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Supreme Judicial Court for the Commonwealth

FAR:

i

FAR-26395

Filed: 12/13/2018 3:13 AM

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

FAR-26395

H. CHRISTOPHER STARKEY, & another

Plaintiffs/Respondents

v.

CHASE HOME FINANCE, LLC & others

Defendants/Applicants

ON APPEAL FROM A JUDGMENT OF THE BARNSTABLE COUNTY SUPERIOR COURT

PLAINTIFFS-RESPONDENTS OPPOSITION TO DEFENDANTS-APPLICANTS APPLICATION TO OBTAIN FURTHER APPELLATE REVIEW

Dated: December 13, 2018

Glenn F. Russell, Jr. BBO# 656914 Glenn F. Russell, Jr. & Associates, P.C. 38 Rock Street, Suite 12 Fall River, Massachusetts 02720 (508) 324.4545 (telephone) (508) 938-0244 (fax)

russ45esq@gmail.com

ii

TABLE OF CONTENTS

I. INTRODUCTION AND PLAINTIFFS-RESPONDENTS CONCISE STATETMENT OF OPPOSITION TO DEFENDANTS-RESPONDENTS REQUEST FOR OBTANING FURTHER APPELLATE REVIEW

1

II. ARGUMENT WHY THE APPLICATION SHOULD BE DENIED, OR IN THE ALTERNATIVE, BE TAKEN UP TO CONSIDER THE CONSTITUTIONALITY OF THE “AS APPLIED” APPLICATION OF FIRREA’s JURISDICTIONAL BAR

7

A. Defendants-Applicants Cited Case Law Is Inapposite

7

B. Willner v. Dimon, 849 F.3d. 93 Is Also Distinguishable on The Facts

13

III. CONCLUSION

17

RULE 16(k)

19

STATEMENT CERTIFICATE OF SERVICE

20

iii

TABLE OF AUTHORITIES

STATE DECISIONS

McLaughlin v. FDIC, 415 Mass. 235 (1993)

9,10

 

FEDERAL DECSIONS

Bolduc v. Beal Bank, SSB,

 

994

F.Supp. 82 (D.NH 1992)

9

DeMelo v. U.S. Bank, Nat’l Ass’n,

727

F.3d 117 (1 st . Cir. 2017)

passim

In re Purcell,

 

150 B.R. 111 (D.Vt.1993)

9

Tellado v. IndyMac Mort. Servcs.,

707

F.3d 275 (3 rd . Cir. 2013)

11,12

Willner v. Dimon,

849 F.3d 93 (4 th Cir. 2017)

13,14,15,16,17

1

I. INTRODUCTION AND PLAINTIFFS-RESPONDENTS CONCISE STATETMENT OF OPPOSITION TO DEFENDANTS-RESPONDENTS REQUEST FOR OBTANING FURTHER APPELLATE REVIEW

Pursuant to

Mass.

R.

App.

P.,

R. 27.1(c),

Plaintiffs-Respondents herein respectfully submit their

Opposition to the Defendants-Applicants Application for

Further Appellate Review regarding the September 11,

2018 decision of the Massachusetts Appeals Court in H.

Christopher Starkey, et. al v. Chase Home Finance, LLC

& others, 94 Mass. App. Ct. 1 (2018).

Indeed,

Applicants

are

required

to

present

articulable reasons for the extraordinary relief sought

here, see Mass. R. App. P., R. 27.1(a):

“The

substantial reasons affecting the public interest or the interests of justice.” Mass. R. App. P.

27.1(a).”

Application “shall be founded upon

Thus, Defendants-Applicants bear the burden to show that

the case presents extraordinary special factors in order

to warrant further review. Defendants-Applicants have

clearly failed to meet that onerous burden. This matter

has had a long-lived, and extensive history, at the

Barnstable County Superior Court. Indeed, the preceding

is borne out by referencing the superior court docket

sheet, which reveals the fact that this matter was filed

2

with the Barnstable County Superior Court on November

20, 2009.

In its introduction, the Defendants-Applicants

frequently discuss the requirements of the Financial

Institution Reform, Recovery, and Enforcement Act

(FIRREA). 1 However, while Defendants-Applicants linger

much on the wording of said Federal Statute, and state

that “claims” relating to the “Failed Bank” (Washington

Mutual Bank or WaMu) fall under the jurisdictional bar

of FIRREA, they understandably also do not linger on the

fact that the instant matter raises significant issues

related to whether the Plaintiffs-Respondents note and

mortgage were actually an “owned asset” of WaMu at the

time of its Failure and takeover by the FDIC. Such

examination is critical as to whether Plaintiffs-

Respondents would even be subject to the jurisdictional

bar of FIRREA at all.

