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Rol Slack lir „kite' 2/949 Arcrwite a." 2434 7 Antai, Liu) 3 cut, , 4,/e EFTA00183732 KIRKLAND & ELLIS LLP AND AfilL/ArtO PART/H.3We; ' Cntercup Cantor 163 East 53'd Street New York, New York 10022-4611 WNW rwerA.COM September 2, 2008 VIA FACSIMILE (56D 820-8777 United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Re:Jeffrey Bpstein Dear • Facsimile: In response to your letter dated August 26, 2008, I am confirming that Mr. Goldberger should continue to be listed as the contact pawn in the' mended victim notification letters and should receive the carbon copies of thoso letters as they are sent. • Also, we plan on speaking to Mr. Josofsberg this week to discuss a procedure for paying his fees. We intend to comply fully with the agreement and Mr. Epstein will pay Mr. Josfsberg's usual and customary hourly rates for his work pursuant to the agreement facilitating settlements under 2255. co: Chief, Northern Division ...Perger Roy Black Sncerely, &o "tz ehMego Hong Kong London Los Angeles Munloh Son Fronoleoo Wushingiona EFTA00183733 ROBERT JOSEFSBERG From: ROBERT .JOSEFSBERG Sent: 09 2:16 PM ' To: Subject: Re: Eps e n Roy - I need to go on record regarding Mr Epsteins message that without any settlements there will be a "push back" on any future payments. First, Mr Epstein has no authority to "push back" on payments. Secondly, although I am vey interested in settling some cases, I will not let Mr Epstein coerce me into settling for some clients so that I can get paid for representing others. It would be unethical for me to settle any cases in order to avoid Mr Epstina threatened "push back". If I do settle any cases, it will have nothing to do with Mr epstein waving the money carrot in front of me. Third, on friday, Jan 23rd,(or Sat the 24th) you advised that Mr Epstein would promptly pay all costs and all legal fees through and including 1/23. I told you that I questioned his authity to "stop" paying for time and costs incurred after 1/23. BUT - I appreciated the fact that he would promptly pay our next bill - covering only through 1/23. I told you that I would not send out this new bill until' Mr epstein paid our prior, 120 and 90 day overdue statements. I didn't want a "new" statement to delay payment on the old overdue statments. Does your last email mean that Mr epstein is breaching his agreement to promptly pay for all time/costs incurred up to 1/23 7 I will send a new statement covering everything from approx 12/15 through 1/23. Please let me know whether Mr Epstein will comply with your message of 1/23, or he will "push back" on this next statement. My next statement will be sent the day after Mr Epstein pays the other old staements. If he did actually send the check today, I should have the next statment mailed by thurs or fri. Thus far Mr Epstein has made 3 changes re where I should send the statements. In order to avoid further delay and confusion, please let me know where you want me to send the next statements. I apologize if this email has typos!, etc but its the best I can do while I'm in trial. I do not apologize for the tone of this note - I am hurt and upset - I think that Mr Epstein is taking advantage of me, and taking advantage of our (Roy/Bob) relationship. Will further discuss this w you by phone or in personm. Thanks Original Messa e From: Roy BLACK < To: ROBERT I. JOSEFSBERG Sent: Tue Feb 03 12:47:59 2009 Subject: Epstein Bob: I am told a check went out today. I am also told there will be push back on further expenses without a settlement. So we need to discuss settling the cases. Jeffrey will not pay more for the fees and expenses without the start of settlement negotiations. So let's discuss. Roy 1 EFTA00183734 BERT PATTON From: ROBERT I. JOSEFSBERG Sent: Wednesday, February 11, 200912:47 PM To: 'Amy Eder7; 'Evelyn Sheehan'; KATHERINE W. EZELL; BERT PATTON Subject: FW: Epstein Original Message From: Roy BLACK rmailto:Mr.11.3 Sent: Monda , February 09, 2 I To: ROBERT I. JOSEFSBERG Subject: Re: Epstein The client has informed me and I will send you a note today on his position. Sorry for the delay. >» "ROBERT I. JOSEFSBERG" <RJOSEFSBERGOPODHURST.com> 2/6/2009 2:39 PM >» >» Having not heard from you, I assume that you still do not have sufficient direction, or are still lacking client input. I've had 3 or 4 issues pending since our conversation of 1/23 or 1/24. I've waited two weeks for your responses, and + am running out of time. I understand and sympathize with your situation. I wish someone would attempt to understand my situation. You are leaving me very limited alternatives. Original Messes e From: Roy BLACK < To: ROBERT I. JOSEFSBERG Sent: Thu Feb 05 12:04:21 2009 Subject: Re: Epstein I am talking to the client this afternoon. So / have no direction yet. >» "ROBERT I. JOSEFSBERG" < > 2/5/2009 11:17 AM ›.» >» Roy - you wrote on 2/3 that you were advised that "a check went out today". It did not. This morning 100,000 was wired. There was 200,000 that was more than 90 days overdue. The 50 percent payment is not acceptable. Unfortunately, this matter is going to blow up. My partner, Podhurst wants to bring this to a head by tomorrow. I will try to reach you during the lunch break in my arbitration. You were supposed to get back to me on yesterday - after you received "client input". I understand your situation - but it is apparent that your client does not care about his agreements, and is. Making everything impossible. I though it was appropriate to let you know before we take further action. Original Message From: Roy BLACK > To: ROBERT I. JOSEFSBERG Sent: Tue Feb 03 13:41:21 2009 Subject: Re: Epstein no problem. I will keep you informed. >» "ROBERT I. JOSEFSBERG" < > 2/3/2009 1:33 PM >» I'll be at my arbitration from approx 9 till 6. I'll try to call you during a break - or you can call me after 6. Why don't you email me after you get your client input - and I'll call you after that. Original Mess... From: Roy BLACK < To: ROBERT I. JOSEFSBERG Sent: Tue Feb 03 13:19:40 2009 Subject: Re: Epstein 1 EFTA00183735 Bob let's talk tomorrow. I need more input from the client before we discuss this. >>> "ROBERT I. JOSEFSBERG" < Roy - I'm not satisfied with my last email to you arbitration. I need to talk to you - will you (at try to get there btwn 6:45 and 7:30 - if we don't at 632 9230 > 2/3/2009 1:11 PM - am in a rush because I'm in an 8 day the milt hirsch function tonight? I'll talk there, please call me after 7:30 - Original Message From: ROBERT I. JOSEFSBERO To: 'RBLACK(Oroyblack.com, <IIIIIIIIIIIIIIIIII> Sent: Tue Feb 03 12:55:53 2 Subject: Re: Epstein Fine - can we settle IIIII ? - as to the "delay" in talking about settlement , when I met with Jay L in eallig i he said that Jeff would not be ready to talk about settling till the end of Jan. Both you and Jay did not return my 3 or 4 calls to each of you between Jan 10 and approx Jan 25 when I finally dpoke to you. Original Metak--- From: Roy BLACK < To; ROBERT I. JOSEFSBERG Sent: Tue Feb 03 12:47:59 2009 Subject: Epstein Bob: I am told a check went out today. I am also told there will be push back on expenses without a settlement. So we need to discuss settling the cases. Jeffrey pay more for the fees and expenses without the start of settlement negotiations. discuss. Roy further will not So let's 2 EFTA00183736 13/2009 13:11 FAX Q002/003 KIRKLAND & ELLIS LLP AND AIIRJATID PAIDIARSKIPS Jay P. Lefkowitz,.. To ay: lefkovAtzekirklan .com VIA FACSIMILE Robert . Josefsberg, Esq. Podhurst Orseck, P.A. City National Bank Building 25 West Flagler Street, Suite 800 Miami, FL 33130 Dear Bob, Cittgroup Center 153 East 63r0 Street Now York, New York 10022-4811 .'www.barklana.com February 13, 2009 Fac Confidential For Settlement Purposes Only Pursuant to Rule 408 We have received copies of your firm's invoices for the last several months as related your representation of a select group of individuals in connection with a matter between Mr. Epstein and the United States Attorney's Office in the Southern District of Florida (the "USAO"). We write this letter to (1) address issues raised by those invoices and (2) suggest a resolution to this matter that would benefit all parties involved. First and foremost, after thoroughly reviewing the invoices from your firm, it is clear that the services you have provided to the women at issue far exceed the scope of services for which Mr. Epstein agreed to pay under the federal Deferred Prosecution Agreement (the "Agreement") and Addendum. Pursuant to the relevant Agreement and Addendum, Mr. Epstein agreed to pay the attorney representative for his representation of a select group of individuals at "his or her regular customary hourly rate." Importantly, the Addendum limits the scope of this representation and specifies that the Agreement "shall not obligate Epstein to pay the fees and costs of contested litigation filed against him." The Addendum further provides that Mr. Epstein's obligation to pay the fees of an attorney represcutaildeases when the work performed is aimed at pursuing "a contested lawsuit pursuant to 18 . § 2255" or "any other contested remedy." Simply put, the Agreement and Addendum only require Mr. Epstein to pay fees expended in connection with negotiating a settlement for each of the relevant individuals, not for services relating to any type of pre-litigation effort. Thus, any charges related to work performed beyond, or extraneous to, reaching a settlement should not be Mr. Epstein's' responsibility. Mr. Epstein fully intends to fulfill his agreement and pay for all fees associated with settlement at your firm's regular hourly rates. However, Mr. Epstein will not pay for any services beyond those directed towards reaching a settlement. To resolve this matter, we are Chicago Hong Kong London Los Angeles Munich San Francisco WashIngtoe.M. EFTA00183737 02/13/2009 13:12 FAX Q4003/003 Robert Josefsberg February 13, 2009 Page 2 Confidential For Settlement Purposes Only Pursuant to Rule 408 available and ready to discuss the invoices with you on a line-by-line basis and believe that we can come to an agreeable resolution as to the fees accumulated to date. During the same discussion, we hope to clarify with you the exact number of women who have agreed to utilize your services for the purpose of reaching a settlement with Mr. Epstein. Second, upon serious consideration and discussion, Mr. Epstein is prepared to offer your clients a settlement that we believe will serve to compensate each individual appropriately. As a final resolution to this matter, Mr. Epstein would pay each individual who agrees to relinquish any andrnotential civil claims against him $50,000.00, which is the statutory amount provided by 18 § 2255, at the time of the alleged violations. Each individual would receive this amount, without any need to offer proof of claim or injury and without any further delay. We hope that you discuss this offer with your clients in the next 30 days, as Mr. Epstein's offer to settle will remain open until March 13, 2009. Very truly yours, Jay P f,7 fkowitz EFTA00183738 ROBERT t JOSEFSBERG From: ROBERT JOSEFSBERG Sent: 2009 2:16 PM To: m' Subject: Re: Epstein Roy - I need to go on record regarding Mr Epsteins message that without any settlements there will be a "push back" on any future payments. First, Mr Epstein has no authority to "push back" on payments. Secondly, although I am vey interested in settling some cases, I will not let Mr Epstein coerce me into settling for some clients so that I can get paid for representing others. It would be unethical for me to settle any cases in order to avoid Mr Epstins threatened "push back". If I do settle any cases, it will have nothing to do with Mr epstein waving the money carrot in front of me. Third, on friday, Jan 23rd,(or Sat the 24th) you advised that Mr Epstein would promptly pay all costs and all legal fees through and including 1/23. I told you that I questioned his authity to "stop" paying for time and costs incurred after 1/23. BUT - I appreciated the fact that he would promptly pay our