Dotcom Arguments Exasperate Supreme Court Justices

kim dotcom

The Supreme Court hearing in respect of Kim Dotcom and his co-accused who face extradition to the United States has seen Dotcom’s former marketing manager Finn Batato finally appoint a lawyer to represent him.

But the lengthy last ditch attempt by the Dotcom team to avoid extradition to the US also saw the Supreme Court judges, including new Chief Justice Winkelmann and newly appointed Justice Joe Williams express their exasperation at the lawyers’ lengthy arguments.

Former marketing manager for Megaupload Finn Batato and his wife Anastasia at court for an extradition hearing in Auckland in 2015.

Photo: AFP / Michael Bradley

Batato was arrested along with Dotcom and Bram van der Kolk and Mathias Ortmann, in January 2012.

The United States Department of Justice wants to extradite all four men to face criminal charges related to the Megaupload website.

Unlike his three co-accused, Mr Batato did not hold shares in the company.

Although his three co-accused have been represented throughout the various hearings, Batato has not, choosing to represent himself but has now appointed Auckland barrister Anthony Rogers to represent him in a hearing that has reportedly tested the patience of the Supreme Court judges.

“My concern is to focus on the position of Mr Batato, whose position I suspect has not been properly addressed by the courts below,” his lawyer told the Supreme Court, saying that his client had been unfairly swept up in the allegations. Balato had merely acted as an employee in the enterprise, he said.

The men have already lost appeals against that finding in the High Court and the Court of Appeal and are appealing to the Supreme Court this week

Rogers drew attention to a section of the Crimes Act defining who counts as a party to a crime and said the courts, including the Court of Appeal, had failed to consider Batato’s position in relation to that part of the law.

Last week, Canterbury University law professor and extradition law researcher Neil Boister told RNZ he thought it was unlikely the Supreme Court would consider each man’s eligibility for extradition separately.

It was more likely that Batato, if extradited, might be offered some kind of plea deal once he arrived in the US instead.

Dotcom lawyers try court’s patience

Lengthy arguments from Kim Dotcom’s team of lawyers stretched the patience of the five Supreme Court justices to breaking point on Wednesday afternoon.

Bram Van Der Kolk heads into the Supreme Court hearing.

Bram Van Der Kolk  Photo: RNZ / Dom Thomas

At the beginning of the hearing on Monday, Dotcom’s lawyer Ron Mansfield and the lawyer for two of his co-accused, Grant Illingworth, (below) had agreed to limit their oral arguments to a day each.

The Illingworth’s arguments ran for all of Monday and well into Tuesday afternoon, and even with a slightly earlier start on Wednesday, Ron Mansfield also ran over time, creating some exasperation from the Judges.

After promising to finish by 3pm on Wednesday, Mr Mansfield was still on his feet at 3.15pm, prompting Chief Justice Helen Winkelmann to intervene.

“I’m asking you when you think you’ll be finished? Because we said an hour [after lunch].”

She was unimpressed when Mr Mansfield said he would be another 15 minutes: “Well, that will be an hour and a half.”

“At 3.30pm you’re going to be asked to sit down, Mr Mansfield,” Justice Winkelmann said. “I don’t want to be unduly harsh but this has to end some time.”

Justice Joe Williams also expressed impatience, asking Mansfield to provide a written list of references rather than insisting on reading them out to the court.

As Mansfield concluded his submissions, Justice Williams jokingly informed him he still had one minute left.

Unable to let the opportunity slip by, Mr Mansfield stayed at the lectern to labour one final point, which turned out to be an argument that the court had already refused to hear him on.

He concluded his submissions at 3.33pm.


Real Estate Executives Remain Bullish as Tax Reform Measures Take Shape, Akerman Reports

Akerman

(June 11, 2019) – As the U.S. commercial real estate sector prepares in the downswing of an extended economic expansion, executives and investors continue to be highly optimistic about the market and the overall U.S. economy, according to an annual survey by top 100 U.S. law firm Akerman LLP. The tenth annual Akerman U.S. Real Estate Sector Report – completed by more than 200 C-suite and senior executives – shows that developments such as federal tax reform and evolving technology have taken root and spurred growth, even amid mounting uncertainty and the likelihood of a market correction.

Coming off a record-high outlook in the 2018 survey, when 68 percent of respondents expressed more optimism for the market in comparison to the prior year, a remarkable 70 percent this year say they are more bullish about 2019 market activity than 2018. Nearly half (46 percent) say the continued improvement of the U.S. economy is the primary driver of this increased confidence.

Yet, the survey also shows sentiments of softening with a market slowdown looming. A third of respondents (33 percent) say interest rate uncertainty is their primary concern, followed by uncertainty in global economic conditions (23 percent) and uncertainty of federal government policy in the U.S. (22 percent). With the prospect of an interest rate reduction by the Federal Reserve, concerns about rising interest rates are abated for the time being and certain subsectors like industrial and multifamily are outperforming in major markets like Chicago, Houston, Los Angeles, Miami, and New York.

