Beyond The Horizon
The USVI And Their Request For A Summary Judgement Against JP Morgan (Part 6) (6/30/24)
A memorandum of law in support of a summary judgment is a legal document filed by a party in a lawsuit to persuade the court to grant a summary judgment in their favor. Summary judgment is a legal process where the court decides a case without a full trial because there are no disputed material facts requiring a jury or judge to resolve. Here’s a detailed breakdown of what this memorandum typically includes:
- Introduction and Statement of Facts:
- The memorandum begins with a brief introduction, outlining the purpose of the document and a statement of undisputed facts. These facts are often supported by evidence such as affidavits, depositions, and other documents.
- Legal Arguments:
- This section presents the legal basis for the motion, citing relevant laws, statutes, and case precedents. The goal is to demonstrate that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law.
- Standard of Review:
- The memorandum will often include a discussion of the standard of review for summary judgment, explaining that the court must view the evidence in the light most favorable to the non-moving party and determine if there is no genuine issue of material fact.
- Analysis:
- A detailed analysis follows, where the party applying for summary judgment argues how the law applies to the undisputed facts. This section aims to show that the opposing party cannot prove an essential element of their case or that there is no evidence to support their claims.
- Conclusion:
- The memorandum concludes with a summary of the arguments and a request for the court to grant summary judgment, thereby dismissing the case or certain claims within the case without the need for a trial.
- Supporting Documentation:
- The memorandum is usually accompanied by supporting documentation, such as exhibits, affidavits, and a statement of undisputed material facts, to substantiate the arguments made.
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- Duration:
- 14m
- Broadcast on:
- 30 Jun 2024
- Audio Format:
- mp3
What's up everyone and welcome back to the Epstein Chronicles. In this episode we're going to finish off with the USVI and their request for a summary judgment against J.P. Morgan 2. The discretionary act of granting a waiver of notification periods for overseas travel is not grounds to shift fault to the government. Following his conviction in Florida, Epstein was required to register as a sex offender with the Virgin Islands Department of Justice. In 2012, the legislature amended its sex offender laws in part to obtain federal funding for its sex offender unit. The US government approved the changes to the law in advance. J.P. Morgan is sought to make hay of the fact that Epstein's attorneys consulted with lawmakers concerning the proposed changes, but those arguments prove nothing. The legislature rejected Epstein's proposed changes. The amended statute required that all sex offenders require to register in this jurisdiction shall appear in person at the Department of Justice at least 21 calendar days prior to any intended travel outside of the United States and provide information about their intended travel as provided in Virgin Island Code 14, Section 1726, Virgin Island Code 14, Section 1724, B&4. The same provision then states that the Attorney General may at his discretion reduce this 21-day notice requirement if a sex offender requests such a reduction and provides information in support of his request. Other statutory provisions confirm that nothing under this chapter shall be construed as a waiver of sovereign immunity for the United States Virgin Islands, its departments and agencies. Epstein applied for and received a discretionary waiver of his travel notification requirements pursuant to these statutory provisions. But this waiver does not constitute misconduct or otherwise form the basis of a valid affirmative defense. The provision of streamlined travel notice requirements upon satisfactory proof is statutorily mandated and/or vested in the Attorney General's discretion. Case law is clear that such discretionary actions do not support shifting fault to the government. C. E. G. City of New York v. FedEx. 314. F.R.D. at 359. C. also Perez v. Government of the Virgin Islands 847. F.2D-104-107. 3rd Circuit 1988. Virgin Islands law recognizes the public duty doctrine, which precludes suit for governmental negligence based on the government's failure to comply with the duty owed to the public in general. The defense fails as a factual matter as well. The statutory waiver of which JP Morgan complains applied only to international travel. While the government had a policy in place to require notification of travel outside of the territory, but within the United States, nothing in the federally approved Virgin Islands statute required such notification, nor did the provision of such a waiver somehow enable Epstein's crimes. Testimony is clear that Epstein never failed to register as a sex offender, and there is no evidence that he failed to notify of travel. There is no evidence that permitting Epstein to email his international travel notifications 24 hours in advance, instead of appearing in person 21 days in advance, somehow enabled him more latitude to commit his crimes. Notifications are not authorizations or requests. The government has no ability to restrict his travel. Moreover, entry into the territory from overseas is controlled by federal authorities, not the Virgin Islands government. Many attacks on the granting of the waiver itself are meritless. Then Attorney General Frazier testified that he relied on representation of Epstein's counsel, informing his decision, and that those representations were satisfactory to conclude that there was not an undue risk to the community that would arise from the waiver. Epstein's lawyer is represented to Mr. Frazier that other states permitted Epstein to provide email notification of his travel and affirm that there is no public safety necessity in requiring Epstein to notify the department in person each time he travels to or from the jurisdiction. JP Morgan's defense thus rests not on whether the decision was authorized under law, it most certainly was, but on whether the attorney general in 2012 exercised sufficient discretion in granting the waiver. This is precisely what the case law cited above precludes. CF Harlow versus Fitzgerald 457 US 800 817 818 1982 government officials performing discretionary functions generally are shielded from liability of civil damages in so far as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known be JP Morgan's defenses are barred as applied to the economic development commission's grant of tax benefits to Epstein's companies. The EDC operates under the umbrella of the USVI economic development authority, which is a semi autonomous instrumentality of the government and is governed by a board of individuals appointed by the governor. Virgin Island Code 29 section 1101A, the EDA is a public corporation having legal existence and personality separate and apart from the government of the Virgin Islands and the officers controlling it Virgin Islands Code 29 section 1101B thus to the extent JP Morgan conflates entities and treats EDC actions as attributable to the government CMTS opposition at two its arguments find no support in the Virgin Islands law. The tax benefits are authorized by a federal statute US Code 26 section 934 B1 pursuant to which the EDC administers a unique economic development program for the USVI allowing