next bill - covering only through 1/23. I told you that I would not send out this new bill untill Mr epstein paid our prior, 120 and 90 day overdue statements. I didn't want a "new" statement to delay payment on the old overdue statments. Does your last email mean that Mr epstein is breaching his agreement to promptly pay for all time/costs incurred up to 1/23 ? I will send a new statement covering everything from approx 12/15 through 1/23. Please let me know whether Mr Epstein will comply with your message of 1/23, or he will "push back" on this next statement. My next statement will be sent the day after Mr Epstein pays the other old staements. If he did actually send the check today, I should have the next statment mailed by thurs or fri. Thus far Mr Epstein has made 3 changes re where I should send the statements. In order to avoid further delay and confusion, please let me know where you want me to send the next statements. I apologize if this email has typos!, etc but its the best I can do while I'm in trial. I do not apologize for the tone of this note - I am hurt and upset - I think that Mr Epstein is taking advantage of me, and taking advantage of our (Roy/Bob) relationship. Will further discuss this w you by phone or in personm. Thanks Original Messa e From: Roy BLACK < > To: ROBERT I. JOSEFSBERG Sent: Tue Feb 03 12:47:59 2009 Subject: Epstein Bob: I am told a check went out today. I am also told there will be push back on further expenses without a settlement. So we need to discuss settling the cases. Jeffrey will not pay more for the fees and expenses without the start of settlement negotiations. So let's discuss. Roy 1 EFTA00183739 KIRKLAND & ELLIS LLP AMIDAPCLIAnDIAJAMKSMM Jay P. LeftyAtr, To y: I 40(11 VIA FACSIMILE (561) 820-8in CD:orouo Center 163 ate 63rd Street New York, Now York 10022-4511 www.kritland.com September 2, 2008 United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Re: Jeffrey Epstein In response to your letter dated August 26, 2008, I am confirming that Mr. Goldberger should continue to be listed as the contact person in the amended victim notification letters and should receive the carbon copies of those letters as they are sent. Also, we plan on speaking to Mr. Soscfsberg this week to discuss a procedure for paying his fees. We intend to comply fully with the agreement and Mr. Epstein will pay Mr. losfsbeeg's usual and customary hourly rates for his work pursuant to the agreement facilitating settlements under 2255. S'ncerely, . L fko "tz cc: . : , Chief, Northern Division Jac Goldberger Roy Black Pupa Hong Kong London Loa Angeles Munich San Franoktco Washington, aged >I 17 t•T 0619-2S2-SOC L-laP3 und WdGC3 :9 sooz BD unr 06TG EGZ Sot 6T:8T 600E/80/90 EFTA00183740 PodhurstOrseck TRIAL Sr APPELLATE LAWYERS Aaron S. Podinust Ro berg Joel D Stever. Marks Victor M. Din, Jr. Katherine W. Ezell Stephen F. Rosenthal Ricardo M. Martinez-Cid Ramon A. Rasco Alexander T. Rundlet John Gravante, RI Jay P. Lefkowitz,II. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, NY 10022-4611 Dear Mr. Lefkowitz: February 20, 2009 Robert Orseck (1934-1978) Walter H. Beckham. Jr. Karen Podhurat Dem Of Counsel I received your letter dated February 13, 2009. What your client is doing is obvious, and it is in breach of his Non-Prosecution Agreement. The agreement speaks for itself. Enclosed is a copy of the marching orders I received from Mr. Sloman. Pursuant to these directions and the ethical requirements of the legal profession to zealously represent my clients, I have attempted to efficiently and effectively pursue my clients' claims against Mr. Epstein. Perhaps your client thought that he could victimize and intimidate countless underage girls, that he would then agree to provide minimal compensation to them for the damage he inflicted upon them and that I would then simply let them come in and "sign the paperwork" for the absolute minimum recovery. My role is not a clerical one where I merely document a settlement that simply offers the statutory minimum even though courts have provided recovery for each occurrence. What's more, your letter presumes that I should allow my clients to accept such an offer without fully evaluating their claims. Settling their cases in a vacuum would amount to malpractice. As we see it, each of our 9 or 10 clients has three choices: to do nothing, to settle, or to sue your client. In order to make an educated decision, we are required to conduct a comprehensive review of each client's personal history, the events surrounding their abuse at the hands of Mr. Epstein and what has happened to them since he sexually exploited and abused them. Collateral interviews and psychological evaluations are crucial componentsof corroborating facts and assessing a fair damages calculation. Extensive legal research into their potential legal claims and resulting damages must also take place. Such an investigation is, of course, going to be helpful at trial if any of them choose to litigate their claims. This, however, does not change the fact that everything we've done is necessary in order to determine if we should settle: As a matter of fact, you and I discussed hiring Sandy Marks, a jury consultant. Again, such an exercise would be extremely helpful at trial, but an analysis of what would happen at trial is exceptionally beneficial at the settlement stage. Podhunt Orseck, P.A. 25 West Plaster Street, Suite BOO, Miami, FL 33130 Miami 305.233.2200 Fax 3053582322 • Port Lauderdale 954.463.4346 www.podhurstcom EFTA00183741 February 20, 2009 Page 2 You are welcome to set up a conference call or visit us so we can go through my bills line by line in search of "any charges related to work performed beyond, or extraneous to, reaching a settlement." To be clear, nothing in our bills is extraneous to settlement of our clients' claims. Our bills represent our work on behalf of 9 or'10 clients. I will take this opportunity to remind you that of the $412,827.76 that we have sent you itemized bills for, only $163, 992.15 has been paid. Mr. Black wrote on February 3`d that he was advised that a check had been sent out that day. It had not. By the time we got 50% of outstanding fees, outstanding bills were more than 90 days overdue. Failure to pay our fees jeopardizes your client's agreement with the United States Attorney's Office. My exchange with Mr. Black (copies of e-mails are attached) illustrates that promises that have been written or said by you or Mr. Black have been breached. I find myself in a position where I do not know if Mr. Epstein is bound by what you or Mr. Black say. Before we go further, I need confirmation that you and/or Roy Black can commit Mr. Epstein. One of Mr. Black's e-mails clearly states that "Jeffrey will not pay more for the fees and expenses without the start of settlement negotiations." I am frankly baffled by your client's misguided pretense. When I met with you on November 26, 2008, you said Mr. Epstein would not be ready to talk about settling until the end of January. Both you and Mr. Black did not return three or four calls to each of you between January 10 and approximately January 25. Just so the record is clear, we have diligently pursued reaching the stage of active settlement negotiations and have been stonewalled by your side, until your February 13'h "take it or leave it" $50,000 per client offer. In addition, I have attempted to tackle any procedural and logistical problems in an efficient, economical and timely manner. At each step, I have either encountered delay or a complete lack of response. For example, I wasted a lot of time and energy on your client's frivolous claim that I cannot represent my clients at trial. You shocked me with that position on November 21" and promised to get back to me to discuss it. Since we met in November, we haven't received a response regarding this issue. You apparently have finally abandoned this position. In addition, at that November meeting, I told you that some victims have severe psychological problems and that their claims warranted far in excess of $150,000 but that we are sensitive to concerns about them using the money otherwise. As a result, we discussed putting the money in special trusts expressly restricted for payment of psychological treatment. Again, I have received no response. Finally, the March 13th cutoff date is nonsensical. I trust that you wouldn't dare be attempting to say that Mr. Epstein's offer is withdrawn after that. As I said before, your client is in clear breach of his Non-Prosecution Agreement. I am at a loss as to why he would be willing to face the prospect of numerous civil trials, which will be ugly for him, and a federal prosecution in order to avoid fairly compensating my clients for the harm he inflicted upon them. V ery truly yours, Robert C. Jo cc: Roy Black Alan Dershowitz EFTA00183742 PodhurstOrseck TRIAL & APPELLATE LAWYERS City National Bank Building 25 West Plagler Street, Suite 800 Miami, Florida 33130 Assistant U.S. Attorney Office of the U.S. Attorney Seventh District of Florida 500 East Broward Blvd., 7" Floor Fort Lauderdale, FL 33394 33394$3O16 0001 ISSPOs). e ice lei, crma--4, -. RIMY WATS $ 00.44° 02 PA 0004273379 JUN 24 2009 MAILED FROM ZIP CODE 331 30 EFTA00183743 `03/03%2069.18:32 VAX nortuna KIRKLAND & ELLIS LLP Aatti AMIAMIO PARTMASICPS Jay P. Lotkowitz, To I i (ekes/its a .GOT VIA F46CSIMILE Robed I. Josefsberg, Esq. Podhunt Orseck, City National Bank Building 25 West Flagler Street, Suite 800 Miami, FL 33130 Dear Mr. Josefsberg, Citlgroop Cantor 153 East 53rd Street New York, New York 10022-4011 www.kirkland.com March 3, 2009 Fncsinalo: (212) 446.4900 Confidential For Settlement Purposes Only Pursuant to Ruh; 408 J write in response to your letter dated February 20. 2009. First, there is no merit whatsoever to your contention that Mr. Epstein has breached the Non-Prosecution Agreement, and your implication that be has is simply unsupported by the facts. As you state in that letter, the "agreement speaks for itself' and should be honored as such. My February 13, 2009 letter to you was an attempt to ensure that the portion of the Agreement concerning restitution be carried out as intended and written. Indeed, our objections to your expanded role in representing the alleged victims and to Mr. Epstein's obligations to pay fees incurred outside of the settlement context are valid. Furthermore, nowhere in the Agreement or Addendum does it state that a fee dispute or contentions as to the exact role of the attorney representative constitute a breach of that Agreement. In fact, there is a requirement that fee disputes he resolved with a special master. As I further explain below, your letter and accompanying documents, as well as the description of services performed in your invoices, lead us to believe that there has been a misunderstanding as to your role. S With your letter, you enclosed a communication from Mr. Sloman to Judge dated October 25, 2007 and an additional document, presumably also from Mr. Sloman, entitled "PROPOSAL FOR PROCEEDING ONCE ATTORNEY IS SELECTED." While you refer to these documents as your "marching orders," neither document is part of the signed Agreement between Mr. Epstein and the United States Attorney's Office "USAO"). The October 25, 2007 letter was not even addressed to you, but rather to Judge the individual responsible for selecting an appropriate attorney representative. And since the October 2007 letter was drafted, there have been several communications between Mr. Epstein's defense team and the USA() which served to further clarify the Agreement with respect the role of the attorney representative. Chicago Hong Kong London Los Angeles Munich San Francisco Washington, M. EFTA00183744 03/03/2000 18:33 PAX Q003/004 KIRKLAND & ELLIS LIP Roberti. Josefsberg March 3, 2009 Page 2 Confidential For Settlement Purposes Only Pursuant to Rule 408 Thus, this document may have contributed to the apparent misunderstanding concerning your defined responsibilities in this matter. In any case, your purported reliance on this letter raises