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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 1:13-CV-20080-JEM
JOEL L. TABAS, in his capacity as both Chapter 7 Trustee of Capitol Investments USA, Inc. and as Assignee to the Claims of Bayside Capital Management, LLC, et al., Plaintiff, v. SHOOK, HARDY AND BACON, L.L.P. and MARC LEVINSON, an Individual, Defendants. _______________________________________ /

DEFENDANTS’ SHOOK HARDY AND BACON, LLP.’S AND MARC LEVINSON’S ANSWER AND DEFENSES TO COMPLAINT Defendants, Shook Hardy & Bacon, LLP and Marc R. Levinson respond the Complaint as follows. All allegations not specifically admitted are denied. I. 1. JURISDICTION AND VENUE

Defendants admit that this action purports to be based on Federal statutes, Florida

statutes and the common law and seeks damages in excess of the jurisdictional amount required in the Court in which it was filed as well as in this Court. Defendants deny that they committed the acts, torts or omissions alleged or that they are liable to Plaintiff. 2. II. A. The Debtors 3. On information and belief, Defendants admit that Capitol Investments USA, Inc. Defendants admit that venue lies in this District. PARTIES, RELATED PERSONS AND RELATED ENTITIES

was a corporation organized under Florida law and that its principal place of business was in

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Miami-Dade County, Florida. On information and belief, Defendants assert that Nevin Shapiro was at all material times the principal, controlling shareholder, and officer of Capitol Investments USA, Inc. Shapiro was, in all dealings reported to Defendants or observed by them, the sole actor for Capitol. On information and belief, Defendants admit that before the fall of 2006 Miriam Menoscal may have been listed by Capitol, as president of Capitol, however Defendants did not observe her ever asserting or assuming this role and in 2006 Defendants were asked to memorialize her resignation, which they were told took place in 2005. In the fall of 2006, Defendants were advised that Menoscal had been a 10% shareholder until 2005. In the fall of 2006, they were asked to memorialize her lack of ownership. Defendants are without information sufficient to admit or deny the accuracy of claims of her ownership, title and role, or the reasons for Menoscal’s resignation, which they were advised had occurred in 2005. The remaining allegations of paragraph 3 are denied. 4. On information and belief, Defendants admit that Pink Panther Enterprises, LLC

("Pink Panther") was a limited liability company organized under the laws of the State of Florida, with its principal place of business in Miami-Dade County, Florida. On information and belief, Defendants deny that Pink Panther held title to the Yacht. Defendants are without information sufficient to admit or deny the remaining allegations of Paragraph 4, except that they admit that the Pink Panther bankruptcy was substantively consolidated into the Capitol bankruptcy. 5. Defendants are without information or belief sufficient to admit or deny the

allegations of paragraph 5, except that they admit that JAT was substantively consolidated into the Capitol bankruptcy.

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B.

The Plaintiff 6. 7. On information and belief, Defendants admit the allegations of paragraph 6. Defendants admit that Tabas purports to be the assignee of the claims, if any, of

the persons and entities noted. C. The Defendants and Related Non-Parties 8. Admitted that Defendant Shook, Hardy & Bacon, L.L.P. (“SHB”) is a national

law firm organized as a Missouri limited liability limited partnership with various offices, including an office in downtown Miami, Florida. Otherwise, the allegations of Paragraph 8 are immaterial and Defendants move to strike them. 9. Admitted that Defendant Marc Levinson (“Levinson”) is a resident of Miami-

Dade County, Florida and was from 2003 to the present an attorney at SHB who worked out of the downtown Miami, Florida office. Admitted that Levinson’s practice concentrated on tort litigation issues and procedures. Admitted that Levinson and Shapiro were close friends from middle school to 2003. Admitted that Levinson, albeit at the request of Shapiro and with Shapiro’s full awareness of the concentration of his practice, agreed to represent Shapiro and later Capitol on specific matters. To the extent the Complaint alleges actions or omissions in Levinson’s role as a lawyer, for which he received no benefit independent of his employment with SHB, admitted that Levinson acted within the course and scope of his employment at SHB. Denied that such acts benefitted SHB, in that SHB was defrauded by Shapiro, who controlled the representation, and by his employees. 10. Admitted that the Supervising Attorney was employed by SHB in its Miami office

and that he provided supervision of the legal work from November 2005 to July 2008, when he left SHB and joined another firm. Denied that such acts benefitted SHB, in that SHB was

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defrauded by Shapiro who controlled the representation and by his employees. Otherwise, the allegations of paragraph 10 are denied. 11. Admitted that the partner referred to is employed by SHB in its Miami office,

with experience in various areas of the law with particular concentration on litigation matters. Denied that the alleged acts benefitted SHB, in that SHB was defrauded by Shapiro who controlled the representation and by his employees. Otherwise, the allegations of paragraph 11 are denied. III. A. GENERAL ALLEGATIONS

Capitol and Shapiro Bankruptcy 12. 13. Admitted. Admitted that Tabas was appointed as interim Trustee in the referenced cases.

Otherwise, Defendants are without information or belief sufficient to admit or deny the remaining allegations. 14. 15. 16. B. Admitted. Admitted. Admitted.

Claims 17. Admitted that Tabas purports to assert claims on behalf of the Capitol Estate and

that he has apparently obtained assignment agreements from various persons. 18. Admitted that the claims the Trustee purports to bring are related because they

arise out of a common nucleus of operative facts. As to how proceeds, if any, of this litigation will be handled, Defendants are without information or belief sufficient to admit or deny the allegations. Otherwise the allegations of paragraph 18 are denied.

