For almost 20 years Barney Hallingby has owned and possessed a Ferrari 250 GT Pinin Farina Series 1 Cabriolet, Chassis No. 0799 GT. We will call it “0799,” the “Ferrari, “or just “the car.” Over the years, Mr. Hallingby has been harassed by a Swiss national named Dr. Andreas Gerber, acting through his Swiss attorney Oliver Weber. Dr. Gerber wrongfully claims that car was stolen from him and his partner in ownership in Marbella, Spain in 1993, allegedly by “the Spanish Mafia,” and that Mr. Hallingby therefore does not lawfully own the car. Mr. Hallingby has consistently and forcefully denied that allegation. Dr. Gerber’s harassment has included directly interfering with sales of the car and widely broadcasting his claim on the internet. Recently, a Federal District Court in Connecticut has resolved the matter by declaring that Mr. Hallingby is the lawful owner of 0799; that Dr. Gerber has no interest of any kind whatsoever in the car; and by enjoining Dr. Gerber from interfering with Mr. Hallingby’s ownership.
Following entry of this Judgment, Dr. Gerber nevertheless issued specific communications to potential buyers and brokers and made web postings that have already violated the Court’s injunction and placed him in contempt of court. Any future efforts by Dr. Gerber to interfere with Mr. Hallingby’s quiet ownership of the car, or his efforts to sell or market it, will place Dr. Gerber in further contempt of the Connecticut Court’s Order, as well being an independent violation of the law, subjecting him to damage liability and further injunctive relief.
Here is the true story of how this all came about.
Mr. Hallingby purchased the car on November 29, 2000. Prior to that Mr. Hallingby was aware that Mr. Bernhardt Friedli, a former owner of the car, was asserting a claim in Spanish courts that the car had been stolen in 1993 from him and his partner, Dr. Andreas Gerber, in Spain. Both Mr. Friedli and Dr. Gerber were citizens and residents of Switzerland.
Mr. Hallingby assembled a team of experienced provenance experts to investigate. Based on that investigation, the team reported to Mr. Hallingby that the dispute was, in actuality, a civil dispute over a claimed breach of contract to pay the amount allegedly due under a contract to sell the car, and not a criminal dispute, and that the claim had been finally resolved against Mr. Friedli – all of which was true. Assured bythis report, Mr. Hallingby proceeded to buy the car, and took it to his home in Sharon, Connecticut, where it has remained ever since.
Until March of 2008, Mr. Hallingby enjoyed peaceful ownership of the car, showing it at numerous car shows under his name, and his ownership of the car was widely publicized. But in March, April, and May of 2008, paid advertisements all of a sudden appeared in the “Ferrari Market Letter” and the “Cavallino” magazine, which were regularly distributed among Ferrari buyers, sellers, and brokers. These ads were placed by Mr. Weber, acting on behalf of Dr. Gerber.
The Ferrari Market Letter ad read:
Members of the small, rare Ferrari community and others would (and did) readily recognize that the “stolen Ferrari” referred to 0799, and that the reference to a “Ferrari collector in Sharon 06069, Connecticut, U.S.A.” was a reference to Mr. Hallingby. The Cavallino ad was identical, except for describing the location and possessor of the car as being “a Ferrari collector on the east coast,” from which Mr. Hallingby also could be (and was) easily identified.
These ads were published without any due diligence into whether the Ferrari was in fact stolen, other than reliance on the opinion of Mr. Marcel Massini, who himself had no evidence to support that conclusion, and who ignored Spanish Court decrees which found no evidence that the car was stolen, and held the dispute was merely a civil breach of contract claim. But because of the repute of the publishers, the ads had great weight in swaying the views of the Ferrari community, and began the perpetration of the myth that the Ferrari was a “stolen car.” Notably, Forza refused to publish the ad because the publisher believed it could be libelous and was from an unknown source.
Thus began a pattern of interference by Dr. Gerber (acting through Mr. Weber) that continues to this day, despite the federal district court judgment.
