1 35jdapac 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 3 IN RE: SOUTH AFRICAN 4 APARTHEID LITIGATION 4 New York, N.Y. 5 MDL 1499 6 ------------------------------x 02 Civ. 4712 (JES) 7 7 May 19, 2003 8 4:45 p.m. 8 9 Before: 9 10 HON. JOHN E. SPRIZZO, 10 11 District Judge 11 12 APPEARANCES 12 13 FAGAN & ASSOCIATES 13 Attorneys for Plaintiffs Ntzebesa, et al. 14 BY: EDWARD D. FAGAN 14 15 NAGEL RICE DREIFUSS & MAZIE 15 Attorneys for Plaintiffs Ntzebesa, et al. 16 BY: DIANE E. SAMMONS 16 17 MEDI MOKUENA 17 Attorney for Digwamaje Plaintiffs 18 18 19 PAUL NGOBENI 19 Attorney for Digwamaje Plaintiffs 20 21 KWEKU J. HANSON 21 Attorney for Digwamaje Plaintiffs 22 23 KIRKLAND & ELLIS 23 Attorneys for Defendants, in Digwamaje, 24 Morgan Stanley, Motorola, Honeywell Int'l., 24 Raytheon, Siemens AG 25 BY: BRANT W. BISHOP 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 35jdapac 1 A P P E A R A N C E S C O N T I N U E D 2 2 3 JONES DAY 3 Attorneys for Defendant General Motors 4 BY: GEORGE KOSTOLAMPROS 4 5 5 PEPPER HAMILTON LLP 6 Attorneys for Defendant Unisys Corp. 6 BY: THOMAS E. ZENAITIS 7 7 CRAVATH, SWAINE & MOORE 8 Attorneys for Defendants UBS AG, IBM, Shell Oil Company, 8 E.I. du Pont de Nemours (Digwamaje), Xerox Corp. (Digwamaje) 9 BY: FRANCIS P. BARRON 9 10 10 SHEARMAN & STERLING 11 Attorneys for Defendant Sulzer AG 11 BY: FREDERICK DAVIS 12 12 13 O'MELVENY & MYERS LLP 13 Attorneys for Defendants Ford Motor Corp., Dow Chemical 14 (Union Carbide), Phillip Morris, Bank of America 14 BY: JOHN NIBLOCK 15 15 MILBANK TWEED HADLEY & MCCLOY LLP 16 Attorneys for Defendants Deutsche Bank AG, BASF Co. 16 BY: JEFFREY L. NAGEL 17 17 18 MORRISON & FOERSTER LLP 18 Attorneys for Defendant Rio Tinto PLC 19 BY: JACK C. AUSPITZ 19 20 20 WILMER CUTLER & PICKERING 21 Attorneys for Defendant Credit Suisse Group 21 BY: ROGER WITTEN 22 22 LOVELLS 23 Attorneys for Defendant Barclays Bank PLC (Ntzebesa) 23 BY: MARC J. GOTTRIDGE 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 35jdapac 1 A P P E A R A N C E S C O N T I N U E D 2 2 3 KELLEY DRYE & WARREN LLP 3 Attorneys for Defendant Nat West 4 BY: KEVIN J. WALSH 4 5 PILLSBURY WINTHROP LLP 5 Attorneys for Defendant Chevron Texaco 6 BY: DAVID LINDLEY 6 7 7 SKADDEN ARPS SLATE MEAGHER & FLOM LLP 8 Attorneys for Daimler Chrysler North America Holding Corp. 8 BY: JEROME HIRSCH 9 SUSAN SALTZSTEIN 9 10 10 COVINGTON & BURLING 11 Attorneys for Defendants 3M Co., The Procter & Gamble Co. 11 BY: SEAN REID 12 12 13 14 oOo 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 35jdapac 1 THE COURT: We have only one motion now, I take it? 2 We are down to one motion now, I take it? 3 MR. FAGAN: We are down to one motion, your Honor, and 4 we are down to a couple of other things that -- 5 THE COURT: I will deal with the motion first and then 6 we will get to the other things. 7 MR. FAGAN: Thank you, your Honor. 8 THE COURT: All right, it is defendants' motion so you 9 go first. 10 MR. DAVIS: Thanks. Fred Davis here for Sulzer, and I 11 take it this is the one motion left. 12 THE COURT: You are the only one, I take it, who has 13 not responded and therefore the other motions are either 14 academic or they are going to be dismissed. Submit an 15 appropriate order and we will deal with them. 16 MR. DAVIS: I'll keep myself very brief, your Honor, 17 unless you have questions because I suspect you know the law in 18 this area as well as anyone here. 19 There is a service of process issue and a jurisdiction 20 issue. 21 THE COURT: The service of process issue is basically, 22 in a sense, the same question, isn't it? 23 MR. DAVIS: That is exactly right. They served a 24 subsidiary. We think that the -- if the Court looks at the 25 Jazini case that we rely on in the Second Circuit and match it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 35jdapac 1 against here, you will see all of the exact same issue. 2 THE COURT: First of all, he makes a lot of arguments 3 that you have a lot of employees here. Do you have employees 4 here? 5 MR. DAVIS: None. They are all employees of the 6 subsidiary. The parent company has something like 47 employees 7 in Winterthur, Switzerland, and the thousands of employees he 8 talks about are all those of different 100 percent owned 9 subsidiaries, and that is just not enough. 10 THE COURT: The subsidiaries, some of them do business 11 here. 12 MR. DAVIS: The subsidiaries certainly do do business 13 here. 14 THE COURT: And therefore you are not contesting 15 jurisdiction as to them? 16 MR. DAVIS: They are not a party. 17 THE COURT: They are not a party. 18 MR. DAVIS: Right. As in the Jazini case, what we 19 have here, your Honor, is a subsidiary. I think it is 20 literally black letter law that serving a subsidiary by itself 21 doesn't get them there. What they have done is -- 22 THE COURT: You've got to show, under the Frummer v. 23 Hilton case, that the subsidiary is doing all the things that 24 the parent were doing if the parent were here. 25 MR. DAVIS: I think the real issue, if I can cut to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 35jdapac 1 it, is whether they are entitled to discovery in order to be 2 able to bolster their claim. That is where I think the Jazini 3 case kicks in. 4 What the plaintiffs in that case did -- they were 5 suing Nissan -- is they, as plaintiffs are entitled to do, went 6 through the Internet and came up with all of these snippets 7 from the annual report and filings and everything else to try 8 to string them together, and what Judge Sand said, and he was 9 upheld by the Second Circuit, is in these days that is not 10 enough, and it may be hard on a plaintiff to get over that 11 burden, but that is the entitlement of the defendant that it is 12 careful to set up separate corporate entities. And that is 13 exactly what Sulzer has done here, as we have demonstrated. 14 The AG parent has never attempted to do business here. It is 15 not qualified to do business here. It doesn't own any real 16 estate, and it has chosen, for whatever reason, to do -- 17 THE COURT: Is this all clear from the affidavits in 18 your papers? 19 MR. DAVIS: Yes. What it has chosen to do is to do 20 all of its operations in the United States through 21 subsidiaries. And unless they can find something more than 22 that, we just don't think that is enough. Nor does it even tip 23 them over to the point where they should be entitled to 24 discovery. 25 THE COURT: They get the benefit of the doubt on a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 35jdapac 1 motion to dismiss with respect to the complaint with the 2 plaintiff presumption, don't they? 3 MR. DAVIS: I am not sure. There is a presumption as 4 to what? 5 THE COURT: Well, you allege jurisdiction. Then we 6 theoretically -- you are not on a preponderance standard. I've 7 got to give them the benefit of the doubt. 8 MR. DAVIS: That is where the cases where we cite I 9 believe Baer because they said it is not enough either to 10 allege it or even to put in conclusory statements that they are 11 the alter ego of or they are doing the same business as or so 12 forth. And what the Second Circuit said, in its wisdom, is we 13 are not compelled nor do we choose to credit conclusory 14 statements like that. You have to show something specific. 15 THE COURT: Anyway, when you put in affidavits of your 16 own to the contrary, I guess they have to come forward with 17 some specific factual showing. 18 MR. DAVIS: I think that is also true. 19 THE COURT: They really haven't done much except, as 20 you said, attached a lot of Internet -- 21 MR. DAVIS: It is pretty thick stuff. If you go 22 through it, it is all -- 23 THE COURT: There is a lot of weight but very little 24 weight. 25 MR. DAVIS: That is my belief as well. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 35jdapac 1 THE COURT: Volume but not weight. 2 MR. DAVIS: That is where I believe we are, your 3 Honor. And like I said, I think it is pretty much well known 4 law. You have to wade through this stuff and see if there is 5 something concrete that tips it back. 6 THE COURT: I got your argument. I will hear from 7 him, or from her, as the case may be. 8 MS. SAMMONS: Diane Sammons with the law firm of Nagel 9 Rice Dreifuss & Mazie, on behalf of the plaintiffs Ntzebesa and 10 Brown. 11 Your Honor, I think there is some weight to what I 12 filed. And having said that, I would like to emphasize to the 13 Court -- 14 THE COURT: How do you explain the Second Circuit case 15 he referred to? 16 MS. SAMMONS: First of all, your Honor, let's start 17 with the standard. I think the standard is -- 18 THE COURT: Let's start with the Second Circuit, 19 because they set the standard. 20 MS. SAMMONS: OK, your Honor. Then let's start with 21 Aerotel v. Sprint, Jazini or Laborers Union, which indicates 22 that the standard that we're up against here is a minimal one, 23 which is prima facie. And with regards to that -- 24 THE COURT: I know. But what did the Court hold in 25 that case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 35jdapac 1 MS. SAMMONS: Well, in that case, your Honor, we have 2 significantly -- 3 THE COURT: Judge Sand dismissed the complaint, right? 4 MS. SAMMONS: Yes, he did, your Honor. But in that 5 particular case there were no factual allegations, your Honor. 6 There was a complaint. There was not an affidavit that came 7 back. There were not factual allegations that were alleged. 8 They were merely conclusory statements -- 9 THE COURT: What facts and allegations have you made 10 that show that they do business here -- the parent not the 11 subsidiary? 