more questions than it answers. For example, the letter clearly indicates that the parties were to "(firstly prepare a short written submission .. . regarding the role of the attorney representative and regarding Epstein's Agreement to pay such attorney representative his or her regular customary hourly rate . . ." (emphasis added). However, you never inquired as to the existence of such a joint statement to help inform you of your defined role. Indeed, you failed to reach out to anyone on Mr. Epstein's defense team to obtain such a document Even though the October 2007 letter does not provide any direct instructions as to your particular responsibilities, it does quote relevant portions of the Agreement which expressly limit Mr. Epstein's obligation to pay the attorney representative. Specifically, the Agreement "shall not obligate Epstein to pay the fees and costs of contested litigation filed against him." Furthermore, the proposed instructions are represented in a document that was not agreed upon between the USAO and Mr. Epstein's defense team. Indeed, we clearly rejected the notion that (1) the selected attorney be able to fulfill any role beyond negotiating a settlement, and (2) that Epstein would pay for any services beyond those incurred while trying to reach a settlement. While we have no objections to your representation of the relevant individuals, we believe that your role, as made clear in the Agreement, is limited to settlement negotiations. In other words, under the Agreement, if an individual wants to consider any measure beyond settlement with Mr. Epstein, she must pursue those avenues through another lawyer. Based on the language of the Agreement, it is our position that you are not responsible for pursing your clients' claims, as you state in your letter. Furthermore, Mr. Epstein is certainly not trying to "victimize and intimidate" anyone. The offer to settle was an earnest effort to avoid any further delay in resolving this matter. Notably, the government has expressly provided that it takes no position regarding potential claims of government witnesses.' Oiven this lack of offer of $50,000 to resolve claims that are not time-barred (as we believe ' claim to be), without any On several occasions, USAO representatives have asserted that the government takes no position as to the claims of the individuals identified its alleged victims. For the sake of confidentiality, we will not produce the relevant documents. One such communication, however, was made in a December 6, 2007 letter from United Stales Attorney Acosta to myself. in which he stated that "the Office has no intention to take any position in any civil litigation arising between Mr. Epstein and any individual victim ..." EFTA00183745 03/0312000 18:34 FAX Q004/004 KIRKLAND 8. ELLIS LLP Robert . Josefsberg March 3, 2009 Page 3 Confidential For Settlement Purposes Only Pursuant to Rule 408 requirement to verify the allegations made, is more than reasonable.2 And while you are surely entitled to your personal opinion as to the merits of our settlement offer, we remind you that you are under an obligation to discuss our offer with your clients and to allow each one to determine whether she would like to accept such an offer. If these individuals choose to reject Mr. Epstein's offer and consider potential litigation against Mr. Epstein, another lawyer, not paid by Mr. Epstein, will have to perform that work. I hope these matters can be resolved in an amicable manner. I would welcome the opportunity to meet with you face-to-face so that we are able to move forward. I am certain that a great deal of the confusion can be resolved through an in-person meeting. Due to the fact that there are many lawyers involved, I fear that some your past correspondence was not returned in a timely manner. I will endeavor to make certain that this does not happen again. Very truly yours, P. Le owitz $50,000 represents the statutory minimum under I8 § 2255, reasons we will nut address here, at the time of the alleged conduct. Th. agreed to settle claims with the relevant individuals pursuant to the terms of the Agreement. constitutionally questionably statute stein EFTA00183746 PodhurstOrseck TRIAL & APPELLATE LAWYERS Aaron S odhurst Robert berg Joel D. Steven Marks Victor M. Diaz, Jr. Katherine W. Ezell Stephen F. Rosenthal Ricardo M. Martinez•Cid Ramon A. Rasco Alexander T. Rundlet ' John Gravante, III Via Fax and U.S. Mail Robert Critton, Esq. Burman, Critton, Luttier & Coleman, LLP 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 Re: Epstein Case Our File No.: 30608 Dear Bob: June 8, 2009 Robert Orseck (19344978) Walter H. Beckham, Jr. Karen Podhurst Den Of Counsel I was shocked when I heard from Bob Josefsberg that Jeffrey Epstein and counsel do not recall, or have decided to ignore, his contractual obligation to pay this firm's fees and costs relating to any of his victims/our clients who elect to settle their claims without filing suit. You asked Bob to put his position in writing, and this letter is our rough attempt to do so. The Agreement Paragraph 7 of the Non-Prosecution Agreement ("NPA") provides for the selection of an attorney representative ("Atty Rep") for the individualsMire on a list of individuals whom the United States has identified as victims, as defined in 18 § 2255 ("Victims"), which list was to be provided and was provided to Epstein's attorneys, Jack Goldberger and Michael Tien, after Epstein signed the NPA and was sentenced. Subsequently, there was an Addendum to the Non-Prosecution Agreement ("Addendum"), the stated intent of which was to clarify certain provisions of page 4, paragraph 7 of the NPA. In paragraph 7A of the Addendum, it was agreed that the United States had the right to assign to an independent third-party, the responsibility of selecting the Atty Rep, agariet to the good faith approval of Epstein's counsel. As you know, former ChiefJudge Edward ME was the independent third-party chosen by the United States in consultation with and with the good faith approval of Podhant Orseck, P.A. 25 West Plagler Street, Suite 800, Miami, FL 33130 Miami 305358.2800 Pax 305.358.2382 • Fort Lauderdale 954.465.4346 EFTA00183747 Robert Critton, Esq. June 8, 2009 Page 2 Epstei counsel. Judge M, in turn and in accordance with paragraph 7, selected our partner Robert. Josefsberg as Atty Rep for the victims. Both parties had the right to object to his selection prior to his final designation. Mr. Josefsberg was formally designated as Atty Rep on or about September 2, 2008, without objection from either side. Pursuant to paragraph 7 of the NPA, Mr. Josefsberg is to be paid for [his services as Atty Rep] by Epstein. Paragraph the Addendum directed the Parties to jointly prepare a short written submission to Judg regarding the role of the Atty Rep and Epstein's Agreement to pay such Atty Rep his customary hourly rrepresenting the victims. The United States prepared a proposal and submitted it to Judge, to which Epstein apparently objected. Not only did neither Epstein nor his counsel deign to join with the United States in preparing such a proposal, but they failed and refused to submit their own proposed protocol. In that circumstance, Epstein clearly waived his right to submit a joint proposal or any proposal at all. Accordingly, he has no right to object to the proposal submitted by the United States. A clear reading of the Addendum at 7B demonstrates that there was no disagreement, nor could there have been any misunderstanding regarding what is referred to as "Epstein's Agreement to pay . . . [Mr. Josefsberg's] regular customary hourly rate." This obligation is reiterated in the first sentence of paragraph 7C. Epstein's choosing not to submit a proposal as to the role of the Atty Rep in no way relieved him of his obligation to pay the Atty Rep his regular hourly rate for his representation of the designated victims, so long as they are engaged in the settlement process. This is particularly apt when Epstein chose to avail himself of this settlement opportunity so as to preclude the Atty Rep's filing of a lawsuit on behalf of the victim. Epstein's obligation to pay the Atty Rep's fees and costs pursuant tot he NPA and its Addendum ceases only in the event that the Atty Rep files contested litigation against Epstein on behalf of a victim. The Recent Settlement During the last six months there have been meetings, emails and phone conversations between Roy Black, Jay Lefkowitz and Bob Josefsberg that corroborate our position. Please check with Jay and Roy as to their recollection of these matters. Despite his putting up one road block after another, Mr. Epstein, through you as his counsel, ently settled the elaim of oness of ofE ppsutein. ' s ng iltstedgethaner our final bill didentifiedvietrim el victims, t ourclient in is the o our representation of Ms. and will be submitting it to you or Mr. Goldberger as soon as the entitlement issue is resolved. We fully expect Jeffrey Epstein to honor his agreement by paying the fees and costs related to this representation according to the terms of the NPA and the Addendum. We are also prepared to make a second settlement proposal (for another client) and expect similar EFTA00183748 Robert Critton, Esq. June 8, 2009 Page 3 treatment of attorney fees in that matter. Remedies There are several alternatives available to us, should Jeffrey Epstein refuse to honor his agreement to pay according to those terms. Both our victim clients and the Atty Rep and his firm are and were intended to be third party beneficiaries of the NPA and the Addendum. As such, we have the right to bring suit for specific performance of and/or declaratory judgment regarding the terms of the agreement between Epstein and the United States. In the alternative, other Epstein counsel have stated that all fee disagreements should be resolved by a special master. We are not averse to that. I am sure that I need not remind you that with regard to the Atty Rep's work thus far, there has been complete performance on our side and partial performance by the Defendant. Epstein did make partial payment of our initially invoiced fees earlier in these proceedings. When he stopped paying, his counsel communicated that he would start paying again when there were settlements. This in itself constitutes an acknowledgment of his obligation to do so. Having initially paid and thus inducing continued performance by the Atty Rep, Epstein is now equitably estopped to deny his contractual obligation. The Atty Rep, on the other hand, has full corn leted his part of the bargain by providing the necessary services to make it possible for to settle her claim without filing a contested lawsuit, and the Any Rep is entitle to e pat in for those services by Epstein. Finally, there is the implied obligation of good faith and fair dealing inherent in every contract, including those intended to benefit third parties. Please advise us of your position prior to Friday's heating, because your position may influence our involvement at that hearing. Very truly yours, cot-t-A2A-4- LAI Eng.