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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

43 East 74th St. Associates v. Marceca (In Re Marceca)

The Chapter 7 debtor, Robert K. Marceca, moved to dismiss an adversary proceeding filed by plaintiffs Benjamin S. Richman, Arthur Shulman, and Irving Barr. The plaintiffs sought to declare claims nondischargeable under 11 U.S.C. § 523(a)(4). The first claim alleged Marceca embezzled partnership funds from 43 East 74th St. Associates. The second claim, by Richman, accused Marceca of embezzling real estate investment commissions. The debtor argued that a partner cannot embezzle partnership property and that the second claim was unenforceable due to the statute of frauds. The court denied the motion to dismiss both claims, affirming that New York partnership law establishes a fiduciary relationship allowing for nondischargeable claims for defalcation and that the statute of frauds is an affirmative defense, not a basis for dismissal under Fed.R.Civ.P. 12(b)(6).

BankruptcyNondischargeabilityEmbezzlementDefalcationFiduciary DutyPartnership LawStatute of FraudsMotion to DismissRule 12(b)(6)Adversary Proceeding
References
12
Case No. MISSING
Regular Panel Decision

United States v. Panepinto

Defendants Antonio Panepinto and Peter Nanfria were charged with conspiring to embezzle assets of employee welfare benefit funds, embezzling such assets, making false statements in ERISA-required documents, mail fraud, and bribing a union official. The core of the charges stemmed from their alleged creation of RO-IG Coat and Suit Corp. to perform work for non-participating manufacturers, thereby evading required contributions to employee benefit funds under a collective bargaining agreement. Defendants moved to dismiss the first ten counts, arguing that unpaid employer contributions were not 'assets' of the funds and that their actions were merely a breach of contract, not embezzlement. They also sought dismissal of the false statement and mail fraud counts and requested a Bill of Particulars, claiming insufficient factual allegations regarding RO-IG's affiliation. The court denied all defendants' omnibus motions, ruling that the underlying wage agreement established unpaid employer contributions as 'assets' of the funds and that the defendants, as fiduciaries, had converted these funds. The court also found the indictment's factual allegations sufficient concerning the relationship between the firms.

ConspiracyEmbezzlementERISAEmployee Welfare Benefit FundsMail FraudUnion Official BriberyCollective Bargaining AgreementEmployer ContributionsPlan AssetsMotion to Dismiss
References
13
Case No. MISSING
Regular Panel Decision

United States v. Jasper

Defendant Barbara Renor Jasper was convicted of one count of embezzlement. She was found to have embezzled over $400,000 from the United Nations Federal Credit Union by under-reporting ATM replenishments and bypassing dual control procedures. The Court determined the total loss for sentencing purposes to be $433,615. Jasper's offense level was increased due to more than minimal planning, abuse of a position of trust, and obstruction of justice through perjury. She was sentenced to 37 months imprisonment, three years of supervised release, $433,615 in restitution, and a $100 special assessment.

EmbezzlementSentencing GuidelinesFraudCriminal SentencingPerjuryObstruction of JusticeRestitutionSupervised ReleaseFederal CrimeAbuse of Trust
References
48
Case No. MISSING
Regular Panel Decision

ITT Consumer Financial Corp. v. Tovar

Daniel Tovar sued ITT Financial Services for negligence, gross negligence, and intentional infliction of emotional distress after he was wrongly indicted for embezzlement. Tovar's friend, Frank Chavira, embezzled funds from ITT and deposited them into Tovar's account without his knowledge. ITT reported the findings to the district attorney, leading to Tovar's arrest and subsequent acquittal. The trial court initially directed a verdict against Tovar on malicious prosecution and defamation, but a jury awarded him damages on the other claims. The appellate court reversed the jury's verdict, holding that ITT owed no duty to Tovar in negligence and that Chavira's actions were outside the scope of employment for intentional infliction of emotional distress. The court also affirmed the directed verdict on malicious prosecution due to lack of malice.

NegligenceGross NegligenceIntentional Infliction of Emotional DistressMalicious ProsecutionDefamationEmbezzlementFraudVicarious LiabilityScope of EmploymentDirected Verdict
References
35
Case No. MISSING
Regular Panel Decision

United States v. Isaacson

This is a criminal prosecution where defendant Julius Isaacson, a union official, was charged with embezzling and conspiring to embezzle money from a labor union and employee benefit funds through an alleged kickback scheme. The Government moved to disqualify Isaacson’s counsel due to a potential conflict of interest, as the attorney and his firm previously represented some of the alleged victim entities. Despite Isaacson’s waiver of his right to conflict-free counsel, the Government argued that the conflict was intolerable. The court denied the motion without prejudice, reasoning that the factual allegations focused on external conduct, there was insufficient information at the early pretrial stage, and counsel had largely withdrawn from representing the victim entities. The court conditioned continued representation on counsel fully withdrawing from the remaining entity and attesting to no outstanding fees.