12 MS. SAMMONS: Your Honor, I think the most significant 13 one is the factor with regards to their Internet. And one of 14 the factors -- and I would urge the Court specifically with 15 regards to the Hsin Ten Enterprise v. Clark case, and in that 16 case the Court found that an interactive Web site in and of 17 itself -- in and of itself -- can be sufficient grounds for 18 direct jurisdiction. 19 THE COURT: I don't know about the Web site, I am not 20 sure what you mean. 21 MS. SAMMONS: The Court explained in that what it 22 specifically meant. 23 THE COURT: What do you mean by that? 24 MS. SAMMONS: What I mean, your Honor, let's start 25 with -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 35jdapac 1 THE COURT: What does the Web site here now do? Do 2 they take orders over the Web site? 3 MS. SAMMONS: Yes, they do, your Honor. 4 THE COURT: With the parent? 5 MS. SAMMONS: Yes. 6 THE COURT: They do? 7 MS. SAMMONS: Yes. 8 THE COURT: I will have them address that because I 9 don't get that impression -- 10 MS. SAMMONS: Yes. Your Honor, you can purchase pumps 11 and spare parts. You can purchase turbo equipment. One can 12 get quotes online. You can be a Sulzer supplier, if one 13 chooses to be, online. You can look at your accounts payable 14 online if you are a customer, and most importantly, you can 15 apply online to be an employee of Sulzer. 16 THE COURT: That's not going to do it. 17 MS. SAMMONS: Pardon me, your Honor? 18 THE COURT: An employee of Sulzer where, in 19 Switzerland? 20 MS. SAMMONS: Yes, your Honor, in Switzerland. 21 THE COURT: That is not going to do it. 22 MS. SAMMONS: Your Honor, just by virtue -- but just 23 by the very virtue of there being an interactive Web site where 24 you can order equipment -- 25 THE COURT: Does the parent company actually ship SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 35jdapac 1 goods to the United States? 2 MS. SAMMONS: I'm not aware of that, your Honor. 3 THE COURT: I think that is important. Even the Web 4 site cases don't suggest that having a Web site internationally 5 gives you the basis for jurisdiction everyplace where you have 6 a Web site. It depends on what the Web site does and what 7 purpose it serves. 8 MS. SAMMONS: But if you can interact on that Web site 9 and you can purchase products on that Web site and you can do 10 other -- 11 THE COURT: That's what I'm asking. Can you purchase 12 products to be shipped to you here in the United States or in 13 New York from this Web site which belongs to the parent? 14 MS. SAMMONS: I believe you can, your Honor. 15 THE COURT: You believe you can. What is that belief 16 based upon? 17 MS. SAMMONS: Your Honor, that belief is based upon 18 the certification that I put in and with regard -- 19 THE COURT: What certification? What have you 20 certified to? 21 MS. SAMMONS: With regard to specific exhibits, your 22 Honor, I think there are 12 -- there are exhibits that have 23 actual screens, your Honor -- 24 THE COURT: Have you gotten on the Web site, called 25 the parent and bought goods and shipped them here from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 35jdapac 1 parent directly to you? 2 MS. SAMMONS: I have not tried to do that, your Honor. 3 THE COURT: Why not? 4 MS. SAMMONS: I didn't think that would necessarily be 5 what this Court would be required -- 6 THE COURT: That would be helpful, wouldn't it? 7 MS. SAMMONS: For a prima facie -- yes, it would, your 8 Honor. But I'm suggesting that the case law, as the way I read 9 it, with regards to Hsin v. Clark specifically says that if you 10 have an interactive Web site, that that can be enough for 11 jurisdiction, direct jurisdiction. 12 THE COURT: That is not the case law as I understand 13 it. 14 MS. SAMMONS: Without even going through the 15 subsidiaries, your Honor. 16 THE COURT: No, an interactive Web site in and of 17 itself has been held insufficient in more cases than most, 18 unless -- unless it triggers the disposition of business within 19 the forum state. 20 MS. SAMMONS: Well, I think it can, your Honor. 21 THE COURT: It is not a question of whether it can, it 22 is a question of whether it does. 23 MS. SAMMONS: Your Honor, if I can apply for a job or 24 I can buy products, turbo pumps, online, if I can buy Sulzer 25 pumps online and there is no distinction between whether or not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 35jdapac 1 I am buying the pump from Switzerland or I am buying the pump 2 from somewhere in Minnesota, that in and of itself -- 3 THE COURT: Or Hong Kong or Bangkok or anyplace else. 4 MS. SAMMONS: Or anywhere else, Judge, it doesn't 5 distinguish on the Web site. The Web sites have logos that 6 just say Sulzer -- 7 THE COURT: A Web site which openly exists in almost 8 every country in the world would then become a basis for 9 personal jurisdiction, and the case law that I have seen does 10 not go that far. 11 MS. SAMMONS: Your Honor, that is one basis but that 12 is not our only basis. I am suggesting that you can find just 13 upon that basis alone -- 14 THE COURT: I think this motion is a lay down for 15 them. 16 MR. FAGAN: Your Honor, I also think that with regards 17 to agency, that there is enough evidence here, at least on a 18 prima facie showing, Judge -- 19 THE COURT: What agency? 20 MS. SAMMONS: Pardon me. 21 THE COURT: What agency? 22 MS. SAMMONS: Judge, you have a subsidiary located 23 here -- actually, you have two subsidiaries that are located 24 here. The holding company specifically is the one that 25 controls all the activities in the United States, and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 35jdapac 1 holding company and the subsidiary in New York can do 2 everything that the parent could do if the parent were present, 3 and that is the standard as I read it. 4 THE COURT: Well, that is not the standard. 5 MS. SAMMONS: Well, your Honor, that was -- 6 THE COURT: The standard, Frummer v. Hilton, deals 7 with an offshore company, a hotel, so to speak, right? 8 MS. SAMMONS: That is correct. 9 THE COURT: Which books reservations from people in 10 the United States, and the subsidiary or the agency in the 11 United States has the authority to book and make contracts on 12 behalf of the parent here. 13 Now, is that present here? Doesn't the subsidiary 14 have the right to make contracts and do business in the name of 15 the parent? 16 MS. SAMMONS: Your Honor, I don't have evidence with 17 regards to that specifically. 18 THE COURT: You don't have any evidence. What you 19 have is conclusory allegations. That is what you have. 20 MS. SAMMONS: Your Honor, I think there is more than 21 that. With regards to suits, there have been filed suits 22 against Sulzer AG where they have answered in the United 23 States. Specifically with regards to the HIP litigation, 24 the -- 25 THE COURT: If they choose to litigate a case here, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 35jdapac 1 that doesn't prove that there is jurisdiction over them; it 2 only proves that they may have waived it. 3 MS. SAMMONS: Your Honor, besides that, there is other 4 evidence, as well, through not only through their Web site but 5 also through the interdependency of the different companies. 6 For instance, we know that Sulzer AG was the one that settled 7 the lawsuit for Medco, which was one of its U.S. subs, and as a 8 result of that settlement that was the only thing that was -- 9 enabled them to settle the lawsuit. It was multi-million 10 dollars that they paid -- 11 THE COURT: If the settlement of a lawsuit constitutes 12 doing business within the United States -- 13 MS. SAMMONS: Your Honor I am saying that the law has 14 said that there is no one specific fact, that the Court will 15 look at a multitude of factors, and I am suggesting -- 16 THE COURT: I am looking at a multitude of facts and 17 they come up zero. 18 MS. SAMMONS: Your Honor, I am suggesting that the 19 interactive Web site, which is highly interactive, according to 20 the law and according to what one can do on it, including 21 purchase products, combined with Sulzer's -- 22 THE COURT: Products from whom? 23 MS. SAMMONS: Well, your Honor, that is part of the 24 problem. Their Web site as it is constituted does not 25 distinguish between the entity, which is another factor that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 35jdapac 1 the courts look at when they look at an agency agreement, is 2 whether or not one can confuse the parent with the sub. And by 3 virtue of their Web site having logos that just say "Sulzer" on 4 it and it doesn't say "Sulzer AG," by virtue of their Web site 5 for the parent being in English -- 6 THE COURT: They have a subsidiary, I take it, that 7 has been chartered in the United States, incorporated here? 8 MS. SAMMONS: Yes, your Honor. 9 THE COURT: An American corporation? 10 MS. SAMMONS: Yes, your Honor. 11 THE COURT: Sue them. 12 MS. SAMMONS: Your Honor, that's -- 13 THE COURT: Why haven't you sued the subsidiary. 14 MS. SAMMONS: Well, we could do that, your Honor, but 15 the parent -- 16 THE COURT: Why haven't you? 17 MS. SAMMONS: The parent is the one that has been 18 active -- 19 THE COURT: Because maybe they didn't do anything 20 abroad. 21 MS. SAMMONS: No, your Honor. We sued them in our 22 allegations and have alleged all the subsidiaries. 23 THE COURT: This case to me looks very much like a 24 straw searching for a jurisdictional peg. You don't have one. 25 And I think if I stretch the concept of personal jurisdiction, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 35jdapac 1 as far as you want me to, I would have transcended the limits 2 of due process and very likely international law. 3 MS. SAMMONS: Your Honor, I think on several factors, 4 if you look at the Beech test, for instance, there are four 5 factors that the Court looks at. One factor is common 6 ownership. The Court says in that particular case that that is 7 a critical factor. Obviously, we know these subsidiaries are 8 100 percent owned by the parent. That is one of the factors 9 that the Court looks at, and it is a factor that is important 10 in Beech. 