Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 1 of 278
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`Honorable Tiffany M. Cartwright
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`Case No. 3:23-cv-6142-TMC
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`PRE-TRIAL ORDER
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON AT TACOMA
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`CAROL VAUGHN, in her representative capacity
`as Personal Representative of the ESTATE OF
`MICHAEL A. COHEN,
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`Plaintiff,
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`v.
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`LOREN COHEN, individually, the marital
`community of LOREN COHEN and HOLLAND
`COHEN, and Loren Cohen as Trustee of the LMC
`FAMILY TRUST,
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`Defendants.
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` and
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`WILLIAM NEWCOMER, an individual,
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` Plaintiff,
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` v.
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`LOREN and HOLLAND COHEN, et al.,
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` Defendants.
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` v.
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`AMARA COHEN, et al.,
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` Third-Party Defendants.
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`PRE-TRIAL ORDER -- 1
`3:23-cv-6142-TMC
`ic31rj01hh
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`

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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 2 of 278
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`I. JURISDICTION
`The United States removed this case to federal court under 28 U.S.C. 1442(a)(1), the
`federal officer or agency removal statute, after “United States of America (Department of Internal
`Revenue)” was named as a third-party defendant. ECF Doc. 1. The United States also brought a
`crossclaim against the Estate and a counterclaim against Loren. ECF Doc. 18. Federal district
`courts have “original jurisdiction of any civil action arising under any Act of Congress providing
`for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of
`the Court of International Trade.” 28 U.S.C. § 1340; see also 26 U.S.C. § 7402. They also have
`original jurisdiction of all “civil actions, suits or proceedings commenced by the United States.”
`28 U.S.C. § 1345. The Court has already ruled that it has supplemental jurisdiction over the
`remaining state-law claims. See 28 U.S.C. § 1367(a).
`II. CLAIMS AND DEFENSES
`Estate of Michael Cohen v. Loren Cohen, et al.
`A.
`The plaintiff Estate of Michael Cohen (“Plaintiff Estate”) through its Personal
`1.
`Representative Carol Vaughn will pursue at trial the following claims: (1) declaratory judgment
`that the 2020 Transaction was the product of undue influence by Loren Cohen; (2) a monetary
`judgment against defendants for violation of the Uniform Voidable Transactions Act (“UVTA”),
`chapter 19.40 RCW, for actual fraud (RCW 19.40.041(1)(a)) and constructive fraud (RCW
`19.40.040(1)(b)); (3) damages against defendants for Loren Cohen’s breaches of fiduciary duty to
`Michael; and (4) an award of attorneys’ fees under “any applicable constitutional, statutory, or
`equitable grounds.” Dkt. 108 at 35-40.
`The defendants, Loren Cohen individually, Loren Cohen as trustee of the LMC
`2.
`Family Trust, and the marital community of Holland and Loren Cohen (“The Cohen Parties”)
`will pursue at trial the following claim: Declaratory judgment that if the August 28, 2020
`Agreement and/or the Amended Agreement are deemed invalid, in whole or in part, the
`Agreements are rescinded, any consideration paid shall be returned, any assets Michael transferred
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`PRE-TRIAL ORDER -- 2
`3:23-cv-6142-TMC
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`

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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 3 of 278
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`to Amara or to the MAC Trust are assets of the Estate subject to creditor claims, the MAC Trust
`is not entitled to the Remaining Preferred Return, and if Loren’s equity position in estate assets is
`reduced, altered, or eliminated, Loren is entitled to compensation for his time spent dealing with
`those assets. Dkt. 172 at 71-75.
`The Cohen Parties will pursue the following affirmative defenses: (1) Defendants
`3.
`are entitled to an offset for any payments made for the benefit of the Estate; (4) Plaintiff has failed
`to mitigate her damages and/or protect herself from avoidable consequences; (5) Defendants assert
`equitable and promissory estoppel as to all claims by Plaintiff; (6) Plaintiff’s damages, if any, were
`caused by the acts or omissions of other defendants, third parties, or the Decedent Michael Cohen,
`over whom Loren Cohen had no control; (7) Plaintiff lacks standing to pursue some or all of the
`relief she claims;(8) enforcement of any securities transaction is barred by RCW 21.20.430(5) (9)
`Chapter 19.40 does not apply because the property was encumbered by a valid lien and therefore
`was not an “asset;” (10) The property transferred was taken in good faith and for reasonably
`equivalent value; and (11) Loren Cohen is a good-faith transferee under RCW 19.40.081(4) and
`is therefore entitled to a reduction in the amount of liability on any judgment.