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19. C.

Denied.

Capitol’s Business 20. Capitol represented to SHB and Levinson that it was in the grocery brokerage

business. On information and belief, Defendants admit that at least some of the Assignors apparently lent money to Capitol. Otherwise, Defendants are without information or belief sufficient to admit or deny the remaining allegations of paragraph 20. 21. Defendants are without information or belief sufficient to respond to the

allegations of this paragraph. 22. Defendants were told by Capitol, Shapiro and Torres that Currie operated a

grocery diversion business and borrowed money from Capitol and Shapiro, as well as others, to finance his business. Otherwise, Defendants are without information or belief sufficient to respond to the allegations of this paragraph. 23. Defendants were told by Capitol, Shapiro, and Torres that Currie operated China

Glass as alleged in paragraph 23. 24. 25. On information and belief, admitted. Defendants are without information or belief sufficient to respond to the

allegations of paragraph 25. 26. Defendants are without information or belief sufficient to respond to the

allegations of paragraph 26. 27. On information and belief, the allegations of the first sentence of paragraph 27 are

admitted. Defendants are without information or belief sufficient to admit or deny the allegations of the second sentence. At various times, Capitol through Shapiro and Torres told SHB that the Currie entities owed Capitol and Shapiro different sums.

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28.

On information and belief admitted. The document speaks for itself, and

Defendants are without knowledge as to whether the statements in the document are true. 29. On information and belief, Defendants admit the allegations of the first sentence

of paragraph 29. Defendants are without information or belief sufficient to respond to the remaining allegations of paragraph 29. D. The Collapse of Capitol 30. Defendants are, and were at the time, without sufficient information or belief to

respond to the allegations of paragraph 30. 31. Defendants are without information or belief sufficient to respond to the

allegations of paragraph 31, other than to admit that certain alleged creditors of Capitol and Shapiro brought bankruptcy proceedings against Capitol and Shapiro. 32. Defendants are without information or belief sufficient to allow them to respond

to the characterizations in paragraph 32. Defendants admit that a Trustee was appointed at the request of some creditors. 33. 34. Admitted. Admitted that Shapiro pleaded guilty to certain charges in the New Jersey

criminal action. His plea speaks for itself. 35. Defendants are without information or belief sufficient to respond to allegations

about what these persons or entities knew or as to the accuracy of the statements they are alleged to have been unaware of. 36. On information and belief, Defendants assert that Menoscal pleaded guilty to and

was convicted of fraud in connection with her own criminal activities in the grocery business. On information and belief, denied that Menoscal had either the will or power to stop any of

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Shapiro or Capitol’s conduct at any relevant time nor would she have reported him to the authorities unless for her own benefit. On information and belief, Defendants allege that Menoscal was operating her own business in a fraudulent and criminal manner. E. Levinson’s Close Personal Relationship with Shapiro 37. Denied. Admitted that Levinson and Shapiro grew up on Miami Beach and were

close friends from middle school through 2003. 38. Admitted that Levinson and Shapiro played in the same soccer league in

childhood and that from time to time when Levinson and Shapiro were still in school, Shapiro spent the night or several nights at Levinson’s. Otherwise, denied. 39. Admitted that Shapiro spent time with Levinson’s family and was friendly with

them through their school years. Otherwise denied. 40. Admitted that Levinson and Shapiro were friends in high school with each other

and a group of other young men on Miami Beach. On information and belief, admitted that Sheppard and Shapiro did business together when they were both adults. 41. friend.” 42. 43. 44. 45. 46. As to the period from 2003 to 2009, denied. Denied. Denied. At one time, Levinson asked Shapiro to arrange a loan for him. Otherwise denied. Admit that Shapiro arranged a loan for Levinson through Bradley, which Admitted, except as to the characterization of Shapiro as Levinson’s “best

Levinson has not repaid. Otherwise denied. 47. Denied.

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48.

Denied. Shapiro provided Levinson with Miami Heat tickets twice and with UM

football tickets fewer than five times over a several year period.1 Admitted that Shapiro was on the sidelines on one occasion when Levinson attended the game using tickets provided by Shapiro. 49. Shapiro hosted Levinson and his wife at one party Shapiro hosted on the yacht

and one dinner. Shapiro invited Levinson and his wife to one or two other parties. The characterizations and implications of the remainder of paragraph 49 are denied. 50. 51. F. Denied. Denied.

The Beginning of SHB’s Relationship with Shapiro 52. Admitted that Shapiro was an avid sports fan and a UM Booster. Defendants are

without information or belief sufficient to respond to the remaining allegations of this paragraph. 53. Admitted that in January 2003, Shapiro asked SHB to provide limited

representation in connection with the acquisition of Axcess. Otherwise denied. 54. 55. 56. Denied. Denied. Admitted that Levinson attended some parties that Shapiro arranged and hosted.

Defendants are without information or belief sufficient to respond to allegations as to “all” of Shapiro’s parties. Otherwise denied. 57. Denied. Shapiro advised SHB that he was not retaining the firm to address student

athlete issues or agent/recruitment issues, as such issues would be addressed by Axcess.

Throughout the Complaint, references to athletes are unclear. When the Complaint uses the term “student athletes or “UM Athletes” Defendants have interpreted it to mean athletes who still retained amateur status.

1

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58.

