Violation of Administrative Procedure Act

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 1 of 14
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.
PALMAT INTERNATIONAL, INC.;
a Florida Corporation; ROBERTO
WELLISCH, individually,
Petitioners,
VS.
ERIC H. HOLDER, JR., Attorney General

of the United States of America,
Respondent.
PETITION FOR WRIT OF MANDAMUS, DECLARATORY JUDGMENT, AND

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT
Petitioners, Palmat International, Inc. and Roberto Wellisch, by and through their
undersigned counsel, hereby file this Petition against Eric H. Holder, Jr. in his official capacity
as the Attorney General of the United States of America and state as follows.
NATURE OF THE ACTION

The Attorney General cannot grant a request for documents under a Mutual Legal
Assistance Treaty ("MLAT") with a foreign country if compliance with such request would lead
to the violation of the constitutional rights of a person with a cognizable constitutional interest in
such documents.
Under the veil of the MLAT between the Republic of Argentina and the United States,
the Government of Argentina has requested the production by the United States of Petitioners'
confidential bank records in the United States. Petitioners have established that the Government
of Argentina has made public and allowed the Argentine media to access all the documents
{22964062;1}
pertaining to this request. Indeed, a copy of a confidential communication from the Department
of Justice to the Government of Argentina regarding the request for bank records appeared in one
of the major newspapers in Argentina. As such, Petitioners are justified in their belief that the
Government of Argentina intends to make public the requested bank records.
Notwithstanding, the Attorney General has authorized the issuance of a subpoena to
Petitioners' banks ordering the production of the requested bank records and, upon information
and belief, is in the process of compiling the requested documents from Petitioners' banks. Any
financial document produced by the Department of Justice in response to the request in all
likelihood will be made public in Argentina in violation of Petitioners' constitutional rights.
This Petition is filed to prevent this abject violation of Petitioners' constitutional right and
to prevent the disclosure of their confidential financial information to the public. This Petition
seeks (i) a Writ of Mandamus pursuant to 28 U.S.C. 1361; or alternatively (ii) Declaratory
Judgment and Injunctive Relief, under 28 U.S.C. 2201; and (iii) judicial review of the Attorney
General's actions pursuant to the Administrative Procedure Act, 5 U.S.C. 702 et seq.
THE PARTIES
1.
Petitioner Palmat International, Inc. ("Palmat") is a corporation organized under
the laws of the State of Florida with its principal place of business located in this District.
2.
Petitioner Roberto Wellisch ("Wellisch") has a residence in this District. Mr.
Wellisch is sui juris and is otherwise entitled to the protections and guarantees of the
Constitution of the United States as he has established substantial and meaningful contacts with
the United States. Mr. Wellisch operates various businesses and companies in the United States
and is a recognized foreign investor in the country. Mr. Wellisch is the majority shareholder of
Palmat and has a real interest in this controversy as most of the documents requested by the
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Government of Argentina contain confidential and private financial information about Mr.
Wellisch or companies in which he has a majority interest.
3.
Respondent Eric H. Holder, Jr. is the Attorney General of the United States of
America and in this capacity has the obligation to refrain from ordering the production of any
document requested pursuant to a Mutual Legal Assistance Treaty if compliance with such
request would lead to the violation of the constitutional rights of a person with a cognizable
constitutional interest in such documents.
JURISDICTION AND VENUE
4.
This Court has original jurisdiction over the subject matter of this Petition
pursuant to 28 U.S.C. 1331 and 1361, as this is an action based on the laws of the United
States and in the nature of a mandamus to compel an officer of the United States to perform a
duty owed to Petitioners.
5.
Venue is proper in this district pursuant to 28 U.S.C. 1391(e)(3) as Petitioner
Palmat is a resident of this District and this Petition does not involve real property.
6.
All conditions precedent, if any, to the filing of this Petition have been waived,
excused, or have otherwise occurred.

GENERAL ALLEGATIONS
A.
Procedural History
7.
On or about May 1, 2010, the Ministry of Foreign Affairs of the Republic of
Argentina, pursuant to the Mutual Legal Assistance Treaty between Argentina and the United
States, issued a request to the United States Department of Justice seeking the production of
confidential bank records regarding Petitioners' bank accounts in the United States.
{22964062;1}
8.
The Attorney General, acting as the head of the Department of Justice and
through the Office of International Affairs ("OIA") of the Department of Justice, denied the
request for documents on the grounds that it was legally insufficient and deficient. On July 8,
2010, the Attorney General, through the OIA, advised the Government of Argentina that the
MLAT request was procedurally deficient, as it was not specific as to the crime presumptively
being investigated and did not state how the production of the requested documents would
advance the criminal investigation taking place in Argentina.
9.
Thereafter, on or about September 14, 2010, the Ministry of Foreign Affairs of
Argentina issued a second MLAT renewing its request for the same confidential bank records of
Petitioners.
10.
Upon information and belief, the second MLAT request was equally deficient.
Notwithstanding, the Attorney General, through the OIA, granted the request and proceeded to
issue subpoenas to Petitioners' banks compelling the production of the requested bank records.
11.
Thereafter, an Assistant United States Attorney was appointed as commissioner
by a United States District Court and, acting on behalf of the Attorney General, issued a
subpoena directed to Regions Bank demanding the production of Petitioners' confidential bank
records.
12.
After the subpoenas were issued, an official with the OIA sent an email to its
counterpart at the Argentina Ministry of Foreign Affairs stating that the Assistant United States
Attorney assigned to the request reported that the requested bank records were too voluminous
and asked whether the breadth of the MLAT request could be limited to a specific time frame or
specific transactions.
{22964062;1}
13.
Thereafter, the Ministry of Foreign Affairs of Argentina issued a supplemental
MLAT request to the OIA. Upon information and belief, this supplemental request did not
respond to the prior inquiry by the OIA, but instead identifies additional bank accounts in the
name of Petitioners in the United States and sought the production of the same type of
confidential financial information requested in the initial request.
14.
Upon information and belief, the OIA has not yet responded to this supplemental
MLAT.
The production of the requested confidential bank records will lead to the violation
B.
of Petitioners' constitutional rights
15.
As Petitioners have explained in several occasions to the officers of the OIA, the
Government of Argentina has made public all the information that it has been able to compile
regarding Petitioners and will most likely make public any bank record obtained pursuant to the
MLAT request, which would violate Petitioners' constitutional rights.
16.
To date, all of the information obtained by the Argentine Judge in charge of the
criminal investigation, including all exchanges of communications between government entities

in the United States and Argentina, are part of the public record of this investigation and can be
accessed by any third party by viewing the record of the proceedings.
17.
Newspaper reporters have secured this information and have written several news
articles regarding this investigation. In fact, confidential and private information regarding the
bank account of Petitioners in the United States, including account numbers and routing codes,
have appeared in the published press. For example, on August 20, 2010, the newspaper "El
Reporte" published an article giving specific information about the request for financial
documents regarding Palmat and explicitly stated that it was able to access the confidential
letters that the Department of Justice of the United States had sent to the Government of
(22964062; I )
Argentina regarding this request. A copy of the "El Reporte" article and other newspaper articles
disclosing Petitioners' confidential information are attached hereto as Composite Exhibit No. "1."
These articles included a copy of the confidential letter from the Department of Justice asking for
more specific information about the Request and confidential financial information of
Petitioners. See Ex. 1.
18.
This disclosure also makes Petitioners and individuals associated with them
targets of potential criminal activities, including the possibility of kidnapping, blackmail and
extortion. In fact, close family relatives of Mr. Wellisch have been subjected to criminal
activities, including kidnapping and even murder. It is believed that these criminal activities
resulted from the direct disclosure of the financial information of Petitioners as the criminal
activities took place shortly after its publication.
19.
Despite efforts by Petitioners to prevent the disclosure of any such confidential
and sensitive information, the authorities in Argentina have refused and/or failed to undertake the
necessary steps to make certain that any information gathered pursuant to this criminal
investigation, including confidential information of Petitioners, be withheld from the public view
and domain. Consequently, since the authorities in Argentina have failed and refused to abide by
the confidentiality obligations imposed by the MLAT, it is imperative that the Attorney General
refrain from producing any confidential information of Petitioners and thus, protect Petitioners'
constitutional rights.
20.
Further, the public disclosure of MLAT requests and related inter-governmental
communications, is in violation of Articles 5 and 7 of the MLAT between Argentina and the
United States, which establishes that any document pertaining to a confidential request must be
reciprocally maintained confidential.
;22964062;1)
C.
Facts Underlying the Investigation in Argentina

21.
The investigation being conducted in Argentina stems from the sale to Venezuela
of agricultural equipment manufactured in Argentina (500 tractors, 240 harvesters and other
machinery, the "Equipment") pursuant to a treaty between Venezuela and Argentina. The
Equipment was sold by 39 individual manufacturers and the sale was supported by the
Association of Machinery Manufacturer of Argentina (Camara Argentina de Fabricantes de
Maquinaria Agricola or "CAFMA "), a trade association composed of the manufacturers of said
Equipment.
22.
The investigation focuses on alleged bribes paid by the members of CAFMA to
government officials in Argentina.The investigation originated from a statement by a

purportedly anonymous declarant who claimed that bribes were paid to Argentine government
officials in connection with the sales. The statement was subsequently ascribed to an individual
named Rogelio Martinez. Suspiciously, Mr. Martinez has never appeared in the investigative
proceedings and the address that appears in the public filings is a false address.
23.
Notwithstanding, a formal criminal investigation into the allegations of bribery
was requested by a political coalition named CoaliciOn Civica. The request was granted, and in
2008 a judge in Buenos Aires, Argentina commenced an investigation of the allegations.
24.
Palmat has asserted its innocence and has vigorously challenged the investigation
for failure to meet the most basic probable cause standards and for failure to establish that any
law whatsoever was violated.
25.
Despite the sworn testimony of numerous witnesses, the production of thousands
of documents, and an investigation of almost four years, the judge in charge of the investigation
has not found any evidence of wrongdoing and no charges have been brought to date.
{22964062;1}
26.
The falsity of the allegations asserted against Palmat has been denounced by
several officers of the Government of Argentina, none of whom participated in the underlying
private transaction between Palmat and the Government of Venezuela. The Ombudsman of
Argentina (known as the "defender of the people") has explicitly stated that the allegations that
bribes were paid in connection to the sale of the Equipment are false. Similarly, the Minister of
Federal Planning, Public Investment, and Services of Argentina, Dr. Julio De Vido, said that
allegations made to the effect that his office was engaged in any improper conduct in Venezuela
are baseless. In fact, Minister De Vido has filed a civil case in Argentina for defamation. The
allegations were also denied by Argentine businessman Eduardo Cabana and Jose Aizpon, who
also testified under oath before the judge responsible for the investigation.
27.
In addition, in May and August of 2010, the current and past Directors of
CAFMA testified that the contractual relationship between the manufacturer of the Equipment
and Palmat was not tainted by any wrongdoing and was driven by the need to contract the
services of an entity with the expertise in the field which could handle the procedures necessary
to consummate the transaction. In conjunction with this testimony, the copies of the agreements
entered into between Palmat and the Argentine agricultural machinery manufactures as well as
copies of bank transfers in relation with the sales were produced by Palmat. The court received
documentary evidence that the commissions received by Palmat in connection with the sales to
Venezuela amounted to 9.74% of the total sales price, a commission level which is in line with
industry standards for countries with high risk such as Venezuela and which is substantially
lower than the 15 to 25% paid by CAFMA members for local sales in Argentina. The testimony
of all of the witnesses who have testified in the investigation as of December of 2011 has
corroborated the testimony of the current and past Directors of CAFMA with respect to the
{ 22964062;1
legitimacy of the relationship between the manufacturer of the Equipment and Palmat. Indeed, it
has been established that no government official played an active role in the negotiation of the
contracts at issue or the execution of the same, which further confirms Palmat's innocence.
COUNT I
Writ of Mandamus
28 U.S.C. 1361
28.
Petitioners re-allege paragraphs 1 through 27 and incorporate them by reference
as if fully set forth herein.

29.
Petitioners have a clear constitutional right to the enjoyment of life, liberty, and
property. U.S. Const. amend. V; amend. XIV, 1. This right extends and protects Petitioners'
interest in avoiding the disclosure of confidential information and maintaining their personal
affairs private.
30.
The Attorney General is obligated to protect Petitioners' constitutional rights in
connection with any request for documents served by a signatory country pursuant to all of the
Mutual Legal Assistance Treaties of the United States. Specifically, the Attorney General is
obligated to deny any request for documents to the extent that compliance with such request
would lead to the violation of the constitutional rights and guarantees of a person with a
cognizable constitutional interest in the requested documents.
31.
In violation of the duties and obligations owed to Petitioners, the Attorney
General, through the OIA, has granted the request for Petitioners' bank records and intends to
produce the requested confidential documents despite the evidence establishing that such
documents will be made public in Argentina in violation of Petitioners' constitutional rights.
32.
The Attorney General's dereliction of the duties and obligations owed to
Petitioners has left Petitioners without any adequate relief at law.
{22964062;1}
33.
Petitioners will be prejudiced and will suffer irreparable harm if the Attorney
General produces the requested banking information to the Government of Argentina

34.
The public has an interest in ensuring that the Attorney General complies with his
obligations to refrain from granting any request under a Mutual Legal Assistance Treaty if
compliance with such request would violate the constitutional rights of a resident of the United
States.
WHEREFORE, Petitioners respectfully request that the Court enter a judgment
mandating that the Attorney General refrain from producing any confidential financial
information regarding Petitioners' bank accounts in the United States to the Government of
Argentina and granting Petitioners any further relief the Court deems fair and proper, including
but not limited to attorneys' fees and costs incurred in this action to the extent such relief is
legally available.
COUNT II
Declaratory Judgment
28 U.S.C. 2201-2202
35.

36.
This Count is pled in the alternative to the extent that the declaratory relief
available under 28 U.S.C. 2201-2202 is deemed to constitute an adequate remedy for

Petitioners' claims.
37.
Under the Declaratory Judgment Act of 28 U.S.C. 2201-2202, this Court has
jurisdiction to declare the rights of Petitioners to enjoin the Attorney General from granting a
request for documents that would lead to the violation of Petitioners' constitutional rights.
122964062;1}
10
38.
A justiciable and actual controversy exists as the Attorney General continues to
process the request for confidential bank records submitted by the Ministry of Foreign Affairs of
Argentina with the intention of granting this request despite evidence establishing that the
production of the requested documents would lead to the violation of Petitioners' constitutional
rights.
39.
The issues involved in the controversy are ripe for judicial determination because
there is a substantial controversy, between parties having adverse legal interests, of sufficient
immediacy and reality, to warrant the issuance of a declaratory judgment.
40.
A declaratory judgment is both necessary and proper in order to set forth and
determine the rights, obligations and liabilities, if any, that exist between the parties.
41.

42.
General produce the requested banking information to the Government of Argentina.

43.
States.
WHEREFORE, Petitioners respectfully request that the Court enter a declaratory
judgment and/or any appropriate injunctive order declaring that the Attorney General shall
refrain from producing any confidential financial information regarding Petitioners' bank
accounts in the United States to the Government of Argentina and granting Petitioners any
122964062; I )
11
further relief the Court deems fair and proper, including but not limited to attorneys' fees and
costs incurred in this action to the extent such relief is legally available.
COUNT III
Administrative Procedure Act
5 U.S.C. 701 et seq.
44.

45.
This Count is pled in the alternative to the extent that the review available under
the Administrative Procedure Act, 5 U.S.C. 701 et seq., is deemed to constitute an adequate
remedy for Petitioners' claims.
46.
Under the Administrative Procedure Act, 5 U.S.C. 701 et seq., this Court has
jurisdiction to review the actions of the Attorney General granting the request for Petitioners'
confidential banking information submitted by the Government of Argentina pursuant to the
Mutual Legal Assistance Treaty between the two countries.
47.
Petitioners have a clear constitutional right to the enjoyment of life, liberty, and
property. U.S. Const. amend. V; amend. XIV, 1. This right extends and protects Petitioners'
interest in avoiding the disclosure of confidential information and maintaining their personal
affairs private.
48.
The Attorney General is obligated to protect Petitioners' constitutional rights in
connection to any request for documents served by a signatory country pursuant to all of the
Mutual Legal Assistance Treaties of the United States. Specifically, the Attorney General is
obligated to deny any request for documents to the extent that compliance with such request
would lead to the violation of the constitutional rights and guarantees the constitutional rights
and guarantees of a person with a cognizable constitutional interest in the requested documents.
(22964062;1
12
49.
In violation of the duties and obligations owed to Petitioners, the Attorney
General, through the OIA, has granted the request for Petitioners' banking information and
intends to produce the requested confidential documents despite the evidence establishing that
such documents will be made public in Argentina in violation of Petitioners' constitutional rights.
50.

51.
General produce the requested banking information to Argentina

52.
States.
WHEREFORE, Petitioners respectfully request that the Court enter a judgment ordering
that the Attorney General refrain from producing any confidential financial information
regarding Petitioners' bank accounts in the United States to the Government of Argentina and
granting Petitioners any further relief the Court deems fair and proper, including but not limited
to attorneys' fees and costs incurred in this action to the extent such relief is legally available.
{22964062;1}
13
Case 1:12-cv-20229-PAS Document 1-2 Entered on FLSD Docket 01/20/2012 Page 1 of 6
COMPOSITE EXHIBIT 1
Clarin: Pagina 25
EN LA CAUSA POR LA "EMBAJADA PARALELA" Y EL PAGO DE

COMISIONES POR LA VENTA DE MAQUINARIA
Negocios con Chavez: EE.UU. pide datos para abrir una cuenta
Solicito precisiones a un juez para decidir si levanta el secreto bancario
por Palmat.
El Gobierno estadounidense le pidi6 precisiones al juez federal Julian Ercolini
sobre un exhorto remitido a ese pals el aft pasado en el que se procura
determinar informacion de Ia empresa Palmat. Es en el marco de la causa
abierta para determinar si hubo sobornos a funcionarios argentinos por parte de
las empresas que participaron de exportaciones a Venezuela a traves de un
convenio firmado con el gobierno de Hugo Chavez. La respuesta al exhorto,
conocida ayer, este relacionada con una cuenta bancaria con Ia que operaba
Palmat en el banco Regions, de Miami. Las autoridades estadounidenses le
dijeron al juez que precisan saber que periodo de tiempo es el que le interesa
analizar y cuales movimientos de fondos, segOn informo Ia agencia DyN.
Ercolini habia ordenado en mayo pasado el libramiento del exhorto cuya
respuesta Ilego ahora. Alli pedia un listado del movimiento de la cuenta
correspondiente a la firma Palmat Internacional SA y que Ileva el numero
9660363830. Los norteamericanos recordaron que las operaciones a
desclasificar deben ser especificadas por cuanto ester) protegidas por leyes
federales. El ex embajador en Venezuela Eduardo Sadous denunci6 Ia
existencia de una "embajada paralela" que funcion6 con linea directa entre Ia
Casa Rosada y las autoridades venezolanas. Sadous relato que empresarios
que quisieron participar del negocio de exportaciOn de maquinaria agricola a
ese pals le dijeron que se ies habia pedido retornos de entre el 15% y el 20%,
presuntamente destinados a funcionarios del Ministerio de Planificacion
Federal. La "embajada paralela" denunciada por Sadous tuvo como principal
protagonista al ex titular del Organo de Control de Concesiones Viales
(OCCOVI) Claudio Uberti, quien solia viajar a ese pals con regularidad. Uberti
fue el principal pasajero del recordado vuelo que trajo al pals al empresario
venezolano-estadounidense Alejandro Antonini Wilson en plena campana
electoral de 2007, cuando fue electa la presidenta Cristina Fernandez de
Kirchner, y con una valija con casi 800 mil dolares. Esta causa este
empantanada ya que ni Antonini ni otros acusados -como los venezolanos
Diego y Daniel Uzcategui- se presentaron a declarer en Ia causa. Indus() la
Justicia reclama informes de los Estados Unidos. La empresa Palmat actu6 de
intermediaria en las operaciones y Ia Justicia trata de determiner si a traves de
ells se encubrio el pago de sobornos via las comisiones que cobr6 por su
trabajo
Distinci6n a juez
El juez del Tribunal de Casaci6n de Ia provincia de Buenos Aires, Carlos
Alberto Mahiques, obtuvo el grado de Doctor en Derecho en la Universidad de
Poitiers, Francia tras defender una tesis.
La Nacion: Pagina 16
EMBAJADA PARALELA
EE.UU. pide precisiones a Ia Justicia
Es por las cuentas de una empresa

El gobierno norteamericano pidiO a Ia justicia argentina precisiones sobre un
exhorto diplomatic por el que le requiri6 los movimientos de las cuentas
bancarias de una empresa de los Estados Unidos investigada por haber
actuado como intermediaria en negocios oficiales con Venezuela. Se trata de Ia
causa donde el juez federal Julian Ercolini investiga -como lo denunci6 el ex
embajador argentino en Venezuela Eduardo Sadous- si funcionarios argentinos
cobraron sobornos para facilitar que empresas argentinas le vendieran
maquinaria agricola a Venezuela. La intermediaria en estas operaciones era
Palmat, con sede en Miami, y Ia sospecha del fiscal Gerardo Pollicita es que el
soborno se facturaba a traves del pago de comisiones. Por eso pidi6 conocer
los movimientos de sus cuentas en el Regions Bank de Florida. Pero los
norteamericanos quisieron saber las pruebas que avalaban ese pedido y el
juzgado se las envio. Ahora informaron que el banco cuenta con todos los
extractos de los Ciltimos siete arms, pero si ademas el juzgado quiere los
detalles de cada transferencia, la respuesta puede demorar mucho tiempo,
dado el volumen de la informacion. Otra opcion seria acotar el periodo de
tiempo. Ya declararon un centenar de testigos, incluidos empresarios que
exportaron a Venezuela. El juez Ercolini aCin no Ilamo a nadie a indagatoria,
pero su colega Rodolfo Canicoba Corral proceso a Sadous por falso testimonio.
La Prensa: Pagina 6
EE.UU. requirio informes por Ia "embajada paralela"
El Departamento de Estado del gobierno de Barack Obama reclam6 al juez

federal argentino Julian Ercolini "precisiones" sobre un pedido de informes en el
marco de la causa de la denominada "embajada paralela" de Venezuela,
denunciada por el ex embajador argentino en Venezuela Eduardo Sadous. La
investigacian judicial busca determinar si se pagaron sobornos en Ia yenta de
maquinaria agricola al pals caribetio. La informaci6n este vinculada con una
cuenta de Ia empresa Palmat, virtual intermediaria en las transacciones y
donde, segun las sospechas relacionadas con la investigaciOn, podrian estar
depositados fondos de las "comisiones" pagadas por los contratistas a terceros,
que habrian regresado como "retornos" para funcionarios. El Departamento de
Estado de los Estados Unidos reclarno a Ercolini que especifique que
movimientos de fondos apunta a determinar, y sobre todo a que periodos se
refiere. La respuesta al exhorto recuerda que las operaciones a desciasificarse
deben ser especificadas, puesto que el resto estan protegidas por las leyes
federales estadounidenses. Pese a que hace unos dos arms que la causa este
en tramite, hasta el momento son practicamente nulas las pruebas

incriminatorias recogidas en el expediente. El ex embajador argentino en
Venezuela Eduardo Sadous denunci6 ante la Justicia que unos empresarios
que realizaron negocios con ese pals le dijeron que debian pagar comisiones
del 15 at 20%, y dijo que esos hombres de negocios mencionaron el Ministerio
de Planificacion. Adernas, indic6 que existia un circuito de negociaciones
comerciales paralelo a la actividad diplomatica oficial, mediante el cual se
cerraban los contratos comerciales. Mencion6 a Uberti como quien manejaba
ese canal informal

MIAMI DIVISION
CASE NO. 1:12-CV-20229-SEITZ/SIMONTON
Petitioners,
Vs.
ERIC H. HOLDER, JR. Attorney General
Respondent.
__________________________________/
NOTICE OF FILING PROPOSED SUMMONS
Petitioners PALMAT INTERNATIONAL, INC., and ROBERTO WELLISCH, file the
attached Proposed Summons to ERIC H. HOLDER, JR, U.S. Attorney General.
Dated: January 25, 2012.
Respectfully submitted,
AKERMAN SENTERFITT
SunTrust International Center
One S.E. Third Avenue 25th Floor
Miami, Florida 33131-1704
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
By:
{23125344;1}
/s/ Francisco A. Rodriguez

Jacqueline M. Arango
Florida Bar No. 664162
jacqueline.arango@akerman.com
Francisco A. Rodriguez, Esq.
francisco.rodriguez@akerman.com

AO 440 (Rev. 12/09) Summons in a Civil Action

for the
Southern District of Florida

Plaintiff
v.