`Crossclaim defendant Amara Cohen and Susan Cohen as Trustee of the Michael
`4.
`Arthur Cohen Spousal Equivalent Trust (the MAC Spousal Trust) (“Defendant MAC Spousal
`Trust”) will pursue at trial the following affirmative defenses and/or claims in response to Loren
`Cohen’s crossclaims: (1) failure to state a claim; (2) waiver and equitable estoppel; (3) collateral
`estoppel, judicial estoppel, and res judicata; (4) statutes of limitation; and (5) unclean hands. Dkt.
`114 at 7-8.
`The Estate of Michael Cohen as a counterclaim defendant will pursue at trial the
`5.
`following affirmative defenses and/or claims in response to Defendant Cohen’s counterclaims: (1)
`failure to state a claim; (2) full faith and credit must be given to the Washington State court orders
`pursuant to 28 U.S.C. Section 1738; (3) defendants’ counterclaims are barred by collateral estoppel
`and res judicata; (4) Loren Cohen engaged in the financial exploitation of Michael Cohen while
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`PRE-TRIAL ORDER -- 3
`3:23-cv-6142-TMC
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`

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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 4 of 278
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`he was a vulnerable adult; (5) Loren Cohen has unclean hands barring any equitable remedies; (6)
`Loren Cohen breached his fiduciary duties owed to the Decedent and the Decedent’s estate in
`relation to the properties located in Mexico; (8) Loren Cohen has refused to return property that
`the Estate has an interest in; (9) the Personal Representative is indemnified by the Estate for any
`costs or attorneys’ fees incurred relating to or arising from the probate or related litigation.; and
`(10) the Estate is entitled to an award of attorneys’ fees against the defendants under RCW
`11.96A.150 on all claims arising under or related to Title 11 RCW, including but not limited to the
`claims asserted by Loren Cohen and PC Collections that were dismissed with prejudice on
`summary judgment. Dkt. 170 at 9-12.
`Cohen Parties’ objection to the Estate’s statement of claims and defenses
`6.
`For the first time on March 27, 2025, the Estate alleges that it has a claim or affirmative
`defense for attorneys’ fees against defendants under RCW 11.96A.150. The Estate has never
`pleaded a request for fees under RCW 11.96A.150. There is no reference to RCW 11.96A.150 in
`its complaints or answers. Nor did the Estate give notice in its pretrial statement that it would
`pursue this unpled relief. The Cohen Parties object to the Estate’s attempts to plead a statutory
`basis for fees that is absent from its pleadings. Had the Cohen Parties known that Estate would
`make this claim, they would have asked to address this issue well in advance of the pretrial order.
`It is improper for the Estate to assert a claim for fees at this late date. The Cohen Parties further
`object to the Estate’s statement above that its claims “arise under Washington state law on probate
`administration (Title 11 RCW).” The Estate’s claims arise under common law and under RCW
`19.40 et seq. The Estate has not pleaded any claims under Title 11. The Cohen Parties maintain
`that the Estate’s late reference to Title 11 RCW is a back-end attempt to seek fees under RCW
`11.96A.150. In addition, to the extent that paragraph 5 above, or paragraph C.4, below, purports
`to assert counterclaims, we object. The Estate did not assert any counterclaims and cannot do so
`in the pretrial order.
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`PRE-TRIAL ORDER -- 4
`3:23-cv-6142-TMC
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`

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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 5 of 278
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`Amara Cohen et al. v. Loren Cohen et al.
`B.
`Plaintiffs Amara Cohen and Susan Cohen as Trustee of the MAC Spousal Trust
`1.
`(“Plaintiff MAC Spousal Trust”) will pursue at trial the following claims: (1) Loren Cohen made
`negligent misrepresentations, nondisclosures, acts, and omissions that were the direct and
`proximate cause of damages to the plaintiffs; and (2) Loren Cohen breached fiduciary duties that
`he owed to Amara Cohen in his capacity as trustee of the MAC Spousal Trust. Dkt. 114 at 18-19.
