Judge Won’t Accept Merck Documents For Truth

This time, it’s all about the documents. The 179 documents that Defendants attached to their motion to dismiss in the Merck securities class action to be exact (sure would hate to be the clerk working this docket). Anyway, after considering Plaintiffs’ objections to 139 of the documents, Magistrate Judge Tonianne J. Bongiovanni (D. N.J.) came to different conclusions regarding different groups of documents, but the recurring theme throughout (for the exhibits where judicial notice was accepted) was that "this Court will not admit the exhibits for their truth, but rather, for the limited purpose of proving their existence."

For the specifics, check out In re Merck, issued January 20, 2006, at 2006 U.S. Dist. LEXIS 2345.

Nugget: "The fact that the SEC forms submitted by Defendants in their Motion to Dismiss are in chart summary form does not dissuade as they were not crafted by a third-party and as Plaintiffs will be permitted to challenge their veracity if they so choose."

Amend Away

Looks like the Plaintiffs in the long running Adams Golf securities class action will get to file a second amended complaint. Judge Kent A. Jordan (D. Del.) (remember the famous Money Race quote) listened to Defendants position "that they will be unduly prejudiced by the proposed amendments unless the case schedule is amended to allow sufficient time for additional discovery" and "that the proposed amendments are futile."

Judge Jordan rejected Defendants’ prejudice argument since "discovery would be stayed pending decision on Defendants' motion to dismiss." As for futility, he recognized that Defendants themselves "believe that it may be more appropriate to fully address the new claims' shortcomings on a motion to dismiss rather than in an opposition to Plaintiffs' motion." OK then. So, "since Defendants do no more than outline a basic sense for the proposed amendment's futility" in preparation for such a motion to dismiss, the issue will not be decided here."

You can read In re Adams Golf, issued January 24, 2006, at 2006 U.S. Dist. LEXIS 2542.

Nugget: "According to the Federal Rules of Civil Procedure, leave to amend shall be freely given by the court when justice so requires. A policy of favoring decisions on the merits, rather than on the technicalities, underlies this Rule."

Seventh Circuit Addresses Scienter Standards

Finally. The Seventh Circuit has spoken. All the other numbered Circuits (i.e. not Federal or D.C.) had long ago set their scienter pleading standards for the PSLRA, but somehow the Seventh just never got the chance. Well, you can stop holding your breath now, because it has happened. The opinion, which was authored by Judge Diane Pamela Wood, and joined by veteran Judge Kenneth Francis Ripple and recent George W. Bush appointee and once-rumored Supreme Court nominee Judge Diane S. Sykes, has something for both future plaintiffs and defendants to rejoice and complain about.

What did they hold? Well, in a nutshell, the Panel rejected the Ninth Circuit standard for the "required state of mind," choosing to instead go with the other Circuits, once again leaving the Ninth all alone. As for the "strong inference" standard, they picked the middle path already chosen by six Circuits, meaning that courts "should examine all of the allegations" in the complaint, and then decide "whether collectively they establish an inference."

The Panel was also concerned about "usurpation of the jury's role," holding that "instead of accepting only the most plausible of competing inferences as sufficient," "we will allow the complaint to survive if it alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent." However, the court largely rejected the group pleading doctrine for scienter, saying that "plaintiffs must create this inference with respect to each individual defendant in multiple defendant cases."

Result: Dismissal affirmed in part, and reversed in part.

You can read Makor v. Tellabs, issued January 25, 2006, here and you can even listen to the oral argument here. If these links stop working, simply go here and search for the case. As of print time, it is not even in Lexis yet.

Nugget: "Motive and opportunity may be useful indicators, but nowhere in the statute does it say that they are either necessary or sufficient."

D.C. Circuit Speaks on PSLRA For First Time

In the ten years since the enactment of the PSLRA, it seems the D.C. Circuit Court of Appeals has never once mentioned the statute in a reported case -- until now. In evaluating an appeal from the dismissal "with prejudice" of Plaintiffs’ claims against accounting firm Radin Glass & Co. and CIBC World Markets Corp., the Panel (led by Chief Judge Douglas H. Ginsburg) held that "the district court did not err in determining [Plaintiff’s] oral request to amend her complaint was not a proper motion for leave." "The district court did, however, fail adequately to explain" "why it dismissed [Plaintiff’s] complaint with prejudice," so "we therefore vacate the order of dismissal and remand the case for the district court to enter a new order either dismissing without prejudice or explaining its dismissal with prejudice in a manner consistent with this opinion."