Beginning in May 2008, Dr. Gerber was instrumental in initiating a criminal investigation of Mr. Hallingby in Connecticut for allegedly possessing a stolen vehicle — namely, the Ferrari. Conducted by a Connecticut State Police detective, the investigation went on for almost a year, culminating on August 19, 2009, when the detective filed a 31-page Application for Arrest Warrant and Supporting Affidavit for the arrest of Mr. Hallingby. The State’s Attorney made short shrift of the Application and declined to prosecute on September 14, 2009. Based on that declination, Judge James P. Ginocchio of the Superior Court of the Litchfield Judicial District ordered that the Ferrari be “returned to the rightful owner – Paul Hallingby.”
While the investigation was still ongoing, Dr. Gerber made a request that the Ferrari be seized. This request was based on numerous false affirmative statements and notably failed to disclose that the claim of theft of the Ferrari in Spain had been rejected in final judgments by the Spanish courts in 1993 and 1995. Gerber’s false accusations resulted in the humiliating seizure of the Ferrari from Mr. Hallingby’s home in Sharon. The Ferrari was impounded in a police garage, where it remained for over a year until the court released it to Mr. Hallingby as the Ferrari’s “rightful owner” on October 14, 2009. The Ferrari has remained in Mr. Hallingby’s possession in Sharon ever since. This whole unfounded process not only denied Mr. Hallingby possession of his car for over a year, but also cost him approximately $350,000 in legal expenses to defend against the charges and to get his car back.
Undaunted by the outright rejection of his claim by the State’s Attorney and the court-ordered return of the Ferrari to “the rightful owner – Paul Hallingby,” Dr. Gerber’s Connecticut counsel (retained by Mr. Weber) wrote to Mr. Hallingby on July 27, 2010, demanding return of the Ferrari. Mr. Hallingby’s lawyer rejected this demand on August 13, 2010. Gerber’s lawyer wrote another demand on November 19, 2010. On December 28, 2010, this demand was also rejected. And although in his November 19, 2010 letter, Dr. Gerber “reserve[d] his right to take appropriate legal action to vindicate” his alleged right to the Ferrari, to this day, he has not instituted any action to obtain ownership or possession of the Ferrari in Connecticut or elsewhere in the United States or in the world. And, notably and tellingly, he explicitly refused test his claim by litigating it in the Connecticut Federal District Court, which was the only court in the entire world that had clear jurisdiction to resolve the entire dispute. Thus, all conceivably applicable statutes of limitation have run out on Dr. Gerber’s claim, including the Swiss statute.
Despite the passage of over six years from the rejection of his claim by the Connecticut State’s Attorney and his refused demands on Mr. Hallingby for the Ferrari, Dr. Gerber, through his representatives, continued to broadcast his unfounded claim of ownership to the classic Ferrari community through blogs, chat rooms, Twitter, and other means. In addition, Dr. Gerber torpedoed two separate sales of the car that Mr. Hallingby was about to close on April 24, 2013 and June 4, 2013, by threatening specific buyers with criminal proceedings against them if they bought the car, and by proclaiming that Gerber “will never give up his claim concerning ownership of Ferrari Vin 0799GT and he has made that very clear in the Ferrari community.” And as recently as May 30, 2018, and in express violation of the injunction issued against him by the Connecticut Court, Dr. Gerber reiterated this threat in letters broadcast to at least two brokers, and likely additional potential buyers and brokers, and on the internet.
Dr. Gerber was supported in his scheme by Marcel Massini. A well-recognized and influential expert on the provenance of vintage Ferraris, Dr. Gerber relied on him heavily in his submissions to the Connecticut authorities. But Mr. Massini has no evidence the car was stolen, as evidenced by the fact that he ignored requests by Mr. Hallingby’s due diligence team to provide what evidence he had. And Mr. Massini conveniently and notably ignores the Spanish court proceedings and judgments in his timeline, which explicitly rejected the claim the car was stolen. Further, Massini’s timeline states: “stored in a warehouse where it was STOLEN” (his emphasis). It is hoped that he will not ignore the recent judgment in Connecticut in any future postings and communications, and that he will look more closely at the Spanish Judgments (and the appropriateness of not mentioning them) in the future.