( Katherine W. Ezell KWE/mce EFTA00183749 (USAFLS) From: Sere To: Subject AttaChmOnis: KATHEFUNE W. EZat. 200.90616102117672.pdl I had attached a sticky to this one stating that it was followed by a letter stating that everything we discuss tcworrow will be confidential unless both parties agree in writing. EFTA00183750 (USAFLS) From: Sent To: Subject KATHERNE W EZELL Leger hO larUSAFLS) ying any Fees and hearing tornarow Hi. I l e t you a phone message. We recannad a while ago a loner from Bob Otto ‘stio is see nkngty incregiOus Nat we believe we ate alined to any foss. If you are near a fax. I could send it to you. I viSI bring It to the hearing tomorrow. Kathy EFTA00183751 KIRKLAND & ELLIS LLP AND AMLIATED PAKINERSHIPS Jay P. Lefkoaitz, To *Jo WA FEDERAL EXPRESS CIllgroup Center 153 East 53rd Street New York, New York 10022-4611 Ms. Esq. United States Attorney's Office Southern District of Florida 500 South Australian Ave., Suite 400 West Palm Beach, Florida 33401 Re: Jeffrey Epstein Dear Ms. www.kirklend.com June 12, 2009 Facsimile: I am in possession of your June 12, 2009 letter giving notice of breach. I respectfully submit that the Motion to Dismiss that is referenced therein did not constitute a willful breach of Mr. Epstein's obligations under the non-prosecution agreement. Mr. Epstein's counsel unanimously determined that the filing of this Motion to Dismiss was not a breach of the non- prosecution agreement, and the Motion to Dismiss was filed by counsel without Mr. Epstein's final approval. I want to inform you that immediately upon receipt of your letter, Mr. Epstein directed his counsel to file the attached Notice withdrawing all but issue number VIII of the previously filed Motion to Dismiss. The same issue also is described briefly in subparagraph D on page 3 of the Motion, which likewise was not withdrawn. Please note that this issue relates exclusively to the damages available under § 2255. The Notice has already been filed. If your continued review of the civil dockets causes you to have additional concerns about any other filing, consistent with the notice provisions of the non-prosecution agreement and consistent with our prior practice regarding such matters, please provide me with notice and the opportunity to address the same with you. I believe that with today's filing withdrawing these issues Mr. Epstein, through counsel, has fully remedied any perceived breach. Please advise if you for any reason disagree. Respectfully submitted, Jay P. Le owifr, Chicago Hong Kong London Los Angeles Munich San Francisco Washington, EFTA00183752 KIRKLAND & ELLIS LLP . N.sq. Esq. EFTA00183753 Case 9:09-cv-80591-KAM Document 53 Entered on FLSD Docket 06/12/2009 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 09-CIV- 80591 - KAM a DOE NO. 101, Plaintiff, JEFFREY EPSTEIN, Defendant. DEFENDANT JEFFREY EPSTEIN'S NOTICE OF WITHDRAW!. OF ARGUMENTS I THROUGH VII OF THE DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (DE29) Defendant, JEFFREY EPSTEIN, by and through his undersigned counsel, hereby withdraws arguments I through VII as set forth in the Defendant's Motion to Dismiss the Plaintiff's First Amended Complaint (FAC) [DE 29], dated May 26, 2009. Defendant withdraws his arguments contained subparagraphs A, B,, and Sections I (The Complaint Must Be Dismissed Because Plaintiff Is Not A Minor), II (The FAC Must Be Dismissed Because The Defendant Has Not Been Convicted Of A Predicate Offense), III (Count One Of The FAC Must Be Dismissed Because It Does Not Please A Violation Of 18 Must Be Dismissed Because It Does Not Plead A Violation Of 18 . § 2422(h)), IV (Count Two §2423(b)), I (Count Three Must Be Dismissed Because It Does Not Plead A Violation Of 18 § 2251, VI (Counts Four and Five Must Be Dismissed Because They Do Not Plead Violation of 18 §§ 2252(a)(1) Or 2252(a)(1), and VII (Count Six Must Be Dismissed Because 18 2252A(g) Was Not Enacted Until 2006). Defendant will rely only on those arguments set forth in subparagraph D, on page 3, and Paragraph VIII (Any Surviving Count Should Be Merged Into A Single Count) of the EFTA00183754 Case 9:09-cv-80591-KAM Document 53 Entered on FLSD Docket 06/12/2009 Page 2 of 2 Defendant's Motion to Dismiss the First Amended Complaint Or, In The Alternative, For A More Definite Statement [DE 29] dated May 26, 2009. Counsel for De ndant EPS FEIN Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECP. I also certify that the foregoing document is being served this day on all counsel , record i entified on the following Service List in the manner specified by CM/ECF on this/ day of 2009 Roberti. Josefsberg, Esq. Katherine W. Ezell, Esq. Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130 305 358-2800 Fax: 305 358-2382 Counsel for Plaintiff Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, FL 33401-5012 561-659-8300 Fax: 561-835-8691 jageso@bellsouth.net Counsel for Defendant Jeffrey Epstein Respectfully submitted By: ROBERT D. RITTON, JR., ESQ. Florida B o. 224162 rcrit@bc claw.com MICHAEL J. PIKE, ESQ. Florida Bar #617296 mpike@bciclaw.com BURMAN, CRITTON, LUITIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 561/842-2820 Phone 561/515-3148 Fax (Counsel for Defendant Jeffrey Epstein) EFTA00183755 KIRKLAND & ELLIS LLP AND AMLIATED PARTNERSHIPS Jay P. Lefkow To Call Writer Dire.: letkWoom VIA FACSIMILE Clligtoup Center 153 East 53rd Street New York, New York 10022-4611 Facsimile: Ms. Esq. United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 voswidrkland.com June 15, 2009 Re: Jay Epstein Dear a I am attaching a letter authored by my co-counsel, Robert Critton, on today's date. It represents our agreement with a proposal that Kathy Ezell indicated in a letter dated June 8, 2009 would be fully acceptable to her and Bob Josefsberg as a means to resolve expeditiously all outstanding fee issues regarding the attorney representative. Mr. Epstein has directed his counsel to take immediate steps to address and resolve the attorney representative's outstanding fee- related issues and we are doing so without delay. The suggestion of a Special Master, agreed to by both parties, to resolve the issues in the immediate future, will assure all parties that there will be no delay and no need for adversarial litigation regarding fees. More generally, I want to assure you that Mr. Epstein has directed all counsel to make sure that there is no filing that could constitute a breach of the NPA. Accordingly, a new internal screening process has been established to provide focused decision-making on each filing. To the extent we believe any filing may be perceived as implicating any of the issues generically addressed in the NPA (a document including sentences within paragraph 8 that even Mr. Acosta agreed were "far from simple"), we intend to address such issues with you prior to any filing and hope that you will agree to review the draft filing and inform us whether or not from your perspective it would, if filed, constitute a "breach". This will be especially important regarding issues that we believe fall at the intersection of Section 2255 and the civil litigation. We reserve our right, if you believe a proposed filing to conflict with the NPA or if you wish not to address these issues with us, thereafter to address such substantive issues with the Court. Chicago Hong Kong London Los Angeles Munich San Francisco Washington,■ EFTA00183756 KIRKLAND & ELLIS LLP Ms. June 15, 2009 Page 2 Esq. We hope that these proposals—in combination with our immediate withdrawal of the previously filed Motion to Dismiss—resolve all outstanding issues at the intersection of the NPA and 2255. Please advise if any remain. Sincerely, Enclosure cc: EFTA00183757 J. MICHAEL BURMAN, PA" GREGORY W. COLEMAN, PA. ROBERT D. CRITTON. JR., PA.' BERNARD LEBEDEK ER MARK T. LUTHER, P.A. JEPFRE4. PEPIN MICHAEL J. PIKE HEATHER McNAMARA RUDA FLORIDA BOARD CERTIFIED CiviLTRIALLAWyeR BURMAN, CRITTON, LUTTIER & COLEMAN LLP A LIMITED LIABILITY PARTNERSHIP Sent by E-mail and U.S. Mail Robert Josefsberg, Esq. Podhurst Orseck, P.A. 25 West Flagier Street, Suite 800 Miami, FL 33130 Re: Epstein Matter Dear Bob: June 15, 2009 ADELQUI J. BENAVENTE PARALEOAL / INYMTIOXTOR BARBARA M. McKBNNA ASHUE STOKEN.BARINO BETTY STOKES PARALBJALS RIM H. BUDNYK OP COUNSEL On June 8, 2009, Kathy Ezell wrote a letter to me regarding outstanding fee payment issues. At page 3, she stated that she was not adverse to an earlier proposal that had been discussed amongst the parties to rely on a Special Master to resolve outstanding fee-related issues. We agree with Kathy's "proposal" that we rely on a Special Master to resolve all outstanding fee issues. Let's work during our Wednesday meeting to select an appropriate Special Master and let's agree to see whether, in the interim, we can resolve these issues even before they are submitted to the S.M. Cordially yo Roberyif Critton, Jr. RDC/clz cc: Jack Goldberger, Esq. L 'A•W•Y•E'R'S 515 N. FLAGLER DRIVE / SUITE 400 / WEST PALM BEACH, FLORIDA 33401 TELEPHONE (561) 842-2820 FAX (561) 844-6929 mailebelclaw.com EFTA00183758 U.S. Department of Justice United States Attorney Southern District of Florida DELIVERY BY ELECTRONIC MAIL Jay P. Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4675 Re: Jeffrey Epstein Dear Jay: 500 S. Australian Ave, Ste 400 West Palm Beach, FL 33401 (561) 820-8711 Facsimile: (561)820-8777 June 17, 2009 Thank you for your letter of June 15, 2009. I did not receive your letter until late yesterday afternoon because I am shuttling back and forth between the Fort Lauderdale and West Palm Beach offices. The best way to reach me is via e-mail. With respect to the substance of your letter, the Office has not completed its review of Mr. Epstein's civil filings and correspondence related to the payment of the attorney representative's fees, so I cannot confirm that all outstanding issues have been resolved. If and when additional breaches are identified, timely notice will be provided in accordance with the terms of the Non-Prosecution Agreement. As to your proposal, our Office cannot and will not become involved in the civil suits filed against Mr. Epstein; as counsel for Mr. Epstein has expressed on several occasions, it is inappropriate for the government to involve itself in civil litigation. We likewise do not think it is appropriate to review civil pleadings in order to provide advisory opinions, even at your request. The duty to stay within the bounds of the Non-Prosecution Agreement lies with Mr. Epstein and he alone has the power to remain in compliance. Mr. Epstein has a highly skilled team to assist him, and compliance with the Agreement is not difficult, as you suggest. For example, it is not complicated to understand that, when a named victim files a claim EFTA00183759 JAY P. LEFKOWITZ., ESQ. JUNE 17, 2009 PAGE 2 OF 2 exclusively under Section 2255, Mr. Epstein cannot assert that there is no liability, just as providing the state plea agreement to our Office in advance of entering the state guilty plea was not complicated. I remain hopeful that Mr. Epstein will take all of his obligations seriously and elect to err on the side of caution in making decisions that relate to the performance of his duties. Sincerely, Jeffrey H. Sloman Acting United States Attorney Bye.. Assistant United States Attorney cc: Chief, Northern Division Jack Goldberger, Esq. Roy Black, Esq. EFTA00183760 KIRKLAND & ELLIS LLP AND Al HUARD PARTNUSHIPS Jay P. Lelkowitz, To Call Writer Dire y: lelkoWm VIA FACSIMILE Citigroup Center 153 East 53.0 Street Now York, Now York 10022-4611 Facsimile: Ms. Esq. United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 www.kirkland.corn June 15,2009 Re: Jeffrey Epstein Dear I am attaching a letter authored by my co-counsel, Robert Critton, on today's date. It represents our agreement with a proposal that Kathy Ezell indicated in a letter dated June 8, 2009 would be fully acceptable to her and Bob Josefsberg as a means to resolve expeditiously all outstanding fee issues regarding the attorney representative. Mr. Epstein has directed his counsel to take immediate steps to address and resolve the attorney representative's outstanding fee- related issues and we are doing so without delay. The suggestion of a Special Master, agreed to by both parties, to resolve the issues in the immediate future, will assure all parties that there will be no delay and no need for adversarial litigation regarding fees. More generally, I want to assure you that Mr. Epstein has directed all counsel to make sure that there is no filing that could constitute a breach of the NPA. Accordingly, a new internal screening process has been established to provide focused decision-making on each filing. To the extent we believe any filing may be perceived as implicating any of the issues generically addressed in the NPA (a document including sentences within paragraph 8 that even Mr. Acosta agreed were "far from simple"), we intend to address such issues with you prior to any filing and hope that you will agree to review the draft filing and inform us whether or not