Denied. SHB performed limited research into the issue before Shapiro advised

that those issues were being addressed by others and he would not retain the firm to analyze or advise on them. SHB did not reach conclusions on the issues. 59. Admitted that SHB was retained on specific tasks that did not include giving

advice on student athlete or athletic agent issues and it did not give advice on these issues. 60. Admitted that a true and correct copy of the retainer agreement is attached as

Exhibit 3. The document speaks for itself. The remaining allegations and characterizations are denied. 61. 62. Admitted. Denied. SHB Advises Shapiro in Relation to Illegal Payments to UM Athletes 63. 64. 65. party. Denied. Denied. Denied, and specifically denied that the described party was Levinson’s bachelor

66. 67. 68. 69. 70.

Denied. Denied. Denied as characterized. Denied. Admitted that SHB attended some Axcess board or other meetings on Shapiro’s

behalf and that Shapiro did not attend all of the meetings. Otherwise denied. 71. 72. Denied. Denied. 9

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73.

Admitted that Levinson represented Vilma, a former UM athlete, in 2008. All

other allegations of paragraph 73 are denied. 74. 75. Denied. Admitted that the meeting took place and that the partial recitation of the notes is

accurate. Otherwise denied. 76. 77. 78. 79. 80. 81. Denied. Admitted that the partial recitation of the email is accurate. Otherwise denied. Admitted that the partial recitation of the memo is accurate. Otherwise denied. Admitted that the partial recitation of the email is accurate. Otherwise denied. Denied. Admitted that Levinson had limited communications concerning a possible

foundation but otherwise denied. 82. 83. Denied as characterized. SHB admits that the checks for its legal fees were drawn on Capitol’s accounts.

Otherwise, denied. G. SHB Expands its Retention 84. Admitted that after the Axcess acquisition, Shapiro asked SHB to take on

additional specific tasks or to assist with specific issues. However, Shapiro and Capitol continued to use other lawyers at other firms. Admitted that Levinson prepared Exhibit 5, but denied that it was prepared as described. The remaining allegations/characterizations are denied. 85. Admitted that the letter was drafted, but the remaining allegations and

characterizations are denied.

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86.

Denied that Exhibit 6 was provided with SHB’s information and consent.

Otherwise, Defendants are without knowledge sufficient to respond to the allegations of paragraph 86. 87. Denied that SHB became “de facto” or actual general counsel. SHB was retained

to provide advice or services with respect to specific issues at specific times. Denied that its services were expansive. As characterized, the allegations of paragraph 87 are denied. 88. 89. 90. 91. Denied. Denied. Denied. Defendants are without knowledge as to whether this email was sent to Dorne,

admit that they received a copy of it, and deny that the contents of the email were discussed. Defendants admit that in fall 2006, they were asked to memorialize Mimi’s prior separation from Capitol. 92. Admitted that SHB received the email from Torres, but denied that Capitol asked

it to undertake all the tasks. All remaining allegations/characterizations are denied. 93. 94. 95. Denied as characterized. Denied as characterized. Admitted that Levinson sent the email, which speaks for itself. The

characterization is denied. 96. Admitted that Levinson prepared a 9/27/06 to do list. That document speaks for

itself. Denied that Levinson was ever able to actually obtain the information. All remaining allegations are denied.

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97.

Admitted that SHB suggested that Torres needed help to get Capitol’s records and

accounting in order and with Gero interviewed a candidate to help with bookkeeping. 98. Admitted that Levinson transmitted the corporate record changes to the Florida

Division of Corporations, but denied that Menoscal’s resignation was effective when the document was filed. See Fla. Stat. Sec. 607.0842(1). 99. Admitted that SHB prepared a draft employment agreement and revised a form

promissory note provided by Shapiro. 100. Admitted.

Capitol Enters Crisis Mode and Begins Operating a Full Blown Ponzi Scheme 101. On information and belief, based on statements by Shapiro and Torres, the

allegations of the first sentence are admitted. The allegations of the second sentence are admitted. 102. SHB assisted Shapiro to locate brokers for the yacht from time to time and

provided Shapiro with some contacts relating to Bahamas property. Otherwise, SHB is without knowledge sufficient to respond to the allegations of paragraph 102. 103. 104. Denied. Admitted that Levinson spoke to Williams about documentation relating to the

loans, but otherwise denied. 105. Admitted that Levinson revised these documents to conform to the arrangements

he was told had been made. 106. 107. The document speaks for itself. Defendants are without knowledge sufficient to respond to the allegation as to

Williams’ commission or as to how the loan was closed. Denied that Levinson instructed anyone

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on how the loan was to be closed. Admitted that Levinson transmitted the documents for execution. 108. Admitted that Levinson received a copy of this email. Defendants are without

knowledge as to the accuracy of Mr. Torres’ statements, but at the time they understood him to be posturing with Currie. 109. Denied that SHB knew or believed that Capitol was in a “financial crisis.”

Admitted that it appeared Currie would not repay loans in full. 110. Admitted that Levinson sent the inquiry and received the response. Defendants

are without information sufficient to admit or deny the accuracy of Torres’ statements as to the amounts due from Currie or his businesses, although they believed them at the time. 111. 112. 113. Admitted that the email was sent. Denied. Admitted that the partial quotation of the email is accurate, but the

characterization is denied. 114. 115. 116. Denied. Admitted that the email was sent. Otherwise denied. As to all allegations of SHB’s knowledge, denied. Admitted that Supervising

Attorney introduced Shapiro to another client in connection with a project. Otherwise, Defendants are without knowledge or belief sufficient to respond to the remaining allegations. 117. 118. H. Admitted that the email was sent. Otherwise, denied. Denied as characterized.

SHB Refers Shapiro to Securities Counsel 119. Denied.

