting any withdrawals from my accounts. I told Greenberg that safety and security

of my savings was my primary objective. I continued to use Greenberg’s investment and

money management services for more than two years. During that period, I relied on

Greenberg’s regular e-mail communications as his direct and repeated assurance to me

that he personally was protecting my accounts and that no one, including Kelley Lynch

(“Lynch”), could access my accounts without my consent. 5. I first engaged Lynch as an

assistant for business matters in or about 1988 following the death of Martin Machat,

Esq. (“Machat”), my lawyer of 20 years. Lynch had worked as a paralegal in Machat’s

office and had knowledge of my complex recording and publishing agreements. During the

ensuing years in which she worked for me, Lynch’s role evolved into a role akin to a

business manager, a position that she held until I terminated her employment for cause

on or about October 20, 2004. I terminated her immediately at that point upon learning

that she had embezzled funds from my personal checking accounts at City National Bank

(“CNB”). Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 3 of

34 — 4 — 6. I first considered retiring from my musical career after my world tour of

1993. In or about late 1994, I decided that I would take a sabbatical from my song

writing and recording career and I enrolled in a Zen monastery for a period of time.

Once enrolled, I continued as a student and monk for more than five years. During that

period, I began planning for my retirement and for my estate. 7. In or about 1996

Lynch introduced me to Greenberg, whom she presented as an estate planner, financial

advisor and money manger of good reputation and considerable skill. I met Greenberg

and thereafter agreed to engage him to review my financial assets, which largely

consisted of royalty revenues from my accumulated works, and to review with me, and to

devise a plan for me to satisfy, my financial objectives for retirement and estate

planning. 8. During the next several years, I hired Greenberg as a financial advisor

and estate planner, and he delivered to me what was supposed to be a retirement, tax

and estate plan built around the sale of my copyrights and record royalties. The plan

provided for investment of the proceeds of those sales in various entities that I was

led to believe were legal, safe, prudent and well accepted by the financial community.

I believed, based on Greenberg’s credentials, and Greenberg’s descriptions of himself,

his experience and his investment approach that I had hired a highly qualified

investment professional to prepare and execute a plan that would allow me to monetize

my life’s work, secure my retirement, provide for my children on my death and achieve

certain of my charitable objectives. 9. In my discussions with Greenberg, I expressed

concern about the relative uncertainty of a royalty stream versus what I thought might

be more reliable income derived from the sale of my copyrights and the investment of

the sale proceeds. Greenberg expressed concern about tax liabilities related to these

royalty assets in my estate and about the problems Case 1:05-cv-01233-LTB Document

180-1 Filed 12/20/07 USDC Colorado Page 4 of 34 — 5 — that these assets might pose for

my children on my death. Greenberg advised, and we agreed upon, a strategy for the

sale of certain copyrights and the reinvestment of the proceeds in what I was led to

believe were secure entities that would preserve the proceeds of any sales to fund my

retirement and, on my death, provide a significant estate for my children. 10. In or

about 1996 I met with Greenberg at my home, a duplex located in a modest neighborhood

of Los Angeles. I showed him that I occupied the top floor of the duplex and my

daughter occupied the ground floor, which also served as my office. I also explained

to Greenberg that I did not anticipate a need for a great deal of monthly income to

fund my retirement as I always had observed a modest lifestyle and had no plans to

change. 11. One step in executing the plan for my retirement advised by Greenberg was

the sale of Stranger Music, Inc. (“SMI”), the company which owned my catalog of song

copyrights. A music lawyer in New York, Peter Shukat, negotiated and concluded the

sale of SMI to SONY/ATV, the music publishing affiliate of SONY Records, Inc, which

has been my record company from the beginning of my career when it was known as CBS

Records., Inc. 12. Based on Greenberg’s advice, in late 1996 and with the help of

legal counsel, I set up several trusts, including the Cohen Charitable Remainder Trust

(“CCRT”) and the Sabbath Day Trust (“SDT”), to conclude, and to receive the proceeds

of, the SMI sale. In connection with the sale that closed in 1997, I deposited

approximately $900,000 in the CCRT, $500,000 in the SDT, and the balance, after making

about $500,000 in charitable gifts, in the Cohen Family Trust (“CFT”). I agreed with

Greenberg that he would manage the investment of the funds in the two charitable

remainder trusts, while Dean Witter continued to hold the funds in the CFT. Case 1:05-

cv-01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 5 of 34 — 6 — 13. During

this period I developed a trust and confidence in Greenberg. He told me that he

understood my desire for safety and prudence in investment and he promised to serve as

the guardian of my financial assets as he developed and implemented my retirement

plan. Based in part on these assurances, I felt comfortable extending my sabbatical at

the Mount Baldy Zen center, where I lived through the end of 1999 or early 2000.

Greenberg solicited management of the funds in the CFT and I agreed to move those

accounts to his management. Greenberg told me that his investment strategy was among

the safest available and that my funds would be safer with him than with Dean Witter.

14. Greenberg also offered to develop a comprehensive estate plan for me as he held

himself out as having substantial expertise in that field. I agreed to retain him to

develop and implement my estate plan. He told me that I had substantial illiquid

assets that would result in large taxes to my children when they inherited my estate.

Based in part on these concerns, as well as my own concerns about the future of the

music industry, we began examining additional steps in my retirement plan, namely the

sale of my record royalties. I asked Lynch to retain a law firm in New York, Grubman,

Indursky & Schindler, LLP, to open negotiations with SONY Records about whether SONY

would buy my record royalties and, if so, what they would pay. 15. In or about the

summer of 1998, I learned that SONY might pay as much as $8 million for the record

royalties and that SONY would pay $1 million immediately as an advance on the sale. I

also learned that the sale of record royalties was a more complex matter than the sale

of the stock of SMI. Greenberg, as my estate planner, and Richard Westin, Esq.

(“Westin”), who I understood to be a tax lawyer, worked out several alternative plans.

They in turn engaged in discussions with SONY as well as with the Grubman lawyers

about how the sale of the record royalties could be accomplished. Toward the end of

2000, I understood that Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC

Colorado Page 6 of 34 — 7 — Greenberg had proposed and Westin had endorsed a structure

that would be acceptable to SONY and would serve the tax planning and estate planning

objectives that Greenberg advised me were essential for my benefit. 16. In November

2000 I received a letter from Westin which outlined a structure for the sale of the

record royalties that Westin said was approved by Greenberg and SONY. See Plaintiff’s

Second Amended Complaint Exh. 1, LC 00053 to LC 00055. I understood that I would

transfer my record royalties to a new company that would be owned 99% by my adult

children, Adam and Lorca, that the new entity would sell the record royalties to SONY,

that the proceeds of the sale, after legal fees and a 15% commission to Lynch, would

remain in the new entity, and that those proceeds would fund my retirement while I was

alive and then pass to my children free of estate tax when I died. I approved the

transaction subject to assurances from Westin, including a legal opinion, that it was

safe and legal. Westin assured me that the transaction, called a private annuity, was

safe, legal and routinely used to enable parents with income producing property to

convey that property to their children. Westin agreed to provide a legal opinion to

me, and he asked that I authorize him to retain Greenberg to be part of structuring

the private annuity transaction. I did so. 17. In or about December 2000, Westin

prepared a set of documents for me to sign in order to implement the annuity

transaction. In reliance on the documents presented to Lynch, as drafted by Westin, I

had confidence that Westin and Greenberg were looking out for my interests and would

protect me fully by providing, as promised, an estate plan that paid income to me

during my lifetime and passed a substantial estate to my children on my death. 18. In

or about April 2001, I learned that Traditional Holdings, LLC (“THLLC”), the entity

set up as the vehicle for my estate plan, had concluded the sale of my reCase 1:05-cv-

01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 7 of 34 — 8 — cord

royalties to SONY. I also understood that the proceeds of the sale were deposited in

money market accounts at TD Waterhouse, while I decided whether or not the funds would

be managed by Greenberg who then was, and had been, managing the funds in the SDT and

CCRT. 19. Over the next several months, I had a series of conversations with Lynch and

with Greenberg regarding the investment management of the funds in the name of THLLC.