-
Defendant
)
)
)
)
)
)
)
Civil Action No.
SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)
I personally served the summons on the individual at (place)

on (date)
; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, and mailed a copy to the individuals last known address; or
I served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)

on (date)
; or
I returned the summons unexecuted because
; or
Other (specify):
.
My fees are $
for travel and $
for services, for a total of $
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:

MIAMI DIVISION
CASE NO. 1:12-cv-20229-PAS
Petitioners,
vs.
Respondent.
__________________________________/
PETITIONERS' SECOND REQUEST FOR HEARING ON
EMERGENCY MOTION FOR PRELIMINARY INJUNCTION
undersigned counsel, hereby request a hearing on their emergency motion for a preliminary
injunction.
Introduction
On February 22, 2012, the Court, sua sponte, vacated its order scheduling an emergency
hearing on Petitioners' Motion for Preliminary Injunction. It appears that the order vacating the
hearing was issued given the Court's concerns that Respondent had not received sufficient notice
of the Motion for Preliminary Injunction and the hearing set for February 24, 2012.
Petitioners do not object to the postponement of the emergency hearing in order to give
Respondent sufficient time to present his defense in this action. However, because Respondent
is believed to be preparing to release the confidential financial and bank documents requested by
the Argentine Judge, Petitioners request that the Court (i) temporarily enjoin Respondent from
{23638745;1}
releasing the financial and bank documents at issue pending the adjudication of the pending
Motion for Preliminary Injunction and (ii) schedule the hearing on an expedited basis.
A temporary injunction pending the adjudication of the Motion for Preliminary
Injunction is particularly appropriate in this case as Respondent was immediately notified of the
filing of the Motion for Preliminary Injunction and the subsequent order setting the emergency
hearing. Additionally, as set forth in more detail below, since the filing of the Petition and the
request for a Preliminary Injunction, Petitioners have made repeated attempts to personally speak
to Respondent's counsel in order to discuss this case and the hearing.
Respondent received immediate notice of the filing of
the Motion for Preliminary Injunction and Notice of Hearing
Given the emergency nature of their request for an injunction, Petitioners' counsel took
various steps to ensure that Respondent received immediate notice of the filing of the Emergency
Motion for Preliminary Injunction.
Indeed, upon the filing of this action, the undersigned counsel sent a letter, by Federal
Express and electronic mail, to Magdalena Boyton, the person with whom the undersigned
counsel has been communicating at the Office of International Affairs of the Department of
Justice, giving Respondent notice of the filing of the action, informing Respondent of the grave
consequences that the release of some of the Petitioners' confidential information had had, and
indicating that Petitioners intended to seek an injunction if the Respondent continued with its
plan to release additional documents to the Argentine Judge. See letter to Magdalena Boyton
dated January 23, 2012 attached hereto as Exhibit "1."
Give the lack of a satisfactory response from the Respondent, Petitioners filed their
Motion for a Preliminary Injunction. Once the Motion for Preliminary Injunction was filed,
Petitioners' counsel sent a copy of the Motion for Preliminary Injunction to the Respondent:
{23638745;1}
By U.S. mail: on February 16, 2012. See Certificate of Service of Motion for
Preliminary Injunction;1 and
By electronic mail: on February 17, 2012 at 8:28 a.m. See electronic mail to
Magdalena Boyton attached as Exhibit "2."2
After the Court issued its notice of hearing, Petitioners' counsel immediately sent a copy
of the notice of hearing to the Respondent:
By electronic mail: on February 17, 2012 at 6:01 p.m. See electronic mail to
Ms. Boyton attached as Exhibit "3;"
By U.S. mail: on February 17, 2012;
By facsimile: on February 20, 2012. See fax confirmation attached as Exhibit
"4;" and
By Federal Express: on February 20, 2012.
In addition, on February 21, 2012, the undersigned counsel called the Office of the
Assistant Attorney General for Administration of the DOJ to discuss the case and to ensure that
the Respondent was aware of the upcoming hearing. Undersigned counsel was referred to the
Office of General Counsel (OGC) as the office tasked with logging in the new matter. Upon
calling OGC, the undersigned counsel was informed that there was no record of this case as
being logged in and was thus advised to call the Mail Referral Unit to ascertain whether service
had indeed been received. The undersigned called the Mail Referral Unit and provided the
necessary case information and, after calling back the next day - on February 22 - was informed
that service had been received but that the papers were "sitting in an attorney's box" in the OGC.
The undersigned called the OGC once again and was told that the papers were inadvertently not
logged in and that they were indeed "sitting in an attorney's box." Stressing the urgency of the
The date of mailing in the certificate of certificate of service was improperly formatted when the document was
converted into a searchable file, as required by the electronic filing rules. But undersigned counsel hereby certifies
that a copy of the Motion for Preliminary Injunction was sent by U.S. mail to the designee of the Respondent on
February 16, 2012.
2
While some of the e-mails sent by the undersigned counsel to Ms. Boyton have been returned as undeliverable,
this e-mail appears to have been properly delivered.
{23638745;1}
situation due to the upcoming hearing in Miami, the undersigned counsel asked to speak to the
attorney assigned to the case, but was told that he was in a meeting and that he was not going to
handle the matter but rather, was going to forward the case to the DOJ Civil Division for attorney
assignment. Again stressing that this matter needed to be forwarded immediately to an attorney
to handle the hearing and after calling back again to speak to the OGC attorney, the undersigned
counsel was told that the OGC attorney was again unavailable in yet another meeting, and was
told that there was no other available attorney to speak to and that nothing could be done.
It appears that Petitioners' filings fell either upon deaf ears or through the proverbial
cracks at the DOJ, and that this case was not given the prompt attention that it warrants, despite
repeated attempts by Petitioners' counsel to obtain the attention of someone with authority. This
neglect has prejudiced Petitioners in various ways, the most important of which is that at present,
Respondent has no impediment to release documents requested by Argentina pursuant to the
MLAT.
Argument
As explained in more detail in Petitioners' Motion for a Preliminary Injunction,
Petitioners are in need of emergency injunctive relief to preserve the status quo pending the
resolution of their claims.
Respondent appears to be at the brink of releasing to the a judge in Argentina Petitioners'
confidential financial and bank information in the United States in violation of Petitioners'
constitutional privacy rights. Once the financial information of Petitioners is released to the
Argentine Judge, Petitioners will suffer irreparable harm, as the Argentine Judge has released
and will continue to release to the public all the confidential information it receives regarding
Petitioners. Petitioners are left in a completely unprotected status at this time as there is nothing,
{23638745;1}
not even an agreement between counsel, that would preclude the Respondent from disclosing the
documents.
Such disclosure would violate Petitioners' constitutional rights and render this
lawsuit null and void.

Respondent's disclosure of Petitioners' financial and bank information to the Argentine
Judge would violate Petitioners' constitutional right to maintain the privacy of their financial
information. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977) (the right to privacy protects not
only independence in making certain kinds of important decisions but also the individual
interest in avoiding disclosure of personal matters.); Hester v. City of Milledgeville, 777 F.2d
1492, 1497 (11th Cir. 1985) (citing Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir.1978) for
the principle that the individual interest in avoiding disclosure of personal matters is
protected by the confidentiality strand of the constitutional right to privacy.); Statharos v. New
York City Taxi and Limousine Com'n, 198 F.3d 317, 323 (2d Cir. 1999) (following "Whalen, this
Court has recognized the existence of a constitutionally protected interest in the confidentiality
of personal financial information."); cf. California Bankers Ass'n v. Shultz, 416 U.S. 21, 7879
(1974) (Powell, J., concurring) (Financial transactions can reveal much about a person's
activities, associations, and beliefs. At some point, governmental intrusion upon these areas
would implicate legitimate expectations of privacy.).
Once the financial and bank documents are released, Petitioners would have no recourse
to prevent the public dissemination of its financial information in Argentina and no monetary
award could possible compensate Petitioners. Even if the Court were to ultimately find in favor
of Petitioners, any such relief would be totally inadequate and come too late. Tellingly, the
kidnapping (of two close relatives of Petitioner) and murder (of one relative of Petitioner) have
{23638745;1}
been linked to the release of financial information by the Government of Argentina about
Petitioners.
Petitioners do not object to the postponement of the hearing to allow the Respondent
more time to prepare and determine its position. However, to preserve and maintain this Court's
ability to adjudicate Petitioners' claims, Respondent must be temporarily enjoined from releasing
any documents or information pending a determination by this Court.
As shown above, Respondent has received ample notice of the Pending Motion for
Preliminary Injunction. As such, a temporary injunction pending the resolution of this motion is
appropriate.
WHEREFORE, Petitioners respectfully request that (i) Respondent be temporarily
preliminarily enjoined from producing any confidential financial information regarding
Petitioners' bank accounts in the United States to the Government of Argentina pending the
adjudication of Petitioners' Motion for Preliminary Injunction (ii) the Court set an expedited
hearing for Petitioners' Motion for Preliminary Injunction.
AKERMAN SENTERFITT
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
By: /s/Francisco A. Rodriguez

Jacqueline M. Arango, Esq.
{23638745;1}
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S.
mail this 23rd day of February, 2012 to:
Steffon Edmonds, as
Authorized Representative for
Eric H Holder, Jr.
US Attorney General
950 Pennsyvania Avenue, NW
Washington, DC 20530
Undersigned counsel will further endeavor to immediately send a copy of the foregoing to
by electronic mail and facsimile to any attorney assigned by the Department of Justice to this
case.
Francisco A. Rodriguez
{23638745;1}

MIAMI DIVISION
Petitioners,
vs.
Respondent.
__________________________________/
JOINT STIPULATION REGARDING EMERGENCY
MOTION FOR PRELIMINARY INJUNCTION
Petitioners, Palmat International, Inc. and Roberto Wellisch, and Respondent, Eric H.
Holder, Jr., in his capacity as United States Attorney General, hereby stipulate as follows:
1.
Respondent will file his response to the Petitioners' Motion for Preliminary
Injunction within 70 days from the date of the Order granting this stipulation. Petitioners will
have 30 days thereafter to file a brief in response to the Respondent's arguments. Respondent
may file a reply within 15 days thereafter.
2.
After the briefing has been completed, the Parties will advise the Court and jointly
request that a hearing be scheduled on Petitioners' Motion for Preliminary Injunction.

WHEREFORE, the Parties respectfully request that the Court adopt and accept this
stipulation and enter an order of the Court accordingly, and grant such further relief as it deems
necessary and appropriate. A proposed order is attached as Tab "A."
{23672193;1}
Date: March 12, 2012
Date: March 12, 2012
/s/Francisco A. Rodriguez
Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
/s/ Marlene A. Fernandez-Karavetsos

Marlene A. Fernandez-Karavetsos
Assistant U.S. Attorney
Marlene.fernandezkaravetsos@usdoj.gov
99 N.E. 4th Street
Miami, Florida. 33132
Telephone: (305) 961-9341
Facsimile: (305) 530-7139
{23672193;1}
TAB "A"
{23672196;1}

MIAMI DIVISION
CASE NO. 12-20229-CIV-SEITZ/SIMONTON

Petitioners,
vs.
Respondent.
__________________________________/
ORDER
Upon consideration of the Joint Stipulation Regarding Emergency Motion for
Preliminary Injunction submitted jointly by the parties, the Court accepts this Stipulation and
adopts the same as an Order of this Court.
DONE
AND
ORDERED
in
Miami,
Florida,
this
____
day
____________________________, 2012.
________________________________________
The Honorable Patricia A. Seitz
United States District Judge
Copies furnished to:
All counsel of record
{23672196;1}
of

CASE NO. 12-CV-20229-SEITZ/SIMONTON
Petitioners,
vs.
Respondent.
__________________________________/
AGREED MOTION FOR ENLARGEMENT OF DEADLINES
Respondent, Eric H. Holder, Jr., Attorney General of the United States of America,
together with the agreement of Petitioners counsel, hereby request this Court enlarge deadlines as
follows:
1.
On January 20, 2012, Petitioners filed their Petition for Writ of Mandamus,
Declaratory Judgment, and Violation of Administrative Procedure Act [D.E. 1], and on February
16, 2012, Petitioners filed their Verified Emergency Motion for Preliminary Injunction, Request
for Emergency Hearing, and Supporting Memorandum of Law [D.E. 5].
2.
Respondent was served on February 27, 2012.
3.
On February 24, 2012, this Court entered its Order Requiring Joint Scheduling
Report [D.E. 14], requiring the parties to jointly file their Joint Scheduling Report by May 9, 2012.
4.
Based upon the parties Stipulation [D.E. 19], on March 14, 2012, this Court
entered its Order Setting Briefing Schedule on Emergency Motion for Preliminary Injunction
[D.E. 20], whereby Respondents response to Petitioners Motion is due by May 23, 2012.
5.
Respondent requests additional time to respond to Petitioners Emergency Motion
for Preliminary Injunction and Petition.

6.
The undersigned is lead counsel in the matter styled as Doreen Whyte v. United
States Postal Service, Case No. 11-62112-CV-Cohn/Seltzer, which is scheduled for trial before
The Honorable James I. Cohn on the two week trial calendar commencing on May 29, 2012.
Additionally, the undersigned is co-counsel in the matter styled as Jose Aguilar v. Linda Swacina,
District Director, Miami Office, of the U.S. Citizenship & Immigration Services, et al., Case No.
09-23359-CIV-Seitz/Simonton, which is scheduled for trial before this Court the week of June 25,
2012.
7.
Therefore, Respondent requests an addition 60 days through and including July
23, 2012, to respond to Petitioners Motion and Petition. Respondent anticipates styling his
response as a motion to dismiss for lack of subject matter jurisdiction.
8.
Petitioners do not object to the requested enlargement.
9.
Additionally, Petitioners counsel will be traveling outside the jurisdiction for an
arbitration and will not return until May 14, 2012. Therefore, Petitioners request an additional
seven days through and including May 16, 2012 for the parties to file their Joint Scheduling
Report. Respondent does not object to the requested enlargement.
10.
This Motion is being filed in good faith and not for purposes of delay.
WHEREFORE, Respondent, Eric H. Holder, Jr., Attorney General of the United States of
America, together with the agreement of Petitioners counsel, hereby request this Court enlarge
deadlines as set forth above.
Dated: May 4, 2012
WIFREDO A. FERRER
UNITED STATES ATTORNEY
By:
s/ Marlene A. Fernandez-Karavetsos
MARLENE A. FERNANDEZ-KARAVETSOS
Assistant United States Attorney
Florida Bar No.: 187569
Marlene.Fernandez-Karavetsos@usdoj.gov
99 N.E. 4th Street, Third Floor
Miami, Florida 33132
Tel: (305) 961- 9341
Fax: (305) 530-7139
Counsel for Respondent
I HEREBY CERTIFY that on May 4, 2012, I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record identified on the Service List by CM/ECF.
s/Marlene A. Fernandez-Karavetsos
SERVICE LIST
PALMAT INTERNATION, INC. and ROBERT WELLISCH v. ERIC H. HOLDER, JR.,
Attorney General of the United States of America
United States District Court Southern District of Florida

Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095

PALMAT INTERNATIONAL, INC.,
a Florida corporation; ROBERTO
Petitioners,
vs.
ERIC H. HOLDER, JR., Attorney
General of the United States of America,
Respondent.
_________________________________/
RESPONDENTS MOTION TO DISMISS PETITIONERS PETITION FOR WRIT OF
MANDAMUS, DECLARATORY JUDGMENT, AND VIOLATION OF
ADMINISTRATIVE PROCEDURE ACT AND
RESPONSE TO MOTION FOR PRELIMINARY INJUNCTION
Respondent, Eric H. Holder, Jr., Attorney General of the United States of America, by and
through the undersigned Assistant United States Attorney, pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure and Rule 7.1(A) of the Local Rules for the United States
District Court for the Southern District of Florida, moves to dismiss Petitioners, Palmat
International, Inc. and Roberto Wellisch, Petition for Writ of Mandamus, Declaratory Judgment,
and Violation of Administrative Procedure Act [D.E. 1] for lack of subject matter jurisdiction over
Petitioners claims for writ of mandamus, declaratory judgment and under the Administrative
Procedure Act and for failure to state a claim upon which relief can be granted. Because
Petitioners cannot establish a likelihood of success on the merits of their Petition, Respondent also
requests this Court deny Petitioners Verified Emergency Motion for Preliminary Injunction [D.E.
5].
I.
INTRODUCTION
On January 20, 2012, Petitioners ask this Court to prevent the disclosure of [Petitioners]
confidential financial information to the public. Petition, at p. 2. In essence, they seek to have
the Court order Respondent not to respond to a formal request for assistance from the Republic of
Argentina made pursuant to the Mutual Legal Assistance Treaty (MLAT) between that country
and the United States of America. According to Petitioners, on or about May 1, 2010, the
Republic of Argentina, pursuant to the US-Argentina MLAT (as defined below), requested the
production by the United States of Petitioners bank records in the United States. See Petition, at
7. Petitioners allege that Respondent denied the request for documents on the grounds that
Argentinas MLAT request was legally insufficient and deficient.
See id. at 8.
After
Respondents alleged denial, Petitioners further assert that the Republic of Argentina submitted a
second MLAT request seeking the same bank records. See id. at 9. Petitioners further allege
that in accordance with the second MLAT request, Respondent sought appointment by the Court
of a commissioner to issue subpoenas, including a subpoena upon Regions Bank, seeking the
production of Petitioners bank records. See id. at 10-11. According to Petitioners, the
appointed commissioner who issued the subpoenas for such records indicated that the requested
bank records were too voluminous and the Central Authority (as defined below) asked whether the
MLAT request could be limited to a specific time frame or specific transactions. See id. at 12.
In response, the Republic of Argentina allegedly issued a supplemental MLAT request. See id. at
13.
Petitioners allege generally that Respondents response to the MLAT requests will violate
their constitutional rights. See id. at p. 2. In particular, Petitioners argue that the Republic of
Argentina has previously made public all the information that it has been able to compile
2
regarding Petitioners and will most likely make public any bank record obtained pursuant to the
MLAT request, which would violate Petitioners constitutional rights. See id. at 15.
In asking this Court to prevent Respondent from responding to the MLAT request,
Petitioners seek the following: (1) mandamus under 28 U.S.C. 1361; (2) declaratory judgment
pursuant to 28 U.S.C. 2201-2202; and (3) judicial review under the Administrative Procedure
Act (APA) (5 U.S.C. 701 et seq.).
For the reasons set forth below, this Court lacks subject matter jurisdiction over
Petitioners claims. The US-Argentina MLAT by its express terms forecloses this action.
Article 1, Section 4 makes clear that the Treaty is intended solely for mutual legal assistance
between the Parties, and does not create a right in any private person to obtain, suppress, or
exclude any evidence, or to impede the execution of a request. Accordingly, Petitioners are
unable to state a claim upon which relief can be granted. See, e.g., In re Request from the United
Kingdom, -- F.3d --, Nos. 11-2511, 12-1159, 2012 WL 2628046, at *6 (1st Cir. Jul. 6, 2012) (The
appellants claims under the US-UK MLAT fail because appellants are not able to state a claim
that they have private rights that arise under the treaty, and because a federal court has no subject
matter jurisdiction to entertain a claim for judicial review of the Attorney Generals actions
pursuant to the treaty.)
On February 16, 2012, Petitioners subsequently filed their Verified Emergency Motion for
Preliminary Injunction, Request for Emergency Hearing, and Supporting Memorandum of Law
[D.E. 5], requesting the entry of a preliminary injunction to enjoin Respondent from responding to
the MLAT request from Argentina.
Because Petitioners cannot establish that they have a
substantial likelihood of success on the merits, their Motion for Preliminary Injunction should
similarly be denied.
3
II.
THE MLAT AND PRINCIPLES OF TREATY INTERPRETATION

The United States has entered into a number of MLATs which typically provide for
bilateral, mutual assistance in the gathering of legal evidence for use by the requesting state in
criminal investigations and proceedings. See In re Request from the United Kingdom, 2012 WL
2628046, at *6 (1st Cir. Jul. 6, 2012) (citing to In re 840 140th Ave. NE, 634 F.3d 557, 563-64 (9th
Cir. 2011) for a description of the history and evolution of MLATs). At issue here is the MLAT
between the United States and the Republic of Argentina entered into force on February 9, 1993.
See Treaty Between the Government of the United States of America and the Government of the
Republic of Argentina on Mutual Legal Assistance in Criminal Matters, Signed at Buenos Aires on
Dec. 4, 1990 (US-Argentina MLAT), S. Treaty Doc. No. 102-18 (1991).
Each party to an MLAT, such as the US-Argentina MLAT, designates a Central Authority
that is empowered to make and receive requests pursuant to the Treaty. The US-Argentina
MLAT designates the Attorney General of the United States or the persons designated by him as
the Central Authority. See id. at art. 2, 2. Under the MLAT, the Attorney General may,
pursuant to 18 U.S.C. 3512, ask a district court to issue such orders as may be necessary to
execute a request from a foreign authority. See 18 U.S.C. 3512(a)(1). Petitioners assert here
that the Republic of Argentina submitted several MLAT requests and that an Assistant United
States Attorney was appointed as commissioner and issued the subpoena at issue to Regions Bank.
See Petition, at 10-11. Petitioners claim that Respondents execution of Argentinas requests
here, the production of financial records pertinent to an on-going criminal investigation would
violate Petitioners constitutional rights. Id. at 15.
In order to assess Petitioners claim, this Court should turn first to the Treaty itself and to
the fundamental principles of treaty construction. See In re Commissioners Subpoenas, 325 F.3d
4
1287, 1294 (11th Cir. 2003). It is a courts responsibility to give the specific words of the treaty
a meaning consistent with the shared expectations of the contracting parties. See id. (quoting Air
France v. Saks, 470 U.S. 392, 399 (1985)). The interpretation of a treaty, like the interpretation
of a statute, begins with its text. In re Request from the United Kingdom, 831 F. Supp. 2d 435,
445 (D. Mass. 2011) (quoting Abbott v. Abbott, U.S. , 130 S. Ct. 1983, 1990 (2010)). The text
of the subject MLAT thus governs the question of whether the Petitioners have enforceable rights
pursuant to the US-Argentina MLAT. See In re Request from the United Kingdom, 831 F. Supp.
at 445. When, as in this case, the language in the treaty is unambiguous, a court should apply the
words of the treaty as written. See In re Commissioners Subpoenas, 325 F.3d at 1294.
Article 1 of the US-Argentina MLAT governs the scope of assistance afforded between the
United States and Republic of Argentina and provides that the US-Argentina MLAT:
is intended solely for mutual legal assistance between the Parties.
The provisions of [the US-Argentina MLAT] shall not give rise to a
right on the part of any private person to obtain, suppress, or exclude
any evidence, or to impede the execution of a request.
See US-Argentina MLAT, art. 1, 4. 1 ***By its express terms, the US-Argentina MLAT
disavows that it creates any enforceable rights in a private person. See id.; cf. See In re Request
from the United Kingdom, 2012 WL 2628046, at *7 (noting that the MLAT between the United
States and the United Kingdom, which includes the same provision, expressly states that it does
not give rise to private rights).
Indeed, the Treaty itself in Article 3 (Limitations on Assistance) sets out the only grounds
on which the United States can deny a request from Argentina. Pursuant to Article 3, the United
In the Letter Transmitting the US-Argentina MLAT from the President of the United States to the Senate dated
October 31, 1991, includes advice provided by the Department of State specifically highlighting the express limitation
set forth in Article 1, Section 4 disavowing the creation of any private rights.
States may deny a request only where it relates to military or political offenses, or requests the
execution of which, would prejudice the security or other essential public interests of the United
States. See US-Argentina MLAT, art. 3, 1. Moreover, before the United States may deny a
request for any of the aforementioned reasons, it is required to consult with the Central Authority
of Argentina to consider whether assistance may be given subject to certain conditions. See
US-Argentina MLAT, art. 3, 2. The grounds in Article 3, Section 1 are the only permissible
grounds on which the Central Authority may deny a request under the Treaty. See, e.g., In re
Premises Located at 840 140th Avenue NE, Bellevue, Washington, 634 F.3d at 570.
The United States turns to 18 U.S.C. 3512 for the execution of MLAT requests. Section
3512 provides clear authority for a district court to issue orders for search warrants and other
orders, including orders appointing commissioners, to aid in the execution of MLAT requests. At
least one Circuit Court has limited a district courts review of a commissioners subpoena to one
for constitutional infirmities and for violations of well-established privilege. See, e.g., In re
Premises Located at 840 140th Avenue NE, Bellevue, Washington, 634 F.3d at 570-72. Section
3512 at most provides a procedure for executing requests, but not . . . a means for deciding
whether or not to grant or deny a request so made. See In re Request from the United Kingdom,
2012 WL 2628046, at *9 (quoting In re Premises Located at 840 140th Avenue NE, Bellevue,
Washington, 634 F.3d at 570) (modifications original) (citations omitted); see further In re
Commissioners Subpoenas, 325 F.3d 1287, 1297 (11th Cir. 2003). Compliance with the Treaty
as to MLAT requests is obligatory. MLATs have the desired quality of compulsion as they
contractually obligate the two countries to provide to each other evidence and other forms of
assistance needed in criminal cases while streamlining and enhancing the effectiveness of the
process for obtaining needed evidence. See In re Commissioners Subpoenas, 325 F.3d at 1290.
6
III.
PETITIONERS DO NOT HAVE ANY ENFORCEABLE RIGHTS DERIVED

FROM THE US-ARGENTINA MLAT AND CANNOT STATE A CLAIM FOR
RELIEF PURSUANT TO THE TREATY
By its express terms, the US-Argentina MLAT contains no language creating private
rights. In re Request from the United Kingdom, 2012 WL 2628046, at *8. On the contrary, the
MLAT expressly precludes an action such as this brought by private persons seeking to block one
signatory to the Treaty from providing assistance in response to a formal request from the other
signatory. The language of the Treaty is clear: a private person such as either Petitioner
does not have any right under the US-Argentina MLAT to suppress, or exclude any evidence, or
to impede the execution of a request. See US-Argentina MLAT, art. 1, 4; cf. In re Request
from the United Kingdom, 2012 WL 2628046, at *8.
In In re Request from the United Kingdom, the First Circuit Court of Appeals analyzed
whether the district court properly dismissed a suit filed by two private persons who objected to the
production of documents requested pursuant to an MLAT between the United States and United
Kingdom. See 2012 WL 2628046, at *5. That consolidated appeal in that case arose from
litigation seeking to quash commissioners subpoenas issued to Boston College pursuant to 18
U.S.C. 3512, requesting confidential materials about the Belfast Project2 held in a Boston
College archive in response to a MLAT request from the United Kingdom. See id. at *1. The
United Kingdom made its request pursuant to the MLAT in force between the United States and
United Kingdom, and to further an investigation by United Kingdom authorities into the 1972
The Belfast Project, an oral history project, began in 2001 under the sponsorship of Boston College. In re Request
from the United Kingdom, 2012 WL 2628046, at *2. Its goal was to document in taped interviews the recollections of
members of the Provisional Irish Republic Army (IRA), the Provisional Sinn Fein, the Ulster Volunteer Force, and
other paramilitary and political organizations involved in the Troubles in Northern Ireland from 1969 forward. Id.
The purpose was to gather and preserve the stories of individual participants and provide insight into those who
become personally engaged in violent conflict. Id. The project is housed at the John J. Burns Library of Rare Books
and Special Collections at Boston College. Id.
abduction and death of a person thought to have acted as an informer for the British authorities.
See id. at *1, *6.
The plaintiffs in that case, Moloney and McIntyre, former Belfast Project director and
interviewer, respectively, sought to intervene in the motion to quash proceeding between the
United States and Boston College and, when intervention was denied, filed a separate civil
complaint seeking the same relief and raising certain challenges to the Attorney Generals
decision to execute the assistance request through the issuance of the subpoenas. In re Request
from the United Kingdom, 2012 WL 2628046, at *1. The First Circuit affirmed the district
courts dismissal of the plaintiffs civil claims, finding that: (1) they had no right under the
MLAT or, alternatively, the APA, to challenge the Attorney Generals decision to execute the
United Kingdom request; (2) the district court correctly refused to quash the subpoenas; and (3)
after balancing interests, there was no violation of any academic privilege under the First
Amendment, if the materials they accumulated under a pledge of confidentiality to the
interviewees were given to the United Kingdom. In re Request from the United Kingdom, 2012
WL 2628046, at *14. The US-UK MLAT contains language identical to Article 1, Paragraph 4 of
the US-Argentina MLAT. In re Request from the United Kingdom, 2012 WL 2628046, at *7.
The First Circuit relied upon that provision in the US-UK MLAT to hold that the MLAT
specifically disavows the creation of a privately enforceable right. In re Request from the United
Kingdom, 2012 WL 2628046, at *8.
The First Circuit also relied upon other well-established precedent from other jurisdictions
as to the language set forth in Article 1, Section 4 of the US-Argentina MLAT to find that no
enforceable private right exists. In re Request from the United Kingdom, 2012 WL 2628046, at
*8 (citing In re Grand Jury Subpoena, 646 F.3d 159, 165 (4th Cir. 2011) (subject of a subpoena
8
issued pursuant to an MLAT with a clause identical to the US-Argentina MLATs article 1, section
4 failed to show that the MLAT gives rise to a private right of action that can be used to restrict
the governments conduct); United States v. Rommy, 506 F.3d 108, 129 (2d Cir. 2007) (defendant
who argued that evidence against him was improperly admitted because it was gathered in
violation of US-Netherlands MLAT could not demonstrate that the treaty creates any judicially
enforceable right that could be implicated by the governments conduct in the case); United
States v. $734,578.82 in U.S. Currency, 286 F.3d 641, 659 (3d Cir. 2002) (article 1, section 3 of the
US-UK MLAT barred claimants argument that seizure and subsequent forfeiture of money
violated the treaty); United States v. Chitron Elecs. Co. Ltd., 668 F. Supp. 2d 298, 306-07 (D.
Mass. 2009) (defendants argument that service of criminal summons was defective under
US-China MLAT, which contained a clause identical to article 1, section 4 of US-Argentina
MLAT, failed because the MLAT does not create a private right of enforcement of the treaty.).
Therefore, here, because the US-Argentina MLAT by its terms expressly disclaims that it creates
any privately enforceable rights, this Court should find that Petitioners cannot state a claim under
the US-Argentina MLAT upon which relief can be granted. See In re Request from the United
Kingdom, 2012 WL 2628046, at *9; see, e.g., Gandara v. Bennett, 528 F.3d 823, 828 (11th Cir.
2008) ([T]he general rule is that [i]nternational agreements, even those directly benefiting
private persons, generally do not create private rights or provide for a private cause of action in
domestic courts . . .).
IV.
PETITIONERS ATTEMPT TO CIRCUMVENT THE PLAIN LANGUAGE OF