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120. 121. 122. 123. 124. 125. 126.

Denied. Denied. Denied. Admitted that the memorandum was received. Otherwise, denied. Denied. Admitted that Levinson sent the email. Otherwise, denied. Denied. Levinson and Supervising Attorney advised Capitol to seek additional

analysis from counsel concentrating in transactional securities issues. 127. 128. Denied. SHB did not undertake further representation on the securities issue. Instead, it

referred Capitol to another law firm and Capitol delayed seeking or implementing securities counsel’s advice. Otherwise, denied. 129. 130. 131. 132. 133. denied. 134. 135. 136. Denied. Denied. Defendants are without information or belief sufficient to respond to the Admitted. Admitted. Denied. Denied. Admitted that the meeting occurred and the quoted advice was given. Otherwise,

allegations of ¶136. 137. Denied.

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138. 139. 140.

Denied. Admitted that SHB received a copy of this memo which speaks for itself. Denied.

Levinson Refers Shapiro to Criminal Counsel 141. 142. denied. 143. Admitted that Lewis and Tein gave Levinson a used Cartier watch. Defendants Admitted that SHB referred Shapiro to Lewis and Tein. Otherwise, denied. Admitted that Lewis and Tein had previously been partners at SHB. Otherwise,

are without information or belief as to Shapiro’s knowledge sufficient to respond to the allegation. Otherwise, denied. 144. Denied that Shapiro reported any of the statements alleged in paragraph 297 to

Levinson or SHB. Otherwise, Defendants are without knowledge or information sufficient to respond to the allegations as to what Shapiro told Lewis & Tein or whether his statements were truthful. 145. 146. 147. 148. Denied. On information and belief, admitted. Admitted. Defendants are without information or knowledge sufficient to respond to whether

these observations or the report of them were made at the time alleged or were accurate. 149. Defendants are without information or knowledge sufficient to respond to whether

these observations or the report of them were made at the time alleged or were accurate. 150. Admitted that Levinson was at Lewis & Tein’s office briefly on May 3, 2007, but

otherwise denied.

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151.

Admitted that Torres sent this email. Otherwise, Defendants are without

sufficient information or belief to respond to allegations about Torres’ state of mind or motivation. 152. 153. denied. 154. 155. 156. Admitted. The transcript of the 341 meeting speaks for itself. Admitted that the email was sent. Denied that this email was “in connection with Denied. Admitted that Currie did not list Capitol as a personal creditor. Otherwise,

the potential criminal investigation.” 157. Defendants are without information or belief sufficient to respond to the

allegations of the first sentence. Denied that Shapiro reported to Levinson. Admitted that Defendants sent materials relating to Currie to Lewis Tein and otherwise denied. 158. On information and belief, admitted that Shapiro retained Lewis Tein in

connection with the La Bamba investigation, but otherwise Defendants are without information or belief sufficient to respond to the allegations of this paragraph. 159. 160. 161. 162. Denied. Admitted that the email was sent. Otherwise, denied. Admitted. On information and belief, the allegations of the first two sentences are admitted.

The allegations of the third sentence are denied. 163. Admitted.

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164.

Admitted that Levinson repeated this remark as made by the accountant about the

deduction issue and otherwise denied. 165. 166. 167. allegations. 168. Admitted that the letter was received. Defendants are without information or Admitted that Torres made these statements. Otherwise denied. Admitted. Defendants are without information or belief sufficient to respond to these

belief sufficient to respond as to its accuracy. 169. allegations. 170. allegations. 171. 172. 173. I. Denied. Denied. Admitted that Torres made those statements. The statements are denied. Defendants are without information or belief sufficient to respond to these Defendants are without information or belief sufficient to respond to these

SHB Assists Capitol in its Securities Violations

SBC07 Loan 174. 175. allegations. 176. allegations. Defendants are without information or belief sufficient to respond to these Denied. Defendants are without information or belief sufficient to respond to these

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177. allegations. 178. 179. 180. allegations. 181. 182. allegations. 183. allegations. 184. 185. 186. 187.

Defendants are without information or belief sufficient to respond to these

Denied. Denied. Defendants are without information or belief sufficient to respond to these

Denied. Defendants are without information or belief sufficient to respond to these

Defendants are without information or belief sufficient to respond to these

Denied. Denied. Denied. Admitted that Levinson had some communications about loan documents with

Jarol in the fall of 2007. Otherwise, Defendants are without information or belief sufficient to respond to these allegations. 188. 189. 190. 191. 192. 193. The document speaks for itself. Denied. Denied. The document speaks for itself. Denied. Denied.

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194. 195. 196. 197. 198. 199. 200. 201. 202. 203.

The document speaks for itself. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Admitted that there was a brief conference on that date, otherwise denied. Admitted that Levin communicated with Levinson about a line of credit;

otherwise denied. 204. 205. Admitted. Admitted that Levinson drafted the agreement and sent it with the described

email. Otherwise, Defendants are without information or belief sufficient to respond to these allegations. 206. Admitted that Supervising Attorney reviewed and commented on the form of the

Bradley LOC to the extent it was completed on that date. Otherwise denied. 207. 208. 209. 210. 211. 212. The document speaks for itself. Denied. Denied. Denied. Denied. Denied.

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213. 214. 215.