You can read Belizan v. Simon Hershon, issued January 17, 2006, here or at 2006 U.S. App. LEXIS 1018.

Nugget: "Dismissal with prejudice is warranted only when a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency."

Judge Likes Fact Summary More Than Complaint

Here’s something to think about next time you’re cranking out that amended complaint you thought was concise. You see, after striking certain portions of Plaintiffs’ complaint in the Netopia securities class action, and while allowing Plaintiffs to amend their complaint again, Judge Ronald M. Whyte (N.D. Cal.) expressed his displeasure with the length of their “fifty-page complaint.” Judge Whyte said he “understands the defendants' attempt to prune the complaint down to a manageable size through their motion to dismiss or strike,” as “the complaint is needlessly cumbersome, “and “plaintiffs do not need anywhere near fifty pages to state two causes of action against five defendants, even under the heightened pleading standards of the Reform Act.”

Judge Whyte also pointed out that “in their opposition to the defendants' motion to dismiss or strike, the plaintiffs filed a thirty-two-page memorandum of points and authorities. Ten of these pages are a summary of the factual allegations of the complaint. This ten-page summary appears to the court to be a much more useful version of the complaint, and shows that the plaintiffs can present the complaint in a shorter form.” So, “as a matter of prudent case management, the court will order Plaintiffs to file a streamlined version of their complaint which does not exceed thirty-five pages within twenty days of the date of this order.”

You can read In re Netopia, issued December 15, 2005, at 2005 U.S. Dist. LEXIS 38823.

Nugget: “Kadish whispering into the ear of Farrell while she spoke to Andalcio is certainly suspicious, but plaintiffs do not provide the substance of Kadish's instructions to Farrell.”

You Can Run, But You Can’t Hide

Last week, Judge Joel A. Pisano (D. N.J.) called it like he saw it in the World Access securities class action, and that meant labeling Plaintiffs’ tactics as "the most blatant example of forum shopping seen by this Court." You see, the original World Access cases were filed and consolidated in the Northern District of Georgia, where they were overseen by Judge Orinda D. Evans. Judge Evans slowly turned the case into nothing over several years, first denying class certification, and then tossing the two individual plaintiffs’ remaining claims on summary judgment.

So, even though "most, if not all, of the essential acts, transactions, and wrongful conduct at issue occurred in the Northern District of Georgia," some new Plaintiffs filed the case again, this time in the District of New Jersey. Not surprisingly, Judge Pisano has decided to ship the new action back to Judge Evans in Georgia, as "considering her familiarity with this case, Judge Evans will be able to provide the parties with a more expeditious resolution of this long pending matter than the parties would achieve in this Court."

Oh, it’s sure to be expeditious all right. Maybe painful too.

You can read Yang v. Odum, issued January 17, 2006, at 2006 U.S. Dist. LEXIS 1279.

Nugget: "With great respect to the Northern District of Georgia's previous disposition of the various issues presented in this litigation, and being critical of Plaintiffs' attempt to frustrate Judge Evans's previous efforts, this Court orders this case transferred to the Northern District of Georgia."

Everybody Together Now

So here’s the situation confronting you in the First Bancorp securities class action. You have an institutional investor (Plumbers and Pipefitters Local 51 Pension Fund) and two individuals (Robert Fox and Marquita McLaughlin ) fighting over the Lead Plaintiff spot. The individuals lost $30,045 and $169,200, but the fund lost a paltry $2000. Appoint the individuals, right? Not so fast there McGraw, seems Judge Jed S. Rakoff (S.D.N.Y.) has other plans.

You see, "after conducting in-court interviews of Fox and McLaughlin," (who wouldn’t want to fly from sunny Puerto Rico to NYC in the middle of winter?) "the Court became acutely aware that McLaughlin has very little investment expertise and virtually no prior experience with litigation of this kind. Moreover, her First BanCorp holdings were limited to preferred stock," and "although Dr. Fox has more relevant experience, his investment in First BanCorp occurred under circumstances that may give rise to 'special defenses' in his case." (neither you or the Defendants get to know what those are because they were filed under seal).