THE US-ARGENTINA MLAT BY BRINGING CLAIMS FOR A WRIT OF
MANDAMUS, DECLARATORY JUDGMENT AND UNDER THE APA
SIMILARLY FAIL
Petitioners attempt to circumvent the US-Argentina MLATs prohibition on privately
enforceable rights by seeking (1) mandamus under 28 U.S.C. 1361; (2) declaratory judgment
pursuant to 28 U.S.C. 2201-2202; and (3) judicial review under the Administrative Procedure
Act (APA) (5 U.S.C. 701 et seq.). This court lacks subject matter jurisdiction to consider a
claim under any of those statutes, however, because there is no applicable waiver of the
governments sovereign immunity from suit. See Kentucky v. Graham, 473 U.S. 159, 166
(1985) (an official-capacity suit is in all respects other than name, to be treated as a suit against
the entity, and not against the individual). Waivers of sovereign immunity are to be narrowly
and strictly construed in sovereigns favor. Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006)
(citing Irwin v. Dept of Veterans Affairs, 498 U.S. 89, 94 (1990)). Petitioners bear the burden of
identifying a statutory provision that explicitly waives sovereign immunity. See Miami-Dade
County v. United States, 345 F. Supp. 2d 1329. 1354 (S.D. Fla. 2004) (citing Lundeen v. Mineta,
291 F.3d 300, 304 (5th Cir. 2002)). Petitioners do not point to a specific statutory provision that
operates to waive the United States sovereign immunity in this case. Instead, Petitioners rely
only upon 28 U.S.C. 1331 and 28 U.S.C. 1336 as the purported waiver of sovereign immunity.
Federal Question jurisdiction contemplated by 28 U.S.C. 1331 does not independently waive
sovereign immunity. See Harbert v. United States, 206 F. Appx 903, 907 (11th Cir. 2006). As
this Court lacks subject matter jurisdiction over the counts asserted, Petitioners cannot get around
the express prohibition set forth in the US-Argentina MLAT through artful pleading.
10
A.
Petitioners Request for a Writ of Mandamus under 18 U.S.C. 1361 Cannot

Survive.
Petitioners allege that Respondent is obligated to protect Petitioners constitutional rights

in connection with any request for documents served by a signatory country pursuant to all of the
[MLATs] of the United States and that Respondent is obligated to deny any request for
documents to the extent that compliance with such request would lead to the violation of the
constitutional rights and guarantees of a person.
See Petition, at 30.
Petitioners seek
mandamus relief to prevent Defendant from responding to the MLAT request. See Petition, at 10.
A writ of mandamus is considered an extraordinary remedy and will issue only where the
duty to be performed is ministerial and the obligation to act peremptory, and plainly defined.
See United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931); Heckler v. Ringer, 466
U.S. 602, 616 (1984) (The common law writ of mandamus, as codified in 28 U.S.C. 1361, is
intended to provide a remedy for a plaintiff . . . only if the defendant owes him a clear
nondiscretionary duty.).
In particular, a plaintiff must establish three elements before
mandamus can issue: (1) the plaintiff must have a clear right to the relief; (2) the defendant must
have a clear duty to act; and (3) no other adequate remedy must be available. See Jones v.
Alexander, 609 F.2d 778, 781 (5th Cir. 1980).3
Petitioners here cannot satisfy the first element. Article 1, Section 4 of the US-Argentina
MLAT makes clear that no legal duty, let alone a nondiscretionary one, is owed to any private
party under such treaty. See In re Request from the United Kingdom, 2012 WL 2628046, at *9
n.16 (rejecting mandamus argument because the US-UK MLAT preclude[d] any legal duty
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
11
discretionary or nondiscretionary under the treaty on the part of the Attorney General to any
private party). Accordingly, Petitioners are unable to allege facts sufficient to support this
Courts exercise of subject matter jurisdiction pursuant to the mandamus act. See Holcomb v.
IRS, No. 99-370-CIV-ORL-99A, 2000 WL 1039491, at *2 (May 9, 2000).
B.
The Declaratory Judgment Act Does Not Provide an Independent Basis for
Jurisdiction, and Does Not Support Petitioners Claim
Petitioners allege that pursuant to the Declaratory Judgment Act this Court has
jurisdiction to declare the rights of Petitioners to enjoin the Attorney General from granting a
request for documents that would lead to the violation of Petitioners constitutional rights. See
Petition, at 37. Yet, it is well established that the Declaratory Judgment Act does not, of itself,
confer jurisdiction upon federal courts. Stuart Weitzman, LLC v. Microcomputer Resources,
Inc., 542 F.3d 859, 861-62 (11th Cir. 2008) (citing Household Bank v. JFS Group, 320 F.3d 1249,
1253 (11th Cir.2003); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)); see also, Skelly
Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) ([T]he operation of the Declaratory
Judgment Act is procedural only. Congress enlarged the range of remedies available in the
federal courts but did not extend their jurisdiction.) (internal quotation marks and citations
omitted); see further In re Request from the United Kingdom, 2012 WL 2628046, at *9 n.16
(Appellants admit they cannot invoke the Declaratory Judgment Act as an independent basis for
jurisdiction over their claims.) (citation omitted).
The Declaratory Judgment Act (just as it does not confer an independent basis for subject
matter jurisdiction) does not waive the sovereign immunity of the United States. See Harbert,
206 F. Appx at 908 (affirming a dismissal of a declaratory judgment action where there was no
express waiver of sovereign immunity); Raulerson v. United States, 786 F.2d 1090 (11th Cir.
12
1986) (vacating judgment and dismissing declaratory judgment case because the action was not
covered by the waiver of sovereign immunity contained in the substantive underlying statute in
that case).
Because Federal Question jurisdiction does not independently waive sovereign
immunity, Petitioners claim that there is federal question jurisdiction predicated upon a
constitutional violation is unsupported and indefensible. See Harbert, 206 F. Appx at 907; see
also, Household Bank v. JFS Group, 320 F.3d 1249, 1253 (11th Cir. 2003) ([T]he operation of the
Declaratory Judgment Act is procedural only.) (modification original) (quoting Aetna Life Ins.
Co. v. Haworth, 300 U.S. 227, 240 (1937)); Progressive Consumers Fed. Credit Union v. United
States, 79 F.3d 1228, 1230 (1st Cir. 1996) (the Declaratory Judgment Act . . .[does not] constitute
a waiver of sovereign immunity because the Act neither provides nor denies a jurisdictional basis
for actions under federal law, but merely defines the scope of available declaratory relief.)
(quoting McCarthy v. Marshall, 723 F.2d 1034, 1037 (1st Cir. 1983)); see further FPL Food, LLC
v. U.S. Dept of Agric., 671 F. Supp. 2d 1339, 1346 (S.D. Ga. 2009) (The [Declaratory Judgment
Act] is not itself a waiver of sovereign immunity, so a plaintiff suing under [that Act] must show
that the government has waived its immunity in some other way.).
C.
The APA Does Not Provide a Claim for Judicial Review of the US-Argentina
MLAT.
Petitioners invocation of the APA also does not provide a way around the express
limitations in the US-Argentina MLAT that preclude Petitioners action and disavow the creation
of any right to private parties under the Treaty. To conclude otherwise would put Article 1,
Section 4 of the US-Argentina MLAT and the APA at cross-purposes, in contravention of the
well-established principle that the treaties and acts of Congress should be construed to be
consistent with one another where possible. See Weber v. Finker, 554 F.3d 1379, 1383 (11th Cir.
13
2009) (When [a treaty and statute] relate to the same subject, the courts will always endeavor to
construe them so as to give effect to both, if that can be done without violating the language of
either . . .) (modification original) (quoting Whitney v. Robertson, 124 U.S. 190, 194 (1888)).
The APAs waiver of sovereign immunity for claims against the government applies only
to the extent the claims are not otherwise expressly or impliedly barred. See 5 U.S.C. s 701(a)(1),
702(1). Section 702 states that its provision of a right to judicial review does not affect other
limitations on judicial review or the power or duty of the court to dismiss any action or deny relief
on any other appropriate legal or equitable ground. 5 U.S.C. 702(1). Review under the APA
may be impliedly barred when a claim relates to matters, such as extradition surrender decisions
and other foreign affairs matters, that are entrusted to the political branches of government. See
Saavedra Bruno v. Albright, 197 F.3d 1153, 1158-59 (D.C. Cir. 1999) (finding consular visa
decisions to be interwoven with foreign relations, and therefore largely immune from judicial
review pursuant to 5 U.S.C. 702(1), and noting that the Administrative Conference of the United
States, which had proposed the specific language enacted as 702(1), explained that courts would
still refuse to decide issues about foreign affairs, military policy and other subjects inappropriate
for judicial action); Sanchez-Espinosa v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) (concluding it
would be an abuse of discretion to grant relief under the APA where court would be required to
intercede in sensitive foreign affairs matters).
The conclusion that APA review is precluded is strongly supported by long-standing
Supreme Court precedent concerning judicial review of questions of foreign affairs. Matters
intimately related to foreign policy and national security are rarely proper subjects for judicial
intervention. Haig v. Agee, 453 U.S. 280, 292 (1981); see also, In re Premises Located at 840
140th Avenue NE, Bellevue, Washington, 634 F.3d at 572-73 (The courts role in this context is
14
limited, however, and must be tempered by the recognition that the field of foreign affairs is one
that the Constitution entrusts to the President and the Congress.) (quoting Zschernig v. Miller,
389 U.S. 429, 432 (1968)). Similar principles are at play in cases recognizing the strong
presumption against inferring individual rights from international treaties. United States v.
Rommy, 506 F.3d at 129.
The judicial review sought by Petitioners here is inconsistent with these principles.
According to the Petitioners, this Court should enter an order that prevents Respondent from
producing any confidential financial information regarding Petitioners bank accounts in the
United States to the Government of Argentina. See Petition, at p 13. Such an action by this
Court would embroil the Court in matters directly involving relations between the United States
and the Republic of Argentina. An instructive case is Committee of United States Citizens Living
in Nicaragua v. Reagan, 859 F.2d 929, 942-43 (D.C. Cir. 1998), in which private parties sued to
enforce a decision of the International Court of Justice (ICJ) which had held that Americas
support of military actions by the so-called Contras against the government of Nicaragua
violated both customary international law and a treaty between the United States and Nicaragua.
The appellate court first held that domestic law provided no basis for enforcing the judgment of the
ICJ. See id. at 935-42. Next, when considering whether the APA provided any independent
basis for relief the Court held that
In theory, a law such as the APA could supersede these limitations
in the ICJ statute, transforming ICJ decisions into legal standards for
domestic judicial review. But, as Professor Davis explains, the APA
does not possess such generative capacity. Because the APA
provision on reviewability is always dependent on other law, the
law of reviewability is essentially the same as it would be without
any APA provision. In sum, the APA does not grant judicial review
of agencies compliance with a legal norm that is not otherwise an
operative part of domestic law.
15
Id. at 942-943 (internal citations omitted). This reasoning compels the conclusion that the
US-Argentina MLAT, which expressly denies private parties any rights under it, vitiates any
substantive basis for reviewing Respondents decision to provide assistance, and thus eliminates
any basis for APA review.
Indeed, the APA itself recognizes that it does not provide jurisdiction where statutes
preclude judicial review. 5 U.S.C. 701(a)(1). As the First Circuit recognized In re Request
from the United Kingdom, this reinforces the conclusion that there is no judicial review under the
APA of the Attorney Generals actions under an MLAT. See 2012 WL 2628046, at *9.
Petitioners final attempt to get around the express prohibition set forth in Article 1, Section 4 of
the US-Argentina MLAT thus fails.
V.
PETITONERS VERIFIED EMERGENCY MOTION FOR PRELIMINARY

INJUNCTION SHOULD BE DENIED AS PETITIONERS CANNOT ESTABLISH
A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
A district court may grant a preliminary injunction only if the movant establishes the
following: (1) a substantial likelihood of success on the merits of the underlying case; (2) the
movant will suffer irreparable harm in the absence of an injunction; (3) the harm suffered by the
movant in the absence of an injunction would exceed the harm suffered by the opposing party if
the injunction issued; and (4) an injunction would not disserve the public interest. See North Am.
Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 (11th Cir. 2008). Because a
preliminary injunction is an extraordinary and drastic remedy, it is not to be granted until the
movant clearly carries the burden of persuasion as to the four prerequisites. See Church v. City of
Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994). For the reasons set forth above, Petitioners
cannot satisfy their burden in this case as they are unable to establish a substantial likelihood of
16
success on the merits.

VI.
CONCLUSION
For the foregoing reasons, Respondent, Eric H. Holder, Jr., Attorney General of the United
States of America, requests this Court dismiss Petitioners, Palmat International, Inc. and Roberto
Wellisch, Petition for Writ of Mandamus, Declaratory Judgment, and Violation of Administrative
Procedure Act and deny Petitioners Verified Emergency Motion for Preliminary Injunction.
Dated: July 30, 2012
WIFREDO A. FERRER
By:
Tel: (305) 961- 9341
Fax: (305) 530-7139
I HEREBY CERTIFY that on July 30, 2012, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record identified on the Service List by CM/ECF.
17
SERVICE LIST

Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
18

MIAMI DIVISION
Petitioners,
VS.

Respondent.
/
PETITIONERS' OPPOSITION TO GOVERNMENT'S

MOTION TO DISMISS AND REPLY IN SUPPORT OF PETITIONERS'
MOTION FOR PRELIMINARY INJUNCTION
Petitioners Palmat International, Inc. ("Palmat") and Roberto Wellisch ("Wellisch")
(collectively "Petitioners"), through their undersigned counsel and pursuant to the Court's Order
setting briefing schedule [D.E. 20], hereby respectfully file this memorandum of law in
opposition to the Government's Motion to Dismiss Petition for Writ of Mandamus, Declaratory
Judgment, and Violation of Administrative Procedure Act ("APA"). Petitioners also file this
memorandum of law as their reply in support of the Motion for Preliminary Injunction [D.E. 5]
and state as follows:
INTRODUCTION
The Government's arguments are premised on a fundamental question of constitutional
law: whether this Court has subject matter jurisdiction to enjoin the Government's violation of
Petitioners' constitutional rights.
{24986564;1}
The Supreme Court answered this question with a resounding "yes" more than 200 years
ago in the seminal case of Marbury v. Madison, 5 U.S. 137, 163 (1803). The judiciary, and not
the executive branch or Congress, is vested with the power of judicial review and courts are the
ultimate guardians of the Constitution.The Government, however, claims that when a
constitutional violation is caused by the Government's response to a request made by a foreign
country under a Mutual Legal Assistance Treaty ("MLAT"), the answer to this question is
different. According to the Government, in such cases, courts have to defer to the executive
branch to protect the constitutional rights of persons affected by MLAT requests.
There is simply no legal support for this usurpation of judicial power. Indeed, every
court that has addressed this issue has, explicitly or implicitly, concluded that in the context of an
MLAT request, a district court has, at a minimum, the power to prevent the enforcement of such
request if enforcement would result in a constitutional violation. That is the case here.
As explained in the Verified Petition and the Motion for a Preliminary Injunction, the
Argentine Judge in charge of the investigation of Palmat is releasing directly or indirectly - all
the confidential information he receives regarding the Petitioners to the press to add fire to the
political witch-hunt against the Petitioners. The release of this information has exacerbated the
political persecution of Petitioners in Argentina and has been linked to the kidnapping of two of
Petitioner Wellisch's close relatives one of whom was ultimately murdered. The Argentine
Judge has continued this investigation even though he has acknowledged that in four (4) years of
exhaustive investigation no evidence has been found incriminating the Petitioners in any
wrongdoing. As such, the political persecution of the Petitioners continues and the Government
seems intent on producing Petitioners' confidential bank records to the Argentine Judge.
{24986564;1}
Unless the Government is enjoined from providing Petitioners' confidential financial

information to the Argentine Judge, the violations of Petitioners' constitutional rights will
continue and their plight will be aggravated. This Court has the constitutional authority to issue
a limited injunction preventing the Government from responding to the MLAT request from
Argentina until the adjudication of this dispute. Otherwise, it will be too late for Petitioners even
if they ultimately succeed on the merits.
ARGUMENT
I.
MLAT Requests Are Subject to Constitutional Limits.

The Government claims that Petitioners do not have any cognizable right to sue under the
MLAT between Argentina and the United States. This argument misses the mark. Petitioners
are not asserting any claim under the Argentina/U.S. MLAT. Indeed, Petitioners concede that
the MLAT does not give rise to a private cause of action. Instead, Petitioners seek a declaration
that the Government's production of the Petitioners' confidential bank records requested by the
Argentine Judge would violate the U.S. Constitution, not the Argentina/U.S. MLAT.
It is a well established tenet of Constitutional law that treaties, like statutes, are subject to
constitutional limits
Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 417 n.9 (2003) (treaty
obligations are "subject . . . to the Constitution's guarantees of individual rights"). Every court
that has addressed the issue has held that courts have the judicial power to review the
constitutionality of requests made pursuant to MLAT treaties. See e.g., In re Premises Located
at 840 140thAve. NE, Bellevue, Washington, 634 F.3d 557, 571-572 (9th Cir. 2011) (hereafter
"In Re 840 140thAve"); In Re Request from United Kingdom, 685 F.3d 1 (1st Cir. 2012)
(hereafter "In Re United Kingdom").
{24986564;1}
This principle was applied by the Ninth Circuit in In Re 840 140th Ave, a case in which,
like here, the Government argued that the court did not have judicial power to review the
constitutionality of an MLAT request. In In Re 840 140th Ave, the Government petitioned the
district court to issue an MLAT subpoena for the corporate documents of a U.S. corporation,
which was controlled by an individual who was the subject of an ongoing criminal investigation
in Russia. The corporation and the subject being investigated moved for a protective order. The
district court denied the motion, and an appeal followed. Although the Ninth Circuit ultimately
held that there was no constitutional violation, it concluded that it had the authority to determine
whether the government's compliance with the MLAT request was unconstitutional:
According to the government, the constitution imposes no limits on what the
executive branch may require the courts to do [upon receiving an MLAT request
for assistance] ... We disagree.
The Ninth Circuit began its analysis by noting that treaties were subject to constitutional
limits, including the separation of powers and the guarantee of due process. Id. at 571-72. Then
the court concluded that the judiciary was the branch of government entrusted with the judicial
power to protect these guarantees and that the government could not usurp this judicial power
The government's position leads to the inescapable and unacceptable conclusion
that the executive branch, and not the judicial branch, would exercise judicial
power. Alternatively, the government's position suggests that by ratifying an
MLAT, the legislative branch could compel the judicial branch to reach a
particular result issuing orders compelling production and denying motions for
protective orders in particular cases, notwithstanding any concerns, such as
violations of individual rights that a federal court may have. This too would be
unacceptable.
***
At a minimum, that integrity requires that federal courts be able to consider

constitutional challenges to the action they are requested to compel, and to refrain
from participating in action that would violate the constitution. We therefore hold
that, in the context of an MLAT request, a district court may not enforce a
subpoena that would offend a constitutional guarantee.
Id. at 572.
{24986564;1}
The court left "for another day the elucidation of the precise scope of applicable
constitutional limits" on MLAT requests, but noted that "[alt a minimum, the Constitution
requires that a request not be honored if the sought-after information would be used in a foreign
judicial proceeding that 'departs from our concepts of fundamental due process and fairness.'"
Id. at 572. After applying this legal framework, the court concluded that the violations asserted
by the petitioners the corruption of the Russian judicial system and the violation of procedural
limits in the criminal investigation did not rise to the level of a constitutional violation
preventing the government from responding to an MLAT request. Id. at 573.
The holding of the Ninth Circuit in In Re 840 140th Ave was followed by the First Circuit
in In Re United Kingdom, which is the case on which the Government erroneously bases its
present arguments. Contrary to the Government's arguments, in In Re United Kingdom, the court
concluded that the Attorney General's decision taken pursuant to an MLAT was subject to the
judiciary's constitutional oversight. Indeed, the court devoted a significant portion of the opinion
to analyzing the merits of the constitutional claims of the petitioners after concluding that it had
jurisdiction to adjudicate these claims under 28 U.S.C. 1331. 2012 WL 2628046 at *10 14.
The holding of In Re United Kingdom is not that there is no right to judicial review of an
MLAT request. Quite the contrary, In Re United Kingdom stands for the proposition that an
action for declaratory judgment is available to determine the constitutionality of a subpoena
issued pursuant to an MLAT request. The First Circuit in In Re United Kingdom dismissed the
petition because the petitioners were not able to allege a factual basis for the alleged
constitutional violation a violation of the First Amendment not because the court did not have
jurisdiction to review the constitutionality of the actions taken by the Government in response to
the MLAT request. Id.
{24986564;1}
In this case, the Government argues that Article 3, Section 1 of the Argentina/U.S.
MLAT provides the only permissible grounds to deny an MLAT request. See Motion to Dismiss
at 6. However, this argument ignores that, as the First and Ninth Circuit held, the MLAT is
subject to the Constitution, and the power to ensure compliance with these constitutional
guarantees is vested upon the judicial branch, not in the executive. Petitioners are requesting
nothing more than the right of judicial review recognized by the courts in In Re United Kingdom
and In Re 840 140th Ave, a determination that the Government's compliance with the MLAT
request from Argentina would violate Petitioners' constitutional rights.
II.
Petitioners Have Established a Constitutional Violation.

Petitioners have established that the Government's compliance with the MLAT would
violate Petitioners' right of privacy because the Judge overseeing the investigation of Petitioner
Palmat in Argentina has and plans to continue to make public directly or indirectly - any
information about the Petitioners that it obtains from the Government. The improper disclosure
of this information has put Petitioners in danger and has been directly linked to the kidnapping of
two close relatives of the Petitioner Wellisch, one of whom was murdered.
In this factual context, the production of Petitioners' financial information by the
Government to the Argentine Judge would violate Petitioners' constitutional right to maintain the
privacy of its financial information. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977) (the right
to privacy protects not only the "independence in making certain kinds of important decisions"
but also the "individual interest in avoiding disclosure of personal matters."); Hester v. City of
Milledgeville, 777 F.2d 1492, 1497 (11thCir. 1985) (citing Plante v. Gonzalez, 575 F.2d 1119,
1132 (5th Cir.1978) ("individual interest in avoiding disclosure of personal matters . . . is
protected by the "confidentiality strand" of the constitutional right to privacy.); Statharos v. New
{24986564;1}
York City Taxi and Limousine Com'n , 198 F.3d 317, 323 (2d Cir. 1999) (following " Whalen, this
of personal financial information."); cf. California Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79,
94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (Powell, J., concurring) ("Financial transactions can reveal
much about a person's activities, associations, and beliefs. At some point, governmental intrusion
upon these areas would implicate legitimate expectations of privacy.").
As Petitioners have explained directly to the Government and in its previous filings in
this action, the Argentine Judge investigating Palmat has made public directly or indirectly - all
the confidential information that he has been able to compile regarding Petitioners and will likely
make public any bank record obtained pursuant to the MLAT request. To date, all of the
information obtained by the Argentine Judge in charge of the criminal investigation, including all
exchanges of communications between government entities in the United States and Argentina,
are part of the public record of this investigation and can be accessed by any third party by
simply reviewing the record of the proceedings, a public record. Attempts to seal this record
have been unsuccessful.
Newspaper reporters have obtained this information and have written several news
articles regarding this investigation. In fact, confidential and private information regarding the
bank account of Petitioners in the United States, including account numbers and routing codes,
have appeared in the published press. For example, on August 20, 2010, the newspaper "El
Reporte" published an article giving specific information about the request for financial
documents regarding Palmat and explicitly stating that it was able to access the confidential
Argentina regarding this request. See Exhibit No. 1 to Motion for Preliminary Injunction These
{24986564;1}
articles included a copy of the confidential letter from the Department of Justice asking for more
specific information about the MLAT Request and confidential financial information of
Petitioners. See Ex. 1.
This disclosure also makes Petitioners and persons associated with them targets of
potential criminal activities, including the possibility of kidnapping, blackmail and extortion. In
fact, close family relatives of Petitioner Wellisch have been subjected to criminal activities,
including kidnapping and in one unfortunate case, even murder. It is believed that these criminal
activities resulted directly from the disclosure of the financial information of Petitioners, as the
criminal activities took place shortly after publication.
Despite efforts by Petitioners to prevent the disclosure of any such confidential and
sensitive information, the authorities in Argentina have refused and/or failed to undertake the
necessary steps to make certain that any information gathered pursuant to this criminal
investigation, including confidential information of Petitioners, be withheld from the public view
and domain. It is important to highlight that the requests received from Argentina do not come
from the government itself, they came from the Argentine Judge in charge of investigating
whether a crime has been committed in Argentina! Moreover, there is no criminal case or
criminal accusation filed, the matter is still in the investigative phase, where it has been for close
to four (4) years. Indeed, the Argentine Judge has explicitly admitted that the investigation has
not revealed any evidence incriminating Palmat or Petitioner Wellisch or anyone directly
associated with them. In fact, the investigation has yet to reveal any evidence of wrongdoing
whatsoever.
Although the MLAT Requests at issue have come from two different ministries of the
Government of Argentina (the Ministry of Justice and the Ministry of International Relations),
these entities did not have any input into the scope or the necessity of the requests and functioned
as procedural vehicle for the Argentine Judge to request the financial records of Petitioners.
1
{24986564;1}
In violation of the duties and obligations owed to the Petitioners, Respondent, through the
OIA, has granted the request for the Petitioners' financial information and intends to produce the
requested confidential documents despite evidence establishing that such documents will be
made public by the Argentine Judge in violation of Petitioners' constitutional rights. As
established by the Supreme Court in Whalen and its progeny, Petitioners have a clear
constitutional right to the enjoyment of life, liberty, and property. U.S. Const. amend. V; amend.
XIV, 1. This right extends and protects Petitioners' interest in avoiding the disclosure of
confidential information and maintaining their personal affairs private. See Whalen, 429 U.S. at
599-600.
As such, Petitioners have established a constitutional violation.
III. There Is a Waiver of Sovereign Immunity in Suits for Non-Monetary Relief.

