Monday, January 8, 2007

Judge in Stein Case Defends his Ruling

Yesterday, the Hon Lewis A. Kaplan, filed a "Response to a Rule 21(b)(4) Invitation."

Download kaplan20stein20memo20to20second20circuit20jan208202006.pdf

In essence, the judge filed a response defending the fact that he issued an opinion in Stein et. al, the case of the individual defendants related to KPMG. In that case, the court was asked to resolve issues related to aspects of the Thompson Memo as applied to the defendants' ability to obtain their attorney fees from KPMG. (see here, here, here, and here).  KPMG was not particularly happy with the court's ruling (see here).

And so onto the court of appeals, with KPMG contesting the court decision.  But who is to respond? And did the court have jurisdiction to issue its decision in the first place? 

Judge Kaplan starts by discussing whether there should be a "departure from the final judgment rule." He then notes that his basis for ruling on the fees issue in the Stein case was part of the district court's "ancillary jurisdiction." He states,

"Garcia, in the District Court's view, holds that a district court has ancillary jurisdiction to decide a dispute between a criminal defendant and a non-party where the dispute has its genesis in the criminal case and the resolution of the dispute is important to the district court's ability to perform its function and to do justice."

In recent years, those teaching the criminal law course, or perhaps white collar crime course, have been sitting with the corporate folks to discuss the intersection of corporate and criminal law.  Today, we add a new player to the field - the civil procedure professors.


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