UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

__________________________________________

LAWRENCE E. JAFFE PENSION PLAN, ON 

BEHALF OF ITSELF AND ALL OTHERS SIMILARLY 

SITUATED, 

Plaintiffs, 

- against - 

HOUSEHOLD INTERNATIONAL, INC., ET AL., 

Defendants. 

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Lead Case No. 02-C-5893 

(Consolidated) 

CLASS ACTION 

Judge Ronald A. Guzmán 

DEFENDANTS’ (1) OPPOSITION TO PLAINTIFFS’ 

MOOT AND FRIVOLOUS MOTION TO STRIKE AND (2) 

REQUEST TO CANCEL JULY 23, 2009 PRESENTMENT 

AND (3) FOR AN AWARD OF RELATED COSTS AND 

FEES FOR UNREASONABLE AND VEXATIOUS 

MULTIPLICATION OF PROCEEDINGS, BAD FAITH 

 AND FRIVOLITY 

CAHILL GORDON & REINDEL LLP

80 Pine Street 

New York, New York 10005 

(212) 701-3000 

EIMER STAHL KLEVORN & SOLBERG LLP 

224 South Michigan Ave. 

Suite 1100 

Chicago, Illinois 60604 

(312) 660-7600 

Attorneys for Defendants 

Household International, Inc., 

William F. Aldinger, David A. Schoenholz 

and Gary Gilmer

Case 1:02-cv-05893 Document 1646 Filed 07/21/2009 Page 1 of 8
Defendants Household International, Inc., William F. Aldinger, David A. Schoenholz and Gary Gilmer (collectively “Household” or “Defendants”) respectfully submit this Memorandum in advance of and in opposition to the proposed July 23, 2009 presentment of Plaintiffs’ 

Motion to Strike Defendants’ Motion for Judgment as a Matter of Law Pursuant to Rule 50(b) and 

Motion for New Trial Pursuant to Rule 59 (Dkt. 1636, 1641). Plaintiffs’ motion, premised on the 

factually inaccurate claim that “defendants have failed to file any memoranda in support” of their 

post-trial motions (Pls. Mem. (Dkt. 1641), at 2), is precluded by Defendants’ timely filing of the 

supposedly absent memoranda on July 20, 2009, in compliance with the 60-day schedule set by 

the Court. In fact, when Plaintiffs filed their motion to strike and accompanying memorandum on 

July 20 (Dkt. 1636, 1641), Plaintiffs were fully aware that Defendants’ allegedly unfiled memoranda had already been filed (Dkt. 1634, 1635, 1637, 1638, 1640). 

Plaintiffs’ motion to strike should be stricken and presentment thereof precluded 

because Plaintiffs’ factually unfounded claims of waiver are based solely on an incorrect reading 

of the Court’s instructions, which specified that the briefing schedule would run “subsequent to 

the ten-day filing” of the actual motions. (Tr. 4811:5–14) Plaintiffs’ motion to strike is a transparent attempt to avoid dealing with Defendants’ well-founded post-verdict motions on their merits. The “relief” Plaintiffs seek — striking Defendants’ timely filed post-trial motions and supporting briefs — would contravene Rules 50 and 59 of the Federal Rules of Civil Procedure, 

which both specify that such motions may be filed until “10 days after the entry of judgment.” 

Fed. R. Civ. P. 50(b), 59(b). Here, where no judgment has yet been entered, granting Plaintiffs’ 

motion to strike would serve no purpose but to delay consideration of the serious and dispositive 

issues identified in Defendants’ motions under Rule 50(b) and Rule 59 and in their memoranda in 

support thereof — issues which need to be addressed prior to addressing the contours of Phase 

Two, if any. 

Plaintiffs’ motion is frivolous, and it should be denied without presentment. Furthermore, because Plaintiffs refused to withdraw this motion upon Defendants’ request (and reCase 1:02-cv-05893 Document 1646 Filed 07/21/2009 Page 2 of 8
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fused to agree to a briefing schedule), Defendants are entitled to costs in responding to this motion 

and its presentment for Plaintiffs’ vexatious multiplication of the proceedings in violation of 28 

U.S.C. §1927.