1 Indeed, the Defendants-Applicants have enlisted a blue-ribbon committee of Attorneys from the Firm “of last resort”, to submit the instant Application, including two of which clerked for United States Supreme Court Justices [one having clerked for two different Justices], another who also has extensive history of appearing before the United States Supreme Court (“SCOTUS”), as well as the fourth Attorney who has extensive history in a support role involving cases brought before the SCOTUS.

3

Putting the constitutional challenge aside, the

failure to establish the preceding would undeniably

preclude the application of FIRREA’s “jurisdictional

bar” to the instant fact pattern.

The well-reasoned and thoughtfully written opinion

by the Appeals Court makes this critical examination and

related distinction; finding that the proper remedy

would be for remand and discovery to reach these disputed

material factual issues under a fully developed record.

Understandably, Defendants-Applicants also do not

discuss the fact that despite the instant matter having

been litigated for almost five (5) years [at that time],

the same Defendants-Applicants filed a Motion to Dismiss

in September 2014, in which there was never any prior

mention of any claim of defense related to FIRREA, or

its jurisdictional bar. Thus, Plaintiffs-Respondents

were precluded from ever briefing this issue in any

Opposition

to

the

Defendants-Applicants

separate

12(b)(6) Motions. For unknown reasons, the trial court

also did not activate the recording system during the

hearing on Defendants-Applicants Motions to Dismiss. 2

Thus, at no time prior to the entry of judgment were the

2 The Trial Court Judge has since retired.

4

Plaintiffs-Respondents allowed to brief this issue, or

indeed competently respond, outside of the few words

associated at the oral argument after being blind-sided

by the handing up of the First Circuit ruling in DeMelo

v.

U.S. Bank,

Nat’l

Ass’n,

727

F.3d

117 (2013).

Defendants-Applicants completely ignore the 12 th Hour

ambush foisted upon Plaintiffs-Respondents, and its

associated impact related to receiving a fair hearing on

the merits.

To this end, FIRREA does not allow for providing a

borrower, such as the Plaintiffs-Respondents, with any

notice that unless they follow the “claims procedure”

under FIRREA through filing the same in Washington D.C.,

they would then become permanently precluded from ever

raising any “claim” against the Failed Bank. Thus, here,

the Superior Court Judge dismissed the Plaintiffs-

Respondents claims

on

the basis

of

a

“lack

of

jurisdiction”, whereby he found that because they did

not exhaust the claim procedure under FIRREA [of which

they

had

no

notice

of],

the

trial court

lacked

jurisdiction. 3 Similarly, as they did in the Appeals

Court, Defendants-Applicants, again seek to advance

3 Thus, supplying the necessary state action.

5

different theories under FIRREA for the first time on

appeal they what raised before the trial court, other

than merely handing up the DeMelo case during oral

argument at the trial court Motion to Dismiss. 4 5

Defendants-Applicants aver that

FIRREA

is

a

“critical federal banking statute to which nationwide

uniformity and prompt administration of a failed bank’s

assets are vital.” Indeed, while the preceding may be

true regarding

FIRREA,

its intersection with

a

borrower’s constitutional right to be heard has never

been squarely addressed by the United States Supreme

Court, or by this Court with regard to the Massachusetts

State Constitution. 6 Additionally, the entirety of case

4 Defendants Applicants also completely ignore the fact that FIRREA was enacted to protect assuming banks from “claims of creditors”. Thus, at the time of the 1989 enactment of this federal scheme, the “jurisdictional bar” of FIRREA never contemplated the “doomsday machine” devised by the financial industry “quants”, whereby under the “securitization paradigm” the originating “lender” [of a Failed Bank] was immediately divested of ownership of the mortgage loan “asset”, but yet remained the “mortgage servicer

5 For a good review and thorough examination of the “securitization process”, please review this Courts opinion in U.S. Bank Nat’l Ass’n. v. Ibanez, 458 Mass. 637 (SJC 2011), where undersigned successfully argued on behalf of the borrower mortgagor LaRace family, and continues to do so presently.

6 Indeed, DeMelo was never afforded such opportunity, yet this First Circuit ruling stands as a ticket for the well-heeled counsel of the financial industry to continue to evade review on this issue in the future.

