1 1 49OC911C 2 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF NEW YORK 3 ------------------------------x 3 4 RE. SEPTEMBER 11 LITIGATION, 4 5 New York, N.Y. 5 6 ------------------------------x 6 7 September 24, 2004 7 10:40 a.m. 8 8 Before: 9 9 HON. ALVIN K. HELLERSTEIN, 10 10 District Judge 11 11 APPEARANCES 12 12 KREINDLER & KREINDLER, LLP, 13 Attorneys for Plaintiffs, 13 MARC S. MOLLER, 14 BRIAN J. ALEXANDER, 14 JUSTIN GREEN, 15 of Counsel. 15 16 SPEISER KRAUSE, 16 Attorneys for Plaintiffs, 17 KENNETH P. NOLAN, 17 JEANNE M. O'GRADY, 18 of Counsel. 18 19 CONDON & FORSYTH, 19 Attorneys for Defendant American Airlines, 20 DESMOND BARRY, 20 of Counsel. 21 21 FLEMMING, ZULACK & WILLIAMSON, LLP 22 Attorneys for Defendants Port Authority of New York and 22 New Jersey and World Trade Center Properties, LLC 23 RICHARD A. WILLIAMSON, 23 M. BRADFORD STEIN 24 of Counsel. 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 1 2 CAMPBELL, CAMPBELL, EDWARDS & CONROY, 2 Attorneys for U.S. Airways, 3 RICHARD P. CAMPBELL, 3 of Counsel. 4 5 ANTON R. REINERT & ASSOCIATES, 5 Attorneys for Lauren Peters, 6 ANTON R. REINERT, 6 of Counsel. 7 8 ANDREW P. BELL, 8 Attorney for Lauren Peters. 9 9 MOTLEY RICE, 10 Attorneys for Plaintiffs, 10 DON MIGLIORI, 11 of Counsel. 11 12 DAVID N. KELLEY, 12 United States Attorney for the Southern District 13 of New York, 13 BETH GOLDMAN, 14 SARAH NORMAN, 14 Assistant United States Attorneys, 15 of Counsel. 16 ------------------ 17 THE COURT: I hope everyone has an agenda. I think 18 Mr. Moller for the moment can start by telling us where we 19 stand with various pleadings. 20 MR. MOLLER: Can I defer to Mr. Barry on that? 21 THE COURT: Mr. Barry, can you tell us where we stand 22 on various pleadings? 23 MR. BARRY: Yes, in my capacity as defense liaison 24 counsel, we have got at last count 121 cases, your Honor, 25 broken down as follows: 90 wrongful deaths and personal injury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 1 cases 29 property damage cases, and then the two German social 2 services cases that are subject of a motion that will be 3 forthcoming shortly. Those cases include 16 recently filed 4 property damage less subrogation cases, and five recently filed 5 personal injury cases, and last but not least, in a separate 6 category is the recently filed cross claims by the World Trade 7 Center Properties and Port Authority. That's the status right 8 now. 9 THE COURT: How long do you think it would take before 10 pleadings close? How long do you think before it would take 11 before pleadings close? 12 MR. BARRY: Well, your Honor, I was going to request 13 on behalf of the defendants that the newly filed plaintiffs 14 serve the defendants within 60 days, shortening the time of 15 Rule 4, and giving the defendants 30 days to answer after 16 service. For the moment -- 17 THE COURT: Is there anyone who will object to that? 18 (Pause) 19 THE COURT: So ordered, and I will embody it in a 20 written order. 21 MR. BARRY: I think the more complicated answer to 22 your question is where some of these newly filed claims, and in 23 particular the direct claims filed by the World Trade Center 24 Properties and the Port Authority in their cross claims are 25 going to belong in the master pleadings, and to be frank with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 1 you, at this moment we haven't thought that through yet. There 2 is going to have to be some amendment now because there are 3 newly added plaintiffs and newly added defendants, so certainly 4 the property master complaint is going to need to be amended. 5 Where the newly filed cross claims are going to end 6 up, we have got to come to grips with that. But I think, to 7 answer your question, I think we can certainly do that within 8 the next 90 days as outlined by the order that you just issued. 9 THE COURT: I like to think that I have a fairly good 10 organizational sense, but as I listen to you, I think whatever 11 sense of illusion I had about that becomes much more 12 evanescent. I don't know what this means in terms of being 13 able to organize the case and move it forward. I don't know 14 what it means in terms of the function of the liaison counsel 15 to be without conflict in a representation that they had hoped 16 to cut across lines. We are going to talk about this shortly, 17 and we might as well talk about it now. 18 MR. BARRY: Yes. I think it's appropriate to talk 19 about it now because that is an issue, and I have spoken to Mr. 20 Stein from Fleming Zulack, and we had agreed at least for 21 purposes of liaison counsel communication to split our 22 committees, one into an aviation defendants' executive 23 committee, and then a ground defendants' executive committee, 24 where Mr. Williamson and Mr. Stein could be liaison counsel for 25 that group. My constituents have no objection to that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 1 The reason we didn't submit that to your Honor prior 2 to this morning is that there is a whole issue now with these 3 newly filed property and subrogation cases, and whether or not 4 they are going to come into Mr. Moller's committee or not, and 5 I know that he wants to address that subject as well. 6 So at the moment I think, at least superficially, the 7 defendants have themselves fairly well organized on paper so 8 far, but I think there is an issue with the plaintiffs' case. 9 THE COURT: I should note also as a further 10 complication that on another track we have working with 11 respiratory claims, people who suffered respiratory injuries in 12 the aftermath of 9/11 working on the pile that was the direct 13 result that was the 9/11 tragedy. 14 I have made rulings having to do with the distinction 15 between federal and state jurisdiction. That's been on appeal 16 for some time and I don't have, as of now, any firm 17 understanding of when the Second Circuit is going to reach 18 these cases. To the extent that we are going to move forward 19 into discovery, I have a problem to deal with because the 20 discovery that is going to be taken in this track of cases and 21 that track of cases may well overlap. Mr. Harris, you want to 22 come forward to join your colleagues? 23 MR. HARRIS: Thank you, Judge. 24 MR. WILLIAMSON: Your Honor, we may be able to shed 25 some light with respect to the Second Circuit appeal. We have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 1 heard from them and they are searching for some dates in 2 November at the moment. Those proposed by the circuit would be 3 fine with us, and I believe with the city, but the cross 4 appellant said they weren't good for him, and we are attempting 5 to pick a series of dates we could propose, and presumably 6 probably late November and see if the Second Circuit would find 7 that acceptable. 8 THE COURT: Excellent. Thank you. 9 MR. WILLIAMSON: May I add something? 10 THE COURT: Sure. 11 MR. WILLIAMSON: Just that we agree with Mr. Barry 12 that we believe that splitting the defendants liaison committee 13 into the ground defendants and the aviation defendants would 14 work, and indeed, throughout the entire period from the 15 inception, formation of the defendants' executive committee 16 with Mr. Barry as liaison counsel, we have been able to work 17 with him on all matters, whether the interests would be 18 identical or occasionally diverged, so we would think we could 19 continue to liaise with him. 20 THE COURT: Thank you, Mr. Williamson. Thank you, Mr. 21 Barry. 