Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Oct 08 6:04 AM-18CV007094

IN THE COMMON PLEAS COURT

FRANKLIN COUNTY, OHIO

State ex rel. :
OHIO ATTORNEY GENERAL :
:
Plaintiff : Case No. 18CV007094
:
v. : Judge Cocroft
:
WILLIAM LAGER, et al. :
:
Defendants :

PLAINTIFF THE OHIO ATTORNEY GENERAL’S

MEMORANDUM IN OPPOSITION TO INTERVENTION

The Ohio Attorney General (“the State”) opposes the September 24, 2018 Motion of

School Districts to Intervene (“Motion”) filed by the Logan-Hocking and Dayton City School

Districts (“the Districts”). The Motion should be denied because:

- The Districts lack standing to prosecute the claims they seek to assert. Those
claims are owned by another public body, and nothing authorizes the Districts
to press claims on behalf of that body.

- The Districts cannot intervene under Civ. R. 24(A) because their interest is
substantively remote from the claims pressed here. It is also contingent because
the Districts are only two of many creditors who might receive a share in the
proceeds of those claims. Further, the Districts have not overcome the
presumption that the State will adequately represent their interests.

- The Districts cannot intervene under Civ. R. 24(B) because there is no

commonality between any claim they can assert and the State’s claims, because
their intervention would complicate these proceedings, and because they would
add little value here.

The State does not oppose and would welcome the Districts being given amici status in lieu of

intervention.

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BACKGROUND

This case arises out of proceedings to liquidate the Electronic Classroom of Tomorrow

(“ECOT”). ECOT was a community school, Ohio’s name for a charter school, organized under

R.C. Chapter 3314. Administrative proceedings determined that it was overpaid $79,646,748

because it could not meet R.C. 3314.08’s requirement that it document the hours of instruction it

billed the Ohio Department of Education (“ODE”) for. The resulting debt rendered ECOT

insolvent and a special master was appointed to preserve/liquidate ECOT’s assets in case No.

18CV00324 before this Court (“the Liquidation Proceeding”). See Electronic Classroom of

Tomorrow v. Ohio Dept. of Edn., 2018-Ohio-3126 (Ohio S. Ct.); Complaint for Recovery of Public

Funds, filed Aug. 21, 2018 (“Complaint”), ¶¶ 33-44.

One category of assets consists of claims ECOT has against various individuals and entities

involved in its operation. The Court ordered that those claims be assigned to the Ohio Attorney

General for prosecution, with any proceeds to be distributed among ECOT’s creditors under the

Court’s direction. Complaint, ¶ 45 and Exhibit 3 thereto.

The State brought this case to press some of those claims on behalf of ECOT’s estate. It

asserts four claims:

- Violations of the fiduciary duty of loyalty by William Lager, ECOT’s founder

and an officer/agent of ECOT.

- That ECOT’s contracts with IQ Innovations, LLC (“IQ”) be declared void

under R.C. 2921.42 because Lager had an unlawful interest in the contracts, and
that all funds ECOT paid to IQ pursuant to those contracts be returned.

- That Lager, Altair Learning Management I, LLC (“Altair”), and various

officers of ECOT be held strictly liable for the funds improperly paid to IQ and
for the funds ECOT improperly received from ODE as a result of its
overpayments.

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- Claims against Lager under the Corrupt Practices Act for at least the amount
ECOT paid IQ pursuant to the contracts violating R.C. 2921.42, subject to
trebling if the State proves this claim by clear and convincing evidence.

None of the Defendants has yet moved or pled in response to the Complaint.

The Districts have sought to intervene under both Civ. R. 24(A) and (B). The Intervenors’

Complaint for Recovery of Public Funds attached to the Motion (“Intervening Complaint”) is an

almost verbatim restatement of the State’s Complaint. It adds no theories, but instead seeks three

additional types of relief:

- It seeks to recover compensation ECOT supposedly paid Lager as the relief for
the fiduciary duty claim. The State does not seek that relief at this juncture
because it has so far found no evidence that ECOT directly compensated Lager
(as opposed to corporations Lager has interests in). The State instead seeks the
profits he realized from those corporations’ contracts with ECOT.

