UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

LAWRENCE E. JAFFE PENSION PLAN, On 

Behalf of Itself and All Others Similarly 

Situated, 

Plaintiff, 

vs. 

HOUSEHOLD INTERNATIONAL, INC., et 

al., 

Defendants. 

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Lead Case No. 02-C-5893 

(Consolidated) 

CLASS ACTION

Judge Ronald A. Guzman 

Magistrate Judge Nan R. Nolan 

MEMORANDUM OF LAW IN SUPPORT 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

Case 1:02-cv-05893 Document 1641 Filed 07/20/2009 Page 1 of 8
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Lead Plaintiffs respectfully submit this memorandum of law in support of their 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. 

Under Local Rule 78.3, “[f]ailure to file a supporting or answering memorandum shall not 

be deemed to be a waiver of the motion or a withdrawal of opposition thereto, but the court on its 

own motion or that of a party may strike the motion or grant the same without further hearing.” 

U.S.D.C. N.D. Ill. LR 78.3 (emphasis added); Feldman v. Trane, 07 C 2694, 2008 U.S. Dist. LEXIS 

89169, at *8 (N.D. Ill. Nov. 4, 2008) (recognizing the court’s ability under Local Rule 78.3 to strike

or grant a motion for failure to timely file supporting or opposing memorandum); Bonvolanta v. 

Delnor Cmty. Hosp., 413 F. Supp. 2d 906, 908 (N.D. Ill. 2005) (same). Here, defendants have failed 

to file any memoranda in support of their Motion for Judgment as a Matter of Law Pursuant to Rule 

50(b) or in support of their Motion for New Trial Pursuant to Rule 59. Defendants’ failure to file 

any supporting memoranda for their post-trial motions in direct violation of this Court’s briefing 

schedule – a schedule defendants requested – justifies an Order striking both motions under Local 

Rule 78.3. 

On May 7, 2009, after a six-week trial, the jury returned a verdict in favor of plaintiffs, 

finding defendants liable for violations of §10(b), Rule 10b-5 and §20(a). See Dkt. No. 1611 

(completed verdict form). After excusing the jury, the Court asked the parties whether they wanted 

to set the briefing schedule for any post-trial motions. See Trial Tr. at 4808:23-25 (“Does anybody 

need a date for motions?”); id. at 4810:11-15 (“I think the first step is a date for motions and 

resolution of any motions on the jury verdict.”). Counsel for defendants responded as follows: 

MR. KAVALER: [Y]ou 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. 

Trial Tr. at 4810:23-25 (emphasis added). The Court granted counsel’s request for 60 days. Id. at 

4811:11-14 (“THE COURT: You’re asking for 60 days? KAVALER: I am, your Honor. THE 

Case 1:02-cv-05893 Document 1641 Filed 07/20/2009 Page 2 of 8
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COURT: Okay, 60 days.”). Plaintiffs’ counsel requested 30 days to respond to defendants’ posttrial motions, which the Court also granted. Trial Tr. at 4812:2-3 (“DOWD: Fair enough, your 

Honor. Then I would ask for 30 days to respond if he gets 60.”). The Court then scheduled 

defendants’ reply deadline for 15 days after the filing of plaintiffs’ opposition. Trial Tr. at 4812:4 

(“60 plus 30 and a reply in 15”). Based on the briefing schedule requested by defendants and set by 

the Court, defendants’ memoranda supporting their post-trial motions were due on July 6, 2009.1

On May 21, 2009, defendants filed a Notice of Motion, along with a Motion for Judgment as 

a Matter of Law Pursuant to Rule 50(b) and a Motion for New Trial Pursuant to Rule 59. See Dkt. 

No. 1620. Defendants acknowledged they were filing the motions “pursuant to the schedule 

established by Judge Guzman.” Id. at 1. In footnote No. 1 of defendants’ motion for judgment as a 

matter of law, defendants stated: 

[P]ursuant to the Court’s instructions on May 7, 2009, Defendants file this Motion to 

address the initial class-wide verdicts, with a supporting memorandum to follow not 

later than July 6, 2009.

