© 2007 Morrison & Foerster LLP All Rights Reserved Attorney Advertising The Global Law Firm for Israeli Companies Dispute Resolution in the United States – Litigation Michèle Corash Morrison & Foerster October 29, 2007

The Global Law Firm for Israeli Companies U.S. Litigation Slow $$$$ Uncertain

The Global Law Firm for Israeli Companies Multiple Fora for Litigation – Federal Courts U.S. Supreme Court 10 th Circuit Court of Appeals District Courts 9 th Circuit Court of Appeals District Courts 8 th Circuit Court of Appeals District Courts

The Global Law Firm for Israeli Companies Multiple Fora for Litigation Federal Courts State Courts Administrative agencies SEC – Securities and Exchange Commission FTC – Federal Trade Commission ITC – International Trade Commission Environmental Agencies

The Global Law Firm for Israeli Companies Multiple Parties in Litigation Private Parties “Enforcement actions" brought by Federal prosecutors State attorneys general District and City attorneys Citizen suits Shareholder derivative suits Suits generally initiated by plaintiffs, but sometimes by defendants too – declaratory actions

The Global Law Firm for Israeli Companies U.S. Litigation Overview

The Global Law Firm for Israeli Companies Response – Motion to Dismiss Improper service Wrong forum and lack of jurisdiction Failure to name a necessary party Facts alleged do not support relief Allegations do not support a claim Wrong entity Failure to name a necessary party Courts usually allow plaintiff to cure Sometimes, preemptive challenge to judge

The Global Law Firm for Israeli Companies Service / Jurisdiction Was defendant “served” properly? Hague Convention for service outside the US Jurisdiction – can court hear the case? Is it in the right court – subject matter jurisdiction – (Federal or state?) Does court have personal jurisdiction over defendant – minimum contacts

The Global Law Firm for Israeli Companies Motions for Summary Judgment Procedure for deciding a case without a trial Filed by either side asking for ruling in its favor because the undisputed facts support its claim or defense – no need for trial Does not have to dispose of the entire case – may just simplify it Judge decides Disputed facts assumed to be in favor of non-moving party If resolves entire case, can be appealed

The Global Law Firm for Israeli Companies Discovery Purpose Make all relevant facts known to all parties before trial Force witnesses to tell the truth Scope is very broad Any document or information “reasonably calculated” to lead to the discovery of admissible evidence Personal records – medical, legal, divorce proceedings Sensitive business records / customer lists, marketing plans Exceptions Privilege Attorney/client communications re legal advice Attorney work product – diff rules in diff states Extreme Burden

The Global Law Firm for Israeli Companies Discovery: Documents Parties make specific requests for documents Produce all responsive docs within the party’s “possession, custody, or control,” anywhere they are reasonably expected to be lawyers, consultants, home, bank vault, overseas, subsidiary E-discovery No withholding of docs – severe sanctions

The Global Law Firm for Israeli Companies Discovery: Depositions A pre-trial interview /examination By an opposing lawyer Of a witness – anyone with knowledge of the case Fact or expert Party, or non- party Sworn testimony Recorded by a court reporter Transcript is produced Can be asked anything that might lead to discovery of relevant evidence

The Global Law Firm for Israeli Companies Discovery: Written Questions Interrogatories Written Questions to party – not witness responding party provides factual answers. Contention interrogatories Requests for Admission Can avoid the need for discovery on undisputed matters Can force opposing party to take a position

The Global Law Firm for Israeli Companies Relief / Remedies Injunction Compensatory Damages Lost Profits Reasonable Royalty Punitive Damages

The Global Law Firm for Israeli Companies Role of Judge and Jury Judges Decide questions of law – interpret the statute -- Decide what law applies Make rulings on procedural questions instruct juries on the law – Write decisions that can become binding legal authority Juries – not in all cases Decide questions of fact 6-12 people from public – Voir dire

The Global Law Firm for Israeli Companies U.S. Litigation Slow $$$$ Uncertain

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