The Government argues that this Court lacks subject matter jurisdiction to consider a
claim under the mandamus statute, declaratory judgment statute and the Administrative
Procedure Act [the "APA"] "because there is no[t] applicable waiver of the government's
sovereign immunity." Motion to Dismiss at 10. This argument is without merit.
Long ago the Supreme Court recognized a "constitutional exception to the doctrine of
sovereign immunity," known as the Larson exception, which permits suits to "obtain injunctive
relief against a federal officer acting in his official capacity when the officer acts beyond
statutory or constitutional limitations." Larson v. Domestic & Foreign Commerce Corp., 337
U.S. 682, 696 (1949); Doe v. Wooten, 376 Fed.Appx. 883, 884 (11th Cir. 2010).
This action falls squarely under the Larson exception because the Petitioners are not
seeking any monetary relief from the Government. Quite the contrary, Petitioners are seeking an
{24986564;1}
injunction preventing the Government from releasing their confidential banking information to
the Argentine Judge. Such remedy is not subject to a sovereign immunity defense.
Further, the Government ignores that by enacting the APA Congress waived "sovereign
immunity in most suits for nonmonetary relief," including claims for declaratory relief. Simmat,
413 F.3d at 1233. The APA states that:
An action in a court of the United States seeking relief other than money damages
and stating a claim that an agency or an officer or employee thereof acted or
failed to act in an official capacity or under color of legal authority shall not be
dismissed nor relief therein be denied on the ground that it is against the United
States or that the United States is an indispensable party.
5 U.S.C. 702.
Courts have applied this waiver broadly and held that "this waiver is not limited to suits
under the Administrative Procedure Act" but includes all actions for non-monetary relief. See
Simmat, 413 F.3d at 1233; see also Chamber of Commerce v. Reich, 74 F.3d 1322, 1329
(D.C.Cir.1996) ("The APA's waiver of sovereign immunity applies to any suit whether under the
APA or not."); Hahn v. United States, 757 F.2d 581, 588 (3d Cir. 1985) (holding "that
Administrative Procedure Act 702 provides a corresponding waiver of sovereign immunity"
for non-monetary declaratory judgment claims). Since Petitioners, in each claim, seek solely
non-monetary relief sovereign immunity is not an available defense here.2
IV. This Court Has Subject Matter Jurisdiction Over Petitioners' Mandamus Claim.
The Government claims that this Court does not have subject matter jurisdiction over
Petitioners' mandamus claim. According to the Government, subject matter jurisdiction is not
present because (1) Petitioners do not have a clear legal right to relief under the MLAT and (2)
Further, sovereign immunity is not implicated in claims for Mandamus. See Simmat, 413 F.3d
at 1234 ("application of the mandamus remedy to require a public official to perform a duty
imposed upon him in his official capacity is not limited by sovereign immunity").
{24986564;1}
10
mandamus is inappropriate because, under the MLAT, the Attorney General's duties are
discretionary, not ministerial.
The Government's first argument ignores the fact that Petitioners rights derive from the
U.S. Constitution. Allegations of constitutional violations satisfy the "clear legal right" prong of
a mandamus claim. Simmat, 413 F.3d at 1235 (violation of Eight Amendment formed the basis
of mandamus action).
The Government's second argument is equally without merit. While the Attorney
General may have some discretion under the MLAT, "the fact that an official's duty entails some
discretion does not necessarily shield him from mandamus." Id. The Attorney General has
"discretion[] within limits He cannot transgress those limits, and if he does so, he may be
controlled by injunction or mandamus to keep within them." Work v. United States ex rel. Rives,
267 U.S. 175, 177 (1925). The Attorney General's discretion is limited by the Constitution.
Thus, whereas here, a petitioner merely seeks mandamus to direct a federal officer to act within
the bounds of the Constitution, mandamus is appropriate. See Simmat, 413 F.3d at 1235 (holding
that plaintiffs mandamus request that prison dentists act within the bounds of the Eight
Amendment is sustainable).
V.
This Court Has Subject Matter Jurisdiction Over Petitioners' Declaratory

Judgment Claim.
It is well established that "claims for declaratory . . . relief for . . . alleged constitutional
violations . . . are within the terms of the federal question jurisdictional grant of 28 U.S.C.
1331." Hahn, 757 F.2d at 588. Indeed, the Government seems to have conceded this point in In
Re United Kingdom, where the First Circuit asserted jurisdiction under 1331 to adjudicate a
claim seeking a declaration that the subpoena requested by the Government pursuant to an
MLAT request violated petitioners' First Amendment rights. The First Circuit specifically
{24986564;1}
11
stated, without noting any objection by the Government, that "[w]e have jurisdiction under 28
U.S.C. 1331 . . . [to address] alleged violations of [petitioners'] constitutional rights under the
First Amendment. See In Re United Kingdom, 685 F.3d at 15. The court then proceeded to
conduct a lengthy constitutional analysis to determine whether compliance with the MLAT
request violated petitioners' constitutional rights.
Ignoring this well established precedent, the Government argues that "Petitioners' claim
that there is federal question jurisdiction predicated upon a constitutional violation is
unsupportable and indefensible." Motion to Dismiss at 13. However, the Government fails to
cite any legal support for this extraordinary proposition, which is inconsistent with the position
taken by the Government in other cases.
The Court should reject this argument. Section 1331 gives this Court jurisdiction to
adjudicate Petitioners' claims for declaratory relief. Just like the Court In Re United Kingdom,
this Court has jurisdiction to review Petitioners' constitutional claim and ultimately declare that
the Government's production of the Petitioners' confidential bank records would violate
VI. Review of an Agency's Constitutional Violation Is Available Under the APA.

The Government asserts that review under the APA of the Attorney General's actions
taken in association with the MLAT is impermissible because (a) Petitioners have no enforceable
rights under the MLAT, (b) the MLAT specifically prohibits judicial review of the Attorney
General's actions, and (c) judicial review would constitute an impermissible judicial intrusion
into foreign affairs.
Regarding the first point and as already noted, Petitioners derive their rights from the
U.S. Constitution, not the MLAT or its wording. The APA specifically contemplates judicial
{24986564;1}
12
review of claimed violations of constitutional rights. See 5 U.S.C. 706(2) ("The reviewing
court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be
. . . contrary to constitutional right")(emphasis added). The Supreme Court, in Webster v. Doe,
affirmed this point, holding that APA review of claimed constitutional violations was
appropriate. 486 U.S. 592, 602-606 (1988).
The Government's second and third contentionsthat an APA review is prohibited by
the MLAT and is unavailable in the context of foreign affairsare contrary to the "strong
presumption that Congress intends judicial review of administrative action." Bowen v. Michigan
Academy of Family Physicians, 476 U.S. 667, 670 (1986).
In Webster, the Supreme Court made clear that judicial review of an otherwise
unreviewable determination may occur if there is a constitutional issue. Webster, 486 U.S. at
602-606. In Webster, the Director of the Central Intelligence Agency raised arguments identical
to the ones advanced by the Government here (a) a statute prohibited APA review of his action
and (b) APA review was an improper encroachment into national security. The Supreme Court
completely rejected these arguments. As to the CIA Director's argument that his employment
termination decisions were statutorily immune from judicial review, the Supreme Court stated:
We do not think 102(c) may be read to exclude review of constitutional claims .
. . [W]here Congress intends to preclude judicial review of constitutional claims
its intent to do so must be clear . . . We require this heightened showing in part to
avoid the "serious constitutional question" that would arise if a federal statute
were construed to deny any judicial forum for a colorable constitutional claim.
Id. at 603 (holding that "[n]othing in 102(c) persuades us that Congress meant to preclude
consideration of colorable constitutional claims arising out of the actions of the Director pursuant
{24986564;1}
13
to that section."). Similarly, here, there is no language in the MLAT treaty that specifically
precludes judicial review of constitutional claims.3
The Supreme Court also did not accept the CIA director's alternative argument regarding
impermissible judicial intervention into the arena of national securityan analog to
Respondent's foreign affairs argument. Indeed, the Supreme Court rejected the argument that
"even if respondent has raised a colorable constitutional claim . . . Congress in the interest of
national security may deny the courts the authority to decide the claim [under the APA]." Id. at
604. Like the Supreme Court in Webster, this Court should reject the Government's arguments
that review of Petitioners constitutional claims are impermissible because Court intervention in
foreign affairs is improper. This Court must review the actions by the Attorney General to
determine if his decision to comply with the MLAT will violate Petitioners' constitutional rights.
VII.Petitioners Are Entitled to an Injunction.
As explained in Petitioners' Motion for an Injunction, where the balance of the equities
weighs heavily in favor of an injunction a showing of a "substantial case on the merits" is
sufficient to warrant injunctive relief. See Gonzalez v. Reno, 2000 WL 381901, *1 (11th Cir.
2000); Ruiz v. Estelle, 650 F.2d 555, 565 (5thCir. 1981); Hilton v. Braunskill, 481 U.S. 770, 778
(1987); United States v. Hamilton, 963 F.2d 322, 323 (11thCir. 1992); Garcia-Mir v. Meese, 781
F.2d 1450, 1453 (11thCir. 1986); American University of the Caribbean v. Caritas Healthcare,
Inc., 1:08-cv-20374-AJ (S.D. Fla. May 6, 2008) (a courtesy copy of this unpublished opinion is
Respondent relies on In re United Kingdom, to support its argument that the MLAT precludes
APA review. However, in that case, the plaintiffs appeared to ground their APA claims in a
perceived right derived from the MLAT, not a constitutional right. Indeed, the First Circuit did
not examine whether it had jurisdiction to review constitutional claims under the APA. In any
event, to the extent In re United Kingdom diverges from Webster, Webster (a Supreme Court
case) controls.
{24986564;1}
14
attached hereto as Tab 1).4 This modified injunction standard is known as the "sliding scale"
because an increase in the evidence of irreparable harm decreases the burden to establish a case
on the merits. That is the case here.
It is undisputable that Petitioners will be irreparably harmed by the action sought to be
enjoineda point that Respondent does not challenge in its response. Once the financial
documents are released, Petitioners would have no recourse to prevent the public dissemination
of its financial information in Argentina. Earlier attempts to seal the record have been ignored
by the court and have proven unsuccessful. Even if on the merits the Court were to ultimately
find in favor of Petitioners, any such relief would come too late. Tellingly, the kidnapping and
murder of persons associated with Petitioners has been linked to the release by the Government
of Argentina of Petitioners' financial information.
In such a situation, Petitioners burden to establish a case on the merits is decreased from
a "substantial likelihood of success" to a "substantial case on the merits" standard. As such and
especially since the Government has not challenged irreparable injury, Petitioners only have to
establish a substantial case on the merits. As explained herein and in its Motion for Preliminary
Injunction, Petitioners have satisfied this burden, and the Court should enter an injunction
preventing the Government from producing any documents to the Argentine Judge until this
Court has the opportunity to adjudicate this dispute.
For the reasons stated above, this Court has subject matter jurisdiction to adjudicate Petitioners'
constitutional claims. However, given the serious irreparable harm in this case, this Court can
issue an injunction without first deciding whether it has subject matter jurisdiction over this
matter, so long as Petitioners' establish a "reasonable probability of ultimate success upon the
question of jurisdiction when the action is tried on the merits," which Petitioners have done.
Majd-Pour v. Georgiana Community Hospital, Inc., 724 F.2d 901, 902 (11th Cir. 1984).
4
{24986564;1}
15
VIII. Request for Hearing.

Petitioners reiterate their request for a hearing as a hearing will assist the Court in the
adjudication of the issues raised in this case.
AKERMAN SENTERFITT
Telephone: (305) 374-5600
Facsimile. (305) 374-5095
By: /s/ Francisco A. Rodriguez

{24986564;1}
16
I hereby certify that on August 29, 2012, I electronically filed the foregoing document
served this day on all counsel of record or pro se parties identified on the attached Service List in
the manner specified, either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
to receive electronically Notices of Electronic Filing.
{24986564;1}
17
SERVICE LIST
Palmat International, Inc. v. Holder
United States District Court, Southern District of Florida
99 N.E. 4th Street
Telephone: (305) 961-9341
Facsimile. (305) 530-7139
Marlene.fernandez-karavetsos@usdoj.gov
{24986564;1}
18
TAB "1"

Case 1:08-cv-20374-AJ Document 43 Entered on FLSD Docket 05/06/2008 Page 1 of 17

MIAMI DIVISION
CASE NO. 08-20374-CIV-JORDAN
AMERICAN UNIVERSITY OF THE
CARIBBEAN, N.V., et al.,
Plaintiffs
VS.
CARITAS HEALTHCARE, INC., et al.,

Defendants
)
)
)
)
)
)
)
)
)
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

American University and five of its students have sued Caritas, Wyckoff, and Brooklyn
Queens for the anticipatory breach of an agreement to place foreign medical students in clinical
clerkships in two New York hospitals. Pending is the plaintiffs' motion for a preliminary injunction
to prevent the defendants from unilaterally terminating the agreement. For the reasons stated below,
the motion for a preliminary injunction [D.E. 5] is GRANTED.
BACKGROUND FACTS
American University is a medical school in the Netherland Antilles with an office in Coral
Gables, Florida. See Ver. Am. Compl. at 12. It offers a four-year medical doctorate degree,
consisting of two years of basic science instruction at the university's Netherland Antilles campus
followed by two years of clinical clerkships, mainly in hospitals in the United States. The first year
of clinical clerkship focuses on six "core" specialties: internal medicine, general surgeries, obstetrics
and gynecology, pediatrics, psychiatry, and family medicine. The second year covers other
"elective" areas such as anesthesiology, cardiology, emergency medicine, geriatrics, hematology and
oncology, and infectious diseases. See id. at 42-49. See also Promissory Note at 1112.1-2.3.
Medical clerkships are highly coveted by medical schools, as the number of medical students
continues to increase and the supply of clerkships remains static. See Ver. Am. Compl. at 62. In
2001, Wyckoff and American University began discussing the possibility of an affiliation agreement
to place American University students in clerkships offered at Wyckoff's hospitals. To this end,
Wyckoff's representatives met on at least one occasion with American University's representatives

in Florida. See id. at in 16-18. See also Defendants' response at 1 (defendants do not deny "that
approximately 7 years ago, Harold McDonald, a representative of one Defendant - Wyckoff - visited
the Florida administrative offices" of American University). These meetings ultimately resulted in
affiliation agreements for clerkships in 2001, 2004, and 2006. See id. at 111116-18.
On August 21, 2006, Wyckoff sent a letter to American University's Florida office
announcing that Caritas - one of its affiliates - planned to acquire two bankrupt hospitals in New
York - Mary Immaculate Hospital and Saint John's Queens Hospital. See id., Ex. C. Wyckoff
explained that interested foreign medical schools, like American University, had the opportunity to
prepay for "guaranteed clerkship slots" in its hospitals. See id. On October II, 2006, American
University responded - from its Florida office - that it would like to "initiate final negotiations based
on a commitment for 50 core slots/$2,500,000." See id., Ex. D. American University also stated that
the offer assumed that "all 50 core rotations are guaranteed for a minimum of three years or when
all fees are exhausted, which ever occurs first." See id. The letter ended by reiterating that American
University was "in agreement, in concept, to help [Wyckoff] fund [the] proposed acquisition and join
in promoting [American University's] quality clerkship program." Id.
The parties then began negotiations, which culminated with the execution of the agreements
at issue in this lawsuit.
A. THE AFFILIATION AGREEMENT
In the affiliation agreement, American University and Caritas agreed "to conduct structured
core, required and elective clinical clerkships for [American University] medical students" at Mary
Immaculate Hospital and Saint John's Queens Hospital. See Affiliation Agreement at 1. The
agreement commenced on January 1, 2007, and was to continue until December 31, 2009. It could
be earlier terminated by either party "only for a material breach." See id. 1. In the event of
termination, "the students who have commenced clerkships at the Hospitals will be allowed to
complete their scheduled clerkships." See id. at 1.1.
The agreement does not specify the number of clerkships that Caritas had to make available
to American University, but does state that "the maximum number of students scheduled to core
rotations at any one time will not exceed 75, and the maximum number of students scheduled to

Case 1:08-cv-20374-AJ Document 43 Entered on FLSD Docket 05106/2008 Page 3 of 17
elective rotations at any one time will not exceed 30." See id. at 3.1. Furthermore, it lists the
number of clerkships that were available at the time. See id., App.
The agreement also enumerates the parties' specific duties and responsibilities. Caritas
agreed, in part, "to appoint a professionally and personally qualified physician ... to oversee the
conduct of clerkships for [American University] students at each of the Hospitals ...; to permit
[American University] students appropriate access to patients in the Hospitals while they are
formally enrolled in clerkships ...; [and] to provide appropriate clinical supervision and training of
[University Students]." See id. at II. On the other hand, American University agreed, in part, to
appoint for clinical clerkships only those students who have satisfied certain academic requirements
and "to pay the Hospitals a fee per student per week, which shall be mutually agreed upon in writing
from time to time." See id. at III.
B. THE PROMISSORY NOTE

The promissory note memorializes American University's agreement to lend $3.5 million
to Caritas "for the completion of the acquisition" of Mary Immaculate Hospital and Saint John's
Queens Hospital, Caritas promised to "pay to the order of [American University], on demand, the
Principal Amount together with interest on the unpaid Principal Amount ..." See Promissory Note
at 1. But American University agreed to forbear demanding repayment of the principal amount
and to accept, as an incremental setoff, the provision of core and elective clerkships "so long as the
conditions of the note and the affiliation agreement were met." See Promissory Note at 1. The fee
to be deducted from the principal amount for each rotation was $ 341.25 per week per clerkship. See
id.
The note commenced on December 1, 2006 and was to "terminate upon either: (a) repayment
of the Principal Amount or satisfaction of the debt by setoff from the provision and delivery of Core
and Elective Rotations to the Lenders' medical students pursuant to an Affiliation Agreement that
cumulatively total the Principal Amount of U.S. $3,500,000, together with applicable interest fees
due and payable to Lender on outstanding principal amounts; or (b) the occurrence of [an] Early
Termination Event." See id. at 3.1. The note enumerates a number of events that would qualify
as an early termination event, such as a failure to meet the academic program requirements, noncompliance with agreed student-to-faculty ratios, or exceeding the maximum total number of
3

clerkships conducted at the hospitals. See id. at 2.6. The note was also voidable by American
University if Caritas was not able to acquire the bankrupt hospitals, See id. at 3.2,
To preserve the quality of the clinical education offered, the parties agreed that the two
hospitals would not have more than 50 core rotations each at one time, with American University
having "the right to schedule students to 50 % of any such core clerkships offered." See id. at 4.3,
The parties also agreed that a default by Caritas "will obligate Wyckoff to assume responsibility for
.., scheduling the maximum of fifty ... [American University] students receiving medical student
clinical education ... and the maximum of twenty (20) [American University] students in the
Elective Disciplines ... " See id. at 4,4. To this end, Wyckoff and its parent company Brooklyn
Queen, both of which are named defendants in this action, signed the note as guarantors.
In the note, Caritas also consented to "any extension, rearrangement, renewal, or
postponement of time of payment"of the note, See id. at 4.17(d). Caritas also consented to
jurisdiction and venue in Miami-Dade County, Florida, and the parties agreed that the note was
governed by Florida law. See id. at 4.15.
C. PERFORMANCE
At Caritas' hospitals, medical clerkship rotations generally start every six weeks, for a total
of nine clerkship intakes each year. See Dec. of Natallia Chong at 116. Since the beginning of its
relationship with Wyckoff in 2001, American University provides the hospitals with a list of students
planning to commence clinical clerkships at least 30 days prior to the corresponding clerkship intake
date, See id. at 14. If American University schedules less than the maximum number of clerkships
allotted, the hospitals can fill the unused slots with students from other medical schools. See id. at
11 4-8. Further, American University deducts from the note's outstanding principal the fees for
unused clerkships, so that Caritas does not lose income due to unused positions. See January 31,
2008 letter from Arturo Aballi to Lee A, Barkan (American University "wishes to make it clear that
it will pay for all of the Core Rotations it has scheduled in each Core Discipline to which it is entitled
at the current fees, even if it uses less than all of them").
D. THIS DISPUTE
About a year after receiving the $3.5 million unsecured loan, Caritas sought to modify the
agreements, in part, to reduce the number of clerkships allotted to American University. See Am,
4

See Ver. Am. Compl. at 107. See also February 1, 2008, letter from Lee Barkan to Arturo Aballi
(if American University "were willing to amend the Note Agreement by reducing the number of core
rotations from 50 to 25, Caritas would refrain from terminating the parties' relationship"). American
University did not agree with the proposed modification, and the defendants decided to pay off the
note - and terminate the relationship - before the next intake date scheduled for March 3, 2008. See
Ver. Am. Compl. at 11109.
On January 31, 2008, American University's counsel reiterated to the defendants that
American University was "scheduling students for the maximum number of Core Rotations to which
it is entitled" for the rotation commencing on March 3, 2008. See January 31, 2008 letter from
Arturo Aballi to Lee A. Barkan. On February 1, 2008, the defendants' counsel responded by stating
that given American University's failure to cooperate in modifying the terms of the parties'
relationship, Caritas had decided to terminate the relationship by paying off the note. The defendants
made clear that while current students would be allowed to terminate their rotations, no students
would be accepted on the next rotation date - March 3, 2008. The defendants urged American
University to "promptly take all steps it deems appropriate to place the students on [the] March
Student List at other hospitals." See February 1, 2008 letter from Barkan to Aballi.
On February 13, 2008, American University and five of its students file this action and filed
an emergency motion for a preliminary injunction seven days later. 1 scheduled a hearing for March
4, 2008. But in a commendable effort to mitigate the harm to the students, the parties agreed to place
the students scheduled to start rotations in March in elective clerkships and to stay this action for two
weeks to allow settlement negotiations to proceed.
On March 3, 2008, 17 American University students were placed in elective clerkships
pursuant to the parties' interim agreement. According to American University, however, its students
were "gravely mistreated at the March 3, 2008 intake." See Dec, of Edward Kulesa at 11. They
were "herded into a very tiny conference room where they were forced to wait until all other schools'
students [who were in a larger conference room] were placed." American University students
"essentially got the leftover electives. This caused the students much duress, Several were crying
and all were visibly angry." Id. at II 12.

On March 3, 2008, the defendants informed the court that they had tendered a check in the
amount of $2,468,559.47 to pay off the promissory note. See Sur-Reply at 7. This amount, however
was insufficient to pay off the note as the outstanding balance was approximately $2,870,000,00. See
April 4, 2008 Supp. Dec. of Julius Romero at 20 ("Caritas informed [American University] that
it holds a check in the amount of approximately $2.87 million that it is prepared in order to effectuate
a termination of the Promissory Note Agreement and the Affiliation Agreement").
The parties were not able to reach an agreement during the two week stay, and on April 2,
2008, I held a hearing on the motion for a preliminary injunction.
On April 14, 2008 - the next scheduled rotation intake date - six American University
students showed up at the defendant's hospital to start clerkship rotations. The defendants placed
three students in core clerkships and three students in elective clerkships. See Stipp'. Dec. of Julius
Romero at VI 3-6. According to American University, it did not send any students to the defendants'
hospitals on April 14 because the defendants had informed them that none of the students would be
accepted. The six students who went to the defendants' hospitals did so independently "to see if they
would be placed." See Dec, of Edward Kulesa at 9. While American University has been able to
find clerkship slots for the students that were to begin in April of 2008, there is no guarantee it will
be able to do so in the future, See id. at 1113.
II. PERSONAL JURISDICTION
Before addressing the plaintiffs' request for injunctive relief, I address the defendants'
argument that the court lacks personal jurisdiction over them. A federal district court sitting in
diversity may exercise personal jurisdiction to the extent allowed by the law of the forum state and
the Constitution's Due Process Clause. See Meier v. Sun Int 1 Hotels, Ltd., 288 F.3d 1264, 1269
(11th Cir. 2002). I must, therefore, first determine whether the Florida long-arm statute governing
personal jurisdiction over foreign defendants is satisfied here. See Future Tech. Today, Inc. v. OSF
Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (citing Sculptchair, Inc. v. Collin),Arts, Ltd.,
94 F.3d 623 (11th Cir. 1996)). If the requirements of the long-arm statute are satisfied, then I must
examine whether the exercise of jurisdiction will comport with due process. See id.
As the plaintiffs, American University and its students have the burden of establishing that
there is personal jurisdiction over the defendants. See Cable/Home Connnunication v. Network

Prods., inc., 902 F.2d 829, 855 (11th Cir. 1990). They must initially plead sufficient facts in the
complaint to support the basis for the exercise of personal jurisdiction. See Future Tech., 218 F.3d
at 1249 (citation omitted). If they do this, the burden then shifts to the defendants to make a prima
facie showing of the inapplicability of the state jurisdictional statute. Id. If the defendants meet their
burden, the plaintiffs must substantiate the claims of jurisdiction by affidavits or other competent
proof. Id.
Here, the defendants - all of whom are based in New York - argue that plaintiffs have not
pled personal jurisdiction under Florida law, I agree with the defendants that the initial complaint
did not plead sufficient facts establishing personal jurisdiction under Florida's long-arm statute.
These deficiencies, however, were cured in the amended complaint. In the amended complaint, the
plaintiffs allege that various meetings and communications that led to the execution of the
agreements in question involved American University's Florida office and that the agreements were
to be performed, in part, in Florida, For example, the plaintiffs allege that the first meeting between
Wyckof and American University representatives was in Florida; that the letter proposing the
prepayment of clerkship slots was sent to American University's Florida offices; and that the letter
stating American University's interest in the affiliation/note agreement was sent from its Florida
offices. The amended complaint further alleges that part of the defendants' performance of the
agreements was due in Florida, e.g., the defendants had the practice of sending the note's quarterly
interest payments, the periodic student evaluations, and the clerkship invoices to American
University's Florida office. See Ver. Am. Compl. at 12. at 12-41. And, plaintiffs allege that
the defendants communicated with American University's Florida office to manage the clerkship
program. Id.
This is, therefore, not a case where personal jurisdiction is merely based on a contractual
forum provision. Rather, personal jurisdiction here is based on the defendants' purported failure to
perform obligations due in New York and in Florida under a contract negotiated, in part, from
Florida, together with a Florida forum selection clause. As a result, I am satisfied that there is
personal jurisdiction over the defendants under Fla. Stat. 48.193(1)(g). See Vacation Ventures, Inc.
`The defendants do not seem to argue that the exercise of personal jurisdiction offends due
process principles. In any event, I conclude that the defendants' connection with Florida "are such
7

v. Holiday Promotions, Inc., 687 So.2d 286, 288-91 (5`b DCA 1997). See also American Fin
Trading Corp. v. Boner, 828 So.2d 1071, 1075 (Fla. 4t h DCA 2002); Desai Patel Sharma Ltd. V. Don
Bell Indus., Inc., 729 So.2d 453, 454 (Fla. 5' DCA 1999).
III. PRELIMINARY INJUNCTION
A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the
moving party clearly establishes four prerequisites: (1) a substantial likelihood of success on the
merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) that the threatened
injury to the movant outweighs whatever damage the proposed injunction may cause the opposing
party; and (4) that if issued, the injunction would not be adverse to the public interest. See Four
Seasons Hotels and Resorts, B. V. v. Consorcio Bart-, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003);
imaging Business Mach., LLC v. Bantec, Inc., 459 F.3d 1186, 1192 (1Pb Cir. 2006);
Zardui-Quintana v, Richard, 768 F.2d 1213, 1216 (11th Cir. 1985). After reviewing the evidence
of record and the parties' arguments, I conclude that an injunction is appropriate to enjoin the
defendants from unilaterally terminating the parties' relationship.
Generally, the likelihood of success on the merits is the most important factor. Where the
balance of the equities weighs heavily in favor of an injunction, however, a showing of "a
substantial case on the merits" is sufficient to warrant injunctive relief. See Gonzalez v. Reno, 2000
WL 381901, *1 (11thCir. 2000) (citing Ruiz v. Estelle, 650 F.2d 555, 565 (5thCir. 1981); Hilton v.
Braunskill, 481 U.S. 770, 778 (1987); United States v. Hamilton, 963 F.2d 322, 323 (1 Ph Cir. 1992);
Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11thCir. 1986)). The so-called "sliding scale" is
particularly appropriate in cases like this one where the plaintiffs will be significantly and
irreparably harmed in the absence of an injunction.
that [the defendants} should reasonably anticipate being haled into court here" and the maintenance
of this suit in Florida does not offend "traditional notions of fair play and substantial justice." See
Burger King Corp. v. Rudzeivicz, 471 U.S. 462, 474 (1985); Sloss Industries Corp, v. Eurisol, 488
F.3d 922, 933 (11' Cir. 2007). See also M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 11 (1972)
(noting that parties to a contract may agree in advance to submit to the jurisdiction of a given court).