See Dkt. No. 1618 at 1 n.1 (emphasis added). Defendants’ motion for new trial contained an 

identical footnote, repeating defendants’ assertion that they would file a supporting memorandum 

“not later than July 6, 2009.” Dkt. No. 1619 at 1 n.1 (emphasis added). 

July 6, 2009 has come and gone, yet inexplicably, defendants have not filed any memoranda 

in support of their post-trial motions. See, e.g., Civil Docket for Case No. 1:02-cv-05893 (showing 

that the last filing occurred on June 11, 2009). Nor have defendants requested an extension from the 

Court, contacted plaintiffs’ counsel, or otherwise made any effort to explain their absolute failure to 

comply with the briefing schedule defendants requested from the Court. Defendants’ unexcused 

 

1

 Pursuant to the Court’s briefing schedule, plaintiffs’ oppositions to defendants’ post-trial motions are 

currently due August 5, 2009, while defendants must reply by August 20, 2009. 

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failure to timely file any supporting post-trial memoranda justifies an Order striking defendants’ 

motions for judgment as a matter of law and new trial. 

Moreover, the post-trial motions defendants did file on May 21, 2009 are wholly inadequate 

as a matter of law. For example, defendants’ bald assertions that they are “entitled to judgment on 

all Rule 10b-5 claims” (Dkt. No. 1618 at 2) comes nowhere close to satisfying the heavy burden they 

face under Rule 50(b). See, e.g., Waite v. Board of Trs., 408 F.3d 339, 343 (7th Cir. 2005) (noting 

that the court will overturn a jury verdict for the plaintiff only if no rational jury could have found 

for the plaintiff – “a difficult standard to meet”). Likewise, defendants’ motion for a new trial fails 

to demonstrate that the jury’s verdict “resulted in a miscarriage of justice or where the verdict, on the 

record, cries out to be overturned or shocks [the] conscience.” Latino v. Kaizer, 58 F.3d 310, 315 

(7th Cir. 1995); Severtson v. Hannan, No. 96-2542, 1997 U.S. App. LEXIS 22279, at *10 (7th Cir. 

Aug. 13, 1997) (noting that the burden on a party seeking a new trial based on erroneous evidentiary 

rulings is an “onerous” one). 

Additionally, it is virtually impossible to respond to defendants’ barebones post-trial 

motions. Both post-trial motions merely summarize, in a sentence or less, why defendants are 

entitled to judgment as a matter of law under Rule 50(b) or a new trial under Rule 59. Indeed, the 

motions contain none or only “scant citation to legal authority, and citation to the record or trial 

transcripts is nonexistent.”2

 Spina, 207 F. Supp. 2d at 769 (denying defendants’ motion for a new 

trial).3 The problem with defendants’ cursory approach is obvious in the context of post-trial 

 

2

 Defendants’ apparent efforts to preserve issues for review on appeal should be rejected. See Spina v. 

Forest Preserve Dist., 207 F. Supp. 2d 764, 769 (N.D. Ill. 2002) (denying motion for new trial and noting that 

defendant’s motion for a new trial “appears to be nothing more than an attempt to preserve issues for review 

on appeal”). 

3

 For example, in their motion for new trial, defendants claim the Court committed judicial error by 

“[i]mproperly allowing the opinion testimony contained in various documents produced by third-party Wells 

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motions, where, at a minimum, defendants must establish that they properly preserved at trial the 

issues they now seek to raise. The court in Spina addressed this very point: “[i]t is not the role of 

this Court to sift through the voluminous record to confirm whether [defendant] properly preserved 

these issues for review – an arduous task that [the defendant] apparently decided was not worth its 

time to undertake.”4

 Id. at 770 n.2. Given these circumstances, this Court should strike defendants’ 

post-trial motions and plaintiffs should not be required to respond to defendants’ inadequate and 

incomplete post-trial motions.5

In sum, pursuant to Local Rule 78.3, an Order striking Defendants’ Motion for Judgment as a 

Matter of Law Pursuant to Rule 50(b) and Motion for New Trial Pursuant to Rule 59 is appropriate 

in this case. Defendants have failed to timely file memoranda in support of their post-trial motions,

in direct violation of the briefing schedule defendants themselves requested. Additionally, due to 

defendants’ failure to file supporting memoranda, plaintiffs should not be required to respond to the 

barebones post-trial motions defendants filed on May 21, 2009. 

