Opposition to Plaintiff’s Motion for Payment Plan and Extension to Pay Sanctions Amount

8/28/24

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OPPOSITION TO MOTION FOR PAYMENT PLAN
Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
Catherine A. Close, Bar No. 198549
cac@jbblaw.com
M. Adam Tate, Bar No. 280017
adam@jbblaw.com
JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
Irvine, California 92618
Telephone: (949) 477-2100
Facsimile: (949) 477-6355
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) nonprofit,
Plaintiff,
vs.
MCNAMARA, an
Individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
inclusive,
Defendants.
Case No. 2:22-cv-002052-SB-MAA
OPPOSITION TO PLAINTIFF’S
MOTION FOR PAYMENT PLAN
AND EXTENSION TO PAY
SANCTIONS AMOUNT[SUPPORTING DECLARATION OF M.
ADAM TATE HEREWITH] [Assigned to the Hon. Maria A. Audero] Jeremy Whiteley and McNamara (collectively, “Creditors”),
respectfully submit this Opposition to the Motion for Payment Plan and Extension to
Pay Discovery Sanctions Amount brought by Breaking Code Silence (“BCS”).
Case 2:22-cv-02052-MAA Document 220 Filed 08/28/24 Page 1 of 5 Page ID
#:9188
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OPPOSITION TO MOTION FOR PAYMENT PLAN
OPPOSITION
The payment plan presented by BCS is unacceptable for a variety of reasons.
First, the payment term is indefinite and it is unclear when (if ever) the sanction
award will be fully paid. Second, the “security interest” offered by BCS is
ambiguous and not mentioned in the proposed order making it unclear how
Creditors’ interests would be protected if the payments were not made. Third, the
proposed plan would effectively require the Court to monitor the payment of
sanctions for years or potentially decades. Indeed, as near as can be determined,
BCS has not raised any significant money in the last several years and there is no
indication that it is likely to raise significant money in the future. Fourth, and
perhaps most importantly, BCS has not explained why it cannot borrow the money
needed to pay the award from one its board members or its attorneys on the same
terms that are being presented to Creditors. Presumably, if the payment terms are
fair and there is likelihood of the debt being repaid, someone associated with BCS
would be willing to make the loan. BCS’s proposed plan unfairly shifts the risk of
default on to Creditors.
Creditors also note that the Court’s previous order required the payment of
the sanction within thirty days and it emphasized in bolded and underlined language
that the payment must be timely and that failure to make a timely payment could
result in further sanctions, including sanctions against the attorneys. (DKT 212.)
BCS is has violated the Court’s order by failing to timely make the sanction
payment and Creditors respectfully submit that additional sanctions are warranted.
Finally, BCS’s Motion was accompanied by a declaration of Jenny Magill
which contains a multitude of falsehoods which are completely irrelevant to the
instant motion. Creditors have chosen to not address these falsehoods except to note
that their counsel repeatedly asked BCS’s lawyers to not to use this motion as an
opportunity to spread lies and to further needlessly harm Creditors’ reputations.
(Declaration M. Adam Tate, ¶ 2, Ex. 1.) Unfortunately, this request was not
Case 2:22-cv-02052-MAA Document 220 Filed 08/28/24 Page 2 of 5 Page ID
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OPPOSITION TO MOTION FOR PAYMENT PLAN
honored.
For the foregoing reasons, BCS’s motion should be denied.
DATED: August 28, 2024 JULANDER, BROWN & BOLLARD
By: /s/ M. Adam Tate
M. Adam Tate
Catherine Close
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
Case 2:22-cv-02052-MAA Document 220 Filed 08/28/24 Page 3 of 5 Page ID
#:9190
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OPPOSITION TO MOTION FOR PAYMENT PLAN
L.R. 11-6.2 CERTIFICATION
The undersigned, counsel of record for Defendants certifies that this brief
contains 2,413 words, which complies with the word limit of L.R. 11-6.1.
Date: August 28, 2024 /s/ M. Adam Tate
M. Adam Tate
Case 2:22-cv-02052-MAA Document 220 Filed 08/28/24 Page 4 of 5 Page ID
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CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of August, 2024, I electronically filed
the foregoing paper(s) with the Clerk of the Court using the ECF system which will
send notification to all parties of record or persons requiring notice.
/s/ Helene Saller
Helene Saller
Case 2:22-cv-02052-MAA Document 220 Filed 08/28/24 Page 5 of 5 Page ID
#:9192

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DECLARATION OF M. ADAM TATE
Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
Catherine A. Close, Bar No. 198549
cac@jbblaw.com
M. Adam Tate, Bar No. 280017
adam@jbblaw.com
JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
Irvine, California 92618
Telephone: (949) 477-2100
Facsimile: (949) 477-6355
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) nonprofit,
Plaintiff,
vs.
MCNAMARA, an
Individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
inclusive,
Defendants.
Case No. 2:22-cv-002052-SB-MAA
DECLARATION OF M. ADAM
TATE IN SUPPORT OF
OPPOSITION TO PLAINTIFF’S
MOTION FOR PAYMENT PLAN
AND EXTENSION TO PAY
SANCTIONS AMOUNT[Assigned to the Hon. Maria A. Audero] Case 2:22-cv-02052-MAA Document 220-1 Filed 08/28/24 Page 1 of 3 Page ID
#:9193
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DECLARATION OF M. ADAM TATE
DECLARATION OF M. ADAM TATE
I, M. ADAM TATE, declare as follows:
1. I am an attorney duly admitted to practice before this Court. I am a
partner with Julander, Brown & Bollard, attorneys of record for Defendants
MCNAMARA (“McNamara”) and JEREMY WHITELEY
(“Whiteley” collectively “Defendants”). I submit this Declaration in support of
Defendants’ Opposition to Plaitniff’s Motion for Payment Plan and Extension to
Pay Sanctions Amount. I have personal knowledge of the following facts, and if
called upon to testify, I could and would competently testify thereto.
2. On July 30, 2024, Dennis Kiker of DLA Piper, counsel for Plaintiff,
sent me an email outlining proposed payments terms and BCS’s demands on
Defendants contingent on BCS making future payments. I repeatedly asked Mr.
Kiker not use the motion as an opportunity to spread lies and to further needlessly
harm Creditors’ reputations. A true and correct copy of this email string with
Dennis Kiker is attached hereto as Exhibit 1.
I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct.
Executed August 28, 2024, at Irvine, California.
M. ADAM TATE
Case 2:22-cv-02052-MAA Document 220-1 Filed 08/28/24 Page 2 of 3 Page ID
#:9194
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CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of August, 2024, I electronically filed
the foregoing paper(s) with the Clerk of the Court using the ECF system which will
send notification to all parties of record or persons requiring notice.
/s/ Helene Saller
Helene Saller
Case 2:22-cv-02052-MAA Document 220-1 Filed 08/28/24 Page 3 of 3 Page ID
#:9195