Confronted with this extortionate scheme, Mr. Hallingby filed his suit in the Connecticut Federal District Court of on June 13, 2017, which was the only court in the world with jurisdiction to resolve the entire dispute. As stated, that court entered judgment declaring that Mr. Hallingby was the rightful owner of the car; declaring that Dr. Gerber had no interest in the car; and issuing an injunction against Dr. Gerber from further interfering with Mr. Hallingby’s ownership and efforts to sell the car. This judgment was duly served personally on Dr. Gerber under the Hague Convention on April 23, 2018.
Dr. Gerber blithely dismisses the Connecticut Court’s judgment as a “farce.” This is typical of his approach to unfavorable judgments like the Spanish Judgments, which he simply dismisses as “corrupt.” As will be described later in detail, he is wrong on both counts. The Connecticut judgment would be enforceable throughout the United States under federal law. It would also likely be enforceable in many foreign countries, including particularly the common law countries of Great Britain, Canada, Australia and New Zealand. And Dr. Gerber has no proof of corruption underlying the adverse judgments in Spain. Against this array of judgments from actual courts, Gerber relies only on the opinion of a single Connecticut detective, which led nowhere, and the unfounded and the mistaken opinion of Mr. Massini.
The Spanish Proceedings and Judgments
Background
In 1991, Mr. Friedli made an arrangement in Marbella, Spain, to sell the Ferrari and three other cars to a man named Guiseppe Guidice, with whom he was involved in another transaction at the time. It was totally undocumented. Based on no more than being shown a document that he claims was a “guarantee” from Bank of America in Italy, Mr. Friedli shipped the four cars from Switzerland to Marbella for delivery to a third person designated by Guidice. Not being able to contact Guidice or locate the cars, Mr. Friedli filed criminal proceedings in Marbella. The car was located at Motorauto Marbella, and impounded by the authorities. The court dismissed the criminal proceedings for lack of sufficient evidence that a crime had been committed. It also returned the car to Motorauto to store as a custodian of the court for a period of ninety days, to be released if Mr. Friedli did not file a civil suit within that period of time. This was all done on the recommendation of the public prosecutor and with the consent of all parties, including Mr. Friedli.
Mr. Friedli did file a civil suit for breach of contract within the ninety-day period, but did not notify Motorauto. The ninety days having expired without it being served with or given any notice of the civil case, Motorauto transferred the car to a company called Clarksdale Unlimited in satisfaction of a debt, who then imported the car to the United States for sale. On March 4, 1994, the Ferrari was sold to Classic Coach in New Jersey, which sold it to Scott Rosen in late 1994 or the spring of 1995. Rosen then sold the car to Jeffery Schwartz in 1998, and then bought it back from him in early 2000. And finally, Rosen sold the car to Mr. Hallingby on November 29, 2000.
Upon learning of the importation of the car to the United States, Mr. Friedli filed a second criminal case against Motorauto for violation of the impoundment order. The court dismissed that case too. It held that since Mr. Friedli did not notify Motorauto that he had filed the civil case within the required ninety days, Motorauto was free to sell the car, thus empowering Motorauto to pass good title.
The civil case proceeded to trial, and on March 10, 1998, the court dismissed Mr. Friedli’s claim. This judgment was affirmed on appeal on June 27, 2000, five months before Mr. Hallingby purchased the car.
Details of the Spanish Proceedings
Although his story varied somewhat over time, Mr. Friedli consistently maintained that his arrangement with Guidice was a contract to sell the car in return for an agreed price. The dispute centered on the amount of the price and other terms of sale. Mr. Friedli insisted that the price was $1.9 million for all four cars, and was due when the cars were delivered to Spain by a deposit to his bank account. Motorauto contended the price was the $350,000 stated on the invoice Mr. Friedli had delivered, less charges for storage, maintenance, and upkeep. The price for the Ferrari shown separately on that invoice was $180,000.
In the First Criminal Case, Mr. Friedli claimed that Motorauto and Kelvin Fisher had “fraudulently appropriated” the Ferrari along with the three other cars included in the deal. This is the equivalent of a charge of criminal theft under American law. By its judgment issued March 20, 1993, the Spanish court dismissed this claim, concluding that no sufficient evidence existed to support a finding of any criminal activity of any kind. This would include any claim that the Ferrari was “stolen” or was a “stolen car.”