22 MR. BARRY: The one additional item I would like to 23 raise, your Honor, and it's something that we have been 24 considering, you raised 21 L.C. 100, there is an issue whether 25 or not the cross claim filed by the World Trade Center SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 1 Properties and the Port Authority includes any liability they 2 may face in that litigation, that is an issue that is floating 3 around in space as well. 4 THE COURT: It will come home to us quickly enough in 5 the discovery process, because it will be a very important task 6 to arrange the discovery in a way that is nonduplicative and 7 doesn't harass witnesses, and so I will have to deal with these 8 issues at that time. 9 Mr. Moller, the property claimants in the wrongful 10 death and person injury claims, not to speak of the respiratory 11 claims, pose a managerial problem to you in the first instance. 12 MR. MOLLER: You are absolutely right, your Honor. It 13 creates a managerial problem which is potentially less 14 significant than strategic. 15 THE COURT: All right. Let me ask you to take the 16 podium. Otherwise, it's hard to hear. 17 MR. MOLLER: Your Honor, if by managerial problems you 18 are referring to any of events, that is really not insuperable. 19 What I see coming down the pike is a potential conflict, both 20 strategic and potentially, in resolution of certain legal 21 issues. Before the third anniversary of 9/11, the claims that 22 involved World Trade Center buildings, 175 and Flight 175 and 23 the United flight and the American 11, presented damage claims 24 which were within, as far as we could determine, the available 25 coverage. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 1 The addition of these new property damage claims, the 2 16 new cases, although many of the complaints do not specify 3 the amounts in the ad damnum clauses, presents the likelihood 4 both anecdotally and in terms of what we have we have been told 5 that the omnibus value of all of these claims substantially 6 exceeds the coverage. 7 So when we began this litigation three years ago, and 8 we were getting ourselves organized, we raised the question of 9 a merger of property damage cases and wrongful death personal 10 injury cases under the same committee because we would be 11 dealing with strategic issues that would obviously go to both 12 property damage and the others. 13 That problem has ripened now because we may be all 14 seeking -- we are seeking the same coverage; and to the extent 15 that our efforts advance the property damage claims 16 potentially, it works to the disadvantage of the wrongful death 17 plaintiffs and vice versa, and defendants have acknowledged 18 this fact. 19 In the World Trade Center Properties complaint, as you 20 know, the cross claim, the World Trade Center Properties, which 21 is a defendant on the one hand in some of the cases, is now by 22 virtue of the way it is framed, is cross claim, also a 23 plaintiff. In the ad damnum clause to that pleading, they seek 24 damages as plaintiff sufficient to rebuild the same quality and 25 quantity of office space. It's at page 21 of the amended might SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 1 eleven master, so they seek damages to rebuild the same quality 2 and quantity of office space and to pay rental income. That 3 makes them clearly a plaintiff. 4 THE COURT: This is not across claim, this is a -- 5 MR. MOLLER: They call it a cross claim. 6 THE COURT: Notwithstanding what they call it, this is 7 a claim of direct injury. 8 MR. MOLLER: Exactly. 9 THE COURT: Which may or may not have legal 10 sufficiency if I realign the parties and realign the 11 cooperation, which is within my power, but to look at the 12 situation as it is, the import of this clause is to write the 13 World Trade Center into these as a claimant in competition with 14 the claims whom you represent. 15 MR. MOLLER: That's correct. 16 THE COURT: For recovery against -- who are they 17 suing, the airline defendants? 18 MR. MOLLER: Yes. Interestingly, in paragraph 4 on 19 page 2 of that same cross claim, World Trade Center Properties 20 recognizes the limitation of liability to insurance coverage 21 under the Air Transportation Safety and Stabilization Act, 22 which limits the aggregate moneys available to pay damages that 23 arise through insurance coverage, and then adds, the World 24 Trade Center Property entities express the hope, limited only 25 by the legal restraints -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 1 THE COURT: Where are you reading from? 2 MR. MOLLER: Page 2, paragraph 4, the World Trade 3 Center properties entities express the hope, limited only by 4 the legal restraints, if any, that their insurance companies 5 may impose, that plaintiffs who have suffered personal injury 6 or death should be paid first before plaintiffs who seek 7 compensation for economic loss, including the cross claim 8 plaintiffs. 9 This is an expression of intent which is laudable, but 10 it doesn't rise to a formal subordination of this property 11 damage claim to the wrongful death and personal injury claims. 12 So part of our dilemma is to get a formal 13 subordination of this property damage claim, and maybe others, 14 that is up to the other property damage people to resolve, but 15 certainly a start is to find out what this means, and the 16 reason it's couched in these words of intent rather than 17 commitment is obviously because World Trade Center Properties 18 cannot compromise the rights of its insurer, and the insurer 19 apparently has not spoken. 20 THE COURT: There may be a more materialistic 21 motivation as well, since World Trade Center Properties also 22 wishes to obtain benefit from the limitation of liability 23 provided by the acts, and if one may think the aggregate of 24 approved claims against it exceeds the insurance limitation, 25 any recovery made by the World Trade Center entities will have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 1 to go to these who are unpaid in their claims before they can 2 take it themselves. 3 I have not begun to think about this situation, and 4 thank you for bringing it up, but I have to deal with it when 5 motions are made in relationship to some rule of subordination. 6 MR. MOLLER: My point is to respond to your Honor with 7 respect to reorganization subordination, etc. We don't know 8 exactly where these people sit, and to have property damage 9 people who may or may not be subordinating, your Honor, our 10 plaintiffs' liaison tent where we are organizing ourselves for 11 trial and developing trial strategy and making all sorts of 12 judgment is a serious problem. 13 THE COURT: I have to call upon experience that I have 14 had working on liaison committees, mostly in the securities 15 litigation area. It's not uncommon that committees have 16 problems with conflicts. As long as everyone else is aware of 17 the conflicts, they can be managed. There are some issues, for 18 example, coordination of discovery, that are broad and 19 encompassing and require coordination among disparate groups. 