"On the other hand, while the Pension Fund has the expertise to prosecute the litigation in the manner contemplated by the PSLRA, the small size of its loss may diminish its incentive to carry out that function vigorously. Also, there are special defenses that may be raised against the Pension Fund different from those that may be raised against Fox and McLaughlin." (yep, those are under seal too).

Solution? Well, "under the unusual circumstances here presented, the Court concludes that all three proposed lead plaintiffs should be appointed co-lead plaintiffs and that their respective counsel should function as co-lead counsel in the prosecution of the class action."

You can read Plumbers and Pipefitters v. First Bancorp, issued January 14, 2006, at 2006 U.S. Dist. LEXIS 1079.

Nugget: "The Court has no doubt… that the combination of Fox, McLaughlin, and the Pension Fund could collectively fulfill the functions of lead plaintiff in a fair, adequate, and effective manner."

Tracing to SPO Can’t Stop Class Certification

So the question for Judge Nanette K. Laughrey (E.D. Mo. + W.D. Mo. and D.D.C.) (sorry for the court confusion here, but if anyone knows why or how Judge Laughrey was appointed to sit in both Missouri Districts, yet is not listed at all on the E.D. Mo site, and is issuing an opinion in a DC case, the rest of us are dying to know, so please tell us by leaving a comment below) in the Iridium securities class action was “whether the inability of aftermarket purchasers to recover under Section 12 defeats certification of a sub-class which pursues both Section 11 and 12 claims.”

What did the Judge do? She reasoned that “any difficulty by individual class members in tracing their particular aftermarket-purchased shares to the Registration Statement is a secondary issue to be resolved after the predominant issue of Defendant Underwriters' liability has been decided. It would be inappropriate to foreclose such Plaintiffs' resort to the class action format simply because some of their cases may be difficult to prove.”

Result? Class Certified.

You can read Freeland v. Iridium World Communications, issued January 9, 2006, at 2006 U.S. Dist. LEXIS 744.

Nugget: “Even if the common issues didn't predominate, Plaintiffs could easily seek to certify two subclasses, one with Section 11 claims and one with Section 12 claims. Forcing the Plaintiffs to do so unnecessarily, however, would add yet another delay to what is already a long-lived case, especially since it would be much more efficient to consider these differences at the damages stage, if and when it is reached. This makes more sense than having repeated trials to decide the common questions of fact. Separate trials might also produce inconsistent findings.”

Defense Counsel Offers Faulty Recap

Better be careful when summarizing what your Judge "recognized" at that motion to dismiss oral argument. You see, Defendants in the Wave Systems securities class action put forth a Dura defense, pointing out that "during oral argument, this court recognized the absence of any necessary casual link between any allegedly misleading statements and Wave's drop in stock price following the announcement of the SEC investigation in December, 2003." Whoops. Judge Michael A. Ponsor (D. Mass.) responded that "it should come as no surprise that many judges use oral argument as an opportunity . . . to focus the argument, or to test the extreme implications of a litigants position. A court speaks authoritatively, however, only in its opinions, orders, and judgments," and "assuming a devil's advocate role is a familiar ploy of the neutral decision-maker."

Yep, that's right, Defendants lost the Dura argument (how much punishment can these Dura proponents take?), with Judge Ponsor holding that "Dura does not require that a corrective disclosure precede a stock's decline." Defendants lost nearly every other point too, including puffery, safe harbor, materiality, reliance, and scienter.

You can read In re Wave Systems, issued January 11, 2006, at 2006 U.S. Dist. LEXIS 725.

Nugget: "Some statements, although literally accurate, can become, through their context and manner of presentation, devices which mislead investors. For that reason, the disclosure required by the securities laws is measured not by literal truth, but by the ability of the material to accurately inform rather than mislead prospective buyers."

Lead Counsel Sued for Not Suing Andersen

Sheesh, talk about one giant pain in the you-know-what for Bernstein Litowitz and Kirby, McInerney & Squire. Do tell you say? O.K., so you remember the Bennett Funding Group securities class action, right? Well, don't worry if you don't, because it was filed back when Dolly the Sheep was born, and wrapped up around the time the last Pyrenean Ibex was found dead. So why do we care now you ask? Well, because in 2002 three law firms (Chikovsky and Shapiro, P.A., Shapiro & Shapiro, and DiJoseph & Portegello -- good luck finding their websites) brought a lawsuit against the two firms, which were lead counsel in the Bennett case, because their clients were “upset over the law firms' failure to name Arthur Andersen & Co” as a defendant in the case (of course, one naturally assumes they first thanked lead counsel for the $166.5 million in settlements achieved in the case).