- It seeks to expand the scope of the R.C. 2921.42 and Corrupt Practices Act
claims by applying R.C. 2921.42 retroactively in ways barred by R.C. 1.48.

- It asserts Corrupt Practices Act claims against various officers of ECOT. The
State does not assert claims against those officers because it has not yet found
evidence that those officers had an interest in the IQ contracts, an element of
the predicate offense triggering the Corrupt Practices Act claim. The State
instead seeks relief against Lager because he had the unlawful interest in the IQ
contracts.

The State is not opposed to seeking additional relief if discovery establishes factual bases for it,

but discovery is just getting underway. It will amend its complaint if discovery reveals factual

bases for additional relief.

ARGUMENT

A. The Districts lack standing to intervene because the claims they seek to prosecute
belong to a different public body.

Standing is a threshold requirement for an entity seeking to intervene, regardless of whether

it seeks intervention of right under Civ. R. 24(A) or permissive intervention under Civ. R. 24(B).

Courts deny intervention if a would-be intervenor lacks standing. D & R Properties v. Twp. Of

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Burton, 2004-Ohio-6939 (11th Dist.)(Civ. R. 24(A)); Clemente v. Clemente, 2008-Ohio-6773

(11th Dist.)(Civ. R. 24(A) and (B)).

One must be a real party in interest to have standing. “Under Ohio law, if a claim is asserted

by one who is not the real party in interest, then the party lacks standing to prosecute the action.”

Myers v. Evergreen Land Dev. Ltd., 2008-Ohio-1062 (7th Dist.), ¶ 13. As the Tenth District has

put it, if “a party to an action is not the real party in interest, the party lacks standing to prosecute

the action.” Grothaus v. Warner, 2008-Ohio-5563 (10th Dist.), ¶ 13.

To be a party in interest one must own the claim at issue. “It has been long recognized at

common law that the real party in interest was the person who, by substantive law, possessed the

right to be enforced.” Ohio Cent. R.R. Sys. v. Mason Law Firm Co., LPA, 182 Ohio App. 3d 814,

2009-Ohio-3238 (10th Dist.), ¶ 34.

The Districts cannot pass that test. The claims they seek to prosecute lie with ECOT and

are being prosecuted on behalf of ECOT by the State pursuant to Judge Holbrook’s order. ECOT

is a political subdivision in its own right. State ex rel. Electronic Classroom of Tomorrow v.

Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, ¶ 27. ECOT is also a

distinct “public school, independent of any school district” that “may sue and be sued” on its own.

R.C. 3314.01(B). ECOT was owed the fiduciary duty that Lager violated. ECOT was injured by

the payments on the contracts that violated R.C. 2921.42. ECOT was the injured person for

purposes of the Corrupt Practices Act. The funds underlying the strict liability claims were funds

entrusted to ECOT. Any recovery on those claims will go to ECOT, albeit on behalf of its creditors.

The Districts are therefore not real parties in interest to those claims and hence lack standing.

The Attorney General does however have standing to press those claims on behalf of ECOT

by virtue of their assignment to the Attorney General, the Attorney General’s common law

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authority, and the Auditor’s R.C. 117.42 request. Complaint, ¶ 20 and exhibits 2 and 3 thereto. See

Sun Bldg. Ltd. Partnership v. Value Learning & Teaching Academy, 2018 Ohio Misc. LEXIS 2

(Hamilton C.P.), ¶¶ 19-24. The Districts do not challenge that standing.

The Districts’ lack of standing is not cured by the statutes the Districts cite as giving them

authority to press those claims, R.C. 3313.17 and 3313.46. Intervenors’ Complaint, p. 2. R.C.

3313.17 does give boards of education authority to sue and be sued, but it nowhere authorizes a

board to sue on claims owned by a different public body, what they seek to do here. R.C. 3313.46

is even farther afield; it deals with contracting procedures.

Nor is standing provided by the Districts’ assertion that they are acting to protect the

interests of their residents. “A generalized affirmative duty to provide for the safety and welfare

of [a public body’s] citizens alone is not sufficient to warrant intervention[.]” D & R Properties v.

