Home | Search | Help
OST by Number | OST by Order | OST by Carrier | OST by Subject | OST by Day
OIA by Carrier/Subject | OIA by Day | FAA by Number | FAA by Subject | FAA by Day
Carrier Financials | Charter Office | Answer/Reply Calendar
Updated:
OST-2005-22601 - SAP - Compalint against Embraer
|
Servicios Aereos Profesionales, S.A. OST-2005-22601 - Complaint Against Embraer Aircraft, Embraer Finance Ltd., John Doe and Jane Doe - Fraud, Breach of Contract, Misleading, False Representation and Warranties September 26, 2005 Formal Complaint for Fraud, Breach of Contract... Against Embraer Embraer through its Sale department made false, misleading and fraudulent representations both orally and in writing with respect to services, representations and warranties that it would provide with delivery of Athe aircraft. SAPSA's president refused to date the Acceptance Certificate made a portion of the written sale contract until Embraer Finance Ltd., complied with all of its obligations. Even then, upon continued representation of employees of Embraer Finance Ltd., the buyers made payments amounting to US$1,791,549.50 until the continued violation of all terms of the contract and associated documentation were corrected by the seller, none which was accomplished. Counsel: Luis Irizarry, 787-752-7621
October 3, 2005 Addition of Documents to the Formal Complaint Comes now Sorvicios Aereos Profesionales, S.A. through the undersigned representative filed the following documents which are part of the formal complaint docket number OST-2005-22601. 1. The documents are self explanatory. Counsel: L.A. Irizarry & Associates, Luis Irizarry, 787-752-7621
October 14, 2005 The only regulations alleged to be violated are 14 C.F.R. Section 43.12 and Part 25. These regulations are not "economic regulatory provisions", but rather regulations regarding aviation safety. Therefore, the complaint has been filed with an improper forum and should be dismissed by the DOT. With the exception of the alleged violations of 14 C.F.R. Section 43.12 and Part 25, which are FAA regulations, all allegations of the complaint relate to alleged failures to meet various contractual obligations to SAP. Even if those allegations were true, they would not form the basis for an FAA or DOT enforcement proceeding. The FAA and DOT are not vested with jurisdiction to arbitrate or litigate commercial disputes. Counsel: Condon & Forsyth, Thomas Whalen, 202-289-0500
October 21, 2005 Verification of Embraer Aircraft Services by Flavio Rimoli "Pursuant to Title 18 United States Code Section 1001, I, Flavio Rimoli, in my individual capacity and as the authorized representative of the pleader, have not in any manner knowingly and willfully falsified, concealed or failed to disclose any material fact or made any false, fictitious, or fraudulent statement or knowingly used any documents which contain such statements in connection with the preparation, filing or prosecution of the pleading. I understand that an individual who is found to have violated the provisions of 18 U.S.C. section 1001 shall be fined or imprisoned not more than five years, or both." Counsel: Condon & Forsyth, Thomas Whalen, 202-289-0500
November 17, 2005 Addition of Documents to the Formal Complaint and Response to Embraer Verification Document - Bookmarked That we received a document called "Verification" submitted by Mr. Flavio Rimoli, Director of Finance Limited of Embraer. That we received this document at or about October 31, 2005 but dated October 21, 2005. That SAPSA is submitting as part of its allegations against Embraer an affidavit from Everette C. Mash, who was the Pre-owned Aircraft Sale Manager from Embraer in Fort Lauderdale from September 1997 through July 19, 2003 and he was the salesman of the aircraft involved in this complaint. Counsel: Luis Irizarry & Associates
November 28, 2005 Respondents have good cause to file a motion to strike the submission made by Complainants on November 16, 2005 entitled "Addition of Documents to the Formal Complaint and Response to Embraer Verification Document." The Additional Documents were both improperly and untimely filed. Furthermore, the Additional Documents do not reference a single FAA or DOT regulation but rather contain reams of irrelevant information about a commercial transaction over which the DOT has no jurisdiction. Complainant continues to improperly use DOT enforcement proceedings to advance its contentions in a private contractual dispute with Respondents. Moreover, the Additional Documents include multiple scandalous accusations and inflammatory remarks. See Additional Documents 6 (alleging perjury, false statements and criminal action and requesting investigation by the FBI). Respondents have good cause to move to strike these inflammatory and irrelevant materials which were improperly and untimely filed. Counsel: Condon & Forsyth, Thomas Whalen, 202-289-0500
December 1, 2005 Looks like that Respondents found that our allegations are each and all true. Looks like the respondent’s representative found out that the information provided by its client‘s are not true. The documents provided were and are part of the daily business transactions between Respondent’s and Plaintiffs. Documents that were developed during the business transaction for the purchased of the “Aircraft EMB-120” mentioned in this case. The requested ORDER TO STRIKE from the Respondents is just to prevent the Department Decision Maker to found the truth of our allegations. The Respondents and its representatives are surprised do to the amount of documents confirming our allegations of fraud, Breach of contract, Misleading, False Representation and Warranties, and the remaining over 400 additional documents to be presented to the docket or at trial. Respondents with all truth states ”the additional documents include multiple scandalous accusations” which are all true, and now they know that we do have documentation issue by Respondent in respect to our allegations that they can not denied. In reference to the allegation of filing our documents improper and untimely, respondents like to bring to the attention to the Decision Maker the dates for filing, including respondents filings dates. The delay for our filing has a real caused, the documents are provided from Florida's complainant office. Just after filing the complaint on or about September 26, 2005, respondent filed an answer on October 14, 2005, more than the seven(7) days that respondents is alleging that complainant file the additional documents. The complainant failed to submits its answer in the required time period. Respondents can not bring to the decision maker this allegation when they failed to complied with the time, but not only once but the next document in opposition to our filing was also submitted with more than seven days, Our filing was submitted to the docket on or about November 16, 2005 and in November 28, 2005 respondents file the motion for strike, again more than the seven days they claim that we filed untimely. If this is the case, then, the decision maker should also strike from the record each and all documents, answer, motions of the respondents for untimely filing. Servicios Aereos Profesionales, S. A. respectfully requests that the Department of Transportation take notice of the above, deny the motion for strike documents from respondents or in its alternative strike respondents filing based on untimely filing also. Counsel: Luis Irizarry
December 8, 2005 Application of SAPSA Requesting Authorization to Take Depositions to Witnesses Complainant understands that taking of the deposition is necessary to prevent undue and excessive expense to a party and will not result in undue burden to other parties or in undue delay and the deposition is deemed necessary to perpetuate the testimony of the witness. The testimony of the witnesses are of great importance to this matter. Due to the location of each one they may not be able to be present at trial and their testimony is imperative and important. SAP respectfully requests that the Department of Transportation take notice of the above, deny the motion for strike documents from respondents or in its alternative strike respondents filing based on untimely filing also.