11 THE COURT: If they weren't involved with the parent, 12 they wouldn't be subsidiaries. 13 MS. SAMMONS: Correct, your Honor, but there are 14 varying degrees -- 15 THE COURT: That is enough. 16 MS. SAMMONS: No, it is not enough, but it is one 17 factor. 18 THE COURT: What else is required? 19 MS. SAMMONS: Well, dependency, your Honor. As I 20 indicated before, we know that these companies or these 21 subsidiaries are very interdependent on one another. So, for 22 instance -- 23 THE COURT: How? 24 MS. SAMMONS: I'm trying, Judge. 25 For instance, its marketing and its global marketing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 35jdapac 1 is all done by one of the subsidiaries and it indicates on its 2 Web site, and, your Honor, I cited to this in my lengthy 3 preparation, but it has a global organization that does its 4 marketing. And so the marketing comes from the parent 5 corporation that's in Winterthur. 6 THE COURT: It doesn't come from the parent 7 corporation, it comes from a subsidiary of the parent 8 corporation. 9 MS. SAMMONS: No, your Honor, my understanding is it 10 comes from Winterthur, and the only company that is in 11 Winterthur is the parent. So the parent controls -- 12 THE COURT: The only company that is in what? 13 MS. SAMMONS: Winterthur is where the parent is 14 located in Switzerland. 15 THE COURT: Is Winterthur a separate marketing 16 corporation or not. 17 MS. SAMMONS: No, your Honor, it is a separate -- 18 Winterthur is the location of the parent corporation, from what 19 I understand, and that's Sulzer AG. Sulzer AG, from what I 20 understand, controls the marketing for the entire company, or 21 for the subsidiaries and the companies. 22 THE COURT: When you save "controls marketing," what 23 specifically do you mean? 24 MS. SAMMONS: Your Honor, I have just have a section 25 of their Web site that basically says that all their marketing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 35jdapac 1 is handled at Winterthur. 2 THE COURT: So what? 3 MS. SAMMONS: So, your Honor -- 4 THE COURT: How does that give me jurisdiction? 5 MS. SAMMONS: One of the factors that the Court looks 6 at with regards to -- my understanding is dependency. I am 7 suggesting this is one factor. There are others. 8 THE COURT: It is not a very good factor. 9 MS. SAMMONS: I hear you. Procurement is done by one 10 of the subsidiaries on behalf of all the companies. So there 11 is global procurement. 12 THE COURT: Which subsidiary does it? 13 MS. SAMMONS: The Medco one, your Honor. 14 THE COURT: Where is that? 15 MS. SAMMONS: That is in New York. 16 THE COURT: Yes. Procures what? 17 MS. SAMMONS: It procures goods on behalf of the 18 entire -- I believe, your Honor, on behalf of the entire 19 division. 20 THE COURT: I am struggling with that. 21 MS. SAMMONS: Your Honor, it is in my papers. If you 22 would like me to emphasize that particular part, I would be 23 happy to do that. 24 THE COURT: There is very little in your papers. 25 MS. SAMMONS: I hear that, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 35jdapac 1 THE COURT: I read your papers. 2 MS. SAMMONS: OK. 3 THE COURT: There is not very much there. 4 MS. SAMMONS: Your Honor, it is a prima facie 5 standard, and we haven't had discovery yet. 6 THE COURT: I'll tell you what I am going to do. I 7 will read the decision of Judge Sand and the Court of Appeals 8 decision. If I am satisfied that that case is controlling, I 9 will dismiss your complaint and let you take this one up to the 10 Court of Appeals, all right? 11 MS. SAMMONS: I would prefer that the Court not do 12 that, your Honor. 13 THE COURT: I am bound to do what the Second Circuit 14 has told me to do. The Second Circuit has now found 15 jurisdiction on facts similar to these. I am not going to 16 carve out new ground, especially in a case in which the 17 grievances are essentially foreign. 18 MS. SAMMONS: Judge, I don't think you need to carve 19 out new ground here. I think the nature -- 20 THE COURT: I am going to depend upon the Second 21 Circuit to tell me that. 22 MR. FAGAN: I hear you, Judge. 23 THE COURT: So I will look at the case. All right. 24 Is there anything you want to say in reply? 25 MR. DAVIS: No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 35jdapac 1 THE COURT: What about this procurement business? I 2 am not so sure I understand the argument. What about this web 3 site? 4 MR. DAVIS: On the Web site, your Honor, to be very 5 honest, I can't tell you with specificity what you can and 6 can't do, but I believe there is a simple answer to the Web 7 site issue. And that is the Hsin Ten Enterprise case on which 8 counsel relied has indeed, by the same author of that opinion, 9 has been very specifically restricted to situations where it is 10 a transaction where the cause of action arises out of, which 11 makes a certain amount of sense. If you use the Web site to 12 order something -- 13 THE COURT: That is my understanding of the law. Most 14 of the cases that I have seen involving Web sites are not 15 founded to be a sufficient predicate for jurisdiction in the 16 absence of some transactional contacts with the forum. 17 MR. DAVIS: Right. Judge Scheindlin, who wrote the 18 Hsin Ten case, wrote another case which, if memory serves, 19 Mr. Fagan was counsel in. That was the Austrian ski accident 20 case. And what she said was: "The fact that a foreign 21 corporation has a Web site accessible in New York is 22 insufficient to confer jurisdiction under CPLR 301." That is 23 the In Re Ski Train Fire in Austria case. 24 So I think the Web site, we don't need to get into a 25 factual issue of what is on it. The notion of whether you can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 35jdapac 1 order something from a company that doesn't manufacture 2 anything because AG -- 3 THE COURT: What is this procurement business? 4 MR. DAVIS: I have no idea. AG is an investment 5 company. It owns companies all around the world. Like I said, 6 it has 47 employees of its own. If they pool procurement among 7 themselves, that has got nothing to do with whether AG is doing 8 business here. Every -- 9 THE COURT: What is particularly bothersome about this 10 case is that the gravamen, the so-called gravamen of the 11 so-called injuries is the foreign conduct in South Africa. 12 MR. DAVIS: By another subsidiary. 13 THE COURT: By another company. 14 MR. DAVIS: Right. 15 THE COURT: And we are using a U.S. jurisdictional 16 lynchpin to bring the action here, and therefore I would expect 17 the connection to the U.S. forum to be strong enough to 18 withstand that bringing of the foreign dispute into the courts 19 of the United States. 20 MR. DAVIS: Right. And I think the Web site doesn't 21 do it. 22 THE COURT: I don't think it does either, but I will 23 look at the case. 24 MR. DAVIS: Good. Thank you. 25 THE COURT: I will reserve decision. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 35jdapac 1 MS. SAMMONS: Your Honor, I would just request that we 2 have a week at least to try to purchase a product on the Web 3 site, your Honor. 4 THE COURT: Oh, no, no. I'm not giving you any more 5 time. You have had plenty of time. Forget it. 6 MS. SAMMONS: Your Honor, I believe this is going to 7 be a Web site where we can purchase multiple things that are 8 produced by Sulzer. 9 THE COURT: How much time did you have to respond to 10 this motion? 11 MS. SAMMONS: A month, your Honor. 12 THE COURT: More than a month. 13 MS. SAMMONS: No, I believe it was a month. 14 THE COURT: We had our first conference back in 15 February. 16 MS. SAMMONS: I think we got their papers in February 17 and we had to respond. 18 THE COURT: I know, but we are talking about 19 jurisdiction since February. 20 MS. SAMMONS: Correct, your Honor. 21 THE COURT: I am not going to do that. 22 MS. SAMMONS: Mr. Fagan would like to address a point 23 with regards to a case. 24 THE COURT: No, one lawyer per argument. That is it. 25 MS. SAMMONS: OK. Your Honor, I think there is enough SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 35jdapac 1 in there, albeit you might not think it is quite enough -- 2 THE COURT: It is not going to depend upon what I 3 think but what the Second Circuit thinks. 4 MS. SAMMONS: I hear you, your Honor. 5 THE COURT: Judge Sand is a very able judge and I 6 would read his opinion with great interest. 7 Yes. Now what else has to be discussed? 8 MR. FAGAN: Your Honor, I had submitted a schedule. 9 THE COURT: Let's not deal with the schedule. There 10 are a lot of letters dealing with whether or not process has 11 been initiated. 12 MR. FAGAN: I would welcome that discussion, your 13 Honor. 14 THE COURT: It is not only a discussion. We are going 15 to have a hearing. 16 MR. FAGAN: Great, your Honor. 17 THE COURT: Does that satisfy you? I will take 18 factual testimony as to what was done. I don't need any 19 disputes here on letters or affidavits. I will find out if you 20 have complied with my order, and I will find out if you have 21 complied with my order through sworn testimony at a hearing. 22 Is that agreeable to you? 23 MR. BARRON: Yes, your Honor. 24 THE COURT: All right. 25 MR. FAGAN: Your Honor, two of the witnesses at the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 35jdapac 1 hearing are going to be Mr. Barron and Mr. Witten. 2 THE COURT: I don't know who they are. 3 MR. FAGAN: They are counsel for the defendants, your 4 Honor, who came before this Court on August the 23rd when we 5 were before Judge Casey -- 6 THE COURT: I am not interested in what their people 7 say. I am interested in what you are going to be able to 8 prove. 