I told Greenberg that I was interested first in safety and only secondarily in

profits, as these funds represented a great deal of the value of my life’s work.

Greenberg told me that he understood and that he would proceed in a prudent course.

Based on Greenberg’s solicitations and his repeated assurances of his understanding of

my preference for safety and security, I agreed that the funds in money market

accounts in the name of THLLC at TD Waterhouse would be managed by Greenberg. I

believe that, in or about September, 2001 I authorized transfers of these THLLC funds

to accounts under Greenberg’s management. 20. By mid-November 2001, I was concerned

that I was not receiving reports from Greenberg about the status of my accounts. I

asked Lynch to arrange a meeting for me with Greenberg and a meeting was planned for

November 2001 during one of Greenberg’s trips to Los Angeles. Although that meeting

did not occur, I did speak with Greenberg confirming that I had asked Lynch to request

from him monthly e-mail reports to be sent directly to me as the owner of the accounts

with a copy to her. 21. On or about December 18, 2001 I received an e-mail report from

Greenberg in which, in accordance with our agreement that he would regularly report

directly to me, he summarized the status of my accounts. In particular, Greenberg

there summarized the total value of all my accounts under his management, which he

reported was $7,504,000; his report also summarized profits earned over the past few

months. See Exhibit 1. Greenberg also suggested Case 1:05-cv-01233-LTB Document 180-1

Filed 12/20/07 USDC Colorado Page 8 of 34 — 9 — that I consider moving my funds out of

money market accounts and into a new pooled investment account that he said that he

was creating with his other clients. He assured me that safety was his first priority

in management of my money. Even though my money was nominally in accounts in the names

of several entities established as part of the estate plan that Greenberg had set up

for me (i.e., the SDT, the CCRT and THLLC), he referred to the money in all of these

entities then, and in every e-mail report he made directly to me thereafter, as “your

money”. At all times Greenberg led me to believe that the funds in those entities was

mine and that he, Greenberg, viewed the funds as mine for whose disposition and

maintenance he would be accounting to me directly and personally. 22. I responded by

e-mail to Greenberg on December 21, 2001, thanked him for his efforts on my behalf and

said I looked forward to seeing him. See Exhibit 2. In early January, I spoke with

Greenberg and asked him how much he thought I could spend annually and maintain the

capital in my accounts for my children. In his e-mail report to me of January 9, 2002,

he told me that my account value was $7,415,000, and that my annual budget for

spending therefore could be about $420,000 per year. He stated that he was basing this

estimate on an estimated 6% return from which I concluded that all of the income from

the $7 million would be available for my personal support, if I needed it, and the

principal would be retained for my children. See Exhibit 3. Greenberg suggested that

we have dinner next time he was in Los Angeles and I responded that same day on

January 9 that I appreciated the update and would look forward to having dinner with

him. See Exhibit 4. 23. On February 8, 2002 Greenberg sent me a third monthly report,

but without a total account balance. See Exhibit 5. I sent him an e-mail on February

11, 2002 with my personal phone number and asked that he call me. See Exhibit 6. We

spoke on or about February Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC

Colorado Page 9 of 34 — 10 — 12 and I asked that all future e-mail reports to me have

account balances for all my accounts and that he itemize all withdrawals from my

accounts. He agreed and he also reiterated his request that I agree to invest the

funds in the name of THLLC in his mutual fund called Agile Safety Fund, LP (“ASF”). I

agreed to go forward with an investment in ASF provided that he continue to include

all account balances and to identify all account withdrawals in his monthly e-mail

reports to me. As a part of Exhibit O to his Motion for Summary Judgment, Greenberg

has included an e-mail exchange dated February 13, 2002 between himself and Lynch.

This e-mail, which I never had seen prior to its inclusion as part of Exhibit O,

confirms that Greenberg reported to Lynch the oral agreements that he and I had

reached that I would proceed with the investment in ASF and he would include account

withdrawals on his monthly e-mail reports to me. See Exhibit 7. 24. Greenberg did not

tell me in February, 2002 or at any other time, that my investment in ASF required

that I sign contract documents specifically pertaining to ASF or that Greenberg’s

agreed method of reporting and accounting to me in the future concerning the ASF

investment would vary from the method of accounting and reporting by e-mail that he

had agreed to furnish concerning all of my other investments. Greenberg never sent me

copies of the documents identified as the Subscription Agreement and the Limited

Partnership Agreement pertaining to ASF and identified as Exhibits J and I to the

Motion For Summary Judgment, nor did he ever discuss those documents with me. 25. On

March 12, 2002 Greenberg sent me the fourth monthly report on all of my accounts which

included the account in the name of THLLC as well as the three trust accounts.

Greenberg reported total assets of $6,399,259. See Exhibit 8. I was surprised and

concerned by this report as I thought I had a larger balance in part because I thought

I had netted $7 Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado

Page 10 of 34 — 11 — million from the SONY artist royalty sale. See Exhibit 9. I

responded to Greenberg by e-mail from India that same day and asked for a review of

the account balances in all of my accounts and a clarification concerning the total

account balances. I asked that we speak by phone on Monday March 18th and he responded

on Saturday March 16th that we would speak by phone. See Exhibit 10. He also sent an

e-mail dated Saturday March 16th with his explanation of why the net proceeds from the

SONY sale were less than I thought that they were and he asked how he could reach me

on Monday in India. See Exhibit 11. I responded that same day that I was back in Los

Angeles, and we arranged by e-mail to speak on Monday March 18th by telephone. See

Exhibit 12. 26. On Monday March 18, 2002, I spoke with Greenberg by phone and

reiterated to Greenberg that I wanted to have an e-mail confirmation report of every

withdrawal from my accounts. I also reiterated to him that I was relying on him as the

guardian of my accounts. I emphasized that the best way to reach me was by e-mail or

by phone, as I was rarely if ever at Lynch’s office, which had become the principal

place of business for a greeting card company which Lynch had established for herself.

I told him that, given my travels, e-mails were the best way to allow me to stay

informed about my accounts both as to account balances and as to account withdrawals.