 

Fargo for the truth of the matters asserted therein,” without identifying the specific exhibits or opinion 

testimony defendants claim were improperly admitted. See Dkt. No. 1619 at 13 (emphasis added). 

4

See also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, 

hunting for truffles buried in briefs.”). 

5

 Defendants also add qualifying language, such as claiming “[j]udicial error with respect to jury 

instructions . . . including, but not limited to the following prejudicial errors,” thereby making it impossible 

for plaintiffs to anticipate and adequately respond to the arguments raised in defendants’ post-trial motions. 

See Dkt. No. 1619 at 3 (emphasis added). 

Case 1:02-cv-05893 Document 1641 Filed 07/20/2009 Page 5 of 8
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DATED: July 20, 2009 Respectfully submitted, 

COUGHLIN STOIA GELLER 

 RUDMAN & ROBBINS LLP 

PATRICK J. COUGHLIN (111070) 

MICHAEL J. DOWD (135628) 

SPENCER A. BURKHOLZ (147029) 

DANIEL S. DROSMAN (200643) 

MAUREEN E. MUELLER (253431) 

/s/ Maureen E. Mueller 

MAUREEN E. MUELLER 

655 West Broadway, Suite 1900 

San Diego, CA 92101 

Telephone: 619/231-1058 

619/231-7423 (fax) 

COUGHLIN STOIA GELLER 

 RUDMAN & ROBBINS LLP 

AZRA Z. MEHDI (90785467) 

D. CAMERON BAKER (154432) 

LUKE O. BROOKS (90785469) 

JASON C. DAVIS (253370) 

100 Pine Street, Suite 2600 

San Francisco, CA 94111 

Telephone: 415/288-4545 

415/288-4534 (fax) 

Lead Counsel for Plaintiffs 

MILLER LAW LLC 

MARVIN A. MILLER 

LORI A. FANNING 

115 S. LaSalle Street, Suite 2910 

Chicago, IL 60603 

Telephone: 312/332-3400 

312/676-2676 (fax) 

Liaison Counsel 

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LAW OFFICES OF LAWRENCE G. 

 SOICHER 

LAWRENCE G. SOICHER 

110 East 59th Street, 25th Floor 

New York, NY 10022 

Telephone: 212/883-8000 

212/355-6900 (fax) 

Attorneys for Plaintiff 

S:\CasesSD\Household Intl\Trial\Post Trial\MOT00060655_MTS.doc 

Case 1:02-cv-05893 Document 1641 Filed 07/20/2009 Page 7 of 8
DECLARATION OF SERVICE BY ELECTRONIC MAIL AND BY U.S. MAIL

I, the undersigned, declare: 

1. That declarant is and was, at all times herein mentioned, a citizen of the United States 

and employed in the City and County of San Diego, State of California, over the age of 18 years, and 

not a party to or interested party in the within action; that declarant’s business address is 655 W. 

Broadway, Suite 1900, San Diego, California 92101. 

2. That on July 20, 2009, declarant served by electronic mail and by U.S. Mail to the 

parties MEMORANDUM OF LAW IN SUPPORT 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.

The parties’ email addresses are as follows: 

TKavaler@cahill.com

PSloane@cahill.com

PFarren@cahill.com

LBest@cahill.com

DOwen@cahill.com

NEimer@EimerStahl.com

ADeutsch@EimerStahl.com

MMiller@MillerLawLLC.com

LFanning@MillerLawLLC.com

and by U.S. Mail to: 

Lawrence G. Soicher, Esq. 

Law Offices of Lawrence G. Soicher 

110 East 59th Street, 25th Floor 

New York, NY 10022 

David R. Scott, Esq. 

Scott & Scott LLC 

108 Norwich Avenue 

Colchester, CT 06415 

I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th 

day of July, 2009, at San Diego, California. 

/s/ Teresa Holindrake 

TERESA HOLINDRAKE 

Case 1:02-cv-05893 Document 1641 Filed 07/20/2009 Page 8 of 8