`Defendants Loren and Holland Cohen’s Answer was served on Amara and Susan
`2.
`Cohen in the State Court matter is the live responsive pleading under Federal Rule of Civil
`Procedure 81(c)(2). Amara and Susan Cohen filed the answer and ECF Doc. 169-2. Defendants
`Loren and Holland Cohen will pursue at trial the following claims/defenses (asserted at ECF Doc.
`169-2, pages 16-19 and in the alternative, if necessary): (1) rescission, unjust enrichment, and
`restitution; (2) declaratory judgment that the agreements are enforceable, but to the extent the court
`disagrees, a declaration on the relative rights of the parties and that any assets Michael transferred
`to the Amara or thew MAC trust are assets of the Estate and that the MAC Trust if not entited to
`the benefit of and consideration tendered or to be tendered under the 2020 Agreements; (3) lack of
`subject matter jurisdiction over these claims; (4) failure to state a claim; (5) limitations or laches;
`(6) failure to join an indispensable party; (7) estoppel; (8) waiver; (9) failure of consideration; (10)
`payment and release; (11) statute of frauds; (12) lack of standing; (13) illegality; (14) claims are
`barred by fraud or constructive fraud; (15) consent; (16) equitable subrogation, rescission, unjust
`enrichment, restitution; (17) unclean hands; (18) relief barred by RCW 21.20.430; (19) relief
`barred by 11.40.051.
`C. William Newcomer et al. v. Loren Cohen et al.
`Plaintiffs and defendants have dismissed their claims, affirmative defenses, and
`1.
`counterclaims with prejudice. See Dkt. 181 (dismissing Dkt. 65 at 9-12).
`Defendants Loren Cohen and PC Collections, LLC, et al. (“Loren Cohen and
`2.
`PCC”) will pursue at trial the following crossclaim for declaratory judgment against the Estate of
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`PRE-TRIAL ORDER -- 5
`3:23-cv-6142-TMC
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`

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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 6 of 278
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`Michael Cohen, Amara Cohen, the MAC Spousal Trust: (1) Newcomer’s assignment of judgment
`against Michael Cohen was valid and enforceable; (2) PC Collections has a valid charging order
`against any distributional rights Michael Cohen might have had to M&J Real Estate distributions
`or preferred returns in the absence of the 2020 Agreements; (3) Loren Cohen is entitled to the
`remedy of equitable subrogation for payments he or his companies made to third-party creditors
`after the purchase of Michael Cohen’s business interests that were debts personal to Michael
`Cohen; (6) the transfer of assets from Michael to Loren violated the WSSA; (7) the Memorandum
`of Understanding regarding property in Mexico signed by Loren and Michael is void and
`unenforceable. Dkt. 65 at 12-14.
`The United States intends to pursue the claims for relief it identified in its First Amended
`Answer, Crossclaim, and Counterclaim, Dkt. 14. Specifically, the United States seeks: (a)
`to reduce to judgment its federal tax assessment for Michael Cohen’s 2020 income taxes
`against Carol Vaughn as the personal representative of the Estate of Michael Cohen (and
`solely in her capacity as personal representative); and (b) a judgment that Michael Cohen’s
`transfer of his assets in the 2020 transaction is voidable under the Uniform Voidable
`Transfer Act (“UVTA”).
`Crossclaim defendant Amara Cohen and Susan Cohen as Trustee of the Michael
`3.
`Arthur Cohen Spousal Equivalent Trust (the MAC Spousal Trust) (“Defendant MAC Spousal
`Trust”) will pursue at trial the following affirmative defenses and/or claims in response to Loren
`Cohen’s crossclaims: (1) failure to state a claim; (2) waiver and equitable estoppel; (3) collateral
`estoppel, judicial estoppel, and res judicata; (4) statutes of limitation; and (5) unclean hands. Dkt.
`114 at 7-8
`The Estate of Michael Cohen as a crossclaim defendant will pursue at trial the
`4.