In the Second Criminal Case, the court held that Motorauto’s sale of the car to one of Mr. Hallingby’s predecessors in title was not in violation of the impoundment order, and was not illegal, because Mr. Friedli had failed to notify Motorauto and Fisher of the civil case within the ninety-day window, thus empowering Motorauto to convey good title to the car, which it did.
In the civil case he filed, Mr. Friedli expressly insisted that the transaction was a contract of sale, but asserted that Motorauto, Fisher, or Guidice had breached the contract by refusing to pay what Mr. Friedli claimed was the full purchase price. The court rejected all of his claims in a judgment issued on March 10, 1998, concluding that there was insufficient evidence to prove that the contract was as Mr. Friedli claimed. This judgment became a “Decree Absolute” on June 27, 2000, when it was affirmed on appeal.
All of the Spanish Judgments are final, binding, and subject to no further right of review, and the applicable Spanish Statutes of Limitation have expired on all of the underlying claims, including that the car was stolen. Dr. Gerber and Mr. Friedli were general partners in their ownership of the Ferrari. Dr. Gerber consciously chose not to be a party in the Spanish proceedings, was actively involved behind the scenes, and was kept fully apprised of their progress. He is therefore fully bound by the Spanish Judgments. By them, and wholly independent of the Connecticut Judgment, all of Dr. Gerber ’s right, title, and interest in the Ferrari has been extinguished and, by them, Dr. Gerber is barred from claiming that the Ferrari was stolen or is a “stolen car”; that he is the rightful owner of the Ferrari; or that Mr. Hallingby is not the rightful owner of the Ferrari.
Gerber’s Unfounded Claim that the Spanish Judgments
Are Void Because of Corruption of the Spanish Courts
All of the Spanish Judgments are final, binding, and subject to no further right of review, and the applicable Spanish Statutes of Limitation have expired on all of the underlying claims, including that the car was stolen. Dr. Gerber and Mr. Friedli were general partners in their ownership of the Ferrari. Dr. Gerber consciously chose not to be a party in the Spanish proceedings, was actively involved behind the scenes, and was kept fully apprised of their progress. He is therefore fully bound by the Spanish Judgments. By them, and wholly independent of the Connecticut Judgment, all of Dr. Gerber ’s right, title, and interest in the Ferrari has been extinguished and, by them, Dr. Gerber is barred from claiming that the Ferrari was stolen or is a “stolen car”; that he is the rightful owner of the Ferrari; or that Mr. Hallingby is not the rightful owner of the Ferrari.
A court will deny recognition to a foreign judgment based on alleged fraud or “corruption” only if it can be convinced that the court rendering the specific judgment at issue did not apply fair procedures, that the particular judgment was obtained by fraud (such as bribery of the judge), or that the particular proceeding denied the core principles of due process of an impartial tribunal, an opportunity to be heard, the right to the assistance of counsel of the party’s choice, and due notice. Aside from deficiencies in the particular proceeding, recognition may also be denied if the court is convinced that the judgment was rendered under a system which, systemically, does not provide impartial tribunals or procedures compatible with the requirements of due process of law. This latter basis for non-recognition presents an exceptionally high bar because courts view it as “a particularly weighty matter for a court in one country to declare that another country’s legal system is so corrupt or unfair that its judgments are entitled to no respect from the courts of other nations” at all. Sustaining this burden requires highly persuasive, admissible evidence of consistent and wide-spread dysfunction in the entire legal system itself. Understandably, this burden is seldom met.
In support of his position, Dr. Gerber offers only a vague attack on the entire government of Marbella, Spain, including the courts. This attack is supported by just two magazine articles that would be inadmissible in court. These articles do not mention any of the four Friedli cases, and mention only one of the multiple judges involved in those cases, and then only to say he was “suspected” of destroying 13 files in a totally unrelated case, without ever saying whether he was ever found to have done so. Nor do the articles mention any judgment that has ever been overturned due to fraud or corruption in Marbella, or has even been challenged on that basis.