A. BALANCE OF THE EQUITIES

I. PLAINTIFFS' IRREPARABLE HARM
The plaintiffs have established that they will suffer significant irreparable harm if the
defendants are allowed to wrongfully terminate the agreements and pay off the note. American
University, assuming that it had prepaid guaranteed clerkship slots, offered the clerkships at the
defendants' hospitals to its students. The American University students, in turn, relied on American
University's representations and now expect to timely complete their clerkships in New York. If
American University cannot fulfill its academic promise to its students, its reputation as a serious
reliable alternative to medical schools in the United States will be undoubtedly harmed. Indeed, if
no injunctive relief is granted, American University will be left with a group of medical students
ready for their clerkships without anywhere to place them. The harm to American University's
reputation and good will would be unquantifiable and truly irreparable.
See Bellsouth
Telecommunications, Inc. v. MCIMetro Access Transmission Services, LLC, 425 F.3d 964, 970 (11'h
Cir. 2005)("Although economic losses alone do not justify a preliminary injunction, 'the loss of
customers and goodwill is an irreparable injury."') (citing Ferrero v. Associated Materials, Inc., 923
F.2d 1441, 1449 (1 phCir. 1991)),
American University can, of course, try to find alternative placement for its displaced
students.' But I credit the undisputed testimony of Paul Schnatz, who stated in his declaration that
"even if [ American University] was able to secure additional U.S. clinical clerkship slots, it is
doubtful it could do so in enough time to help most (if any) of these twenty-nine [American
University] students." See Dec. of Paul Schnatz at 1112. Indeed, some of the replacement slots that
American University has found are for elective clerkships, which should academically be scheduled
after the completion of the core clerkships, and not before. See Dec. Natallia Chong at 22.
'The parties' supplemental affidavits suggest that American University has been able to place
some of its students with other hospitals and that the defendants had made available about six
clerkships - three core and three elective. See Supp. Dec. of Julius Romero at 6; Rebuttal Dec. of
Edward Kulesa at 119. There is no guarantee, however, that this is going to continue through the
expiration of the affiliation agreement in December of 2009.
9

The irreparable harm also extends to the group of students who will be left in limbo because
of the parties' contractual disputes.' The clinical clerkship program is designed to be completed in
time for the annual post-graduation residency match program - where students apply for postgraduation residencies, Some students may not be able to obtain clerkships, and that is a harm that
cannot be remedied by money damages. Moreover, any delay in the completion of the required
clerkships, has the potential of delaying a student's graduation date, which in turn could delay a
student's ability to participate in his targeted residency match program. See id. at 11 11. The
students' potential harm from the resulting delay in the completion of their studies is also
unquantifiable and irreparable.
The defendants contend that American University has known that they intended to terminate
the relationship since January and that they should have placed its students with other hospitals, But
this argument circularly assumes that the defendants have the right to unilaterally terminate the
relationship by paying off the note. Kit is ultimately established that American University had a right
to use its credit to obtain clerkships until the expiration of the affiliation agreement, then the
defendants' early notice of their intent to terminate the contract has little legal significance, if any.
Even if the defendants' argument is considered on its merits, it is not persuasive. The issue is not
simply whether American University cou Id have placed its students in alternative clerkships through
the middle of 2008, but whether it will be able to do so for all students through late 2009.
2. THE HARM TO DEFENDANTS
The harm that defendants could possibly suffer as a result of an injunction here pales in
comparison to the harm that the plaintiffs will suffer if one is not entered. Indeed, it is hard to
conceive how the defendants will be harmed by an injunction requiring them to provide clerkships
1 agree with the plaintiffs that American University students are intended third-party
beneficiaries of the affiliation agreement and the note. Indeed, the affiliation agreement expressly
states Caritas agreement to "conduct structured core, required and elective clinical clerkships for the
University's medical students..."See Affiliation Agreement at 1 (emphasis added). And, Caritas
agreed to "permit students of the University appropriate access to patients in Hospitals while they
are formally enrolled in clerkships [and] ... to provide students with appropriate and timely
counsel/feedback/notification ..." See id. at II. These express references to the students in the
agreement make the students third- party beneficiaries under Florida law. See Warren v. Monahan
Beaches Jewelry Center, 548 So.2d 870, 874 (Fla. IS` DCA 1989); Technicable Video Sys., Inc. v.
Ainericable of Greater of Miami, 479 So.2d 810, 811-12 (Fla. 3d DCA 1985).
3
10

Case 1:08-cv-20374-Ai Document 43 Entered on FLSD Docket 05/06/2008 Page 11 of 17
that have been already pre-paid. I understand that the defendants could possibly sell the clerkship
slots at the once-bankrupt hospitals for a higher value. But that is a detriment the defendants agreed
to undertake in the note agreement in exchange for a $3.5 million dollar unsecured loan.
The defendants further argue that American University is not using all the highly coveted
clerkships allotted under the promissory note. This argument, however, fails because American
University has taken the position (1) that the defendants can sell any unused clerkship to other
schools and (2) that American University will deduct from the principal the cost of any reserved
clerkship regardless of whether it was used or not. See January 31, 2008 letter from Arturo Aballi
to Lee A Barkan (American University "wishes to make it clear that it will pay for all of the Core
Rotations it has scheduled in each Core Discipline to which it is entitled at the current fees, even if
it uses less than all of them"). Accordingly, the defendants could actually profit from American
University's purported failure to use all the clerkships,
B. SUBSTANTIAL CASE ON THE MERITS'
1. THE AFFILIATION AGREEMENT
At the very least, the plaintiffs have a substantial case on the merits, Irrespective of the note,
Caritas appears to be contractually obligated under the affiliation agreement to "conduct structured
core, required and elective clinical clerkships for [American University's] medical students" at Mary
Immaculate and Saint John's Queens Hospitals until December of 2009. Nothing in the affiliation
agreement makes this obligation contingent on the existence of the note, and the agreement does not
automatically terminate when the note is paid off.
The defendants argue that the affiliation agreement was intended to provide the terms to
repay the $3.5 million note with clerkships and is meaningless once the note is repaid with cash.
This argument, however, has no support on the express language of the affiliation agreement. On
`The defendants have moved to dismiss the amended complaint, arguing that the express
terms of the promissory note defeat the plaintiffs' claims, that Fla. Stat. 697.06 authorizes the
prepayment of the promissory note, that the promissory note provides for a remedy other than
specific performance, that the affiliation agreement cannot stand independently from the promissory
note, and that the court does not have personal jurisdiction over the defendants. These are essentially
the same arguments the defendants raised in opposition to the motion for injunctive relief, and which
I reject below. As such, even though the motion to dismiss has not been fully briefed yet, I am
convinced that the amended complaint does state a claim upon which relief can be granted.
11

the contrary, the express language of the affiliation agreement states that it is to continue until
December 31, 2009 and that it can be terminated only for a "material breach." See id. at 1.
Indeed, when the note and the affiliation agreement are read together, the affiliation
agreement seems to be broader than the note. For example, while there is no reference to the note
in the affiliation agreement, the note is explicitly contingent on the parties' compliance with the
terms of the affiliation agreement. See Promissory Note at 1(American University agreed not to
demand payment, in part, "so long as the terms and conditions of the Affiliation Agreement are
met"). And the note can be paid off with medical clerkships provided "pursuant to an Affiliation
Agreement." See Note at 1. Contrary to the defendants' arguments, therefore, the note appears
to be an agreement for the payment of $3.5 million worth of clerkships provided by Caritas pursuant
to the Affiliation Agreement, rather than the main operative agreement between the parties.
The defendants are correct that the affiliation agreement does not establish a minimum
number of clerkships that Caritas has to make available to American University; it just establishes
a maximum of 75 core clerkships and 30 electives. But this does not mean that the agreement is
unenforceable on its own. Under Florida law, a missing contract term can be implied from the
parties' course of dealing. See Scott v. Rolling Hills Place, Inc., 688 So.2d 937, 939 (Fla. 5' DCA
1997) ("Although the contract was silent as to the method of payment, the actions of the parties in
making interim payments on the submission of invoices became a term of the contracts"). See also
NCP Lake Power v. Fla. Power Corp., 781 So.2d 531, 537 (Fla. 15tDCA 2001) (parties course of
dealing can be used to 'annex incidents to a written contract' regarding matters to which the
contract is silent"). Here, the parties' course of dealing seems to establish a practice of 50 clerkship
slots per intake. At this early stage of the proceedings, I find that this practice is implied to be part
of the agreement. See id.
The plaintiffs, therefore, have a substantial case on the merits even if I were to conclude that
the defendants could pay off the promissory note before demand. In the absence of a material
breach, Caritas appears to be obligated under the affiliation agreement to provide clerkships for
American University students until December of 2007, regardless of whether the Note can be paid
off at will.
12

2. THE NOTE
But it is not at all clear that the defendants have a right to pay off the note at will. On the
contrary, it seems that the defendants cannot pay off the note without American University's consent.
l understand that the note provides that payment "may" be made by providing the clerkship slots and
setting off the costs of those positions, but the note is payable on demand. The common law rule is
that a lender has no obligation to accept prepayment of a note payable on demand, absent a provision
allowing for prepayment. See Maantyre v. Hark, 528 So.2d 1276, 1277 (Fla. 3d DCA 1988). See
also Northwestern Mut. Life Ins. Co. v. Uniondale Realty Assoc., 816 N.Y.S.2d 831, 835 (N.Y. Sup.
2006). Further, 17(d) - which gives American University to "rearrange" or "postpone" the
payment of the note - strongly suggests that American University has the complete discretion to
determine the time of payment. The only limit on this discretion appears to be that American
University cannot demand payment while the defendants are willing to set off the balance with
clerkships. See id. at 1.
The defendants argue that Fla. Stat. 697.06 gives them the right to pay the note at any time.
In relevant part, 697.06 provides that "any note which is silent as to the right of the obligor to
prepay the note in advance of the stated maturity date may be prepaid in full by the obligor or her
or his successor in interest without penalty." The problem is that the Note here is not "silent" as to
the defendants' right to prepay. Rather, as explained above, 17(d) seems to give American
University the almost absolute right to postpone the payment of the note, which again would
arguably prevent the defendants from prepaying at will. See Hark, 528 So.2d at 1277 (note "must
be read as a whole" to determine if 697.06 applies). 1 understand that this clause, as other clauses
in the operative agreements, could be subject to various interpretations. But given the evidence of
great irreparable harm, I conclude that the plaintiffs have a substantial case that 697.06, which is
to be "strictly construed,"Hark, 528 So.2d at 1277, does not apply to this case.
The defendants further argue that 3.1 of the note allows payment with cash or with
clerkships. That clause states that "the Note will commence on December 1, 2006 and will
terminate upon either: (a) repayment of the Principal Amount or satisfaction of the debt by setoff from
the provision and delivery of Core and Elective Rotations to the Lenders' medical students pursuant
to an Affiliation Agreement that cumulatively total the Principal Amount of U.S. $3,500,000, together
13

with applicable interest fees due and payable to Lender on outstanding principal amounts..." The
defendants are correct that, when read in isolation, this provision suggests that the defendants can
terminate the note by paying the principal amount or by setting off the total balance with clerkships.
Florida law, however, makes clear that 3.1 cannot be construed in a vacuum; it must instead be
construed in pang materia with the other provisions of the note. See Covert v, South Fla. Stadium
Corp. v. South Fla. Stadium Corp., 762 So.2d 938, 940 (Fla. 3d DCA 2000); Dearing v. Gen. Motors
Acceptance Corp., 758 So.2d 1236, 1238-39 (Fla. 5thDCA 2000) (citing Harris Air Sys., Inc. v.
Gentrac, Inc., 578 So.2d 879 (Fla. 15tDCA 1991)). The most plausible construction of 3.1, when
read together with 17(d) - which states that American University has right to rearrange or postpone
time of payment - and the note's payment on demand provision, is that the note can be terminated
by payment of the principal if American University demands payment. Any other interpretation
would render the note's on demand provision and 17(d) meaningless, which is contrary to Florida
contract law. See Ceradini v. IGT Serv., Inc., 959 So.2d 348, 351 (Fla, 3d DCA 2007)("it is a
cardinal principal of contract construction that agreements are to be interpreted so as to give meaning
to all their provisions"). See also Murphy v. Young Men 's Christian Assoc. of Lake Wales, Inc., 974
So.2d 565, 568(Fla. 2d DCA 2008) ("all terms of a contract provision must be read as a whole to give
every statement meaning") (internal citations omitted).
Further, to the extent that 3.1 is ambiguous, the parol evidence at this stage favors the
plaintiffs. Indeed, the defendants' initial offer to American University talked about "guaranteed
clerkship slots" and prepaid clerkships. See Ver. Am. Compl., Ex. C. And American University's
response letter explicitly states that it is interested in "guaranteed" clerkships. See id., Ex. C. These
pre-contract exchanges indicate that the focus of the note was not on the payment of the $3.5 million
unsecured loan but on the provision of clerkships. In other words, the note seems to be more an
agreement to pay in advance for medical clerkships than an agreement to secure the repayment of a
$3.5 million unsecured loan. As such, the contention that the defendants could terminate the Note
at any time is simply not plausible.
I also agree with the plaintiffs that even if the defendants had the right to pay the note at any
time, they could not arbitrarily exercise this right to defeat American University's contractual
14

arbitration. See Cox v. CSX Intermodal, Inc., 732 80,2d 1092, 1098 (Fla. 1 51DCA 1999). As Cox
explained, relying on the reasoning of Justice Souter, then with the New Hampshire Supreme Court:
[U]nder an agreement that appears by word or silence to invest one party with a degree
of discretion in performance sufficient to deprive another party of a substantial
proportion of the agreement's value, the parties' intent to be bound by an enforceable
contract raises an implied obligation of good faith to observe reasonable limits in
exercising that discretion, consistent with the parties' purpose or purposes in contracting.
Id.
Cox involved a contract to haul freight from the defendant's cargo terminal. The contract gave
the cargo terminal exclusive rights to the plaintiff's truck and transport services, but the terminal had
the complete discretion as to how to assign freight loads to the various transporting companies. The
plaintiff alleged that the terminal had breached the contract by assigning the most lucrative loads to
other transportation companies. The trial court entered summary judgment in favor of the terminal
company on the grounds that its discretion under the contract was absolute, The First District,
however, reversed holding that there was an issue of fact as to whether the terminal company had
exercised its discretion to defeat the plaintiff's contractual expectations in violation of the implied
covenant of good faith. See id.
The implied covenant of good faith and fair dealing is a very limited contractual theory that
cannot be applied the express terms of a contract. See id. On this record, however, I believe that the
plaintiffs have established a substantial case that the defendants' unilateral and arbitrary prepayment
of the note - assuming the defendants the defendants had the right to prepay - would breach their
duties of good faith by defeating American University's contractual expectations .
Further, the record strongly suggests that the defendants' first tender of payment was in fact
insufficient to pay off the note. Compare Sur-Reply at 7 (informing the court on March 3, 2008
that defendants had tendered a check in the amount of $2,468,559.47 to pay off the ) to April 4, 2008
Supp. Dec. of Julius Romero at 1120 ("Caritas informed [American University] that it holds a check
in the amount of approximately $2.87 million that it is prepared in order to effectuate a termination
of the Promissory Note Agreement and the Affiliation Agreement"). Indeed at the hearing, counsel
for the plaintiffs represented that the first tendered payment was short, and this was not disputed by
the defendants' counsel. Accordingly, even if the defendants had the right to pay off the note, they
15

probably breached the note when they refused to place American University students in core
clerkships on March 3, 2008, as at that time the note had not been paid off.
In sum, based on my preliminary review of the agreements, the plaintiffs seem to have a
substantial case on the merits.
C. Public Interest
I also conclude that an injunction here will not be adverse to the public interest. On the
contrary, the public has a cognizable interest in the protection and enforcement of contractual rights.
See Johnson Controls, Inc. v. Ruinore, 2008 WL 203575, * 14 (M.D.Fla. Jan, 23, 2008); C.H.
Robinson Woriwide, Inc. v. B & G Produce, Inc., 2007 WL 41946 (M.D.Fla. January 4, 2007), If,
as it seems at this stage, American University agreed to give the defendants a $3.5 million unsecured
loan to assure "guaranteed clerkship slots" until 2009, then an injunction preventing the defendants
from wrongfully terminating the agreements benefits the public. Further, the public will be
benefitted, and not adversely affected, by ensuring that medical students are able to timely complete
their clinical studies.
D. BOND
I also conclude that a bond is not necessary here. See Bellsouth, 425 F.3d at 971(the amount
of an injunction bond "is a matter within the discretion of the trial court ...[, and] the court may elect
to require no security at all"). The defendants owe to American University approximately $2.87
million. See Supp. Dec. of Julius Romero at 20 ("Caritas informed [American University] that it
holds a cheek in the amount of approximately $2.87 million that it is prepared in order to effectuate
a termination of the Promissory Note Agreement and the Affiliation Agreement"). As such, any
damage resulting from a wrongful injunction could be set off from the outstanding balance.
IV. CONCLUSION
Accordingly, the plaintiffs' motion for injunctive relief is granted. Caritas is hereby enjoined
during the pendency of this action from:
(1) paying off the promissory note unless demand is made by and pursuant to
the terms of the note and
(2) breaching their obligation to provide a maximum of 50 core clerkships "at
any one time" at a rate of $ 341.25 per week as required by 1 and 4.3 of the
note - and the affiliation agreement.
16

MIAMI DIVISION
Petitioners,
vs.
Respondent.
__________________________________/
PETITIONERS' OPPOSITION TO RESPONDENT'S
MOTION TO STAY DISCOVERY OR IN THE
ALTERNATIVE, FOR PROTECTIVE ORDER
Petitioners Palmat International, Inc. ("Palmat") and Roberto Wellisch ("Wellisch"),
(collectively "Petitioners"), hereby respectfully file this memorandum of law in opposition to the
Government's Motion to Stay Discovery or in the Alternative, for Protective Order.
INTRODUCTION
Petitioners filed this action seeking a declaration that the Government's production of the
confidential bank records requested by an Argentine Judge would violate the U.S. Constitution
because the Argentine Judge has made and will make these bank records available to the public.
The Petitioners have further established that the disclosure of this confidential information has
caused significant and irreparable harm as it has been linked to the murder and kidnapping of
Wellisch's relatives.
The limited discovery served by Petitioners seeks to establish that the Government is in
fact aware that the Argentine Judge has made and will make Petitioners' confidential information
available to the public. Because the Government cannot comply with a legal assistance request
in a manner that violates Petitioners' constitutional rights, this discovery is essential to
Petitioners' claims, and indeed, to the resolution of the pending motion to dismiss.
Notwithstanding, the Government has filed a motion seeking an unjustified and indefinite stay of
all discovery in this case.
As the Government admits, the filing of a motion to dismiss generally is insufficient to
stay discovery. Only in the rare cases where the defendant can establish that the underlying
complaint is destined for dismissal and that discovery would cause undue prejudice, is a stay of
discovery justified. That is not the case here.
Petitioners have established viable constitutional claims, and the Government has not
proffered any evidence of undue burden. As such, the motion to stay must be denied.
ARGUMENT
I.
A stay of discovery is not justified.

The Local Rules of this Court are clear on the issue of a stay of discovery. "Normally,
the pendency of a motion to dismiss or motion for summary judgment will not justify a unilateral
motion to stay discovery pending a ruling on the dispositive motion. Such motions for stay are
generally denied except where a specific showing of prejudice or burdensomeness is made, or
where a statute dictates that a stay is appropriate or mandatory." Local Rules, Gen. App. A.
I(D)(5); see also Ray v. Spirit Airlines, Inc., 2012 WL 5471793, *1 ( (S.D.Fla. Nov. 9, 2012)
("This District's Local Rules make clear, however, that a stay of discovery pending the
determination of a motion to dismiss is the exception rather than the rule.")
As the court explained in Ray, in considering a motion to stay discovery, the court must
take a preliminary peek at the merits of the motion to dismiss and also weigh the harm
produced by a delay in discovery against the likely costs and burdens of proceeding with
discovery. Id. Only in the rare cases where a defendant demonstrates that the complaint is
destined for dismissal and that discovery will be unduly prejudicial, is a stay of discovery
justified. This is a burden that the Government has not come even close to satisfying.
A. Petitioners have stated a viable constitutional claim
The Government cannot show that this is a case destined for dismissal. First, the pending
motion to dismiss misses the mark in that it erroneously assumes that this action alleges a claim
for a violation of the Mutual Legal Assistance Treaty between the United States and Argentina.
That is not the case, as demonstrated in the Petitioners' Response to the Motion to Dismiss.
Petitioners are not asserting any claim under the Argentina/U.S. MLAT. Indeed, Petitioners
concede that the MLAT does not give rise to a private cause of action. Instead, Petitioners seek a
declaration that the Government's production of the Petitioners' confidential bank records
requested by the Argentine Judge would violate the U.S. Constitution, not the Argentina/U.S.
MLAT. In short, Petitioners' rights arise from the U.S. Constitution, not the MLAT, a fact which
the Government continues to ignore.
It is a well established tenet of Constitutional law that treaties, like statutes, are subject to
constitutional limits.
Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 417 n.9 (2003) (treaty
obligations are "subject . . . to the Constitution's guarantees of individual rights"). Every court
that has addressed the issue has held that courts have the judicial power to review the
constitutionality of requests made pursuant to MLAT treaties. See e.g., In re Premises Located
at 840 140th Ave. NE, Bellevue, Washington, 634 F.3d 557, 571-572 (9th Cir. 2011) (hereafter
"In Re 840 140th Ave"); In Re Request from United Kingdom, 685 F.3d 1 (1st Cir. 2012)
(hereafter "In Re United Kingdom").
Petitioners have established that the Government's compliance with the request for their
confidential bank information would violate their right of privacy because the Argentine Judge
overseeing the investigation of Petitioner Palmat in Argentina has and will continue to make
public directly or indirectly - any information about the Petitioners that it obtains from the
Government. The improper disclosure of this information has put Petitioners in danger and has
been directly linked to the kidnapping of two close relatives of the Petitioner Wellisch, one of
whom was murdered.
In this factual context, the Government's production of Petitioners' financial information
to the Government of Argentina would violate Petitioners' constitutional right to maintain the
privacy of its financial information. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977) (the right
to privacy protects not only the independence in making certain kinds of important decisions
but also the individual interest in avoiding disclosure of personal matters.); Hester v. City of
Milledgeville, 777 F.2d 1492, 1497 (11th Cir. 1985) (citing Plante v. Gonzalez, 575 F.2d 1119,
1132 (5th Cir.1978) (individual interest in avoiding disclosure of personal matters . . . is
protected by the confidentiality strand of the constitutional right to privacy.); Statharos v. New
York City Taxi and Limousine Com'n , 198 F.3d 317, 323 (2d Cir. 1999) (following "Whalen, this
of personal financial information."); cf. California Bankers Ass'n v. Shultz, 416 U.S. 21, 7879,
94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (Powell, J., concurring) (Financial transactions can reveal
much about a person's activities, associations, and beliefs. At some point, governmental intrusion
upon these areas would implicate legitimate expectations of privacy.).
As such, Petitioners have stated a viable cause of action, and the Government cannot
show that this is a case "destined for dismissal." This failure, without more, requires the denial
of the motion to stay discovery.
B. The Government has failed to establish undue prejudice
This Court has made clear that general allegations of prejudice purportedly caused by
discovery are insufficient and not cognizable. To warrant the extraordinary remedy of staying
discovery, a defendant must identify in a specific and tangible way the unreasonable discovery
burdens it will face absent a stay. Ray, 2012 WL 5471793; see also Bocciolone v. Solowsky,
2008 WL 2906719, at *2 (S.D.Fla. July 24, 2008). This is a burden that the Government does
not come even come close to satisfying.
In support of its claim of undue prejudice, the Government first argues that the USArgentina MLAT "requires that the party executing a request for mutual legal assistance use its
"best efforts" to keep confidential" the request if such confidentiality is requested by the Central
Authority of the requesting state." Motion to Stay at 5. What is conveniently absent from the
Government's motion is any indication that Argentina has met its treaty obligation of
confidentiality.
It is clear that the Argentine Judge has completely disregarded such
requirements of confidentiality by allowing all of the information provided by the US to be made

public. Indeed, that is precisely how the Petitioners learned of the existence of the MLAT
request in the first place. Having allowed the request and related information to be made public,
the Argentine Judge has not and cannot possibly request any assurance of confidentiality. Quite
the opposite, the Government's production will be made public, as has already occurred.
Further, the Petitioners, who are fully aware of the existence of the MLAT request, would
agree to the entry of a confidentiality order requiring that any document produced by the
Government be treated as confidential to be used exclusively for the purposes of this litigation.
The Government, therefore, cannot possibly argue that any need for confidentiality in this case
justifies a stay of discovery.
The Government further claims that the discovery requested by Petitioners may be
protected by the attorney-client privilege, the work product doctrine, and other theories. See
Motion to Stay at 7. But these concerns do not justify a blanket stay of discovery. Instead, the
Government can address its concerns by filing a privilege log and producing the non-privileged
information, as is customary in this type of cases. Further, Petitioners are agreeable to having
any responsive documents that are subject to a claim of privileged produced in camera for an
inspection by the Court, prior to any ruling on its discoverability.
II.
The requested discovery is relevant to the arguments raised in the motion to

dismiss.
Rather than justifying a stay of discovery, the arguments raised in the motion to dismiss
by the Government confirm that discovery should be allowed to proceed. Petitioners' discovery
requests may very well lead to the discovery of evidence indicating that the Government is fully
aware of the fact that the Argentine Judge is allowing the disclosure to the public of the
Petitioner's private and confidential information. In fact, Petitioners have reason to believe that
the U.S. is fully aware of this fact. Indeed, the failure by Argentina to abide by its confidentiality
provisions led to the decision by the Government to deny the initial MLAT.
Among other documents, Petitioners have asked the Government to produce "All
documents related to concerns regarding Argentina's failure to keep confidential documents
produced in response to an MLAT request." See Request to Produce No. 24. Documents
responsive to this Request may very well confirm that the Government is aware of the fact that
the Argentine Judge is allowing the public to have access to Petitioners' confidential information
in violation of Petitioners' constitutional right to privacy.
This example illustrates why the limited discovery requested by Petitioners is essential to
this action. If the requested discovery confirms that the Government is aware of the fact that the
Argentine Judge has violated and will violate Petitioners' right to privacy, that evidence would
establish that the Government cannot comply with the request for information at issue. The
Government simply cannot assist an Argentine party in violating Petitioners' constitutional
rights, and moreover, the propriety of the actions by the Government is subject to review by this
Court.
The Government is once again asking this Court to trust its judgment and prevent the
Petitioners from its right to obtain discovery supporting and confirming their claims. That the
Government cannot do. Petitioners have alleged viable constitutional claims and are entitled to
seek discovery which support its claims and moreover, will shed light on the very Motion to
Dismiss the Government has filed.
The Government's Motion to Stay Discovery must, therefore, be denied.
AKERMAN SENTERFITT
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
By:
I hereby certify that on December 6, 2012, I electronically filed the foregoing document
SERVICE LIST
99 N.E. 4th Street
Telephone: (305) 961-9341
Facsimile: (305) 530-7139
10

