Slightly Redacted Transcript From 9-28-15 SDNY Court Hearing With Lawyers for Credit Suisse and NTT...

8/20/2019 Slightly Redacted Transcript From 9-28-15 SDNY Court Hearing With Lawyers for Credit Suisse and NTT Data, Inc

http://slidepdf.com/reader/full/slightly-redacted-transcript-from-9-28-15-sdny-court-hearing-with-lawyers-for 1/24

F9SAAKOMC Conference

1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK2 ------------------------------x

3 ,

4 Plaintiff,

5 V.

6 NTT DATA, INC. and CREDITS ISSE AG,

Defendants.

------------------- --- -x

15 CR 7007 (LGS)

9 New York, N Y.September 28, 2015

10 11:15 a m

11 Before:

12 HON. LORNA G SCHOFIELD,

13 District Judge

1 APPEAR CES

15 , PRO SE

16 MOSKOWI Z & BOOK, LLP Attorneys for Defendant NTT

17 BY: MICHAEL T. P KER

18

19

20

21

22

23

24

25

1




1 (Case called)

2

3

4

THE COURT: Good morning.

MR. PARKER: Good morning, your Honor.

5 Todd Parker for, the defendant NTT Data, Moskowitz

6 Book

7

8

9

10

11 table?

12

THE COURT: Good morning. You may be seated.

Do we have counsel for Credit Suisse here?

MR. MARTIN: Yes.

THE COURT: Would you like to come up to counsel

MR. MARTIN: Certainly.

2

13 THE COURT: Thanks and could you tell us all what your

14 name is.

15

16

MR. MARTIN: David Martin, on behalf of Credit Suisse.

THE COURT: OK. Do you have a card by any chance? If

17 not, that's all right. Just provide your information when

18 we're finished.

19

20

21

22

(Pause)

THE COURT: You're Mr. Martin?

MR. MARTIN: Correct.

THE COURT: Thanks. So, we here on an order to show

23 cause why a preliminary injunction should not issue against NTT

24 Data. I have looked at papers you have submitted. I also have

25 the transcript from the hearing you had before Judge Koeltl



3F9SAAKOMC Conference

1 which I reviewed.

2 And I guess my first issue, is that I

3 need to have jurisdiction before I can do anything. The

4 federal courts it sounds like even though you are not a lawyer

5 you ve done a lot of research into this legal matter. And

6 federal courts are courts of what s called limited

7

8

jurisdiction. In other words, there are only certain kinds of

matters that the federal court can adjudicate. So the first

9 question any federal court has to ask is, Do I have the power

10 and the authority to adjudicate this matter?

11 Looking over the papers and the relevant case law it

12 seems to me that I do not have the jurisdiction to adjudicate

13 this matter which means that I can t even address the merits of

14 the preliminary injunction motion. I can t even address the

15 merits of your underlying claim that arbitration isn t proper.

16 So I know you are not a lawyer but I wanted to find

17 out if you have anything that you d like to say about the

18 jurisdictional issue before we go any further.

19

20

21

: Sure.

THE COURT: Could you stand when you speak, please.

: Sure. With regards to your point about

22 jurisdiction, I believe this court actually has supplemental

23 jurisdiction over this matter. One of the primary claims that

24 I made in the complaint was about the Fair Labor Standards Act

25 which is a federal law and this is federal court. In one of




1 the cases I cited in the amended complaint of Sutherland v.

2 Ernst Young, LLP, that particular case concerned violations

3 of the Fair Labor Standards Act that were alleged by the

4

5

plaintiff. So on that basis alone in addition to other cases

this court actually does have jurisdiction. It can exercise

6 its discretion with regards to supplemental jurisdiction to

7 essentially look at the merits of the case on that basis.

4

8 THE COURT: OK. Let me address that and then I'll go

9 further. You could sit down.

10 So, you're absolutely right that ordinarily one of the

11 basis for federal jurisdiction is that a federal law is at

12 issue. And you are also correct that the Fair Labor Standards

13 Act is a federal law and that ordinarily the Court would have

14 jurisdiction over any claim alleging a violation of the Fair

15 Labor Standards Act.

16 You're also correct that if there is a Fair Labor

17 Standards Act claim, in other words a federal claim, and

18 there's also a state court claim for example under the New York

19 Labor Law, the Court can but it's within the Court's discretion

20 whether to exercise supplemental jurisdiction to hear the state

21 court claim as well.

22 And if we were coming here with a clean slate so to

23 speak, in other words, if there had been no prior state court

24 action, all of that would be true and there would be no

25 question that there is federal jurisdiction over your claims.




1 But what I m going to rule is that I don t have jurisdiction

2 and what I m ruling is that I don t have jurisdiction over your

3 claim against NTT Data.

4 The state court decision in the underlying case dated

5 April 23, 2014, held that plaintiff s claims are subject to a

6 compulsory arbitration clause and must be arbitrated. And as a

7 result of that under the authority of McKitchen v. Brown 626

8 F.3d 143 at 154, Second Circuit 2010, the Court lacks

9 jurisdiction in that instance. District courts lack subject

10 matter jurisdiction over attempts to appeal state court

11 decisions, quote, when four requirements are met.

12

13

One, the plaintiff lost in state court.

Two, the plaintiff complains of injuries caused by the

14 state court judgment.

15 Three, the plaintiff invites the district court to16 review the judgment.

17 Four, the state court judgment was entered before the

18 plaintiff s federal suit commenced, closed quote. And I m

19 quoting McKitchen v. Brown 626 F.3d 143 at 154, Second Circuit

20 2010.

21 Here all of the four Brooker/Feldman requirements for

22 lack of jurisdiction are met.

23 First, Justice Schecter granted NTT Data s motion to

24 compel arbitration of his claims.

25 Two, plaintiff now complains that Justice Schecter




1 erred causing him injury.

2 Three, plaintiff asks the Court in essence to reverse

3 Justice Schecter s decision and order and consolidate this

4 action with a prior filed state court action and reinstated his

5 claims against NTT Data.

6 Four, Justice Schecter s April 11, 2014 decision and

7 order preceded this action which was filed on September 14,

8 2015.

9 So for all those reasons I don t think I can reach any

10 of the issues regarding either the request for preliminary

11 relief or injunctive relief or the underlying merits of the

12 claim at least as to NTT Data.

13 That, however, is one piece of this case and that s

14 why I invited Mr. Martin to come up because I know that

15 was not asking for any preliminary relief16 concerning Credit Suisse and therefore Credit Suisse hasn t

17 really been a part of the discussion but certainly the

18 underlying action alleges claims against Credit Suisse.

19 noticed that the state law ruling -- Well, first of

20 all, the state law action was only between NTT Data and the

21 plaintiff. It did not involve Credit Suisse. And therefore as

22 a result state court ruling concerned only NTT Data and not

23 Credit Suisse. There is a footnote for the benefit of Credit

24 Suisse in the brief of NTT Data but I thought it would be

25 inappropriate for me to rule on that not having heard from




1 either Credit Suisse or the plaintiff on that issue.

2 So what I would like to do, I don t want to put

3 anybody on the spot here. I m happy to hear from anyone but

4 what I will do is set a briefing schedule so that I can get

5 something in writing from both and Credit Suisse

6 about whether I have jurisdiction to go forward with the Credit

7 Suisse claim based on either the state court ruling as it

8 applied to NTT Data on res judicata or collateral estoppel or

9 based on anything else but before I go any further I need to be

10 sure I have jurisdiction.

11

12

Yes, You want to stand?

: Sure. Recently in the last month there

13 was a key decision issued by the National Labor Relations Board

14 pertaining to the concept of joint employer. And I believe

15 that decisions was issued in the case of Browning out in16 California. Essentially, they ruled that I guess the

17 definition of what a joint employer is has changed. And in

18 that decision by the NLRB has since been challenged by -- the

19 point is, also I should also go back -- you mentioned that I

20 was seeking an appeal of the start court s decision.