Beyond that, Dr. Gerber makes no credible effort to connect whatever corruption there may have been in Marbella to Mr. Friedli ’s cases. Nor does he levy specific challenges to the procedures employed in any of the cases, or identify any irregularities in them. Mr. Friedli’s lawyers never challenged any procedures. Nor did they ask any of the judges to remove themselves from the case, or ask another court to remove them. Additionally, none of Mr. Friedli’s lawyers sought reversal of the judgments for bias, corruption, conflict of interest, or other procedural irregularities.
Any effort Dr. Gerber might make to have recognition for the Spanish Judgments denied will therefore fail.
Introduction
Mr. Hallingby filed suit in the Federal District Court of Connecticut on June 13, 2017, to quiet title to the car and specifically to eliminate any interest Dr. Gerber and the heirs of Mr. Friedli might claim in the car. On March 30, 2018, the Court issued an Order and Judgment against Gerber and the Friedlis, eliminating any interest they might claim in the car, and generally quieting Mr. Hallingby’s title. The Court entered Final Judgment making these judgments final on June 20, 2018.
Course of Proceedings
The Friedli heirs agreed to disclaim any interest in the car and consented to the entry of Judgment confirming they had no interest. Following satisfaction of various technical requirements, this resulted in the entry of judgment against them.
Dr. Gerber first tried to appear through his Swiss lawyer, Oliver Weber, who filed an entry of appearance and a paper he called “Memorandum of Law in Support of Defendant’s Motion to Dismiss,” even though he did not file an actual Motion to Dismiss. The Court struck this because Weber was not admitted to practice anywhere in the United States. Gerber then entered his appearance pro se (i.e., without a lawyer) and filed, over Dr. Gerber’s own signature, the same papers that Mr. Weber had attempted to file.
The “Memorandum of Law” both challenged the Court’s jurisdiction and attacked the allegations of the Complaint on their factual merits. Dr. Gerber argued that the Court lacked jurisdiction because exclusive jurisdiction was in Switzerland under the Lugano Convention and the Swiss Constitution and because a judgment would not be recognized in Switzerland, and perhaps other European countries.
These arguments fail as a matter of law for multiple reasons. First, neither the Lugano Convention nor the Swiss Constitution apply to the United States and cannot usurp the jurisdiction of U.S. courts. Second, the possibility that a judgment rendered by a U.S. federal court may not be enforceable in some foreign countries does not deprive the U.S. court of jurisdiction. Moreover, any judgment here would be enforceable in the United States under U.S. law, and would be enforceable in many foreign countries. Also, despite some obstacles (which do not include the Lugano Convention), a judgment here could well be enforceable in Switzerland.
In support of his jurisdictional challenge, Dr. Gerber also claimed that he had not been properly served with process. This argument was incredulous under both the law and the facts. First, Dr. Gerber was properly served under the Hague Convention through an internationally recognized firm specializing in the translation of English documents into foreign languages, including German, and effecting service of process under the Hague Convention. Second, service was certified as proper by the Swiss authorities responsible for serving process in Switzerland under the Hague Convention, which is a certification that cannot be collaterally attacked.
Dr. Gerber’s “Motion” to Dismiss was frivolous on its face and, if signed by an American attorney, would have subjected that attorney to sanctions. It was “supported” by a mass filing in bulk of approximately 2,419 pages. Almost all are inadmissible in evidence. The “Motion” was further “supported” by conclusory statements that amount to no more than “Hallingby is wrong and we are right,” which is an improper argument in a motion to dismiss under American procedure, and is an argument Mr. Hallingby would win at trial on the facts. The “Motion” itself would have been denied with a stern scolding from the Court.
But things never got that far because Dr. Gerber reversed course. Having participated in the proceedings for a time, and seeing what actual litigation meant under American procedure, Dr. Gerber simply quit, telling Plaintiffs and the Court that he refused to participate in the case in any way and withdrawing all of his filings. The Court entered Default Judgment against Dr. Gerber on January 30, 2018, which it confirmed and made final on June 20, 2018. In combination, the March 30 and June 20 Orders and Judgments:
