Also great is this November 2 post that presents a "character study" of investment bankers.
Saturday, November 21, 2009
The Epicurean Dealmaker - Skewering the Bailouts and Bankers
Posts to The Epicurean Dealmaker (TED) blog are infrequent but have been especially wonderful this month. The best is this week's post skewering the government's pre-election decisions on AIG and Goldman. The post was good enough that Paul Krugman cited and quoted it for this recent column that followed up on the SIGTARP report on AIG, Goldman and TARP.
Friday, November 20, 2009
Global Choice of Law Issues for D & O Coverage - Contract Issues
This post at Kevin LaCroix's D & O Diary covers an interesting new decision from Canada on global choice of law issues arising from D & O policies, and identifies contract clauses that might be changed to obtain better outcomes. Here's an excerpt:
"The November 12 Opinion
In his November 12, 2009 decision (here), Justice Walker determined that British Columbia law is the proper law to be applied to the interpretation of the policy.
He began with the determination that the parties intended different laws to apply to different parts of the policy (a choice of law principle known as dépeçage). In reaching this conclusion, Justice Walker referenced several different parts of the policies at issue, including in particular the primary policy’s definition of "Loss," which contained a provision specifying that the policy’s coverage for punitive and exemplary damages would be determined under the law most favorable to the insured. Justice Walker also referenced the policy’s Oregon state amendatory endorsements, which specified that Oregon law would govern any disputes regarding alleged misrepresentations in the insurance application.
Justice Walker determined that given these clause-specific choice of law provisions, and given the absence from the policies of any general choice of law provisions, the "proper law" governing the disputes arising under other policy provisions "is left to be determined by the court hearing the dispute to find based on the application of its own laws, taking into account the directing language in the policies."
Reviewing these circumstances in this light, and discounting the policies’ various connection to jurisdictions in the United States, and applying British Columbia choice of law principles, Justice Walker concluded that "the policies have the closest and most substantial connection with BC," and therefore BC law governs the coverage dispute presented by the receiver.
In substantiating this decision, Justice Walker stated that given the importance of the Canadian subsidiary, "most of the claims could be expected to arise from Canadian operations," and he stressed that the P&T Ltd. employees’ wage claims are "unique to Canadian operations" and have "no equivalent in Oregon," as a result of which Justice Walker concluded that "the proper law of the policies to determine the carriers’ coverage obligations for these claims is BC law."
He added that the parties "would reasonably have expected BC law to apply to determine the insurers’ coverage obligations."
"The November 12 Opinion
In his November 12, 2009 decision (here), Justice Walker determined that British Columbia law is the proper law to be applied to the interpretation of the policy.
He began with the determination that the parties intended different laws to apply to different parts of the policy (a choice of law principle known as dépeçage). In reaching this conclusion, Justice Walker referenced several different parts of the policies at issue, including in particular the primary policy’s definition of "Loss," which contained a provision specifying that the policy’s coverage for punitive and exemplary damages would be determined under the law most favorable to the insured. Justice Walker also referenced the policy’s Oregon state amendatory endorsements, which specified that Oregon law would govern any disputes regarding alleged misrepresentations in the insurance application.
Justice Walker determined that given these clause-specific choice of law provisions, and given the absence from the policies of any general choice of law provisions, the "proper law" governing the disputes arising under other policy provisions "is left to be determined by the court hearing the dispute to find based on the application of its own laws, taking into account the directing language in the policies."
Reviewing these circumstances in this light, and discounting the policies’ various connection to jurisdictions in the United States, and applying British Columbia choice of law principles, Justice Walker concluded that "the policies have the closest and most substantial connection with BC," and therefore BC law governs the coverage dispute presented by the receiver.
In substantiating this decision, Justice Walker stated that given the importance of the Canadian subsidiary, "most of the claims could be expected to arise from Canadian operations," and he stressed that the P&T Ltd. employees’ wage claims are "unique to Canadian operations" and have "no equivalent in Oregon," as a result of which Justice Walker concluded that "the proper law of the policies to determine the carriers’ coverage obligations for these claims is BC law."
He added that the parties "would reasonably have expected BC law to apply to determine the insurers’ coverage obligations."
Thursday, November 19, 2009
State Secrets Privilege - Should The Alleged Victim Be Compensated When the Government Chooses to Exercise the Privilege ?