`following affirmative defenses and/: (1) failure to state a claim; (2) full faith and credit must be
`given to the Washington State court orders pursuant to 28 U.S.C. Section 1738; (3) defendants’
`claims are barred by collateral estoppel and res judicata; (4) Loren Cohen engaged in the financial
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`PRE-TRIAL ORDER -- 6
`3:23-cv-6142-TMC
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`

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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 7 of 278
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`exploitation of Michael Cohen while he was a vulnerable adult; (5) Loren Cohen has unclean hands
`barring any equitable remedies; (6) Loren Cohen breached his fiduciary duties owed to the
`Decedent and the Decedent’s estate in relation to the properties located in Mexico; (7) Loren
`Cohen has refused to return property that the Estate has an interest in; (8) the Personal
`Representative is indemnified by the Estate for any costs or attorneys’ fees incurred relating to or
`arising from the probate or related litigation; (9) Loren Cohen and PC Collections failed to file a
`creditor’s claim and their claims against the Estate arising from the 2020 Transfer are barred under
`the statute of limitations and RCW 11.40.051; (10) the Estate is entitled to an award of attorneys’
`fees against the defendants under RCW 11.96A.150 on all claims arising under or related to Title
`11 RCW, including but not limited to the declaratory judgment claim asserted by Loren Cohen
`and PC Collections that was dismissed with prejudice on summary judgment; and (9) the
`Deadman’s Statute, RCW 5.60.030 will prevent Loren Cohen and PC Collections from offering
`proof of their alleged claims. Dkt. 66 at 12-16.
`Defendant Loren Cohen will pursue at trial the following affirmative defenses in
`5.
`response to the United States’ claims: (1) statute of limitations; (2) laches; (3) estoppel; (4)
`payment; (5) statute of frauds; (6) waiver; (7) voiding the 2020 Transaction would result in no tax
`liability; (8) RCW 11.40.051 bars the United States’ claim; (9) the assets transferred to Loren
`Cohen by Michael Cohen were taken in good faith and for reasonably equivalent value; (10) Loren
`Cohen is a good-faith transferee under RCW 19.40.081(4) and is therefore entitled to a reduction
`in the amount of liability; and (11) any defense of theory that applies to the Estate’s UVTA claims
`applies to the Government’s UVTA claims. Dkt. 20 at 6-7.
`III. ADMITTED FACTS
`The following facts are admitted by the parties:
`A.
`The 2014 Transfer Agreement
`1. Michael Cohen was a general contractor and property developer who owned numerous
`construction and real estate development business entities.
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`PRE-TRIAL ORDER -- 7
`3:23-cv-6142-TMC
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 8 of 278
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`2. Under the 2014 Agreement, Loren was designated the Managing Director of the Company.
`Michael and Loren were designated “co-managers” of the Affiliated Entities.
`B.
`Events of 2020
`3. In January 2020, Michael was diagnosed with esophageal cancer.
`4. At the time of the transaction, lawsuits filed by Newcomer and companies controlled by
`Ken Thomsen and his family were pending. Michael was a defendant in both lawsuits.
`Loren was a defendant in the Thomsen lawsuit.
`5. Michael died on December 6, 2020. He was survived by his wife Amara Cohen, two minor
`children, his adult sons Loren Cohen and Lee Cohen, his sister Susan Cohen, and two
`brothers, Matthew and Mark.
`C.
`Relevant Probate Events
`6. Loren Cohen was appointed Personal Representative of the Estate of Michael Cohen on
`January 15, 2021. Loren Cohen did not request and was not granted non-intervention
`powers.
`7. After Michael’s death, Loren served as personal representative (“PR”) of Michael’s estate
`until he was later removed in December 2021. Dkt. 126-1; Dkt. 126-3.
`8. In January 2022, the superior court appointed Carol Vaughn as successor Personal
`Representative of the Estate of Michael Cohen.
`D.
`Creditor’s Claims.
`9. On February 3, 2021, Bank of America filed a creditor’s claim in the amount of $9,602.43.
`10. On March 3, 2021, William Newcomer filed a creditor’s claim in the amount of
`$600,000.00 plus interest at 20 percent per annum compounded monthly from November
`1, 2010 until paid, plus attorney's fees and costs.
`11. On January 6, 2023, William Newcomer was awarded judgment against the Estate of
`Michael Cohen in the Promissory Note Lawsuit that had been pending since 2016 in the
`amount of $3,643,994.73.