“While the U.S. real estate market has remained resilient since the economic downturn, the headwinds we expected coming into 2019 are starting to come to fruition,” said Eric Rapkin, chair of Akerman’s national Real Estate Practice Group. “Nonetheless, capital is still chasing deals, especially in gateway markets, and we’re beginning to see executives capitalize on tax advantages and deferral strategies such as Opportunity Zones.”

Additional trends identified in Akerman’s 2019 survey include:

  • Tax Reform and Opportunity Zones Generate Activity: With the commercial real estate sector a key beneficiary of the Tax Cuts and Jobs Act passed in December 2017, it’s no surprise that 46 percent of respondents rank tax reform among the top three trends they expect to have a significant impact on real estate development over the next three years. On the heels of the release of the U.S. Treasury Department’s second round of proposed regulations, developers and investors are expressing more interest in Opportunity Zones – areas designated for federal tax breaks. As further clarity is being brought to the program, nearly a quarter of respondents place Opportunity Zones among the top three areas they believe will fund the most commercial real estate debt and/or equity in 2019.
  • Digital Transformation and Disruption: Executives responding to the survey view technological advances as having the most influence on real estate development, with 48 percent selecting it among the top three trends that will have a significant impact over the next three years. Incorporating the latest technology and design attributes has become critical across all sectors of the real estate market, including luring and retaining tenants in office buildings, attracting millennials to residential properties and facilitating the use of automation and robotics for the industrial sector.
  • Aging Population Drives New Areas of Growth: The graying of America closely follows technology and tax reform as the trend expected to most impact real estate development, with 45 percent of respondents designating it among their top three choices. As seniors account for more of the population, new types of healthcare facilities are experiencing growth, including microhospitals, ambulatory surgery centers and other medical uses within traditional retail locations.
  • Housing Still Dominates: Survey respondents continue to express confidence in multifamily with 67 percent placing it among the top two sectors they expect to be the most active for real estate transactions in 2019, followed by single-family residential (50 percent). These results echo last year’s survey where 63 percent of respondents predicted the multifamily sector would be the first or second most active in 2018. Within multifamily, 2019 respondents rank apartment development as likely to be most active this year, followed by senior living facilities.
  • China, Canada and Latin America Lead the Way: Uncertainties abound in an unbalanced global economy – driven by such developments as the trade war with China, ongoing Brexit gridlock and the upcoming U.S. presidential election. Nonetheless, respondents expect cross-border investment across a range of areas. Executives predict China to be the region that will invest most heavily in the U.S. hospitality, industrial, office and retail sectors. However, Canada is expected to contribute most to foreign investment in the predicted hot markets of multifamily and single family residential. Within Latin America, respondents expect the greatest increase in investment in U.S. real estate to come from Mexico (38 percent), followed by Brazil (30 percent).
  • Private Equity and Banks Lead Among Funding Vehicles: For the fourth year in a row, real estate executives expect most funding to come from private equity funds and institutional lenders. In reflecting on the top three areas they expect to fund the most commercial real estate debt and/or equity in 2019, 53 percent chose private equity and 51 percent selected banks. Additional funding sources selected by respondents include foreign investors (45 percent), insurance companies (28 percent) and real estate investment trusts (24 percent).

For more information and to download the complete report, please click here.

About the Akerman Report

The Akerman U.S. Real Estate Sector Report tracks executive sentiment on the state of the U.S. commercial real estate market and the outlook for the industry’s future. For ten years, Akerman has captured the perspectives of industry executives to provide a view from the C-suite, highlighting the complexity of key market conditions including capital availability, investment and development trends and drivers of growth. A total of 209 Akerman clients and other top real estate executives across the U.S. – including owners, developers, lenders and investors – completed the survey during the first half of 2019.

About Akerman

Akerman LLP is a top 100 U.S. law firm recognized among the most forward thinking firms in the industry by Financial Times. Its more than 700 lawyers and business professionals collaborate with the world’s most successful enterprises and entrepreneurs to navigate change, seize opportunities, and help drive innovation and growth. Akerman is known for its results in middle market M&A and complex disputes, and for helping clients achieve their most important business objectives in the financial services, real estate and other dynamic sectors across the United States and Latin America.

Akerman’s Real Estate Practice Group offers comprehensive and fully integrated project counsel services to clients across the United States and Latin America. With substantial industry experience and local market insights, the firm represents clients in complex real estate transactions and financings, development and redevelopment projects, public-private initiatives and litigation. Recognized as a national tier one law firm for real estate law by U.S. News – Best Lawyers, the group advises investors, developers, builders, lenders, retailers, owners and corporate end users, often in high profile matters.

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