But you know, it really seems like Judge John E. Sprizzo (S.D.N.Y.) is getting fed up with these malcontents (the Shapiro gang that is), as he issued an injunction that prohibits them from “sending further notices to Class members without prior Court approval,” and from “filing and/or proceeding with any legal malpractice claim against Class counsel relating to losses incurred in Bennett Funding securities in courts other than in this Court.” When a jurisdictional issue arose, Judge Sprizzo “ordered the parties to submit simultaneous briefs on the issue of jurisdiction by November 7, 2005.” What happened? According to Judge Sprizzo, not only did Plaintiffs “fail to offer a submission,” but their “local counsel, Arnold E. DiJoseph, III, refused to appear at this Conference, opting instead to send a wholly unprofessional and wildly accusatory letter directly to the Court of Appeals.” Smart thinking DiJoseph. Brilliant.

Anyway, after finding that SDNY does have jurisdiction, Judge Sprizzo threw the case out for good, commenting that “having declined to opt out of the class action, plaintiffs have reaped the benefits of the work done by the law firms and have either failed to object to the fees requested by the law firms or have failed to convince this Court that the fees were not warranted. Despite this, plaintiffs now seek to drag the law firms into court essentially to recover from the law firms for losses incurred in the Ponzi scheme that formed the basis for the underlying action. As Judge Sporkin so cogently noted in Thomas v. Albright, to unleash such suits upon class counsel in fora far and wide would severely undermine the class action system and would discourage able counsel from taking such cases to the detriment of those for whom a class action suit may be the only vehicle for achieving justice.”

You can read Achtman v. Bernstein, Litowitz, Berger & Grossmann, LLP and Kirby, McInerney & Squire, LLP, issued January 5, 2006, at 2005 U.S. Dist. LEXIS 38375.

Nugget: “Plaintiffs were free to opt out of the class action or simply to pursue their own claims against Andersen, as others did. Having chosen not to do so or even to object to the law firms' counsel fees, they should not be permitted to attack the quality of the law firms' representation on that ground in a separate action.

Ninth Circuit Flushes Juniper Action

Boy, the Ninth Circuit sure is making it easy for the Nugget to explain their decision to tank the Juniper Networks securities class action. Usually, the decisions have to be pared down, but this one, clocking in at just a single page (sans the few citations and boilerplate intro), can be fully reproduced for your reading pleasure. Here it is:

“Plaintiffs allege that defendants knew at the time they announced the forecast for the second quarter of 2001 ("2Q01") that the forecast was unrealistically optimistic, and that defendants knew there was no way Juniper would be able to achieve its predictions. However, the FAC [First Amended Complaint] does not plead specific facts establishing that the forecast was false when made. In fact, the FAC acknowledges that Juniper lowered its annual forecast for 2001 on the same day it announced the 2Q01 forecast.”

“Furthermore, the FAC fails to allege specific facts that give rise to a ‘strong inference’ of scienter. The FAC alleges that Juniper experienced a slowdown. However, allegations that defendants ‘could regularly track’ sales data contradicting the 2Q01 forecast, accompanied by ‘a general assertion about what [plaintiffs] think the data showed,’ is insufficient to plead scienter without ‘hard numbers or other specific information.’”

“Similarly, plaintiffs fail to establish that defendants' alleged stock sales give rise to a strong inference of scienter. While unusual or suspicious stock sales by corporate insiders may constitute circumstantial evidence of scienter, the FAC fails to allege either that the stock sold by defendants Kriens, Haley, and Wexler constituted a significant percentage of their holdings or that such sales were inconsistent with their prior trading histories.”

You just read In re Juniper Networks, issued December 16, 2005. If you still want the actual thing though, go to 2005 U.S. App. LEXIS 28253.

Nugget: “This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.”

First Circuit Weighs in on Market Efficiency

If you’re a market efficiency buff (and let’s face it, who isn’t), then break out those reading glasses and your slide rule (not sure why you need the slide rule, but you'll look awfully academic carrying it, and you're certain to impress your local judiciary) and get ready to check out the First Circuit’s twin decisions that came out last month on the issue. What did they find, you ask? Well, that “an efficient market is one in which the market price of the stock fully reflects all publicly available information. By ‘fully reflect,’ we mean that market price responds so quickly to new information that ordinary investors cannot make trading profits on the basis of such information. This is known as ‘informational efficiency,’” and “we reject a second and much broader meaning of ‘fully reflect,’ known as ‘fundamental value efficiency,’ which requires that a market respond to information not only quickly but accurately, such that the market price of a stock reflects its fundamental value.”