I. DEFENDANTS’ MEMORANDA IN SUPPORT OF THEIR POST-TRIAL 

MOTIONS WERE TIMELY FILED, RENDERING PLAINTIFFS’ SUBSEQUENT 

MOTION MOOT 

There can be no serious question of waiver here because the time limitations for 

post-judgment motions do not begin to run until a separate document setting forth the judgment in 

compliance with Rule 58 has been entered.1 Dunn v. Truck World, Inc., 929 F.2d 311, 313 (7th 

Cir. 1991); Wantanabe Realty Corp. v. City of New York, 2003 WL 22862646, at *5 (S.D.N.Y. 

Dec. 3, 2003) (“Had judgment been entered, the motion would have been untimely. As the trial 

was bifurcated, however, no judgment has yet been entered. Indeed, the application for a new trial 

relates only to the liability phase of the case. In consequence, the motion is timely.”) (citing 

Dunn, 929 F.2d at 313); McCroy ex rel. McCroy v. Coastal Mart, Inc., 207 F. Supp. 2d 1265, 

1270 (D. Kan. 2002), rev’d on other grounds, 99 Fed. Appx. 165 (10th Cir. 2004). In any event, 

Defendants timely filed their post-trial memoranda 60 days after their motions under Rules 50(b) 

and 59 were filed, in full compliance with the schedule set by this Court.2

 Defendants relied upon 

and fully complied with the Court’s instruction that the schedule for post-trial briefing would run 

from May 21, 2009, the date on which Defendants’ post-trial motions were filed. Because Plain1

 Rule 50(b) states, in relevant part, that “No later than 10 days after the entry of judgment . . . 

the movant may file a renewed motion for judgment as a matter of law and may include an alternative or

joint request for a new trial under Rule 59.” Rule 59(b) similarly provides that “A motion for a new trial 

must be filed no later than 10 days after the entry of judgment.” 

2

 Defendants’ motions were filed on May 21, 2009 (Dkt. 1618, 1619), ten days after the jury returned a verdict on Phase One. The Court granted 60 days subsequent to the filing of those motions for the 

filing of Defendants’ memoranda in support thereof (July 20, 2009), 30 days for Plaintiffs’ opposition (August 19, 2009), and 15 days for Defendants’ reply (September 3, 2009). (Tr. 4811:15-4812:4) Plaintiffs 

make much of the fact that Defendants’ Rule 50(b) and Rule 59 motions contained a footnote indicating 

that their briefs would be filed on July 6. That offhand reference, which was simply a good-faith mistake, 

does not somehow “reset” the briefing schedule set by this Court. 

Case 1:02-cv-05893 Document 1646 Filed 07/21/2009 Page 3 of 8
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tiffs’ selective quotation of the May 7 transcript is misleading (Pls. Mem. (Dkt. 1641), at 2–3), for 

the avoidance of doubt the relevant proceedings are set out in full below: 

MR. KAVALER: . . . I want some guidance from the Court as to what motions you 

want us to make when. 

THE COURT: Well, you’re right. What I’m asking you for is a date for motions on 

the jury verdict. I mean, we also have to, of course, address what we’re going to do 

with the rest of the case. But I think the first step is a date for motions and resolution 

of any motions on the jury verdict. 

MR. KAVALER: You’re exactly right. My point simply, your Honor, is there is a 

jurisdictional ten-day limit which applies to motions directed to a judgment. Since 

there’s no judgment, I don’t believe we’re under the jurisdictional ten-day limit. So I 

would be inclined to ask you for 30 days. If your Honor has any doubt about that, 

however, we will comply with the requirement that we file the notice of motion and 

motion within ten days. And then we would ask you — you have the power to give 

us up to 60 days for a brief. We would ask you for the maximum time available for

the brief. Separate independent question — 

THE COURT: Well, I think that’s what we should do. I think that’s what we should 

do. 

MR. KAVALER: Okay. 