Here is an interesting NLJ article on the state secrets privilege from a law professor and dean with an impressive background in both public interest litigation and academics. The law professor, Alan B. Morrison, currently is the Lerner Family Associate Dean for Public Interest and Public Service Law at the George Washington University School of Law. In short, he suggests that the price for exercising the privilege should be that the government pays for the harm caused. Here are two key paragraphs:
"The problem to date has been that the arguments have all been about whether the claims of secrecy are actually justified and who should decide that. The best way around that debate is for Congress to pass a law saying to the intelligence community, "You can keep your secrets, but you (the U.S. Treasury) must pay the claimant's damages if you won't allow the case to be tried in the ordinary fashion." That's what the law says will happen if the government wants to take my land to build a military base, and that same principle should apply in these cases as well.
"The problem to date has been that the arguments have all been about whether the claims of secrecy are actually justified and who should decide that. The best way around that debate is for Congress to pass a law saying to the intelligence community, "You can keep your secrets, but you (the U.S. Treasury) must pay the claimant's damages if you won't allow the case to be tried in the ordinary fashion." That's what the law says will happen if the government wants to take my land to build a military base, and that same principle should apply in these cases as well.
Here's how such a law might work. Cases would be filed in the usual way, and if the government contended that state secrets might have to be divulged if the case were tried, it would make whatever efforts it could to dismiss the case on nonstate secrets grounds. But if that failed, the attorney general could formally invoke the state secrets privilege. At that point, the case would be transferred to the Court of Federal Claims, which hears claims against the government that it has taken someone's property without compensation. However, once the government invoked the state secrets defense, it would lose its right to contest its liability: The only issue remaining would be the proper amount of actual, but not punitive, damages."
Toyota's Issues Move Towards Arbitration
Here is an update on the Toyota situation. The claims of the former inside counsel have been sent to arbitration, and RICO claims were dismissed.
Wednesday, November 18, 2009
Daubert Case Law, Alzheimer's and Fundamental Research
Wondering what the Daubert case law will look like in a few years as great new science pushes past epidemiology as new machines and techniques make cause and effect more or less directly observable ? Worried about Alzheimer's perhaps being part of your future and wondering what's ahead? Wondering why nations need to invest more n fundamental science at national laboratories such as Brookhaven and Argonne ? If any of those topics are in mind, consider reading a short article that reports on a new molecular level discovery made by scientists at the storied Cold Springs Harbor Laboratory using the National Synchrotron Light Source at Brookhaven National Laboratory. For the article online, go to ScienceDaily (Nov. 13, 2009). Key excerpts are below:
"A team of scientists at Cold Spring Harbor Laboratory (CSHL) reports on Thursday their success in solving the molecular structure of a key portion of a cellular receptor implicated in Alzheimer's, Parkinson's, and other serious illnesses
***
"Without a highly detailed molecular picture of the ATD, however, efforts to rationally design inhibitors cannot proceed. Hence the importance of Furukawa's achievement: a crystal structure revealed by the powerful light source at Brookhaven National Laboratory, that shows the ATD to have a "clamshell"-like appearance that is important for its function. The results are published in a paper appearing online Thursday ahead of print in The EMBO Journal, the publication of the European Molecular Biology Organization. (emphasis added)
The team obtained structures of the ATD domain with and without zinc binding to it. Zinc is a natural ligand that docks at a spot within the "clamshell" in routine functioning of the NMDA receptor. Of much greater interest is the location and nature of a suspected binding site of a small molecule type that is known to bind the ATD and inhibit the action of the NMDA receptor.
These inhibitor molecules are members of a class of compounds called phenylethanolamines which "have high efficacy and specificity and show some promise as neuroprotective agents without side effects seen in compounds that bind at the extracellular domain of other receptors," Furukawa explains. Now that his team has solved the structure of the ATD domain of the NR2B subunit, it becomes possible to proceed with rational design of a phenylethanolamine-like compound that can precisely bind the ATD within what Furukawa and colleagues call its "clamshell cleft," based on the crystal structure they have obtained."
"A team of scientists at Cold Spring Harbor Laboratory (CSHL) reports on Thursday their success in solving the molecular structure of a key portion of a cellular receptor implicated in Alzheimer's, Parkinson's, and other serious illnesses
***
"Without a highly detailed molecular picture of the ATD, however, efforts to rationally design inhibitors cannot proceed. Hence the importance of Furukawa's achievement: a crystal structure revealed by the powerful light source at Brookhaven National Laboratory, that shows the ATD to have a "clamshell"-like appearance that is important for its function. The results are published in a paper appearing online Thursday ahead of print in The EMBO Journal, the publication of the European Molecular Biology Organization. (emphasis added)
The team obtained structures of the ATD domain with and without zinc binding to it. Zinc is a natural ligand that docks at a spot within the "clamshell" in routine functioning of the NMDA receptor. Of much greater interest is the location and nature of a suspected binding site of a small molecule type that is known to bind the ATD and inhibit the action of the NMDA receptor.