residents of the territory to exempt certain income if it is connected with the conduct of a trade of business within the Virgin Islands coffee versus CIR 663 F dot 3 D 947 949 a circuit 2011. The substance and procedures for the EDC's provision of tax benefits are set by the statute and regulation CEG Virgin Islands Code 29 section 701A it's the policy and determination of the government of the Virgin Islands that certain industrial development benefits should be made available for development and expansion of such industrial or business activities as are determined pursuant to this sub chapter to be in the public interest by advancing the growth development and or diversification of the economy of the territory of the Virgin Islands Virgin Island Code 29 section 705A the commission shall based upon the investigation and recommendations of the director review all applications for economic development benefits whole public hearings there on as provided in section 717 of this chapter and one grant certificates for same or two deny such certificate subject to reconsideration in accordance with the section the provision continuation and or revocation of economic development related tax benefits thus is statutorily mandated and or vested in the EDC's discretion not evidence of government's misconduct or grounds for false shifting the factual record bears us out the EDC granted tax incentives to two of Epstein's companies financial trust company and southern trust company the first grant of benefits to an Epstein owned company occurred in 1999 the financial trust in 2009 financial trust applied for and received an extension of benefits Epstein formed the new company southern trust which applied for and received tax benefits in 2012 in each of those cases the grant of benefits was performed in compliance with all statutory and regulatory procedures and requirements the company submitted applications for the benefits EDC held public hearings during which the benefits were discussed and the applicants were provided the opportunity to present their case and answer questions the EDC then held decision meetings where the board considered the applications and rendered decisions to the extent that JP Morgan questions the reasoning behind those decisions that is precisely the type of second guessing the law precludes see McGoughy super 684 F.3d at 1358 courts and juries are ill equipped to review legislative and executive decisions about how to allocate limited municipal resources to best protect the public once benefits are granted Virgin Islands law limits the EDC's ability to modify them the commission may not require an applicant to meet qualifications or requirements in excess of those representations made by the applicant to the commission during the application process as a condition of granting an initial certificate Virgin Island code 29 section 708 indeed the law specifies that benefits granted are considered as being in the nature of a contract between the government and the beneficiary Virgin Island code 29 701c the EDC cannot revoke suspend or modify the benefits based upon a felony conviction unless a concerned conduct connected with the operation of the beneficiaries business or industry Virgin Island code 29 section 724 thus Epstein's Florida conviction was not grounds for a revocation at the time because no evidence was available to the EDC that Epstein's solicitation of a minor for prostitution in Florida was connected with the operation of his USVI businesses unlike JP Morgan the EDC did not have access to Epstein's companies daily financial transactions and was not aware of any connection between his conduct and the operation of his business indeed the EDC reached out to Epstein's attorney in January 2015 to inquire whether media reporting regarding allegations of misconduct had any connection to the businesses of Epstein's Southern Trust Company his attorney responded to confirm we do not believe that these media discussions will have any impact on the business activities of STC JP Morgan is pointed to a cost benefit ratio that purportedly shows in many years that the territory not the government receive less in benefits than it gave up in tax revenue fact witness testimony however shows this analysis to be relevant because it uses an artificial baseline along tenured EDC employee who was personally involved in the granting of benefits testified that the ratio doesn't give the full picture and can be misleading because unless the business already operated in the territory the government would not receive the tax revenue in the first place and has not lost anything this analysis applies to both the initial grants of benefits to both companies and the financial trust extension request during a march 2009 public hearing Epstein attorneys explain that a denial of the extension would likely cause a responsible business person to seriously consider relocating the business if another territory offered similar benefits thus the EDC cannot assume that it would collect Epstein's tax revenue if the benefits were not extended the ratio further ignores and celery benefits that accrue to the territory from the presence of high net worth individuals who engage in economic activity unrelated to their business that benefits the territory see JP Morgan has no viable defense based on activity of Cecile Dajang JP Morgan also argues that the activity of Cecile Dajang former first lady of the U.S. Virgin Islands an office manager for Epstein supports its defenses not so as first lady mr. Zhang at no statutory or regulatory authority mr. Zhang confirmed that there's no office of the first lady with a budget and she did not have an office first lady was largely a ceremonial position that entailed giving speeches and attending social events moreover the factual record shows that during her time with her husband and when he was governor mr. Zhang was widely known and recognized to be employed by Epstein's businesses and acting on their behalf unlike the information that JP Morgan redacted and redacted the Zhang's employment with Epstein was widely reported and numerous witnesses confirmed that they were familiar with her employment most importantly mr. Zhang has no responsibility for governmental decisions that form the basis of JP Morgan's flawed affirmative defenses she had no contact with the Department of Justice personnel responsible for sex offender registration and monitoring decisions concerning tax benefits were made by the EDC's board members although the law at the time required the governor or husband to sign tax benefits certificates that process was a formality and could not happen without the EDC's recommendations in the first place mr. Zhang denied knowing about or facilitating Epstein's crimes in the Virgin Islands although JP Morgan is pointed to emails about arranging an ESL class for women in the Virgin Islands mr. Zhang testified she was not aware these individuals were potential trafficking victims and documents make it clear that the university merely agreed to offer an existing class for them although mr. Zhang's emails may have provided salacious fodder for JP Morgan she ultimately was not responsible for any government decisions conclusion for the foregoing reasons the court should grant the government's motion for partial summary judgment this document was dated July 24th 2023 and it was signed by Ariel Smith alright so that might do it for this one but trust me we have plenty more to get to but until then all of the information that goes with this episode can be found in the description box