Denied. Admitted. Admitted that Levinson forwarded the draft to Shapiro on that date for his

approval. Otherwise denied. 216. 217. 218. 219. 220. allegations. 221. 222. 223. 224. allegations. 225. 226. 227. 228. 229. 230. 231. 232. Denied. Denied, except that Levinson did email and telephone with Levin about the draft. The document speaks for itself. Denied. Denied. Denied. Denied. Denied. Admitted. Denied. Admitted. Defendants are without information or belief sufficient to respond to these Denied. Denied. Denied. Denied. Defendants are without information or belief sufficient to respond to these

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233. 234. 235. denied. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245.

Denied. Denied. Admitted that Jarol sent the letter and Levinson received a copy. Otherwise

Denied. Admitted that the communications took place. Otherwise denied. Admitted. Admitted. Admitted. Admitted. Admitted that the communications took place. Otherwise denied. Admitted. Admitted that the communications took place. Otherwise denied. Admitted that the emails between Levinson and Shapiro were sent. Otherwise

Defendants are without information sufficient to respond to the allegations of this paragraph. 246. J. Denied.

SHB Negligently Advises Capitol in Settlement with Kallman 247. 248. On information and belief, admitted. The document speaks for itself. Otherwise, Defendants are without information

or belief sufficient to respond to these allegations. 249. 250. allegations. The document speaks for itself. Defendants are without information or belief sufficient to respond to these

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251. allegations. 252. 253. 254. allegations. 255. 256. allegations. 257. allegations. 258. allegations. 259. 260. 261. 262. 263. 264. 265.

Defendants are without information or belief sufficient to respond to these

Denied as characterized. Denied as characterized. Defendants are without information or belief sufficient to respond to these

The document speaks for itself. Defendants are without information or belief sufficient to respond to these

Defendants are without information or belief sufficient to respond to these

Defendants are without information or belief sufficient to respond to these

Admitted. The document speaks for itself. Admitted. Denied. Denied. Denied as characterized. Admitted that Levinson advised Shapiro and Capitol to sign the Settlement

Agreement memorializing terms he was advised Shapiro had agreed to with Kallman. Otherwise, the document speaks for itself. 266. The document speaks for itself.

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267. 268. 269. 270. 271. 272. 273.

The document speaks for itself. The document speaks for itself. Admitted. On information and belief, admitted. Denied. Denied. Denied. COUNT 1 NEGLIGENCE (DIRECT CLAIMS – SHB AND LEVINSON)

274.

Defendants reassert their responses to paragraphs 1 through 6, 8 through 10, 12

through 17, 20 through 32, 37 through 51 and 247 through 273 as though fully set forth herein. 275. Admitted that as to matters within the scope of its engagement, SHB owed

Capitol certain legal duties. 276. Denied that SHB negotiated the agreement or advised Capitol and Shapiro as to

the advisability of entering into the agreement. Admitted that SHB drafted or revised the agreement based on terms Shapiro had negotiated. All remaining allegations are denied. 277. 278. Denied. Denied. COUNT 2 NEGLIGENT SUPERVISION AND CONTROL (DIRECT CLAIMS – SHB) 279. Defendants reallege their responses to paragraphs 1 through 6, 8 through 10, 12

through 17, 20 through 32, 37 through 51 and 247 through 273 as though fully set forth herein.

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280.

This paragraph contains purely legal conclusions, without any factual statements,

and therefore Defendants are not required to admit or deny it. 281. SHB did not assign Levinson to the work for Capitol. Shapiro chose Levinson as

counsel for himself and Capitol, with full knowledge that the work he was requesting was outside the concentration of Levinson’s practice. SHB assigned a competent lawyer with substantial corporate experience to supervise him and to do much of the work. 282. Denied. Shapiro chose Levinson, and Supervising Attorney had the requisite

experience and knowledge to undertake and/or supervise the work. 283. 284. 285. Denied. Denied. Denied. COUNT 3 AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (ALL ASSIGNED CLAIMS – SHB AND LEVINSON) 286. forth herein. 287. Shapiro’s duties both to Capitol and to its lenders are established by law. In Defendants reassert their responses to paragraphs 1 through 246 as if fully set

addition, any duties owed to the individual Assignors may have varied depending on the time at which the Assignor’s loans were made, the financial status of Capitol at the time, and the relationship Shapiro entered into with each Assignor or the representations he made to each. To the extent that these allegations overstate or misstate the duties, they are denied. 288. 289. 290. Denied. Denied. Denied.

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291. 292. 293.

Denied. Denied. Denied. COUNT 4 AIDING AND ABETTING FRAUD (All ASSIGNED CAIMS – SHB & LEVINSON)

294. forth herein. 295.

Defendants reassert their responses to paragraphs 1 through 246 as if fully set

On information and belief, based on his guilty plea, Defendants admit that

Shapiro was, at some times, operating a scheme to defraud. Otherwise denied. 296. 297. Denied. Denied that Shapiro reported any of the statements alleged in paragraph 297 to

Levinson or SHB. Otherwise, Defendants are without knowledge or information sufficient to respond to the allegations as to what Shapiro told Lewis & Tein or whether his statements were truthful. 298. Defendants are without information or knowledge sufficient to respond to whether

these observations or the report of them were made at the time alleged or were accurate. 299. Defendants are without information or knowledge sufficient to respond to whether

these observations or the report of them were made at the time alleged or were accurate. 300. Admitted that Levinson was briefly at the Lewis Tein office on May 3, 2007.

Otherwise denied. 301. 302. 303. Denied. Denied. Denied.

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304. 305.