9 MR. FAGAN: No, your Honor. I am talking about the 10 specific issue of service. We are talking about service. 11 THE COURT: You have to demonstrate to me that you 12 complied with my order. That is your burden. 13 MR. FAGAN: Yes, your Honor. On August 23rd of 2002 14 Mr. Barron said that his client does not contest service of 15 process. 16 In addition, and he -- 17 MR. BARRON: Your Honor -- 18 MR. FAGAN: I am reading the transcript. 19 THE COURT: He says he doesn't. So why are we talking 20 about a non-issue? 21 MR. FAGAN: Your Honor, I can hand up the transcript. 22 The transcript says -- 23 THE COURT: Why are we addressing a non-issue? 24 MR. FAGAN: Thank you, your Honor. 25 THE COURT: Just address the issue. There have been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 35jdapac 1 letters that dealt with people who are contesting and who were 2 not served or service has not been initiated. That is what I 3 am dealing with. Don't throw a red herring at me. 4 MR. FAGAN: No, your Honor, it is not a red herring. 5 As to the case that is before the Court, the Ntzebesa 6 complaint, which has -- the defendants are CitiGroup, J.P. 7 Morgan Chase, IBM Corporation, UBS AG, Credit Suisse AG, 8 Deutsche Bank AG, Dresdner Bank AG, Commerzbank Bank AG, 9 Barclays Bank PLC, Natwest Bank PLC, Standard Chartered Bank 10 PLC, Credit Lyonnais, Banque Indo Suez, Novartis AG, Sulzer AG, 11 Anglo-American Corporation and De Beers Corporation, those are 12 the ones that are in the complaint that is before this Court, 13 not all of the consolidated complaints. They haven't yet 14 come -- we haven't filed such a case in a consolidated fashion. 15 Those defendants, 15 out of those defendants are 16 before this Court. They are either before this Court because 17 service was waved by counsel. They accepted service of 18 process. 19 THE COURT: I am not worried about that. 20 MR. FAGAN: Then let's move that case, your Honor. 21 THE COURT: No. What I am concerned about is only one 22 thing and I am going to say it for the third time. If you 23 don't get it this time, I am going to think you are 24 deliberately obtuse. 25 All I am concerned about is cases where I have issued SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 35jdapac 1 an order that process be initiated and process be effected and 2 where they are claiming that has not been done in compliance 3 with my Court's order. I said it for the third time. Is it 4 clear what I mean? 5 MR. FAGAN: Yes, your Honor. 6 THE COURT: That is all I am concerned about. 7 Are there any of those cases? 8 MR. FAGAN: Pardon me, your Honor? 9 THE COURT: Which cases are those? 10 MR. FAGAN: Your Honor, I can go through the list of 11 all the cases -- 12 THE COURT: Don't go through the whole list. Just 13 tell me the ones that there is going to be an issue as. 14 MR. BARRON: Your Honor -- 15 THE COURT: Sit down and I will have him tell me. 16 You wrote me a letter. You tell me what you claim to 17 be an issue. 18 MR. BARRON: Frank Barron for UBS, your Honor, and I 19 am speaking today on behalf of all of the defendants. 20 May I pass up a summary? 21 THE COURT: Yes. Let me know the ones that you would 22 like a hearing on which you claim should be dismissed for not 23 complying with my Court order. 24 (Handing) 25 THE COURT: Are all of these people contesting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 35jdapac 1 jurisdiction? 2 MR. BARRON: Contesting service, your Honor. 3 THE COURT: Contesting service. 4 MR. BARRON: That is correct. 5 THE COURT: All right. 6 MR. BARRON: As to the foreign defendants, remember, 7 your Honor, that you gave us discovery, and the plaintiffs in 8 each of the cases, Ntzebesa and Digwamaje, responded to that 9 discovery. What the discovery shows is that in neither of the 10 cases has either of the plaintiffs taken any action to initiate 11 service of process under the Hague Convention. And therefore 12 we say all of those defendants, foreign defendants, who need to 13 be served in compliance with the Hague Convention ought to be 14 dismissed. That's what your Honor said you were going to do 15 and that's what we are asking you to do, your Honor. 16 THE COURT: You say they have not initiated the 17 process. They say they have. 18 MR. BARRON: Well, they say -- first of all, 19 Mr. Ngobeni, for the Digwamaje plaintiffs, does not answer the 20 question at all, and it must be presumed that there has been no 21 initiation of service. 22 THE COURT: Well, they will have to answer the 23 question under oath at a hearing. 24 MR. BARRON: What Mr. Fagan says or what Mr. Fagan's 25 paralegals says is that they have initiated process by sending SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 35jdapac 1 the complaint out for translation. 2 Now, your Honor, on February 4th, when we had a 3 hearing, you had a discussion with Mr. Fagan about translation, 4 and it was clear to every person in that courtroom that the 5 sending out of the complaint for translation does not 6 constitute initiation of the Hague process. Indeed, your order 7 of February 6th would not have made any sense whatsoever if 8 translation was initiation of the Hague process. 9 THE COURT: No, I don't think it is. 10 MR. BARRON: Because Mr. Fagan told you at that time 11 that he had already sent the complaint out for translation. So 12 for that order to make any sense at all there has to be another 13 step. And what we say, your Honor, that step is they have to 14 send the complaint and the other process out to the central 15 authority in the country that is expected to make service. 16 THE COURT: That is a rational interpretation of what 17 I meant. 18 MR. BARRON: And that they say they haven't done. So 19 I don't think you need a hearing as to the foreign defendants. 20 THE COURT: Maybe we don't. 21 MR. BARRON: I don't think you do. 22 MR. FAGAN: May I address that, your Honor? 23 THE COURT: Yes. Certainly sending it out for 24 translation is not the initiation of process. 25 MR. FAGAN: Your Honor, let's address Mr. Barron's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 35jdapac 1 client. Mr. Barron's client came before Judge Casey on 2 August 23rd of the year 2002, and said the following: "We do 3 not contest the service of process that was attempted by 4 Mr. Fagan's office, we do not contest that." That's Mr. Barron 5 and his client, and here is the transcript. 6 MR. BARRON: We don't contest -- 7 MR. FAGAN: That that -- 8 THE COURT: Wait a minute. 9 You don't contest it? 10 MR. BARRON: We don't contest it, your Honor. If we 11 did contest it, under your rules I wouldn't be allowed to speak 12 to you. 13 THE COURT: Correct. 14 MR. BARRON: My client does not contest the service of 15 process. My client waives service of process under Rule 4. 16 THE COURT: You have waived it? 17 MR. BARRON: That is correct. 18 THE COURT: Why is that an issue for me as to whether 19 he initiated process or not? 20 MR. BARRON: I am sorry, your Honor? 21 THE COURT: Why do you raise the issue of whether he 22 has initiated process? 23 MR. BARRON: Because I am raising it with respect to 24 other defendants. 25 THE COURT: To other defendants? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 35jdapac 1 MR. BARRON: Other defendants, the ones who are listed 2 on that document. 3 THE COURT: Who is the client that you were referring 4 to in front of Judge Casey? 5 MR. BARRON: UBS AG. 6 THE COURT: They are not on this list? 7 MR. BARRON: Yes, they are not on that list. 8 THE COURT: What aren't we getting into the relevancy? 9 MR. FAGAN: Excuse me, your Honor. I can go down to 10 the next defendant, and what have we can do is -- for example, 11 the very first page says "Foreign defendants not served under 12 of the Hague Convention." Credit Suisse AG is number 4 down 13 the list, number 4. Credit Suisse's counsel, in 14 correspondence -- actually, that was on the very first day. 15 And on August, the 9th, before Judge Casey, Mr. Witten said 16 that they would accept service of process, that we should send 17 them a Rule 4(d) waiver. We sent them the Rule 4(d) waiver, 18 and now we see Credit Suisse's name. 19 THE COURT: Who represents Credit Suisse AG? 20 MR. WITTEN: Roger Witten, from Wilmer Cutler & 21 Pickering, for Credit Suisse Group. 22 THE COURT: What is your position on this? He says 23 you have waived it. 24 MR. WITTEN: Good afternoon, your Honor. 25 We wrote a letter to Mr. Fagan on August 1st, ten SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 35jdapac 1 months ago, saying that if you followed the procedures under 2 Rule 4(d), we would waive. But he never did. And I reminded 3 him of -- 4 THE COURT: What procedures was he supposed to follow 5 under Rule 4(d)? 6 MR. WITTEN: Send a letter to the client with the 7 complaint, all the (A) through (F) under 4(d). 8 I reminded him in Court in front of Judge Casey on the 9 8th of August and on the 23rd of August, and when I raised it 10 again that he had never done anything on October 30th in front 11 of Judge Casey, Judge Casey said to Mr. Fagan you have a drop 12 dead date of November 8th. Are you going to serve them? If 13 you don't, initiate Rule 4(d) by November 8th. The case is 14 going to be dismissed. 15 And November 8th came and went and Mr. Fagan did 16 nothing. Several weeks later, one of his co-counsel sent us a 17 Rule 4(d) waiver request, which we never accepted. We 18 responded that because it followed months of delay and came 18 19 days after the last deadline that Judge Casey imposed, we 20 regarded it as a nullity and we were no longer willing to waive 21 service. And because your Honor had by that point set a 22 deadline for initiation of Hague service, we advised Mr. Fagan, 23 just to make sure there was no ambiguity, that if he wished to 24 serve us at this point, he had to follow the Hague Convention, 25 and as to that his discovery responses show that he has done SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 35jdapac 1 nothing. 