20 There are other issues, for example, developing a 21 strategy in litigation, which have to be confined to a narrow 22 group because of the issue of conflicts. 23 I think what my task needs to be done now in 24 collaboration with all of you is to create groups that can 25 manage the issues in a way that doesn't compromise anyone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 1 else's loyalty to clients; and I think that can be done by 2 splitting off the World Trade Center and Port Authority into a 3 separate group, and then we need to talk about your group also, 4 because your group can grow to encompass the property claims 5 and the respiratory injuries, or they can remain narrower and 6 deal only with the wrongful death and personal injury claims. 7 Perhaps they might even have to be split as between 8 those two, I don't know; but I know that you have had 9 experience with these kinds of issues before, and I feel richer 10 in being able to gain the benefit of the experience that you 11 and Mr. Barry have developed in so many of these aircraft 12 litigations. 13 MR. MOLLER: One of the things that we keep very much 14 in mind is that the wrongful death victim families want to get 15 this case to trial quickly, and one of the obstacles that we 16 are now confronted with, and we only talked about the Air 17 Transportation Security Act, SSI issue which bears upon in 18 large measure the speed with which we can get this case to 19 trial, and hopefully within the next couple of weeks the 20 plaintiffs will be in a position to tell the court that we are 21 ready for trial one way or the other. 22 The shape of the case will have been established by 23 the way the SSI issue resolves itself. We don't want the 24 wrongful death victims' opportunity to get this case to trial 25 to be compromised or delayed by complexities visited upon us by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 1 the property damage people, including the World Trade Center 2 Properties. 3 THE COURT: You will find that we will be able to deal 4 with it. 5 MR. MOLLER: Good. That is encouraging. Before we 6 leave this point, I just want to identify some of the conflict 7 issues that you might want to have in mind as you help us shape 8 this committee structure. World Trade Center Properties is a 9 defendant on the one hand and is a plaintiff on the other as a 10 defendant it seeks to minimize exposure, as a plaintiff it 11 seeks to maximize its recovery. 12 THE COURT: You need to distinguish in two further 13 categories. As a cross plaintiff seeking contribution or 14 indemnity, it's not interested in a recovery more than the 15 liability it suffers. So primarily, it looks upon these as a 16 way of diminishing its exposure, but as a plaintiff in its own 17 right arising from the ad damnum that you have read out, it 18 wants to maximize its recovery, and it falls into a different 19 category. 20 MR. MOLLER: I agree. That divergence of views 21 affects how conflict of laws issues are addressed, how verdict 22 forms are addressed, how joint and several liability issues are 23 framed, what law applies to these issues. It becomes very, 24 very sticky, and what World Trade Center Properties might be 25 doing to satisfy its interests might spill over to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 1 advantage of or disadvantage of other property damage people, 2 so we have a potpourri here of confusion. 3 THE COURT: There are two ways to look at this: One 4 is to manage that which you can do, realizing that you are not 5 accomplishing everything. The other way is to imagine all the 6 problems and became paralyzed by them. I think we need to be 7 practical. The prospect of trying to advance the personal 8 injury claims, including the wrongful death claims, at the 9 earliest possible stage is a goal that I would identify with, 10 and I think we will develop our managerial techniques as we go 11 along; but it's not, I think, possible to develop a plan for 12 every conceivable problem. 13 Let me ask you, are you contending that there has been 14 any prejudice suffered so far because of the way the case has 15 been proceeding? 16 MR. MOLLER: No. 17 THE COURT: Does anybody? 18 So this is something we need to be concerned about as 19 we go along, but I am sure all of us will be concerned. 20 All right, thank you, Mr. Moller. 21 The agenda makes reference to the proposed extension 22 of deadline for filing cross claims and third party claims to 23 March 31, 2005. How is that going to be affected by the 60 24 days for filing claims and 30 days thereafter to answer? 25 MR. BARRY: I don't think it should be affected at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 1 all, your Honor. The only thing that I did want to mention 2 again, we have a extension from Fleming Zulack to answer their 3 cross claims to November 1 at the moment. 4 What the defendants would like until we figure out is 5 where their claims are going to go in the master pleadings, how 6 we are going to file notices of adoption, what have you, that 7 we extend that time for the full 90-day period. That I think 8 will end or close the pleadings except for potentially what any 9 other defendants may want to claim over, either amongst 10 themselves or to implead third parties; so I don't think the 11 extension to March 31 on the filing of additional new cross 12 claims should affect adversely the 90 days that you have 13 ordered previously this morning. 14 THE COURT: All right. 15 MR. WILLIAMSON: May I respond, your Honor? 16 THE COURT: One moment, Mr. Williamson. 17 MR. WILLIAMSON: Yes. 18 THE COURT: The 60- and 30-day rule will bring this to 19 the end of December. That would mean that there would be all 20 complaints filed, all answers filed. The next proposal would 21 be that by March 31, 2005, all cross claims and third party 22 claims will be filed. 23 MR. BARRY: Any additional, yes. 24 THE COURT: Why do I need to give 90 days for that? 25 MR. BARRY: Well, the fact of the matter is, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 1 Honor, that I think the defendants would like time to see how 2 things are going, to shake out here with SSI issues, with 3 discovery, etc., before they start filing claims against one 4 another. There are all sorts of contractual issues between 5 them, between several of the defendants as well. So it's the 6 consensus of the defendants that they would like this 7 extension. 8 THE COURT: Would tolling agreements be practical as a 9 way of avoiding cross claims, third-party claims? 10 MR. BARRY: Well, we basically have the tolling 11 agreement in place among ourselves at the moment. 12 THE COURT: You are concerned that they may not last? 13 MR. BARRY: I am concerned. 14 THE COURT: I think I have to defer to you. 15 MR. BARRY: Thank you. 16 MR. WILLIAMSON: Your Honor, may I? 17 THE COURT: Yes, Mr. Williamson. 