6

law provided by the Defendants-Applicants in support of

the instant Application is easily distinguishable from

precise fact pattern presented here, and actually

supports the findings made in the well-reasoned opinion

written by the Appeals Court. Additionally, there is

also currently a split of authority relative to claims

raised in defense being subject to the jurisdictional

bar of FIRREA. The reasons above make clear why the

Defendants-Applicants legal team was formed. 7

This Court

likewise should Deny

the instant

Application, however, should this Court decide to take

this matter up on Further Appellate Review, it would

have

to

consider

the

Plaintiffs-Respondents

constitutional claims, as the Appeals Court declined to

reach this issue solely due to the basis of its ruling,

and

on

the

assumption

that

this matter

was being

remanded, [see opinion at n. 4]. 8

7 Indeed, if this matter is taken up by this Court, and Defendants-Applicants do not receive the result that they seek, they would then have an avenue to SCOTUS, with the appropriate legal team to advance such cause already in place. 8 There are several judicial decisions that have questioned, and indeed found issue with, the fact that a borrower is never provided notice under the FIRREA statutory scheme, but that these decisions are also in disagreement with other opinions see Plaintiffs Reply Br., pp. 16-18. Such split of authority between Circuits

7

II. ARGUMENT WHY THE APPLICATION SHOULD BE DENIED, OR IN THE ALTERNATIVE, BE TAKEN UP TO CONSIDER THE CONSTITUTIONALITY OF THE “AS APPLIED” APPLICATION OF FIRREA’s JURISDICTIONAL BAR

A. Defendants-Applicants Cited Case Law Is Inapposite

Defendants-Applicants state that the Appeals

Court decision “is wrong”, premised upon a

requirement that:

courts “

statute when it is unambiguous and when its application would not lead to an absurd result of contravene the Legislature’s clear intent” Def. Appl., at p. 19.

must follow the plain language of the

Of course, in order for the above to hold true, as

a condition precedent there must be an examination as to

the “legislative clear

intent”, and

whether the

particular facts presented even apply to the particular

statute under review, i.e. are the litigants presently

before

this

court

actually

among

the

class

of

individuals or entities contemplated by congress to be

among the class to be subject thereto. The language cited

to by the Defendants-Applicants instructive, that is the

caveat that the application of a statute cannot lead to

an absurd result.

also creates intervention.

the

very real

possibility of SCOTUS

8

Here, Defendants-Applicants urge this Court to

allow an “as applied” application of a statute that would

be absurd under the facts presented here. Thus, it is

not an examination of other matters factual posture, but

rather it is the “as applied” statute to the particular

facts of this matter under review. Thus, here such “as

applied” application of the jurisdictional bar to the

instant fact pattern precluded any Notice to be provided

to the Plaintiffs-Respondents “borrowers” whatsoever.

Further,

this

“as

applied” application of statute

facilitates a taking, without ever receiving notice or

hearing. Thus, the trial court ultimately found that

Plaintiffs

failure

to undertake

a

“FIRREA claims

procedure” was found to permanently extinguish all of

their rights of ever being heard to defend their title

to real property. 9 Clearly such requested “as applied”

application of FIRREA by Defendants-Applicants to this

matter, would not only represent an “absurd result”, it

would also clearly run afoul of Plaintiffs-Respondents

being afforded due process under both the United States

9 Surely, a former “fairly prominent” attorney from this Commonwealth and Second President of these United States, John Adams, along with his former Vice President and fellow founding father “BFF” Thomas Jefferson, would be aghast at such proposition.

Constitution as well

Commonwealth. 10

as

9

the

Constitution of this

Defendants-Applicants posit that the Appeals Court

ruling in this matter caused a “split” in the holdings

regarding application of FIRREA’s jurisdictional bar.

Plaintiffs-Respondents state that such argument is a red

herring, and not accurate. Indeed, Defendants-Applicants

clearly seek to place the proverbial cart before the

horse, as unlike their cited case holdings, Plaintiffs-

Respondents have demonstrably pled, with documentary

indicia support, that material issues of fact remain in

dispute

relative

to

whether or

not Plaintiffs-

Respondents mortgage loan was a held “asset” of WaMu at

the time of its Failure and take over by the FDIC.

