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Enron Mail |
PRIVILEGED AND CONFIDENTIAL: ATTORNEY-CLIENT COMMUNICATION, ATTORNEY WORK
PRODUCT Martin, Here's the latest. The Court recently advised that it wishes to have a telephone conference on this case either Monday or Tuesday of next week, depending on the Court's trial schedule at that time. Tim Mullin believes that it will be solely a status conference to determine whether all briefing has been done, whether anyone wants a hearing, etc.; he does not expect a hearing on the substantive issues at that time. Mullin sees it as a good sign that the Court is paying attention to this case. Although we do not need to make this decision before the telephone conference, we may need to retain a Russian lawyer to give us a legal opinion, as a result of Base Metal's recently-filed reply to our motion on the late service by Base Metals on OJSC, the defendant in the underlying case. You may recall that Base Metals was supposed to serve OJSC within 60 days after the attachment. After we complained about the lack of evidence of such service, Base Metals alleged it had completed such service, by DHL. We then filed a motion stating that such service was inadequate under applicable federal law. Base Metals has done an end-run around our previously-filed motion on the service issue by obtaining an affidavit from a Russian lawyer that makes two points: first, that service by DHL would be proper if this matter was filed in a court of general jurisdiction in Russia, and second, that there is no prohibition under Russian law to this sort of service, even if the underlying lawsuit was filed outside Russia. If we do not respond with our own affidavit, then the Court will probably rule against us on the service issue. The importance of the service issue is that it is a relatively "quick out" for the Court to consider, the other being that MG Metals is so solvent that no attachment is needed. What we want to avoid is some protracted litigation on the merits concerning the fraudulent tranfer allegations, as Base Metals can more cheaply and easily develop its evidence on this points from its Russian sources than we can. Parethentically, there is a recent New York Times article that looks like it was written by Base Metal's lawyers, and that uses what happened to OJSC in Russian bankruptcy as an example of how easy it is to use Russian bankruptcy for unlawful ends. I'll send anyone a copy who wants one. I'll report further after the telephone conference with the Court next week. Britt
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