Twp. of Burton, 2004-Ohio-6939 (11th Dist.), ¶ 22. Accord, City of Macedonia v. Twinsburg Twp.

Bd. of Zoning Appeals, 2006-Ohio-2688 (9th Dist.), ¶ 7.

B. The Districts have not proven grounds for intervention under Civ. R. 24(A).

The standards controlling intervention under Civ. R. 24(A) are well settled. The movant

must show, among other things, “that he claims an interest relating to the property or transaction

which is the subject of the action… and [] that the existing parties do not adequately represent his

interest.” Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d 827, 831 (10th Dist.1990). “Failure to

meet any one of the elements … will result in denial of the right to intervene.” Id. The Districts

cannot prove either of those elements.

1. The Districts have only remote and contingent interests in ECOT’s claims.
That is insufficient to support intervention.

Civ. R. 24(A)(1) tracks Fed. R. Civ. P. 24 in requiring a putative intervenor to have “an

interest relating to the property or transaction that is the subject of the action[.]” Ohio courts follow

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federal precedent holding that “an interest which is remote or contingent is insufficient to support

intervention.” Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d 827, 832 (10th

Dist.1990)(emphasis added); United States v. Carrols Dev. Corp., 454 F. Supp. 1215, 1219

(N.D.N.Y.1978) (collecting federal cases). The Districts’ interest is in the proceeds of the claims

the State is pressing on behalf of ECOT; they seek those proceeds to recover funds improperly

diverted from them to ECOT. Motion, p. 7. That interest is both remote and contingent.

Remoteness. An interest based upon how the outcome of a case will affect the intervenor’s

ability to collect independently existing claims is too remote to support intervention. For example,

intervention was denied in United States v. Alisal Water Corp., 370 F.3d 915 (9th Cir. 2004),

because the intervenor’s motivation was to increase the odds of collecting a preexisting debt, rather

than any interest in the substantive issue presented by the case. The court explained:

Here, the district court determined that [intervenor’s] sole interest in the present
action is in the prospective collectability of a debt. This interest is several degrees
removed from the overriding public health and environmental policies that are the
backbone of this litigation. In Hawaii-Pacific Venture Capital Corp. v. H.B.
Rothbard, 564 F.2d 1343, 1346 (9th Cir. 1977), we held that the impaired ability to
collect judgments that may arise from future claims does not give rise to a right of
intervention. The underlying reasoning in Hawaii-Pacific supports the conclusion
that an allegedly impaired ability to collect judgments arising from past claims does
not, on its own, support a right to intervention. To hold otherwise would create an
open invitation for virtually any creditor of a defendant to intervene in a lawsuit
where damages might be awarded.

Id. at 920.

That approach is widely shared; the courts “have generally concluded that a party may not

intervene … solely to protect judgment funds that the party wishes to recover itself.” Deutsche

Bank Natl. Trust Co. v. FDIC, 717 F.3d 189, 195 (D.C. Cir. 2013)(collecting cases). Accord,

Reliastar Life Ins. Co. v. MKP Invests., 565 F.App’x 369, 372 (6th Cir.2014).

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That is what we have here. The Districts’ interest is to recover funds they claim were

improperly transferred to ECOT, presumably based on the grounds that resulted in ECOT’s

liability to ODE (non-compliance with R.C. 3314.08’s participation requirement). This case is

about something else; it is about recovering funds transferred from ECOT, based on other legal

grounds (breach of fiduciary duties, violation of R.C. 2921.42, R.C. 9.39, and the Corrupt Practices

Act). As in Alisal Water Corp, the Districts’ “interest is several degrees removed from the [claims]

that are the backbone of this litigation.” 370 F.3d at 920.

Contingency. An interest is contingent when liquidation proceedings make the intervenor’s

actual share of the proceeds of a case uncertain. For example, in Kheel v. American Steamship

Owners Mutual Protection & indemnity Assoc., 45 F.R.D. 281 (S.D.N.Y. 1968), several creditors

sought to intervene in a bankruptcy trustee’s suit against a third party brought to recover funds for

the bankruptcy estate. The court held that the creditors’ interest was contingent because “no

evidence [was] offered to show that the recovery would, as a matter of law, inure to the exclusive

benefit of … movants, as distinguished from all other general creditors of the estate.” Id. at 284.