21 THE COURT: Well, not overtly, but what in effect you

22 are asking me to do is decide something different from what the

23 state court decided.

24 : Right. However, in the case of, I think

25 Exxon, I believe it s cited in my reply affidavit, there was a




1 case involving Exxon where the court, essentially, ruled that

2 someone can commence a parallel litigation on independent

3 claims and have the second court issue an independent decision

4 that would reach a different conclusion of law. That doesn t

5 necessarily mean that it s seeking to appellate review of the

6 earlier decision. It s simply an independent decision

7 pertaining to an independent claim which is exactly what

8 THE COURT: And I didn t mean to suggest that you are

9 seeking a formal appeal of the state court action or that

10 you re asking me to formally overturn what the state court did.

11 But it seems to me clear that you are asking that you not be

12 required to go to arbitration and that this Court hear the

13 underlying claim which is your, basically, your wage-an-hour

14 claim. And my ruling which I ve already made is that I don t

15 have jurisdiction to do that under binding Second Circuit

16 authority as I read it.

17 So the question now -- and you should focus on that

18 and I m not sure where you were going with the joint employer

19 doctrine -- but what I m wondering is whether or not I have

20 jurisdiction over your case against Credit Suisse. And to the

21 extent that anyone argues that they re joint employers and that

22 they rise and fall together, then the answer would be no

23 because of the state court decision. So you should think

24 carefully about whether and what you re arguing because what my

25 real question is since the state court decision dealt only with




1 NTT Data and not with Credit Suisse, is the Credit Suisse claim

2 affected or not by the state court decision? That s where I m

3 now.

4 : OK. I wasn t aware of that. But in a

5 nutshell back in 2012 as confirmed by the opposing counsels in

6 this case, there was an agreement whereby I would provide IT

7 services to Credit Suisse. And in the contract that was issued

8 there was no provision, whatsoever, that stipulated that I

9 would need to work more than eight hours per day each and

10 everyday. However, each and everyday that I worked at Credit

11 Suisse the people that I reported to at Credit Suisse, the

12 permanent employees at Credit Suisse directly ordered me to

13 work more than eight hours a day.

14 THE COURT: And you did. I read you papers.

15 understand that.16 : When I questioned Credit Suisse, the

17 people that were directing to me to work more than eight hours

18 a day, why I could not leave the office at the same time as

19 permanent employees of Credit Suisse that were starting work at

20 the same time as me each and everyday, the information I was

21 given was that contractors had to work longer than permanent

22 employees.

23 Furthermore, when I submitted inquiries to

24 representatives of NTT Data about that issue Sharon Newman of

25 NTT Data or who used to be with them advised me that my




1 contract was subject to what s known as a ten hour professional

2 workday whereby I would need to work at least ten hours per day

3 before there would be any requirement on the part of NTT Data

4 to provide me with extra compensation for services rendered to

5 Credit Suisse or its clients.

6 Again, so after I received that information from

7 Ms. Newman I questioned that to both Ms. Newman and Ed Epstein

8 of NTT Data and I made it very clear that there was no

9 provision in the contract requiring me to work more than ten

10 hours per day.

11 So what I m trying to get at here is that there was a

12 level of control exerted over me by Credit Suisse and by NTT

13 Data and there had been

14

15

16

THE COURT: So let me just interrupt for a minute and

make sure that you understand how you need to approach this.

will take papers on it. I m not going to decide based on what

17 you say. So have a seat for a second. Let me just try to

18 explain and make sure that I m clear to everyone.

19 First of all, what I have just ruled is that NTT date

20 is out of this case. So anything that depends on liability of

21 NTT Data, I cannot adjudicate. So the only question remaining

22 that I m trying to consider now is whether or not I can

23 adjudicate your claims against Credit Suisse. And that depends

24 in part on the scope of the contract, the scope the agreement

25 and the extent to which it binds you to arbitrate differences




1 with Credit Suisse. It may, it may not depending on how you

2 interpret the agreement. But it also depends on the question

3 of whether the decision of the state court judge interpreting

4 that agreement binds my interpretation of agreement as it

5 applies to Credit Suisse.

