John, great to hear that you are still doing the Lord's work on this case!  
Sounds like you have things well in hand and that the appeal argument went 
well.  Good luck on this one and please let me know how it turns out--in 
fact, please send me a copy of the appellate decision when issued at this 
email address or by mail at 1111 S. 103d St. Omaha Nebraska, 68124.  Thanks.  
DF



 




"John Wyss" <JWyss@WRF.com> on 10/02/2000 12:52:31 PM
To: "pdondanville" <pdondanville%schiffhardin.com%smtp@wrf.com>
cc: "dhill" <dhill%bspmlaw.com%smtp@wrf.com>, "Christopher Hardee" 
<CHardee@WRF.com> 

Subject: MHP-Bath 2d Cir Argument


We argued the Bath appeal in the Second Circuit last Friday.  Bath's
counsel went first for 10 minutes; I was second for 8 minutes; Alan Knauf
was next for CREST for 2 minutes; David Connors took 2 minutes for TPC; and
Bath's counsel took the final 2 minutes for rebuttal.  The panel took the
matter under advisement when the argument was finished.

The panel was Judge Jacobs (who was on the recent Primetime 24 Joint
Venture case dealing with the "access barring" sham exception to Noerr-
Pennington), Judge Straub and Judge Sacks.  All three are from private
practice with large firms.

The argument went reasonably well, although the panel played it pretty
close to the vest.  Bath's counsel was not brilliant and received a lot of
hard questions from the bench.  The panel seemed to have no trouble with
the fact that the District Court reviewed the administrative record in
addition to the allegations in Bath's complaint.  They got close to getting
a concession from Bath's counsel that the complaint alleges damages from
long delays in the administrative process, which necessarily puts at issue
the overall course of the agency proceedings and requires the judge to
review the record.

The panel also seemed uninterested in Bath's argument that Noerr-Pennington
immunity only applies to antitrust cases.  The panel recognized that the
First Amendment protections must apply to all types of causes of action.

The biggest issue for the panel appeared to be the "fraud" sham exception
to Noerr-Pennington.  During argument, Bath's counsel suggested that, if
only he had discovery, he would be able to prove that MHP's experts had
"doctored" the geological data as part of submitting their fraudulent
affidavits.  I countered that this was the first we had ever heard of such
allegations, that they were never part of Bath's complaint, and that the
only allegation was that the expert's "opinions" were wrong and without
basis.

The court came back to the question of what to do if a party claims that
there has been clear fraud committed during the agency proceeding.  I
argued, and Judge Straub agreed, that such fraud is only relevant under the
case law if it goes to the very core of the proceeding and deprives it of
its legitimacy.  The district court's opinion establishes that noting like
that occurred here.

Finally, both I and David Connors argued that the lower court's alternative
proximate cause ruling was independently fatal to Bath's complaint, in that
the alleged "fraud", even if it had occurred, did not cause any of Bath's
alleged damages.

Please call me (202-719-7038) if you would like further details regarding
the argument.  Otherwise, we will just have to wait for the decision.