Accord, In re Penn Central Commercial Paper Litigation, 62 F.R.D. 341, 346 (S.D.N.Y. 1974);

Liberty Mutual Ins. Co. v. Pacific Indemnity Co., 67 F.R.D. 656, 658-659 (W.D. Pa. 1977).

That same pattern is present here. As in Kheel, this case is related to liquidation

proceedings; ECOT is deeply insolvent and is being liquidated. Compare Complaint, ¶¶ 33-39 with

id. at ¶ 40-45. As in Kheel, the litigation prompting the intervention request is prosecuted to recover

funds that will go into ECOT’s insolvent estate for its creditors. Complaint at ¶¶ 44 and exhibit 3

thereto. As in Kheel, creditors seek to intervene without offering any evidence that they will

receive any of whatever proceeds are generated by this case. As in Kheel, that interest is contingent.

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2. The Districts have not proven inadequate representation.

As the Districts correctly note, “an agency of the government that is charged by law with

representing the interests of the proposed intervenor will usually be deemed adequate to represent

the proposed intervenor’s interest.” State ex rel. Montgomery v. City of Columbus, 2003-Ohio-

2658 (10th Dist.), ¶ 26. That presumption is reinforced when, as here, the government litigant

brings the suit pursuant to statutory authorization. Id.1 Intervenors therefore “need to produce

something more than speculation as to the alleged inadequate representation of the existing

parties.” Id. at ¶ 23. The Districts’ specific allegations fall well short of that mark, particularly

when one considers the Attorney General’s robust record of addressing fraud in Ohio’s charter

school program.

a. The Districts’ assertions about other cases are inaccurate and insufficient.

The Districts’ reliance upon proceedings in Hope Academy Broadway v. White Hat

Management, State ex rel. Attorney General v. Lion of Judah, and Sun Building Limited

Partnership v. VLT Academy is misplaced. That is true in three respects:

- Hope Academy Broadway v. White Hat Management. This Court’s records

rebut the Districts’ suggestion that the Attorney General abandoned this case
once it got to the Supreme Court. He did not participate in the Supreme Court
because the Tenth District held that his client (ODE) was not a party to that
appeal.2 After the case was remanded he filed amended/supplemental claims
for more than $35,000,000 against White Hat and vigorously opposed White
Hat’s motion to dismiss those claims.3 He deposed White Hat’s representatives,

1
The Attorney General brought this case pursuant to the authorization provided by R.C. 117.42.
Complaint, ¶ 20 and Exhibit 2 thereto.
2
Hope Academy Broadway Campus v. White Hat Mgt, LLC, Case No. 12AP-496 (10th Dist.),
Appellees’ Motion to Strike Ohio Department of Education’s Merit Brief, filed Nov. 20, 2012;
The Ohio Department of Education’s Consolidated Response to the Ohio Coalition for Quality
Education’s Motion for Leave to File Amicus Brief and White Hat’s Motion to Strike, filed Nov.
29, 2012; Journal Entry dated Dec. 10, 2012.
3
Hope Academy Broadway Campus v. White Hat Mgt, LLC, Case No. 10 CV007423 (Franklin
C.P.), The Ohio Department of Education’s Amended and Supplemental Cross and Counter

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defended depositions of the State’s witnesses, and has participated in more than
two dozen other depositions in the case. ODE did not answer the Schools’
Second Amended Complaint because that complaint asserted no claims against
ODE; no answer was therefore required.

- Lion of Judah, and Sun Building Limited Partnership. The relief sought in those
cases was different than that sought here, but there are good reasons for that.
The facts are different; some of the relief sought in those cases is not supported
by the facts of this case (at least as is known from pre-filing investigation).
Experience in those cases has also revealed a greater probability of success
when we initially assert only claims supported by strong pre-filing investigation
evidence, and amend to add new claims that become appropriate as additional
facts are developed.

