The Senate today confirmed the nomination of Leslie H. Southwick to the Fifth Circuit Court of Appeals, Laurie Kellman at The Washington Post reports. 

Judge Southwick lives in Mississippi, but he entered the world at Edinburg, Texas, and graduated from Rice University and the University of Texas law school.  So he has the Texas thing going for him.

His Honor’s confirmation brings the court’s membership to 16 active judges plus five on senior status.  And it leaves one judgeship vacant.  The nomination of former state district court judge and Baker Botts partner Catharina Haynes of Dallas remains pending.  Blawgletter wishes her a swift senatorial thumbs up.

Barry Barnett

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As the NYT helpfully points out, people who veer towards perfectionism, who can’t stand not feeling "in control", or who combine an obsession with perfection and an insistence on running things — these folks account for a great many of the workaholic population.  To which Blawgletter utters: duh.

We repeat:  duh.

We also point out that tons of lawyers fit that description.

Duh?  Duh.

Barry Barnett

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On that horrible day
Marred by gunfire and violence
Down by the quay
The bustle of Boston was replaced by silence
What could’ve easily been avoided but nay!
Five people set down to lay,
never to get back up for another day

On a modest Massachusetts afternoon
With street peddlers adding to the tune
The tune of wondrous life
Cut short by needless strife
The words “FIRE!”
Not to add to this happy satire
What ended as a massacre started a war
A war to go down in lore
Not just a war but a revolution
For us to kick-start our evolution

One shot turned to a fusillade
With less than a curt nod
Farms became militias
And militias became an army
But the reasons weren’t malicious!
No, we did what we had too to survive
And at the end we arrived
At the dawn of a new age
And it all started down by the quay…

James Barnett

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Jawcrusher
A jaw crusher doing what it does best.

The Second Circuit today affirmed dismissal of a monopolization complaint against the dominant stone crusher in the New York area.  The big aggregate producer, Tilcon, bought its only competitor in the market; refused to sell rocks to the plaintiff, Port Dock, any more; and jacked up prices.  The district court and court of appeals ruled that Port Dock’s gripe amounted to a refusal-to-deal claim that couldn’t survive a Rule 12(b)(6) motion.  Port Dock lacked "antitrust standing" because its losses resulted not from anticompetitive behavior but from Tilcon’s decision to eliminate distributors and instead to sell directly to end-users.  Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., No. 06-4908 (2d Cir. Oct. 23, 2007).

Barry Barnett

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Harman International settled its dispute with Kohlberg Kravis Roberts & Co. and Goldman Sachs over the latter’s deal to buy the former for $60 a share.  KKR and Goldman instead invested $400 million in Harman convertible notes — money that Harman says it will spend to repurchase its own shares.  Because, you know, the company believes so much in its prospects.

Not long ago, Blawgletter wrote about the material adverse effect provisions in the Harman agreement.  We can’t tell from the terms of the non-litigation settlement who came out better.  But, as we say to all our clients, "avoid litigation".

If you can’t, though, hire someone you trust.

Barry Barnett

Feedicon_3 Our feed inebriates itself with the exuberance of its verbosity.

Newcoke
New Coke (1985-2002), left, went the way of the dinosaur in the U.S. but still sells in Yap.

The Coca-Cola Company asked a court not to grant class treatment for a securities case against the Real Thing maker.  Its reasons, per the WSJ today, included an allegation that lead class counsel, Coughlin Stoia, made secret payments to expert witnesses. 

The Coke papers compare the disbursements to remissions that earned Milberg Weiss and Melvyn Weiss a criminal indictment and produced guilty pleas by several lawyers and a couple or three class representatives.  Lawyers at Coughlin Stoia split off from Milberg Weiss awhile back.

Barry Barnett

Feedicon_2 Our feed prefers Diet Coke.  Also Coke Zero.

Fall out from bad subprime mortgages started hitting where its hurts count — on Wall Street.  As the NYT reports today, the outfits that pay interest on bonds have begun to cut off remissions to people who bought bonds that depend on subprime mortgages for their money.  The Times article predicts that the drying up of interest payments may force investment banks and others to take drastic write-offs on their bond purchases, further limiting the availability of credit.

Blawgletter knows a teeny dot about the subprime mortgage business and a bit more about commercial litigation.  Plus we’ve watched developments on the lawsuit-filing front. 

What kinds of case will likely arise from the subprime ashes?  Some predictions:

  • Auditor malpractice.  Fannie Mae led the way with one of these against KPMG.
  • Breach of fiduciary duty (derivative).  This variety would accuse insiders (officers and directors) of mismanagement (subject to business judgment rule) or disloyalty and would proceed on behalf of the company itself (subject to "demand futility" requirement if board demurs).
  • Breach of fiduciary duty (participation in).  The aiding and abetting variation hooks in enablers.  Probable targets include Wall Street firms and commercial banks that either packaged subprime mortgages into securities for sale to investors or lent the funds that the subprime mortgage companies used to fund or purchase the mortgages themselves.
  • Securities fraud.  Buyers of stock or bonds whose price fell after disclosure of problem investments in subprime mortgages (either the mortgages themselves or loans to fund the mortgages), subprime mortgage firms (stock), or subprime mortgage bonds.
  • Breach of merger agreement.  Sallie Mae sued private equity firms for backing out of their agreement to buy the big student lender.
  • Bankruptcy.  This category may include not only the mortgage companies themselves but also outfits that bought equity in them, purchased their bonds, loaned money to them, or depended on them for business.

Barry Barnett

Feedicon "The reaction is self-sustaining."  Enrico Fermi.

As best Blawgletter recalls, we learned somewhere between 1981 and 1984 that the Constitution’s dormant commerce clause hates disturbances.  That the clause would prefer to sleep in.  But that on occasion it must rouse itself.

Today proved no exception — or, at most, a little one.  The Second Circuit ruled that the dormant clause needn’t worry about a Connecticut law purporting to ban certain features of gift cards.  The court held that a mall proprietor may have stated a claim for relief to the extent it asserted that the National Bank Act preempts the Constitution State attorney general’s claims that the proprietor violated state law by charging some kinds of gift card fees.  The court also held that the dormant commerce clause could not care less about the prohibition of such fees to the extent it applied to cards that Connecticuters bought in, um, Connecticut.  Blumenthal v. SPGGC, LLC, No. 05-4711 (2d Cir. Oct. 19, 2007).

And so it goes.

Barry Barnett

Feedicon The lion sleeps tonight.