He agreed that he would send me e-mail confirmations of every withdrawal from my

accounts and he agreed to keep sending me monthly e-mail performance reports, to call

me if necessary, as I had given him my home number, and to meet periodically to review

my investment objectives. I asked that he confirm with Lynch that he would be e-

mailing confirmations of all withdrawals from my accounts to keep the records clear

and to keep all of us informed. He promised to do so and copied me that afternoon on

an e-mail to Lynch in which he told her he would provide an e-mail confirmation as to

each disbursement from my accounts unCase 1:05-cv-01233-LTB Document 180-1 Filed

12/20/07 USDC Colorado Page 11 of 34 — 12 — der his management. See Exhibit 13. Lynch

acknowledged her understanding of this arrangement that same day by e-mail, agreeing

that would be the procedure among the three of us. See Exhibit 14. I understood these

communications to be a confirmation of my agreement with Greenberg as to how he would

keep me informed at all times about the status of my accounts and how he would not

permit any withdrawals from my account without my consent. I understood these e-mail

reports as the cornerstone of my ability to control spending from my accounts as he

had advised. I also understood from these e-mail reports that I had a reliable and

prudent plan in place to oversee my accounts. Greenberg never told me, at this time or

at any other time, until after October, 2004, either directly or by e-mail, that there

were other reports about my accounts, that he would be, or was, preparing, that I

could not rely upon the e-mail reports he was sending me, or that the e-mail reports

were false and incomplete and, for example, did not reflect the withdrawals that he

agreed that they would reflect. To the contrary, Greenberg assured me that the e-mail

reports, with account balances, account withdrawals and performance summaries, were

all that I needed to receive and to review in order to monitor and control my

accounts. Based on these promises, I agreed that additional THLLC funds could be

invested in ASF as Greenberg had requested. 27. On Monday April 1, 2002 Greenberg

copied me on an e-mail to Lynch confirming a $5,000 disbursement to Richard Westin.

See Exhibit 15. I e-mailed Greenberg that same day to ask about this disbursement and

to ensure that Greenberg knew that I was reviewing and relying upon all the e-mails

sent to me under this agreed protocol. See Exhibit 16. Greenberg responded with a

detailed explanation of this $5,000 payment. See Exhibit 16. These emails assured me

that I had an effective set of controls in place with Greenberg to protect my

accounts. Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 12

of 34 — 13 — 28. On Tuesday April 16, 2002 Greenberg sent me an e-mail as to my

accounts for March. He reported total account balances of $6,317,697 and he also

reported in detail on a disbursement for taxes in the amount of $71,000. He extolled

the work of Lynch and Westin in setting up THLLC as a tax savings structure and

otherwise led me to believe that all the accounts were in good order and the

investment structure was safe and secure. See Exhibit 17. I thanked him by e-mail that

same day for his skillful efforts on my behalf and to let him know again that I was

relying upon his oversight. See Exhibit 18. 29. On Tuesday May 14, 2002 Greenberg sent

me an e-mail report of account performance for April. See Exhibit 19. In that e-mail

he listed disbursements from the various accounts under his management, including the

CRT, THLLC and the CFT accounts and listing “management fees” payable to a company

named “Greenberg & Associates (TAS).” Id. I responded that same day asking him to

explain to me the various entities and the various payments to which he referred in

his e-mail. See Exhibit 20. I had not fully understood the different entities under

his management and I also was alarmed at the scope of the disbursements. In my email

response to Greenberg on that same day of May 14, 2002, I told him I was alarmed and

asked for guidance on my budget and spending. Id. 30. On Wednesday May 15, 2002

Greenberg responded by e-mail to my questions and clarified several matters referred

to in his earlier e-mails. See Exhibit 21. First, he explained that “CRT” and “Sabbath

Day” referred to trusts set up by me and under his management. Second, he explained

that “TAS” was the name of a firm owned mostly by him and he described this as the

company that “manages your money.” Greenberg’s e-mail confirmed for me that Greenberg,

through this company named TAS, was taking personal responsibility as the guardian of

all of my accounts, including the trust accounts and the THLLC account, as he had Case

1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 13 of 34 — 14 —

assured me in the past. Greenberg further advised that I could budget spending of

about $360,000 per year, which provided assurances to me that he understood that I was

at all times concerned about limits on spending. Id. 31. Greenberg did not tell me in

May, 2002, or at any other time, that TAS’s involvement in managing my accounts meant

that there was a specific contract between me and TAS providing for a method of

accounting and reporting which superseded or altered Greenberg’s agreed method of

accounting to me and reporting on my investments. Greenberg never sent me a copy of

the document captioned “Investment Advisory Agreement”, a copy of which is Exhibit N

to the Motion For Summary Judgment. He never mentioned that a new contract had been

signed with TAS to replace previous contracts that I had signed years earlier for

estate planning and money management services. 32. On Thursday May 30, 2002, Greenberg

sent me a long e-mail that purported to explain Lynch’s role in THLLC and provided

assurances to me that Greenberg was overseeing THLLC’s operation from the financial

side “to ensure that the company is properly run and that its structure is maintained

precisely.” See Exhibit 22. In that e-mail Greenberg explained in some detail payments

to be made by THLLC to Lynch. I understood from this e-mail that some modest payments

to Lynch were necessary for THLLC to comply with IRS requirements and that Greenberg

was carefully monitoring those payments. I also understood from Greenberg that Lynch’s

participation in THLLC was entirely for my benefit in that THLLC was established as a

legal tax and estate planning device to hold the proceeds of the sale of my artist

royalties. In that regard, Greenberg wrote: In summary, Kelley’s [Lynch] participation

in Traditional Holdings legitimizes the structure. She invests in the entity (through

the promissory note) and as she is not related to you, this also strengthens the

legitimacy Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 14

of 34 — 15 — of Traditional Holdings. Kelley is given the money to repay the

promissory note, to pay taxes on the money she receives for the promissory note, and

receives a small salary which also helps and was built into the structure

intentionally for this reason. Greenberg then describes proposed payments to Lynch

totaling about $47,000: Both Richard [Westin] and I feel that these payments (for 2000

and 2001) should be made immediately and according to Richard the payments for 2002

should be made in June and then Kelley will repay the promissory note in December. I

would like to make the disbursements for the combined 2000/2001 years as they are well

overdue, and then make the disbursements for 2002 in June. 33. This explanation of

Lynch’s role in THLLC was consistent with my earlier understanding that she was

participating in THLLC only for certain legal purposes, that she would be paid a small

amount by THLLC for the limited tasks that she agreed to perform and that THLLC had

been formed and would be operated principally for my benefit, secondly for the benefit

of my children and not at all for the benefit of Lynch. This e-mail reconfirmed for

me, as well, that, as the principal intended beneficiary of the THLLC arrangement, I

was the equivalent of the owner of the funds held in the name of THLLC and that

Greenberg had assumed the responsibility to guard those funds for me, even to the

point of explaining one payment due Lynch which was in the small amount of $3,013.70.