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`PRE-TRIAL ORDER -- 8
`3:23-cv-6142-TMC
`ic31rj01hh
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 9 of 278
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`12. On January 16, 2025, William Newcomer withdrew his creditor’s claim.
`13. On March 25, 2021, Jess Thomsen, Inc., Thomsen Ruston, LLC, HMC Family, LLC,
`Kenneth Thomsen, and Kathryn Thomsen filed a creditor’s claim for “not less than
`$25 million.” This creditor’s claim has not been withdrawn.
`14. On April 15, 2021, Julie McBride filed a creditor’s claim in the amount of $476,097.12.
`15. On April 19, 2021, Alaska USA Federal Credit Union filed a creditor’s claim in the amount
`of $29,593.60.
`16. On May 17, 2021, People’s Bank filed a creditor’s claim in the amount of “$365,044.06
`principal balance as of 05/05/21 + $6,778.81 accrued interest + $250.00 late charges.”
`17. On February 2, 2023, judgment was entered in favor of Plaintiff Peoples Bank against the
`Estate of Michael Cohen in the amount of $101,598.75 in Western District of Washington
`CASE NO. 3:21-cv-5882-RJB.
`18. On June 7, 2021, Wells Fargo filed a creditor’s claim in the amount of $79,669.25.
`19. On August 30, 2021, Hanmi Bank filed a creditor’s claim in the amount of $106,121.46.
`20. On February 11, 2022, DLA Piper filed a creditor’s claim in the amount of $5,775,265.38.
`21. On or about December 15, 2022, DLA Piper withdrew its creditor’s claim.
`22. On March 30, 2022, PCC filed a creditor’s claim in the amount of $7,128,875.81 plus
`post judgment interest at a rate of 12% until the claim is paid in full.
`
`23. On March 26, 2025, the Court dismissed PCC’s claim as untimely.
`24. On October 15, 2021, the Estate filed Form 1040 for Michael Cohen for tax year 2020,
`which self-reported owing $1,456,754 in tax.
`25. On November 22, 2021, the IRS assessed $1,456,754 against the Estate for the unpaid
`federal income tax, based on the amount self-reported as due.
`26. The IRS filed a Notice of Federal Tax Lien against the Estate with the Pierce County
`Auditor’s Office on June 22, 2022, Recording No. 202206220529.
`
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`PRE-TRIAL ORDER -- 9
`3:23-cv-6142-TMC
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 10 of 278
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`27. This tax debt has not been paid. It has accrued interest and penalties. The outstanding
`balance as of April 21, 2025, is $2,227,171.11.
`28. The Successor PR filed a Notice of Insolvency.
`29. None of the Remaining Preferred Return of $1,257,170.67 referred to in the 2020
`Transaction has been paid to the Estate.
`
`
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`IV. ISSUES OF LAW (NOT AGREED)
`IV.1 Plaintiff Estate’s Statement Regarding Issues of Law (agreed to by the United
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`States, Amara Cohen, the MAC Spousal Trust, and the United States; not agreed to by The Cohen
`Parties).
`
`The following are the issues of law to be determined by the court:
`A.
`UVTA Claim (Estate, United States, MAC Spousal Trust v. Loren Cohen).
`1.
`Transfer. Was the 2020 Agreement a “transfer” under RCW 19.40.011(17)?
`2.
`Asset. Was the consideration due Michael under the 2014 Agreement, and/or
`Michael’s 49.9% interest in the Company, and/or Michael’s 49.9% interest in the Affiliated
`Entities, and/or Michael’s interest in the Additional Affiliated Entities, and/or Michael’s interest
`in the Management Entities, and/or Michael’s interest in the Partnership Entities an “asset” under
`RCW 19.40.011(2)?
`Creditors and Claims. Are the United States, the Decedent’s minor children through
`3.
`the RCW 11.54 Petition filed by the GAL, and parties who have filed timely creditor’s claims
`under RCW 11.40, “creditors” under RCW 19.40.011(4), and are their demands for payment from
`the Estate “claims” as defined under RCW 19.40.011(3)?
`Judicial Estoppel. Can Loren take positions regarding the value of assets
`4.
`transferred under the 2020 Agreement that differ from his representations under penalty of perjury
`to regulatory bodies and in other judicial proceedings?