Petitioners,
vs.
Respondent.
_________________________________/
RESPONDENTS REPLY TO PETITIONERS OPPOSITION TO
RESPONDENTS MOTION TO STAY DISCOVERY OR IN THE ALTERNATIVE,
FOR PROTECTIVE ORDER
In his Motion to Stay [D.E. 36], Respondent made a significant showing of harm that
likely would result if the government is compelled to respond to the propounded discovery, and
why, in light of the governments Motion to Dismiss [D.E. 27] that goes to both this Courts
subject matter jurisdiction as well as the merits of Petitioners constitutional claim of privacy,
this case should be stayed pending the outcome of that dispositive motion.
Petitioners
Opposition to Respondents Motion to Stay or in the Alternative for Protective Order

(Opposition) [D.E. 39] does not rebut Respondents showing. In fact, other than defaulting to
the general standard that motions to stay are disfavored in ordinary cases, Petitioners made no
attempt to respond to the governments compelling showing, through the sworn declaration of a
Department of Justice official knowledgeable about the governments extensive MLAT
operation, that concrete and specific harm to foreign relations and the governments law
enforcement efforts would result from the United States failure to comply with its treaty
obligations to maintain confidentiality regarding MLAT requests. Instead, the Opposition again
repeats the bald assertions that the Respondents production of Petitioners financial
information [in response to a valid request under the US-Argentina MLAT] to the Government
of Argentina would violate Petitioners constitutional right to maintain the privacy of its
financial information. Opposition, at p. 4. But as Respondent has already demonstrated in their
motion to dismiss, Petitioners do not state a constitutionally protected right. More importantly,
this Court simply does not have jurisdiction to proceed. This case presents the type of rare and
exceptional case where a stay pending the outcome of a dispositive motion is warranted.
I.
RESPONDENT HAS ESTABLISHED THAT RESPONDING TO DISCOVERY

PROPOUNDED BY PETITIONERS WOULD BE PREJUDICIAL
As articulated in Respondents Motion, the US-Argentina MLAT requires requests made
pursuant to the Treaty be maintained confidential by the requested state in this instance,
Respondent if the requesting state so demands. Specifically, Article 5 of the US-Argentina
MLAT requires a country executing a request to make its best efforts to keep confidential
the request if asked by the Central Authority of the requesting state. Petitioners argue that
Respondents Motion fails to indicate that Argentina has met its treaty obligation of
confidentiality. Opposition, at p. 5. Petitioners argument is backward.
While the requested state is under an obligation to keep confidential the existence,
content and response to an MLAT request, if such confidentiality is requested, nothing in the
US-Argentina MLAT suggests that if the requesting state asks for confidentiality under Article 5
in the first instance, the requested state must in turn request similar confidential treatment with
respect to any materials returned in response. Although, pursuant to Article 7, the Central
2
Authority of the requested state may ask for confidentiality and place conditions on the use of
information or evidence provided under the Treaty, the requested states prerogative to do so
remains independent from any existing request for confidentiality from the requesting state.
Therefore, contrary to Petitioners assertions, the Argentine Judge need not adhere to the same
confidentiality obligation to which the Respondent in this instance may need to adhere.1
Petitioners suggestion of entry into a confidentiality order does not provide a viable
solution. Initially, pursuant to the terms of the Treaty, if an MLAT request under the USArgentina MLAT cannot be executed without maintaining the requested confidentiality, the
requested state is further obligated by the subject MLAT to consult with the requesting state
prior to the requests disclosure in order to allow the requesting state to determine whether the
request should nevertheless be executed. See US-Argentina MLAT, art. 5, 5; Declaration of
Magdalena Boynton (Boynton Decl.), Associate Director of the Office of International Affairs,
Criminal Division, U.S. Department of Justice, dated November 6, 2012, attached as Exhibit C to
Motion to Stay, at 15, 18. Thus, if presented with an order compelling discovery regarding an
existing MLAT request, as to which Argentina had requested confidentiality, the United States
would be obligated under the US-Argentina MLAT to inform Argentina that the confidentiality
of the request cannot be maintained and allow Argentina an opportunity to withdraw the request
prior to disclosure to prevent any harm to the foreign criminal investigation that may result.
Further, as articulated by Magdalena Boynton, Associate Director of the Office of
International Affairs, harm my result from the Respondents failure to keep information
confidential. See, e.g., Boynton Decl. Cf. Ray v. Spirit Airlines, Inc., No. No. 1261528Civ.,
1
Although Petitioners have repeatedly made the assertion that an Argentine Judge has released Petitioners financial
information to the public, such assertions are purely speculative as Petitioners have failed to provide any evidence to
support their assertions.
2012 WL 5471793, at *3 (S.D. Fla. Nov. 9, 2012) (denying defendants motion to stay where
defendant failed to show a specific showing of prejudice and rather only made bland
generalizations that the breadth and scope of discovery was extensive). Cf. Ray v. Spirit Airlines,
Inc., No. No. 1261528Civ., 2012 WL 5471793, at *3 (S.D. Fla. Nov. 9, 2012) (denying
defendants motion to stay where defendant failed to show a specific showing of prejudice and
rather only made bland generalizations that the breadth and scope of discovery was extensive).
The United States ability to maintain effective law enforcement relations with its treaty partners,
including Argentina, is imperative to the United States ability to investigate, prosecute and
assist in the prosecution of a wide array of criminal activity that, increasingly, transcends
national borders. See id. at 20. MLATs create reciprocal treaty obligations between the parties
to provide each other with legal assistance in criminal matters. See id. at 7. Annually the U.S.
Department of Justice Office of International Affairs (OIA) receives approximately 3,000
requests for mutual legal assistance from foreign authorities seeking assistance in gathering
evidence located in the United States for use in that countrys criminal investigations and
prosecutions. See id. at 6. OIA also makes nearly 1,000 such requests to foreign authorities for
assistance in United States criminal investigations and prosecutions. See id. Such requests are
made pursuant to a network of bilateral MLATs in force with over 70 countries, an increasing
number of multilateral conventions, and pursuant to non-treaty mechanisms such as letters
rogatory and letters of request. See id.
The
United
States
and
its
treaty
partners
treat
government-to-government
communications and deliberations regarding an MLAT request as sensitive law enforcement

matters that are not subject to disclosure. See id. at 8. Such expectations of confidentiality are
not limited to the MLAT context but extend to sensitive government-to-government
4
communications generally. See id. As a matter of treaty practice and reciprocity, the United
States must and does make its best efforts to ensure that requests for confidentiality received
from MLAT partners are honored and that MLAT requests it receives are protected from
disclosure. See id. at 11. This legal requirement that the United States honor its treaty
obligations further implicates the strong United States interest that its foreign counterparts, in
this case Argentina, honor their reciprocal obligations to maintain confidentiality when asked to
do so in providing assistance in securing evidence for use in U.S. domestic criminal
investigations and prosecutions. Failure to provide any confidentiality requested by Argentina
could significantly impact that countrys ability and willingness to accord reciprocal treatment to
similar U.S. requests for assistance.
The inability of the United States to comply fully with its obligations under the USArgentina MLAT could not only constitute a violation of the subject MLAT as described above,
but also could have a chilling effect on the ability of both parties to communicate freely and
candidly regarding matters that directly affect the security of their citizens, and often, the
security of individuals beyond their respective borders. See id. at 21. Responding to discovery
requests for information and communications relevant to a foreign criminal matter that is treated
as confidential pursuant to the terms of the applicable treaty risks preventing the United States
from fulfilling its treaty obligation to maintain the confidentiality of the request and impedes the
usual and proper application of the US-Argentina MLAT and. See id at 18. Further, the
inability of the United States to provide foreign authorities with the confidentiality to which they
are entitled under an MLAT may compromise the United States position with treaty partners
that the United States receives confidential handling of its own MLAT requests involving
sensitive criminal investigations sent to foreign authorities. See id. at 19. The United States
5
ability to further its significant domestic and law enforcement interests would be compromised
without the ability to obtain assistance and secure evidence located abroad. See id. at 22.
II.
AS DETAILED BY RESPONDENT IN THE MOTION TO DISMISS AND

CORRESPONDING REPLY, PETITIONERS CLAIMS ARE NOT VIABLE AND
THE DISCOVERY REQUESTED IS NOT RELEVANT TO THE ISSUES RAISED
IN RESPONDENTS MOTION TO DISMISS
Petitioners attempt to reargue the merits of Respondents Motion to Dismiss, but their
arguments do not support their discovery requests. In their Opposition, Petitioners incorrectly
maintain that they have established that the Governments compliance with the request for their
confidential bank information would violate their right of privacy. Opposition, at p. 4. That
contention is the subject of the pending Motion to Dismiss and corresponding Reply [D.E. 33].
As more fully set forth in Respondents Motion to Dismiss and corresponding Reply, this Court
lacks subject matter over Petitioners claims and further, Petitioners constitutional challenge
fails because: (i) Petitioners constitutional claim does not provide a valid basis to review the
Executive Branchs decision to comply with an MLAT request; and (ii) Respondents production
of financial records to Argentina in aid of a criminal investigation and in response to a valid
MLAT request does not violate the Constitution as (a) Petitioners do not state a constitutionally
protected right and (b) even assuming they have established a constitutionally protected
informational privacy interest, such interest is outweighed by the compelling government interest
in complying with a valid treaty request.
In Whalen v. Roe, 429 U.S. 589 (1977), and a subsequent decision, Nixon v.
Administrator of General Services, 433 U.S. 425 (1977), both decided more than 30 years ago,
the Supreme Court referred only generally to a possible constitutional privacy interest in
avoiding disclosure of personal matters. Nelson, 131 S. Ct. at 751; see also id. (assuming,
6
without deciding, that the Constitution provides a right to informational privacy and citing
Whalen, 429 U.S. at 599-600, and Nixon, 433 U.S. at 457). However, the Supreme Court has not
yet squarely decided whether there exists a constitutional right to informational privacy, much
less whether any such right would extend to protect against disclosure of financial records held
by third parties. See Nelson, 131 S. Ct. at 756; see also id. at 764 (Scalia, J., dissenting) (A
federal constitutional right to informational privacy does not exist.); Nelson v. NASA, 568 F.3d
1028, 1052 (9th Cir. 2009) (Kozinski, C.J., dissenting from denial of rehearing en banc)
(questioning existence of constitutional right to informational privacy); Bailey v. City of Port
Huron, 507 F.3d 364, 367 (6th Cir. 2007) ([T]he Constitution does not encompass a general
right to nondisclosure of private information . . . leaving most privacy-rights protection to the
states or the legislative process.) (citations and quotations omitted); Am. Fedn of Govt Emps.
v. HUD, 118 F.3d 786, 794 (D.C. Cir. 1997) (expressing grave doubts as to existence of
constitutional right to privacy in nondisclosure of personal information); J.P. v. DeSanti, 653
F.2d 1080, 1090 (6th Cir. 1981) (concluding that the right to informational privacy protects only
intrusions upon interests that can be deemed fundamental or implicit in the concept of ordered
liberty).
Additionally, contrary to the arguments raised by Petitioners, the Ninth Circuit Court of
Appeals in In re Premises Located at 840 140th Ave. NE, Bellevue, Washington, 634 F.3d 557,
572 (9th Cir. 2011) patently stated that the Constitution does not require [courts] to ensure that
a foreign government offers the same protections as does [the U.S.] Constitution before assisting
that government. Moreover, even assuming arguendo that Argentina would have a treaty
obligation to maintain the confidentiality of evidence obtained pursuant to the MLAT, it is
inappropriate for a court to assume that a foreign government will employ evidence obtained
7
pursuant to an MLAT in a manner that would run afoul of the treaty or other legal protections.
See, e.g., In re Letter Rogatory from Justice Court, Dist. of Montreal, Canada, 383 F. Supp. 857,
858-59 (E.D. Mich. 1974) ([I]t is not appropriate, simply on the basis of the allegation of a
possible procedure which may violate the defendants U.S. Constitutional rights, to assume that
such rights will receive no protection under [the foreign governments] procedures.), affd, 523
F.2d 562, 566 (6th Cir. 1975).
To the contrary, courts ordinarily presume that a foreign
government will comply with its bilateral treaty obligations. See, e.g., Bingham v. Bradley, 241
U.S. 511, 515 (1916) ([I]t is not to be presumed that the demanding government will suffer
[appellant] to be tried or punished for any offense other than that for which he is surrendered, in
violation . . . of the treaty . . .); Kelly v. Griffin, 241 U.S. 6, 15 (1916) (We assume, of course,
that the government in Canada will respect the convention between the United States and Great
Britain, and will not try the appellant upon other charges than those upon which the extradition is
allowed.).
Petitioners allege that because past communications between the United States and
Argentina regarding an MLAT request ultimately became public, Argentina has failed and will
continue not to comply with its MLAT obligations if the United States were to produce records
about Petitioners to Argentina in the future.2 See, e.g., Opposition, at p. 4; Petition, at 7-20.
However, to the extent Argentinas prospective handling of information obtained from the
United States pursuant to an MLAT could end up violating some confidentiality-related
obligation under the US-Argentina MLAT, there would be no remedy for any such violation
through a private suit like this one. Rather, the matter would remain one for resolution in the
As stated above, Petitioners have failed to provide any evidence to link the release of their financial information to
the government of Argentina.
consultative process provided by Article 18 or by other government-to-government means,

including use of the diplomatic process.
Lastly, Petitioners content that the discovery requests may very well lead to the discovery
of evidence indicating that the government is aware that the Argentine Judge is disclosing
Petitioners financial information to the public. Opposition, at p. 6. Discovery in this matter is
not relevant as the arguments currently pending before this Court raise purely legal issues as to
whether this Court has jurisdiction over Petitioners claims under the US-Argentina MLAT and
whether Petitioners have established a viable constitutional claim. Discovery of factual matters
will not advance Petitioners claims and will not aid the Court in answering those purely legal
questions. Indeed, Respondents Motion to Dismiss is premised on the assumption that each of
Petitioners allegations are true as must be presumed by a court when ruling on a motion to
dismiss for failure to state a claim. See Regions Bank v. Commonwealth Title Ins. Co., No. 11
23257CIV, 2012 WL 5410609 at *1 (S.D. Fla. Nov. 6, 2012) (When considering a motion to
dismiss under Rule 12(b)(6), the district court must accept all of the allegations as true,
construing them in the light most favorable to the pleader.) (quoting Pielage v. McConnell, 516
F.3d 1282, 1284 (11th Cir. 2008)).
III.
CONCLUSION
For the foregoing reasons, Respondent requests that this Court enter an Order staying
discovery, or a protective order until the Court rules on Respondents pending Motion to
Dismiss.
Dated: December 17, 2012
WIFREDO A. FERRER
By:
Tel: (305) 961- 9341
Fax: (305) 530-7139
I HEREBY CERTIFY that on December 17, 2012, I electronically filed the foregoing
10
SERVICE LIST
PALMAT INTERNATIONAL, INC. and ROBERT WELLISCH v. ERIC H. HOLDER,
JR., Attorney General of the United States of America

Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
11

MIAMI DIVISION
Petitioners,
vs.
Respondent.
__________________________________/
PETITIONERS' EMERGENCY MOTION FOR INJUNCTION PENDING
APPEAL OR IN THE ALTERNATIVE FOR RECONSIDERATION AND
PRELIMINARY INJUNCTION
undersigned counsel, hereby move this Court on an emergency basis for the entry of a
preliminary injunction pending appeal.
In the alternative, Petitioners move for emergency
reconsideration of the Order of Dismissal dated February 14, 2013 [D.E. 41] and for a
preliminary injunction as requested in the motion for preliminary injunction [D.E. 5], which is
incorporated herein.1
The filing of a proper notice of appeal confers jurisdiction on the appellate court and divests
the trial court of its control over those aspects of the case involved in the appeal. In re Walker,
515 F.3d 1204 (11th Cir.2008) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58,
103 S.Ct. 400, 74 L.Ed.2d 225 (1982)). However, under the Federal Rules of Appellate
Procedure, the notice of appeal is effective when an order is entered disposing of certain
motions, including a Motion for Reconsideration. See Fed. R.App. P. 4(a)(4)(B).
See also Martin v. Creative Management Group, Inc., 2011 WL 6935334, 1 (S.D.Fla. 2011).
This Court, therefore, has jurisdiction to reconsider its Order of Dismissal because the motion for
reconsideration is being filed before the notice of appeal, which will be filed immediately after
the filing of this motion.
{25865387;1}
INTRODUCTION
The Government is in the process of releasing the bank records that Petitioners seek to
protect in this action. Petitioners have filed a notice of appeal seeking review of this Court's
Order of Dismissal.
However, once the bank records are released by the Government,
Petitioners' appeal would be rendered moot. This is precisely the type of situation that Rule
62(c) is designed to avoid through an injunction pending appeal.
As this Court recognized in its Order of Dismissal, this petition presents an issue of first
impression in the Eleventh Circuit: "whether the 'right of confidentiality' strand [of the Fifth
Amendment] applies to financial records held by a third party." Order of Dismissal at 8. This
Court applied the reasoning of U.S. v. Miller, 425 U.S. 435 (1976) and its progeny to hold that
bank records belong to the bank and that Petitioners did not have any constitutional expectation
of privacy over such records because they were held by a third-party.
However, this Court overlooked that in this case, the disclosure of the bank records has
and is likely to continue to result in criminal physical attacks and injuries, including murder
and kidnappings, against Mr. Wellisch and his relatives. The disclosure of the bank information
that the Government has released has been linked to the kidnapping of two of Petitioner
Wellisch's relatives, and the murder of one of them, and has put the Petitioners and Petitioners'
family in danger. These allegations are pled in the Petition, and must be assumed to be true at
this juncture.
See Petition, 18; see also Petitioners' Verified Emergency Motion for
Preliminary Injunction, 14.
At the same time, this Court has jurisdiction to grant an injunction pending appeal given that the
notice of appeal will be filed immediately after the filing of this motion. Castillo v. Tucker, 2012
WL 2049360, *1 (S.D.Fla. 2012).
{25865387;1}
As such, unlike in Miller - which is a Fourth Amendment case, the disclosure of bank
records implicates a fundamental rights protected by the Fifth Amendment, the rights to life and
liberty. While it is true that no all violations of privacy rise to the level of constitutional
violations, particularly when the private documents are in the hands of a third-party, a violation
of privacy rights that implicates the fundamental constitutional guarantees and protections takes
on a constitutional dimension.
That was the holding of the Court in Kallstrom v. City of Columbus, 136 F.3d 1055 (6th
Cir. 1998), where the Sixth Circuit concluded that the Government's release of the petitioners'
private information, including information known and held by third-parties such as addresses and
phone numbers, that put the lives of the petitioners and their relatives at risk implicated the Fifth
Amendment's protections of their right to privacy.2
Based on the reasoning of Kallstrom, Petitioners respectfully submit that they have a
substantial likelihood of success on the merits of their appeal. Admittedly, the question at bar is
an issue of first impression in the Eleventh Circuit. But unless this Court enters an injunction
pending appeal, the Eleventh Circuit will not have an opportunity to provide guidance on this
issue.
Petitioners have made several unsuccessful attempts to attenuate this emergency and have
requested the Government not to release the bank records pending the appeal. However, on
February 20, 2013, the Government advised Petitioners that it will continue with its process and
The Court did not have the benefit of briefing on this issue because the Government did not
attack the viability of the underlying constitutional violation alleged by Petitioners in its motion
to dismiss, which exclusively focused on this Court's purported lack of subject matter
jurisdiction. The Government made this argument for the first time in its Reply. Petitioners
requested a hearing on the motion to dismiss, but the request was denied. Therefore, Petitioners
have not had a prior opportunity to explain to the Court how the release of the bank records here
implicate constitutional protections.
{25865387;1}
respond to the subject MLAT. The Government also stated that it cannot offer any "further
assurances." Therefore, an emergency preliminary injunction pending appeal, is Petitioners' only
viable remedy.
In the alternative, Petitioners seek reconsideration of the Order of Dismissal and the entry
of a preliminary injunction enjoining the Government from releasing the subject documents
pending the adjudication of this dispute.
FACTUAL BACKGROUND
A.
The MLAT Requests.

1.
As the Court accurately summarized in its Order of Dismissal, this dispute centers
on a request seeking the production of the bank records of the Petitioners submitted by an
Argentine Judge under the Mutual Legal Assistance Treaty between the United States and the
Republic of Argentina. See Order of Dismissal at 2-3.
2.
The Government, acting through the Office of International Affairs ("OIA") of the
Department of Justice, initially denied the request for documents under the MLAT on the
grounds that it was legally insufficient and deficient. Specifically, the Government concluded
that the request was not specific as to the crime presumptively being investigated and did not
state how the production of the requested documents would advance the criminal investigation
taking place in Argentina. This communication from the Government was supposed to be
confidential, but it was leaked to the press in Argentina. See Petition 7-14.
3.
Thereafter, on or about September 14, 2010, the Ministry of Foreign Affairs of
Argentina issued a second MLAT request renewing its request for the same confidential bank
records of Petitioners. Id. Surprisingly, this second request was even more general and deficient
than the first. However, the Respondent, through the OIA, deemed it appropriate to grant the
{25865387;1}
request and proceeded to issue subpoenas to Petitioners' banks compelling the production of the
requested bank records. The Government's decision regarding the second MLAT request was
supposed to be confidential, but once again it was leaked to the press in Argentina. Id.
4.
Thereafter, an Assistant United States Attorney was appointed as commissioner
by a United States District Court and, acting on behalf of the Respondent, issued a subpoena
directed to Regions Bank demanding the production of Petitioners' confidential bank records.
The appointment of a commissioner should have been confidential, but this information was also
leaked to the press in Argentina. Id.
5.
After the subpoenas were issued, an official with the OIA sent an email to its
counterpart at the Argentina Ministry of Foreign Affairs stating that the Assistant United States
Attorney assigned to the request reported that the requested bank records were too voluminous
and asked whether the breadth of the MLAT request could be limited to a specific time frame or
specific transactions. All this information was leaked to the press in Argentina. Id.
6.
responses
Petitioners were not made directly aware at any time of the MLAT request and the
by
the
OIA,
or
of
the
issuance
of
subpoenas
to
its
bank,
Regions. Petitioners only learned of these facts when news reports appeared regarding the same
in Argentina.
B.
Disclosure of financial information is likely to continue to result in bodily harm to

Wellisch and his relatives.
7.
The Government of Argentina has made public all the confidential information
that it has been able to compile regarding Petitioners and will most likely make public any bank
record obtained pursuant to the MLAT request, which would violate Petitioners' constitutional
rights. See Petition 15-20. The release of some of Petitioners' bank information has been
linked to criminal attacks against the Petitioners' family. Two of Mr. Wellisch's relatives were
{25865387;1}
kidnapped, and one of them was actually murdered. See Petition 18; see also Petitioners'
Verified Emergency Motion for Preliminary Injunction, 14.
8.
To date, all of the information obtained by the Argentine Judge in charge of the
criminal investigation, including all exchanges of communications between government entities

in the United States and Argentina, are part of the public record of this investigation and can be
accessed by any third party by simply requesting and viewing the record of the proceedings.
9.
Newspaper reporters have obtained this information and have written several
news articles regarding this investigation. In fact, confidential and private information regarding
the bank accounts of Petitioners in the United States, including account numbers and routing
codes, have appeared in the published press. For example, on August 20, 2010, the newspaper
"El Reporte" published an article giving specific information about the request for financial
documents regarding Palmat and explicitly stated that it was able to access the confidential
Argentina regarding this request. A copy of the "El Reporte" article and other newspaper articles
disclosing Petitioners' confidential information was attached to the Petition as Composite Exhibit
No. "1." These articles included a copy of the confidential letter from the Department of Justice
asking for more specific information about the Request and confidential financial information of
Petitioners. Id.
10.
The Petition makes clear that this disclosure makes Petitioners and individuals
associated with them targets of criminal activities, including the possibility of kidnapping,
blackmail and extortion. In fact, this is not a hypothetical claim as it has come to pass that:
close family relatives of Mr. Wellisch have been subjected to criminal activities,
including kidnapping and even murder. It is believed that these criminal activities
have resulted or be connected to the direct disclosure of the financial information
of Petitioners as the criminal activities took place shortly after its publication.
{25865387;1}
See Petition 18.