THE COURT: I’m not going to make a ruling on whether the ten-day period applies 

in this situation. I have seen arguments both ways on that question. So you can do 

as you like. But if you’re asking for time subsequent to the ten-day filing — 

MR. KAVALER: We are, your Honor. 

THE COURT: I will give you the time. You’re asking for 60 days? 

MR. KAVALER: I am, your Honor. 

THE COURT: Okay. 60 days. . . . 

(Tr. 4810:9–4811:14) (emphasis added) Hence, the record could not be more clear that Defendants’ memoranda were due 60 days after the filing of their post-trial motions, which was July 20, 

2009. Nor could it be more clear that Plaintiffs’ motion is aimed at sidestepping substantive 

evaluation of the serious questions set forth in Defendants’ post-verdict motions.3

 This frivolous 

gambit is unworthy of the Court’s attention. 

3

 If their claims were legitimate, Plaintiffs would have filed their motion by July 7, as explained 

below, or would have, at the very least, called Defendants’ counsel to inquire about the “missing” memoranda. Plaintiffs offer no explanation why, if they genuinely believed the memoranda should have been

Footnote continued on next page. 

Case 1:02-cv-05893 Document 1646 Filed 07/21/2009 Page 4 of 8
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It is apparent that Plaintiffs knew Defendants’ briefs were due and would be filed 

on July 20, 2009. In a telling bit of gamesmanship, Plaintiffs chose not to file their motion to 

strike on July 6 (the day they claim Defendants’ briefing was due), nor did they file it on July 7, or

July 8 or any other of the dozen days after that supposed “deadline.” Instead, they lay in wait to 

file their motion to strike until after Defendants began filing their post-trial memoranda on July 20 

— clearly the date Plaintiffs likewise calculated the briefs were due. (See, e.g., Defs. Rule 50(b) 

Mem. in Support (Dkt. 1634–2); Pls. Mot. to Strike (Dkt. 1636), both filed on July 20, 2009) 

Plaintiffs’ ruse thus allowed them a “free look” at Defendants’ memoranda (instead of almost certain delay in the briefing schedule while the Court considered their frivolous motion to strike). In 

any event, now that Plaintiffs are in possession of over 170 pages of memoranda detailing the 

grounds upon which Defendants are entitled to relief under Rules 50(b) and 59, filed pursuant to 

and in full compliance with the schedule set by the Court, Plaintiffs’ assertion that, without supporting memoranda, Defendants’ May 21 motions are insufficiently particularized to allow them 

to prepare a response is entirely moot and no presentment is required or justified. 

II. PLAINTIFFS’ UNREASONABLE CONDUCT WARRANTS THE IMPOSITION 

OF COSTS, EXPENSES AND ATTORNEYS’ FEES 

Defendants provided Plaintiffs the opportunity to withdraw their now-moot motion; 

however, Plaintiffs refused to do so, entitling Defendants to costs under 28 U.S.C. § 1927, which 

authorizes the imposition of costs, expenses and attorneys’ fees for just this kind of unreasonable 

and vexatious multiplication of proceedings based on frivolous arguments. During a telephonic 

meet-and-confer on July 20, 2009 after Plaintiffs filed their motion, counsel for Defendants explained that Plaintiffs’ motion was moot given Defendants’ timely filing of memoranda earlier that 

day and confirmed that, pursuant to the Court’s instructions, Plaintiffs’ responses to Defendants’ 

Footnote continued from previous page. 

filed on July 6, they did not either (1) contact Defendants prior to their July 20 filing to ask when the 

memoranda would be forthcoming, or (2) file their motion on July 7, 8, 9, 10, etc. 

Case 1:02-cv-05893 Document 1646 Filed 07/21/2009 Page 5 of 8
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post-trial motions were not due until 30 days after Defendants’ supporting memoranda were filed. 

