Document RJ3p9EvOaej6ombMQn76dyXnV

TO: FROM: RE: D ATE: MEMORANDUM J. Randall Jones C. H. McCrea Paul Merrell Memo of May 20 re Aldabe M a y 7 .0 , 1 Q Q 2 __________________________________________________________________________ I certainly agree with Paul that we should eschew any mention of conspiracy, much less amend our complaint to allege it as a cause of action. However, as long as we don't amend, I don't see Aldabe as a threat. It seems to me that the defendants, in order to have used Aldabe successfully in their 9th Circuit argument (and to use it successfully in a petition for writ of certiorari) , would have had to assert that [1] they had conspired among themselves to defraud Nevada Power, [2 ] Nevada Power was injured by their conspiratorial fraud more than four years before it filed its complaint, and [3] therefore, Nevada Power cannot recover on its non-conspiratorial fraud claim. This would create the anomalous situation in which the defendants, by alleging their own tortious misconduct - conspiracy (with which they were not charged) - as an affirmative defense, could defeat, by alleging a second affirmative defense (statute of limitations), a claim for relief - fraud - with which they were charged. In other words, by asserting that they had made a conspiratorial effort to injure plaintiff jointly, they claim they should escape liability for their non-conspiratorial success in injuring the plaintiff severally. I find it difficult to believe that a court would embrace this logic. Memorandum May 21, 1992 Page 2 A . Ei Insofar as a petition for certiorari is concerned, I question whether defendants can allege new facts (i.e., their own tortious misconduct - conspiracy) to obtain a review of the 9th Circuit decision. This does not mean, of course, that a desperate defendant would not embrace this logic, whatever its chance of success. After all, these defendants embraced an even more spurious logic which the 9th Circuit did pick up on. This is the logic that PCBs are not dangerous, but Nevada Power since at least 1976 has known that they are dangerous. It obviously would be foolish of us to amend our complaint to allege conspiracy; it would give the defendants an opening they c a n 't make for themselves. Therefore, the less said about conspiracy, the better. chm\nevpower\merrel l .an JONES, JONES, CLOSE & BROWN, CHARTERED Seventh Floor -- Valley Bank Plaza 300 South Fourth Street Las Vegas, Nevada 89101-6026 (702) 385-4202 M ESSAG E FROM PANAFAX UF-250: (702) 384-2276 DATE: May 21, 1992 TO: FAX #: 3 & '7 -J7 b 9 PHONE #: ____________ TO: ___________________________ FAX #: PHONE #: TO: FAX# : PHONE #: FROM: C LIEN T /M A T T ER : CLIENT/M ATTER NO.: //<?<?> NUM BER O F PAG ES (including cover page): M ESSAGE: ____________________________ THIS TELECO PY IS INTENDED ONLY FO R THE ADDRESSEE NAMED ABOVE. tT MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL IFYOU HAVE RECEIVED THE TELECOPY IN ERROR, PLEASE NOTIFY US IMMEDIATELY B Y TELEPHONE, DESTROY A LL COPIES, AND DO NOT DISSEMINATETHE INFORMATION TO AN YO N E THANK YOU FOR YO U R ASSISTANCE. IF YOU EXPERIENCE PROBLEMS WITH THIS TRANSMISSION, please call (702) 385-4202 and ask for: DALE SEND 1& T R A N S A C T IO N R E il >RT M A Y - 2 8 - 9 2 T H U 11 :Q 9 D A T E S. T. NAME 01 MAY-28 11:06 3675168 TIME PGS 2' 24' 4 NOTE OK DP