Additionally, Applicants citation of Willner can easily

be distinguished upon the facts. 11

10 Indeed, Plaintiffs made citation to judicial opinions that have openly queried, and ruled against application of the jurisdictional bar of FIRREA for this very reason, [see Open Br. At pp. 32-35, and collecting cases cited to therein]; In re Purcell, 150 B.R. 111, 113–115 (D.Vt.1993); Bolduc v. Beal Bank, SSB, 994 F. Supp. 82, 90–91 (D.N.H. 1992); Scott v. RTC (In re Scott), 157 B.R. 297, 310– 312; 11 Thus, references at pp. 18-19 of the FAR related to FIRREA’s application in Massachusetts is submitted to confuse the precise issue before this Court, as it must first be determined whether FIRREA even applies to this matter at all.

10

Defendants-Applicants further cite approvingly to

McLaughlin v. FDIC, 415 Mass. 235, 237 (1993), for the

proposition that; “plaintiffs failure to participate in

a timely manner in FIRREA’s administrative process is

fatal”. Of course, what Defendants-Applicants fail to

discuss

is

the

fact

that

distinguishable on the facts.

this

case

is

also

McLaughlin involved a

“non-securitized” mortgage loan undertaken in 1993,

where the

default

occurred

involving

a

loan that

remained as an “owned asset” of the original “lender” at

the time of its failure and was taken over by the FDIC.

Further, unlike the instant fact pattern, there were

already judicial proceedings involving the original

lender, in which after the Bank’s Failure the FDIC

stepped into the shoes of the original lender. Further,

unlike Plaintiffs Applicants fact pattern, McLaughlin

clearly had Notice of the FDIC involvement at the time

of the bank failure, and also had bountiful opportunity

to

raise arguments

related thereto. Clearly the

McLaughlin fact pattern is inapposite as to what the

Plaintiffs’-Respondents fact pattern before this Court

entails.

In Plaintiffs-Appellants opening brief before the

Appeals Court, they also clearly distinguished DeMelo on

11

the facts where, unlike the instant fact pattern, DeMelo

conceded that his mortgage loan was a held asset of

Downey Savings at the time of its Failure, and therefore

FIRREA applied, see Plaintiff-Resp. Open Br., at pp.13-

14;

p.

20;

pp.

32-33,

and

n.

6

12

(last para.). 13

Additionally, in DeMelo, the First Circuit recognized

that it was also “unsurprising” that the only court of

appeals to have squarely addressed the “relatively

novel” proposition advanced by plaintiffs [FIRREAA only

applies to

creditors] was Tellado v. IndyMac Mort.

Servcs. 707 F.3d. 275,279-281 (3 rd Cir. 2013), [see

Demelo at 727 F.3d. 123]. The DeMelo Court solely relied

upon Tellado in stating that FIRREA’s jurisdictional bar

applies “unreservedly to consumer protection claims”. 14

12 Unlike the instant matter, DeMelo was provided an opportunity to raise the failure of Notice under FIRREA, which his failure to do so at the trial court level was fatal to his appellate claim, see DeMelo, see at 727 F.3d.124. Thus, DeMelo never raised an “as applied” challenge to the application of the FIRREA jurisdictional bar, and this federal case would not be precedential as to this Court’s review of the constitutionality of such application under the Massachusetts state constitution, or whether the current Deutsche Bank claimant met state statutory muster in order to utilize the Massachusetts extra-judicial statutory foreclosure process.

14 Indeed, no court, outside of this Court, could make the ultimate determination as to whether or not the Plaintiffs-Respondents rights [and similarly situated

12

Reviewing Tellado, we also find that, like DeMelo, there

was

no

challenge raised that the

mortgage loan in

question was owned by the Failed Bank at the time of its

takeover by the FDIC. Additionally, unlike Plaintiffs-

Respondents theory and pleadings for an entitlement to

relief here, Tellado solely relied upon an “unfair and

deceptive business practice” undertaken by the original

lender (IndyMac). Thus, unlike the instant fact pattern,

Tellado was advancing a “claim” directly against the

failed bank in which there was never any challenge or

dispute as to whether the mortgage loan in question was

actually an “owned asset of the Failed Bank”. Thus, the

preceding clearly distinguishes both DeMelo, and

Tellado, on the facts, and also provides grist for the

mill

that

the

constitutionality

of

FIRREA’s

jurisdictional bar as applied to “borrowers” begs for

first impression judicial review under the facts as

presented here. 15

citizens of Massachusetts] would be abridged under the Constitution of this Commonwealth regarding the “as applied” application of jurisdictional bar of FIRREA advanced by the Defendants-Applicants. 15 FIRREA was enacted in 1989 as a result of the “Savings and Loan” crisis. When this statute was enacted, Congress was never confronted, [and therefore never considered] the mass “securitization” of mortgage loans. Thus, at the time the statute was enacted, it was solely intended to myopically apply to “creditors of the failed

13

The Plaintiffs-Respondents fact pattern creates

very real, and live, issues related to whether or not

their particular mortgage loan was actually owned by

WaMu at the time of its Failure. 16 Plaintiffs-Respondents

will also

distinguish Willner v. Dimon, 849 F.3d. 93

below.