See Exhibit 22. 34. On June 18, 2002 Greenberg sent me a report for May and addressed

my continuing concerns for safety. He asserted that his investment strategy was as

safe as possible, and much safer than other strategies. He acknowledged that I “…(and

Kelley [Lynch] on [my] behalf) have asked if bonds or treasury bills would be a better

place to invest.” This statement provided additional confirmation to me that Greenberg

understood my concern for safety of my investments and that he understood that I had

communicated that concern to Lynch, who was charged with protecting my investments as

well. See Exhibit 23. I responded by e-mail the next Case 1:05-cv-01233-LTB Document

180-1 Filed 12/20/07 USDC Colorado Page 15 of 34 — 16 — day thanking him for the

report. See Exhibit 24. He responded with an assurance that we soon would speak again

by phone. Id. During our later calls and e-mails, Greenberg never mentioned that his

regular e-mail reports to me were incomplete and inaccurate or that other reports

existed for my review. 35. On July 15, 2002 following my reading of an alarming

prediction in the press by George Soros about the economy, I sent an e-mail to

Greenberg asking “What is the safest possible position? No profits. Just safety.” See

Exhibit 25, p 2. Greenberg responded by e-mail that same day to the effect that my

funds were in United States treasury securities and money market accounts, and that my

accounts had actually been profitable in June 2002 despite large losses in the public

equity markets. See Exhibit 25, p 1. I thanked him by e-mail for “the good fence” he

had built around my investments and he responded by e-mail that he understood my

safety concerns because many of his clients were retirees. See Exhibit 26. 36. On July

19, 2002, Greenberg sent me an e-mail summary for June performance, reporting total

assets in all accounts of $5,876,435. He also reported $68,700 in trust distributions

and a $44,000 “promissory note” payment. See Exhibit 27. I responded by e-mail that

same day asking: “What is a promissory note payment?” See Exhibit 28. He referred me

to the e-mail that he had sent me on May 30. I had read that e-mail but had not

understood it as a request for authorization of payments to Lynch. He asked by e-mail

on July 19 if I authorized these particular payments. See Exhibit 29. I responded by

saying, based on my understanding of the May 30 e-mail, that I approved these

particular payments to Lynch, but I also thought that, other than routine payments, no

one could withdraw funds from my account, without my written consent, so I further

asked “Where do I sign?” See Exhibit 29. Greenberg and I later spoke and I asked

whether my written consent was required for such a promissory note payment; I told him

Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 16 of 34 — 17

— that I thought that my written consent was legally required for any payment from the

THLLC account. Greenberg told me that he thought so too and would look into the matter

and get back to me. 37. On July 22, 2002 Greenberg responded by e-mail to my questions

about the requirement of my written consent for payments from my accounts under his

management, including the THLLC account. See Exhibit 30. He told me that he had sent

documentation to me care of Lynch for my signature as to the Promissory Note payment

in order to avoid any misunderstanding in the future, although written consent

technically might not be required for the promissory note payment because that

particular form of payment had been called for by documentation earlier prepared by

Westin. Notably, however, Greenberg assured me that: “Your signature is always

required except when the monies are being sent directly to your Leonard Cohen/City

National Bank account”. See Exhibit 30 (emphasis supplied). I understood from this e-

mail that Greenberg was providing written confirmation to me that no one could

withdraw funds from my accounts without my personal written consent. This was

consistent with my directions to him and my understanding of our agreement as to his

authority as my investment manager. I reiterated to him that I did not want anyone to

be able to withdraw funds from any of my accounts without my personal consent and he

agreed that I had that control over my accounts. 38. Over the ensuing 26 months from

August, 2002 to October, 2004, I received regular monthly e-mail reports from either

Neal Greenberg or from defendant-on-counterclaim Tim Barnett (“Barnett”) acting on

behalf of Greenberg. See Exhibit 31. Each of these e-mails was directly to me and

summarized the status of my accounts, purportedly reporting the aggregate account

balance for all my accounts as we had agreed and purportedly reporting on all withCase


drawals or disbursements from each of my accounts as we also had agreed. In many of

the emails, Greenberg reported no withdrawals. Where withdrawals were reported, they

were limited to tax payments, fees paid to TAS or distributions to me from the

charitable trusts which I had been told were required by the trust documents. Further,

each of the e-mail reports showed an account balance of over $5 million. There were no

reports of any shareholder “loans”. There were no requests for my consent to any

withdrawals or loans. Based on the agreements reached by telephone and confirmed by e-

mail between Greenberg and me regarding his control and his reporting on all of my

accounts, including the trust accounts and the THLLC accounts, and based on my long

standing relationship of trust and confidence in him personally as my exclusive

financial advisor to whom I had entrusted my life savings, I relied on and accepted

without question Greenberg’s e-mails between August, 2002 and October, 2004 as

complete and accurate summaries of the status of my accounts. I relied on the e-mails

for confirmation of the fair market value of my account balances, the disclosure of

withdrawals or lack of withdrawals from the accounts and the assurance of protection

by my account custodian. Greenberg’s e-mails contained nothing to suggest that the

information about my accounts which was reported on them was incomplete and his e-

mails contained no indication that there were other documents that I must consult in

order to understand the true state of my accounts. Further, during the period of

August, 2002 to October, 2004, Greenberg never called me or e-mailed me to request my

consent to any withdrawals being made by Lynch. Greenberg never provided any hint of

information in any of his e-mails to me that Lynch was withdrawing funds from any of

my accounts, much less withdrawing funds at a rate which depleted nearly the entire

account balance in the accounts in the name of THLLC. Had Greenberg ever mentioned in

any of these e-mails that Lynch was withdrawing funds from my accounts or had he ever

mentioned that there were other reports that Case 1:05-cv-01233-LTB Document 180-1

Filed 12/20/07 USDC Colorado Page 18 of 34 — 19 — I needed to consult, I would have

thereby known of Lynch’s improper withdrawals and I would have terminated her services

and terminated my relationship with Greenberg and the Agile Group and preserved my

life savings. 39. In mid October, 2004, I received information from an employee of

Lynch that I should look into my accounts at City National Bank (“CNB”). I

subsequently investigated those accounts and learned that Lynch had been withdrawing

substantial sums from them. I then met with Lynch, and Lynch ultimately admitted that

she had taken funds from my bank accounts without my consent. I terminated her

services on or about October 21, 2004 and asked that she meet with a lawyer

representing me to address the situation. 40. Immediately after I fired Lynch, I made

several attempts to contact Greenberg by telephone at the Agile Group’s offices in

Boulder, Colorado. I finally reached Greenberg at his residence in New York City. In a

telephone call on Friday, October 22, 2004, I advised Greenberg that I had just

learned that Lynch had taken substantial funds from my CNB bank accounts. I told him

that I had terminated her and I hoped she would admit what had happened and work out a

plan for restitution. 41. I spoke again to Lynch the following day to again ask that

she meet with my lawyer. She reported that Greenberg had called her shortly after I

spoke with him. 42. I called Greenberg again and reached him the following day,

Sunday, October 24th. I asked him why he called Lynch to discuss with her my

confidential discussion with him. He told me that he had been taught that in such

circumstances, he should support both sides. I asked him how there could be two sides.

With some concern about the status of my accounts under Greenberg’s management, I

asked Greenberg to confirm that $5 million remained in my accounts under his

management, as was indicated in his August 31, 2004 e-mail sent to me Case 1:05-cv-

01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 19 of 34 — 20 — in

accordance with the agreed method of reporting. To my shock and total disbelief,

Greenberg told me that he could not tell me the status of the account in the name of

THLLC. He further told me, for the first time in any of our communications together,

that, in his view, Lynch owned THLLC and he could not talk to me about that account. I

asked Greenberg how at this crucial moment he could suggest this characterization of

THLLC which was inconsistent with our email communications and discussions for the

last more than two years. I asked him how he could have sent me so many e-mails

reporting on my account balances — which always exceeded $5,000,000 — and assuring me

there were no withdrawals other than withdrawals approved by me. I asked point blank

that Greenberg confirm my $5 million account balance. He refused to respond. He told

me that he would talk with his lawyers before discussing the matter further with me.