2 THE COURT: All right. So you dispute his notion that 3 what you did in front of Judge Casey hasn't got anything 4 whatsoever to do with the issue now. 5 MR. WITTEN: That is right. We were very clear that 6 we weren't waiving, we were inviting him to pursue Rule 4(d). 7 THE COURT: I really do think that my initial instinct 8 was correct. We have to have testimony here from the lawyers 9 as to what exactly they had done so that I don't get into a 10 kind of red-herring analysis, which I seem to be getting in 11 this oral argument in front of this large group, raising 12 irrelevant issues which you had pointed out to me. I can go 13 down to each lawyer and each person on this list. No, that is 14 not what I am going to do. 15 I am going to have a hearing and he is going to get on 16 the stand and he is going to testify to exactly what he has 17 done. All right? And he could tell me factually why he thinks 18 he was not required to do it, because of some prior arrangement 19 he had with each one of your clients. And if he fails to do 20 that, I am going to dismiss the claim. All right? 21 MR. WITTEN: Happily, your Honor, there is 22 correspondence and court transcripts for every step of the way. 23 THE COURT: All of that is going to be available. You 24 will be entitled to cross-examine him and you people can be 25 cross-examined, too. It may take me two or three days to do it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 35jdapac 1 that way, but it would be a lot faster than going through the 2 kind of exercise we are going through today where Mr. Fagan 3 gets up and he says, well, they had consented to it and you say 4 they haven't consented to it. Let's take them one by one. We 5 have what, how many companies on this list? 6 MR. WITTEN: Thank you, your Honor. 7 THE COURT: About what, 25 or 30? 8 MR. FAGAN: Your Honor, if we go the first list, which 9 would be the ones in the New York complaint, we've got 17 10 defendants. 11 THE COURT: All right. So we'll have to have maybe a 12 one-day hearing. 13 MR. FAGAN: And those, I notice that many of those, 14 your Honor, although I didn't get to them, and, your Honor, 15 they are not red herrings, they are -- each one of several -- 16 THE COURT: You will be entitled under oath to explain 17 each one of them, all right? 18 MR. FAGAN: Thank you, your Honor. 19 THE COURT: Save some of the time that you devote to 20 making press statements and testify here. 21 MR. FAGAN: Your Honor, I haven't made a statement to 22 the press. 23 THE COURT: Well, somebody did. There was an article 24 that I just read which indicated a lot of statements were being 25 made by at least one lawyer in this case, maybe not you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 35jdapac 1 MR. FAGAN: Your Honor, I have, from the very first 2 day that we came here, defense counsel misrepresented to Judge 3 Casey what went on that day. From that moment in time, when we 4 come to Court here, I don't notify the press of what's doing. 5 If somebody from the press wants to call me -- 6 THE COURT: They quote one of your co-counsel in the 7 article. What is his name? I can't pronounce it. 8 MR. BARRON: Ntzebesa. 9 THE COURT: He is supposed to be making all kinds of 10 statements. 11 MR. FAGAN: I read some articles where 12 Anglo-American -- 13 THE COURT: Have you seen the articles? 14 MR. FAGAN: I haven't seen that one, but I have read 15 some articles where Anglo-American, Credit Suisse, UBS and De 16 Beers were sitting down and settling with us. 17 THE COURT: The article said they refused to comment 18 because of my comments that they not comment. 19 MR. FAGAN: What I read was that we were settling the 20 case in South Africa last week with four of the key 21 defendants -- Credit Suisse, UBS, Anglo-American and De Beers, 22 under the auspices of the Archbishop, I think -- I don't know 23 how to pronounce his name. I don't even know how to pronounce 24 his name, Dunghani (phonetic). I read that and I was surprised 25 about that because I wasn't invited to come. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 35jdapac 1 THE COURT: Somebody is doing some talking here. 2 MR. FAGAN: The point, your Honor, is that last year, 3 when we came before this Court, I asked Judge Casey to go 4 through defendant-by-defendant who was going to accept service, 5 who was waiving service, so that we could expedite this thing. 6 Each one of the defendants' counsel was asked by Judge Casey 7 whether or not they were accepting service, whether they were 8 contesting service, whether they were waiving service. 9 THE COURT: But the ball game began anew in February 10 with me. 11 MR. FAGAN: Your Honor, then when we get to the issue 12 of who is going to present evidence, I have no problem with 13 that concept, but I do want the opportunity to have defense 14 counsel explain to the Court why I am not entitled to rely upon 15 statements that they made when they indicated back at that time 16 in August that they accepted service. 17 THE COURT: You just heard one defendant say it. 18 MR. FAGAN: Yes, your Honor, but I would like them to 19 do that under oath -- 20 THE COURT: He said your clock ran out and you never 21 complained with the order anyway. 22 MR. FAGAN: Your Honor, I have the rules. I have the 23 letters that went back and forth. I have the service of 24 process -- 25 THE COURT: You will have it all for the hearing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 35jdapac 1 MR. FAGAN: Yes, your Honor. 2 THE COURT: You will get a full opportunity to 3 testify, and they will get a full opportunity to cross-examine 4 you. 5 MR. FAGAN: Thank you, your Honor. As far as the 6 ones -- 7 THE COURT: I will decide if there has been a 8 violation of my Court order or not. If there has not been, 9 fine. If there has been, I am going to dismiss the complaint, 10 as I promised to do. 11 MR. FAGAN: Thank you, your Honor. 12 With regard to those defendants' counsel who made 13 representations, I will submit the transcripts and the names of 14 defendants' counsel who made representations to us about 15 service -- 16 THE COURT: I would expect them to be here and 17 testify, like everybody else. 18 MR. FAGAN: Thank you, your Honor. 19 THE COURT: Anybody that is interested in these 20 motions should be here for the hearing and I will hear their 21 testimony. 22 MR. FAGAN: Thank you, your Honor. 23 THE COURT: I am not going to read a lot of 24 transcripts, that is a waste of time. 25 MR. BARRON: All you need to know about what Judge SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 35jdapac 1 Casey did for this purpose was Judge Casey in October told the 2 plaintiffs get the process initiated by November 21st. 3 THE COURT: And I gave them more time. 4 MR. BARRON: And you gave them more time. 5 Judge Casey never dealt with our application to have 6 the complaint dismissed because he recused himself. You gave 7 them more time by your order of February 6th and you said you 8 can amend your complaint by March 3rd and you have to at least 9 initiate the process -- 10 THE COURT: By April 3rd, wasn't it? 11 MR. FAGAN: Yes. 12 MR. BARRON: You then gave us at the last conference 13 the opportunity to conduct discovery. 14 And I would submit to you, your Honor, that that 15 discovery itself, the responses of the plaintiffs, makes 16 absolutely clear that neither of the plaintiffs, Ntzebesa or 17 Digwamaje, has started anything with respect to the Hague other 18 than Mr. Fagan's paralegals -- 19 THE COURT: I know, but I want to see the witnesses 20 testify. 21 MR. BARRON: Your Honor, if you think that is 22 necessary, that is fine. It doesn't sound -- 23 THE COURT: I think it is going to be faster than 24 reading a lot of affidavits and the discovery and having to 25 write an opinion, because when I have a hearing I make my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 35jdapac 1 findings right then on the record and then take action 2 accordingly. It is much faster. 3 MR. BARRON: Your Honor, can I just return to the 4 subject of the news articles that your Honor is referring to of 5 today. These are -- by the way, your Honor, I have in my -- 6 THE COURT: I am not making an issue of that yet, but 7 the time may come when you may have to be heard on that issue. 8 MR. BARRON: It is actually relevant to the next 9 subject which is going to come up, which is scheduling. 10 I have in my office a stack of newspaper articles that 11 is about that fat since this case was filed, newspaper articles 12 about this litigation. The two most recent ones were of today. 13 One I think your Honor is referring to -- may be referring to 14 is the one in the Financial Times. 15 THE COURT: That is the one I read. 16 MR. BARRON: It starts off: The atrocities of South 17 Africa, African Apartheid will be played out in a U.S. Court 18 from today, as the first hearing of the reparation case gets 19 underway. 20 Down the column, here is a quote: "Mr. Fagan and John 21 Ntzebesa, a South African lawyer involved in the case, are 22 confident the companies will eventually be shamed into settling 23 out of Court." 24 Further on -- 25 THE COURT: I don't know where he got that confidence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 35jdapac 1 from. I don't see any indication that you are shamed into 2 defending this case. 3 MR. FAGAN: Your Honor -- 4 MR. BARRON: Further on, your Honor -- excuse me, if 5 we are -- 6 MR. FAGAN: If you are making a statement, then give 7 me the opportunity to see it. I haven't seen it. 8 THE COURT: You will get it when he is finished. 