CASE NO CIV-MARRA/1OHNSON

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1 Case 9:03-cv KAM Document 2584 Entered on FLSD Docket 03/12/2012 Page 1 of 6 UNITED STATES DISTRIG COURT SOUTHERN DISTRIG OF FLORIDA CASE NO CIV-MARRA/1OHNSON SECURITIES AND EXCHANGE COM MISSION Plaintif, VS. M ICHAEL LAUER, et al., Defendants. M > = l œ *I3 fnq M ARTIN GARVEY'S M OTION FOR 8W 8R; O F AU ORNEYS' FEES AND COSTS M artin Garvey, the undersigned, respectfu ly m oves for an order requiring the Receiver, M arty Steinberg of Hunton & W illiam s, to indem nify him for attorneys' fees and costs and, for an aw ard of attorneys' fees and costs in the amount of $564, The amount reflects monies that M r. Garvey persona ly spent on Iegal representation from 2003 until 2008 to com bat a threatened Securities and Exchange Com mission ('SEC') action and a threatened Department of Justice ('DOJ') indictment. The amount also reflects monies that M r. Garvey personally spent on crim inal Iegal representation in United States v. M artin Garvey, et al. (Case No CR-JORDAN). Judgment of Acquittal was entered in that crim inal case on M ay 4, M r. Garvey is entitled to an aw ard

M > = l œ = @@ *I3 fnq M ARTIN GARVEY'S M OTION FOR 8W 8R; O F AU ORNEYS' FEES AND COSTS M artin Garvey, the undersigned, respectfu ly m oves for an order requiring the Receiver, M arty Steinberg of

2 Case 9:03-cv KAM Document 2584 Entered on FLSD Docket 03/12/2012 Page 2 of 6 of attorneys' fees and costs under the term s of the various indem nification agreements of ai the Lancer Offshore Funds (Lancer Offshore Inc., the Om nifund, Ltd., the Viator Fund, Ltd., and the Orbiter Fund, Ltd.). For exam ple, the Private Placement M emorandum ('PPM') of Lancer Offshore, Inc. provides as follows: 'The Investm ent M anagem ent Agreem ent provides that the Fund w il indemnify and hold harmless the Investment Manager (Lancer Management, LLC) and its members, and their respective affiliates from and against any Ioss or expense suffered or sustained by the Investm ent M anager or its m em bers or their respective affiliates resulting from the perform ance or non-perform ance of the Investm ent M anager's duties under the Investm ent M anagem ent Agreem ent, including w ithout Iim itation any judgm ent, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection w ith the defense of any actual or threated action or proceeding; provided how ever, that the Fund w ill not indem nify and hold harm less such person against any Ioss or expense arising from the gross negligence, fraud, or w illful m isconduct of such person in connection w ith such perform ance or non-perform ance of duties under the Investm ent M anagem ent Agreem ent.' The sam e Iiability and indem nification provision is included in the PPM'S of the O m nifund, Ltd., the Viator Fund, Ltd., and the Orbiter Fund, Ltd. In further support of this m otion M r. Garvey states as fo low s: O n July 8, 2003, the SEC filed a civil com plaint against M ichael Lauer regarding aleged ilegal conduct that supposedly began in 1999 (four years before the SEC took action). Two days Iater, on July 10, 2003, after a twenty m inute q: parte hearing, Judge W iliam Zloch issued an order appointing M arty Steinberg as the Receiver for the Lancer entities. It is interesting to note that on the day the Receiver took over the Lancer Funds and becam e the de facto m anager of the

provides as follows: 'The Investm ent M anagem ent Agreem ent provides that the Fund w il indemnify and hold harmless the Investment Manager (Lancer Management, LLC) and its members, and their

3 Case 9:03-cv KAM Document 2584 Entered on FLSD Docket 03/12/2012 Page 3 of 6 Funds (JuIy 10, 2003), the independently priced portfolios issued by the Funds' prim e broker, Bank of Am erica, show that the aggregate value of the Lancer Funds was over $850 Milion (USD). These portfolio valuations were introduced as evidence in the Lauer/sEc proceeding and in the Lauer/Garvey criminal trial. The SEC case w as eventually assigned to this Court. At the tim e, the M iam i Herald referred to the Lancer case as the first hedge fund investigation that the M iam i SEC had ever handled. M r. Garvev w as never charred or sued bv the SEC in this case or in any other SEC action for that m atter. The nearly nine year oid case betw een M r. Lauer and the SEC is presently on appeal before the U.S. Court of Appeals for the Eleventh Circuit. Oral argum ents w ere conducted before a three judge panel on February 1, 2012 in Atlanta, Georgia. O n January 29, 2008, a seven-count indictm ent w as returned against M r. Garvey, M r. Lauer, and three others. The a legations in the crim inal indictm ent focused on the sam e activity that the SEC focused on in its com plaint and case against M r. Lauer-- activity that supposedly took place from 1999 through The SEC even stated, in a press release dated M arch 21, 2008, that 'the Indictm ent's a legations are based on the sam e conduct underlying the Com mission's July 8, 2003 Complaint against Lauer-.' (See Exhibit A). After a two month trial and without putting on a defense, Mr. Garvey and Mr. Lauer were acquitted of ali crim inal charges in the indictm ent. From July of 2003 until February of 2010, w hen M r. Garvey w as assigned CJA counsel by Judge Jordan in his crim inal case, aii legal expenses incurred by M r.