B. Willner

v.

Dimon,

849

F.3d.

93

Is

Also

Distinguishable on The Facts

Defendants-Applicants state that the underlying

Appeals Court decision in this matter is “at odds” with

the Fourth Circuit Opinion in Willner v. Dimon, 849 F.3d.

93. In fact, the underlying Appeals Court opinion in

this matter discusses, and distinguishes, Willner at n.

7, stating that Defendants rely on Willner “for more

than its worth”. Undaunted, Defendants-Applicants again

raise this case through new appellate counsel. However,

bank”. Indeed, in 1989, the odds were very high that the mortgage loan in default was undertaken by a borrower from the same lending institution that still owned the loan. Fast forward to September 25, 2008 [the date of the WaMu Failure], and we find that very few, if any, mortgage loans were owned by WaMu at the time of its Failure and takeover by the FDIC, as WaMu’s mortgage loans were “securitized” immediately after origination [or prior to].

16 This is exacerbated by the fact that the publicly available “Purchase and Assumption Agreement” between the FDIC and JPMC does not include any schedule of specific assets owned by WaMu at the time of its Failure.

14

for the sake of completeness Plaintiffs-Applicants will

again distinguish Willner below. 17

When actually reviewing the Willner Opinion, like

DeMelo,

Tellado,

and McLaughlin,

it

also

reveals a

clearly distinguishable fact pattern involving a

completely different claim for relief and application of

FIRREA that what the Plaintiffs-Respondents request

here. As pro-se litigants, Willner also never raised an

“as

applied”

Constitutional

challenge

to

the

jurisdictional bar of FIRRA regarding its complete

failure

of notice

to “borrowers”. Again, unlike

Defendants-Applicants cited case law, Plaintiffs-

Respondents had no opportunity for any pre-trial court

decision briefing regarding the application of FIRREA’s

jurisdictional

bar,

constitutionality. 18

or

its

“as

applied”

17 The Defendants-Applicants also request that this Court ignore the First Circuit holding in Bolduc, only on the basis of the Fourth Circuit holding in Willner, where that Court subjectively declined to follow the First Circuit finding regarding claims raised defensively under FIRREA’s jurisdictional bar. Of Course, the Willner court was not required to follow a holding from a different Circuit. Bolduc stands as an authoritative holding from the Circuit Court for Massachusetts, and thus is due deference, despite Defendant-Applicants protestations otherwise 18 Only in their post judgment Motion for Reconsideration were Plaintiffs-Respondents allowed to discuss FIRREA and distinguish the DeMelo case from the case at bar.

15

Further, only for the first time in their appeal

and Application did the Defendants-Applicants raise a

particular aspect of FIRREA that was never previously

raised at the trial court level. For this reason alone,

the Application should be denied. 19 Willner involved a

pro-se twenty-seven (27) count complaint, in which the

Willner [non-attorney] Plaintiffs alleged a bevy of

counts on appeal that never questioned whether the asset

was owned by the Failed Bank at the time of its Failure,

[see 849 F.3d 102].

The Willner Court examined the above claims and

found the following:

“In particular, the Willners allege that WMB agreed not to foreclose on the Property, that the Note does not exist because Mrs. Willner never signed it, and that the Deed of Trust cannot be used to foreclose on

19 The Defendants-Applicants state that “the flaw” in the Appeals Court ruling is that it “conflated assignment of the Starkey’s mortgage note (an asset)with

an assignment of the Starkey’s legal claims (a liability related to that asset)”; then further stating; “under the holder in due course doctrine, the sale of the note does not convey ‘liabilities’ relating to that Note”. The only liability of Plaintiffs was that as a “borrower on the Note”. In fact, the above passage represents an admission by Defendants-Applicants that Plaintiffs’ Respondents note was an asset that was “sold” to the Defendant Trust prior to the WaMu Failure. The mortgage is not a “liability” to that asset, as the mortgage holder is entirely reliant upon the owner of the note. Of course, a “sale” of a note is governed by U.C.C., Article 9, not Article 3, see G.L. c. 106, §9-102(12)(B);

§9-102(28)(B).