Counsel: L.A. Irizarry & Associates, Luis Irizarry, 787-752-7621
December 8, 2005 Counsel: Luis Irizarry, 787-752-7621
December 21, 2005 The purpose of depositions in a DOT proceeding is to obtain important testimony from persons who may not be able to be present at a hearing to testify. In this case, the DOT has not instituted an enforcement proceeding, let alone scheduled a hearing requiring testimony that may only be obtained by deposition. Even if the DOT were to initiate an enforcement proceeding and schedule a hearing date, it is not known whether any of the witnesses Complainant seeks to depose will be available or whether the DOT will deem their testimony necessary. Therefore, there is no good cause to order depositions in this case. Simply stated, Complainant has not shown - and cannot show - good cause sufficient to demonstrate the need for depositions. Counsel: Condon & Forsyth, Thomas Whalen, 202-289-0500
December 22, 2005 "Pursuant to Title 18 United States Code Section 1001, I, Philip Livingston, in my individual capacity and as the authorized representative of the pleader, have not in any manner knowingly and willfully falsified, concealed or failed to disclose any material fact or made any false, fictitious, or fraudulent statement or knowingly used any documents which contain such statements in connection with the preparation, filing or prosecution of the pleading. I understand that an individual who is found to have violated the provisions of 18 U.S.C. section 1001 shall be fined or imprisoned not more than five years, or both." Counsel: Condon & Forsyth, Thomas Whalen, 202-289-0500
December 27, 2005 Motion in Response to Respondent's Opposition to Complainant's Application Requesting Authorization to Take Depositions of Witnesses | Word Counsel: Luis Irizarry, 787-752-7621
December 28, 2005 In the last page of the document submitted, the date shown should be 27th day of December 2005. By an error the date read 24th day of November, 2005. This was an honest mistake. Counsel: Luis Irizarry, 787-752-7621
January 17, 2006 Respondents Embraer Aircraft Customer Services, Inc., Embraer Finance Ltd, and Marcelo Botelho Rodrigues, by and through their attorneys, Condon & Forsyth LLP, and pursuant to 14 C.F.R. Section 302.406(c)(2), respectfully request that the Deputy General Counsel dismiss the Complaint. The Complaint was filed on September 27, 2005. Respondents filed their Answer on October 14, 2005, approximately three months ago. The Department of Transportation has neither instituted an enforcement action nor dismissed the Complaint. Section 302.406(c)(2) allows a respondent to address a motion to dismiss to the Deputy General Counsel whenever the Assistant General Counsel has not acted within a reasonable time. Respondents respectfully submit that the failure to act within three months is a failure to act in a reasonable period of time. If the Deputy General Counsel disagrees with that position, Respondents request that this motion be treated as a motion for expedited treatment under 14 C.F.R. Section 302.11(e) (allowing any interested person to request by motion expedition of any proceeding. Action by the Deputy General Counsel (or expeditious action by the Assistant General Counsel) to dismiss the Complaint is in the public interest because Complainant continues to use this forum to harass and attack Respondents. The vast majority of the Complaint consists of rambling accusations of fraud and deceit on the part of Embraer relating to a commercial dispute between Embraer and Complainant over which the DOT has no jurisdiction or concern. The remainder of the Complaint consists of vague and unsubstantiated allegations of a violation of FAA regulations. See Answer, OST-2005-22601. After filing the Complaint, Complainant repeatedly filed pleadings that are not permitted by the rules, including: (1) Additional Information, OST-2005-22601; (2) Application Requesting Authorization to take Depositions to Witnesses, OST-2005-22601; and (3) Addition of Documents, OST-2005-22601. All of these filings were procedurally improper as described in Respondents' Motion to Strike, OST-2005-22601. Furthermore, Complainant apparently believes that the DOT complaint procedures are intended to be a vehicle to publicize its grievances regarding a private commercial dispute. This conclusion is reinforced by Complainant's recent conduct. It has now come to the attention of Respondents that "Legal Notices" of this proceeding were published in the Wall Street Journal on January 4 and in the Wall Street Journal Asian and European Editions on January 10. Respondents respectfully request that the Deputy General Counsel grant the Motion to Dismiss with prejudice, seal the docket and apply any sanction to Complainant that is deemed appropriate. Counsel: Condon & Forsyth, Philip Livingston, 202-289-0500
January 22, 2006 Motion in Response to Motion to Dismiss Complainant respectfully request that the Deputy General Counsel deny the Motion to Dismiss from respondent, maintain the docket open to the public, issue and order instituting the proceedings, allow complainant to take depositions to witness in accordance with our motion requesting authorization to take depositions. Counsel: Luis Irizarry