18 MR. WILLIAMSON: I was just going to say, when Barry 19 made the inquiry seeking an extension to November 1, we granted 20 it, said yes. Now he is proposing he might want a further 21 extension. Our only thought is, why don't we wait and see if 22 it's really necessary as the date approaches. We don't see a 23 big problem in terms of how to reconfigure, if you will, or 24 deal with the master complaints, and if it can be worked out as 25 smoothly as we suspect. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 1 THE COURT: We want to have a rule for everyone, and I 2 think Mr. Barry's rule is a good suggestion. I am going adopt 3 it. 4 MR. WILLIAMSON: All right, thank you. 5 THE COURT: With regard to the issue of subordination, 6 is that an issue that should be advanced for ruling at this 7 point, or should it just be left alone to see how it sorts of 8 out, Mr. Williamson? 9 MR. WILLIAMSON: If I may, I think that Mr. Moller 10 raised it and he described as laudable what is in our pleading. 11 What is in our pleading is as far as we could go, your Honor, 12 without, as he correctly deduced, compromising insurance and 13 insurability. To get any greater definition on any hope that 14 World Trade Center Properties has to engage in such a, in 15 effect, subordination, really would require the insurers to 16 agree, and if and how and when your Honor would like to 17 approach that issue with them, that's really up to them, not up 18 to us. 19 Our client went as far as it could go without 20 compromising its claim to insurance from various -- a whole 21 host of carriers, so that's in the hands of the insurance 22 companies, frankly. It's not something that, as a matter of 23 pleading, requires any further effort than has already been put 24 in; but we have no problem if your Honor would like to do it. 25 What our client put in that pleading is most rare, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 1 it wanted to do it for a variety of reasons. One of them is 2 not what your Honor speculated it might be, but rather I think 3 the ones that Mr. Moller had theorized, and in any event, we 4 are happy to assist the court or engage in any effort to 5 convince the insurance companies to go further with 6 subordination if they would be willing to, but it's not in our 7 power. 8 THE COURT: Mr. Moller? 9 MR. MOLLER: Precisely for that reason, I raise the 10 point. It would be important, it is important for us to know 11 whether or not the insurer will endorse that statement of 12 intent because it shapes -- 13 THE COURT: There is more than one insurer. 14 MR. MOLLER: That's right. 15 THE COURT: There are multi-levels of the insurers. 16 The insurance issues are moving on another track altogether 17 under my supervision. 18 MR. MOLLER: That is entirely true, but there is a 19 lead, and I can't imagine that a statement like this -- 20 THE COURT: This is a lead that is not followed. 21 MR. MOLLER: I have never seen in an answer or a cross 22 claim we will take less and we will let somebody else go ahead 23 of us. It's the right thing to do but -- 24 THE COURT: It's like a colonel who said to his 25 troops, "Follow me," and when he looks back there is no one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 1 following him. 2 MR. MOLLER: That's right. It's not the way in 3 defendant functions, so I would like the court to request that 4 World Trade Center Properties, and maybe even Port Authority if 5 they are represented by the same counsel and have the same 6 intent, that we know by a specific date reasonably soon whether 7 or not this subordination is real or is it just a public 8 relations statement. 9 THE COURT: Mr. Barry? 10 MR. BARRY: Well, your Honor, certainly it doesn't 11 affect just World Trade Center Properties. It affects every 12 other property insurer that is subrogated here. What Mr. 13 Moller is seeking, and I have discussed it with him, is 14 basically a voluntary agreement by these the insurers to 15 subordinate their claims to the claims of the people that he 16 represents. 17 There is not, as far as I have read the law, any legal 18 right to priority of claims for wrongful death or personal 19 injury victims to a limited fund of money. So I think he is 20 putting Mr. Williamson on the spot. Let's say, do you really 21 mean what you say, but I think what he really wants is to make 22 sure that every other property insurer in the program is 23 serious about it as well; and I think for that it's going to 24 take a fair amount of time, if I know insurance companies as 25 well as I do, to even consider such a proposal and act on it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 1 THE COURT: I decline to make any request of anyone in 2 this respect. I will note that this issue of subordination is 3 not unique to here. It comes up in creditors' rights 4 litigation where there are layers of claims, some of which are 5 subordinated to others, some of which are not. Experience in 6 that area suggests that parties have a way of compromising and 7 resolving these issues in the context of settlement 8 discussions; and if these settlement discussions don't succeed, 9 eventually courts have to rule, and rule on the law; and I note 10 what you say, Mr. Barry, in that area the typical response of 11 the law is to consider claimants as equals and not to make 12 judgments about whether there is a moral right that creates a 13 legal right of some kind of supremacy. 14 So we will take the pleadings as they are, we will 15 have our own thoughts as to whatever motivates what everyone 16 says, and I think at some later time we may have to deal with 17 these issues; but I don't think they need to be dealt with now. 18 Which brings us to agenda number 5, the status of 19 liability discovery. I call upon Mr. Alexander. 20 MR. ALEXANDER: Brian Alexander for plaintiffs, your 21 Honor. The first thing I would like to report to your Honor 22 concerns the status of the dialogue between the TSA defense and 23 plaintiffs. We have had a meet-and-confer on September 8 which 24 I think was fairly well summarized in the September 23 letter 25 that your Honor received. The first wave of document review by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 1 the TSA is complete. We recently met with them and we think 2 the highlights of that meeting are that we will begin to work 3 with additional substitutes premised upon information received 4 from the 9/11 Commission report. We are optimistic that that 5 will move forward and enable us to obtain even more discovery 6 documents out of the first wave as was articulated in 7 Mr. Moller's letter. 8 Secondly, with respect to the status of discovery, 9 again in the way we approached with the airline defendants and 10 the airline security defendants, there have been multiple 11 meet-and-confers amongst the parties, and I think that we have 12 been reasonably successful at least in identifying those areas 13 in which there is agreement, and in our efforts to narrow the 14 scope of the discovery requests, as well as these areas where 15 there is disagreement. 16 In principle, what we intend to do, your Honor, is 17 finalize the sum and substance of the meet-and-confers that 18 will take place over the next week or so. That will start the 19 clock for the defendants to produce all these documents for 20 which there is agreement on the scope, and then we will 21 continue to meet and confer on a handful of discovery requests 22 over which we are still at odds on the scope of the request. 