Criminal ProsecutionConflict of InterestAttorney DisqualificationEmbezzlementUnion FundsEmployee Benefit PlansERISAKickback SchemeObstruction of JusticeSixth Amendment
References
7
Case No. MISSING
Regular Panel Decision

NYSA-ILA Medical & Clinical Services Fund Ex Rel. Capo v. Catucci

The NYSA-ILA Medical & Clinical Services Fund, an employee medical services fund, sued Sabato Catucci and his three sons for allegedly withholding payments from Saleo Trucking Corporation to the fund. This action followed a prior judgment against the corporation for delinquent contributions. The plaintiff sought to hold the defendants personally liable under alter ego, breach of ERISA fiduciary duty, and embezzlement theories. The court granted summary judgment to the plaintiff on the breach of ERISA fiduciary duty claim against Sabato Catucci, finding him to be a fiduciary who misused plan assets. However, claims against his sons were dismissed due to lack of sufficient control over the corporation. The alter ego claim against Sabato Catucci will proceed to trial, and the embezzlement claim was dismissed for not supporting a private civil cause of action.

ERISA Fiduciary DutyAlter Ego LiabilityCorporate Veil PiercingDelinquent ContributionsSummary JudgmentEmployee Benefit PlanMultiemployer FundSelf-DealingCorporate ControlLabor Law
References
32
Case No. 11-08-00110-CV
Regular Panel Decision
Oct 08, 2009

Great Western Drilling, Limited v. Bill Alexander

Great Western Drilling, Limited, appealed a take-nothing verdict in its suit against attorney Bill Alexander. Great Western claimed Alexander conspired with his client, Marilyn Paschal, to convert insurance proceeds that Great Western asserted were its equitable property, purchased with embezzled funds. The case stemmed from an earlier suit where Great Western sued Paschal for embezzlement and sought a constructive trust on the proceeds. The trial court severed claims against Alexander. At trial, the jury found that Alexander did not have notice that Great Western owned the insurance proceeds, leading to a verdict in Alexander's favor. The Eleventh Court of Appeals affirmed the judgment, finding the jury's lack of notice finding was not against the great weight and preponderance of the evidence, and any error regarding expert testimony was not reversible. Alexander's cross-appeal for sanctions was also denied.

ConversionInsurance ProceedsAttorney LiabilityFraudEmbezzlementNoticeJury VerdictSufficiency of EvidenceExpert TestimonyAppellate Review
References
34
Case No. Docket No. 165
Regular Panel Decision

Rainey v. Davenport (In Re Davenport)

Ron S. Rainey, an associate at the Davenport Law Firm, initiated an adversary proceeding against the firm's owner, Valorie W. Davenport (the Debtor), seeking to prevent the discharge of a debt owed to him. The dispute arose from contingent fees from the "Brio/DOP Litigation," where Rainey was promised a percentage of fees but alleged the Debtor failed to remit his full share, instead spending some funds for personal and firm expenses. After two state court lawsuits and a mediated settlement agreement which the Debtor defaulted on, Rainey filed a complaint in bankruptcy court under 11 U.S.C. § 523(a)(4) and (a)(6) for fraud, defalcation, embezzlement, larceny, or willful and malicious injury. The court found that the Debtor did not owe Rainey a fiduciary duty but concluded that she embezzled Rainey's funds and/or caused willful and malicious injury, thereby rendering Rainey's claim of $171,807.35 nondischargeable.

contingent feesbankruptcydischargeabilityembezzlementwillful and malicious injuryattorney feesbreach of contractlaw firm disputeTexas lawres judicata
References
82
Case No. MISSING
Regular Panel Decision

Claim of Connors v. Secon Security, Inc.

The claimant appealed a decision by the Workmen’s Compensation Board that denied death benefits for a private investigator. The decedent suffered a fatal coronary occlusion after a tense 20-minute argument while confronting a supermarket manager about embezzlement. The Board concluded that the emotional strain of the argument was not extraordinary, thus denying the claim that it constituted an accidental injury arising from employment. The claimant argued the confrontation was unusually intense and important to the decedent’s business. The court affirmed the Board's decision, reiterating that it is the Board's role as the arbiter of facts to determine if an incident constitutes an accident under the Workmen's Compensation Law.

Coronary occlusionEmotional strainAccidental injuryDeath benefitsWorkmen's CompensationPrivate investigatorWorkplace confrontationBoard decisionAppellate reviewFactual dispute
References
7
Case No. MISSING
Regular Panel Decision

United States v. Harloff

The Chief Judge dismisses Counts 18 and 19 of the Indictment, which alleged violations of 18 U.S.C. § 666. The charges claimed defendants falsified payroll records by stating they worked 40-hour weeks but worked fewer, constituting embezzlement. The judge determined that 18 U.S.C. § 666(c) exempts "bona fide salary, wages" and that accepting wages for more hours than worked does not constitute a federal crime under this section. The court distinguished this from "ghost employees" and found no legislative intent to criminalize early departure from work. Citing rules of lenity, the court dismissed the counts on its own motion.

EmbezzlementPayroll FraudFederal Criminal Law18 U.S.C. § 666Bona Fide WagesLegislative IntentStatutory InterpretationRule of LenityGhost EmployeesDismissal of Indictment
References
8
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