Earlier this week, a very patient judge in the federal court in St. Louis found herself ordering signatures, hearings, and discovery in a wrongful death case that had already been settled. In the case of Miess, et al v. Port City Trucking, Inc., et al (No. 4:09-cv-1124), the four plaintiffs included the mother of three children that died when a tractor trailer truck collided with the vehicle in which they were passengers. The other three plaintiffs were the fathers of the three children. The litigation between the plaintiffs and the defendant trucking company and driver settled during mediation. This initial primary mediation did not, however, resolve various issues of apportionment amongst the plaintiffs.

The Opinion (2012 WL 401 050) illustrates a reality this counsel has experienced first hand—leaving lose ends at the end of mediation with an agreement to tie them up later can be a frustrating and time-consuming misstep, albeit one that can not always be avoided. The reality is that meditations—particularly in emotionally charged financial or wrongful death cases—can be draining, if not volatile. It can be perilous to push the envelope on the nitty gritty final details after hours of mediation. Indeed, the parties may lose to fatigue and frustration their primary accord.

Luckily for the parties in this case, they had a wise judge that declined their invitation to enter a judgment between the plaintiffs and defendants until the apportionment disputes between the plaintiffs were resolved. Instead, she issued a Settlement Order, thereby retaining jurisdiction of the case. A subsequent mediation between the plaintiffs still failed to resolve all of the disputes between the plaintiffs. One must assume that to this day they are not resolved. The father-plaintiffs are seeking broad discovery from the mother regarding her medical condition and fitness to be a mother1 and an apportionment hearing is still set for next month. In sum, a case that ends at mediation might not be over. Food for thought.

 

1The Court, however, permitted only limited post-settlement discovery.

If you are interested in examining the historical parallels between the alleged causes and political responses to the economic crises of 1929 – 1934 and 2008 – 2012 from a unique perspective, pick up Michael Perino’s “The Hellhound of Wall Street: How Ferdinand Pecora’s Investigation of the Great Crash Forever Changed American Finance.” While the focus of the book is the political reaction and wranglings, as well as the financial practices, that ultimately led to the 1932-’33 City Bank Senate investigation and hearings, followed by the creation of the Securities and Exchange Commission, the parallels are astonishing. Here is just one example from the book:

           “Few Americans today know who Ferdinand Pecora was, although he was once a media superstar, a nearly daily fixture in the newspapers and radio broadcasts across the country. With the onset of our current economic woes his name has slowly begun to crop up again. In April 2009, House Speaker Nancy Pelosi called for a new “Pecora Commission” to investigate “what happened on Wall Street.” The next week, the Senate invoked Pecora’s name in voting to create an independent committee to investigate the financial crises, and in January 2010 the Financial Crises Inquiry Commission held its first hearings.                                                                                   Pecora, a diminutive Sicilian immigrant and a former assistant district attorney from New York City, was chief counsel for the Senate Committee on Banking and Currency, charged with investigating the causes of the 1929 stock market crash. As he recounted in his memoir of the hearings, Wall Street under Oath: “Before [the committee] came, in imposing succession, the demigods of Wall Street, men who names were household words, but whose personalities and affairs were frequently shrouded in deep, aristocratic mystery…Never before in the history of the United States had so much wealth and power been required to render a pubic accounting.” In terms of rapt public attention, economic impact, and long-lasting legislative accomplishments, Pecora’s investigation must rank as the most successful inquiry in the more than two-hundred-year history of congressional probes.12

           “Ultimately, the acclaim Pecora garnered was justified because the hearings he led fundamentally changed the relationship between Washington and Wall Street. Before 1933 the federal government had taken a hands-off approach to the stock market. But the hearings, and the public clamor they created, changed all that. In his Inaugural Address, Roosevelt declared, “There must be an end to a conduct in banking and in business which too often has given to a sacred trust the likeness of callous and selfish wrongdoing,” and he called for “strict supervision of all banking and credits and investments.” Many would argue that the former is still all too true, but Roosevelt at least delivered on the latter. Over the course of Roosevelt’s famous first hundred days in office and then in the year following, Congress passed and Roosevelt signed a flurry of banking and securities legislation, most of which still governs our financial markets today. The first federal securities laws, federal deposit insurance, and the creation of the Securities and Exchange Commission all trace their roots back to that fertile political soil.”3