`Actual Fraud (RCW 19.40.041(1)(a), (2)). Did Michael have the actual intent to
`5.
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`PRE-TRIAL ORDER -- 10
`3:23-cv-6142-TMC
`ic31rj01hh
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 11 of 278
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`hinder, delay or defraud his creditors when he entered into the 2020 Agreement that modified the
`consideration due under the 2014 Agreement and transferred Michael’s remaining interest in the
`Company, the Affiliated Entities, the Additional Affiliated Entities, the Management Entities, and
`the Partnership Entities to Loren Cohen shortly before he died? Specifically:
`a. Was the transfer to an insider?
`b. Did Michael retain possession or control of the property transferred?
`c. Was the transfer disclosed or concealed?
`d. Before the transfer was made, had Michael been sued or threatened with
`suit?
`e. Was the transfer of substantially all of Michael’s assets?
`f. Was the value of the consideration received by the debtor reasonably
`equivalent to the value of the asset transferred?
`g. Was Michael insolvent or did he become insolvent shortly after the transfer
`was made?
`h. Did the transfer occur shortly before or shortly after a substantial debt was
`incurred?
`i. Did Michael transfer essential assets of the business to a lienor who
`transferred the assets to an insider?
`Constructive Fraud (RCW 19.40.041(1)(b)). Were the modification of the 2014
`6.
`Agreement and the transfer of Michael’s assets to Loren shortly before Michael’s death a transfer
`done without receiving a reasonably equivalent value and at a time when Michael was engaged in
`a business or transaction for which his remaining assets were unreasonably small or Michael
`intended or reasonably should have believed that he would incur debts beyond his ability to pay
`as they became due? Specifically:
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`PRE-TRIAL ORDER -- 11
`3:23-cv-6142-TMC
`ic31rj01hh
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`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 12 of 278
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`a. Did Loren give Michael reasonably equivalent value for the Company, the
`Affiliated Entities, and the Additional Affiliated Entities at the time of the
`transfer?
`b. How much of the Preferred Return under the 2014 Agreement was still
`owed in 2020; i.e., was the Remaining Preferred Return stated in the 2020
`Transaction the amount that was actually due, or did this figure represent a
`reduction of the consideration owed under the 2014 Agreement? If it was a
`reduction, did Loren give Michael reasonably equivalent value for the
`modification of the Remaining Preferred Return?
`c. What is the value of the indemnity provision in the 2020 Transaction, who
`has the burden of proving this value, and how is the value to be measured?
`Transferee Liability (RCW 19.40.081(1)). If the plaintiffs establish actual or
`7.
`constructive intent, can Loren establish that he “took in good faith and for a reasonably equivalent
`value”?
`Is the Estate entitled to judgment against Loren for the “amount necessary to satisfy
`8.
`the creditor’s claim,” or the value of the assets transferred, whichever is less, under RCW
`19.40.081(2)(a), and “[a]ny other relief the circumstances may require,” under RCW 19.40.071.
`Attorney Fees. If the Estate prevails on this claim, is it entitled to an award of
`9.
`attorneys’ fees against Loren Cohen under RCW 11.96A.150?
`B.
`Breach of Fiduciary Duty Claim (Estate v. Loren Cohen).
`1.
`Did Loren Cohen have a fiduciary relationship with Michael Cohen prior to and
`during the 2020 Transaction?
`If Loren is found to have been in a fiduciary relationship with Michael, did Loren
`2.
`Cohen breach his fiduciary duty of loyalty and good faith by entering into the 2020 Transaction
`with Michael?
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`PRE-TRIAL ORDER -- 12
`3:23-cv-6142-TMC
`ic31rj01hh
`
`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
`
`
`
`
`

`

`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 13 of 278
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`If Loren breached his fiduciary duties owed to Michael, did his breaches cause
`3.
`financial harm to Michael and Michael’s Estate, and if they did, what amount is necessary to
`make the Estate whole for these losses?
`If Loren is liable for breach of fiduciary duty, can he establish any basis for reducing
`4.
`the judgment based on offsets or equitable subrogation that he allegedly paid on Michael’s behalf?
`Are Loren’s claims for offset and equitable subrogation barred by unclean hands or
`5.
`estoppel?
