THE LOEWEN GROUP, INC. and RAYMOND L. LOEWEN, v. THE ...

More documents

Recommendations

Info

D. Claimants Fail To Establish A Violation Of NAFTA Article.1110 ............... 152 CONCLUSION ...................................................................................................................... 154 -v-
I. INTRODUCTION This arbitration concerns litigation in a Mississippi state court that went very badly for The Loewen Group. Why it went badly, and the international law consequences of that result, are the subjects of very different characterizations presented by the parties before this Tribunal. A close review of the record of the Mississippi proceedings, however, shows that claimants have largely invented a story of the O'Keefe litigation bearing little resemblance to the events as they actually occurred and, indeed, have done it so forcefully that they have persuaded several of their experts to mistakenly assume that the story is true. The resolution of this claim, however, should not turn on claimants' characterizations, but instead must turn on the actual record of the O'Keefe litigation, including the contemporaneous documentary evidence that claimants and their experts ignore. Neither should resolution of this case turn on the alleged conduct of Willie Gary, despite claimants' effort to make Mr. Gary – rather than the gross business misconduct that Loewen was found to have committed, the company's tactical decisions, and its lawyers' mishandling of the O'Keefe litigation – the central focus of this case. Contrary to claimants' suggestion, the United States is not responsible, under either the NAFTA or international law more generally, for the actions of Mr. Gary, Mr. O'Keefe, or any other private individual. Rather, the United States can be held responsible in this matter, if at all, only for the actions of the Mississippi courts. As to the latter, claimants ask this Tribunal to assume, on the basis of nothing more than the very sort of stereotyping and innuendo that claimants contend marred the O'Keefe trial proceedings, that the Mississippi courts decided as they did not because the evidence presented in the case supported such rulings, but because the judges and jury were biased by alleged improper appeals
Page 1 and 2: IN THE MATTER OF: THE LOEWEN GROUP,
Page 3 and 4: III. CLAIMANTS CANNOT OVERCOME LOEW
Page 5: C. Claimants Fail To Establish A Vi
Page 9 and 10: claimants' invitation to serve as a
Page 11 and 12: A. Claimants Entirely Ignore The Se
Page 13 and 14: important basis for the jury's ulti
Page 15 and 16: unfair competitor, and to garner sy
Page 17 and 18: "completely ridiculous." Millen Dec
Page 19 and 20: O'Keefe's explanation that Riemann'
Page 21 and 22: Mr. Blackmon, who was on Loewen's t
Page 23 and 24: 5677 (emphasis added). This was esp
Page 25 and 26: For example, the O'Keefe plaintiffs
Page 27 and 28: within his rights to elicit testimo
Page 29 and 30: in the present proceeding, claimant
Page 31 and 32: O'Keefe, of course, was absolutely
Page 33 and 34: F.3d 1312, 1314 (9th Cir. 1994) (co
Page 35 and 36: Loewen's monopolistic practices, an
Page 37 and 38: More fundamentally, claimants' disc
Page 39 and 40: conducted by Loewen-retained lawyer
Page 41 and 42: (Federal Judicial Center 1995). 37
Page 43 and 44: In response, claimants contend that
Page 45 and 46: a single citation to the record to
Page 47 and 48: In short, since the United States f
Page 49 and 50: as is alleged here, the cost of a s
Page 51 and 52: Trost at 4. potentially ruinous jud
Page 53 and 54: Claimants ignore the international
Page 55 and 56: To rise to the level of a general p
Page 57 and 58:
Claimants ignore this distinction e
Page 59 and 60:
. The "Plain Error" Rule Is Foreclo
Page 61 and 62:
(same). 60 See also Miss. R. App. P
Page 63 and 64:
Moreover, even if the obligation of
Page 65 and 66:
In any event, as the record makes c
Page 67 and 68:
injuries, thus eliminating any poss
Page 69 and 70:
In fact, the Mississippi courts wer
Page 71 and 72:
though the United States was not a
Page 73 and 74:
To support its novel causation theo
Page 75 and 76:
cause is a necessary prerequisite o
Page 77 and 78:
transactions where insurers assume
Page 79 and 80:
settle the litigation. 85 As the Ge
Page 81 and 82:
(quoting Detlev F. Vagts, Coercion
Page 83 and 84:
after the United States filed its C
Page 85 and 86:
elying largely on authorities invol
Page 87 and 88:
Supreme Court, the Court would have
Page 89 and 90:
Mississippi counties where the judg
Page 91 and 92:
in any foreign state where O'Keefe
Page 93 and 94:
A. NAFTA Article 1121 Is Irrelevant
Page 95 and 96:
econsidered, does not of itself amo
Page 97 and 98:
B. Even If The Local Remedies Rule
Page 99 and 100:
In particular, Mr. Broches expressl
Page 101 and 102:
If there were any doubt on this poi
Page 103 and 104:
countless remarks of O'Keefe's coun
Page 105 and 106:
In fact, jurisdictions other than M
Page 107 and 108:
of different nationalities - "litig
Page 109 and 110:
appealed to nationalistic biases by
Page 111 and 112:
"[w]hile preaching homespun values
Page 113 and 114:
justice, irrespective of the local
Page 115 and 116:
claimants, not the United States, w
Page 117 and 118:
Article 1105] to suggest a departur
Page 119 and 120:
more than the handful of "denial of
Page 121 and 122:
Where the judicial action in questi
Page 123 and 124:
privately reported to Loewen (his c
Page 125 and 126:
damages. 136 Because the initial ve
Page 127 and 128:
said, what they did or why they did
Page 129 and 130:
awards in a wide range of circumsta
Page 131 and 132:
The contention that the $35 million
Page 133 and 134:
epresent only a fraction of even th
Page 135 and 136:
anything other than a genuine (and
Page 137 and 138:
instrument." Joint Reply at 112-13
Page 139 and 140:
discriminatory bond requirement. Ga
Page 141 and 142:
Loewen cited. A1075-78. While Judge
Page 143 and 144:
A full bond was especially importan
Page 145 and 146:
inaccurate, as it allegedly misquot
Page 147 and 148:
Given that Loewen's own evidence su
Page 149 and 150:
law does not constitute an unjust j
Page 151 and 152:
established rules of law. Claimants
Page 153 and 154:
out in this Agreement." NAFTA art.
Page 155 and 156:
has been recognized. 169 See id. at
Page 157 and 158:
under customary international law t
Page 159 and 160:
Metalclad Corp. (U.S.) v. United Me
show all

THE LOEWEN GROUP, INC. and RAYMOND L. LOEWEN, v. THE ...

Create successful ePaper yourself

Delete template?

Save as template?