23 THE COURT: Do the documents which you and defendants 24 agree should be produced affect the TSA? 25 MR. ALEXANDER: Mr. Barry would know, but I suspect -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 1 MR. BARRY: Yes, your Honor. When I say yes, the vast 2 majority of them. 3 THE COURT: Has everyone in the room seen this 4 September 23 letter? 5 MR. ALEXANDER: We sent it out at least to all 6 plaintiffs' attorneys. 7 THE COURT: Mr. Williamson, have you seen it? 8 MR. WILLIAMSON: Yes, your Honor. 9 MR. BARRY: It's been circulated, your Honor. 10 MR. ALEXANDER: The other point in the letter, your 11 Honor, is in anticipation the documents in the second wave for 12 the airline defendants and the airline security companies would 13 be going through the TSA problems, is that we have already 14 established, we have committed to the government to prioritize 15 these requests. 16 Once agreed upon, we will then take them and we will 17 do a top 10 or top 20 list for the government, for the TSA, so 18 that they can tackle in order on a rolling basis these 19 documents as they come in from the defendants. 20 That really covers the status, your Honor. The only 21 other outstanding issue with respect to discovery is the 22 plaintiff's 30(b)(6) notices, and production for documents 23 interrogatories that were recently served, and I am not sure 24 Mr. Barry will address that. 25 MR. MOLLER: May I approach to hand this up? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 1 THE COURT: Yes. Thank you. 2 MR. MOLLER: Your Honor, on September 16 we served the 3 document which was just given to you, a notice to take oral 4 depositions pursuant to 30(b)(6) request for production of 5 documents which essentially refers globally to the second wave 6 of materials that were not delivered to TSA that were demanded 7 in the initial request for discovery. 8 The interrogatories essentially ask for identification 9 of who the 30(b)(6) witnesses are and their positions, etc. 10 The purpose of this rather comprehensive 30(b)(6) notice to 11 take oral depositions is to require the defendants to focus on 12 the SSI issue so that we can know what position they will take 13 on the same subject. Will the witnesses be instructed not to 14 answer? Will defendants' witnesses serve a positive purpose at 15 trial or will -- 16 THE COURT: Who decides whether to call something SSI? 17 Not the defendant. 18 MR. MOLLER: That is exactly right. 19 THE COURT: Ms. Goldman will talk to us about that in 20 a few minutes. 21 MR. MOLLER: In the Chowdhury case, I know you are 22 aware that defense counsel at the table instructed the 23 witnesses not to answer because their argument was SSI -- it 24 was for a time being left there. So the object here is to get 25 everyone focused on the SSI issues so we can figure out how we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 1 are going to try this case, and we need a little bit of time -- 2 and Mr. Barry and I have talked about this -- we need a little 3 bit of time to see the government's response to my letter of 4 September 23 to figure out how we in fact deal with the 5 depositions. 6 THE COURT: Ms. Goldman? Mr. Barry, you want to speak 7 first? 8 MR. BARRY: I would, your Honor, just to say that we 9 didn't need a 30(b)(6) notice like this to get focused on SSI 10 issues. We have been focused on them for a year and a half or 11 so. 12 THE COURT: Doesn't hurt. 13 MR. BARRY: Well I mean, what I don't quite understand 14 is serving a deposition notice that asks the same questions 15 that the document requests ask, which has been in the hands of 16 the TSA the last couple of years. So if Mr. Moller wants to 17 tee up the issue any more than it's already been teed up, I 18 don't think this is an appropriate way to do it. 19 We are going to try and work something out together, 20 but it's the defendants' position that this is certainly 21 premature before there's been any document meaningful document 22 production. 23 THE COURT: No, I think it's useful to try to use the 24 form of the Federal Rules of Civil Procedure, as a way of 25 precipitating issue clarification. That's all this is. I know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 1 you have been discussing it, and I have no complaints about the 2 cooperation between you, Mr. Barry, and Mr. Moller, and your 3 colleagues and Mr. Moller's colleagues, but I think it's useful 4 to precipitate these issues in the format also. Mr. Goldman? 5 MS. GOLDMAN: Beth Goldman for the United States. 6 With respect to the first wave, I think Mr. Alexander 7 accurately described the status. At the September 8 meeting we 8 asked the plaintiffs to give us more specifics based on the 9 Commission report, and the September 23 letter in response to 10 that was a very constructive step. TSA will begin to address 11 the requests in that letter immediately. 12 With respect to with respect to the second wave, we 13 have talked to the parties about trying to prioritize. We are 14 obviously concerned because the second wave involves a much 15 larger volume of documents. We are being told that, with 16 respect to each of the defendants who have obligations in the 17 second wave, we may be talking about between fifteen and thirty 18 thousand documents for each defendant, and that is obviously a 19 huge volume, and one for which the TSA does not have the 20 resources to handle it in a timely way. 21 So the attempt to prioritize, to group documents 22 together to come up with other creative ways to streamline the 23 process is something we have asked both plaintiffs and 24 defendants to think about, and I believe the parties are 25 attempting to do so. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 1 With respect to the depositions, that is something 2 that we are going to have to work with the plaintiffs and come 3 up with a protocol. Normally -- I shouldn't say normally -- it 4 has arisen in other contexts as Mr. Moller said, and we have -- 5 TSA is not in a position normally to have somebody attend these 6 depositions, but at that time defendants have an obligation 7 under the regulations to make any objections. 8 That being said, in order for this process to be 9 meaningful, we need to work out some system so that there can 10 be review on a quick basis of these kinds of projections for 11 potential respondents. 12 THE COURT: Mr. Moller, will these depositions, in 13 your contemplation, go forward before the documents that you 14 have requested are produced after the TSA review? 15 MR. MOLLER: The answer is we did not know, we do not 16 know now what will be produced, so that is why I said. 17 THE COURT: You don't know. The answer is you don't 18 know. So the focus really has to be on the production. I 19 don't think there can be meaningful depositions until the 20 discovery of documents occurs, and the concern I have is the 21 time that it will take to work through all of the procedures. 