Case 2:18-cv-01877-AB Document 35 Filed 09/10/19 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA

Thrivest Specialty Funding, LLC
Petitioner,
v.

William E. White,
Respondent.

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Case No. 2:18-cv-1877
Judge Brody

RESPONDENT’S RESPONSE TO THRIVEST’S BRIEF IN FURTHER SUPPORT OF
ITS EMERGENCY MOTION FOR CONTEMPT AND IN RESPONSE TO THIS
COURT’S ORDER OF AUGUST 16, 2019
ARGUMENT
On July 1, 2019, this Court stayed this action in favor of arbitration (ECF No.25). On
July 9, 2019, Thrivest moved for a finding of contempt for “failure to comply” with the Interim
Arbitration Award (ECF No. 26). On July 23, 2019, the Respondent filed a response to the
motion (ECF No. 27). On July 24, 2019, Thrivest filed a reply in support of its motion (ECF
No. 28). On July 26, 2019, the American Arbitration Association appointed administratively
Nancy Lesser as the sole arbitrator.1
On August 2, 2019, Thrivest first raised issues, with Arbitrator Lesser, regarding
compliance with the Interim Arbitration Award as follows:
I write to request that Arbitrator Lesser consider holding the
preliminary conference next week, if at all possible. On June 4,
2019, the Emergency Arbitrator in this action entered the attached
Interim Award of Emergency Relief, directing Mr. White to
escrow $1.25 million in his attorney’s trust account pending
resolution of this arbitration on the merits. The Emergency
Arbitrator’s decision necessarily involved a determination that
1

A true and accurate copy of this correspondence is attached hereto as Exhibit A.

 Case 2:18-cv-01877-AB Document 35 Filed 09/10/19 Page 2 of 6

Thrivest would be irreparably harmed by Mr. White’s likely
dissipation of the disputed funds absent relief. To date, Mr. White
has not complied with the Interim Award. In the absence of
compliance with the Interim Award, Thrivest is prejudiced by
every passing day and thus my request for an earlier date.2

On August 5, 2019, Thrivest, again, raised issues regarding compliance with the Interim
Arbitration Award with Arbitrator Lesser as follows:
Arbitrator Lesser,
As Mr. White’s response makes clear, Mr. White has not complied
with the Interim Award of Emergency Relief by depositing $1.25
million (or any funds for that matter) into his attorney’s escrow
account pending resolution of this dispute on the merits. In his
opposition to Thrivest’s pending motion for contempt in the
District Court, Mr. White asserted that compliance with the Interim
Award is “not possible”—an assertion he now repeats here in this
arbitration.
Mr. White has not produced any evidence to support this
concerning assertion, nor has he responded to Thrivest’s request
for an accounting of the proceeds of his $3.5 million award in the
NFL Concussion Litigation, which he received in 2018 after
Thrivest provided him with a $500,000 advance against those
proceeds in 2016.
Pursuant to AAA Rule 22, and in view of Mr. White’s assertion
that it is “not possible” for him to escrow the funds ordered by the
Emergency Arbitrator as necessary to prevent irreparable harm to
Thrivest, Thrivest respectfully requests that you require Mr. White
to produce the following in advance of the Preliminary Conference
on August 16:
1.

2.

2

A current account statement for all accounts maintained by
Mr. White, either individually or jointly, with any financial
institution;
An accounting of the proceeds of his award in the NFL
Concussion Litigation, including documents sufficient to
show the current location of such proceeds and any
disposition thereof.3

A true and accurate copy of this correspondence is attached hereto as Exhibit B.

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Ms. Lesser, however, declined to order the discovery in advance of the preliminary
hearing. On August 16, 2019, during the preliminary hearing, Thrivest, again, raised issues
regarding compliance with the Interim Arbitration Award with Arbitrator Lesser which included
another request that she order discovery designed to aid in the enforcement of or compliance
with the Interim Arbitration Award.
In response, the Respondent indicated that issues regarding compliance with the Interim
Arbitration Award had been fully briefed and were pending before this Court. The Respondent
asserted further that, in order to avoid possible inconsistent results, the Arbitrator should defer to
the Court for disposition. The Arbitrator rejected the Respondent’s position and ordered that the
requested discovery to be produced within 10 days - on or before August 26, 2019.4 Over the
Respondent’s objections,5 the Arbitrator also adopted an expedited briefing schedule ostensibly
to assuage or accommodate Thrivest’s concerns regarding compliance with the Interim
Arbitration Award.6
Following a status conference on August 30, 2019, Arbitrator Lesser entered an order
which granted Thrivest’s motion to compel discovery “in furtherance of the Emergency
Arbitrator’s Interim Award,” and also stated that the Respondent would be subject to sanctions
for failure to comply.7 On September 10, 2019, Thrivest directed the following correspondence
to Arbitrator Lesser:
Arbitrator Lesser,
3