43. I spoke again with Lynch the next day about arranging a meeting with my lawyer and

I told her that I had arranged that Westin come to Los Angeles. To my surprise and

chagrin, she told me that Greenberg had again called her and told her that I was

“freaked out.” She also told me that Greenberg had assured her that she owned THLLC.

Based on Lynch’s statements, I began to suspect that Greenberg had been dishonest with

me and not the guardian of my accounts that he had agreed to be. Out of what turned

out to be false hope, I continued to hope that Greenberg would tell me that a sum in

the magnitude of $5 million remained invested in my accounts. 44. On or about October

26, 2004, I sent an e-mail request to Barnett regarding the performance of my accounts

in September. I asked for confirmation that there was more than $5 million in my

accounts. See Exhibit 32. Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC

Colorado Page 20 of 34 — 21 — 45. Shortly thereafter, I reached Greenberg again by

telephone. He said that he had spoken with Westin. I asked Greenberg to confirm that

there was more than $5 million in my accounts as indicated in the e-mail received from

Barnett as recently as September 30, 2004, less than sixty days previously. See

Exhibit 33. Greenberg admitted that Lynch had withdrawn most of the funds and he said

that he would have to check the accounts to tell me exactly what remained. Greenberg

had no explanation for this loss of millions of dollars from my accounts. I told

Greenberg of my anger and disappointment. 46. On October 29, 2004, Barnett responded

to my inquires and admitted to me that the balance in the THLLC account had been

eroded from an initial $4.7 million as of September 2002 to $150,000 as of October,

2004. Barnett’s statements to me established that all the e-mails sent by Greenberg,

and sent by Barnett himself, as Greenberg’s proxy, since mid 2002 were lies. 47. In

mid-November, 2004 I hired Robert Kory, Esq. (“Kory”) as my lawyer to investigate what

had happened to my life savings. Kory contacted Greenberg and thereafter received some

account information and copies of some e-mail communications between Greenberg, Lynch

and Westin. 48. In or about February, 2005, I reviewed some of the e-mails and other

communications Kory had received from Greenberg and from counsel to Lynch. Among those

documents were two letters, one dated January 16, 2004 and the other dated June 24,

2004 in which Greenberg wrote on Greenberg & Associates, Inc letterhead to me c/o

Lynch’s address and warned of “excessive spending”, “improper accounting for

Traditional Holdings”, and “potentially dire financial consequences” if spending were

not curtailed. See Exhibit 34. I never received these letters on the days they

purportedly were written and sent. The first time I saw Case 1:05-cv-01233-LTB

Document 180-1 Filed 12/20/07 USDC Colorado Page 21 of 34 — 22 — these letters was in

Kory’s office in or about February, 2005, several months after I learned that Lynch

had systematically looted my accounts that Greenberg had assured me were safe. 49.

After I was shown the two “warning letters”, I compared them with e-mails from

Greenberg which had been sent the month before and the month after the date stated on

each letter. See Exhibits 35 and 36. In each case the e-mails sent directly to me

(e.g. e-mails dated December 29, 2003 and January 27, 2004 as well as e-mails dated

June 3, 2004 and July 21, 2004) assured me that my accounts had balances in excess of

$5 million. Greenberg made no mention in those e-mails of any “over spending”,

“improper accounting” or “dire financial consequences”. These “warning letters” were

surprising to me for many reasons, including the following: First, Greenberg and I had

agreed upon an arrangement and had established a practice of communication by e-mail

and telephone so Greenberg knew how to reach me quickly and directly; Second, I had

specifically given Greenberg my personal telephone number and asked him to call me

about any serious matters relating to my investments and he had agreed to do so;

Third, I knew that Greenberg visited Los Angeles periodically, but he had never

visited me personally to advise me of any “dire circumstances”; Fourth, I was shocked,

given all my discussions with Greenberg and my thanks for the “good fence” he seemed

to have built, that he would not make an effort to reach out to me. It seemed to me

that, at the very least, given my long standing trust and confidence in Greenberg, he

would have attached these purported “warning letters” to an e-mail, copied contents of

the letters into e-mails, mentioned the existence of the letters in his monthly e-

mails, or even called me at home as he had in the past about far less urgent matters.

Greenberg had done none of these things. Case 1:05-cv-01233-LTB Document 180-1 Filed

12/20/07 USDC Colorado Page 22 of 34 — 23 — 50. I have seen that portion of the Agile

Group’s Motion For Summary Judgment, pp. 3, 28, in which the Agile Group asserts that

I “admitted” that I received the “two warning letters” in the normal course. This is

not so. I never received the “warning letters” nor have I ever made such an

“admission”. 51. Kory showed me an e-mail that he had received from Greenberg’s

companies, allegedly sent by Barnett to Lynch on or about February 3, 2004, ostensibly

to confirm my alleged receipt of the January 16, 2004 “warning letter” (See Exhibit

37), and including Lynch’s alleged response that I was traveling and did not know when

I would be back. Barnett had not copied me on his e-mail to Lynch; Lynch had not

copied me on her e-mail response to Barnett. In short, Greenberg knew how to reach me

with e-mails that presented a false picture of my accounts under his management — as

he did by e-mails dated December 29, 2003 and January 27, 2004 — but he and his

employees were suddenly incapable of reaching me by e-mail or telephone when he

allegedly sought to warn me that my financial situation had become “dire”. Not only

did Barnett not e-mail me directly to confirm receipt of the “warning letter”, Barnett

told Lynch that Greenberg had no plans to visit Los Angeles where he could warn me

personally about my “dire situation”. Id. Thus, all I received was the reassuring e-

mail that I had $5.2 million in my accounts, that Greenberg was beating the markets

and that there had been and were no withdrawals. See Exhibit 35. 52. In or about

February, 2005, Kory showed me an e-mail he sent to Sherab Posel, Esq. (“Posel”),

counsel to Greenberg, in which Kory outlined legal claims I had against Greenberg

which were supported by, among other things, Greenberg’s having regularly sent me

false e-mails assuring me that at all times my accounts had assets with a market value

of over $5 million, when, in fact, Greenberg knew that my accounts were being

systematically depleted. I Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC

Colorado Page 23 of 34 — 24 — understood from communications received by Kory from

Posel that Greenberg ostensibly desired to participate in a confidential mediation of

my claims. I was agreeable to doing so. 53. In or about April 2005 I read a letter

that Kory sent to Posel summarizing my claims against Greenberg based substantially

upon the history of Greenberg’s having misled me about my accounts through false e-

mails. See Plaintiffs’ Opposition to Kory’s Motion to Dismiss, September 26, 2005,

Exh. A Docket 32. 54. In or about May, 2005 I agreed to attend what I expected to be a

confidential mediation in Denver, Colorado. 55. On or about June 3, 2005 I learned

that Posel had drafted a complaint against Kory and me alleging that we were

attempting to extort an insurance settlement from Greenberg and that we had attempted

to solicit perjured testimony from Lynch. On learning of this draft complaint, and

these outrageous and absurd allegations, I declined to travel to Colorado, even

though, for whatever purpose, Posel was stating that he still wanted to have a meeting

in Colorado. See Exhibit 38. 56. On or about the morning of June 9, 2005, I learned

that David Chipman, Esq., another lawyer representing Greenberg, had sent an e-mail to