(Newville Dec. at ¶ 3) Counsel for Plaintiffs refused to withdraw their motion to strike and even 

refused to agree to a briefing schedule on that motion (Newville Dec. at ¶ 4) — the very purpose 

of a presentment — notwithstanding Defendants’ offer to allow Plaintiffs additional time to respond to Defendants’ post-trial motions by permitting Plaintiffs’ time to run not from July 20 but 

from any denial of Plaintiffs’ motion to strike. (Newville Dec. at ¶ 6) This pattern of unreasonable conduct entitles Defendants to costs, expenses, and attorneys’ fees reasonably incurred because of Plaintiffs’ failure to withdraw their motion, rejection of any briefing schedule and insistence on a presentment. 

Under 28 U.S.C. § 1927, a court has discretion to award costs, attorneys’ fees and 

expenses as a sanction against any attorney who “multiplies the proceedings in any case unreasonably and vexatiously.”4

 See also Claiborne v. Wisdom, 414 F.3d 715, 721 (7th Cir. 2005) 

(recognizing district court authority to impose sanctions under 28 U.S.C. §1927 where an attorney 

“multiplies the proceedings in any case unreasonably and vexatiously”). The filing of a motion 

may result in the type of multiplication encompassed by § 1927, let alone a motion necessitating 

travel to Chicago for a pointless presentment. See Chwarzynski v. Tebbens, No. 07 C 2102, 2008 

WL 4210661, at *1 (N.D. Ill. Sept. 10, 2008) (Guzmán, J.) (“The purpose of both Rule 11 and section 1927 is to deter frivolous litigation and abusive practices by attorneys and to ensure that those

who create unnecessary costs also bear them.”) (citing Kapco Manufacturing Co., Inc. v. C & O 

Enterprises, Inc., 886 F.2d 1485, 1491 (7th Cir. 1989)); Iosello v. Lawrence, No. 03 C 987, 2005 

WL 2293680, at *3 (N.D. Ill. Sept. 16, 2005) (Guzmán, J.) (Section 1927 sanctions imposed for 

maintenance of baseless consolidation motion in ongoing litigation). The Seventh Circuit applies 

an objective standard to determine the question whether conduct is “unreasonable and vexatious.” 

4

 “Any attorney or other person admitted to conduct cases in any court of the United States or 

any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be 

required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. 

Case 1:02-cv-05893 Document 1646 Filed 07/21/2009 Page 6 of 8
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See, e.g., Dal Pozzo v. Basic Machinery Co., 463 F.3d 609, 614 (7th Cir. 2006) (“‘If a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be 

unsound, the conduct is objectively unreasonable and vexatious.’”) (quoting Riddle & Associates, 

P.C. v. Kelly, 414 F.3d 832, 835 (7th Cir. 2005)). Both elements are present here. 

Plaintiffs’ jejune gamesmanship and their needless involvement of the Court in a 

picayune and manufactured contretemps that they knew was frivolous and moot at the time they 

filed their motion to strike warrants an award of costs and fees to Defendants. 

CONCLUSION 

For the foregoing reasons, Defendants respectfully request the denial of presentment and consideration of Plaintiffs’ moot motion to strike, and request an award of costs, expenses and attorneys’ fees under 28 U.S.C. §1927 and this Court’s inherent authority to discipline 

attorneys practicing before it. 

Dated: July 21, 2009 

Respectfully submitted, 

CAHILL GORDON & REINDEL LLP

By: /s/ Thomas J. Kavaler 

 Thomas J. Kavaler 

 Bar No. 1269927 

 Howard G. Sloane 

 Bar No. 1197391 

 Patricia Farren 

 Bar No. 1198498 

 Susan Buckley 

 Bar No. 1198696 

 Landis C. Best 

 David R. Owen 

80 Pine Street 

New York, New York 10005 

(212) 701-3000 

 -andCase 1:02-cv-05893 Document 1646 Filed 07/21/2009 Page 7 of 8
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EIMER STAHL KLEVORN & SOLBERG LLP 

224 South Michigan Ave. 

Suite 1100 

Chicago, Illinois 60604 

(312) 660-7600 

Attorneys for Defendants Household 

International, Inc., William F. Aldinger, David A. 

Schoenholz, and Gary Gilmer 

Case 1:02-cv-05893 Document 1646 Filed 07/21/2009 Page 8 of 8