6 Those are the only questions that I m going to address

7 first because if I don t have jurisdiction, if I don t have the

8 power to adjudicate the claim over you and Credit Suisse or if

9 the decision on the merits has already been made by the state

10 court and I m bound by it and I m not saying I am, I m just

11 saying if that s the case, then I can t go any further. So

12 that is the threshold question that I need to adjudicate.

13 So what I m going to do is I m going to ask Credit

14 Suisse to put in a memorandum of law arguing why they think

15 your claim should not go forward against them and then I will

16 give you an opportunity to respond and put in a memorandum of

17 law. So that I can evaluate both sides of the argument and

18 then go from there. But I have to take first things first.

19 And the first thing is to decide whether or not I can

20 adjudicate the claims between you and Credit Suisse. And that

21 has not been explicitly adjudicated by anyone yet and so that s

22 my next step.

23 : With regards to the point of a

24 memorandum of law, I m not too familiar with how to construct

25 it, how to draft it. Would it be acceptable if instead I




1 submit an affidavit?

2 THE COURT: OK. So you re a prose litigant. I m not

3 going to stand on formalities. So what we ll do is I will get

4 the memorandum of law from Credit Suisse. And the reason I

5 call it that rather than an affidavit is that what I m really

6 interested in is the law. You have been citing cases to me.

7 You obviously understand that the law controls what I do. So

8 what I m interested in is not so much the underlying facts. I

9 don t think the facts as they relate to these narrows issues

10 I m looking at are very much in dispute. The real question is

11 the scope of the agreement, the scope of the decision by the

12 state court judge, the effect of that decision on my ability to

13 adjudicate the claims.

14 So what I suggest you do is when you get Credit

15 Suisse s memorandum of law you can respond in a letter if you

16 want. You can respond an affidavit means you are swearing

17 under oath that something is true. You don t need to do that

18 because it s under penalty of perjury. It s not facts any way.

19 Don t bother to do that. Just write in a letter or a memo or

20 whatever form you re comfortable writing in, a response on the

21 legal points that Credit Suisse makes an then based on what you

22 both say as well as my own research. I mean, I understand you

23 are not a lawyer, so I m not just going to accept argument that

24 is Credit Suisse makes because they make them. Even if you

25 don t refute them I will certainly examine them independently




1 because that s what I m required do and I will evaluate the law

2 and see whether or not I have the power to go forward.

3

4 stated

5

6

: With regards to everything you ve just

THE COURT: Yes.

: I should also make this Court aware

7 of the fact that Mr. Martin who is sitting behind me, actually,

8 reached out to me over a year ago to ask if I would be

9 interested in engaging in nonbinding mediation with Credit

10 Suisse for which Credit Suisse paid for the mediator in that

11 hearing that was held at JAMS. So with regard to the question

12 of whether I guess Credit Suisse is subject to that arbitration

13 provision, it would seem likely that they re not subject to

14 that provision especially if the opposing counsel on his own

15 initiative or on the court initiative of Credit Suisse elected16 to contact me to ask if, perhaps, there was a way to resolve

17 Credit Suisse s involvement in the issue.

18 THE COURT: OK. So I guess two things in response to

19 that. One is that parties are always encouraged to try to

20 resolve matters. And in fact, if both you and Credit Suisse

21 right now would like a referral to a magistrate judge or a

22 court appointed mediator which wouldn t cost you anything to

23 try to resolve the issue between and Credit Suisse, I would be

24 happy to make a referral but it would require both of to you

25 agree to that.




1 And the second thing is as generally when people try

2 to engage in settlement discussions that s always without

3 prejudice to their arguments on the merits. And so, if you

4 reached out to them and said, gee, I d like to try and resolve

5 this I wouldn t hold that against you as suggesting that you

6 didn t have meritorious arguments or it undermined generally

7 whatever the parties do in a settlement posture doesn t have

8 any relevance to legal arguments.

9 : And with regards to I guess having a

10 memorandum of law submitted to this Court as well as to me, it

11 there a way to expedite that process only because of as I

12 stated in the amended complaint I m currently subject to some

13 very extenuating circumstances for which I would really need

14 immediate relief.

15

16

THE COURT: I understand. And I saw the reference to

that in the transcript. I can certainly find out how quickly

17 both parties can act but I should warn you it sounds like you

18 may have some experience with litigation. But the progress of

19 litigation, the first thing I need to decide is whether or not

20 the case can proceed but then the next phase is usually a

21 discovery phase where the parties exchange information.

22 Typically, you know at best that takes a couple of months. I

23 can try to make it shorter here if there isn t information to

24 be exchanged or if the parties are willing to agree to various

25 facts. But it strikes me that there is not for the same




1 reasons that Judge Koeltl articulated, that there is not a

2 basis for injunctive relief here. And so in order for you to

3 get relief we would have to actually litigate the case. I m

4 happy to do that as quickly as both parties are willing to do

5 it but that really requires both sides to do that.

6 So why don t we talk about dates. Let me ask

7 Mr. Martin.

8 So what we are talking about now I presume that the

9 motion to dismiss in law of an answer and you normally have 21

10 days from the filing of the complaint. I don t know when that

11 was. But do you know when your answer of motion is due as we

12 sit here?

13 MR. MARTIN: I do not, your Honor. I don t know the

14 exact date. I m sorry.

15

16

17 4th.

18

19 Friday.

20

THE COURT: Well, let s just take a look.

MR. MARTIN: I believe the complaint was filed on the

THE COURT: So it would be the 25th which was last

: Your Honor, I m interested at this point

21 in further amending the complaint which I believe I have the

22 right to do to add additional causes of action such as causes

23 of action that would fall under the Sarbanes-Oxley Act and

24 RICO.

25 THE COURT: Against whom?




: Against both NTT Data and Credit Suisse.

2 In particular it is my understanding with regards to

3 retaliation that takes place and the Sarbanes-Oxley Act, that

4 actually invalidates an arbitration clause in the contract. So

5 if it s a questions of --

6 THE COURT: So here s the question. Would you rather

7 delay? I mean it s a fork in the road. You can file an

8 amended complaint and then they have 21 days to respond to the

9 amended complaint or we can try and get a response to the

10 current complaint now. But an amended complaint, you are right

11 may strengthen your arguments on the other hand. It will start

12 the clock over. So which is your preference?

13 : I might need some time to think that

14 over. It s complicated.

15

16

THE COURT: OK.

: There are two different conditions at

17 play here. There is the extenuating

18 THE COURT: There was an amended complaint filed on

19 September 10.

20 : That was prior to the service on the

21 defendants.

22 THE COURT: But I think you need court approval to

23 file another amended complaint?

24 : In the papers that I received from the

25 Pro Se Intake Unit it talked about how you need such approval




1 after the original complaint is served on the parties.

2 THE COURT: Well, but you are entitled to amend once

3 as of right before the other side has responded. It sounds

4 like have you done that already.

5 : Right. But that was prior to service on

6 the defendants.

7 THE COURT: I would need to do some research but I m

8 not such sure you are entitled to amend as a right. So I need

9 to check on that but you need to decide which avenue you prefer

10 to take.

11

12

: Do I need to decide right now or

THE COURT: No. We can try to do this another way.

13 When do you think you ll have figured that out?

14

15

16

: By the end of today.

(Pause)

THE COURT: OK. So I have the Federal Rules of Civil

17 Procedures and my recollection was right which is that a party

18 may amend its pleading only once as a matter of course and

19 you ve already done that. So that means that in order to amend

20 again you can only do that with the opposing party s written

21 consent or the court s leave and the court should freely give

22 leave when justice so requires.

23 So here is what your decision should be. Your

24 decision and -- are you on ECF by the way?

25 : Not yet. I asked. I can access it but




1 as far as being able to file papers that way, not yet.