Kory. Chipman also stated that Greenberg still sought mediation. 57. On or about the

evening of June 9, 2005, it became obvious that Posel’s and Chipman’s statements

concerning Greenberg’s interest in mediation were false in that a fan of mine reported

that Greenberg already had filed a lawsuit against Kory and me on June 5 and Greenberg

and his lawyers had issued a press release about their lawsuit on June 9, 2005, before

I was even served with a copy of the lawsuit. The press release summarized Greenberg’s

allegaCase 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC Colorado Page 24 of 34

— 25 — tions that I was engaged with Kory in extortion, subornation of perjury and

insurance fraud against Greenberg. See Exhibit 39. 58. Over the next several days, I

received many requests for information about the Greenberg law suit from my friends

and fans. In response to the press release issued by Greenberg and his lawyers, on or

about June 14, 2005 Kory posted a denial of Greenberg’s charges in the forum section

of the more or less official fan website for persons who like my work and who closely

follow it. See Exhibit 40, p. 9 of 11. 59. In or about late June 2005, I hired counsel

to defend me against Greenberg’s claims and to assert my claims against Greenberg

through arbitration before the National Association of Securities Dealers. During the

course of the proceedings related to my request for arbitration which then took place,

I learned for the first time that Lynch allegedly had signed a series of contracts

allegedly on behalf of herself and allegedly on my behalf for financial management

services provided by Greenberg and his companies. I never had seen any of those

contracts, including the series of four contracts ostensibly entered into with several

Greenberg companies and all dated on or about February 26, 2002. See Exhibit 41. 60.

In or about August, 2005, I learned that Greenberg had amended his complaint against

me and had added charges of defamation based upon Kory’s statement posted on

www.leonardcohenfiles.com denying the charges asserted by Greenberg and made public by

Greenberg through Greenberg’s press release trumpeting his claims filed against me.

61. On or about August 15, 2005, I filed a complaint against Lynch and Westin in the

Los Angeles Superior Court. Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC

Colorado Page 25 of 34 — 26 — 62. Over the next eighteen months, Greenberg’s lawyers

and my lawyers filed pleadings in court concerning, among other things, the possible

dismissal of some or all of one parties’ claims against the other. 63. During the

course of these proceedings, I saw pleadings, and for the first time saw documents,

filed on behalf of Greenberg and asserting that Greenberg owns several ostensibly

separate financial and investment management companies that are all controlled by him,

but allegedly have separate legal authority. I also saw pleadings in which Greenberg

claimed that Lynch allegedly had signed contracts, allegedly on my behalf, with

several of Greenberg’s allegedly separate companies, including TAS — the one company

whose name Greenberg had mentioned to me in one of his e-mails in 2002, as the company

through which he was “managing” my money. Some of these alleged contracts referred to

two other companies named Greenberg & Associates, Inc. and Greenberg & Associates

Securities, Inc. I also received Greenberg’s pleadings or saw documents produced by

Greenberg’s counsel claiming that there were, allegedly, separate contracts with ASF

and that that purported entity itself allegedly was managed by the Agile Group. I

further learned that Greenberg was asserting that these contracts, none of which I had

read or seen, exonerated him from his agreements and commitments to me to send me

accurate reports of my accounts by e-mail, to notify me by e-mail of each and every

withdrawal from my accounts and to obtain my written consent before permitting any

withdrawals from my accounts. 64. When Greenberg orally and by e-mail made his

agreements with me to keep me apprised of my accounts by monthly e-mail reports, he

said nothing to suggest that I could not rely on his e-mail reports as complete and

accurate. To the contrary, when I asked about my accounts, Greenberg both told me and

wrote me in effect that he personally controlled the comCase 1:05-cv-01233-LTB

Document 180-1 Filed 12/20/07 USDC Colorado Page 26 of 34 — 27 — panies providing

money and investment management services and that he personally would oversee and

protect my accounts and would provide a complete and accurate summary of all my

account balances in one monthly e-mail. Had Greenberg ever told me that he was not

overseeing my investments, I would have ended the relationship and withdrawn all

monies entrusted to his custody. Had Greenberg ever told me that some portion of my

accounts would be managed by one entity, and another portion by yet another entity,

and that no portion of my accounts at all would be managed by him, and that

Greenberg’s agreed-to e-mail reports to me were meaningless (in addition to being

misleading), and that my contractual rights were limited to whatever might be stated

in one or another contract with one or another ostensibly separate entity I never had

seen or been told about, I would have immediately ended the relationship with

Greenberg in its entirety. 65. Since the commencement of the litigation with

Greenberg, I have seen pleadings filed on behalf of Greenberg in which Greenberg, in

effect, has contended that he was justified in not questioning the reasons for, or

preventing, Lynch’s withdrawals from my accounts based on a Power of Attorney that I

had signed in January 2002 prior to a one month trip to India so that Lynch could

handle my affairs in case of emergency. I was shocked by this contention because I

specifically had discussed with, and had obtained commitments from, Greenberg (and

Lynch also, for that matter) that I would be advised by e-mail of any withdrawals from

my accounts. See Exhibit 14. I specifically told Greenberg that I personally — not

through Lynch or anyone else — wanted notice of any withdrawal from my accounts and I

wanted to approve in writing all withdrawals, other than nominal withdrawals or

withdrawals required by the trust instruments. I knew that Greenberg understood,

accepted and agreed to these instructions Case 1:05-cv-01233-LTB Document 180-1 Filed

12/20/07 USDC Colorado Page 27 of 34 — 28 — (at least he claimed to have agreed)

because he confirmed orally and by e-mail that he would follow my instructions and,

indeed, he appeared to be following my instructions. See Exhibit 30. 66. The contracts

that Greenberg now wields as a defense to my claims that he breached his agreements

with me to report upon my accounts by e-mail and to not permit withdrawals not

specifically approved by me allegedly were signed by Lynch in late February, 2002.

However, when I agreed to let Greenberg invest my money in ASF and he agreed that I

personally would receive monthly e-mails with account balances and itemized

withdrawals, and that he would require my written consent before permitting any

withdrawal, Greenberg never said that his agreement to send me these e-mails reports

was inconsistent with and differed from reporting obligations or other duties that he

had under contracts through which he was providing ongoing financial management and

estate planning services to me. See Exhibits 12-29. Rather, Greenberg agreed to my

requests and seemed to be performing as agreed by sending me e-mail summaries of my

accounts every month from March 2002 to October, 2004. See Exhibit 31. I relied on

those e-mails as providing an accurate summary of my account balances and an accurate

summary of any withdrawals, based on Greenberg’s oral and written promises,

commitments and agreements to keep me fully informed about my accounts by e-mail and

to obtain my written consent on all withdrawals. 67. During the course of this

litigation, I have seen for the first time some emails exchanged between Lynch and

Greenberg concerning her alleged personal need to withdraw money from THLLC for her

own use, and e-mails between Lynch and Barnett concerning monthly e-mail reports that

they were collaborating in preparing for my consumption. Through review of those e-

mails, I learned that Greenberg was told that Lynch was “borrowing” from THLLC for her

own account and I learned that Lynch was asking Greenberg to help her hide the Case


fact that she was doing so. For example, in an e-mail to Greenberg dated January 23,

2003, Lynch writes to Greenberg that she needs to borrow $100,000 from THLLC, and that

she already had taken another personal loan, and she asks that the withdrawals be

treated as “Shareholder loans and not be deducted when Leonard receives his e-mails.”