- At bottom, the Districts’ arguments amount to critiques of litigation tactics.

“Simply because [the Districts] disagree with the methods and remedies chosen
by the state to deal with … violations does not render the state inadequate to
represent [the Districts’] interest.” Montgomery, 2003-Ohio-2658, ¶ 24.

b. There is no conflict under Prof. Cond. Rule 1.7.

The Districts’ argument about Prof. Cond. Rule 1.7 is rebutted by their Intervening

Complaint. For a conflict to exist, there must be “a substantial risk that the lawyer’s ability to

consider, recommend, or carry out an appropriate course of action for that client will be materially

limited[.]” Prof. Cond. Rule 1.7(a)(2). That requires more than “[t]he mere possibility of

subsequent harm”; rather, there must be “a difference in interests between the client and lawyer.”

Id. Comment [14] (emphasis added). The lack of a difference here is evinced by the fact that the

Districts’ Intervening Complaint is nearly identical to the complaint filed by the Attorney General

in this case. Rather than having different interests, the Attorney General and the Districts have the

same interests—recovery of public funds—and are pursuing that with the same legal theories. It

is hard to see the conflict.

Claims, filed April 25, 2016; Defendants’ Motion to Dismiss Ohio Department of Education’s
Cross Claims, filed May 3, 2016; The Ohio Department of Education’s Memorandum in
Opposition to the White Hat Defendants’ Motion to Dismiss, filed June 1, 2016; Supplemental
Authority in Opposition to The White Hat Defendants’ Motion to Dismiss the Ohio Department
of Education’s Cross Claims, filed Jan. 31, 2017.

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c. The public record establishes the Attorney General’s record of acting to

recover misappropriated charter school funds.

On a more general level, the Districts’ assertion that the Attorney General is too friendly

towards charter schools is conclusively rebutted by the public record. That record establishes that

since 2011 the Attorney General’s office has:

- Obtained $8,224,776.30 in judgments on audit findings related to Charter

Schools. See Exhibit 1A hereto.

- Pursued, and continues to pursue, another $4,945,833.90 in judgments on

charter school related audit findings. See Exhibit 1B hereto.

- Obtained or is seeking an additional $53,330,730.90 in judgments against

persons/entities who had no audit findings issued against them, but violated
common law and statutory duties in connection with charter schools. See
Exhibit 1C hereto.

- Aggressively sought to preserve charter school related debts in bankruptcy

proceedings. DeWine v. Scott (In re Scott), 566 B.R. 471 (Bankr. N.D. Ohio);
DeWine v. Dudley (In re Dudley), 582 B.R. 708 (Bankr. S.D. Ohio 2017).

- Successfully prosecuted multiple administrative proceedings to revoke

professional licenses based on misappropriations of charter school funds. See
Exhibit 1D hereto.

Indeed, another Court has expressly noted the Attorney General’s zeal in this area. It noted the

Attorney General’s efforts to “send a powerful message that those who handle [charter] school

funds cannot escape … accountability for … abuse of those funds” and his actions directed “toward

deterring future abuses." In re Dudley, 582 B.R. at 725, n. 13.

Those specific facts and that overall record far outweigh the nits the Districts pick with the

Attorney General’s litigation tactics. The Districts have fallen well short of showing inadequate

representation.

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C. Intervention under Civ. R. 24(B) is inappropriate because the Districts can assert no
factual or legal issues in common with the State’s claims, because their involvement
will delay proceedings and because they will add little value.

“Civ.R. 24(B)(2) provides that a trial court has discretion to permit an applicant to

intervene ‘when [the] applicant’s claim or defense and the main action have a question of law or

fact in common.’” State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30,

2011-Ohio-4612, ¶ 43. “However, in exercising its discretion, the court ‘shall consider whether

the intervention will unduly delay or prejudice the adjudication of the rights of the original

parties.’” Id. The Districts cannot meet either of those requirements. Further, permissive

intervention is contraindicated because they will not add any additional value beyond what they

could offer as amici.

