David Boies can't ignore clients' liability releases by 'simply invoking' name 'Epstein,' sanctions bid says

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David Boies

David Boies is the chairman and a managing partner at Boies Schiller Flexner. An April 8 motion seeks sanctions against Boies and law firm co-managing partner Sigrid McCawley. (Photo by Kathy Anderson/ABA Journal)

Co-executors of the estate of convicted sex offender and multimillionaire financier Jeffrey Epstein are seeking sanctions against two Boies Schiller Flexner leaders for filing a proposed class action lawsuit against them, even though the lead plaintiff and other victims had signed “ironclad” liability releases in return for “massive monetary payouts.”

The April 8 motion seeks sanctions against Boies Schiller chairman David Boies and law firm co-managing partner Sigrid McCawley, Law360 reports.

The agreement signed by lead plaintiff Danielle Bensky “expressly releases” the co-executors from liability, the motion says. Boies negotiated the terms of the release, which contained McCawley’s signature, according to the motion.

“Simply invoking the name ‘Epstein’ in this case does not change the law and cannot excuse plaintiffs’ counsel’s effort to end-run well-established legal principles that favor final resolution of claims in return for release from liability,” the sanctions motions says.

The defendants seeking sanctions are Darren K. Indyke and Richard D. Kahn. Indyke was Epstein’s personal lawyer, and Kahn was his accountant, according to the class action suit, filed in February in federal court in New York City.

Law360 had previous coverage.

The money used to create the victims’ compensation fund came from a trust created by Epstein and revised two days before he hanged himself while in prison, according to the suit.

The suit alleges that Indyke and Kahn facilitated the sex trafficking when they obtained “large stacks of cash” that Epstein used to pay hush money and recruit underage victims into his sex-trafficking operation, according to the previous Law360 story. Bank withdrawals were structured to avoid reporting requirements, according to the suit.

The suit says the co-executors concealed the extent of the Epstein enterprise from Bensky and the class action plaintiffs after Epstein’s death and publicly denied that they were an integral part of the operation.

The motion for sanctions says Boies and McCawley offered four rationales for voiding the release in discussions before the suit was filed. The rationales are “frivolous,” the motion asserts.

Those rationales are that the co-executors procured the release by fraud, that they provided no consideration for the liability release, that they exceeded their authority by having the release cover them, and that there was no release from claims that arose after New York gave adults a one-year window to sue for past abuse under the Adult Survivors Act.

Boies and McCawley released a statement to the ABA Journal that said the defendants’ attempts to seek sanctions “are as hollow as they are typical. Threats and intimidation may have been an effective tool for silencing vulnerable young girls alone and without anyone to represent or support them. That time has [passed]. The brave survivors of Epstein’s abuse cannot now be intimidated into silence. Mr. Indyke, Mr. Kahn and their counsel should be further ashamed for trying.”

The sanctions bid “fails for many independent reasons,” the statement said.

“To begin with, defendants don’t even claim that all victims provided releases. Moreover, any release of defendants procured through their control of Epstein’s estate would be invalid under New York law, including as procured by fraud and duress. In addition, with respect to many of plaintiffs’ claims, any purported release would be invalid because the claims did not exist at the time of the purported release but only arose when New York later passed a statute authorizing the claims. (There can be no dispute that under New York law, a purported release of a future claim is void.)”

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