Denied. This paragraph contains pure statements of rules and does not contain any factual

statements as to which Defendants are required to respond. 306. This paragraph contains pure statements of rules and does not contain any factual

statements as to which Defendants are required to respond. 307. 308. 309. 310. 311. Denied. Denied. Denied. Denied. To the extent acts and omissions are alleged from January 2003 to early 2009, that

are within the scope of the engagement as lawyers, rather than as to benefits independent of their employment, admitted. COUNT 5 AIDING AND ABETTING FRAUD (BRADLEY LENDERS’ ASSIGNED CLAIMS – SHB AND LEVINSON) 312. forth herein. 313. On information and belief, based on his guilty plea, Defendants admit that Defendants reassert their responses to paragraphs 1 through 246 as if fully set

Shapiro was, at some times, operating a scheme to defraud. Otherwise denied. 314. 315. Denied. Denied that Shapiro reported any of the statements alleged in paragraph 297 to

Levinson or SHB. Otherwise, Defendants are without knowledge or information sufficient to respond to the allegations as to what Shapiro told Lewis & Tein or whether his statements were truthful.

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316.

Defendants are without information or knowledge sufficient to respond to whether

these observations or the report of them were made at the time alleged or were accurate. 317. Defendants are without information or knowledge sufficient to respond to whether

these observations or the report of them were made at the time alleged or were accurate. 318. 319. 320. 321. 322. 323. Denied as set forth above. Denied. Denied. Denied. Denied. This paragraph contains pure statements of rules and does not contain any factual

statements as to which Defendants are required to respond. 324. This paragraph contains pure statements of rules and does not contain any factual

statements as to which Defendants are required to respond. 325. 326. 327. 328. 329. Denied. Denied. Denied. Denied. To the extent acts and omissions are alleged from January 2003 to early 2009, that

are within the scope of the engagement as lawyers, rather than as to benefits independent of their employment, admitted.

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COUNT 6 FRAUDULENT MISREPRESENTATION (BRADLEY LENDERS’ ASSIGNED CLAIMS – SHB AND LEVINSON) 330. forth herein. 331. 332. 333. 334. Denied. Denied. Denied. Defendants are without knowledge of Jarol’s “investigation” but are aware that Defendants reassert their responses to paragraphs 1 through 246 as if fully set

they were asked no questions about their representation of Capitol or their knowledge of Capitol and made no representations that could have formed a basis for an opinion as to Capitol or SHB’s role with Capitol. Therefore, denied. 335. 336. 337. 338. 339. Denied. Denied. Denied. Denied. Denied.

COUNT 7 NEGLIGENT MISREPRESENTATION (BRADLEY LENDERS’ ASSIGNED CLAIMS – SHB AND LEVINSON) 340. forth herein. 341. 342. 343. Denied. Denied. Denied. Defendants reassert their responses to paragraphs 1 through 246 as if fully set

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344. 345.

Denied. Defendants are without knowledge of Jarol’s “investigation” but are aware that

they were asked no questions about their representation of Capitol or their knowledge of Capitol and made no representations that could have formed a basis for an opinion as to Capitol or SHB’s role with Capitol. Therefore, denied. 346. 347. 348. 349. 350. Denied. Denied. Denied. Denied. Denied.

COUNT 8 VIOLATION OF SECTION 10(b) OF THE SECURITIES EXCHANGE ACT OF 1934 AND RULE 10b-5 (BRADLEY LENDERS’ ASSIGNED CLAIMS – SHB AND LEVINSON) 351. forth herein. 352. 353. 354. 355. Denied. Denied. Denied. Defendants are without knowledge of Jarol’s “investigation” but are aware that Defendants reassert their responses to paragraphs 1 through 246 as if fully set

they were asked no questions about their representation of Capitol or their knowledge of Capitol and made no representations that could have formed a basis for an opinion as to Capitol or SHB’s role with Capitol. Therefore, denied. 356. 357. Denied. Denied. 29

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358. 359. 360.

Denied. Denied. Denied.

COUNT 9 VIOLATION OF SECTION 20(A) OF THE SECURITIES EXCHANGE ACT OF 1934 (JAROL ASSIGNED CLAIMS – SHB) 361. forth herein. 362. 363. 364. 365. 366. Admitted. Denied. Denied. Denied. Denied. SHB conducted a limited amount of research and an associate drafted a Defendants reassert their responses to paragraphs 1 through 246 as if fully set

brief memo which made it clear that what Capitol wanted to know required expertise both to address and to implement. SHB did bill Capitol for the limited work it did, and advised Capitol to retain other counsel to complete the analysis. 367. SHB had not concluded that Capitol was violating the securities laws, but advised

Capitol to consult with counsel whose practice concentrated in transactional securities work. 368. 369. 370. 371. 372. Denied. Denied. Denied. Denied. Denied that SHB negotiated the agreements or gave final approval. Denied that

SHB knew of the material misrepresentations its client made, if any.

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373. 374. 375. 376. 377. 378. 379. 380.

Denied. Denied. Denied. Denied. Denied. Denied. Denied. Admitted that Levinson earned a small bonus for Capitol’s retention as a client.

Otherwise denied. 381. Denied.

COUNT 10 AVOIDANCE AND RECOVERY OF FRAUDULENT TRANSFERS PURSUANT FLA. STAT. §§ 726.105(1)(a), 726.108 and 726.109 (DIRECT CLAIMS – SHB) 382. forth herein. 383. Admitted that SHB billed Capitol and Shapiro for fees and fees were paid by Defendants reassert their responses to paragraphs 1 through 246 as if fully set

check drawn on Capitol’s accounts. Otherwise, denied. 384. 385. 386. 387. 388. Denied. Denied. Denied. Denied. Denied.

