US Court of Appeals Second Circuit Case 21-1575, Doc 6, Pre-Argument Statement on Appeal 07-12-2021

ong>Caseong> ong>21ong>-ong>1575ong>, ong>Docong>ument 6, 07/12/20ong>21ong>, 3136178, Page8 ong>ofong> 119 The Lower ong>Courtong> stated (at p. 26) that: “The Healthcare Employers were original parties to all eighteen Removed Actions, and the Class Representatives knew or should have known the rules for service via e-filing on existing parties under New York law.” A review ong>ofong> the State ong>Courtong> dockets show that the Healthcare Employer defendants had not been served at the time the actions were removed. A named defendant in a lawsuit does not become a party (and would not be subject to e-service) until that defendant was served with process and/or appeared in the case. A review ong>ofong> the State ong>Courtong> dockets ong>ofong> the eighteen Removed Actions show that the Healthcare Employer defendants had not appeared in any ong>ofong> the eighteen cases and they had not been served with process. The Lower ong>Courtong> ruled that the Healthcare Employers appeared in the Nassau County case 609877/2019 by virtue ong>ofong> being the Plaintiffs. There was no intention to violate the rules governing removal and it is respectfully submitted that the removal was ethically and properly done. MR. KERNAN’S REPRESENTATION OF THE EMPLOYEE CLASS The Lower ong>Courtong> stated that Mr. Kernan was attempting “to represent parties involved in litigation related to the business ong>ofong> insurance for the benefit ong>ofong> Oriska in both the Removed and Federal Actions” in violation ong>ofong> the terms ong>ofong> his “conviction and the orders ong>ofong> both the Northern District ong>ofong> New York and the NYSDFS.” Id. at 24. The Lower ong>Courtong> cites the indictment ong>ofong> Mr. Kernan at 08-cr-61 that “Kernan was charged with a fifteen-count federal indictment in the Northern District ong>ofong> New York with falsely representing that Oriska Insurance Company was authorized to (1) issue high deductible workers’ compensation.” The Lower ong>Courtong> incorrectly relied upon dismissed counts against Mr. Kernan regarding the Percy Program and its deductible provisions, Dkt 51 ong>ofong> 2 nd ong>Circuitong> Appeal 19-1256, NDNY ong>Caseong> 19-cv-00038. Again, these counts were dismissed. 6

ong>Caseong> ong>21ong>-ong>1575ong>, ong>Docong>ument 6, 07/12/20ong>21ong>, 3136178, Page9 ong>ofong> 119 reference the Judgment ong>ofong> Conviction where all ong>ofong> the counts relating to high deductible workers compensation, Counts 1, 2-6, 7-11, 14-15, were dismissed, Dkt. 103. The Lower ong>Courtong> references the March 20, 2009 Kernan plea transcript at N.D.N.Y. 08-cr-61 (“U.S. v. Kernan”), Mar. 20, 2009 Minute Entry, Dkt. 81) but fails to recognize that the transcript reflects Mr. Kernan’s request and permission granted to be involved in matters ong>ofong> the Percy Program as long as these retrospective matters did not involve writing ong>ofong> risk or reinsuring risk defined as the business ong>ofong> insurance at 18 U.S.C. 1033 (f). See United States v. Kernan, No. 5:08-CR-61(FJS), 2009 WL 667432, at *1 (N.D.N.Y. Mar. 11, 2009). Mr. Kernan placed his ownership ong>ofong> shares in a holding company ong>ofong> an insurance company into a blind Voting Trust, reference Mar. 20, 2009 Minute Entry, The Lower ong>Courtong> references that at the time, Mr. Kernan was the owner and president ong>ofong> Oriska’s subsidiary, Oriska Insurance Company, located in Oriskany, New York, but fails to recognize that the DFS refused to approve the Voting Trust and used that failure to approve as grounds ong>ofong> untrustworthiness that Mr. Kernan had not relinquished control, because the required approval under Article 15 ong>ofong> the insurance Law was not granted by the DFS. The Lower ong>Courtong> references the record in NDNY ong>Caseong> 18-cv-1030 for the followup events ong>ofong> the DFS applying NYS Insurance Law 1506 to determine that Mr. Kernan was untrustworthy. The ong>Secondong> Amended Petition to determine whether the DFS order ong>ofong> February 4, 2013 was arbitrary and capricious is currently on motion for appeal to the New York State ong>Courtong> ong>ofong> ong>Appealsong>. It is submitted that Mr. Kernan’s representation ong>ofong> the class ong>ofong> employees in not in violation ong>ofong> any laws or orders. The real parties in interest are the employees represented by Mr. Kernan and the ERISA trust. This follows the precedent in the 2nd ong>Circuitong> decision Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270. 7