February 13, 2006 The documents submitted herein is an Order to Show Cause from the Supreme Court of the State of New York in a case filed by Embraer, in our case the defendant. The document is self explanatory. Again, Embraer was trying to obtain a summary judgment against SAP. Defendant Embraer using unethical tactics and misrepresentations to the Supreme Court of the State of New York obtained a summary judgment which now will be vacate and other remedies that the Honorable Supreme Court will issue against Embraer. A date for a hearing has been scheduled for February 21, 2006. Counsel: Luis Irizarry
Order 2006-2-10 Issued and Served February 16, 2006 As a preliminary matter, we agree with Embraer that an enforcement proceeding before the Office of the Secretary of Transportation is an inappropriate forum to resolve the issues raised by SAPSA’s Complaint. As Respondents argue, third-party complaints filed with the Assistant General Counsel for Aviation Enforcement and Proceedings pursuant to 14 CFR 302.404(a) are for violations of the economic regulatory provisions of the Statute or related rules, regulations, orders or other requirements concerning the sale or provision of air transportation. Complaints relating to violations of the Statute or regulations or orders concerning the aviation safety duties and powers administered by the Administrator are to be filed with him or her under 14 CFR 13.5(a). Furthermore, even if the Complaint was properly filed with the Secretary of Transportation, and it was not, it should be dismissed because we believe that the Department’s enforcement authority and resources should be used to protect the public interest and not merely to resolve private grievances. Here the public was not harmed by Embraer’s actions. The gravamen of SAPSA’s Complaint, which it admits, is a commercial dispute between SAPSA and the Respondents over the sale of an aircraft. We will not launch or pursue an enforcement action solely to vindicate a private contract right. By: Samuel Podberesky
January 10, 2007 Motion for Confidential Treatment - Bookmarked Respondents respectfully request that the Department grant the Motion and treat the above-listed documents contained in OST-2005-22601-5, "Addition of Documents to the Formal Complaint and Response to Embraer Verification Document," as confidential and remove them from the public record. Respondents also request that Exhibit A to this Motion be treated as confidential and not placed in the public docket. Counsel: Eckert Seamans, Thomas Whalen, 202-659-6625 and Condon & Forsyth, Stephen Stegich, 212-894-6700
January 24, 2007 Embraer Attorney's looks like they do not read the documents and order issued by the Department or in the other hand they may want to re‑open this matter, for which case, Servicios will have no objection. Counsel: Luis Irizarry
February 6, 2007 Response of Embraer to Informative Motion The Complainant's representative in its Motion accuses Respondents' attorneys of filing "nonsense motions" with the Department. He also asserts that Respondents' attorneys "do not read the documents and order [sic] issued by the Department," and "should settle the case they have in the Supreme Court of New York." The Complainant's representative has previously been admonished by the Department for unprofessional conduct in this proceeding in contravention of the professional decorum requirement set forth in 14 CFR Part 300. Respondents respectfully contend that Complainant's suggestions in its current motion of professional incompetence and misconduct on the part of Respondents' attorneys breaches the Department's standard of professional conduct. Respondents respectfully request that Complainant's representative be reminded of his obligation in this regard in submitting any additional filings in this proceeding. Complainant's representative has yet to understand the Department's ruling that a DOT proceeding is not a forum for resolving commercial disputes, nor does it comprise a vehicle to intimidate. Respondents respectfully request that the Department deny the Complainant's Informative Motion, and grant the Respondents' Motion for Confidential Treatment of Portions of Filing OST-2005-22601. Counsel: Eckert Seamans, Thomas Whalen, 202-659-6625
February 6, 2007 Motion to Strike Anonymous Comment Respondents Embraer Aircraft Customer Services, Inc., Embraer Finance Ltd., and Marcelo Boteiho Rodrigues, by and through their attorneys, Condon & Forsyth, LLC, and Eckert Seamans Cherin & Mellott, LLC, respectfully request for the reasons set forth below that the Department of Transportation strike the Comment filed by an anonymous individual with the Department's Docket Management System on January 10, 2007. The Comment consists of a one-paragraph description of a court decision which Anonymous contends bars Respondents' Motion for Confidential Treatment of Portions of Filing OST-2005-22601 in this proceeding. Anonymous, however, has no standing to file a reply to Respondents' Motion for Confidential Treatment. There is no indication in the record or otherwise that Anonymous qualifies as a party to this proceeding. Additionally, the Department in its order dismissing the complaint in this proceeding specifically emphasized that this matter comprises a private commercial dispute between the Complainant and Respondents. In line with this perspective, the docket in this matter should not be open to filings and comments submitted by the general public. Counsel: Eckert Seamans, Thomas Whalen, 202-659-6625