So, “while evidence of a stock's fundamental value may be relevant to the extent that it raises questions about informational efficiency, courts which choose to consider such fundamental value evidence at the class-certification stage run the risk of turning the class-certification proceeding into a mini-trial on the merits, which must not happen. The fraud-on-the-market presumption, after all, only establishes a presumption of reliance which can be rebutted at trial. At the class-certification stage, a party need only establish ‘basic facts’ in order to invoke the presumption of reliance. The question of how much evidence of efficiency is necessary to establish the fraud-on-the-market presumption of reliance is one of degree. While district courts have broad discretion to draw these lines, they must do so sensibly, understanding the correct definition of efficiency and the factors relevant to that determination.”

Result? Investors in the Xcelera action had their class certification upheld, while those in the Polymedica will have their class certification order re-reviewed under the market efficiency standard set by the Panel.

You can read In re Xcelera and In re Polymedica, issued December 13, 2005, at 430 F.3d 503 and 2005 U.S. App. LEXIS 27173, or search for them here under Opinions.

Nugget: “Given the various factors relevant to an efficiency determination, and the abundant evidence that can be developed with respect to each factor, the determination of whether a market is efficient is a fact-dominated inquiry. ”

Sarbanes Certifications Back to Bite Execs

Think those Sarbanes Oxley certifications your CEO and CFO signed won’t add to Plaintiffs’ scienter allegations? Well, think again, at least if you are the former executives in the Lattice Semiconductor securities class action. You see, the execs argued that execution of the "certifications does not raise a strong inference" of scienter, because they "are required of every CEO and CFO of publicly traded companies, without exception."

But Judge Ann Aiken (D. Or.), in finding this argument "unpersuasive," concluded that the "certifications give rise to an inference of scienter because they provide evidence either that defendants knew about the improper journal entries and unreported sales credits that led to the over-reporting of revenues (because of the internal controls they said existed) or, alternatively, knew that the controls they attested to were inadequate (because [the Controller] had made unauthorized or improper entries that overrode the internal controls)."

Hey, can't blame them for trying, right?

You can read In re Lattice Semiconductor, issued January 3, 2006, at 2006 U.S. Dist. LEXIS 262.

Nugget: "The Sarbanes-Oxley certifications, in combination with plaintiffs' allegations of regular finance meetings, extensive access to databases, periodic reports and special reports, and the allegations that they were micromanagers, are sufficient to create a strong inference of actual knowledge or of deliberate recklessness."

Defendants Lose Dura Summary Judgment Bid

First it was the 12(b)(6) Dura motions to dismiss that changed almost nothing, then it was the 12(c) Dura motions that didn’t fare much better. Now it’s the summary judgment motions, and, well, seems Dura isn’t having the effect that some in the defense bar no doubt had hoped for (although admittedly others said it would discourage baseless suits from ever being filed, a reasonable but hard to test assertion). As for the cases that are on file, it’s not that Defendants haven’t won some motions that addressed Dura -- they have. But for the most part, the result would likely have been the same with or without Dura. (See this Paul Weiss article by Richard Rosen and Dawn Barker for an excellent recap on Dura).

Anyway, agree or not, take the Loewen Group ("TGLI") securities class action, where Defendants asserted on summary judgment that the corrective disclosures occurred on three specific dates beginning in November 1997 when "the price of TLGI stock either increased or decreased slightly after the information was made available publicly." Plaintiffs didn’t exactly disagree, as Judge Thomas N. O'Neill, Jr. (E.D. Pa.) noted that Plaintiffs "for the most part," "do not dispute that the improper accounting of imputed interest was disclosed on the dates alleged by the defendants." Instead, Plaintiffs say that "those disclosures merely provided additional detail to information already known, and that the market's reaction to the imputed interest charges was already accounted for as part of the stock price drops in September 1997 and October 1998."