These inhibitor molecules are members of a class of compounds called phenylethanolamines which "have high efficacy and specificity and show some promise as neuroprotective agents without side effects seen in compounds that bind at the extracellular domain of other receptors," Furukawa explains. Now that his team has solved the structure of the ATD domain of the NR2B subunit, it becomes possible to proceed with rational design of a phenylethanolamine-like compound that can precisely bind the ATD within what Furukawa and colleagues call its "clamshell cleft," based on the crystal structure they have obtained."
Tuesday, November 17, 2009
US Chapter 11 Filing Opens the Door To Discovery of Otherwise Unavailable Records - Mass Tort Implications ?
A US bankruptcy court in Delaware ruled that an overseas company that files for chapter 11 in the US will be subject to discovery regardless of the law of its home country. This ruling could be big in some particular mass tort situations since it might make available myriad corporate records that would not otherwise be available.
Here is a Mayer Brown article on the ruling. The key excerpts from the article are as follows:
"In a decision that highlights the uncertain terrain faced by US litigants involved in overseas discovery, the United States Bankruptcy Court for the District of Delaware held on October 28 that the Federal Rules of Civil Procedure trump a French “Blocking Statute” that restricts discovery. The Blocking Statute, French Penal Code Law No. 80-538, imposes criminal penalties on any French national or corporation that engages in discovery under a foreign judicial system without using the procedures of the Hague Evidence Convention—letters rogatory or letters of commission. In In re Global Power Equipment Group, Inc., No. 06-11045, 2009 WL 3464212 (Bankr. D. Del. Oct. 28, 2009), the court ordered a claimant in the Global Power bankruptcy proceeding, Maasvlakte Energie B.V., to produce documents and personnel for depositions from its French affiliate. It ordered production even though Maasvlakte had claimed, belatedly, that this discovery would violate the French Blocking Statute and expose its affiliate to prosecution in France.
In response to the bankruptcy plan administrator’s discovery requests, Maasvlakte initially agreed to produce documents and witnesses, and identified its affiliate’s French documents as likely to be relevant, without mentioning the Blocking Statute. Maasvlakte first raised the French Blocking Statute only three days before it was scheduled to produce documents, arguing that the statute required the administrator to follow Hague Convention procedures to obtain discovery in France. After the administrator moved to compel Maasvlakte to produce the documents and deponents, the court rejected Maasvlakte’s position. It held that the Blocking Statute did not prevent it from applying the Federal Rules, and it ordered Maasvlakte to produce the documents and witnesses.
The court emphasized the fact that when Maasvlakte filed its bankruptcy claim it had submitted to the court’s jurisdiction, and that using the Hague Evidence Convention procedures would slow resolution of the claim. The court held that considerations of comity established by the Supreme Court in Société Nationale Industrielle Aérospatiale v. United States Dist. Court for S.D. Iowa, 482 U.S. 522 (1987), weighed in favor of application of the Federal Rules, particularly in light of the fact that the subject matter of the disputed claim was centered in the Netherlands, rather than in France."
Here is a Mayer Brown article on the ruling. The key excerpts from the article are as follows:
"In a decision that highlights the uncertain terrain faced by US litigants involved in overseas discovery, the United States Bankruptcy Court for the District of Delaware held on October 28 that the Federal Rules of Civil Procedure trump a French “Blocking Statute” that restricts discovery. The Blocking Statute, French Penal Code Law No. 80-538, imposes criminal penalties on any French national or corporation that engages in discovery under a foreign judicial system without using the procedures of the Hague Evidence Convention—letters rogatory or letters of commission. In In re Global Power Equipment Group, Inc., No. 06-11045, 2009 WL 3464212 (Bankr. D. Del. Oct. 28, 2009), the court ordered a claimant in the Global Power bankruptcy proceeding, Maasvlakte Energie B.V., to produce documents and personnel for depositions from its French affiliate. It ordered production even though Maasvlakte had claimed, belatedly, that this discovery would violate the French Blocking Statute and expose its affiliate to prosecution in France.
