If you hang around the courtroom long enough, you occasionally get to see an attorney doing the “contempt hearing tap dance? routine.  On June 12, 2007 the entertainer was Angela Ford the attorney in the Boone Circuit Court Fen Phen case. Ms. Ford jumped up from the plaintiff’s table and summoned up her most sincere imitation of Gloria Allred,  and defended herself on the charge she had violated the gag order.  If Ms. Ford is found to have discussed her case with the press then she could be sanctioned for contempt by presiding Senior Judge William Wehr, for violating a gag order he issued on June 14, 2005. 

 In that gag order the court stated:

“IT IS ORDERED that all counsel and parties shall refrain from public comments about the case to the press or otherwise other than through pleadings and or court hearings..?

Ms. Ford denied violating the gag order.  Her actual words were:  “I didn’t go to the press.? 

The courtroom video transcription system not only taped this statement, it broadcast it on closed circuit television throughout the court house.  The statement is time stamped  at 11:41 A.M. on the video tape recorded for the hearing before Judge Wehr on June 12, 2007. Yes, copies are available to the public.

We must note that the gag order did not limit its forbidden activities to “going to the press?, it said the “…attorneys and parties shall refrain from public comments about the case to the press…?  Please note, she didn’t tell the judge she didn’t make a public comment to the press, she said, “I didn’t go to the press?.  Tap, tap, tap….good footwork Ms. Ford, excellent footwork indeed.

The other attorneys stood silent and apparently stunned in the presence of such fancy and skilled footwork. Not a word was said contesting her talent in twisting the gag order to suit her needs as she clothed herself in public spirited concern for potential investors in the horse.  No one said “Ah hah! Judge? here is a copy of the New York Times article published on June 4th, 2007 which extensively quotes Ms. Ford and one of her clients (W. L. Carter) discussing this case.  A full text of the New York Times article by Times reporter Joe Drape, is printed at the bottom of this article, and Ms. Ford’s and Mr. Carter’s quotes are highlighted. 

Mr. W.L. Carter is apparently one of the parties represented by Ms. Ford. Both parties and attorneys are subject to the gag order.  In discussing the issue Ms. Ford argued a bit with the judge and explained she didn’t believe the gag order “applied to situations where the public needed to be warned.?   (Tap, tap, tap, twist and twirl, don’t listen to what I am saying just watch my feet.)

 She reiterated her claim that her clients are the rightful owner of the horse and she felt it was proper to warn the public about the “cloud on the title? to the thoroughbred  race horse Curlin.   Curlin came in third at the Derby, won the Preakness and then came in second in the Belmont Stakes on June 9th.

Twenty per cent of Curlin is owned by William Gallion and Shirley Cunningham, two defendants in Ms. Fords lawsuit in behalf of Fen Phen claimants.  In February of this year the two Lexington attorneys, sold 80% of the race horse to Jess Jackson and Satish Sanan for $3.5 million dollars.

Ms. Ford said in court at the hearing that (this is also on the videotape) she understood from Mr. Jackson that the owners planned to syndicate the horse, and she believed that potential investors in the syndicate should be forwarned that the horse belonged to her clients, since the horse was “wholly purchased? with funds that Gallion and Cunningham had improperly taken from her clients. 

The millionaire attorneys paid $57,000 for the horse in early 2005.  To recover such property the claimant must trace the purchase money paid directly to the illegally gained assets.   Ford doesn’t mention in the Times article that her clients have received $74,000,000 and a 30% attorneys, fee just on that sum, would have provided the two attorneys with legitimate funds with which to legally purchase the horse.  Ms. Ford and her clients have made repeated public claims in which they deprecate the legal sufficiency of the title to the race horse, as they predict they will someday obtain a verdict, and will then seize the horse to pay the anticipated debts of Cunningham and Gallion.  Ms. Ford’s language clearly indicates that she believes the title in favor of the majority owners will be set aside as a fraudulent sale.  As of the time of her statements to the press, she hasn’t been adjudged by the court to have won anything.

The Fen Phen claimants are not known to have obtained a court order freezing the assets of Gallion and Cunningham or placing a lien against the race horse. Apparently they have not posted any legal notice required to give bona fide purchasers a warning. 

Ms. Ford’s and Mr. Carter’s public claims of ownership of the horse, particularly in view of the owners plans to syndicate the horse, may well damage the income that could be obtained in the syndication. These claims by Ms. Ford and Mr. Carter could cost Jackson and Sanan tens of millions of dollars if the syndication is tainted by a clouded title. These statements appear to be very close to creating a cause of action for Mr. Jackson and Mr. Sanan for slander of title. Kentucky courts have recognized the tort of “slander of title?.  

See: Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765 (Ky. App., 1980) April 25, 1980
“In order to maintain a slander of title action in this jurisdiction, the plaintiff must plead and prove that the defendant has knowingly and maliciously communicated, orally or in writing, a false statement which has the effect of disparaging the plaintiff’s title to property…?



Judge Wehr did not rule on whether or not Ms. Ford and Mr. Carter violated the gag order. He announced in court that he would look at that issue later.  So the tap dance appears to have won at least for today. 