from your perspective it would, if filed, constitute a "breach". This will be especially important regarding issues that we believe fall at the intersection of Section 2255 and the civil litigation. We reserve our right, if you believe a proposed filing to conflict with the NPA or if you wish not to address these issues with us, thereafter to address such substantive issues with the Court. Chicago Hong Kong London Los Angeles Munich San Francisco washington,■. EFTA00183761 KIRKLAND & ELLIS LLP Ms. June 15, 2009 Page 2 Esq. We hope that these proposals—in combination with our immediate withdrawal of the previously filed Motion to Dismiss—resolve all outstanding issues at the intersection of the NPA and 2255. Please advise if any remain. Sincerely, P. Letkowitz Enclosure cc: Vktar- en Atkinson, Esq. EFTA00183762 J. WHAM. BURMAN, PA., GREGORY W.CCU:NAN. PA. ROBERT D. CRITTON. IR., PA., BERNARD LEBEDBKER MARK T. I II/STIER, PA. JEFFREY PEPIN MIOIAEL PIKE HEATHER McNAMARA RUDA I R.ORIDA WARD anima CIVIL TRIAL LAWYER BURMAN, CRITTON, LUTTIER & COLEMAN LLP A LIMITED LIABILITY PARTNERSHIP Sent by E-mail and U.S. Mall Robert Josefsberg, Esq. Podhurst Orseck, P.A. 25 West Flagier Street, Suite 800 Miami, FL 33130 Re: Epstein Matter Dear Bob: June 15, 2009 ADELQUI I. BENAVENTE PARALEOAL I INVISTIOATOR BARBARA M. McKENNA ASHUR STOKEN-BARINO BETTY STOKES PARAUXML3 RITA R. BUDNYK MDOIRRfR On June 8, 2009, Kathy Ezell wrote a letter to me regarding outstanding fee payment Issues. At page 3, she stated that she was not adverse to an earlier proposal that had been discussed amongst the parties to rely on a Special Master to resolve outstanding fee-related issues. We agree with Kathy's "proposal" that we rely on a Special Master to resolve all outstanding fee issues. Let's work during our Wednesday meeting to select an appropriate Special Master and let's agree to see whether, in the interim, we can resolve these issues even before they are submitted to the S.M. Cordially yo Robe . Critton, Jr. RDC/clz cc: Jack Goldberger, Esq. L•A'W•Y•E•R• S 515 N. FLAGLER DRIVE/SUITE 400 / WEST PALM BEACH. FLORIDA 33401 TELEPHONE (561) 842-2820 FAX (561) 844-6929 mallebelclaw.com EFTA00183763 KIRKLAND & ELLIS LLP AND AFFILIATED PAIONLKSIIIPS Jay P. Lefkowitz, To l ri !Direct y: lefkowitz kirkland.com VIA FEDERAL EXPRESS Ms. NIIMM, Esq. United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Citigroup Center 153 East 53rd Street New York, New York 10022.4611 Dear www.kirkland.com June 19, 2009 Re: Jeffrey Epstein Facsimile: I appreciate your letter of June 17, 2009. I sincerely hope that any and all issues that could generate an adversarial relationship between Mr. Epstein and the United States Attorney's Office are in our past. Like you, we hope that the ongoing, complex, and at times vigorous litigation will not again require your involvement, nor result in any belief on your part that any legal position taken by Mr. Epstein's counsel conflicts with the Non-Prosecution Agreement ("NPA"). In order to avoid future misunderstandings, however, I would like to have a discussion with you specifically about our ongoing obligations as you understand them under the NPA. As you know from past experience, and as Mr. Acostuaviously acknowledged in letters to my partner Ken Starr (on December 4, 2007) and Lilly Sanchez (on December 19, 2007), the language of 18 is "far from simple," and, in certain respects, subject to significant ambiguity. I believe it is both necessary and appropriate to seek immediate clarification from the government about its understanding of a few provisions in the NPA. It is likely by no fault of our own that these issues will come before a judge or an independent third party, whose job it will be to interpret the intent of the parties. In those circumstances, I think the court would most likely turn to both of us and directly seek our views, as the drafters of the agreement, before rendering its own opinion. Therefore, I believe it would bring about the finality that we both seek in a much reduced time frame if we could discuss several of the more ambiguous provisions contained in the NPA. Chicago Hong Kong London Los Angeles Munich San Francisco Washington,.. EFTA00183764 Ms. June 19, 2009 Page 2 Esq. One specific example comes to mind. First, we clearly understood during the course of negotiating the NPA, and believe that both the language of the NPA and our prior correspondence with your Office confirm, that the waiver of liability set forth in Paragraph 8 at most was designed to allow an identified individual the right to assert a single violation of a section 2255 predicate. The waiver of liability does not embrace situations where a particular plaintiff asserts multiple violations. Thus, compliance with paragraph 8's waiver of liability would require at most that Mr. Epstein stipulate to the existence of a single enumerated predicate that would entitle an otherwise eligible plaintiff to actual damages (or the applicable statutory minimum damages where actual damages fall short of that floor), leaving aside the issue of whether the waiver is applicable to contested litigation or only the cases where there would be agreed damage resolutions. In addition, if we believe that a predicate act is time-barred, as indeed we understand was the case with respect to all such acts in relation to one plaintiff, a proper construction of the waiver of liability would not preclude the reliance on a statute of limitations defense. Given your Office's prior acknowledgements that the language of the NPA is far from clear, we very much would appreciate an opportunity to discuss Paragraph 8 with you in the very near future in order to clarify a few pivotal questions raised by the NPA. I assure you that Mr. Epstein intends to abide fully by the terms of the NPA. And it is my sincere hope that our discussion can avert future risks that anything we do will cause you to believe that there has been a breach of the NPA. Finally, I enclose a letter in response to your June 15 letter in order to provide you with our perspective on the issues you raised. I hope our differing views on certain events over the past several years as reflected in my letter will not in anyway divert us from a common goal of having Mr. Epstein complete his NPA obligations without further tension with your Office. Sincerely, P. Jay P. Leflcowitz, Enclosures EFTA00183765 KIRKLAND & ELLIS LLP AND AO MAR!) rsruNIRCIIII, Jay P. Lefkosvitz, To Call Writer Direc lefkova .com VIA FEDERAL EXPRESS Citigroup Center 153 East 53rd Street Now York. New York 10022-4611 Ms. Esq. United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Dear www.klrkland.com June 19, 2009 Re: Jeffrey Epstein Facsimile: We prepared this answer in response to your letter dated June 15, 2009 and before receiving your follow up letter of June 17, 2009. At this point it has been almost three years since the federal government first intervened in what was originally a matter investigated and charged by state prosecutorial authorities. It has been almost a year since Mr. Epstein pleaded guilty in state court and began serving his sentence in county jail, pursuant to the terms and as a direct result of the federal Non-Prosecution Agreement (the "NPA"). When Mr. Epstein was sentenced, the U.S. Attorney promised me and my co-counsel that the United States Attorney's Office's involvement would cease with Mr. Epstein's execution of the NPA and incarceration in state custody. We were also promised that the federal government would not intervene in discretionary state or county decisions regarding the implementation of Mr. Epstein's sentence. We take this opportunity to address in detail each of the alleged instances you describe to support your position that Mr. Epstein has engaged in a pattern of breaching the NPA. Mr. Epstein's overriding commitment is, and has always been, to complete his jail sentence, fulfill his other obligations under the NPA, and reach final settlements of pending section 2255 cases with plaintiffs who are agreeable to such settlements. We respectfully submit (and support through documentary evidence) that there have been no past breaches of the NPA. There have been no "willful" breaches of the NPA. There has been no pattern of breaches of the NPA. As an initial matter, it is important to consider your letter of June 15 and its contents in context. Mr. Epstein has satisfied, and continues to satisfy, his obligations pursuant to the NPA. Mr. Epstein pleaded guilty to a registerable state offense. He has already registered as a sex Chicago Hong Kong London Los Angeles Munich San Francisco Washington,■ EFTA00183766 Ms. Esq. June 19, 2009 Page 2 offender, and has served over 11 months of his sentence in county jail. While such a plea and punishment were not otherwise sought by the State Attorney, Mr. Epstein agreed to the plea, the sentence, and the obligation to register as a sex offender as a direct result of obligations he agreed to undertake pursuant to the NPA. Furthermore, Mr. Epstein has already paid over $300,000 in civil settlements and fees for the attorney representative, and has agreed to submit issues regarding further fees to a Special Master pursuant to a proposal suggested by the attorney representative himself. The claimants whose matters have already been settled were identified by you as victims and, in one case, as a sign of good faith, Mr. Epstein paid a settlement to an individual he had no recollection of ever meeting, solely because she appeared on your July 2008 list. We are prepared to address each of the statements contained in your June 15 letter. First, your statement that Mr. Epstein did not use his "best efforts" to enter his guilty plea and to be sentenced is, respectfully, without merit. Exhibit 1, June 15, 2009 Letter at 2. The date of entry of the state plea was deferred with the express written consent of United States Attorney Acosta, who recognized and expressly provided us with the opportunity to pursue an independent assessment of this matter by the Justice Department. The subsequent nine-month "delay" was a direct result of the Justice Department's determination that it was appropriate to convene an intense and time-consuming review. Thus, the delay was not dictated at all by Mr. Epstein, but instead, by the review process agreed to and, if you recall, initiated by Mr. Acosta. On June 23, 2008, the Justice Department concluded its final review and only seven days later, Mr. Epstein promptly entered his plea (on June 30, 2008) and immediately began serving his sentence. As the following timeline of events leading up to Mr. Epstein's entry of plea makes clear, the facts do not support your conclusion that Mr. Epstein willfully breached the NPA by delaying his sentence, and, instead, compellingly demonstrates that Mr. Epstein's participation in high-level Department of Justice reviews cannot factually or legally ground a claim that he "willfully" breached the NPA: • The NPA, signed on September 24, 2007, provides that Mr. Epstein "begin serving his sentence not later than January 4, 2008." See Exhibit 2, NPA 911. • On November 28, 2007, Mr. Epstein's defense counsel contacted Assistant Attorney General Alice Fisher to request a review of certain provisions of the NPA. We informed the USAO of this request the very next day in a letter to Mr. Acosta. See Exhibit 3, November 29, 2007 Letter from J. Lefkowitz to U.S. Attorney Acosta at 4. • In a December 4, 2007 letter, Mr. Acosta stated that he supported the defense's appeal to Washington. See Exhibit 4, December 4, 2007 letter from U.S. Attorney Acosta to K. Starr with a copy to AAG Alice Fisher at 5 ("I do not mind this Office's decision being EFTA00183767 Ms. Esq. June 19, 2009 Page 3 appealed to Washington, and have previously directed our prosecutors to delay filings in this case to provide defense counsel with the option of appealing our decision."). • On December 11, 2007, pursuant to Mr. Acosta's request, the defense team sent him submissions detailing the defense's concerns related to the NPA. See Exhibit 