The SEC case w as eventually assigned to this Court. At the tim e, the M iam i Herald referred to the Lancer case as the first hedge fund investigation that the M iam i SEC had ever handled. M r.

4 Case 9:03-cv KAM Document 2584 Entered on FLSD Docket 03/12/2012 Page 4 of 6 Garvey w ere persona ly paid by M r. Garvey. Under the Articles of Association of Lancer Offshore, Inc., an indem nification claim is secured and entitled to priority as a Iien as the Articles state:...the am ount for w hich such indem nity is provided sha l im m ediately attach as a Iien on the property of the Com pany, and have priority as betw een the M em bers over a I other claim s, unless the sam e happened through his ow n w illful negligence, w illful default, fraud, or dishonesty. (See Exhibit B, pg. 28. Em phasis added.) The same Ianguage is contained in the Articles of Association of the Om nifund, Ltd., the Viator Fund, Ltd., and the O rbiter Fund, Ltd. From 2003 until 2006, M r. Garvey em ployed the services of a New York attorney, J. Bruce M affeo to handle threatened SEC civil and DOJ crim inal actions against him. M r. M affeo is presently an attorney w ith the New York Iaw firm of Cozen O'Connor. His Iegal invoices and payments received for $175, are attached (See Exhibit C). From February of 2008 (the issuance of the criminal indictment) until August of 2009 (Garvey became a Pro Se defendant in his criminal case), M r. Garvey em ployed the services of two criminal attorneys. M r. Jack W enik, Esq. is presently w ith the New ark, New Jersey Iaw firm of Sils, Cummis. His Iegal invoices and payments received for $30, are attached (See Exhibit D). M r. Mark Nuric, Esq. is presently an attorney in Fort Lauderdale, Florida. His Iegal invoices and payments received for $335, are attached (See Exhibit E). M r. Garvey also employed the Iegal and consulting services of W ildw ood Partners of Fort Pierce, Florida during his crim inal proceeding. The

..the am ount for w hich such indem nity is provided sha l im m ediately attach as a Iien on the property of the Com pany, and have priority as betw een the M em bers over a I other claim s, unless

5 Case 9:03-cv KAM Document 2584 Entered on FLSD Docket 03/12/2012 Page 5 of 6 firm's invoice and payment received for $24, is attached (See Exhibit F). It is undisputed that M r. Garvey w as never persona ly charged or sued by the SEC in the Lancer m atter. It is undisputed that M r. Garvey w as acquitted at trial of ail crim inal charges relating to the Lancer m atter. It is undisputed that ali of the Lancer Offshore Funds have PPM'S that contain indem nification provisions. lt is undisputed that ali of the Lancer Offshore Funds have Articles of Association that clearly state that an indem nification claim is secured and is entitled to priority as a Iien. W HEREFO RE, the undersigned, M artin Garvey, respectfu ly requests that Indem nification be paid to him for attorneys' fees and costs totaling $564, This amount is secured according to the Adicles of Assotiation of the various Lancer Of shore Funds and is entitled to im m ediate priority as a Iien. 1 declare that the foregoing is true and correct. Dated: M arch 8, 2012 Respectfu ly subm itted, <,,e**'.œc g e, -, g.,.,. ' M artin Garvey 11 School Street, A t. 11 Clinton, New Jersey (908) E-m ail:

It is undisputed that ali of the Lancer Offshore Funds have PPM'S that contain indem nification provisions.

6 Case 9:03-cv KAM Document 2584 Entered on FLSD Docket 03/12/2012 Page 6 of 6 CERTIFICATE O F SERVICE I hereby certify that a true and correct copy of the foregoing m otion w as sent via U.S. M ail to M arty Steinberg, Esq. at Hunton & W iliam s, 1111 Bricke l Avenue, Suite 2500, M iam i, Florida on M arch 8, f ' y.'* : M artin Garvey

otion w as sent via U.S. M ail to M arty Steinberg, Esq.

Case 1:15-cr-20296-JEM Document 15 Entered on FLSD Docket 06/11/2015 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case 1:15-cr-20296-JEM Document 15 Entered on FLSD Docket 06/11/2015 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CA SE NO. 15-CR-20296-JEM UNITED STATES OF AMERICA 5'S. JEFFREY