           “The primary compensation for Mitchell and the other officers was the management fund. After deducting an initial 8 percent return for the shareholders, the officers collectively shared 20 percent of all of the remaining profits. In broad strokes, City Bank’s management fund looked similar to compensation in hedge funds today, and for Pecora, it provided the same incentive for excessive risk taking. In fact, it might have created even greater incentives for risk. A hedge fund typically collects 20 percent of all profits, but the executives at City Bank had “nothing to gain and everything to lose, individually, by a conservative policy” because their profit sharing did not kick in until the bank had crossed that initial 8 percent threshold.                                                                                       There was another factor, as well, that pushed the executives to even riskier securities offerings. Every year it took more and more sales to get the management fund into the black. Mitchell was continuously expanding his far-flung securities-selling network. By 1929 it had offices across the country linked by the latest information technology of the day. The overhead on the system was enormous, and City Bank had to sell larger and larger amounts of securities just to break even.”4

While the title and much of the book’s content center upon the chief counsel for the Senate hearings, “Ferde” Pecora—an Italian immigrant that grew up in a New York City basement without heat or plumbing—the book is also filled with the financial and political history of one of the most extreme decades in the United States. I picked my copy up at a Borders going-out-of-business sale. How ironic is that?!

1Ferdinand Pecora, Wall Street under Oath: The Story of Our Modern Money Changers (New York: Simon & Schuster, 1939), p. 3-4.

2Michael Perino, The Hellhound of Wall Street: How Ferdinand Pecora’s Investigation of the Great Crash Forever Changed American Finance (New York: The Penguin Press, 2010), p. 3-4.

3Michael Perino, The Hellhound of Wall Street: How Ferdinand Pecora’s Investigation of the Great Crash Forever Changed American Finance (New York: The Penguin Press, 2010), p. 4-5.

4Michael Perino, The Hellhound of Wall Street: How Ferdinand Pecora’s Investigation of the Great Crash Forever Changed American Finance (New York: The Penguin Press, 2010), p. 143.

Considerations in Filing an Occupational Disease Claim in Missouri

January 4, 2012

The idea behind the Missouri workers’ compensation statute is to create a no-fault compensation system that essentially guarantees compensation to an employee for work-related injuries.  In this quid pro quo system, the employee accepts reduced compensation and gives up the right to pursue legal remedies, such as common law negligence damages, against the employer.  In [...]

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Use Common Sense and Heed Your Industry’s Respective Rules and Regulations When Communicating Through Social Media Forums

January 2, 2012

It seems like every week I read an article that offers tips about how business professionals should use (or not use) social media. In fact, I posted one myself last year on our Securities and Investing blog. Some articles are specific to certain industries or professions, like mine, and some are general, but they all [...]

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A Recent Missouri Court of Appeals Decision Regarding Limits on Workers Compensation Recovery

December 19, 2011

Deputy Scott J. Beine (“Beine”) worked for the St. Charles County Sheriff’s Department (“Employer”) from 1997 until July 7, 2008.  He was assigned to the position of a school resource officer.  Beine was also a member of the St. Charles County Deputy Sheriff’s Association (“Association”), a voluntary, nonprofit association, which raises money for charity. The [...]

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CFP Board Actions on the Uptick

December 4, 2011

According to the Certified Financial Planner’s website, the CFP Board opened 1,472 disciplinary cases in 2010. This is over 100 more than they opened in 2010 and the most cases opened in a single year since 2004. While a difficult economy increases complaints customers file against their financial professionals, which is one action which may [...]

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Overcoming the Hurdle of Causation in Toxic Mold Litigation

October 19, 2011

Mold is a type of fungi that reproduces by releasing tiny spores which travel through indoor or outdoor air.  It typically functions in wet or damp areas and digests whatever material it rests on.  Some molds produce toxic substances called mycotoxins which are commonly referred to as toxic mold.  Mycotoxins can enter the body though [...]

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More on Illinois Contract Litigation

October 10, 2011

It is important, in the first instance, to understand the nature of a warranty and the difference between a warranty and any other type of contractual representation or promise.  The Illinois Appellate Court, in the case of Vasco Trucking, Inc. v. Park Jill Truck Co., 6 Ill.App.3d 572, 286 N.E.2d 383 (4th Dist. 1972) defined [...]

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Evidence of Prior Similar Incidents is Admissible to Show Notice

October 6, 2011

In Missouri, defendants almost always seek to preclude evidence of prior incidents involving the defendant on the basis that such evidence is irrelevant and prejudicial because the prior incidents did not occur under “substantially the same circumstances” to the incident involving the plaintiff.  Is the defendant right?  When is evidence of prior similar incidents admissible? [...]

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Avoiding Estate and Trust Litigation

October 5, 2011

At the core of most law suits is one common element: money.  While truth and justice might be part of the litigant’s goal, the moral outcome of the case is often less important to the parties than the money.  How often do we see cases where an injustice has been served and rather than fully [...]

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