A true and accurate copy of this correspondence is attached hereto as Exhibit C.
During the preliminary hearing on August 16, 2019, the Respondent requested at least 30 days to respond to
discovery.
5
During the preliminary hearing on August 16, 2019, the Respondent requested at least 60 days in order to fully
brief all of the issues before the Arbitrator.
6
A true and accurate copy of the Order dated August 19, 2019 is attached hereto as Exhibit D.
7
A true and accurate copy of the Order dated August 30, 2019 is attached hereto as Exhibit E.
4

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The deadline for compliance with the attached August 30, 2019
Order has passed and Mr. White has not complied by producing
the required information and documents. Indeed, Mr. White has
not produced anything whatsoever. In accordance with the Order,
Thrivest seeks sanctions for Mr. White’s repeated non-compliance,
including but not limited to:
1. Striking all “affirmative defenses” and counterclaims set forth in
Mr. White’s Answering Statement (May 9, 2019), including that he
lacked capacity to enter into the Agreement (paragraph 6), that the
Agreement is “unenforceable, void and/or voidable” (paragraph 7),
that Thrivest fraudulently induced the Agreement (paragraph 8),
that Thrivest defamed him in the press (paragraph 11), among
others—all of which should be stricken. This relief is authorized
by AAA’s Guide for Commercial Arbitrators, available at
https://www.adr.org/sites/default/files/document_repository/A%20
Guide%20for%20Commercial%20Arbitrators.pdf
(“In
some
cases, arbitrators have enforced their orders by directing the
case administrator to advise a recalcitrant party that failure to
obey will result in their claim or counterclaim being
stricken.”).8 (Emphasis Added).
2. Directing Attorney Wood to turn over all information and
documents responsive to the requests in his possession, including
the name of Mr. White’s financial institution(s) and account
number(s), and the last known location(s) of the proceeds of Mr.
White’s award in the NFL Concussion Litigation and any
disposition thereof. Although Mr. White may not have responded
to the Order, Attorney Wood may have access to this information
through other means. For example, Mr. White likely provided the
Claims Administrator with account information in connection with
the processing of his award and Attorney Wood may be aware of
how Mr. White has used his award since Mr. White received it—
such as to pay his legal fees or to the extent that Mr. White has
attempted to protect the funds from creditors. This information is
not protected by the attorney-client privilege merely because
Attorney Wood is holding it.
3. Awarding Thrivest its attorneys’ fees and costs in connection with
enforcement of the Interim Award of Emergency Relief and such
other relief that the arbitrator deems just and proper under the
circumstances.

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Thrivest’s correspondence of September 10, 2019, is inconsistent with its position that an Arbitrator has no power
to coerce compliance with an order.

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I am available at the arbitrator’s convenience should you wish to
discuss this with the parties.9

The foregoing chronology of events makes clear that issues regarding compliance with
the Interim Arbitration Award are now properly before Arbitrator Lesser for at least four reasons:
(1) Thrivest, itself, raised these issues beginning on or about August 2, 2019 after the briefing of
it motion for contempt was completed; (2) at the urging of Thrivest, Arbitrator Lesser has issued
two orders “in furtherance of the Interim Arbitration Award;” (3) Thrivest has requested and
points to the authority of the Arbitrator to award sanctions which are designed to coerce
compliance;10 and (4) it offends notions of judicial economy and is a waste of judicial recourses
to have this Court consider the same matters presently pending before Arbitrator Lesser.

Respectfully submitted,
/s/ Robert C. Wood
Robert C. Wood (0071861)
WOOD LAW LIMITED
68 North High Street
Building B, Suite 202
New Albany, Ohio 43054
(614) 252-3146 (Telephone)
rwood@rwoodlaw.com
Counsel for the Respondent
Dated: September 10, 2019

9

A true and accurate copy of this correspondence and the corresponding Order is attached hereto as Exhibit F.

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CERTIFICATE OF SERVICE
I, Robert C. Wood, hereby certify that the foregoing was electronically filed on this date;
it is available for viewing and downloading on the Court’s CM/ECF system; and it will be served
on all counsel of record via the Court’s CM/ECF system.
Dated: September 10, 2019

Respectfully submitted,
/s/ Robert C. Wood
Robert C. Wood (0071861)
WOOD LAW LIMITED
68 North High Street
Building B, Suite 202
New Albany, Ohio 43054
(614) 252-3146 (Telephone)
rwood@rwoodlaw.com
Counsel for the Respondent

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In its motion for contempt, Thrivest concedes that the contempt power of a district court is designed to be
coercive in nature (ECF No.25). Here, it has contemporaneously asked the Arbitrator to make an award of sanctions
which is designed to have the same coercive effect.

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