16

the Property because the Note to which it refers does not exist. Because these unexhausted claims are functionally pleaded against the acts and omissions of WMB rather than against independent misconduct by Chase and U.S. Bank, § 1821(d)(13)(D)(ii) operates as a jurisdictional bar [emph. added]”

Clearly, Count I of Plaintiff-Respondents complaint

before this Court advances

to

allegation

under

any

“claim”

no similar direct

related

to

a

WaMu

“misrepresentation” or a WaMu failure to honor any

“agreement not to foreclose”, but merely challenged the

current claimant, Deutsche Bank, N.T. Co, as Trustee for

the named trust’s “standing”, that is whether it was a

current proper party to enforce Plaintiffs-Respondents

note and mortgage [not WaMu]. 20 The preceding challenge

was supported by the publicly available documents,

including the recorded May 2009 assignment of mortgage,

as well as a “pooling and serving agreement” [indicating

20 The Willner Court continues, at p. 104:“Thus, if FIRREA's jurisdictional bar applies, it's because the Willners' claims fall within FIRREA's other exhaustion requirement for "any claim relating to any act or omission of [an institution for which the FDIC has been appointed receiver] or the Corporation as receiver." 12 U.S.C. § 1821(d)(13)(D)(ii).Section 1821(d)(13)(D)(ii) bars unexhausted claims against an assuming bank that relate to an act or omission of an institution for which the Office of Thrift Supervision appointed the FDIC as

receiver, but a suit "against a third-party bank for its

is not barred by" §

own wrongdoing

1821(d)(13)(D)(ii).”Willner v. Dimon, 849 F.3d 93, at

104

17

a sale of a finite grouping of loans to the Defendant

trust

in 2006],

that

was provided by Defendants-

Applicants themselves; and which PSA document was also

included in the underlying trial court record. 21 Again,

the finding by the Willner court requires admission that

the asset in question [Plaintiffs-Respondents mortgage

loan] was actually owned by the Failed Bank at the time

of its Failure, an issue squarely in doubt here.

VI. CONCLUSION

For

decidendi

the foregoing

herein,

reasons, and

cited ratio

the

Plaintiffs-Respondents

respectfully request that this court Deny the Defendant-

Applicants Application. In the alternative, if this

Court decides

to

take this matter up, Plaintiffs-

Respondents respectfully request that such Application

also include an examination of the constitutionality of

the jurisdictional

bar

of

FIRREA,

as

applied to

borrowers, under both the U.S. Constitution, as well as

the Constitution of this Commonwealth.

Respectfully Submitted Plaintiffs

21 Thus, creating live issues relative to the claim that WaMu owned Plaintiffs-Respondents mortgage loan as an asset of the Failed Bank at the time of its September 25, 2008 takeover by the FDIC.

18

By their Attorney

Glenn F. Russell, Jr.
Glenn F. Russell, Jr.

BBO#656914

Glenn F. Russell, Jr. & Associates, P.C.

38 Rock Street, Suite 12 Fall River, MA 02720 Phone: (508) 324-4545

Fax:

(508) 938-0244

19

RULE 16(k) STATEMENT

I hereby certify that the foregoing Opening Brief

of the Plaintiffs-Respondents complies, to the best of

my knowledge

pertaining

to

and belief,

with

the

filing

of

the

rules

of Court

appellate briefs,

including, but not limited to: Mass.R.A.P. 16(a)(6)

(pertinent

findings

or

memorandum

of

decision);

Mass.R.A.P. 16(f) (reproduction of statutes, rules

regulations); Mass.R.A.P. 16 (h) (length of briefs);

Mass.R.A.P. 18 (appendix to the briefs); and Mass.R.A.P.

20 (form of brief, appendices, and other papers).

Glenn F. Russell, Jr
Glenn F. Russell, Jr

20

CERTIFICATE OF SERVICE

I, Glenn F. Russell, Jr., hereby certify that on

this 12th day of December, 2018, I served a copy of the

Plaintiffs-Respondents; Opposition to the Defendants-

Applicants Application for Further Appellate Review, by

USPS, postage prepaid, and filed through the Court’s

electronic filing system, upon the following counsel

of record:

Counsel for Defendants-Applicants

Alan E. Schoenfeld(pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, N.Y. 10007

Albinas J. Prizgintas(pro hac vice) Arpit K. Garg (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave. N.W. Washington, D.C. 20006

Mark C. Fleming WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109

Glenn F. Russell, Jr.
Glenn F. Russell, Jr.