See Exh. 42. Through review of e-mails between Lynch and Barnett, I also learned that

Barnett sent drafts of the monthly e-mail reports which were to be sent to me, to

Lynch before Agile Group sent those e-mail reports in final form to me. Barnett then

apparently edited the e-mails jointly with Lynch to conceal from me facts that

Greenberg had agreed would be reported to me. For example, on February 20, 2003 in an

e-mail between Barnett and Lynch marked “January 2003 Performance Draft” Lynch tells

Barnett not to report a $100,000 withdrawal taken by her and Lynch states that the

$100,000 “should be listed as a Shareholder Loan and not deducted [from the account

balance]”. See Exhibit 42. Barnett responds on February 21st by e-mail: “Of course, I

am happy to list the transaction activity any way you like.” Id. In the actual e-mail

sent to me by Greenberg regarding “January 2003 Performance”, there is no mention of

either a $100,000 withdrawal by Lynch or a $100,000 shareholder loan to Lynch. Id. p.

1 and 2. Greenberg hid from me these transactions involving Lynch despite Greenberg’s

explicit agreement to notify me of all withdrawals from my accounts in his monthly e-

mails to me and to obtain my consent for withdrawals. E-mails between Lynch and

Barnett reflect a similar intentional effort to hide what allegedly were loans made to

Lynch in April. In this instance, the amounts in question are $25,000 and $150,000 and

Barnett tells Lynch that he has decided to characterize these withdrawals as

“shareholder loans”. See Exhibit 42. These e-mails demonstrate that Greenberg was

exploiting my reliance on his emails to deceive me by providing me with false

summaries that indicated I had money in my acCase 1:05-cv-01233-LTB Document 180-1

Filed 12/20/07 USDC Colorado Page 29 of 34 — 30 — counts that I did not have. These e-

mails show that Greenberg, his staff and his companies worked with Lynch to hide from

me Lynch’s withdrawals from my accounts. 68. During the course of the litigation of

claims and counterclaims between me and Greenberg, I have seen documents allegedly

reflecting that Greenberg had prepared and sent to me, c/o Lynch’s greeting card

company office, summary financial statements of my accounts, including the THLLC

account. I never had seen these documents, which are captioned “Unaudited Financial

Statements for THLLC,” until, during 2005, I saw several copies produced by

Greenberg’s counsel. Copies are attached as Exhibit S to the Motion For Summary

Judgment. 69. Upon examination of the documents captioned “Un-audited Financial

Statements for Traditional Holdings, LLC” I noted that these documents allegedly were

prepared by the allegedly separate Agile Group companies named TAS and Greenberg &

Associates, Inc. I also noted that these documents report a series of shareholder

“loans” that total in the millions of dollars. I was shocked by these documents

because Greenberg made no mention of any “shareholder loans” in his monthly e-mails to

me despite his promise to obtain my consent for any withdrawal of funds from my

accounts. I was also troubled because Barnett admitted in an email he sent after

October, 2004 to Lynch, on which Kory and I were copied, that Greenberg had

“incomplete documentation and no actual evidence of the loans,” and that they were

unable to identify the beneficiaries of the loans. See Exhibit 43. Greenberg never

mentioned to me that these “Un-audited Financial Statements for Traditional Holdings,

LLC” existed, much less that they had been regularly sent to Lynch’s office. 70.

Following the production of some documents by counsel for Greenberg, I also saw for

the first time what appear to be summary reports on the profits and losses of THLLC’s

alleged investment in ASF as reported by a CPA firm. These profit and loss stateCase


ments state that they were prepared by Yulish and Associates, CPA, and these

statements allegedly were sent to Lynch by Michael Brady from Agile Safety Group. See

Exhibit R to Motion For Summary Judgment. On review of these statements, I saw that

Yulish and Associates showed millions of dollars of “withdrawals” from the THLLC

accounts, not as shareholder “loans” but as “distributions”. I was shocked that

Greenberg, as the CEO of Agile Safety Group (allegedly the manager of ASF), had not

mentioned in his monthly e-mails to me any withdrawals from my THLLC accounts, as

shown by the Yulish reports. 71. On review of documents produced by Greenberg, I also

have confirmed that TAS, the company which Greenberg identified as the company through

which he managed my money, had the opportunity to approve, or to stop, each and every

withdrawal of funds from the THLLC accounts which Lynch made without my consent. While

Greenberg allegedly had arranged for my money in THLLC to be invested with ASF, Lynch

apparently was unable to withdraw funds directly from ASF. Each withdrawal evidently

involved an interim step, which involved an account THLLC maintained at a company

named Rydex. See Exhibit O to Motion for Summary Judgment, e.g. AG 14248, AG 14238, AG

14177. Each of the THLLC account statements for the Rydex account which have been

produced by Greenberg show that TAS was at all times the “financial advisor” of this

Rydex account. See Exhibit 44. These statements are consistent with Greenberg’s

statement that TAS was managing my money. The statements establish that, upon each

request made by Lynch for the withdrawal of funds from ASF, the funds were not sent

directly to Lynch but, instead, were deposited in the THLLC Rydex account, which at

all times was under the control of TAS, which was in a position to prevent the making

of distributions to Lynch. Id. Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07

USDC Colorado Page 31 of 34 — 32 — 72. In preparation of this Affidavit, I also have

reviewed e-mails included as part of Exhibit O to the Motion for Summary Judgment.

Each of these e-mails purports to be a request from Lynch to Greenberg, or a response

to a Lynch e-mail from Greenberg, Barnett or Ms. Robertson, another Greenberg

employee. I never had seen any of these e-mails until they were produced among the

exhibits allegedly supporting the Motion For Summary Judgment. These emails are

notable for various reasons, including the following. 73. First, these e-mails, if

accurate, indicate that Lynch obtained her unauthorized withdrawals from THLLC, not

from ASF, but from the Rydex money market account which was at all times ostensibly

managed by TAS. Numerous e-mails between Barnett and Lynch show that Barnett arranged

for funds to be deposited into a Rydex money market account to enable Lynch to

withdraw those funds. Barnett also was apparently assisting Lynch in the budgeting of

her withdrawals from ASF to fund the THLLC money market investment account in such a

manner that Lynch had $300,000 per quarter available for her to spend by writing

checks on the linked Rydex checking account. See Exhibit O to Motion for Summary

Judgment AG 12645, e-mail dated June 29, 2004. 74. Second, e-mails included in Exhibit

O indicate that the Agile Group allowed Lynch to commingle SDT funds with THLLC funds

by depositing distributions that should have gone directly to me from SDT, into the

THLLC Rydex account. See Exhibit O, e-mail dated April 22, 2004, AG 13962. As a result

of these e-mails, I have learned that Greenberg, who managed all of my accounts,

allowed Lynch to withdraw funds without my consent not only from THLLC, but also from

the SDT and to depict the withdrawals as shareholder “loans” which, for that matter,

were never disclosed to me. Case 1:05-cv-01233-LTB Document 180-1 Filed 12/20/07 USDC

Colorado Page 32 of 34 — 33 — 75. Third, these e-mails reflect Lynch discussing with

Greenberg keeping secret her withdrawals from the THLLC Rydex account and the SDT

account. 76. Fourth, these e-mails reveal that Greenberg and Lynch were planning to

obtain additional funds from me by persuading me to sell my last remaining royalty

asset, my interest as a songwriter in my songs. That royalty interest provides me with

the so-called writer’s share of performance and mechanical royalties. According to the

e-mails they have produced, Lynch and Greenberg sought to persuade me to sell those

royalties for $5 million. The e-mails in Exhibit O indicate that Lynch and Greenberg

intended to use those funds to hide the fact that the THLLC account had been depleted.