22 It will take a long time, and I know when we began the process, 23 it's probably been a year, and it will get more time consuming 24 as we go along, not less. So we need to develop a procedure to 25 speed up this process, and it seems to me at that time intent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 1 of Congress by giving people the choice to go before the victim 2 compensation funds or to sue in court expressed the 3 Congressional intent that there be a reasonably speedy remedy 4 that should be available to the claimants on coming to court, 5 and I think it's my job to try to bring that end about. 6 At the same time, TSA is charged with a very important 7 public purpose, to assure that sensitive security information 8 is not publicly divulged, and even though I am not formally 9 charged with jurisdiction to oversee that, the cases I have 10 presided over implicate that other procedure and call upon me 11 to try to do what I can to advance both public purposes. 12 I'd like to develop a procedure of causing a more 13 rapid production response either to produce the documents or 14 redacted portions of the documents or substitutes for the 15 documents, or to rule on exemption from production in a way 16 that will allow a Court of Appeals to rule on the issue; and I 17 suggested the role as a mediator to help bring these purposes 18 about. 19 The September 23 letter expresses an agreement by 20 plaintiffs for me to function in that capacity. I think 21 Ms. Goldman or Ms. Norman, I forget who it was, previously told 22 me that the government consents to that procedure. 23 Mr. Williamson expressed reservations about it. I 24 have thought about that reservation. I don't think it has 25 merit. I believe that it's everyone's interest for this case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 1 to move forward, and I believe that, just as a judge sees a 2 document for purposes of ruling on its admissibility, even if 3 that judge will probably be the tryer of fact in a bench trial, 4 so I will be able to see these documents and have the 5 professional ability to keep them from affecting my judgments 6 if they are ultimately not disclosed. 7 So I feel that, as a district judge charged with the 8 responsibility of supervising and managing these cases and 9 presiding over any trial that result, it is consistent with 10 that job to function in the capacity I mentioned. 11 And I'd like us to go forward because I foresee that 12 if we don't develop a procedure that would result in hopefully 13 a quicker response, that the case will not see the eve of trial 14 for years to come; and if that fear is correct, then we will be 15 doing major injury to these who have already suffered greatly 16 from 9/11, and I don't think we should run that course. 17 Let me ask Ms. Goldman if you think that we should try 18 to schedule something or let developments move these along in 19 some fashion or how? It would be a difficult job to develop a 20 protocol. 21 MS. GOLDMAN: Your Honor, I think that, given that the 22 first wave is a contained group of documents, we just got the 23 letter from Mr. Moller yesterday, that it makes sense to give 24 TSA the opportunity to provide a response to this letter, and 25 then at that point possibly avail ourselves of your Honor's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 1 offer, talk about first wave documents. Then we can move on 2 from there. 3 THE COURT: That would serve a good benefit too of 4 letting us all try out the system and see if it's feasible to 5 go forward with. 6 MS. GOLDMAN: Yes, your Honor. 7 THE COURT: If it's not useful, we have to go some 8 other way. Mr. Moller? 9 MR. MOLLER: Obviously, I am in complete agreement 10 with making that effort and taking advantage of your offer. I 11 would say parenthetically that if we, the plaintiffs, become 12 too frustrated with the process, as I have said many times now, 13 we are prepared, I believe, after we look at the body of 14 evidence that we have been gathering, we may well tell the 15 court that, however the SSI issue resolves itself, even if it's 16 for nondisclosure, waiting is too costly and we are ready to go 17 to trial. 18 THE COURT: Mr. Moller, one of the criteria of 19 mediation is that it's voluntary, and that means that anyone 20 can quit at any point in time, the government, you, 21 Mr. Williamson, Mr. Barry. 22 MR. MOLLER: I appreciate that. I just want to be 23 clear that we are reaching a -- as I have said also to 24 Ms. Goldman and her confreres, Sarah Norman and the TSA, they 25 have tried to be cooperative, but our frustration level is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 1 reaching a point where we might well say we will go without it. 2 THE COURT: You don't need to add to that in advance. 3 If you are frustrated and you want to develop another course. 4 Just do it. You know how. Who should participate in this kind 5 of mediation program? I don't think you need to answer that 6 now but what should be my role? How should different people 7 make suggestions? 8 I would think there should not be a record, but in 9 some fashion if the parties disagree with what I am doing, the 10 government will not produce or the defendants or the plaintiffs 11 or parties will not accept that which I do. I think all of 12 that has to be tolerated in the system. I suspect that it 13 should be open so that all who wish to come can come, and maybe 14 if that is the case, maybe there does have to be a record, if 15 only to establish a chronicle of that which is occurring. 16 There are techniques that can be used. When a judge 17 sits in camera on materials that are potentially privileged, 18 although the charge of privilege is not nearly so great from 19 the charge of SSI and other classifications, the judge has to 20 look at the documents, he has to tell the people enough about 21 it so that they can argue and challenge and suggest, but not so 22 much at to give away that which is the privilege; and by and 23 large judges have been able to do that with a great deal of 24 success; and I think I can follow that same kind of procedure, 25 recognizing that if any time the government feels that I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 1 over-step, they will let me know that, and if I over-step they 2 may just say, on second thought we don't want to go into this, 3 and I recognize that, and the government has that right and I 4 would not think for a moment that any exercise of that right 5 would be in bad faith. 6 Similarly, if the parties feel that I have been too 7 much deferring to the government in not causing either 8 production or substitution, it seems to me the parties would 9 have the ability to tell me that they don't see any further use 10 in my doing this and let me know that and abort the system. 11 That would also and correct response and I would recognize that 12 as appropriate. 13 There are techniques that have even been developed 14 under the Patriot Act and allied measures in relationship to 15 classified information where the parties are separated in 16 different rooms and the judge shuttles between them trying 17 different things out as way of trying to break any kind of 18 logjam. 