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COUNT 11 AVOIDANCE AND RECOVERY OF FRAUDULENT TRANSFERS PURSUANT TO FLA. STAT. §§ 726.105(1)(b), 726.108 and 726.109 (DIRECT CLAIMS – SHB) 389. forth herein. 390. Admitted that SHB billed Capitol and Shapiro for fees and fees were paid by Defendants reassert their responses to paragraphs 1 through 246 as if fully set

check drawn on Capitol’s accounts. Otherwise, denied. 391. 392. 393. 394. 395. 396. On information and belief, admitted. Denied. Denied. Denied. Denied. Denied.

COUNT 12 AVOIDANCE AND RECOVERY OF FRAUDULENT TRANSFERS PURSUANT TO FLA. STAT. §§ 726.105(1)(b), 726.108 and 726.109 (DIRECT CLAIMS – SHB) 397. forth herein. 398. 399. 400. 401. 402. 403. Denied. Denied. Denied. Denied as characterized. Denied. Denied as characterized. Defendants reassert their responses to paragraphs 1 through 246 as if fully set

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404.

Denied. JURY DEMAND

405.

All allegations not specifically admitted are denied. DEFENSES

1. a.

Statute of Limitations: The Trustee’s claims in Count I are barred by the statute of limitations, as the

settlement with Bears Investments and Kallman was completed and damage, if any, suffered in 2006. The statute of limitations for legal malpractice is two years. Thus, the claim was barred before the bankruptcy was commenced in November 2009. b. It is likely that any claims for negligent supervision are barred by the statute of

limitations, although it is not possible to tell from the face of the complaint when the acts or omissions alleged actually occurred or resulted in damage. Nonetheless, this claim sounds in legal negligence or malpractice and is governed by a two year statute of limitations. Any claims for actions or omissions prior to November 9, 2007 were barred at the time the bankruptcy was filed. Any claims that accrued between November 9. 2007 and September 21, 2009 are barred. As the SHB and Levinson representation of Capitol and Shapiro ended before September 2009, all claims of the Trustee are barred. c. The claims for federal securities violations are barred by the statute of limitations,

being commenced more than one year after the Assignors did or should have discovered the underlying alleged wrongs. In addition, any claims for securities or exchange violations were required to be brought no later than three years after the “sale” of the security. It is difficult to tell from the face of the Complaint when these “sales” are alleged to have occurred, but at a

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minimum all claims under the Federal Securities or Exchange laws are barred as to “sales” alleged that were completed by September 21, 2008. d. Any claims of Assignors that accrued before September 21, 2007 which are

governed by a four year statute of limitations are barred. Any claims of assignors that accrued before September 21, 2008 which are governed by a three year statute of limitations are barred. Any claims of assignors that accrued before September 21, 2009 which are governed by a two year statute of limitations are barred. Any claims of assignors that accrued before September 21, 2010 which are governed by a one year statute of limitations are barred. The Assignors were on notice at varying times, but no later than November 2009, that they might have causes of action, depending on circumstances which the Defendants are at present unaware of. 2. The Trustee lacks standing to prosecute the Assigned Claims, as the Assignors

retained interests in the outcome of the claims and the claims are personal to the Assignors and cannot be assigned. 3. Capital, through Shapiro and Torres, actively concealed information from

Defendants, misrepresented their business activities, and engaged in fraud against Defendants. Thus claims by Capital are barred and Defendants cannot be liable to the assignors or assignees. 4. The Trustee’s claim for negligent supervision fails to state a cause of action, in

that it does not allege any acts that harmed Capitol Investments, fails to assert what specific acts of employees are alleged to have resulted in damage to Capitol Investments, and fails to allege how SHB failed to supervise specific acts or omissions of its employees. 5. As to Count I, Defendants are entitled to an offset for sums recovered from Bears

Investments or Robert Kallman. The alleged injuries Debtors and/or the Assignors sustained, if any, were not the result of any act or omission on the part of Defendants but, instead, resulted

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from acts or omissions in whole or in part by other parties and unnamed third parties, including, but not limited to: Nevin Shapiro, Jacki Gero, Morris & Brown, Lewis & Tein, PL, Michael Tein, Miriam Menoscal, Roberto Torres, Alejandro Torres, Sherwin Jarol, Eric Sheppard, Jack Williams, Craig Currie, CraigCo., China Glass, William Bradley, and all persons or entities against whom the Trustee has asserted claims or who have asserted claims against the Estate. Defendants cannot be held liable for any portion of Plaintiff’s or the Assignors’ alleged injuries caused by those persons or entities. 6. 7. Defendants are entitled to an offset for all sums recovered by the Trustee. Defendants are entitled to an offset or reduction of damages for all forgiveness of

debt or settlement of debt accomplished by the Trustee or otherwise. The Assignors may not recover claims or damages they have waived, settled, extinguished, excused or otherwise agreed not to seek from the Estate. 8. The alleged injuries complained of by Plaintiff, if any, were caused or contributed

to by the misconduct, lack of due diligence, and/or negligence of the Debtors and Assignors themselves. Accordingly, to the extent that the Trustee, standing in the shoes of the Debtor and the Assignors, is entitled to any recovery from Defendants, which it is not, such recovery should be barred and/or reduced as a result of the Debtors’ and the Assignors’ comparative fault. 9. Any injury allegedly suffered by the Debtors or the Assignors was caused by the

intervening acts or omissions of persons other than Defendants, and said acts or omissions superseded any action or omission of Defendants for which they might be considered liable. 10. Plaintiffs’ claims are barred in whole or in part because he stands in the shoes of

the Debtors and Assignors and is bound by all knowledge, actions, and omissions of the Debtors and Assignors. Plaintiff cannot bring any claims Debtors or Assignors could not bring and is