`Attorney Fees. If the Estate prevails on this claim, is it entitled to an award of
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`attorneys’ fees against Loren Cohen under RCW 11.96A.150?
`C.
`Undue Influence Claim (Estate v. Loren Cohen).
`1.
`Was Loren Cohen in a fiduciary or confidential relationship with Michael Cohen at
`the time of the 2020 Agreement?
`Did Michael transfer assets to Loren for less than equivalent value while Loren was
`2.
`in a fiduciary or confidential relationship with Michael?
`Does Loren Cohen have the burden of proving by clear, cogent and convincing
`3.
`evidence that he did not unduly influence Michael because the 2020 Agreement was an inter vivos
`transfer for less than full value, see, e.g., Endicott v. Saul, 142 Wn. App. 899, 909-10, 176 P.3d
`560 (2008), or does the Estate have the burden of proving by clear, cogent and convincing evidence
`that Loren Cohen unduly influenced Michael to procure the 2020 Agreement, see, e.g., In re Estate
`of Barnes, 185 Wn.2d 1, 367 P.3d 580 (2015)?
`If Loren has the burden of proof, has Loren produced clear, cogent and convincing
`4.
`evidence that the 2020 Transaction was not the product of undue influence?
`If the Estate has the burden of proof, has the Estate produced clear, cogent, and
`5.
`convincing evidence that the 2020 Transaction was the product of undue influence by Loren?
`Attorney Fees. If the Estate prevails on this claim, is it entitled to an award of
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`attorneys’ fees against Loren Cohen under RCW 11.96A.150?
`
`PRE-TRIAL ORDER -- 13
`3:23-cv-6142-TMC
`ic31rj01hh
`
`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
`
`
`
`
`

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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 14 of 278
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`Negligence (MAC Spousal Trust v. Loren Cohen).
`D.
`Did Loren owe Amara and the MAC Spousal Trust a duty of care based upon his
`1.
`position as Trustee and legal advisor of the MAC Spousal Trust?
`Did Loren breach his duty of care by misrepresenting in the 2020 Agreement that
`2.
`the CWS Investment was new consideration when it was already being held for the Trust’s benefit?
`Did Loren breach his duty of care by falsely advising Amara Cohen that she needed
`3.
`to enter into the Successor Trustee Agreement to replace Loren as Trustee?
`Did Loren breach his duty of care by including waiver and release provisions in the
`4.
`Successor Trustee Agreement that were detrimental to Amara without explaining their
`significance.
`Did Loren’s breaches cause financial harm to Amara Cohen and the MAC Spousal
`5.
`Trust and what measure of damages is necessary to compensate Amara and the Trust for their
`losses?
`Breach of Fiduciary Duty (MAC Spousal Trust v. Loren Cohen).
`E.
`Was Loren a fiduciary in his role as trustee of the MAC Spousal Trust?
`1.
`Did Loren owe Amara Cohen fiduciary duties of care, loyalty, and good faith in his
`2.
`role as trustee of the MAC Spousal Trust?
`Did Loren breach his fiduciary duties by acts and omissions, including but not
`3.
`limited to:
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`a. Reducing the consideration owed to the Trust under the 2014 Agreement
`for the benefit of Loren and his companies;
`b. Failing to consult Amara regarding material transactions affecting the Trust;
`c. Drafting agreements that benefited himself at the expense of the Trust;
`d. Failing to advise Amara to seek independent counsel regarding agreements
`that affected her rights;
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`PRE-TRIAL ORDER -- 14
`3:23-cv-6142-TMC
`ic31rj01hh
`
`THOMPSON HOWLE VAUGHN
`1200 FIFTH AVENUE, SUITE 625
`SEATTLE, WASHINGTON 98101
`206-682-8400 (tel.) 206-682-9491 (fax)
`
`
`
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`

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`Case 3:23-cv-06142-TMC Document 271 Filed 04/10/25 Page 15 of 278
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`e. Including self-serving provisions in agreements while serving as Trustee;
`and
`f. Failing to distribute the Mexican assets that were supposed to go to the
`Trust?
`Did Loren’s breaches cause financial harm to Amara Cohen and the Trust, and what
`4.
`measure of damages is necessary to compensate Amara and the Trust for their losses?
`
`F.
`Equitable Subrogation and Indemnification
`1.
`If the plaint