2 THE COURT: OK. So I think what I ll just have to do

3 is put it in writing since you are not on ECF yet, bring it to

4 the prose office and they will file it. And your decision is

5 whether you want to make a motion for leave to amend the

6 complaint and what you should do if you decide to do that is

7 you explain what you want to do. And what I would suggest you

8 do is actually attach a copy of what it is you d like to file

9 as your amended complaint and that I will rule on whether or

10 not you can file it. But the other side will have an

11 opportunity to respond to your motion. If you like you ll have

12 an opportunity to reply and then I would rule. So that could

13 take, realistically speaking, it could take I don t know, a

14 couple of months.

15 The other option is for us to proceed on the complaint

16 that is in place now and determine whether you have a claim

17 against Credit Suisse but the case would go forward only

18 against Credit Suisse.

19 : But I would still have the option

20 essentially to commence a separate case under a different case

21 number where the, I guess, causes of action in that complaint

22 would pertain to these other laws the Sarbanes-Oxley Act and

23 RICO against NTT Data.

24 THE COURT: I m not sure that that is true. It might

25 be true but I don t think so because it would, what you re




1 essentially trying to do is amend your complaint when you don t

2 have a right to do that. And generally the law doesn t allow

3 you to do in substance what you are not allowed to do in

4 another way.

5 : In terms of what I was trying to get at

6 there what was the concept of res judicata that was discussed

7 by the opposing counsel in his memorandum of law. If there was

8 no mention, whatsoever, of the charges pertaining to the

9 Sarbanes-Oxley Act, nor RICO in the original complaint, nor the

10 amended complaint, then it would not appear to be barred by.

11 THE COURT: I guess the question is whether -- and

12 again I don t know the answer to this as I sit here. The

13 question is whether your claims, your new claims are governed

14 by the contract between you and the defendant. And if they

15 are, then it seems to me the state court action would control.

16 But the threshold question is whether those new claims are

17 governed by that contract.

18 : Right. Because the only reason I cite

19 that was with regard to the provisions about retaliation that

20 fall under the Sarbanes-Oxley Act. The law specifically states

21 that retaliatory conduct that is subject to the provisions of

22 the Sarbanes-Oxley Act that qualifies as an exemption.

23 THE COURT: I don t know that Sarbanes-Oxley Act is

24 applicable here but I would need to see briefing on it. So in

25 any event, if you would get something to the prose office by




1 the end of the day today they will file it and then let s

2 assume, let s set a schedule for either course. That way we

3 won t have to convene again. So you basically have two

4 choices. You can bring a notion to amend or we can await

5 Credit Suisse s motion to dismiss. So if you decide on a

6 motion to amend, how soon could you file that?

7

8

: Probably within 24 hours.

THE COURT: You could file a motion within 24 hours

9 and you would have to attach the new complaint with your new

10 claims to the motion.

11 : Yeah, I believe so cause, essentially,

12 all I would need to do is as you stated or as I believe you

20

13 stated, was to draft that motion for leave to amend and then in

14 addition to that, attach a proposed amended complaint to it for

15 consideration by this Court.

16 THE COURT: Right. It would take most lawyers a

17 couple weeks to do that but if you want to do it by Thursday,

18 that s OK. Is that the date you would want?

19

20

: Sure.

THE COURT: OK. October 1. And then how long for a

21 response to the motion? And would you be adding claims against

22 both defendants or just one?

23 : I would have to give some more

24 consideration to that but probably against both.

25 THE COURT: OK. Let s just assume for purposes of




1 argument that it s both. So how long would defense counsel

2 need to respond if you got the motion by October l?

3 MR. PARKER: Your Honor, I would like a couple of

4 weeks to respond if the Court s willing to give us a couple of

5 weeks. And I think you ve just clarified the question I was

6 going to ask but in your earlier ruling, NTT Data was out of

7 the case because you don t have jurisdiction but, obviously, we

8 would have to respond to a motion for an amended complaint if

9 that changes that calculous at all.

10 THE COURT: Right. Exactly. And then so that,

11 Mr. Martin, could you do it by October 15, respond to the

12 motion to amend by October 15?