See Exhibit O. 77. Based on the information revealed by Greenberg since I learned that

he had permitted, if not assisted, Lynch to loot my accounts under his management, it

is clear that Greenberg intentionally kept from me the actual facts as to the status

of my accounts under his management and that he intentionally deceived me as to the

true status of my accounts. Despite Greenberg’s promises, commitments and agreements,

both orally and as confirmed by e-mails, that he would obtain my consent before any

withdrawals, he allowed Lynch to withdraw millions of dollars from my accounts without

my knowledge, let alone my written consent. Despite Greenberg’s promises, commitments

and agreements, both orally and in writing, to tell me about each withdrawal from my

accounts, he failed to mention any withdrawals, other than nominal withdrawals and

non-discretionary withdrawals, and he led me to believe there were no such material or

discretionary withdrawals. Greenberg breached his promises, commitments and

agreements, not once, but every month for over two years by sending false e-mail

reports that lulled me into believing that my accounts were safe, when, in fact,

Greenberg facilitated, permitted and possibly aided Lynch in the looting of my

accounts and in the concealment of the true facts about Case 1:05-cv-01233-LTB

Document 180-1 Filed 12/20/07 USDC Colorado Page 33 of 34 — 34 — my accounts — all in

violation of his contractual understandings with me to tell me the truth, keep me

informed and allow withdrawals from my accounts only if I had consented to the same in

writing. Leonard Cohen Subscribed to and sworn before me this ________ day of

December, 2007. Notary Public My commission expires: Case 1:05-cv-01233-LTB Document

180-1 Filed 12/20/07 USDC Colorado Page 34 of 34

09/05/2008 222 ORDER. Plaintiffs Tenth Claim for Relief for Interpleader is DISMISSED, denying as moot 185 Defendant Cohens Motion for Summary Judgment as to Plaintiffs Tenth Claim for Relief for Interpleader The interpleaded funds currently in the Registry of the Courtincluding any accrued interest, less the Court Registry handling feeshall be disbursed to Defendant Cohen within ten days of the date of this Order; Each party shall bear its own attorney fees and costs related to this motion. Signed by Judge Lewis T. Babcock on 09/05/2008.(sah, ) (Entered: 09/05/2008)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO LEWIS T. BABCOCK,

JUDGE Civil Case No. 05-cv-01233-LTB NATURAL WEALTH REAL ESTATE, INC., a/k/a Greenberg

& Associates, Inc., d/b/a Agile Advisors, Inc. a Colorado corporation; TACTICAL

ALLOCATION SERVICES, LLC, d/b/a Agile Allocation Services, LLC, a Colorado limited

liability company; AGILE GROUP, LLC, a Delaware limited liability company; GREENBERG &

ASSOCIATES SECURITIES, INC., d/b/a Agile Group, a Colorado corporation; and NEAL R.

GREENBERG, a Colorado resident, Plaintiffs and Counterclaim Defendants, v. LEONARD

COHEN, a Canadian citizen residing in California; KELLEY LYNCH, a United States

citizen residing in California; and JOHN DOE, Numbers 1-25, Defendants, and, LEONARD

COHEN, a Canadian citizen residing in California, Counterclaim Plaintiff, v. TIMOTHY

BARNETT, a Colorado citizen, Counterclaim Defendant.

______________________________________________________________________________ ORDER

______________________________________________________________________________ This

matter is before me on Defendant, Leonard Cohen’s, Motion for Summary Judgment as to

Plaintiffs’ Tenth Claim for Relief for Interpleader [Docket # 185], Plaintiffs’

response [Docket # 196], and Cohen’s reply [Docket # 210]. Oral arguments would not



materially assist Case 1:05-cv-01233-LTB Document 222 Filed 09/05/08 USDC Colorado

Page 1 of 3 2 the determination of this motion. The allegations in this case are

adequately noted in prior orders of this Court, and I need not repeat them here. After

several years of litigation, each claim and counterclaim in this case—with the

exception of Plaintiffs’ interpleader claim now at issue—has been dismissed.

Plaintiffs’ interpleader claim concerns approximately $154,000 in funds (“the funds”)

belonging to Traditional Holdings LLC, an investment entity created by Cohen and

Defendant Lynch for purposes of managing Cohen’s assets. Plaintiffs disavowed any

interest in the funds, but requested interpleader for purposes of settling the

conflicting positions of Cohen and Lynch regarding ownership of the funds. Plaintiffs

paid the funds into the Registry of the Court pending resolution of this issue. On May

12, 2006, the Superior Court of California, County of Los Angeles, ruled on the issue

of ownership of the funds, and entered default judgment in favor of Cohen and against

Lynch in the amount of $7.3 million in damages and interest. See Judgment, Cohen v.

Lynch, Los Angeles Superior Court Case No. BC 338322 (May 12, 2006) [Docket # 186-16].

In rendering judgment, the California court declared Lynch was “not the owner of any

assets in Traditional Holdings, LLC” and any interest Lynch had in “any other entity

related to Cohen . . . she [held] as trustee for Cohen’s equitable title.”

The California court enjoined Lynch from interfering with Cohen’s right to receive any

such funds or property or in any other way exercising control over any funds or

property related to Cohen. The California court ruling was not appealed and is now

final. Case 1:05-cv-01233-LTB Document 222 Filed 09/05/08 USDC Colorado Page 2 of 3 3

The final judgment of the California court settles the dispute between Lynch and Cohen

over ownership of the interpleaded funds. As Plaintiffs are no longer exposed to

multiple liability, Plaintiffs’ interpleader claim is now moot. See FED. R. CIV. P.

22(a)(1). When the dispute underlying an interpleader claim is mooted, the

interpleader claim should be dismissed. See Oldcastle Materials, Inc. v. Rohlin, 343

F. Supp. 2d 762, 787 (N.D. Iowa 2004); Burningtree v. Holland, 760 F. Supp. 118, 119

(E.D. Mich. 1991). Accordingly, IT IS ORDERED that: 1. Plaintiffs’ Tenth Claim for

Relief for Interpleader is DISMISSED; 2. Defendant Cohen’s Motion for Summary Judgment

as to Plaintiffs’ Tenth Claim for Relief for Interpleader [Docket # 185] is DENIED AS

MOOT; 3. The interpleaded funds currently in the Registry of the Court—including any

accrued interest, less the Court Registry handling fee—shall be disbursed to Defendant

Cohen within ten days of the date of this Order; 4. Each party shall bear its own

attorney fees and costs related to this motion. Dated: September 5 , 2008. BY THE

COURT: s/Lewis T. Babcock Lewis T. Babcock, Judge Case 1:05-cv-01233-LTB Document 222

Filed 09/05/08 USDC Colorado Page 3 of 3

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