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subject to all defenses to which the Debtors and Assignors would be subject, including but not limited to the in pari delicto doctrine. 11. 12. The Debtors and Assignors failed to mitigate any damages they suffered, if any. Defendants deny that the Debtors suffered any injuries or that they are entitled to

recover any losses suffered by the lenders as a result of Defendants’ conduct. However, should the trier of fact determine that the Debtors sustained damages for which Defendants are responsible, then Defendants assert that such damages should be offset to the extent (i) the Trustee recovers funds from the Debtors’ lenders, or other parties, (ii) lenders received interest payments from the Debtors or other parties, and (iii) the lenders recover any of their alleged losses or release their claims. 13. Defendants deny that the Assignors suffered any injury or that the Trustee is

entitled to recover any losses on their behalf as a result of Defendants’ conduct. However, should the trier of fact determine that the Assignors sustained damages for which Defendants are responsible, Defendants assert that such damages should be offset to the extent (i) the Assignors received interest payments from the Debtors, (ii) the Assignors recover any of their alleged losses or release of claims against them, (iii) the Assignor’s bankruptcy claims were disallowed or reduced. 14. Defendants deny that the Debtors or Assignors suffered any injuries as a result of

Defendants’ conduct. However, should the trier of fact determine that they sustained damages for which Defendants are responsible, then Defendants assert such damages should be offset to the extent other persons or entities at fault may have settled, or may hereafter settle, claims asserted by the Trustee outside of this litigation.

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15.

Plaintiff’s claims are barred to the extent he seeks to recover on behalf of persons

who had notice of, participated in, approved, ratified, acquiesced in or profited from the matters alleged in the Complaint. 16. Plaintiff is estopped from pursuing the claims as a result of the Debtors and/or

Assignor’s own wrongful conduct. 17. The Debtors and/or Assignors perpetrated a fraud on Defendants and others and,

as intentional tortfeasors, are therefore barred from pursing these claims. 18. As to the claims of Capitol or Shapiro, the Trustee’s claims are barred by the

doctrine of in pari delicto. 19. On information and belief, all claims of the Bradley lenders are barred by the

doctrine of in pari delicto. Other assigned claims may also be subject to this defense. 20. Plaintiff’s claims for aiding and abetting fail to state a claim as an attorney cannot

be liable for aiding and abetting a client’s fraud. 21. All claims for misrepresentation fail to state a claim, as attorneys are not liable for

representations made by their clients in orally or written agreements. In addition to the extent any relief is sought for misrepresentations other than those assignors claim were in the loan documents, the Complaint fails to apprise Defendants of who made such statements, to whom they were made, when they were made, and their contents. Thus the Complaint fails to meet the requirements of Rule 9(b) or to state a claim based on misrepresentation. 22. If the Trustee seeks damages in his own right rather than as Assignee for

anything other than the Kallman settlement, he is seeking double recovery, which is barred.

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23.

The Complaint is riddled with immaterial, irrelevant allegations which are only

included for their embarrassing and salacious nature. Such allegations form the basis of no claims for relief and should be removed from the complaint. WHERFORE Defendants demand judgment in their favor on all claims together with an award of costs and such other and further relief as the Court deems just in the circumstances. Dated: January 25, 2013 Miami, Florida s/ Deborah S. Corbishley_________________ Richard H. Critchlow (Fla. Bar No. 155227) Deborah S. Corbishley (Fla. Bar No. 588229) Victoria J. Wilson (Fla. Bar No. 0092157) KENNY NACHWALTER, P.A. 201 South Biscayne Boulevard 1100 Miami Center Miami, Florida 33131-4327 Email: rcritchlow@knpa.com Email: dcorbishley@knpa.com Email: vwilson@knpa.com Telephone: (305) 373-1000 Facsimile: (305) 372-1861 Attorneys for Defendants Shook, Hardy and Bacon, LLP and Marc Levinson Respectfully submitted,

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 25, 2013, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

s/ Deborah S. Corbishley__________ Deborah S. Corbishley

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JOEL L. TABAS, in his capacity as both Chapter 7 Trustee of Capitol Investments USA, Inc. and as Assignee to the Claims of Bayside Capital Management, LLC, et al., v. SHOOK, HARDY AND BACON, L.L.P. and MARC LEVINSON, CASE NO.: 1:13-cv-20080-JEM

SERVICE LIST Gary M. Freedman, Esq. Andrea L. Rigali, Esq. TABAS FREEDMAN SOLOFF MILLER & BROWN, P.A. 14 Northeast First Avenue, Penthouse Miami, FL 33132 Telephone: 305-375-8171 Facsimile: 305-381-7708 Email: gary@tabasfreedman.com Email: andrea@tabasfreedman.com Secondary Email: jackie@tabasfreedman.com Secondary Email: janet@tabasfreedman.com Attorneys for Plaintiff Richard H. Critchlow Deborah S. Corbishley Victoria J. Wilson KENNY NACHWALTER, P.A. 201 South Biscayne Boulevard 1100 Miami Center Miami, Florida 33131-4327 Email: rcritchlow@knpa.com Email: dcorbishley@knpa.com Email: vwilson@knpa.com Telephone: (305) 373-1000 Facsimile: (305) 372-1861 Attorneys for Defendants Shook, Hardy and Bacon, LLP and Marc Levinson

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