9 MR. FAGAN: I want to see it. 10 THE COURT: You will see it when he is finished. 11 MR. FAGAN: OK. 12 MR. BARRON: Further on, your Honor, a quote from 13 Mr. Ntzebesa: "The defendant's know it is not going to be as 14 easy as they originally thought. They know they cannot afford 15 to attract all this negative publicity for the next five or 16 seven years." And that article appears with a nice big picture 17 of Mr. Fagan. 18 The next article of today is from the Times of London 19 and that one starts off: "More than 30 of the world's leading 20 international banks and corporations will face a claim in a New 21 York Court today for $100 billion in damages for their role in 22 supporting apartheid." 23 Then Mr. Ntzebesa, if I am pronouncing his name 24 correctly, features again: "John Ntzebesa, a South African 25 lawyer who has been working on the case with Mr. Fagan, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 35jdapac 1 confident of winning an out of court settlement, as happened 2 with the Swiss banks, but the strategy of trying to embarrass 3 the banks and companies into paying up has led to criticism 4 that the case will be decided in the court of public opinion 5 rather than in a court of law." 6 Your Honor, I suggested to you that those articles are 7 relevant to the next subject that is going to come up, which is 8 scheduling. We want to get to the issues, your Honor. We want 9 the complaint to be tested, the sufficiency of the complaint. 10 Your Honor recognized at the last hearing that there 11 is a big central issue here, which is whether doing business in 12 South Africa during the time of apartheid is enough to make the 13 corporations that did business liable under international law 14 for the wrongdoing of the apartheid regime. That is the 15 central issue. There are other issues. We want to get to 16 that. 17 The plaintiffs don't want to get to that, and the 18 reason they don't want to get to that is because this case is 19 their platform for a publicity campaign, and the sooner the 20 Court gets to those issues, the sooner this case is going to be 21 dismissed, in our view. 22 THE COURT: What you are suggesting is I should 23 reconsider my prior release with respect to jurisdiction 24 because of the view of the publicity that has been generated, 25 that I ought to deal with the merits first. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 35jdapac 1 MR. BARRON: What I am suggesting, your Honor, is you 2 did tell us on more than one occasion that we would get the 3 opportunity to address the merits and that you would give us a 4 hearing, or a schedule at this hearing. And one of the things 5 you said at the last conference, and this is a quote: "Them 6 that are complained against have a right to contest the merits 7 and not have this complaint pending against them without an 8 opportunity to raise the issues they may want to raise." 9 Your Honor -- 10 THE COURT: So there are some people here as to whom 11 jurisdiction is admitted, I take it? 12 MR. BARRON: That is correct, your Honor. 13 THE COURT: Those people would like to move now? 14 MR. BARRON: That is correct, your Honor. 15 And, your Honor -- 16 THE COURT: It sounds reasonable. 17 MR. BARRON: -- as to other defendants who may be 18 dismissed without prejudice, or who maybe brought in later as 19 to other cases that the MDL Panel may be considering -- there 20 are two of them now in the Eastern District, there may be more 21 to come -- your Honor can stay all of that activity while you 22 address the motions to dismiss -- 23 THE COURT: So long as I am satisfied that the people 24 making the motions are within the jurisdiction of the Court. 25 MR. BARRON: And they will be. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 35jdapac 1 THE COURT: And that I have a right to speak as to 2 them, which was my primary concern back in February. 3 MR. BARRON: Yes. You can decide those issues and 4 your decision -- 5 THE COURT: How many defendants then would be joining 6 in that motion? 7 MR. BARRON: I think that will be 17, your Honor. 8 THE COURT: 17 as to whom there is no question that 9 there is jurisdiction? 10 MR. BARRON: If you were to dismiss all of the 11 defendants for whom we claim there has been no service and no 12 initiation of the Hague process -- 13 THE COURT: I don't have to deal with that right away, 14 then. 15 MR. BARRON: In compliance with the -- I don't think 16 you do need to deal with it right away, your Honor, if you 17 would give us a schedule today. 18 THE COURT: So long as there are a group of defendants 19 in this case who do not contest jurisdiction and do not reserve 20 the right to contest it later and they want to proceed on the 21 merits and in fact waive jurisdiction so they can do that at 22 this point, I will be happy to do it. 23 MR. BARRON: I agree with that, your Honor, and your 24 decision on the issues as presented by those defendants in this 25 case -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 35jdapac 1 THE COURT: I could stay the issues with respect to 2 the balance of the defendants because it really doesn't matter. 3 MR. BARRON: If your decision will serve -- 4 THE COURT: Because if you lose on the merits, that 5 case is going to go to the Court of Appeals, or if you win on 6 the merits, that case is going to be going to the Court of 7 Appeals. And it will ultimately be ruled upon. The 8 jurisdiction will become kind of irrelevant as to the others. 9 MR. BARRON: Put another way, your decision will 10 become a template for any later cases that come along. I think 11 that is the appropriate way to deal with this. That is the way 12 other courts have dealt with this in these situations. 13 THE COURT: Jurisdiction is not really meaningful so 14 long as I have -- you see, my problem has always been a purity 15 problem. I don't think I have the right to move on the merits 16 of the case unless I address the jurisdictional issue first, 17 and so long as there are some defendants in this group -- you 18 know, it is like any other class action. You could pick a test 19 case and go ahead and try it and see what happens with the 20 other ones based upon what happens in the test case. 21 So if you have a group of defendants as to whom there 22 is some question of jurisdiction and who are waiving 23 jurisdiction, therefore admitting that I have the right to make 24 a determination as to them on the jurisdictional grounds, then 25 I will be happy to get to the merits and leave these other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 35jdapac 1 jurisdictional rulings as kind of mop-up questions later. 2 MR. FAGAN: Your Honor, that is precisely what we 3 asked for last year when we were before Judge Casey. To get 4 the defendants into a position where they are now saying, which 5 is fine, in May of 2003, they are saying that they are prepared 6 to file a brief to submit to the jurisdiction of the Court -- 7 THE COURT: Let's just -- 8 MR. FAGAN: Let's see who they are. Who are the 9 defendants that are prepared to move? And who waive 10 jurisdiction issues. 11 MR. BARRON: We are not waiving jurisdiction, we are 12 not contesting it. 13 MR. FAGAN: That is precisely what you are doing. 14 MR. BARRON: We are not contesting it. 15 THE COURT: What I am saying is that I will not hear 16 you argue later on, after I hear you on the merits, that I 17 don't have any jurisdiction. 18 MR. BARRON: Of course not, your Honor. 19 THE COURT: That is what I am talking about, waiver. 20 Any defendant who moves should waive jurisdiction. 21 MR. BARRON: That is correct, your Honor. We 22 understand. 23 THE COURT: My concern was I don't want to, in effect, 24 make an advisory ruling or ruling in a vacuum because of the 25 Circuit Court precedent saying I should resolve jurisdiction SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 35jdapac 1 before I get to the merits. If there are some people as to 2 whom jurisdiction is not contested and will not be raised 3 hereafter as a defense -- all right, that's a waiver to me -- 4 who want to go ahead and litigate the issue as to the merits of 5 this case, then I think you should have to fish or cut bait. 6 MR. BARRON: That is correct, your Honor, and I 7 think -- I'm afraid I may be missing this page, but in the 8 document I handed up to you I think there ought to be a page in 9 which we list those defendants who are not contesting 10 jurisdiction. 11 THE COURT: And who will not contest it hereafter? 12 MR. BARRON: That is correct. 13 (Pause) 14 THE COURT: Just tell me who they are. 15 MR. BARRON: Your Honor, this is service and personal 16 jurisdiction, not subject matter jurisdiction, correct? 17 THE COURT: Subject matter jurisdiction? Well, I 18 think there is not much of an argument on subject matter 19 jurisdiction. Congress has given me subject matter 20 jurisdiction, assuming that they stated a cause of action. We 21 went through this the last time. 22 MR. BARRON: This is a little tricky, your Honor. 23 THE COURT: Where there is lack of subject matter 24 jurisdiction or where there is failure to state a claim, we 25 come out in the same ballpark. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 35jdapac 1 MR. BARRON: It is a little tricky. Under the Alien 2 Tort Statue, if you don't state a claim then the Court doesn't 3 have jurisdiction. 4 THE COURT: I am assuming nobody is waiving subject 5 matter jurisdiction. 6 MR. BARRON: Correct. But, Your Honor, there is in 7 the document I passed up to you a summary page of defendants 8 not contesting service, and it has I believe 17 defendants on 9 it. Twelve under Ntzebesa. 10 May I approach the bench, your Honor? I can pass it 11 up. 12 THE COURT: All right. So I take it these defendants 13 will be moving? 