The Districts can show no common factual or legal issues with the State’s claims. Those

claims concern ECOT’s right to undivided fiduciary loyalty and its officials’ duty to avoid interests

in ECOT’s contracts and illegal disbursal of ECOT’s funds. The Districts had no involvement in

the facts underlying those claims; they were strangers to the transactions giving rise to the claims.

Similarly, it is hard to see what legal issues they can press; they have no legal right to vindicate

those rights and duties, as discussed at pp. 4-5 above.

The Districts’ intervention will likely delay proceedings. Adding the Districts as parties

cannot help but add delay because “[a]dditional parties always take additional time. Even if they

have no witnesses of their own, they are the source of additional questions, briefs, arguments,

motions and the like which tend to make the proceedings a Donnybrook Fair.” Bush v. Viterna,

740 F.2d 350, 359 (5th Cir. 1984). And these Districts’ motion cannot be viewed in isolation; if

they are allowed to intervene what principled basis is there for denying other districts’

intervention?

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Finally, it is hard to see what additional value the Districts will add. The Intervening

Complaint adds nothing substantive to the State’s allegations, and any unique insights the Districts

have can be presented through amici submissions, an alternative to intervention in cases involving

similar subject matter and dynamics. See e.g. Blount-Hill v. Zelman, 636 F.3d 278, 287-288 (6th

Cir. 2011).

CONCLUSION

There are multiple reasons why the Districts should be denied intervention. They lack

standing to intervene under either Civ. R. 24(A) or (B) because the claims they seek to prosecute

belong to a different public body. They do not meet the standards for intervention under Civ. R.

24(A) because their interest is remote and contingent, and is adequately represented by the

Attorney General’s Office, an office that has successfully pursued multiple cases addressing

charter school fraud. Intervention under Civ. R. 24(B) is not appropriate because the Districts’ lack

of standing eliminates any common issues, because their involvement would likely delay the case,

and because it is hard to see what value they could add that could not be added via amicus status.

Respectfully submitted,

MICHAEL DEWINE (0009181)

Ohio Attorney General

/s/ Todd R. Marti

TODD R. MARTI (0019280)

REID T. CARYER (0079825)
MIA MEUCCI YANIKO (0083822)
Assistant Attorneys General
Office of the Ohio Attorney General
Education Section
30 E. Broad Street, 16th Floor
Columbus, OH 43215
Phone: (614) 644-7250
Fax: (614) 644-7634
Email: todd.marti@ohioattorneygeneral.gov

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reid.caryer@ohioattorneygeneral.gov
mia.yaniko@ohioattorneygeneral.gov

Counsel for the Ohio Attorney General

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Plaintiff The Ohio Attorney

General’s Memorandum in Opposition to Intervention, will be served on the following via this

Court’s electronic filing system and by regular, U.S. mail, on October 9, 2018:

Karl H. Schneider, Esq. Ann Barnes

David M. Marcus, Esq. 1335 Great Hunter Court
McNees Wallace & Nurick LLC Grove City, OH 43123
21 E. State Street, suite 1700
Columbus, OH 43215 Christopher Meister
Counsel for William Lager, Altier Learning 134 Heischman Avenue
Management I, Inc., IQ Innovations, LLC Worthington, OH 43085

Ellen M. Kramer, Esq. Rick Teeters

James B. Rosenthal, Esq. 2 Arika at Lionspaw
Joshua R. Cohen, Esq. Daytona Beach, FL 32124
Cohen Rosenthal & Kramer LLP
3208 Clinton Avenue Regina Lukich
Cleveland, OH 44113 3175 Tremont Road, Unit 206
Counsel for Logan-Hocking Local School Upper Arlington, OH 43221
District Board of Education and Dayton
Public Schools Board of Education Michele Smith
6813 Oakfield North Road NW
Jarrod W. Stone, Esq. Bristolville, OH 44402
Manier & Herod
1201 Demonbreun Street, Suite 900
Nashville, TN 37203
Counsel for Travelers Casualty and
Surety Company of America

/s/ Todd R. Marti

TODD R. MARTI (0019280)

Assistant Attorney General

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