5, December 11, 2007 Letter from K. Stair to U.S. Attorney Acosta. • On December 14, 2007, Mr. Acosta met with members of the defense team to discuss the serious issues raised about the NPA. • In a December 19, 2007 letter, Mr. Acosta stated that "the issues raised are important and must be fully vetted irrespective of timeliness concerns." See Exhibit 6, December 19, 2007 Letter from U.S. Attorney Acosta to Attorney Lilly Sanchez at 3. He also stated that he had spoken with AAG Fisher to ask that she review this matter and to expedite the process. Id. • In the beginning of January, 2008, Mr. Acosta and I discussed the need for further consideration of the issues raised by the defense. He postponed the plea and sentencing until the Child Exploitation and Obscenity Section (CEOS) was finished with its review of the case. • In a February 29, 2008 email I sent to Mr. Acosta, I confirmed that that "there were significant irregularities with the deferred prosecution agreement" and that he would ask CEOS to evaluate the matter. I also confirmed Mr. Acosta's agreement to postpone the state plea deadline until after the matter was reviewed. On that same day, First Assistant U.S. Attorney Sloman responded in writing as follows: "Please be assured that it has not, and never has been, this Office's intent to interfere or restrict the 'review process' for either Mr. Epstein or CEOS. I leave it to you and CEOS to figure out how best to proceed and will await the results of that process." See Exhibits 7 and 8, February 29, 2008 Emails to U.S. Attorney Acosta and from Assistant U.S. Attorney Sloman. • Given that CEOS determined that it would not review many of the defense's objections and that its review would be limited on the rest of the objections, CEOS's decision, rendered on May 15, 2008, left open the need for a more thorough review of critical issues by others at the Justice Department. • In a May 28, 2008 email from Mr. Sloman to myself, Mr. Sloman further postponed the deadline to plead until the Deputy Attorney General's Office (DAG) completed its review. See Exhibit 9, May 28, 2008 Email from Assistant U.S. Attorney Sloman to J. Leflcowitz. EFTA00183768 Ms. Esq. June 19, 2009 Page 4 • A final letter of determination was not issued by the Department of Justice until June 23, 2008. • Just one week after that date, Mr. Epstein promptly entered his plea and immediately began serving his state sentence on June 30, 2008. While you state that a breach occurred because Mr. Epstein and the defense team did not provide you with the state plea documents until the last business day before the plea, neither Mr. Epstein nor his counsel bear sole responsibility for timing of the delivery of these documents. It was the responsibility of the State Attorney's Office to provide the defense with the plea agreement. Defense counsel did not receive the plea agreement from the State until 10:00 A.M. on June 27, 2008 (the Friday before the plea). See Exhibit 10, June 27, 2008 Email from State Attorney Lanna Belohlavek to J. Goldberger. Once the plea agreement was reviewed by Mr. Epstein's defense team, Mr. Goldberger sent it to you that same afternoon. At 5:55 P.M. on June 27, 2008, following your receipt of the agreement sent to you by Mr. Goldberger, Messrs. Black and Goldberger received a responsive letter from you alleging that the plea agreement vioiSeNPA. See Exhibit 11, June 27/28, 2008 Email String between Assistant U.S. Attorney and R. Black and J. Goldberger (attaching Notice of Non-Compliance). Second, you state that language contained in the first draft of the plea agreement proposed by the State violated the NPA, because it called for community control in lieu of jail. Exhibit 1, June 15, 2009 Letter at 2. You now suggest that this "error" evidences Mr. Epstein's alleged efforts to undermine the NPA. I respectfully submit that you are mistaken in both cases. The language in the first draft of the plea agreement was prepared by the State and, as stated above, it was not sent to the defense until the very day that it was sent to you. Moreover, as Mr. Goldberger confirmed to you in a telephone conversation on the same day that he received your June 27 letter, the plea agreement, as originally drafted by the State, would have resulted in the exact same 12-month and 6-month consecutive jail sentences, followed by one year of community control, as was required by the NPA and ultimately imposed on Mr. Epstein. Although defense counsel asked the State to change the language of the plea agreement to alleviate your concerns, the same exact sentence and period of incarceration as required by the NPA would have been imposed on Mr. Epstein had the language of the State's first draft been allowed Ili See Exhibit 11, June 27/28, 2008 Email String between Assistant U.S. Attorney and R. Black and J. Goldberger (confirming a telephone conversation between the parties on June 27 that the state plea agreement was in compliance with the NPA and indicating a request by Assistant U.S. Attorney to modify the language in the state plea agreement); see also Exhibit 12, the initial version and the signed version of the state plea agreements. EFTA00183769 Ms. June 19, 2009 Page 5 Esq. The bottom line here is that while Florida counsel for Mr. Epstein filly believed that the initial language in the State's draft would result in a sentence identical to the mandates of the NPA, changes were made solely to conform to your requests. Neither the USAO or the administration of federal criminal justice suffered any prejudice: lawyers often make linguistic alterations of form; we did so here. The changes were made in short order, namely, during the Friday and Saturday before Mr. Epstein's state plea; the plea and plea agreement completely complied with the NPA as did Mr. Epstein's sentence; and there was neither a breach, nor harm. Moreover, all communications were through counsel. Mr. Epstein was not a party to these communications and in no way can be considered, factually or legally, to have committed a "willful" breach of the NPA in this regard. Third, you state that defense "counsel obstructed [your] ability to abide by [your] obligations to notify the victims of the outcome of the federal investigation." Exhibit 1, June 15, 2009 Letter at 2. We believe that this statement misconstrues the intentions and conduct of the defense team and, does not support any charge of "obstruction" against Mr. Epstein, as would be required to sanction him for a "willful" breach of the NPA. In October 2007, a full nine months before Mr. Epstein was sentenced, we first raised the issue of the notification. On October 10, 2007, I stated in a letter to Mr. Acosta that the defense team did not believe "it was the government's place to be co-counsel to the identified individuals," and reasonably proposed that the alleged victims be contacted by the selected attorney representative. See Exhibit 13, October 10, 2007 Letter from J. Lefkowitz to U.S. Attorney Acosta at 4-5. Then, on November 28, 2007, you sent defense counsel the proposed victim notification letter indicating that the alleged victims had a federal right to be notified of the resolution of this matter pursuant to the Crime Victims' Rights under § 3771. See Exhibit 14, November 29, 2007 Draft Victim Notification Letter from Assistant U.S. Attorney Mr. Epstein's counsel objected to your draft letter and the proposed method and proWire or notifying the alleged victims and challenged whether you were in fact obligated to notify these individuals pursuant to 18 § 3771. Those objections were made in a timely and appropriate manner and our dialogue regarding notification issues continued. As you know, the notification letter was not finalized for several months. The key point here is that our objections to the letter were made in good faith and were well-founded. After all, on December 6, 2007, Mr. Acosta agreed to many of our objections and adopted several of our modifications to resolve problems raised by the draft notification letter. See Exhibit 15, December 6, 2007 Letter from U.S. Attorney Acosta to J. Lefkowitz. This fact confirms both the good-faith nature of our objections and that neither Mr. Epstein nor his counsel could be considered to have violated the NPA by raising those objections in the first place. Fourth, Mr. Epstein did not, as you stated, refuse "to fulfill promptly Mr. Epstein's obligation to secure the services of an attorney representative for the victims." Exhibit 1, June EFTA00183770 Ms. Esq. June 19, 2009 Page 6 15, 2009 Letter at 2. It was the United States' obligation to select a suitable attorney representative, subject to the good-faith approval of Mr. Epstein's counsel. See Exhibit 2, NPA ¶ 7. Indeed, due to a concern we had raised, your Office specifically modified the procedure to select an attorney representative and delegated that task to Judge . See Exhibit 16, Addendum to NPA ¶ 7A. Again, the fact that your Office accommodated our concerns validates their legitimacy and undermines any claim that the NPA was breached by raising those concerns with you. To the contrary, Mr. Epstein executed the Addendum in an attempt to resolve outstanding, high) unorthodox and complex issues at the intersection of civil and criminal law. A letter to Judge (authored by then FAUSA Sloman) dated October 25, 2007 followed. See Exhibit 17, October 25, 2007 Letter to Judge Once Mr. Podhurst's firm was selected by Judge M, Mr. Epstein did not object to the selection. Moreover, as you have acknowledged to the court, the open issues involving the attorney representative portions of were not finally resolved until September 3, 2008. See Exhibit 18, December 22, 2008 Supplemental Declaration at 3 ¶ 9. Only five days later, on September 8, 2008, I sent a letter to Robert Josefsberg advising him that Mr. Epstein would pay his fees pursuant to the NPA for his role as an attorney representative. See Exhibit 19, September 8, 2008 Letter from J. Lefkowitz to R. Josefsberg. Furthermore, in an effort to comply with the obligations under the NPA, Mr. Epstein already has paid Mr. Podhurst's firm over $160,000 in legal fees, despite significant concerns over the scope of the work for which he is billing Mr. Epstein, and has agreed with Mr. Josefsberg's proposal that a Special Master be empowered to resolve any fee related issues that the Podhurst firm and Mr. Epstein's civil counsel cannot resolve. See Exhibit 20, June 15, 2009 Letter from Robert Critton to Kathy Ezell. There is nothing about the exchanges between counsel and the USAO regarding the attorney representative that even begins to approach a "willful" breach by Mr. Epstein. Fifth, you suggest that Mr. Epstein willfully breached the NPA because of the actions of Mr. Tein and Mr. Goldberger, whom you state failed to approve the victim notification letter that contained incorrect information. See Exhibit 1, June 15, 2009 Letter at 2. The incorrect information in the letter was a proposed unilateral modification to the. NPA without prior approval by Mr. Epstein or any member of the defense team. It was only first suggested by your Office in a letter from Mr. Acosta on December 19, 2007. We never agreed to that language. In fact, I personally raised several objections to the suggested modification in my letter to Mr. Acosta, dated December 21, 2007. See Exhibit 21, December 21, 2007 Letter from J. Lefkowitz to U.S. Attorney Acosta. I personally became aware of the inclusion of that language on Wednesday, August 13, 2008 and discussed the matter with you immecili See Exhibits 22 and 23, August 13 and 15, 2008 Letters from Assistant U.S. Attorney to J. Lefkowitz (confirming that the "December modification" is not a part of the NPA). Again, that oversight was not a willful breach or an expression of intent to violate the terms of the Agreement, but instead represented the efforts of counsel, acting in good faith, in an attempt to insure that the letter contained only previously agreed-upon language. EFTA00183771 Ms. June 19, 2009 Page 7 Esq. Sixth, you raise the issue of a delayed