C.
Facts Underlying the Investigation in Argentina

11.
The investigation being conducted in Argentina stems from the sale to Venezuela
of agricultural equipment manufactured in Argentina. See Petition 21-27. The investigation

focuses on alleged bribes paid to government officials in Argentina. The investigation originated
from a statement by a purportedly anonymous declarant who claimed that bribes were paid to
Argentine government officials in connection with the sales. The declarant has never appeared
in the investigative proceedings and the address that appears in the public filings is a false
address. Id.
12.
Notwithstanding, a formal criminal investigation into the allegations of bribery
was requested by a political coalition named Coalicin Cvica. The request was granted, and in
2008 a judge in Buenos Aires, Argentina commenced an investigation of the allegations. Id.
13.
Palmat has asserted its innocence and has vigorously challenged the investigation
for failure to meet the most basic probable cause standards and for failure to establish that any
law whatsoever was violated. Id.
14.
Despite the sworn testimony of numerous witnesses, the production of thousands
of documents, and an investigation of almost four years, the Argentine Judge in charge of the
investigation has not found any evidence of wrongdoing and no charges have been brought to
date. Id.
PROCEDURAL HISTORY
15.
Petitioners filed this action on January 20, 2012 together with a petition for a
temporary restraining order. After the denial of the motion for a temporary restraining order,
Petitioners filed an emergency motion for a preliminary injunction.
{25865387;1}
However, after the
Government assured Petitioners that it would not produce the subject bank records until the
adjudication of its motion to dismiss, Petitioners agreed to withdraw the request for an
emergency adjudication of their motion for preliminary injunction.
16.
On February 14, 2013, the Court granted the Government's motion to dismiss. In
its order of dismissal, the Court recognized that, contrary to the Government's position, it has
"federal question jurisdiction pursuant to 28 U.S.C. 1331 over a claim that a treaty obligation
does not comport with a constitutional guarantee." Order of Dismissal at 7. The Court further
concluded that it is well established in the Eleventh Circuit that "the privacy of personal financial
information falls directly within the scope of this "right to confidentiality" of the Fifth
Amendment.
Id. at 8.
However, the Court ultimately concluded that no constitutionally
protected privacy interest exists for financial records held by a bank. Id. at 9. In the alternative,
the Court held that any such interest was outweighed by the Government's obligation to comply
with its obligations under the MLAT. Id. at 11.
17.
The Court denied all pending motions, including the motion for a preliminary
injunction.
18.
As soon as the Court issued its order of dismissal, Petitioners asked the
Government to agree to maintain the status quo pending Petitioners' appeal. However, on
February 20, 2013, the Government informed Petitioners' counsel that it was not willing to
provide the requested assurances and would go forward in the normal course of business.
19.
{25865387;1}
A notice of appeal will be filed immediately after the filing of this motion.
APPLICABLE STANDARD
An injunction pending appeal is warranted under Rule 62 (c) of the Federal Rules of Civil
Procedure, where the appellant establishes that: 1) appellant is likely to prevail on the appeal; 2)
appellant will be irreparably harmed in the absence of an injunction pending appeal; 3) an
injunction pending appeal will not substantially injure the other parties interested in the
proceeding; and 4) the public interest is in favor of an injunction. See Jaffe v. Bank of Am., N.A.,
667 F. Supp. 2d 1299, 1323 (S.D. Fla. 2009). See also, Hilton v. Braunskill, 481 U.S. 770, 107
S.Ct. 2113, 95 L.Ed.2d 724 (1987). These requirements are almost identical to the standard
required to obtain a preliminary injunction. See Warren Publishing, Inc. v. Microdos Data
Corp., 115 F.3d 1509, 151617 (11th Cir. 1997); see also Tefel v. Reno, 972 F.Supp. 623, 633 634 (S.D.Fla. 1997).
Generally, the likelihood of success on the merits is the most important factor in the
analysis of a motion for a preliminary injunction pending appeal. However, where the balance of
the equities weighs heavily in favor of an injunction, a showing of a "substantial case on the
merits" is sufficient to warrant injunctive relief. See Gonzalez v. Reno, 2000 WL 381901, *1
(11th Cir. 2000); Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981); Hilton v. Braunskill, 481 U.S.
770, 778 (1987); United States v. Hamilton, 963 F.2d 322, 323 (11th Cir. 1992); Garcia-Mir v.
Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). This modified injunction standard is known as the
"sliding scale" because an increase in the evidence of irreparable harm decreases the burden to
establish greater likelihood of success on the merits. As shown below, the irreparable harm here
is great here in that production of the documents to the Argentine Judge would in essence moot
the appeal, and the appeal presents a novel serious issue. As such, an injunction pending appeal
is warranted.
{25865387;1}
ARGUMENT
I.
Petitioners are likely to succeed on the merits of their appeal.

Petitioners filed this action to prevent the abject violation of their constitutional right and
to prevent the disclosure of their confidential financial information, which has been linked to
past acts of physical aggression and has the potential to lead to future attacks against Mr.
Wellisch and his relatives.
As the Court recognized, the Government cannot grant a request for documents under a
MLAT with a foreign country if compliance with such request would lead to the violation of the
constitutional rights of a resident of the United States. In re the Search of the Premises Located
at 840 140th Avenue NE, Belevue, Wash., 634 F.3d at 572; In re Request from the United
Kingdom, 2011 WL 6287967 at * 6. Therefore, this appeal presents a single issue: whether
Petitioners have sufficiently alleged a constitutional right which mandates the confidentiality of
their financial and bank records under the Fifth Amendment.
The Court answered this question in the negative by reasoning that the bank records at
issue were in the possession of a third-party Regions Bank, and therefore, under U.S. v. Miller,
425 U.S. 435 (1976), Petitioners did not have a constitutionally protected expectation of privacy
on these documents. See Order of Dismissal at 7. While this holding could be correct with
respect to bank records in a vacuum, this reasoning cannot be sustained in a case like this one
where the disclosure of such bank records has been linked to actual and potential criminal acts
against the Petitioners and the Petitioners' relatives.
A.
Petitioners have alleged that the violation of their right of privacy implicates
fundamental constitutional guarantees.
The Supreme Court has recognized that the constitutional right to privacy grounded in the
Fifth and Fourteenth Amendments of the Constitution respects not only individual autonomy, but
{25865387;1}
10
also the individual's interest in avoiding divulgence of highly personal information. See Whalen
v. Roe, 429 U.S. 589, 599-600 (1977) (the right to privacy protects not only independence in
making certain kinds of important decisions but also the individual interest in avoiding
disclosure of personal matters.); Nixon v. Administration of Gen. Servs., 433 U.S. 425 (1977)
("one element of privacy has been characterized as 'the individual interest in avoiding disclosure
of personal matters."); Hester v. City of Milledgeville, 777 F.2d 1492, 1497 (11th Cir. 1985)
(citing Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir.1978) for the principle that the
individual interest in avoiding disclosure of personal matters is protected by the
confidentiality strand of the constitutional right to privacy.); Statharos v. New York City Taxi
and Limousine Com'n , 198 F.3d 317, 323 (2d Cir. 1999) (following "Whalen, this Court has
recognized the existence of a constitutionally protected interest in the confidentiality of personal
financial information."); cf. California Bankers Ass'n v. Shultz, 416 U.S. 21, 7879, 94 S.Ct.
1494, 39 L.Ed.2d 812 (1974) (Powell, J., concurring) (Financial transactions can reveal much
about a person's activities, associations, and beliefs. At some point, governmental intrusion upon
these areas would implicate legitimate expectations of privacy.).
Not all rights of privacy or interests are of constitutional dimension.
To have a
constitutional violation, the right of privacy at issue must implicate an interest that is
"fundamental" or "implicit in the concept of ordered liberty." Kallstrom, 136 F.3d at 1063; see
also Order of Dismissal at 7.
In this case, the privacy of Petitioners' bank records implicates a fundamental right to
bodily security and personal integrity. After all, the Petition factually alleges that the disclosure
of this bank information has been linked to the kidnapping and murder of Petitioners' relatives
{25865387;1}
11
and has the propensity to result in more criminal acts against the persons of Petitioners and the
Petitioners' relatives.
This propensity for future criminal acts against the petitioners is precisely what brings
Petitioners' claims to the constitutional level. As the Sixth Circuit explained in Kallstrom where
the disclosure of private documents by a government implicates the potential to result in bodily
harm to the petitioner, the constitutional guarantees of the Fourteenth and in this case the Fifth
Amendment- are triggered. 136 F.3d at 1062. The reasoning of the appellate court in Kallstrom
illustrates the analysis needed to undertake when a violation of the right of privacy is cognizable
under the Fifth Amendment or the Fourteenth Amendment in the case of a non-federal
government entity. In Kallstrom, three police officers alleged that the city's disclosure of their
personal files to the attorney for violent gang members that they had investigated was a violation
of their constitutional right of privacy. The records that the officers sought to protect were
maintained by a third-party, the city. However, the court held that "the officer's privacy interests
do indeed implicate a fundamental liberty interest, specifically their interest in preserving their
lives and the lives of their family members, as well as preserving their personal security." 136
F.3d at 1062. The court reasoned that in light of the propensity for violence by the gang
members to whom the information was being released, the disclosure of the documents put the
officers at risk:
We see no reason to doubt that where disclosure of this personal information may
fall into the hands of persons likely to seek revenge upon the officers for their
involvement in the case, the City created a very real threat to the officers' and
their family members' personal security and bodily integrity, and possibly their
lives Accordingly, we hold that the City's disclosure of this private information
about the officers to defense counsel rises to constitutional dimensions.
136 F.3d at 1063.
{25865387;1}
12
Kallstrom is not alone on this issue. Several district courts have recognized that the
government cannot disclose private information if such disclosure is likely to result in bodily
injury or the violation of constitutional guarantees.
See Wilson v. Libby, 535 F.3d 697,
722, (D.C. Cir. 2008) ("The district court acknowledged that Ms. Wilson alleges a violation of a
constitutional right to privacy under the Due Process Clause where public disclosure of
information constituted a state-created danger."); Hanigan v. City of Kent , 2006 WL 3544603, 6
(W.D.Wash. 2006) ("The court assumes that a policy that required police to disclose the address
of a domestic violence victim to her abuser over her objection would, at a minimum, raise
serious privacy concerns. It is difficult to conceive of a government interest that would justify
such a disclosure "); Doe v. Biang, 494 F.Supp.2d 880, 892 -893 (N.D.Ill. 2006)
(acknowledging potential claim for production of documents that results in bodily harm).
The propensity for physical injuries in this case is even more concrete than in Kallstrom
and its progeny. Mr. Wellisch's relatives have been kidnapped and murdered as a result of the
disclosure of some of the bank records that had been released by the Government. If the
Government is allowed to produce the bank records requested by the MLAT requests, Petitioner
Wellisch and his family, and close associates will be at physical risk.
The Court, relying on Miller, concluded that there is no expectation of privacy on bank
records because such records belong to the bank. However, the limitations that the Supreme
Court imposed on the Fourth Amendment in Miller do not apply to a violation of the right of
privacy that implicates the fundamental guarantees of the Fifth Amendment.
Miller stands for the proposition that not all violations of privacy rise to the level of a
constitutional violation and that private documents held by a third-party are not constitutionally
{25865387;1}
13
protected.3
But Miller does not apply when the disclosure of these private documents
undermines the constitutional guarantees of the Fifth Amendment and can involve physical harm
to an individual.
Admittedly, this is an issue of first impression in the Eleventh Circuit,4 which further
confirms the need to have an injunction to preserve Petitioners' appellate rights.
B.
The Government's interest in complying with the MLAT does not outweigh
The Court concluded in the alternative that the Government's interest in complying with
its obligations under the MLAT outweighed the Petitioners' privacy interest. However, where
government action infringes upon a fundamental right, such action will be upheld only where the
governmental action furthers a compelling state interest, and is narrowly drawn to further that
3
The limited ruling of Miller should not be extended to the unchartered waters of the Fifth
Amendment. As Justice Sonia Sotomayor recently explained, the principle that financial records
lose their constitutional protections if shared with a third-party that is bound to keep such records
confidential is not consistent with the economic realities of the modern world:
More fundamentally, it may be necessary to reconsider the premise that an
individual has no reasonable expectation of privacy in information voluntarily
disclosed to third parties. E.g., Smith, 442 U.S., at 742, 99 S.Ct. 2577; United
States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). This
approach is ill suited to the digital age, in which people reveal a great deal of
information about themselves to third parties in the course of carrying out
mundane tasks. People disclose the phone numbers that they dial or text to their
cellular providers; the URLs that they visit and the e-mail addresses with which
they correspond to their Internet service providers; and the books, groceries, and
medications they purchase to online retailers.
U.S. v. Jones, 132 S.Ct. 945, 956 -957 (U.S. 2012) (Sotomayor, J., concurring).
4
In U.S. v. Ghidoni, 732 F.2d 814, 817 (11th Cir. 1984), the Eleventh Circuit, relying on
Miller, suggested that bank records did not enjoy any protection under the Fifth Amendment.
See also Order of Dismissal at 9. However, this statement was dictum as the petitioner did not
allege a violation of the Fifth Amendment and in Ghidoni there was no evidence that the
disclosure of bank records implicated any of the fundamental rights guaranteed by the Fifth
Amendment.
{25865387;1}
14
interest.
See U.S. v. Carpenter, 845-846, 2011 WL 1519106, 1 (11th Cir. 2011) ("Any
infringement on a fundamental right must be narrowly tailored to serve a compelling government

interest."); see also Kallstrom, 136 F.3d at 1065 (same).
Here, there is absolutely no indication that the Government has made any effort to narrow
the scope of the MLAT request to reduce the potential physical injury and risk to Petitioners.
The Government has not even seen fit to attempt to discuss with Petitioners how the information
could be carved out to protect the Petitioners from physical harm, while providing to the Judge in
Argentina the information he needs for his investigation. On the contrary, the Government has
maintained that it has the absolute power to produce whatever information it deems appropriate.
The Government's ability to turn a blind eye and a deaf ear on the very real potential for physical
harm is a direct violation of the individual rights protected by the Constitution.5
II.
The appeal will be rendered moot in the absence of an injunction pending appeal.
This District has recognized that there is irreparable harm warranting an injunction or
stay pending appeal when the appeal will be rendered moot in the absence of an injunction. Isaly
Co. v. Kraft, Inc., 622 F.Supp. 62, 63 (D.C.Fla. 1985); see also Cooper v. U.S Postal Service,
246 F.RD. 415 (D.Conn. 2007) (injunction entered where appellate court would not be able to
fashion any remedy to address wrongs in the absence of an injunction pending appeal even
though district court was not convinced appellant was likely to succeed on the merits).
The reasoning of the above cases is clear. An injunction pending appeal is warranted
when it is necessary to preserve the right to a meaningful appellate review. That is the case
here.
Further, it is not clear whether this balancing analysis would be proper in the context of a
motion to dismiss.
{25865387;1}
15
As this Court has recognized, federal jurisdiction over the Government's performance of
its obligations under the MLAT treaties is limited to determining whether there is a violation of
the Constitutional's guarantees and protections. Order of Dismissal at 6-7. The exclusive
remedy requested by Petitioners was an injunction to prevent the disclosure of their bank
records.
See Petition at 9-13.
If these records are released to the Argentine Judge, then
Petitioners' appeal would become an academic exercise and in fact the appeal would be rendered
moot, as the court of appeal would not be in a position of providing any remedy to the
Petitioners.
Further weighing in favor of an injunction is the well-established principle that an alleged
infringement of the constitutional right to privacy constitutes irreparable harm as a matter of law.
See Siegel v. LePore, 234 F.3d 1163, 1178 (11th Cir. 2000) (recognizing that Eleventh Circuit
precedent establishes that a violation of the right to privacy is presumed to cause irreparable
injury."); Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981)
("Similarly the right of privacy must be carefully guarded for once an infringement has occurred
it cannot be undone by monetary relief.")
Unlike monetary injuries, violations of the
constitutional right to privacy cannot be adequately remedied through damages and therefore,
have generally been held to constitute irreparable harm. Id.
Here there is undisputed evidence that the Respondent's compliance with the MLAT will
violate Petitioners' right to privacy because the Government of Argentina has made public all the
information received or exchanged with the Government. There is no reason to believe that the
investigating Judge in Argentina will not make public any other information it obtains from the
Government.
In this factual context, the Respondent's disclosure of Petitioners' financial
information to the Government of Argentina would violate Respondents' constitutional right to
{25865387;1}
16
maintain the privacy of its financial information, as such disclosure will continue to put
Petitioners and Petitioners' relatives in danger.
As such, the irreparable harm analysis weighs in favor of an appeal.
III.
An injunction pending appeal will not substantially prejudice the Government.

As shown above, Petitioners will be irreparably harmed and their appeal would be
rendered moot in the absence of an injunction. There is no adequate remedy that could even
come close to addressing the harm that would result from the public dissemination of Petitioners'
financial information.
This harm pales in comparison to the harmless nature of the requested injunction. All
Petitioners are asking is that Respondent be ordered not to produce the requested bank records
pending a review on appeal. In other words, Petitioners are simply seeking to maintain the status
quo so that the Eleventh Circuit has an opportunity to review their claims on what this Court
recognizes is an issue of first impression. There would be no injury whatsoever or risk of
damage to the Government should an injunction be granted and the delay resulting from the
opportunity to review the issue on appeal. The interminable investigation ongoing in Argentina
commenced more than 4 years ago. Therefore, a delay to adjudicate Petitioners' constitutional
claims will not result in any injury to anyone, much less, to the Government.
IV.
The public interest will be served by granting the requested injunction pending
appeal.
Petitioners seek an injunction pending appeal to maintain the status quo pending
resolution of their claims. There is a significant public interest in preserving the status quo ante
litem until the merits of a serious controversy can be fully considered by a trial court.
Blackwelder Furniture Co. of Statesville v. Selig Manufacturing Co., 550 F.2d 189, 197 (4th Cir.
1977). Obtaining an injunction pending appeal is the only opportunity Petitioners have to avoid
{25865387;1}
17
being stripped of their constitutional privacy rights and to avoid irreparable harm to their person
and their associates, whose lives may be placed in danger by the improper release of the
Petitioners' banking information. The public interest clearly favors granting the requested relief
in this context.
WHEREFORE, Petitioners respectfully request that the Court enter an injunction
pending appeal enjoining the Government from producing any confidential financial information
regarding Petitioners' bank accounts in the United States to the Argentine Judge.
In the
alternative, Petitioners request that the Court reconsider its Order of Dismissal and its Order
Denying Petitioners' motion for a preliminary injunction.
In addition, Petitioners request a hearing on this motion, which raises serious and
complex issues that have not been addressed by the Eleventh Circuit.
AKERMAN SENTERFITT
Telephone: (305) 374-5600
Facsimile: (305) 374-5095

{25865387;1}
18
I hereby certify that on February 22, 2013, I electronically filed the foregoing document
{25865387;1}
19

MIAMI DIVISION
Petitioners,
Vs.
Respondent.
__________________________________/
PETITIONERS' MOTION FOR HEARING ON EMERGENCY MOTION FOR

INJUNCTION PENDING APPEAL OR IN THE ALTERNATIVE
FOR RECONSIDERATION AND PRELIMINARY INJUNCTION
Petitioners, Palmat International, Inc. ("Palmat") and Roberto Wellisch ("Wellisch")
(collectively "Petitioners"), by and through their undersigned counsel, hereby request a hearing
on their emergency motion for injunction pending appeal or in the alternative for reconsideration
and preliminary injunction.
On February 14th, 2013, this Court issued an Order granting the Government's Motion to
Dismiss.
Effectively, the Order, allows the Government to release the bank records that
Petitioners seek to protect in the action. Petitioners have tried to persuade the Government not to
release the subject bank records pending the appeal of this Court's order of dismissal. However,
on February 20, 2013, the Government informed Petitioners that it will continue to process the
request for production of Petitioners' bank records and could not give Petitioners any further
assurances.
{25865051;1}
Petitioners' emergency motion for injunction pending appeal or in the alternative for
reconsideration and preliminary injunction raises issues of first impression in the Eleventh
Circuit and a hearing will assist the Court in understanding these issues.
WHEREFORE, Petitioners respectfully request that the Court set an expedited hearing
on Petitioners' Emergency Motion for Injunction Pending Appeal or in the Alternative for
Reconsideration and Preliminary Injunction
AKERMAN SENTERFITT
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
By: /s/Francisco A. Rodriguez

{25865051;1}
/s/Francisco A. Rodriguez
{25865051;1}
{25865051;1}

MIAMI DIVISION
Petitioners,
vs.
Respondent.
__________________________________/
NOTICE OF APPEAL
Notice is hereby given that Palmat International, Inc. ("Palmat") and Roberto Wellisch
("Wellisch"), (collectively "Petitioners"), Petitioners in the above named case, hereby appeal to
the United States Court of Appeals for the Eleventh Circuit from the Order Granting
Respondent's Motion to Dismiss dated February 14, 2013
AKERMAN SENTERFITT
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
{25865776;1}
{25865776;1}
SERVICE LIST
99 N.E. 4th Street
Telephone: (305) 961-9341
Facsimile: (305) 530-7139
{25865776;1}

MIAMI DIVISION
Petitioners,
vs.
Respondent.
__________________________________/
SUPPLEMENTAL NOTICE IN SUPPORT OF PETITIONERS' EMERGENCY
MOTION FOR INJUNCTION PENDING APPEAL OR IN THE ALTERNATIVE FOR
RECONSIDERATION AND PRELIMINARY INJUNCTION
undersigned counsel, hereby advise the Court that they have just been informed by the
Government's counsel that the Government "has turned over" the subject bank records to
Argentina. Petitioners believe that this is an affront to the Court's jurisdiction and request the
immediate entry of
an injunction pending appeal or preliminary injunction ordering the
Government to take all actions necessary and available to stop the release or to recall the subject
bank records. Petitioners believe that the subject bank records may still be subject to recall or
retrieval. As explained in the Petitioners' documents, the release of the bank records will moot
Petitioners' appeal and request for reconsideration.
Petitioners reserve the right to seek sanctions against the Government in light of its
actions.
{25863767;1}
AKERMAN SENTERFITT
Telephone: (305) 374-5600
Facsimile: (305) 374-5095

{25863767;1}
{25863767;1}

Petitioners,
vs.
Respondent.
_________________________________/
RESPONDENTS RESPONSE TO PETITIONERS EMERGENCY MOTION FOR
INJUNCTION PENDING APPEAL OR IN THE ALTERNATIVE FOR
RECONSIDERATION AND PRELIMINARY INJUNCTION
Respondent, Eric H. Holder, Jr., Attorney General of the United States of America, by and
through the undersigned Assistant United States Attorney, requests that this Court deny
Petitioners Emergency Motion for Injunction Pending Appeal (Emergency Motion) or In the
Alternative For Reconsideration and Preliminary Injunction [D.E. 42; D.E. 45]. Petitioners have
not established a likelihood of success on the merits or even the existence of a serious legal
question. Moreover, as the attached declaration of Magdalena Boynton (Boynton Decl.)
explains, at present the Department of Justices Office of International Affairs does not possess
any legally sufficient requests regarding the petitioners that are actionable nor does it intend to
seek any financial information pertaining to petitioners at this time.1 Finally, Petitioners fail to
The United States is obliged under the terms of the MLAT with Argentina to take its best efforts to maintain the
confidentiality of requests for assistance, and accordingly is not providing additional details in its public filings with
the court about any past, pending, or potential future MLAT requests. Should the Court direct the United States to
provide this information, the United States could provide additional details in an ex parte, in camera filing, which
would protect the information consistent with the MLAT.
establish any of the grounds required to justify this Courts reconsideration of the Order Granting
Respondents Motion to Dismiss (Dismissal Order) [D.E. 41].
I.
THE REQUESTED INJUNCTION PENDING APPEAL SHOULD BE DENIED

BECAUSE PETITIONERS HAVE DEMONSTRATED NO COGNIZABLE
INJURY RESULTING FROM COMPLIANCE WITH TREATY OBLIGATIONS.
During the course of proceedings in this Court, Respondent informed Petitioners that OIA
did not plan to provide records in response to Argentinas MLAT request prior to this Courts
action on the Respondents Motion to Dismiss [D.E. 27]. After this Court granted the motion,
Petitioners counsel contacted the Respondent to determine whether it was willing to delay
compliance with treaty obligations pending the filing of a motion for a stay. We informed
counsel that the Respondent was not willing to do so, and OIA provided to Argentina records
responsive to its request.
Even if Petitioners can demonstrate the other prerequisites for an injunction pending
appeal which they have not their suggestion that the bank records may still be subject to recall
or retrieval is unfounded. See Supplemental Notice In Support of Emergency Motion [D.E. 47].
The United States relinquished control of the bank records when they were provided to Argentina
pursuant to the MLAT request. See Boynton Decl., dated February 28, 2013, attached hereto as
Exhibit A.
II.
PETITONERS EMERGENCY MOTION FOR AN INJUNCTION PENDING