 By JOE DRAPE  New York Times,  June 4, 2007By   New York Times,  June 4, 2007


By   New York Times,  June 4, 2007   When Curlin chased down the winner Street Sense to capture the Preakness Stakes, his owners bounded to the winners’ circle at Pimlico Race Course. They were an eclectic bunch that included a winemaker, a computer magnate, an investment banker and two lawyers.W. L. Carter was just as ecstatic while his wife narrated the race over his cellphone as he drove through the horse country of Ocala, Fla. “They could hear me all the way up to Gainesville,? he said.
But his delight depends on the answer to one of racing’s thorniest questions: who will Curlin be running for in the Belmont Stakes on Saturday?
Mr. Carter believes he has a piece of Curlin, a mammoth chestnut colt whose value increases with every stride of his brief but brilliant career and who is already worth as much as $30 million as a stallion prospect.
Mr. Carter is among more than 400 plaintiffs in a civil suit who were found to have been defrauded by their lawyers out of $64.4 million — money intended to pay for injuries caused by the diet drug fen-phen. Two of those lawyers, William J. Gallion and Shirley A. Cunningham Jr., together own a fifth of Curlin and were in the Pimlico winners’ circle. “We own part of that horse — there’s about 400 of us,? Mr. Carter said. “We may not have our names on the papers, but it’s our horse. He was bought with our blood money.?
It may soon be up to the courts to determine just who owns Curlin. Mr. Gallion and Mr. Cunningham have had their law licenses suspended. A federal grand jury has begun to investigate potential criminal wrongdoing arising from the fen-phen settlement. 

Angela M. Ford, who represents Mr. Carter and most of the other plaintiffs, argues that her clients own all of Curlin. She contends that Mr. Gallion and Mr. Cunningham originally purchased the colt with ill-gotten gains — they paid $57,000 for the colt at the 2005 Keeneland September Yearling Sale — and had no legal right to sell 80 percent of the horse for $3.5 million, as they did in February.
 “If the court determines that Curlin was originally purchased with money that belonged to my clients, then the entire horse belongs to my clients and clear title could not have been conveyed,? Ms. Ford said.
Mr. Gallion’s and Mr. Cunningham’s new partners are no strangers to the vagaries of the horse business.

One partner, Jess Jackson, the founder of Kendall-Jackson wines, has sued several of his former advisers, charging they defrauded him out of $3 million by overcharging him for horses he purchased and taking kickbacks from sellers.

Another partner, Satish Sanan, who made his fortune addressing the computer concerns brought on by Y2K, said he, too, had been victimized by slick horse traders. It prompted him to push for a code of ethics for sellers and buyers. Mr. Sanan is now in the forefront of the industry’s reform movement.

Mr. Sanan said that he and his partners were not aware of the legal problems faced by Mr. Gallion and Mr. Cunningham when they purchased their portion of Curlin. He says that the lawyers that worked on the contract on their behalf have, however, assured them that their interest in the colt is protected.

Still, Mr. Sanan concedes that having a colt competing in Triple Crown races under a legal cloud is not the face he or the sport of thoroughbred racing wants to put forward.
“I don’t think it says a whole lot good about the industry, to be honest with you,? said Mr. Sanan, who said he had spent $150 million breeding and racing horses.

“It takes the limelight away from the horse,? he said. “At the end of the day, racing is all about the horses. Unfortunately, now the focus is on the ownership and the team.?

The pursuit of a Kentucky Derby champion can make for strange bedfellows. When Curlin demolished eight other horses, romping by 12 ¾ lengths, in his very first race, on Feb. 3 at Gulfstream Park in Florida, Mr. Gallion and Mr. Cunningham were bombarded with dozens of offers to sell the colt.

Most of them were for far more than the $3.5 million offered by Mr. Jackson, Mr. Sanan and George Bolton, an investment banker in San Francisco. But the higher bids were for the whole horse. Mr. Jackson, Mr. Sanan and Mr. Bolton were willing to let Midnight Cry Stable, the banner under which Mr. Gallion and Mr. Cunningham race, retain a piece of Curlin and chase a Kentucky Derby victory.

In the days before the Derby, in which Curlin finished third, photographs of Mr. Cunningham and Mr. Gallion in connection with the colt appeared in a couple of Kentucky newspapers. It did not go unnoticed among the fen-phen plaintiffs in a horse-crazy state.
“You can imagine how my phone began to ring off the hook,? said Ms. Ford, who expects a ruling on damages in the civil suit in the next couple of weeks. “Here are the lawyers that had defrauded them, and now they have a Derby contender.?
The $200 million fen-phen settlement, paid by American Home Products Corporation in 2001, was earmarked to compensate the plaintiffs for claims of heart damage caused by the drug combination, which had been withdrawn from the market at the request of the Food and Drug Administration.
When the plaintiffs sued the drug maker, they agreed to pay the lawyers 30 percent to 33 percent of any money that was recovered, in addition to expenses. In this case, that would have left the 440 clients to divide perhaps $135 million. The clients, however, received only $74 million and, on average, received less than 40 percent of what the settlement agreement specified, instead of the roughly 70 percent to which they were entitled.

Mr. Sanan said he and the other partners are focused solely on Curlin and have found Mr. Cunningham and Mr. Gallion pleasant team members. On the night before the Preakness, the group met for dinner at a farm near Pimlico owned by Mr. Bolton’s father. They will unite in New York on Saturday to see if Curlin can win for the fifth time in six races when he goes in the Belmont Stakes, the final leg of thoroughbred racing’s Triple Crown.

W. L. Carter cannot be as benevolent. But Mr. Carter, a builder of industrial models from Lawrenceburg, Ky., will be watching the Belmont intently, rooting for a horse and its growing worth, a value he someday hopes to share in.
“I’m cheering for the colt,? Mr. Carter said. “He was bought with stolen money, but I want Curlin to do well. He is one magnificent racehorse, and I’m invested in him.?
(emphasis added by LawReader) 

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