Monday, July 10, 2006

UnSettlement Parties File 'Corrected' Briefs; Appellants Object to Irregularities

Last Thursday the plaintiffs and the defendants filed "corrected" briefs with the Second Circuit Court of Appeals. The text of the cover letter to the court, from Proskauer Rose's Charles Sims, lawyer for defendant LexisNexis, is below. So is today's letter from objectors' attorney Charles Chalmers.

The problem here has been well developed in previous posts on this blog. The settlement parties will try to sell this as a little clerical error. Don't buy it for a second. Some experienced court observers have told me they have never seen a comparable misstatement of crucial information in a case at this level. Let's see what happens next.


July 6, 2006

[Charles S. Sims to Roseann B. MacKechnie, Clerk, United States Court of Appeals for the Second Circuit]

Dear Ms. McKechnie:

Enclosed in advance of the due date, please find the original and ten copies of a corrected brief for defendants-appellees ("defendants") in this matter. Defendants previously filed their brief ahead of time on May 25, 2006.

Six sentences (and parts of four other sentences) in defendants' previously submitted brief were based on information we and plaintiffs' counsel believed to be reliable at the time. The information was post-judgment information provided by the official class action Claims Administrator, and the brief expressly identified it as such. We considered it appropriate to use the information in our briefs because we believed it would be useful to the Court in evaluating certain arguments of appellants. However, we have recently ascertained that we can no longer consider the post-judgment information reliable, and we therefore file this corrected brief.

The sentences and phrases struck from the previously-submitted brief have been discussed with counsel for the appellant, Charles Chalmers (as well as counsel for the plaintiffs-appellees). We believe that we have eliminated from the brief all post-judgment information about filed claims, as well as any assertions or arguments based on such information. [citations enumerated in a footnote]

We apologize for any inconvenience, and regret having to submit this superseding brief.

Very truly yours,
Charles S. Sims

cc: Charles Chalmers, Counsel for Appellants
Counsel for Plaintiffs-Appellees
Counsel for Defendants-Appellees


July 10, 2006

[Chalmers to MacKechnie]

Dear Ms. McKechnie:

Appellants object to the filing of "Corrected Brief for Plaintiffs/Appellees" and the "Corrected Brief for Defendants/Appellees" without an authorizing order from the Court. There is no explicit provision in the Federal Rules of Appellate Procedure, or the Second Circuit Local Rules, for such a procedure. These briefs purport to replace, or "supercede," briefs filed seven weeks earlier, and to which Appellants have already filed a Reply Brief.

These are not simple corrections. They are significant revisions. The filing also presents a serious question. Are Appellants expected to now file a new Reply, responding to these revised briefs of the Appellees?

The circumstances leading to this situation are not fully explained by the letters to you. I have discussed changes to their briefs with appellees' counsel, but only in the context of a stipulation. Further, the changes do not arise from a self-initiated decision of the appellees, but from appellants bringing to light serious mistatements of fact in the Appellees' briefs.

Charles D. Chalmers

cc: Julius Crockwell, by fax
All other counsel, by email


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