14 MR. BARRON: These defendants would be moving. 15 MR. FAGAN: Which page is that? 16 THE COURT: I take it none of these defendants on this 17 list, which I will refer to as Court's Exhibit 1 -- and the 18 Court reporter can identify it so that it is clear for the 19 record -- will be raising jurisdiction as a defense either now 20 or hereafter, right? 21 MR. BARRON: That is correct, your Honor. 22 THE COURT: But you don't waive subject matter 23 jurisdiction to the extent that, technically speaking, under 24 the Immunities Act if I find a failure to state a claim, I also 25 will be finding lack of subject matter jurisdiction. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 35jdapac 1 All right. How soon do you want to move on behalf of 2 these defendants? 3 MR. BARRON: Your Honor, if you would give us 45 days 4 from whenever your Honor makes the decision on the Sulzer 5 motion on personal jurisdiction, then we would suggest that the 6 plaintiff have 45 days to respond and we get a reply brief. 7 THE COURT: Why wait for the Sulzer decision? 8 MR. FAGAN: Your Honor, I don't even see the list. 9 THE COURT: Why wait for the Sulzer decision? There 10 is no reason for you to wait. 11 MR. BARRON: I am sorry? 12 THE COURT: Why wait for the Sulzer decision? 13 MR. BARRON: That is fine, you don't need to. 14 THE COURT: Give me a date so I will know exactly when 15 you want to file your papers. We are into subject matter 16 jurisdiction now. So Sulzer's timing is not that important 17 anymore. 18 MR. BARRON: Your Honor, why don't we say July 15th? 19 THE COURT: July 15th is fine. One brief on behalf of 20 all the defendants? 21 MR. BARRON: Well, here is what we are going to do, 22 your Honor. If you were to give all of the defendants 10 pages 23 each, that would be 170 pages. 24 THE COURT: I am not going to read 170 pages. 25 MR. BARRON: What we would like, your Honor, we think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 35jdapac 1 that we can get together on a brief that covers all of the main 2 issues, the common issues to the defendants, in both cases in 3 one brief. And what we would ask of your Honor is that you 4 give us 75 pages in which to do that. 5 THE COURT: I was thinking more in terms of 50. 6 You've got to realize, the longer your briefs get, the less 7 likely I am to really read them with the kind of care you want 8 me to read them with. 9 MR. BARRON: I understand that, your Honor. 10 THE COURT: I will give you 75 pages with the 11 understanding that you should try to shorten it as much as you 12 can. 13 MR. BARRON: OK. 14 THE COURT: Don't assume you have to use the 75. 15 MR. BARRON: OK. Now, your Honor, with great 16 trepidation, I now offer just a footnote, which is that I can't 17 say for sure that there may not be defendants or a group of 18 defendants who think that there are issues peculiar to them 19 that need to be addressed in satellite briefs. What I would 20 suggest to your Honor is that we will do our absolute best to 21 keep those to a minimum and to keep them very short. 22 THE COURT: I can tell you that the satellite briefs 23 are going to be under 10 pages each, I can tell you that much. 24 MR. BARRON: That is fine. Thank you, your Honor. 25 THE COURT: It doesn't do you any good to file the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 35jdapac 1 kind of papers that I don't have time to read. 2 MR. BARRON: I agree. 3 THE COURT: So you want 75 pages, too? 4 MR. FAGAN: I do, your Honor. 5 THE COURT: Don't use the 75 unless you have to. 6 MR. FAGAN: I won't, your Honor. But I would like to 7 know who are the defendants. I didn't get that list, your 8 Honor. 9 THE COURT: You are on that list. You will get a copy 10 of it. 11 MR. FAGAN: The reason it is important, your Honor, is 12 the Court gave us permission to file the third consolidated 13 amended complaint. We did that. That is the complaint to 14 which these defendants should move. 15 THE COURT: I assume that is what they are going to 16 move against. 17 MR. FAGAN: But we have to see if these are the 18 defendants who are named in the third consolidated amended 19 complaint. 20 THE COURT: Mr. Barron, do you know whether they are 21 or they are not? 22 MR. BARRON: I have not seen the third amended 23 complaint, your Honor. 24 THE COURT: All right. Well, if there are defendants 25 you have dropped, just take them off the list, that is all. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 35jdapac 1 MR. BARRON: Right. 2 MR. FAGAN: Could you just give me one second to 3 compare it, your Honor? Thank you. 4 (Pause) 5 MR. FAGAN: Your Honor, what you have are the -- you 6 have the American banks, one of the Swiss banks. There are no 7 domestics. You don't have the French banks. They were served. 8 THE COURT: Why don't you just update the list and 9 give a copy of it to the court reporter, because then there is 10 no reason for us to worry about that now. 11 MR. FAGAN: I could do that, your Honor. 12 THE COURT: You have plenty of time before the motions 13 are filed. I just want motions of the people as to whom I have 14 in effect not given an advisory opinion at this stage, or a 15 tangible controversy or personal jurisdiction. 16 MR. FAGAN: Your Honor, as the Court indicated, those 17 defendants that filed that motion have effectively waived 18 service and jurisdictional defenses. 19 THE COURT: Subject matter jurisdiction. 20 MR. FAGAN: Except subject matter jurisdiction. 21 THE COURT: OK. 22 MR. BARRON: Your Honor, that is assuming that they 23 are named as defendants in Mr. Fagan's third complaint. I 24 haven't compared them. 25 THE COURT: You can do that at your leisure without SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 35jdapac 1 wasting any more time of mine. I have been here for three 2 hours already. I think it is long enough. 3 MR. BARRON: If you are not a defendant, then you 4 won't be moving against the complaint. 5 THE COURT: Whoever moves, moves, I am not worried 6 about that. 7 MR. FAGAN: Your Honor, the other issue then is as to 8 those defendants that have not moved, or those defendants who 9 have chosen not to join this group, then we should have the 10 opportunity, your Honor, to file a motion to compel either an 11 answer or to take a default against them. 12 THE COURT: I will stay all answers until I rule on 13 the merits of the motion. 14 As far as the Sulzer, the other case is concerned, I 15 think I ought to reserve decision on that one until after I 16 resolve the merits, because it may become academic anyway. 17 MR. FAGAN: Thank you. 18 Your Honor, may I make just one observation? For 19 example, they indicate there is a defendant named Shell Oil 20 Company that is a defendant not contesting service and purports 21 to be a defendant that is going to move. 22 Now, from what I understand from Mr. Barron, that 23 entity will move. However, that entity is part of a global 24 Shell corporation. It is called Royal Dutch Shell. There are 25 multiple different defendant entities who are sued, and what I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 35jdapac 1 need to understand is, is when Shell Oil Company moves, are 2 they moving as Royal Dutch Shell, are they moving as Shell Oil? 3 Who is moving? 4 MR. BARRON: The parties that have been served, your 5 Honor. This is the same issue that you just dealt with with 6 Sulzer. I don't know that Shell Oil Company was served, your 7 Honor. I don't have a copy of the paper that I handed up to 8 your Honor. 9 THE COURT: Well, the only person that is moving is 10 the person who was served and over whom I have jurisdiction. 11 MR. BARRON: Correct. 12 THE COURT: It doesn't really make a lot of difference 13 anyway because the legal issues as to them, all defendants are 14 going to be pretty much the same, whether served or not. I 15 just need a handful of nominal defendants, if you will, that 16 will give me the predicate jurisdiction -- 17 MR. FAGAN: Your Honor, may I make -- 18 THE COURT: -- of ruling on the merits. 19 MR. FAGAN: May I make an additional suggestion, your 20 Honor? 21 With regard to a handful of defendants, I agree with 22 the concept and I think it is good and I am glad that we are 23 moving there. I think, however, we should add the concept of 24 a -- we are missing a mining company, that a defendant mining 25 company, we are talking about -- I am sorry to cause people to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 35jdapac 1 laugh. If we are talking about an issue that addresses the 2 issue of this complaint, we are talking about industry groups. 3 And we've got the financial services industry. We've got the 4 computer industry. We've got oil companies. We've got 5 automotives. We do not have, for example, Ford Motor Company, 6 that was served. I don't know why they are not here. 7 We do not have -- we do not have some of the mining 8 companies. We do not have some of the other defendants that 9 were served, your Honor. 10 They are American corporations. And if we are going 11 to do industry groups, let's do the industry groups. 12 THE COURT: We are not doing industry groups. We are 13 just going to decide whether or not your theory is viable. 14 MR. FAGAN: Your Honor, then why isn't Ford moving? 15 And why aren't we entitled to a default against Ford when they 16 were served? 17 MR. BARRON: They weren't served. 18 THE COURT: They were not served? 19 MR. BARRON: They were not served with the second 20 amended complaint, your Honor. 21 THE COURT: Then they certainly weren't served with 22 the third amended complaint. 