In response to the bankruptcy plan administrator’s discovery requests, Maasvlakte initially agreed to produce documents and witnesses, and identified its affiliate’s French documents as likely to be relevant, without mentioning the Blocking Statute. Maasvlakte first raised the French Blocking Statute only three days before it was scheduled to produce documents, arguing that the statute required the administrator to follow Hague Convention procedures to obtain discovery in France. After the administrator moved to compel Maasvlakte to produce the documents and deponents, the court rejected Maasvlakte’s position. It held that the Blocking Statute did not prevent it from applying the Federal Rules, and it ordered Maasvlakte to produce the documents and witnesses.
The court emphasized the fact that when Maasvlakte filed its bankruptcy claim it had submitted to the court’s jurisdiction, and that using the Hague Evidence Convention procedures would slow resolution of the claim. The court held that considerations of comity established by the Supreme Court in Société Nationale Industrielle Aérospatiale v. United States Dist. Court for S.D. Iowa, 482 U.S. 522 (1987), weighed in favor of application of the Federal Rules, particularly in light of the fact that the subject matter of the disputed claim was centered in the Netherlands, rather than in France."
Monday, November 16, 2009
New Science from Australia for Persons with Mesothelioma
Courtesy of a friend in Australia, here is a link to a story on new radiotherapy science developed in Australia that is bringing some new hope for perhaps two more years of life for persons suffering from mesothelioma. Key excerpts are as follows:
Breakthrough in fight against mesothelioma
By Lindy Kerin for AM
AM abc.net.au/am
Posted Fri Nov 13, 2009 11:11am AEDT
Updated Fri Nov 13, 2009 11:22am AEDT
A new radiation technique can improve the life expectancy for sufferers.
A new radiation technique can improve the life expectancy for sufferers. (www.sxc.hu: Adam Ciesielski, file photo)
Australian experts are offering new hope to mesothelioma sufferers, claiming a breakthrough in the treatment of the aggressive cancer.
Specialists at the Austin Health Centre in Victoria have discovered a new radiation technique which can improve the life expectancy for sufferers.
Every year, around 700 Australians find out they have mesothelioma. The deadly cancer, which attacks the lungs, is mostly caused by exposure to asbestos.
On average sufferers are given just two years to live after diagnosis.
Dr Malcolm Feigen, a Radiation Oncologist at the Austin Health Centre in Victoria, has for the past seven years been developing new techniques for treating mesothelioma, involving high doses of radiotherapy.
"Gradually with new technologies and better equipment we've been able to increase our doses and look at the results by doing PET scans before they start the radiotherapy and PET scans after they've finished to see what difference we've made," he said.
"And we've been very impressed that in most cases there's a considerable improvement in the activity of the tumour masses that we've given high doses of radiotherapy. And most patients have got through the course of treatment with no major side effects and some have had long-term benefits."
Dr Feigen says patients treated only with chemotherapy mostly have short-term benefits and then the cancer comes back.
"But with radiotherapy it doesn't come back in the same area and if we find patients early enough we may be able to stop any further developments of their disease," he said.
All up, 13 patients were involved in the pilot program.
Breakthrough in fight against mesothelioma
By Lindy Kerin for AM
AM abc.net.au/am
Posted Fri Nov 13, 2009 11:11am AEDT
Updated Fri Nov 13, 2009 11:22am AEDT
A new radiation technique can improve the life expectancy for sufferers.
A new radiation technique can improve the life expectancy for sufferers. (www.sxc.hu: Adam Ciesielski, file photo)
Australian experts are offering new hope to mesothelioma sufferers, claiming a breakthrough in the treatment of the aggressive cancer.
Specialists at the Austin Health Centre in Victoria have discovered a new radiation technique which can improve the life expectancy for sufferers.
Every year, around 700 Australians find out they have mesothelioma. The deadly cancer, which attacks the lungs, is mostly caused by exposure to asbestos.
On average sufferers are given just two years to live after diagnosis.
Dr Malcolm Feigen, a Radiation Oncologist at the Austin Health Centre in Victoria, has for the past seven years been developing new techniques for treating mesothelioma, involving high doses of radiotherapy.
"Gradually with new technologies and better equipment we've been able to increase our doses and look at the results by doing PET scans before they start the radiotherapy and PET scans after they've finished to see what difference we've made," he said.
"And we've been very impressed that in most cases there's a considerable improvement in the activity of the tumour masses that we've given high doses of radiotherapy. And most patients have got through the course of treatment with no major side effects and some have had long-term benefits."
Dr Feigen says patients treated only with chemotherapy mostly have short-term benefits and then the cancer comes back.
"But with radiotherapy it doesn't come back in the same area and if we find patients early enough we may be able to stop any further developments of their disease," he said.
All up, 13 patients were involved in the pilot program.
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