Judge O’Neill concluded that "throughout the class period, the price of TLGI stock dropped significantly, from $ 33.250 on March 5, 1997, to $ 5.125 on January 14, 1999 and TLGI's market capitalization dropped by $ 2 billion. Plaintiffs have pleaded loss causation adequately by alleging that they purchased TLGI stock at an inflated price and lost money when the price fell. They allege that the stock price fell as a result of the defendants' failure to properly record imputed interest, and have offered enough evidence on that point to survive summary judgment. To prove loss causation at trial, plaintiffs face a stronger burden of persuasion and will probably need to rely on expert reports, but they have satisfied their burden at this time." As a result, "Plaintiffs have met their burden regarding loss causation."

You can read In re Loewen, issued October 18, 2005, at 395 F. Supp. 2d 211.

Nugget: "Under Dura, plaintiffs cannot satisfy the loss causation requirement by claiming that they bought securities at inflated prices. To survive summary judgment, plaintiffs must demonstrate some actual loss."

Expedited Dura Inquiry Ordered

After going through a few rounds of motions to dismiss ruled on by Judge Clarence Newcomer (E.D. Pa.), who died of melanoma last August, Defendants in health care giant Cigna’s securities class action asked their new jurist, Judge Michael M. Baylson (E.D. Pa.), to dismiss certain allegations because, they argued, Lead Plaintiff Pennsylvania Employee Retirement System's ("SERS"), “did not have a net loss in its trading in CIGNA stock, and thus, under Dura Pharmaceuticals, SERS cannot plead any economic loss or loss causation.”

Although the Court recognized that even Defendants acknowledged that "there are some instances in which SERS sold some shares at prices lower than the price at which it bought the same shares,” he also said that “there are substantial issues of fact raised by the parties,” “and the Court cannot resolve these issues without a trial or at least an evidentiary hearing of some type.” So, although Dura “contains language that supports the Defendants' interpretation of the requirement of economic loss in the PSLRA, the Defendants' legal position as applied to the facts of this case may require an extension of Dura Pharmaceuticals that is not required by either Supreme Court or Third Circuit precedent at the moment.”

But “because the issues of economic loss and loss causation are so fundamental to the situation of SERS as the present Lead Plaintiff, the Court should require expedited discovery, and possibly expert reports, on this issue - after which, either or both parties may bring a dispositive motion.”

Result? Defendants' Motion to Dismiss on the grounds of economic loss and loss causation denied without prejudice.

You can read In re Cigna, issued December 23, 2005, at 2005 U.S. Dist. LEXIS 35524.

Nugget: “Dura Pharmaceuticals is consistent with the Third Circuit's existing precedent for pleading economic loss and loss causation”

Judge Stops Trustee From Tossing Documents

So what are you, as the Lead Plaintiff, supposed to do when trapped under a PSLRA discovery stay, and a bankruptcy Trustee is about to get permission to destroy company documents that you want to get your hands on? Well, if you are the Lead Plaintiff in the IT Group securities class action, you move to lift the stay to get at the documents. And if you’re the Defendant? Well, you tell the Court that all it needs to do is issue a document preservation subpoena to the Trustee.

Who wins? This time, it’s Defendants, with Judge William L. Standish (W.D. Pa.) holding that that Plaintiffs' proposal “would allow them to begin unrestricted discovery of 134,000 boxes of documents scattered throughout the United States,” and therefore Plaintiffs “have not established a clearly defined universe of documents, and could easily be off on a fishing expedition.” Wait a minute. Did he really say 134 thousand boxes? Boxes? Let’s calculate here, if there are 3000 pages in a box (assume no pesky clips if you please), that’s 402 million pages. If you stretched the boxes end to end, they would stretch for nearly 32 miles! Put the documents from the boxes end to end (sounds fun doesn’t it?), and the line would be 96,000 miles, or nearly four times around the earth. Oh, yes, Your Honor, we have really narrowed down our request. Anyway, seems no surprise that Judge Standish concluded “issuing a protective subpoena is the most expeditious and least disruptive way to proceed in this matter.”

You can read Payne v. DeLuca, issued December 20, 2005, at 2005 U.S. Dist. LEXIS 35891.

Nugget: “Despite Plaintiffs' speculation that the Trustee would surreptitiously disregard a subpoena, the Court believes that the possibility of being held in contempt of court for failing to comply with the terms of a subpoena, coupled with the relatively light burden of complying for the short period of time envisioned, would encourage the Trustee to fully cooperate.”