23 MR. FAGAN: Your Honor, they were served with the 24 complaint, and that is precisely the process. We served them 25 with the complaint. Then we get permission to file an amended SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 35jdapac 1 complaint. I handed the amended complaint -- Mr. Niblock, are 2 you here today? Mr. Niblock was liaison counsel who told me 3 that when I gave him the complaint, he serves it and gives it 4 to everybody else. 5 That third amended complaint, as far as I am 6 concerned -- 7 THE COURT: Gives it to who else? Who is the 8 "everybody else"? 9 10 MR. FAGAN: Mr. Niblock can tell us who he speaks for 11 as the liaison counsel. 12 THE COURT: I don't know. 13 MR. NIBLOCK: Your Honor, I represent Ford Motor 14 Company. 15 THE COURT: You are going to move or not? 16 MR. NIBLOCK: Well, I think we need to clear up one 17 ambiguity that resulted from the last hearing that Ford and a 18 number of other defendants fall in this category. 19 Ford was served with the original complaint. There 20 was some misunderstanding or some ambiguity in the Court's last 21 order as to whether the plaintiffs had to file or served their 22 amended complaints on all defendants by a date certain. The 23 plaintiffs failed to do that. 24 And so in the paper that Mr. Barron handed up to you, 25 there is a list of defendants who were served with the original SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 35jdapac 1 complaints but have never been properly served with any of the 2 amended complaints in the cases. 3 If it's your Honor's position -- 4 THE COURT: Well, you could waive service of the 5 amended complaint if you want to join the moving defendants. 6 MR. NIBLOCK: If it is your Honor's position that we 7 should do that, we will. 8 THE COURT: It is not my position. It is your 9 position. Do you want to be part of the people who are moving 10 or not? 11 MR. NIBLOCK: I will consult with my clients on that, 12 your Honor. 13 THE COURT: Consult with your clients on it. 14 MR. NIBLOCK: If they are interested, then we will 15 move. 16 THE COURT: If they don't want to move, they don't 17 have to move. But if they don't move, they are going to have 18 to answer at some point. 19 MR. NIBLOCK: That is right, your Honor. 20 As I understand it, you will be staying, though, any 21 answers to the complaint until after the test motion is -- 22 THE COURT: Very likely because I don't think the 23 answers will serve any purpose at this stage. 24 MR. NIBLOCK: Thank you, your Honor. 25 MR. FAGAN: Your Honor, with all due respect, what is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 35jdapac 1 happening with some of these defendants is they are carefully 2 selecting those defendants who they think they have their best 3 case to move forward. For example, Ford Motor Company -- 4 THE COURT: I guess that is their prerogative. 5 MR. FAGAN: -- they were served on December 2, 2002. 6 The time within which to answer, if they are taking that 7 position, then we should be entitled to take a default against 8 them. 9 THE COURT: No. 10 MR. FAGAN: Your Honor, then they should be compelled 11 to answer the complaint. They cannot -- 12 THE COURT: Whether or not they have to answer and 13 when is within my discretion. 14 MR. FAGAN: I am talking about they should be part of 15 the motion, your Honor, so that that motion can be binding upon 16 them -- 17 THE COURT: All of these other people as to whom 18 jurisdiction is questionable are not part of the motion either. 19 I am staying their answers as well. 20 MR. FAGAN: Your Honor, as to those defendants -- we 21 could go -- maybe we should go back to the concept of -- 22 THE COURT: No, I have made up my mind and I am 23 hearing a lot of wasted talk here. 24 You want a ruling on the merits or not? 25 MR. FAGAN: We do, your Honor, but we want a ruling on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 35jdapac 1 the merits as to all of those defendants who are properly 2 served or who waived service, we are ready to go with that. 3 THE COURT: If he doesn't join the moving group of 4 defendants, then if and when I grant the motion, which is 5 unfavorable to the others and not to him, right, he will still 6 be in the case and he will have to either move or answer. 7 MR. FAGAN: However, your Honor -- 8 THE COURT: What are you worried about? 9 MR. FAGAN: However, your Honor, when you leave out, 10 for example, Ford Motor Company, what you leave out is a part 11 of an industry group that we have specifically included in the 12 gravamen of this complaint. We have a complaint that talks 13 about, and I'm sorry -- 14 THE COURT: You are going to address that issue if and 15 when -- if and when -- the motion is resolved, and if your 16 argument is that my ruling should not apply to Ford because 17 they factually are differently placed, make the argument at 18 that time. 19 MR. FAGAN: Your Honor, I would really like to go back 20 to this issue. 21 THE COURT: I know what you would like to do. You 22 would like me to be here until tonight if I let you, and I am 23 not going to let you so this conference is over. 24 MR. FAGAN: Your Honor suggested this case was a straw 25 searching for a jurisdictional peg. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 35jdapac 1 Ford Motor Company -- Ford Motor Company should be a 2 part of the moving defendants. 3 THE COURT: That's up to them. Meanwhile, I have, in 4 the exercise of my discretion -- and I'll say it for the third 5 time, for your benefit, so that you'll stop beating your gums 6 and let this conference come to a merciful end, all right, I'll 7 say for the third time I'm staying all other defendants' time 8 to answer until I resolve the motion as to the moving 9 defendants and I will deal thereafter with whatever remains to 10 be dealt with after that motion has been resolved. 11 MR. FAGAN: Thank you, your Honor. 12 MR. NIBLOCK: Thank you, your Honor. 13 THE COURT: Meanwhile, I will reserve decision on the 14 jurisdictional motion I heard today until the same time. 15 MR. BARRON: Your Honor, just one quick thing. That 16 is we set the first date on the schedule -- 17 THE COURT: July 15th is the date for your papers. 18 Their papers will come in the first week in September. 19 MR. BARRON: Your Honor, that would be over 60 days. 20 THE COURT: You are asking for 45. 21 MR. BARRON: I am sorry. 22 THE COURT: Didn't you ask for 45? 23 MR. BARRON: I am sorry, you are right. 24 THE COURT: I am giving them 45. 25 MR. BARRON: So theirs will be September 1st? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 35jdapac 1 MR. FAGAN: No -- 2 MR. BARRON: And our reply on October 1st, your Honor. 3 THE COURT: I am not going to take your reply. You've 4 got 75 pages; you don't need a reply. You should be able to 5 anticipate his arguments, certainly since most of these he has 6 disclosed to the press already. 7 MR. FAGAN: Your Honor, with all due respect, I do 8 object to the characterization, not that the Court is making, 9 that the defendants are making with regard to statements to the 10 press. I haven't spoken to them. 11 THE COURT: The article I saw disclosed a sufficient 12 amount of your theory that he should be well aware of what you 13 are going to argue in response to his motion. 14 MR. FAGAN: That is OK. 15 THE COURT: That is all I am saying. 16 MR. FAGAN: Whether or not they are suggesting or 17 trying to attribute something that I -- 18 THE COURT: If the time comes when somebody asks for a 19 hearing on that issue, I will have a hearing and testimony. 20 MR. FAGAN: Thank you, your Honor. 21 THE COURT: You have to ask for it. 22 MR. FAGAN: May we have September 8th for -- 23 THE COURT: September 8th is fine. 24 MR. FAGAN: Thank you, your Honor. 25 THE COURT: I am giving you an argument date now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 35jdapac 1 Given the length of the papers, I think I am going to need at 2 least 60 days to consider them. So let's pick a date in 3 November. 4 (Pause) 5 THE LAW CLERK: October 9, Judge. 6 THE COURT: October, that is not long enough. We 7 won't have enough time. November. 8 THE CLERK: November, OK. 9 Thursday, November 6, at 2. 10 THE COURT: Thursday, November 6, at 2 o'clock. All 11 right? 12 MR. BARRON: That is fine, your Honor. 13 THE COURT: Have a good day. We'll see you then. 14 MR. FAGAN: Thank you, your Honor. 15 MR. HANSON: Your Honor, if it please the Court -- 16 THE COURT: Don't tell me you want to prolong the 17 conference, too? 18 MR. HANSON: I am going to be very, very brief. 19 My name is Attorney Kweku Hanson, and I represent the 20 Digwamaje plaintiff. We haven't had an opportunity to be 21 heard. I am not going to be long-winded. I am not going to go 22 into -- 23 THE COURT: I will give you five minutes. 24 MR. HANSON: Yes, your Honor. I will be briefer than 25 that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 35jdapac 1 I simply want to draw to the Court's attention the 2 contention that the Digwamaje plaintiffs have not initiated 3 service on certain parties and so forth. I will not be 4 long-winded, since the Court is going to schedule an 5 evidentiary hearing. I just do not want this Court to perhaps, 6 having not heard from the Digwamaje plaintiffs, to dismiss 7 actions as the defendants have requested. 8 THE COURT: Do you speak the English language, too? 9 MR. HANSON: Yes, your Honor, I do. 10 THE COURT: Did you hear what I said? 11 MR. HANSON: Yes, your Honor. 12 THE COURT: I said that's all being deferred. 13 MR. HANSON: All right. Certainly, your Honor. 14 THE COURT: So nothing is going to happen now. 15 MR. HANSON: Yes, your Honor. I appreciate the 16 Court's clarification. 17 THE COURT: I clarified it before. Maybe you weren't 18 listening. 19 MR. HANSON: I apologize, your Honor. 20 THE COURT: All right. Take care now. 21 MR. HANSON: Thank you, your Honor. 22 MR. FAGAN: Thank you, Judge. 23 - - - 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300