February 8, 2007 Motion of SAP in Opposition to Motion to Strike That Complainant herein not only opposed to Embraer Motion to strike but made part of this motion the Anonymous comment and make it part of this motion. That Respondent should know that this is a public docket, and public files. The public which is the one who pays for this services, have all the rights in the world to make their comments, review all the files and know what is going on in this dockets. Embraer, with its Motion to Strike is trying to prevent that the 'PUBLIC' to exercises its civil rights of express their self. This is a clear violation of a Civil and Constitutional right of a Citizen in the United States of America by Embraer and preventing them to exercise their rights. There is no legal reason at this time for Embraer's attorneys to present this or any other motion when the Department dismissed this matter more than a year ago. Counsel: Luis Irizarry
February 8, 2007 That Respondents' should remember that who asked for and filed a 'Motion to Dismiss' was the Respondents on or about January 17, 2006. They were the ones that requested the dismissed of this case. That the documents presented and made part of this case and this docket are no in any manner commercially sensitive information, as a matter of fact, it is in the public interest and in fact to the safety in air transportation and the public required that all this information be available to the public. At no time we neither expect nor plan to resolve commercial disputes in this forum, as per the contrary, we will resolve the commercial dispute in the proper forum, and in any manner we are trying to intimidate nor the neither respondent, nor respondent attorneys, nor anyone. Counsel: Luis Irizarry
December 4, 2007 Embraer Exhibit A (Motion for Confidential Treatment) - Redacted Version Documents and Basis for Confidentiality Request. Counsel: Eckert Seamans, Thomas Whalen, 202-659-6625
Order 2007-12-2 Issued December 4, 2007 | Served December 7, 2007 Order Granting Embraer's Confidentiality | Word In September 2005, Servicios Aereos Professionales, S.A., a Dominican Republic foreign charter airline, filed a formal enforcement complaint before the Department against Embraer Aircraft, an aircraft manufacturer, and others (Embraer) alleging fraud and breach of contract in connection with the sale of an aircraft. SAPSA alleged that Embraer did not provide required logbooks, certificates, inspections, records, and equipment in connection with the aircraft sale. Embraer answered the complaint and admitted that there was an aircraft sale to SAPSA, but denied the allegations of any wrongdoing in the complaint. Embraer further alleged that the action by SAPSA was part of a campaign of harassment to bully it into settling a commercial dispute with the airline. By Order 2006-2-10, under delegated authority, the Assistant General Counsel for Aviation Enforcement and Proceedings dismissed the SAPSA complaint. The Enforcement Office determined that the issues raised by SAPSA were not appropriately addressed in an enforcement proceeding before the Office of the Secretary of Transportation, which is charged with economic regulation of air transportation. The Enforcement Office allowed that even if the SAPSA complaint, a commercial dispute over an aircraft sale, was somehow properly before the OST, it would nevertheless be dismissed as one that involved a claimed vindication of a private contract right and thus was not a matter in which the Department’s enforcement authority and resources to protect the public interest should be used. The Enforcement Office found it was not in the public interest for it to attempt to resolve a dispute of that nature, ongoing for over five years, where an adequate remedy was available elsewhere. In January 2007, Embraer filed a motion for confidential treatment of portions of the materials that SAPSA had filed in support of its formal complaint, alleging them to be internal company documents. Embraer claims that the materials are sensitive and were wrongly supplied to SAPSA by its former aircraft sales manager, Mr. Everette C. Mash. Embraer alleges that Mr. Mash, who signed a confidentiality agreement pledging not to disclose the materials to any outside party and moreover to return them to the company upon his termination, nevertheless disclosed them to SAPSA. Embraer makes a detailed argument that 13 separate groups of documents are confidential in nature, that it did not authorize any public release of such documents, and that they should be removed from the docket. SAPSA argues against any confidentiality claim, submitting that the materials have long been public, and that once public such documents cannot be retroactively protected. We have reviewed Embraer’s request for confidentiality and will grant it. By: Andrew Steinberg |
|||