13 MR. MARTIN: Yes, your Honor. I don t think that

14 would be an issue.

15 THE COURT: OK. So we ll put October 15th is the

16 response date.

17 And then ordinarily, you would have a

18 right to reply to what they said. Would you want a right to

19 reply?

20

21

: Sure.

THE COURT: So if you were a lawyer I would ordinarily

22 give you a week. I usually give prose parties more if they

23 want it. If you want less I ll give you less.

24

25

: Less.

THE COURT: OK. So October 15th. And when would you




1 like to get in your response? Ill tell you what. I ll make it

2 due a week later, October 22. If you want to get it in the

3 next day or whenever it would be fully submitted. As soon as

4 you get it in I will try and consider it promptly. Normally, I

5 take motions in the order I get them. That would mean several

6 months. I won t do that for this case. I will put it earlier

7 in the queue and I ll consider it a more pressing matter. But

8 I don t make any promises as to time but I will try and

9 expedite it.

10 So let s look at the other option which is if Credit

11 Suisse brings a motion to dismiss, by when would you be able to

12 file that if that were the route, Mr. Martin?

13

14 Honor --

15

16 take you.

17

18

MR. MARTIN: If I had my calendar in front of me, your

THE COURT: You can give me how much time it would

MR. MARTIN: I would ask for three weeks.

THE COURT: OK. So three weeks from today is

19 October 19.

20 And then by when would you respond, to a

21 Credit Suisse motion to dismiss?

22 : Probably within 24 to 48 hours

23 thereafter.

24 THE COURT: OK. So I would say, let s say -- how have

25 you been getting your -- you ve been getting your copies off of




1 ECF?

2 : Actually, with regards to some of these

3 things I received a Fed Ex last week from the Mr. Parker s law

4 office.

5 THE COURT: OK. Well, I ll let you work out with them

6 how you get things but I will make your response due

7 October 22nd and they will have to file it on ECF on

8 October 19. So you can look on ECF. Get it off ECF on

9 October 19 but they have until midnight on October 19 and then

10 you file your response by October 22. And then I ll give

11 Credit Suisse a week to reply so October 29 and then, again, I

12 would have to decide the motions. So those are the two

13 possible timelines. I will issue an order as soon as I hear

14 from you as far as which route you want to take. I ll just

15 issue a scheduling order and it will reflect these dates.

16 : The two options again are to file a

17 motion for leave for this Court to amend the complaint?

18

19

20

THE COURT: Right.

: Option number two is --

THE COURT: Option number two is to stay with the

21 complaint that you have. Credit Suisse is going to move to

22 dismiss it based on whatever grounds there may be and you will

23 respond to that.

24 : And the response is due on or about

25 October 19.




THE COURT: Their motion is due October 19. Your

2 response is due October 22. Their reply is due October 29. So

3 basically it takes it out one week further but I suspect there

4 will be more grounds on that motion than on a motion to amend.

5 You are only asking for one thing. So in the end I doubt that

6 I will get a decision out any sooner if it s one or the other.

7 So you shouldn t base your decision on that. You should figure

8 out which way you want to go.

9 : In the meantime with regards to the

10 first decision that was issued so far to -- well, I should say

11 in favor of NTT Data, that s subject to appeal with the Second

12 Circuit?

13 THE COURT: I don t know if it s subject to appeal

14 until the case is resolved.

15

16

: So an interlocutory --

THE COURT: No interlocutory appeal but since it

17 dismisses NTT Data it may be appealable but I just don t know

18 since I don t appeal my decisions. It s not something I really

19 keep track of. So that s for you to figure out. It may well

20 be. I just don t know.

21

22

23

24

25

OK. Anything else?

: No.

THE COURT: All right. Thank you, counsel.

(Adjourned)

Slightly Redacted Transcript From 9-28-15 SDNY Court Hearing With Lawyers for Credit Suisse and NTT...

Documents

Transcript of Slightly Redacted Transcript From 9-28-15 SDNY Court Hearing With Lawyers for Credit Suisse and NTT...