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Enron Mail |
Hey Sara,
Let's talk in detail Monday but just quickly - its precisely the decision to include the arbitration clause that makes the language prohibitive. I think the gist of the applicable NASD rule is that members cannot draft arbitration clauses which limit the damages that either party would otherwise be entitled to in court. Thus, the solution if Morgan or the others object would be to draft a clause that is consistent with what New York provides -- since New York is the applicable jurisdiction. (I'll find a sample clause I drafted in the past and bring when we meet). Otherwise, these firms could be fined for including such language. I am going to find the applicable rule and make sure that it is still good law but off hand I believe that it is. It will be interesting to note if any of the firms object on this ground. I may have some questions about other legal issues in the agreements; if so, I will bring them up when we meet so that we can work through them together. Cheryl Nelson Senior Counsel EB3880D (713) 345-4693 Sara Shackleton@ECT 03/02/2001 11:18 AM To: Cheryl Nelson/NA/ENRON@ENRON cc: Subject: Re: Legal Review - Enron Credit Inc. With respect to Morgan, I believe that a paragraph could be added to reflect the parties' agreement to a forum other than a contract market (i.e., "AAA"), and if the customer chose a particular forum for arbitration, then the parties could stipulate that the arbitrators not have authority to award punitive, exemplary or similar damages. Because these are fairly old forms, I can't recall the reason for excluding this language. I'll schedule some time on Monday for us to talk. Sara Shackleton Enron North America Corp. 1400 Smith Street, EB 3801a Houston, Texas 77002 713-853-5620 (phone) 713-646-3490 (fax) sara.shackleton@enron.com Cheryl Nelson@ENRON Sent by: Cheryl Nelson@ENRON 03/02/2001 10:58 AM To: Sara Shackleton/HOU/ECT@ECT cc: Subject: Legal Review - Enron Credit Inc. Hi Sara, I have completed a preliminary legal review of the Account Agreements with Goldman Sachs and Morgan Stanley. I read the draft language you sent re: limitation of liability that you suggested we add to these and the Bear Stearns agreements for Enron Credit, Inc. Because these agreements have arbitration clauses, this provision as drafted might be unenforceable under the NASD rules. I am going to doublecheck the law on this point today or over the weekend. If this is in fact correct, the firms will probably reject the provision on this ground especailly if including it would subject them to NASD fines. In any case, we can wait to see what there response is but in the meantime we should set aside time to discuss the law on this point. Cheryl Nelson Senior Counsel EB3880D (713) 345-4693
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