19 There are techniques in the use of special masters to 20 assist the judge to do that, or magistrate judges. I don't 21 think there is anything quite like this before, and I think we 22 will have to grope our way forward, but I believe that unless 23 we try, this case will not be able to progress in the way that 24 it should, and the intent of Congress to allow to people to get 25 remedies will have been frustrated. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 1 These are my thoughts. I have been thinking a lot 2 about this. I know Mr. Williamson has expressed reservations, 3 and if you want to respond to what I said you may, or you may 4 just want to reserve and tell me what you think at a later 5 date. 6 MR. WILLIAMSON: I would just say, your Honor, we 7 thank you for thinking it through, and you are right. When you 8 first raised it we expressed some reservations, but upon 9 reflection and sharing the desire to move forward on the issue, 10 we actually had written a letter to your Honor saying we would 11 consent to the process you had suggested despite our 12 reservations. 13 THE COURT: Thank you. 14 MR. WILLIAMSON: So we are on board. 15 THE COURT: Thank you. But begin; at any point in 16 time you can change your mind and I will understand. 17 MR. WILLIAMSON: Understood. Thank you very much. 18 THE COURT: Is there anyone else who wishes to 19 comment? Ms. Goldman, I will wait for your response to Mr. 20 Moller's letter, and then I think you, Mr. Moller, Mr. Barry, 21 and Mr. Williamson as the main protagonists of this, will get 22 in touch with us and we will try to find a way to go forward. 23 MS. GOLDMAN: Yes, your Honor. 24 THE COURT: I want to raise an issue in terms of 25 security clearances. If I become too much involved in this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 1 process, I will not be able to discharge my responsibilities in 2 other cases. I would take it the magistrate judges of this 3 court have had full clearance, but Ms. Goldman will check this 4 because I would want to ask Judge Katz to participate with me. 5 I know that my staff -- I suspect that my staff has not had 6 clearances equivalent to mine, but maybe that needs to be 7 developed also. 8 MS. GOLDMAN: We will look into it. 9 THE COURT: All right. And let me know. 10 That brings us to -- with respect to the 30(b)(6) 11 notices, what do you propose to have as a return date? It says 12 October 25, but that's not serious, is it? 13 MR. MOLLER: I would like to follow your suggestion 14 and work it out with Mr. Barry. 15 THE COURT: All right. 16 MR. BARRY: We have the guidelines that you laid down 17 with respect to how you feel about it. Let's see what happens 18 with the SSI issue. 19 THE COURT: All right. So October 25 is a 20 suggested -- 21 MR. BARRY: We will hold that date in abeyance. 22 THE COURT: All right. 23 Item six, U.S. Airways unfortunately has filed for 24 bankruptcy. This is the second time in this case. United 25 Airlines is still in bankruptcy, and we can't have so much SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 1 confidence to believe that there will not be another airline 2 filing before we finish with in. 3 Sir, do you want to speak? 4 MR. CAMPBELL: Richard Campbell, and I represent U.S. 5 Airways in this action and have since its inception. I am 6 really here as a courtesy, your Honor, to the other lawyers in 7 the courtroom. 8 THE COURT: I appreciate that, Mr. Campbell, because 9 ordinarily in a bankruptcy proceeding there would be no lawyer 10 here. 11 MR. CAMPBELL: That's right, and I am here in part 12 because U.S. Airways understands from prior statements of the 13 court over the course of this litigation the court's interest 14 in moving the case forward; and your Honor may recall that U.S. 15 Airways, the first time it went through this proceeding worked 16 very efficiently to get beyond the stay. 17 It intends to do that now, but the filing is so 18 recent, on September 12, that I really have not much to say to 19 you other than to say in effect since the stay we received the 20 30(b)(6) notice of motion from the plaintiffs, so as to U.S. 21 Airways, that can proceed. 22 THE COURT: It's not going to proceed. It's really -- 23 MR. CAMPBELL: The court raised issues about closure 24 of the pleadings. The bankruptcy of U.S. Airways is going to 25 affect that. I can tell your Honor that the need to get beyond SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 1 the stay for this litigation and other litigation of a tort 2 nature has been raised with the bankruptcy court in Alexandria. 3 The next omnibus hearing in front of that bankruptcy 4 court is October 14. I can't say, because I don't represent 5 U.S. Airways in the bankruptcy as to whether the means and 6 methods of getting beyond the stay will be resolved at that 7 hearing, but I know, because I have seen the paperwork that the 8 stay as affects in case has been raised, and the case is 9 pending before judge Steven Mitchell, your Honor, in 10 Alexandria. The docket number is 04-13819 SSM. Thank you 11 THE COURT: Remind me what we did in the first 12 instance. 13 MR. CAMPBELL: With respect to U.S. Airways, your 14 Honor didn't really have to do anything. U.S. Airways carried 15 the water pail on that and got stipulations executed by many of 16 the -- by all of the personal injury claimants. With respect 17 to United, what I recall is your Honor announcing that your 18 Honor was going to call the bankruptcy judge in order to move 19 the matter along. I don't know whether you did or not. 20 THE COURT: I probably did, but I don't know what 21 happened. 22 MR. CAMPBELL: That is what I recall. Ultimately, 23 obviously, the case with respect to United resulted in the 24 setting aside of the stay. I don't have personal knowledge of 25 how that came about. I do know that all the stipulations that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 1 were signed are of no effect now, and we have to go through 2 that entire process begin once we get instructions from the 3 bankruptcy court. 4 THE COURT: My thought is this: It's not well 5 formulated, but under the act, the liability of U.S. Airways is 6 limited to insurance coverage. That insurance coverage is not 7 an asset of the bankrupt estate, and cannot be used for any 8 other purpose other than the claimants here. 9 If that assumption is correct, and I think it is, that 10 means that it should be in the interest of the bankrupt to 11 allow counsel to participate in these proceedings and to 12 provide for payment of counsel as an administrative expense of 13 a bankrupt estate. 14 Why I say that is because U.S. Airways has an 15 important stake here, and it needs to be represented and have 16 its interest protected or protect its interest and everything 17 else about it in the bankrupt estate. 