TRIAL SCHEDULE: CALENDAR WHIRL
January 24, 2005 11:37 pm by Gene Borio“I note with some horror,” Judge Kessler said at the start of court last Thursday, “that we are on the 50th day of trial.”
The DOJ was scheduled to wind up its case-in-chief by the end of February.
However, in large part because of the pending Court of Appeals ruling on disgorgement, the DOJ filed a motion Jan. 14–undoubtedly disappointed when Prudential’s Robert Campagnino’s prediction of a Jan. 11 decision failed to come true– asking the court to “defer hearing evidence on the United States’ potential remedies until after all evidence, defenses, and any affirmative defenses going to Defendants’ liability have been presented at trial.”
The DOJ asked judge Kessler:
We are now well into the fourth month of trial and are rapidly approaching the presentation of the United States’ evidence regarding remedies, including disgorgement, without the benefit of a decision from the Court of Appeals on the appropriate legal standard to determine any potential disgorgement. To be exact, on the current schedule, the United States anticipates filing the testimony of its first expert witness purely on remedies, Dr. Jonathan Gruber, on Monday, February 7, 2004.
Because – as this Court has recognized – the decision from the Court of Appeals could significantly impact the United States’ presentation of evidence regarding potential remedies, the United States requests that the Court postpone receiving and considering evidence regarding potential remedies until after all parties have concluded their presentations on liability, in order to would allow the Court and the parties to benefit from the Court of Appeals’ decision on Defendants’ interlocutory appeal.
This would mean the DOJ would finish up the liability part of its case around Feb. 18. At some point in the future–presumably when the picture is clearer what exactly the DOJ may in fact ask for in relief–it will then call in its appropriate witnesses (Michael Eriksen is already scheduled to appear twice, the 2nd time to offer relief suggestions.)
The Joint Defense calls this plan a “quasi-bifurcation” (Judge Kessler has already ruled against splitting the case into two parts). They claim it will hurt them, as they had planned to begin presenting their case-in-chief on March 1, and they are not ready to begin on February 18.
These issues have been the subject of 4 filings and an in-court argument Monday morning. Judge Kessler may rule Tuesday.