APPEAL SHOULD BE DENIED AS PETITIONERS CANNOT ESTABLISH A
LIKELIHOOD OF SUCCESS ON THE MERITS ON APPEAL
For this Court to grant the extraordinary remedy of an injunction pending appeal,
the petitioners must show: (1) a substantial likelihood that they will prevail on the
merits of the appeal; (2) a substantial risk of irreparable injury to the intervenors
unless the injunction is granted; (3) no substantial harm to other interested persons;
and (4) no harm to the public interest. See In re Federal Grand Jury Proceedings,
975 F.2d 1488, 1492 (11th Cir.1992); MacBride v. Askew, 541 F.2d 465 (5th
Cir.1976).
2
Touchston v. McDermott, 234 F.3d 1130, 1132 (11th Cir. 2000) (en banc). Failure to show any
of the four factors is fatal, and the most common failure is not showing a substantial likelihood of
success on the merits. Am. Civil Liberties Union of Florida, Inc. v. Miami-Dade County Sch.
Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) (emphasis added).
Petitioners do not meet this
stringent standard, because they cannot establish any likelihood of success on the merits. The
other three factors also militate against the relief they seek.
A.
Petitioners Cannot Establish A Likelihood of Success on the Merits on Appeal
1.
Petitioners Have Demonstrated No Constitutionally Protected Privacy Interest.
Petitioners do not possess any constitutional right to prevent the United States from
complying with its valid treaty obligations by disclosing to Argentina certain financial information
about petitioners obtained from third-party banks. Indeed, Petitioners themselves contemplate
that there generally is no constitutionally protected liberty interest in preventing the government
from subpoenaing and disclosing bank records to foreign countries for legitimate law enforcement
purposes. See Emergency Motion, at p. 3 (admitting that not all violations of privacy rise to the
level of constitutional violations, particularly when the private documents are in the hands of a
third-party) (emphasis added); id. at p. 10 (agreeing that the Courts holding that petitioners did
not have a constitutionally protected expectation of privacy in their financial records held by a
third party could be correct with respect to bank records in a vacuum). Petitioners argue only
that an exception to that principle should be created in a case like this one because the
disclosure of such bank records here may lead to potential criminal acts against the Petitioners
and the Petitioners relatives. Id. at p. 10. But the legal question whether a constitutionally
protected liberty interest exists cannot turn on predictions about the specific consequences of
disclosure in a particular case. As this Court correctly ruled in its Dismissal Order, Petitioners
3
have no constitutionally protected privacy interest in bank account records held by Regions Bank.
Dismissal Order, at p. 9.
The possibility of future unlawful acts by third parties in foreign countries does not create a
constitutionally protected privacy interest in bank records provided by the United States to a
foreign government pursuant to its treaty obligations. Petitioners have also not identified any
basis for suggesting that the United States has a constitutional duty to take affirmative action in
order to protect Petitioner Wellisch or his relatives in Argentina and elsewhere against the
possibility of future criminal conduct by third parties. In fact, there is no such constitutional duty,
and Petitioner Wellisch cannot recast his claim as a privacy claim. Cf. DeShaney v. Winnebago
County Dept of Soc. Servs., 489 U.S. 189, 196 (1989) (recognizing that the Due Process Clause
generally confer[s] no affirmative right to governmental aid, even where such aid may be
necessary to secure life, liberty, or property interests of which the government itself may not
deprive the individual).
As this Court recognized, the injury claimed by Petitioners centers almost entirely on
speculation about the possibility of future criminal activities by third parties. According to
Petitioners, since the authorities in Argentina have failed and refused to abide by the
confidentiality obligations imposed by the MLAT, and because others allegedly will commit
crimes against Petitioner Wellisch or his relatives if the bank information is disclosed, Respondent
must protect Petitioners constitutional rights by refrain[ing] from producing any confidential
information of Petitioners. Pet. at 18-19. That speculation is insufficient to give rise to any
constitutionally protected interest.2
The highly speculative nature of petitioners theory of harm is underscored by the inconsistencies in Petitioners
factual representations to the Court about such harm. Petitioners now assert that [t]he disclosure of the bank
Petitioners reliance on Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) is
misplaced. The undercover police officers in Kallstrom were actively involved in the drug
conspiracy investigation of the Short North Posse, a violent gang in the Short North area of
Columbus, Ohio. See Kallstrom, 136 F.3d at 1059. Each of the police officers testified at the
trial against eight of 41 prosecuted gang members. See id. During the trial, defense counsel
requested and obtained personnel records of at least one of the officers, which file included the
officers addresses, phone numbers; the names, addresses and phone numbers of immediate family
members; the names and addresses of personal references; the officers banking institutions and
corresponding account information; their social security numbers; responses to questions
regarding their personal life asked during the course of polygraph examinations; and copies of
their drivers licenses, including pictures and home addresses. See id. As a result of the Short
North Posses propensity for violence and intimidation, the Sixth Circuit agreed with the district
court that the release of these personnel files created a serious risk to the personal safety of the
plaintiffs and those relatives named in the files. See id. The Sixth Circuit noted that the
undercover police officers had been assured by the city that personal information contained in their
files would be held in strict confidence and found that a citys release of private information
concerning undercover police officers to defense counsel in a case where the officers had testified
rose to the level of constitutional dimensions by threatening the personal security and bodily
integrity of the officers and their family members. See id. at 1059, 1064. The court was careful
information that the Government has released has been linked to the kidnapping of two of Petitioner Wellischs
relatives, and the murder of one of them. Emergency Motion at 2 (emphasis added). Yet in their previous filings,
petitioners acknowledged that they only believe[] that these criminal activities resulted from the direct disclosure of
the financial information of Petitioners as the criminal activities took place shortly after its publication. Pet. 18
(emphasis added); see also Plaintiffs Verified Emergency Motion for Preliminary Injunction [D.E. 5], 14 (It is
believed that these criminal activities may have resulted or may be connected to the disclosure of Petitioners
financial information) (emphasis added).
to not extend its holding to find a general right to informational privacy and stated that it did not
mean to imply that every governmental act which intrudes upon or threatens to intrude upon an
individuals body invokes the Fourteenth Amendment. Id. However where the release of
private information places an individual at substantial risk of serious bodily harm, possibly even
death, from a perceived likely threat, the magnitude of the liberty deprivation . . . strips the very
essence of personhood. Id. (emphasis added) (quoting Doe v. Claiborne County, 103 F.3d 495,
506-07 (6th Cir. 1996)).
The Kallstrom case is inapposite here where the financial records that are requested by
Argentina pursuant to a valid MLAT request are held by a third party bank. Unlike Kallstrom,
this case does not plausibly allege the violation of any constitutionally protected informational
privacy. First, Petitioners do not argue that the United States is barred from obtaining the
documents from Regions Bank i.e., that the government lacks probable cause or that obtaining
the documents would otherwise violate the Fourth Amendment.
See, e.g., Bellevue, 634 F.3d at
563-64; In re Commissioners Subpoenas, 325 F.3d 1287, 1293 (11th Cir. 2003). Further, in
obtaining the documents from Regions Bank and producing them to Argentina, Respondent
merely would be complying with its obligations under the US-Argentina MLAT, which requires
the United States to provide assistance to Argentina in the gathering of legal evidence for use in its
criminal investigations and proceedings.
See US-Argentina MLAT, Art. 1, 1, 2 (The
contracting Parties shall provide mutual assistance, in accordance with the provisions of this
Treaty in connection with the prevention, investigation, and prosecution of offenses, and in
proceedings related to criminal matters which assistance shall include providing documents,
records, and articles of evidence [and] executing requests for searches and seizures). Under the
Petitioners theory of the case, every response to any MLAT request seeking records relating to an
6
individual arguably could ground a constitutional privacy claim. If this Court were to find merit
with Petitioners theory, this Court would effectively limit the authority of the United States to
engage in MLAT relationships with foreign countries and significantly restrict the obvious federal
interest in cooperating in the criminal proceedings of friendly nations.
2.
Even Assuming the Existence of a Constitutionally Protected Informational

Privacy Interest, Such Interest Is Outweighed by the Compelling Government
Interest in Complying with a Valid Treaty Request.
Moreover, even assuming that there is an informational privacy right under the
Constitution, the Petitioners conclusory allegations of possible harm are not enough to render the
MLAT procedure as applied to Petitioners unconstitutional. The Petitioners allegations fail to
state a claim even under the balancing test adopted by the Fifth Circuit that remains the governing
law of this Circuit. In Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978), and DuPlantier v.
United States, 606 F.2d 654 (5th Cir. 1979), the Fifth Circuit considered laws that made financial
disclosure mandatory for certain elected officials and federal judges.
In considering the
challenged laws, the Fifth Circuit conceded that financial disclosure provisions are a matter of
great family concern, and could bring mischief, even kidnappers or other criminal attention to
an office holder. DuPlantier, 606 F.2d at 669. But in each case, after performing a balancing
test, the Fifth Circuit concluded that the legitimate governmental interests in such disclosures
outweighed any incidental intrusion upon plaintiffs privacy. Id. at 670; Plante, 575 F.2d at 1136
(We join the majority of courts considering the matter and conclude that mandatory financial
disclosure for elected officials is constitutional.); see also Hester v. City of Milledgeville, 777
F.2d 1492, 1497 (11th Cir. 1985) (observing that constitutional analysis requires use of a
balancing test . . . comparing the interests [the action] serves with those it hinders); NASA v.
Nelson, 131 S. Ct. 746, 757-63 (2011) (holding that any constitutional right to informational
7
privacy is outweighed by the governments interest in making reasonable inquiries in employment

background checks).
Here, Respondents interest in complying with its affirmative obligations under
US-Argentina MLAT outweighs any privacy interest that Petitioners might have in keeping
financial records held by a third party from being used in a criminal investigation in Argentina.
Moreover, in addition to its specific treaty obligation in this case, the United States has a general
and indisputably compelling interest in cooperating with foreign countries in criminal matters
through the exchange of evidence and other law enforcement information. This Court recognized
that [r]anged against [Petitioners] interest is the United States interest in cooperating with
foreign countries in criminal matters through the exchange of evidence.
Dismissal Order, at p.
10. In ratifying the US-Argentina MLAT, Congress recognized that mutual legal assistance
treaties have become increasingly important tools in the United States war on crime, in particular
for transnational crimes that require the close cooperation of law enforcement authorities
throughout the world. Id. (citing S. Exec. Rep. No. 102-33, at 1; In re Request from United
Kingdom, 685 F.3d at 18; In re Commissioners Subpoenas, 325 F.3d 1287, 1290 (11th Cir.
2003)). Indeed, the First Circuit, in rejecting a claim that cooperating with the United Kingdom
pursuant to the US-UK MLAT would violate the First Amendment, relied in part on the strength of
[t]he federal interest in cooperating in the criminal proceedings of friendly foreign nations. In
Re UK, 685 F.3d at 18 (quoting McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003)).
Petitioners allegations of constitutional injury, which, as noted above, stem primarily from the
speculation about potential future commission of unlawful acts by third parties in foreign
countries, cannot outweigh this compelling government interest.
Petitioners contend that there is absolutely no indication that the Government has made
8
any effort to narrow the scope of the MLAT request to reduce the potential physical injury and risk
to Petitioners. Emergency Motion, at p 15. However, the terms of the US-Argentina MLAT
govern when Respondent may deny a request for assistance. See US-Argentina MLAT, Art. 3.,
1; cf. In re Premises Located at 840 140th Ave. NE, Bellevue, Washington, 634 F.3d 557, 570 (9th
Cir. 2011) (Article 4 specifies three and only three grounds for denying a request . . . The use
of three specified reasons for denial in a closed list strongly suggests that those reasons are the only
permissible reasons for denying a request under the treaty.); In re Commissioners Subpoenas,
325 F.3d 1287, 1290 (11th Cir. 2003) (MLATs . . . have the desired quality of compulsion as they
contractually obligate the two countries to provide to each other evidence and other forms of
assistance needed in criminal cases while streamlining and enhancing the effectiveness of the
process for obtaining needed evidence.) Notwithstanding the express terms of the US-Argentina
MLAT, Petitioners argument is belied by their own allegation that on at least one occasion the
Respondent advised Argentina that the MLAT request was procedurally deficient, as it was not
specific as to the crime presumptively being investigated and did not state how the production of
the requested documents would advance the criminal investigation taking place in Argentina.
Pet. at 8.
B.
The Other Factors Also Weigh Against An Interim Injunction.
Apart from Petitioners failure to show a likelihood of success on appeal which is fatal to
their motion they also fail to show that the other stay factors support injunctive relief.
Petitioners asserted injury is in any event far too speculative to establish irreparable harm, as
necessary to support an injunction. They argue that Petitioner Wellisch may be subject to reprisal
by unidentified third parties if the Argentine government discloses information provided by the
United States pursuant to its treaty obligations. The Petitioners have not provided any plausible
9
allegation or explanation about any supposed causal connection between any future disclosure of
their bank information and the threat of future harm. Balanced against that speculative argument
is the United States substantial interest in complying with a request from assistance from a foreign
government under an MLAT. These factors also weigh decisively against the relief petitioners
seek.
III.
PETITIONERS REQUEST FOR RECONSIDERATION IS INSUFFICIENT

[R]econsideration of a previous order is an extraordinary remedy to be employed
sparingly. Degirmenci v. Sapphire-Fort Lauderdale, LLLP, 693 F. Supp. 2d 1325, 1352 (S.D.
Fla. 2010) (quoting Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D.
Fla. 2002)) (citation omitted). The purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered evidence. Degirmenci, 693 F. Supp.
at 1352 (quoting Burger King, 181 F. Supp. 2d at 1369) (quotation omitted). Three major
grounds justify reconsideration: (1) an intervening change in the controlling law; (2) the
availability of new evidence; and (3) the need to correct clear error or to prevent manifest
injustice. Degirmenci, 693 F. Supp. at 1352 (quoting Burger King, 181 F. Supp. 2d at 1369)
(citation omitted). For a court to reconsider its prior judgment, the moving party must present
facts or law of a strongly convincing nature that would induce a court to reverse its prior
decision. Degirmenci, 693 F. Supp. at 1352 (citing Burger King, 181 F. Supp. 2d at 1369)
(citation omitted). In this instance, Petitioners have failed to identify any grounds that would
justify this Courts reconsideration of its Dismissal Order.
III.
CONCLUSION
For the foregoing reasons, Respondent, Eric H. Holder, Jr., Attorney General of the United
States of America, requests this Court deny Petitioners Emergency Motion for Injunction Pending
10
Appeal Or In the Alternative For Reconsideration and Preliminary Injunction.
Dated: February 28, 2013
WIFREDO A. FERRER
By:
Tel: (305) 961- 9341
Fax: (305) 530-7139
I HEREBY CERTIFY that on February 28, 2013, I electronically filed the foregoing
11
SERVICE LIST

Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
Akerman Senterfitt
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
12
Case 1:12-cv-20229-PAS Document 50

46 Entered on FLSD Docket 03/01/2013
02/22/2013 Page 1 of 6
Case: 13-10867
Date Filed: 02/28/2013
Page: 1 of 3
MAR 01, 2013

MIAMI DIVISION
Petitioners,
vs.
Respondent.
__________________________________/
NOTICE OF APPEAL
Notice is hereby given that Palmat International, Inc. ("Palmat") and Roberto Wellisch
("Wellisch"), (collectively "Petitioners"), Petitioners in the above named case, hereby appeal to
the United States Court of Appeals for the Eleventh Circuit from the Order Granting
Respondent's Motion to Dismiss dated February 14, 2013
AKERMAN SENTERFITT
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
{25865776;1}
1 of 6

02/22/2013 Page 2 of 6
3
Case: 13-10867
Page: 2 of 3
{25865776;1}
2 of 6

02/22/2013 Page 3 of 6
3
Case: 13-10867
Page: 3 of 3
SERVICE LIST
99 N.E. 4th Street
Telephone: (305) 961-9341
Facsimile: (305) 530-7139
{25865776;1}
3 of 6

Case: 13-10867
Page: 1 of 3
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
John Ley
Clerk of Court
For rules and forms visit

www.ca11.uscourts.gov
March 01, 2013

Jacqueline Marie Arango
Akerman Senterfitt, LLP
1 SE 3RD AVE FL 25
MIAMI, FL 33131-1700
Akerman Senterfitt, LLP
1 SE 3RD AVE FL 25
MIAMI, FL 33131-1700
Appeal Number: 13-10867-EE
Case Style: Palmat International, Inc., et al v. U.S. Attorney General
District Court Docket No: 1:12-cv-20229-PAS
On April 1, 2013, this Court will begin MANDATORY electronic filing. All counsel are
required to file documents electronically in appeals pending on April 1, 2013, and in appeals
docketed in this Court on or after that date, unless exempted for good cause.
CIVIL APPEALS ARE GOVERNED BY STRINGENT PROCEDURES FOR
REQUESTING EXTENSIONS OF TIME TO FILE BRIEFS AND RECORD EXCERPTS.
RULES PROVIDE FOR DISMISSAL WITHOUT FURTHER NOTICE WHEN A BRIEF
OR RECORD EXCERPTS IS NOT FILED OR CORRECTED WITHIN THE TIME
PERMITTED. PLEASE SEE THE CIRCUIT RULES AT WWW.CA11.USCOURTS.GOV
The referenced case has been docketed in this court. Please use the appellate docket number
noted above when making inquiries. Motions for extensions of time to file a brief are frowned
upon by the court.
Pursuant to 11th Cir. R. 12-1, the record in this appeal was deemed completed and filed on the
date the appeal was docketed in this court.
Eleventh Circuit Rule 31-1 requires that APPELLANT'S BRIEF AND RECORD EXCERPTS
BE SERVED AND FILED ON OR BEFORE April 9, 2013.
This is the only notice you will receive concerning the due date for filing briefs and record
excerpts. (In cross-appeals pursuant to Fed.R.App.P. 28(h), the party who first files a notice of
4 of 6

Case: 13-10867
Page: 2 of 3
appeal is the appellant unless the parties otherwise agree.) See Fed.R.App.P. 28, 30, 31 and 32,
and the corresponding circuit rules, for further information on preparing briefs and record
excerpts.
Attorneys registered to use ECF must file briefs electronically using the ECF system. Use of
ECF does not modify the requirements of the circuit rules that counsel must also provide seven
(7) paper copies of a brief to the court, nor does it modify the requirements of the circuit rules for
the filing of record excerpts or expanded record excerpts in a particular case.
Attorneys not registered to use ECF must, in addition to providing seven (7) paper copies of a
brief, upload the brief electronically using the EDF system. (Pro se parties may not use the EDF
system, but must provide the required number of paper copies.) The EDF system is described in
11th Cir. R. 31-5, and instructions are available on the court's Web site. An EDF ID number is
needed to upload your brief. If you do not remember your EDF ID number, you may look it up
on the court's Web site. When uploading a brief for the first time, you will be prompted to
register and create a password known only by you for all future uploads.
Attorneys and pro se parties in districts not participating in the Electronic Records on Appeal
Program must file record excerpts in conformance with 11th Cir. R. 30-1 and 30-2. Attorneys
and pro se parties in districts that are participating in the Electronic Records on Appeal Program,
and whose cases are included in the program, must file expanded record excerpts in conformance
with the Electronic Records on Appeal Program Components and Instructions for Preparing
Expanded Record Excerpts, available on the court's Web site. Pro se parties who are incarcerated
are not required to file record excerpts.
We have not yet received the Certificate of Interested Persons and Corporate Disclosure
Statement (CIP) required by FRAP 26.1 and the accompanying circuit rules. The rules provide
that the certificate must be filed by every appellant [and cross-appellant] with this court within
14 days after the date the appeal is docketed in this court, or along with the filing in this court by
any party of any motion, petition, or pleading, whichever occurs first. The rules further provide
that on the same day a paper certificate is served, the party filing it must also complete the court's
web-based certificate at the "Electronic Filing" link of the court's website,
www.ca11.uscourts.gov, by electronically providing the information required for that form. Only
the ticker symbols for publicly traded corporations that are listed on the paper CIP must be
entered in the web-based system. If your CIP does not include any publicly traded corporations,
you are required to go to the website and simply click the button indicating that you have no
publicly traded corporations to report. Pro se parties are not required or authorized to complete
the web-based certificate.
You are hereby notified that the clerk is not authorized to submit to the court any brief (except
for the reply brief of an appellant or cross-appellant), petition, answer, motion or response that
does not contain the certificate, but may receive and retain the papers pending supplementation
of the papers with the required certificate. You are also hereby notified that failure to submit the
required certificate will result in your document(s) being returned unfiled which may ultimately
result in dismissal of your appeal.
5 of 6

Case: 13-10867
Page: 3 of 3
Attorneys who wish to participate in this appeal must be properly admitted either to the bar of
this court or for this particular proceeding pursuant to 11th Cir. R. 46-1. An attorney not yet
properly admitted must file an appropriate application for admission within fourteen (14) days
from this date. In addition, all attorneys (except court-appointed counsel) who wish to participate
in this appeal must complete and return an appearance form within fourteen (14) days.
Application for Admission to the Bar and Appearance of Counsel Form are available on the
Internet at www.ca11.uscourts.gov. The clerk may not accept motions or other filings from an
attorney until that attorney files an appearance form. See 11th Cir. R. 46-5.
11th Cir. R. 33-1(a) requires appellant to file a Civil Appeal Statement in most civil appeals. You
must file an original and one copy of a completed Civil Appeal Statement, with service on all
other parties, within 14 days from the date of this letter. Civil Appeal Statement forms are
available on the Internet at www.ca11.uscourts.gov, and as provided by 11th Cir. R. 33-1(a).
MEDIATION. If a Civil Appeal Statement is required to be filed, your appeal and all related
matters will be considered for mediation by the Kinnard Mediation Center. The mediation
services are free and the mediation process is confidential. You may confidentially request
mediation by calling the Kinnard Mediation Center at 404-335-6260 (Atlanta) or 813-301-5530
(Tampa) or 305-714-1900 (Miami). See 11th Cir. R. 33-1.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Lois Tunstall, EE
Phone #: (404) 335-6224
DKT-7CIV Civil Early Briefing
6 of 6

Case: 13-10867 Date Filed: 04/11/2013 Page: 1 of 2
UNITED STATES COURT OF APPEALS

APR 11, 2013
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
John Ley
Clerk of Court
For rules and forms visit

www.ca11.uscourts.gov
April 11, 2013

Steven M. Larimore
U.S. District Court
400 N MIAMI AVE
MIAMI, FL 33128-1810
Appeal Number: 13-10867-EE
Case Style: Palmat International, Inc., et al v. U.S. Attorney General
District Court Docket No: 1:12-cv-20229-PAS
The enclosed copy of the Clerk's Entry of Dismissal pursuant to appellant's motion to dismiss is
issued as the mandate of this court. See 11th Cir. R. 42-1(a).
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Lois Tunstall, EE
Phone #: (404) 335-6224
Enclosure(s)
1 of 2

Case: 13-10867 Date Filed: 04/11/2013 Page: 2 of 2
DIS-3 Letter and Entry of Dismissal Vol

IN THE UNITED STATES COURT OF APPEALS
______________
No. 13-10867-EE
______________
a Florida corporation,
ROBERTO WELLISCH,
individually,
Petitioners - Appellants,
versus
U.S. ATTORNEY GENERAL,
Respondent - Appellee.
__________________________________________
Appeal from the United States District Court
for the Southern District of Florida
__________________________________________
ENTRY OF DISMISSAL: Pursuant to Appellants Palmat International, Inc. and Roberto
Wellisch's motion for voluntary dismissal (joint stipulation of the parties), FRAP Rule 42 and
11th Cir. R. 42-1(a), the above referenced appeal was duly entered dismissed on this date,
effective April 11, 2013.
JOHN LEY
Clerk of Court of the United States Court
of Appeals for the Eleventh Circuit
by: Lois Tunstall, EE, Deputy Clerk
FOR THE COURT - BY DIRECTION
2 of 2

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Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 1 of 14

UNITED STATES DISTRICT COURT

ERIC H. HOLDER, JR., Attorney General

PETITION FOR WRIT OF MANDAMUS, DECLARATORY JUDGMENT, AND

NATURE OF THE ACTION

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 2 of 14

Petitioner Palmat International, Inc. ("Palmat") is a corporation organized under

Petitioner Roberto Wellisch ("Wellisch") has a residence in this District. Mr.

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 3 of 14

Venue is proper in this district pursuant to 28 U.S.C. 1391(e)(3) as Petitioner

excused, or have otherwise occurred.

On or about May 1, 2010, the Ministry of Foreign Affairs of the Republic of

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 4 of 14

Thereafter, on or about September 14, 2010, the Ministry of Foreign Affairs of

Thereafter, an Assistant United States Attorney was appointed as commissioner

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 5 of 14

Thereafter, the Ministry of Foreign Affairs of Argentina issued a supplemental

criminal investigation, including all exchanges of communications between government entities

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 6 of 14

Despite efforts by Petitioners to prevent the disclosure of any such confidential

Further, the public disclosure of MLAT requests and related inter-governmental

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 7 of 14

Facts Underlying the Investigation in Argentina

The investigation focuses on alleged bribes paid by the members of CAFMA to

government officials in Argentina.The investigation originated from a statement by a

Notwithstanding, a formal criminal investigation into the allegations of bribery

Despite the sworn testimony of numerous witnesses, the production of thousands

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 8 of 14

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 9 of 14

Petitioners re-allege paragraphs 1 through 27 and incorporate them by reference

as if fully set forth herein.

The Attorney General is obligated to protect Petitioners' constitutional rights in

In violation of the duties and obligations owed to Petitioners, the Attorney

The Attorney General's dereliction of the duties and obligations owed to

Petitioners has left Petitioners without any adequate relief at law.

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 10 of 14

General produces the requested banking information to the Government of Argentina

Petitioners re-allege paragraphs 1 through 27 and incorporate them by reference

as if fully set forth herein.

available under 28 U.S.C. 2201-2202 is deemed to constitute an adequate remedy for

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 11 of 14

A justiciable and actual controversy exists as the Attorney General continues to

The Attorney General's dereliction of the duties and obligations owed to

Petitioners has left Petitioners without any adequate relief at law.

General produce the requested banking information to the Government of Argentina.

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 12 of 14

Petitioners re-allege paragraphs 1 through 27 and incorporate them by reference

as if fully set forth herein.

The Attorney General is obligated to protect Petitioners' constitutional rights in

Case 1:12-cv-20229-PAS Document 1 Entered on FLSD Docket 01/20/2012 Page 13 of 14

In violation of the duties and obligations owed to Petitioners, the Attorney

The Attorney General's dereliction of the duties and obligations owed to

Petitioners has left Petitioners without any adequate relief at law.

General produce the requested banking information to Argentina

Case 1:12-cv-20229-PAS Document 1-2 Entered on FLSD Docket 01/20/2012 Page 1 of 6

Case 1:12-cv-20229-PAS Document 1-2 Entered on FLSD Docket 01/20/2012 Page 4 of 6

EN LA CAUSA POR LA "EMBAJADA PARALELA" Y EL PAGO DE

Case 1:12-cv-20229-PAS Document 1-2 Entered on FLSD Docket 01/20/2012 Page 5 of 6

Es por las cuentas de una empresa

EE.UU. requirio informes por Ia "embajada paralela"

El Departamento de Estado del gobierno de Barack Obama reclam6 al juez

Case 1:12-cv-20229-PAS Document 1-2 Entered on FLSD Docket 01/20/2012 Page 6 of 6

en tramite, hasta el momento son practicamente nulas las pruebas