18 There is an issue, I think, should the counsel's 19 expenses, should these counsel fees and expenses be defrayed by 20 the bankrupt estate or from the insurance carrier, and I don't 21 know what the coverage issues are in that, so I think that 22 needs to be sorted out; but the bottom line is I think that 23 U.S. Airways in the bankruptcy needs to lift the stay to the 24 extent of allowing you to participate here. 25 MR. CAMPBELL: I think that's right, your Honor, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 1 the stipulations are also important, because, as your Honor 2 probably recalls, at least one of the plaintiffs in at least 3 one of these cases has challenged the constitutionality of the 4 act, and if successful would in theory have a right to proceed 5 against the assets of the estate; so the stipulation is 6 important to U.S. Airways in that regard in order to move 7 beyond the limited recovery to insurance persons. 8 THE COURT: What would the stipulation provide? 9 MR. CAMPBELL: I believe it provides that the recovery 10 is limited to the insurance coverages that were available. I 11 don't have the exact language before me, your Honor. 12 THE COURT: I would think that from the perspective of 13 a claimant, the last thing the claimant wants to do is to file 14 a claim in bankruptcy court. 15 MR. CAMPBELL: Sounds right to me, Judge. 16 THE COURT: So I think there is a strong motivation to 17 sign such a stipulation. But please try to work it out, and it 18 would be great for you to be table to come to our meetings and 19 certainly let Mr. Barry know how things stand with U.S. 20 Airways. Thank you, Mr. Campbell. 21 We are on item 7. On September 15, 2004, I issued an 22 order to show cause. It came to our attention that not all the 23 claims which had benefited from the victim compensation funds 24 had been dismissed. Since that time, two of the three 25 identified here have been dismissed but we still have the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 1 Pocasangry case against United Airlines and others. Does 2 anyone wish to speak to that in matter. 3 MR. MIGLIORE: Good morning. Don Migliore for the 4 plaintiff. Your Honor, we had contacted the court immediately 5 after receiving the show cause order to remind the court that 6 the court had actually set in motion a briefing schedule on the 7 choice of law issues with respect to that case. 8 I have spoken briefly with Mr. Ellis about their 9 intent to file a motion on standing. The question that arises 10 is the form of that of El Salvador and whether or not it would 11 play in at all with respect to the standing issue. We await on 12 the court's prior briefing schedule, we will await the motion 13 from defendants and we will respond as the court scheduled 14 prior unless the court has another direction. 15 THE COURT: No, I want to make sure that you do go by 16 that schedule because I think I need to resolve that issue. 17 MR. MIGLIORE: Thank you, your Honor. 18 (Pause) 19 THE COURT: It's come to my attention that an attorney 20 who represents the operators of the PATH trains who claim 21 injuries in 9/11 has come into the room. These cases were 22 categorized with the respiratory cases before me, but I don't 23 believe that is a proper categorization. Is there counsel in 24 the room? 25 MR. BELL: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 1 THE COURT: Please step forward and identify yourself. 2 MR. BELL: Andrew Bell. I was at the previous 3 conference, and you had indicated that these may proceed here, 4 and I requested that they be separately consolidated, and your 5 Honor indicated that would probably be prohibitively expensive 6 in order to do that, and they more likely would be categorized 7 with this group. We would, in light of the fact that it seems 8 to be an appropriate group, other than our request and our 9 reservation, we would accept that, that is it should not be 10 part of the respiratory group. 11 THE COURT: These will be personal injury claims? 12 MR. BELL: They are personal injury claimants mostly 13 for post-traumatic stress for events that happened on 9/11 14 itself and -- 15 THE COURT: And the New Jersey courts? 16 MR. BELL: They have been -- we moved in the New 17 Jersey court or transferred here, filed here. 18 THE COURT: All right. Would you speak with Mr. 19 Moller after the session and see if you can work your cases 20 into his group. That would be right, Mr. Moller. 21 MR. BELL: I would be glad to speak to him. 22 MR. MOLLER: I don't know enough about them right now, 23 but it sounds right. 24 THE COURT: Yes. 25 MR. BELL: Certainly, your Honor, I will do that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 1 MR. MOLLER: I say this with a reservation. 2 MR. NOLAN: Do we have any idea about how many cases 3 there are? 4 MR. BELL: There are six cases, your Honor. 5 MR. NOLAN: Thank you, your Honor. 6 THE COURT: I think they should be able to be 7 subsumed. 8 MR. BELL: Thank you, your Honor. 9 THE COURT: Does anybody have any other item to end? 10 Step forward, sir. 11 MR. REINERT: Anton Reinert. Just a housekeeping 12 matter. I represent Lauren Peters through the estate of Louis 13 Mariani. Previously, your Honor, you had an order regarding 14 multiple plaintiffs through the sitting estate granted an 15 extension for our case pending in New Hampshire. 16 Yesterday Judge Christine O'Neill entered an order of 17 settlement agreement to permit Lauren Peters to be ed s 18 administratrix of the estate, Eleanor Mariani will step down. 19 The housekeeping issue I have, your Honor, is that in New 20 Hampshire probate courts, the judges will go to the court on a 21 biweekly basis, so we may need a brief extension beyond 22 September 30 to dismiss the Mariani lawsuit. In addition, for 23 housekeeping -- 24 THE COURT: Would that end the Mariani claim? 25 MR. REINERT: Well, the Mariani claim will proceed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 1 under the Lauren Peters lawsuit. That docket number is 03 Civ. 2 6940, and the case of Mariani v. United, which is 01 Civ. 3 11628, will be dismissed. I note the court has used the 4 Mariani case as the lead case for traffic and administrative. 5 I defer to the court whether we want to keep the docket number 6 or switch to the Peters docket number for tracking purposes. 7 THE COURT: We will have to work that out. 8 MR. REINERT: Thank you, your Honor. 9 THE COURT: So Peters will be in the case the same way 10 that Mariani was in the case. 11 MR. REINERT: Yes your Honor. 12 THE COURT: And the dispute as to who stands for the 13 estate has been resolved. 14 MR. REINERT: That's correct, your Honor. 15 THE COURT: Thank you very much. Anybody else? 16 I want to express now my great debt to Catherine 17 Lake. This is the last time that she will meet with this 18 group. She is leaving next week. My clerkship is only a year. 19 She will be succeeded by Robin Effron, who will start with me 20 October 1. 21 I think most of you have dealt with Catherine and know 22 how extraordinarily capably she has managed these cases for me 23 and for you. I needn't emphasize how much I will miss her on 24 this, and I can't order her to stay. I wish I could. 25 I want to express my thanks before this group because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 1 she's a done such an incredibly great job working with you, 2 with me on this. 3 We need to fix a date. It should be in March, I 4 think. March 18 at 10:30 a.m. 5 The only other thing is to wish these of you who 6 observe the Jewish New Year a good fast and good year. Thank 7 you very much. 8 -0- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300