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Post by Franko10 ™ on May 1, 2005 13:52:55 GMT -5
Attorney's View: DTCC Subpoena/Compliance
An Attorney's view on the situation ... (Apr. 30/05)
imSINGLEruRICH
Diamond Wiz (Moderator)
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Posts: 1541
An Attorney's view on the situation ...
« Thread started on: Today at 6:01pm »<br>
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ragingbull.lycos.com/mboard/boards.cgi?board=CLB01219&read=204695
By: easternbreezes0
30 Apr 2005, 08:37 PM EDT
Msg. 204695 of 204709
Jump to msg. #
Interesting poat from an attorney friend in response to a query...
Eliott Spitzer does not have the power to get involved
in Eagletech (am I correct on the name?). It is a
private matter between the DTCC and Eagletech.
Spitzer/New York State is not a party (either
Plaintiff or Defendant), so Spitzer involving NY State
is misplaced thinking.
Not knowing if the DTCC has complied or not with the
NY Supreme Court (a trial court), Eagletech has the
burden of notifying the Court that its Order has not
been complied with. The way to do this is to file a
"Motion for Contempt", which is served on the DTCC and
the Court, demanding a compliance with the original Co
urt Order or a response to the motion (usually within
21 days of service of the motion). One significant
distinction here, as New York State Courts are very
lenient in allowing late compliance with its Discovery
Orders, as opposed to Federal Courts which demand (and
receive) stricter compliance (both timewise and
substantively). Of further significance, the NY State
Supreme Court Order (I have NOT read the Order)
resulted from a "Special Proceeding", the procedural
law significance of which I am NOT familiar with.
Since the NY Supreme Court is not the Trial Court
hearing the original matter between Eagletech and the
DTCC, the DTCC knows that they can play games with
complying with the Discovery Order and they are
uniquely situated to do so given their army of lawyers
as opposed to the limited resources (money and the
number of lawyers) available to Eagletech. The NY
State Supreme Court does not have the vested interest
in seeing its Order complied with as in the instance
where it is the Trial Court hearing the actual
dispute. Eventually, Eagletech can after much time,
effort and machinations, receive compliance to the
Discovery Order. If the DTCC just flat out refused to
comply, the NY Court could order the New York County
Sheriff (Manhattan) to enter the DTCC's offices and
seize the records, but that is a drastic remedy and
not in the near term. Again, Spitzer has no legal
standing to get involved.
In the case of CMKX, should the Hearing Judge sign the
proposed Subpoenas to the DTCC and the SEC, the road
is far easier. She is the chief administrative judge
and is hearing the actual dispute. Federal Judges are
by their nature, far less tolerant of non-compliance
with their Orders. They (she) won't think twice about
making an example of someone/company not complying
with its (her) Order. Maheu knows this and has the
leverage here. Should be interesting as things
develop...
All the best,
DS
cmkxdiamond.proboards32.com/index.cgi?board=general&action=display&thread=1114911509
An Attorney's view on the situation ... (Apr. 30/05)
imSINGLEruRICH
Diamond Wiz (Moderator)
member is online
Gender:
Posts: 1541
An Attorney's view on the situation ...
« Thread started on: Today at 6:01pm »<br>
--------------------------------------------------------------------------------
ragingbull.lycos.com/mboard/boards.cgi?board=CLB01219&read=204695
By: easternbreezes0
30 Apr 2005, 08:37 PM EDT
Msg. 204695 of 204709
Jump to msg. #
Interesting poat from an attorney friend in response to a query...
Eliott Spitzer does not have the power to get involved
in Eagletech (am I correct on the name?). It is a
private matter between the DTCC and Eagletech.
Spitzer/New York State is not a party (either
Plaintiff or Defendant), so Spitzer involving NY State
is misplaced thinking.
Not knowing if the DTCC has complied or not with the
NY Supreme Court (a trial court), Eagletech has the
burden of notifying the Court that its Order has not
been complied with. The way to do this is to file a
"Motion for Contempt", which is served on the DTCC and
the Court, demanding a compliance with the original Co
urt Order or a response to the motion (usually within
21 days of service of the motion). One significant
distinction here, as New York State Courts are very
lenient in allowing late compliance with its Discovery
Orders, as opposed to Federal Courts which demand (and
receive) stricter compliance (both timewise and
substantively). Of further significance, the NY State
Supreme Court Order (I have NOT read the Order)
resulted from a "Special Proceeding", the procedural
law significance of which I am NOT familiar with.
Since the NY Supreme Court is not the Trial Court
hearing the original matter between Eagletech and the
DTCC, the DTCC knows that they can play games with
complying with the Discovery Order and they are
uniquely situated to do so given their army of lawyers
as opposed to the limited resources (money and the
number of lawyers) available to Eagletech. The NY
State Supreme Court does not have the vested interest
in seeing its Order complied with as in the instance
where it is the Trial Court hearing the actual
dispute. Eventually, Eagletech can after much time,
effort and machinations, receive compliance to the
Discovery Order. If the DTCC just flat out refused to
comply, the NY Court could order the New York County
Sheriff (Manhattan) to enter the DTCC's offices and
seize the records, but that is a drastic remedy and
not in the near term. Again, Spitzer has no legal
standing to get involved.
In the case of CMKX, should the Hearing Judge sign the
proposed Subpoenas to the DTCC and the SEC, the road
is far easier. She is the chief administrative judge
and is hearing the actual dispute. Federal Judges are
by their nature, far less tolerant of non-compliance
with their Orders. They (she) won't think twice about
making an example of someone/company not complying
with its (her) Order. Maheu knows this and has the
leverage here. Should be interesting as things
develop...
All the best,
DS
cmkxdiamond.proboards32.com/index.cgi?board=general&action=display&thread=1114911509