withdrawal of a motion to quash. See Exhibit 1, June 15, 2009 Letter at 2-3. There is no motion to quash that still remains pending. The fact that the motion was not withdrawn for some time was merely due to an administrative oversight that has long been remedied, but at no time did it prejudice the Government in any way. Nor did it result from an effort by myself or co-counsel to gain some tactical advantage. Furthermore, no effort was made by any counsel to seek a judicial decision on the pending motion. The motion had no adverse effect on the Government, and the delay in its withdrawal is legally and factually unrelated to the type of material and willful breach that alone could warrant remedies—not least of all because Mr. Epstein has suffered irreversible prejudice by complying with the core provisions of the NPA. Again, he has been imprisoned, he has pled guilty, he is registered, he has paid sums to claimants, all to comply with his obligations under the NPA. Seventh, you state that additional issues arose in November regarding the issuance of work release to Mr. Epstein. Exhibit 1, June 15, 2009 Letter at 3. We have previously reviewed this very matter with you and other individuals in our Office in November 2008. At that time, Mr. Roy Black met with you, , and in Miami to review the work release issue. Among other significant documents shown to you, we presented you with your own email in which you had previously acknowledged that the sheriff had discretion in the matter. See Exhibit 24, July 3, 2008 Email from Assistant U.S. Attorney to Michael Gauger ("If Mr. Epstein is truly eligible for the [work release] program, we have no objection to him being treated like any other similarly situated prisoner . . ."). Furthermore, Mr. Acosta, as already stated, had previously assured me and other counsel that the USAO would not interfere in the ordinary implementation of discretionary administrative decisions by state or county officials. We believe we were under no obligation (in the NPA or anywhere else) to notify you of such discretionary and ordinary state-made decisions, and the fact that your Office confirmed that Mr. Epstein was entitled to the same discretionary administrative decisions as other similarly situated inmates fundamentally undermines any claim that Mr. Epstein breached the NPA in connection with the state and county officials' decision. In any event, after thoroughly reviewing and evaluating Mr. Epstein's application, the Palm Beach County Sheriff's Office properly exercised its discretion, in full compliance with its stated requirements, policies and procedures, to grant Mr. Epstein work release. In addition, after the Sheriff's Office received a multi-page letter from you to Captain Sleeth, which recited the very allegations of errors on Mr. Epstein's work release application to which you refer in your latest letter, each allegation was fully reviewed, and the Sheriff's office found its initial decision appropriate. Eighth, it is both unreasonable and unjustifiable to hold Mr. Epstein responsible—never mind declare him in breach—with regard to Judge McSorley's nunc pro tune order. Exhibit 1, June 15, 2009 Letter at 3. Neither Mr. Epstein nor defense counsel had anything to do with and certainly no prior knowledge of this order. Defense counsel only learned of it after you brought it to our attention. The facts are as follows: the Department of Corrections requires an order EFTA00183772 Ms. Esq. June 19, 2009 Page 8 placing someone on community control before the Department of Corrections will supervise that person. Judge Pucillo, the retired judge that took Mr. Epstein's plea, inadvertently neglected to enter the order placing Mr. Epstein on Community Control 1. When Judge McSorley learned of this, she properly entered the order nunc pro tune to the date of the plea. See Exhibit 25, Order of ConummaySontrol. If you will note on the 3-page court event form, circled at the top of page 2, is M.1" (community control 1). Mr. Epstein was properly placed on community control 1 on the day of his plea to begin only after he completes his jail sentence, and the nunc pro tunc order simply ratifies the oral pronouncement made by the court at the time of the plea. Given that the NPA expressly provides that Mr. Epstein is to serve a sentence of 12 months in "community control consecutive to his two terms in county jail," Exhibit 2, NPA ¶ 2(b), your assertion that the inclusion of community control "directly contradicted the terms of the" NPA is incorrect. Finally, the motion to dismiss that was the topic of discussion on June 12 has been withdrawn. As indicated in the letter I sent you on June 15, we have adopted an internal screening process aimed at eliminating future concerns about anything that reasonably could be considered a breach of the NPA. See Exhibit 26, June 15, 2009 Letter from J. Lefkowitz to Assistant U.S. Attorney . Mr. Epstein has directed all counsel to make certain that no filing could be construed as a breach of the NPA. Furthermore, we proposed a supplemental new process, as stated in my June 15 letter to you, that would have provided you, if you chose, the opportunity to review any such filing before it is submitted to the court so that you may determine whether or not it constitutes a breach. That being said, I wish to reiterate our firm belief that the NPA allowed Mr. Epstein the right to contest litigation whenever an express waiver of all other state, federal or common law claims or the right to bring contested litigation in the future was not sufficiently or correctly pleaded. As you know, we spent several weeks negotiating the language of the NPA with you and Mr. Acosta. We firmly believe that the motion to dismiss that was recently filed (and then promptly withdrawn) did not constitute a violation. First, Paragraph 8 of the NPA clearly limits those who may benefit from any waivers by Mr. Epstein to an "identified individual" who "elects to proceed exclusively under 18 USC 2255, and aerees to waive any other claim for damages. whether pursuant to state, federal, or moron law". Exhibit 2, NPA ¶ 8. More is required of a plaintiff than to simply allege, as did Doe 101, that she "exclusively seeks civil remedies pursuant to 18 USC 2255." Exhibit 27, Amended Complaint ¶ 24. Such an averment satisfies only the exclusivity portion of the twin conditions set forth in the NPA at ¶ 8. The word "and" followed by the requirement of an affirmative waiver of any other claims, federal, state, or common law mandates an additional affirmative act by the plaintiff. No such waiver was filed or even pled. ■ Doe 101 did no more than restate that her complaint in civil action no 9:09-cv-80591-ICAM was only for 2255 damages. She never affirmatively waived all future claims in state or federal court, as required by the NPA. EFTA00183773 Ms. Esq. June 19, 2009 Page 9 Because of this threshold issue, Doe 101 did not, though the attorney representative, satisfy the NPA 18 requirements.' While Mr. Epstein's counsel still believe for these reasons that the motion did not conflict with Mr. Epstein's obligations under the NPA, the motion was in relevant part withdrawn at Mr. Epstein's insistence—further demonstrating that Mr. Epstein has prioritized his desire to avoid contentious additional litigation with the USAO over this matter. In short, our good-faith efforts to raise litigation issues will be more carefully scrutinized in the future as to limit the possibility of being construed by your Office as supporting a notice that Mr. Epstein is in "willful" breach. Issues regarding the scope of the 1 8 waivers are unorthodox and even unprecedented. They result in part from the NPA being executed before you identified the individuals listed, see Exhibit 2, NPA 1 7, and, importantly, given the evolution of the civil litigation, before any joint statement as required by the terms of the NPA was provided to Mr. Josefsberg. Nevertheless, as we stated on June 15, we had intended to provide you with future filings in advance so that we could discuss their interaction with the NPA before rather than after any filing, However given your rejection of that procedure, in a good faith attempt to avoid future conflict, we would nevertheless hope to clarify some of the more ambiguous parts of 18 of the agreement with you as soon as possible. To repeat, it is Mr. Epstein's overriding intent to fulfill his obligations under the NPA -- an intent we as his attorneys will do everything in our power to effectuate. The facts demonstrate that Mr. Epstein has clearly not committed any breach of the NPA, much less a willful breach. As we have reiterated and as has been proven by Mr. Epstein's own actions, Mr. Epstein has no intention of breaching the NPA and has never had any such intention. Although you claim that Mr. Epstein received the benefits of the NPA and the Government only its burdens, I believe the reality is to the contrary. Mr. Epstein has suffered significant and irreversible prejudice: he has been imprisoned in a county jail for almost a year, he has pleaded guilty to a state felony that required sex registration and has, in fact, registered as a sex offender, he accepted civil burdens in his ongoing litigation that may result in millions of dollars of future payments, he has settled cases that could be won, in deference to the NPA and he is paying and That U Doe 101 did not meet the threshold requirements for ib.pimposition of the waiver of liability portion of Paragraph 8 of the NPA is demonstrated by the filings of Doe II in 09-80469-C1V-Marra, a federal lawsuit filed in March, 2009 seeking "exclusively 2255" damages, while ■ Doe II already had a pendin state court suit filed in July of 2008 seeking damages against Epstein for sexual assault and conspiracy. Doe II in her II complaint alleged Epstein could "not contest liability for claims brought exclusively pursuant to 18 §2255". Exhibit 27, Amended Complaint 1 24. In her response to Epstein's Motion to Dismiss in which Epstein challenged the "exclusivity" claim, she argued at page 7 that "Epstein appeared to be violating the agreement . . . [NPA]". However, her attorney withdrew that claim at the June 12, 2009 hearing (and in her subsequent Amended Response) agreeing Utile state filing negated the "exclusivity" of the federal 2255 lawsuit. On the current record, nothing prevents Doe 101 from filing a parallel state court claim. EFTA00183774 Ms. IMM Esq. June 19, 2009 Page 10 will pay hundreds of thousands of dollars in legal fees for his adversaries to pursue him in court. The Government may have endured some delays and administrative costs due to certain of its own its decision — such as to evaluate the Sheriff's exercise of discretionary authority in implementing the Sheriff's own work release program —but neither the Government nor any civil plaintiff has suffered any harm, any prejudice, or any disadvantage as a result of the events you have identified. We signed a contract -- the NPA -- with you in good faith, and in exchange, Mr. Epstein gave consideration that cannot be returned (12 months of his freedom and his reputation). He is legally entitled to its benefits. He committed no "willful breach." As such, we believe it would constitute both a contractual and constitutional error to seek further remedy or to in any way withdraw from the NPA. We will continue to make our best efforts to communicate with you about any potential problems and hope, in the interest of fairness, you will do the same. Sincerely, 9 Itilf1 P Jay . Lefkowitz, P.C. Enclosures EFTA00183775 LEOPOLD-KUVIN A CONSUMER JUSTICE ATTORNEYS July 6, 2009 Assistant U.S. Attorney Southern District of Florida 500 E. Broward Blvd, 7th Floor Ft. Lauderdale, FL 33394 Re: B.B. I. JEFFREY EPSTEIN OUR FILE NO.: 080303 Dear Ms. As you are aware, this firm represents Plaintiff, Jane Doe, a/k/a/ B.B. in the civil litigation against Jeffrey Epstein styled Jeffiey Epstein. case no.: 502008CA037319 MB AB. We are hereby requesting that a copy of the non-prosecution agreement be provided to my office as soon as possible. If there are any questions or concerns regarding the production of this agreement, please contact me at once. V1N STK/mlb 2925 PGA Boulevard Suite 200 Palm Beach Gardens Florida 33410 581.615.1400 fax 561.515.1401 leopoldkuvin.com CRASUIWORTIIINESS • MANAGED CARE ABUSE • CONSUMER CLASS ACTIONS • PERSONAL INJURY • WRONGFUL DEATH EFTA00183776 U.S. Department of Justice United States Attorney Southern District of Florida DELIVERY BY ELECTRONIC MAIL Jay P. Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4675 Re: Jeffrey Epstein Dear Jay: 500 E. Broward Boulevard, 7th Floor R. Lauderdale, FL 33394 (954) 356-7255 July 7, 2009 Thank you for your letters of June 19th. From your letters, it appears that you have misconstrued the Office's past efforts at alleviating Mr. Epstein's unfounded fears of disparate treatment. You seem to have interpreted those efforts as either: (I) an acknowledgement of the validity of those fears, or (2) an acquiescence to the efforts of Mr. Epstein to avoid the full terms of the Non-Prosecution Agreement. So, for example, you write that, in an email to Mr. Acosta, you "confirmed that `there were significant irregularities with the deferred prosecution agreement,'" and that "Mr. Acosta agreed to many of our objections and adopted several of our modifications . . . [and] [t]his fact confirms both the good-faith nature of our objections and that neither Mr. Epstein nor his counsel could be considered to have violated the NPA by raising those objections in the first place." Neither your e-mails nor Mr. Acosta's consistent attempts to maintain a good working relationship with you act as modifications to the NPA or indications that the Office agreed or acquiesced to your positions. While your letter provides great detail regarding all of the objections that you raised' 'In an effort to terminate the endless "battle of letters" that this case has become, 1 have elected not to detail each and every misstatement in your ten-page letter, but please do not mistake that for an agreement with those misstatements. One of those misstatements, however, begs for ii iiil correction. You write: "Indeed, due to a concern we had raised, your Office specifically modified the procedure to select an attorney representative and delegated that task to Judge. Again, the EFTA00183777 JAY P. LEFKOWITZ, ESQ. JULY 7, 2009 PAGE 2 OF 2 throughout the nine-month delay between the signing of the NPA and Mr. Epstein's commencement of performance, you neglect to mention that all of your objections were soundly rejected at each and every level of review, from West Palm Beach, to Miami, to the Child Exploitation and Obscenity Section, and, finally, to the highest levels of review at the Department of Justice. As Senior Associate Deputy Attorney General John Roth stated: Even if we were to substitute our judgment for that of the U.S. Attorney, we believe that federal prosecution of this case is appropriate. Moreover, having reviewed your allegations of prosecutorial misconduct, and the facts underlying them, we see nothing in the conduct of the U.S. Attorney's Office that gives us any reason to alter our opinion. With regard to your proposal to engage in additional discussions regarding the scope of the NPA, we respectfully decline. A great deal of time and effort went into the negotiation and signing of the NPA, and the Agreement speaks for itself. Contrary to your assertion, both the government and the victims have suffered harm and prejudice due to the willful breaches of the NPA by Mr. Epstein. The Office will continue to evaluate its position and will proceed accordingly. Sincerely, Jeffrey H. Sloman Acting United States Attorney By: s/A. A. Villafafia Assistant United States Attorney cc: , Chief, Northern Division Jack Goldberger, Esq. Roy Black, Esq. fact that your Office accommodated our concerns validated their legitimacy ..." As you have been told repeatedly, the decision to delegate that task to a Special Master was made independently and before any of Mr. Epstein's attorneys voiced a concern about that process. Mr. Lefkowitz, you were provided with a list of potential attorney representatives and with information in writing regarding the alleged "conflict of interest," and you made the selection that you later claimed was problematic. Notwithstanding your agreement on the selection of the attorney-representative, our Office, independently, elected to ask an independent third party to make the final decision. EFTA00183778 J. MICHAEL BURMAN. PA! GREGORY W. COLEMAN. PA. ROBERT D. CRITTON. JR.. PA' BERNARD LEBEDEKFit MARK T. LUTTIIM. PA. JEFFREY PEPIN MICHAEL J. PIKE HEATHER MeNAMARA RUDA FLORIDA BOARD ED CIVIL IHIAL LAWYER BURMAN, CRITTON, LUTTIER & COLEMAN LLP A LIMITED LIABILITY PARTNERSHIP July 8, 2009 AL EXPRESS , Esq. Assistant U.S. Attorney Southern District of Florida 500 East Broward Boulevard, 7th Floor Ft. Lauderdale, FL 33394 Re: Doe No. 8'. Jeffrey Epstein Case No. 09-CV-80802-Marra/Johnson Dear Ms. ADELQUI J. BENAVENTE PARALEGAL/ INVESTIGATOR BARBARA M. McKINNA ASHLIE STOKEN-BARING BETTY STOKES PARALEGALS RITA II. BUDNYK OP COUNSEL As you are aware, I am Mr. Epstein's attorney in the civil cases that have been filed against him. While I am certainly familiar with the NPA, it is clear to me that my interpretation of it may differ from yours (USAO) or one of the many plaintiffs' attorneys as it relates to what I can do or assert in defense of Mr. Epstein. As I expressed to Judge Marra, my charge from Mr. Epstein is to take no action that could reasonably be considered to be a violation of the NPA. With that in mind, I am sending our motion to dismiss in Doe #8, along with a copy of her complaint. While I know you expressed to Mr. Lefkowitz that you (USAO) were not inclined to review pleadings and offer advisory opinions, I would ask that you reconsider and review our motion. The Plaintiff Doe No. 8 is not exclusively asserting a claim p ant to 18 8's counsel, Adam Horowitz, who also is counsel for Plaintiffs . §2255, and thus, the terms of the NPA are not implicailln fact, Doe No. Does Nos. 2 through 7 in other civil actions against Mr. Epstein, in the June 12, 2009 hearing before U.S. District Judge Kenneth Marra (at which you were also present) conceded that — The provision (of the NPA) relating to Mr. Epstein being unable to contest liability pertains only to those plaintiffs who have chosen as their sole remedy L•A•W•Y•E•R•S 515 N. FLAGLER DRIVE / SUITE 400 / WEST PALM BEACH, FLORIDA 33401 TELEPHONE (561) 8424820 FAX (561) 8446929 mail@bciclaw.com EFTA00183779 July 8, 2009 Page 2 the federal statute. My clients, Doe 2 through 7, have elected to bring additional causes of action, and it's for that reason we were silent when you said does anyone here find Mr. Epstein to be in breach of the non- prosecution agreement. This provision, as we understand it, it does not relate to our clients. June 12, 2009, Transcript of hearing in IF Doe, et al Epstein, Case No. 08- 80119-Civ-Marra, U.S. District Ct., S.D. IF p. 29, line 19-25, p. 30, line 1. A copy of the relevant portions of the hearing transcript is enclosed. I agree with his comments as they relate to all of his clients, including Doe 8. I believe that nothing in this motion involves any aspect of the NPA. If yo.sagree, would you please contact me as soon as possible. I must file this motion by July 14th as per my extension agreement with Mr. Horowitz. However, I stand ready to have a discussion or meeting with you regarding this motion or any other civil related pleadings or matter that may implicate the NPA. I look forward to your response. RDC/clz cc by pdf: Jack A. Goldberger, Esq. Martin G. Weinberg, Esq. Roy Black, Esq. Jay Lefkowitz, Esq. Cordially y r , Rob D. Critton, Jr. EFTA00183780 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 09-CV-80802-MARRA-JOHNSON DOE NO. 8 1. JEFFREY EPSTEIN, Plaintiff, Defendant. DEFENDANT EPSTEIN'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT Defendant, JEFFREY EPSTEIN ("Epstein"), by and through his attorneys, moves to dismiss Counts I and III of Plaintiffs Complaint as the causes of action are barred by the applicable statute of limitations.' Rule 12(b)(6); Local Gen. Rule 7.1 (S.D. Fla. 2009). In support of dismissal, Defendant states: Plaintiff's Complaint attempts to allege three Counts; the first two counts are pursuant to state common law, and the third count is brought pursuant to 18 §2255. Civil remedy for personal injuries. Count I attempts to allege a cause of action for "Sexual Assault and Battery," Count II for "Intentional Infliction of Emotional Distress;" and Count III for "Coercion and Enticement to Sexual Activity in Violation of 18 §2422," pursuant to 18 §2255. P s Complaint att to assert both state common law claims and a claim pursuant to 18 . §2255. Since Doe 8 did not relinquish her state claims and correspondingly did not file her complaint relying, exclusively, on 18 USC 2255, she is not entitled to the litigation benefits including certain waivers that directly or indirectly accrue to other civil plaintiffs from the defendant's fulfilling obligations resulting from his separate confidential agreement with the United Staes Attorney's Office. Plaintiff's counsel conceded that the provisions of the NPA are not implicated where a plaintiff brings additional causes of acti d does n proceed exclusively under §2255. See June 12, 2009, Hearing Transcript in MI Doe, et all. Epstein, Case No. 08-80119-Civ-Marra, p. 29, line 19-25, p. 30, line 1. EFTA00183781 Doe No. 8'. Epstein Page 2 Pursuant to the allegations on the face of Plaintiff's complaint, Count I, based on Florida's common law of assault and battery, and Count III, brought pursuant to 18 §2255, are barred by the applicable statute of limitations. Although a statute of limitations bar to a claim is an affirmative defense, and a plaintiff is not required to negate an affirmative defense in her complaint, a Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate where, as here, "it is 'apparent from the face of the complaint' that the claim is time-barred." See generally, La Grasta I. First Union Securities, Inc., 358 F.3d 840, 845 -846 (11th Cir. 2004). Count I Is barred by the applicable statute of limitations. As to Count I, which is plead pursuant to state law, it is well settled that this Court is to apply Florida law. Erie R.Co. I. Tompkins, 58 S.Ct. 817 (1938). Pursuant to Florida law, the statute of limitations for assault and battery is four years, §95.11(3)(o)., Fla. Stat. §95.11(3)(o), Fla. Stat., provides — Actions other than for recovery of real property shall be commenced as follows: (3) Within four years.— * (o) An action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort, except as provided in subsections (4), (5), and (7). In her Complaint, Plaintiff alleges in relevant part that — 9. ... In or about 2001, Doe, then approximately 16 years old, fell into Epstein's trap and became one of his victims. According to the allegations of the Complaint, Doe had one encounter with Defendant at his Palm Beach mansion in or about 2001 when was approximately EFTA00183782 Doe No. 8'. Epstein Page 3 16 years old. See Complaint, ¶13, endnote 1 hereto.' Based on the allegations of the Complaint, it has been at least 8 years since the alleged conduct by EPSTEIN, well past the four year statute of limitations, thus requiring dismissal of Count I. Based on the allegations, Plaintiff is now at least 24 years old. Subsections (4) and (5) referenced in §95.11(3)(o) are not applicable. Plaintiff may attempt to argue that subsection (7) of §95.11, Fla. Stat. applies. See endnote 2 hereto for statutory text of subsection (7), including statutes referenced therein.2 However, a review of Plaintiff's allegations in Count I establish that Plaintiff is attempting to assert a cause of action based on the elements of Florida's common law assault and battery to which a four year statute of limitation applies. (Compare Count II, ¶24, wherein Plaintiff tracks the language §39.01(2), Fla. Stat. (2001), pertaining to "abuse."). Pursuant to Florida