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From: omalley008@gmail.com [mailto:omalley008@gmail.com]
Sent: Wednesday, February 12, 2014 2:50 PM
To: Mark O'Malley
Subject: Fw: Today's ruling


Sent on the SprintR Now Network from my BlackBerryR

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From: Stephen Novack <SNovack@novackmacey.com>

Date: Mon, 10 Feb 2014 15:53:02 -0600

To: jhoran@blueplatechicago.com
<mailto:jhoran@blueplatechicago.com%3cjhoran@blueplatechicago.com>
<jhoran@blueplatechicago.com>; Matthew O'Malley<omalley008@gmail.com>;
bhayes@blueplatechicago.com
<mailto:bhayes@blueplatechicago.com%3cbhayes@blueplatechicago.com>
<bhayes@blueplatechicago.com>; Patrick Belville<pbelville@jonesday.com>;
Licata, Anthony R.<alicata@taftlaw.com>

Cc: P. Andrew Fleming<andrewf@novackmacey.com>; John
Shonkwiler<jshonkwiler@novackmacey.com>

Subject: Today's ruling


All,


We just got the Judge's written ruling on our motion for sanctions. A copy
is attached. It's relatively short and (like several of his earlier
rulings) hard to follow. It's definitely worth reading, though. If you
want to skip to the bottom line, the Judge ruled that our motion is "denied
without prejudice". It is not totally clear what he means by that, but he
explains it to some degree in the last paragraph of the Opinion. There, he
says:


In the event that the City is entitled to partial summary judgment, then it
is possible that . . . any deleted e-mail would be irrelevant . . . . [O]n
the other hand, if the City does not prevail on its summary judgment motion
and a full trial proceeds on the merits of the case, then the issue of
prejudice to the Park Grill Parties may well be relevant.


Our take is that he is not prepared to enter any sanctions at this time, but
does not foreclose the possibility of doing so during or after the
presentation of evidence at trial.


The Opinion also attempts to clarify some of the prior rulings, but may not
have fully succeeded in doing that. One thing that he does successfully
clarify is his statement directed at the City (at page 15) that:


Thus, insofar as the City's pending Motion for Partial Summary Judgment is
based on its "two required writings," it is worth noting that the Court has
not held that any writing is required to prove that Park Grill Parties'
alternate theories (e.g., license, agency relationship) or affirmative
defenses. The record is not devoid of possible explanations as to how the
Park District came to be a party to the Concession Agreement. (Emphasis
added.)


After the Court delivered its written Opinion, the City asked the Court to
consider delaying the trial so that it would have enough time to digest and
rule upon the summary judgment motions. Without hesitation, the Court
rebuffed that request, stating that he was anxious to bring this matter to
an end and would not change the trial date at this time. Although he left
open the possibility of doing so later if he felt he needed more time to
resolve the summary judgment motions, he basically said that he thought he
could get through the summary judgment process quickly, suggesting (though
not deciding) that he did not anticipate entering summary judgment in whole
and that he was disinclined to issue any issue by issue summary judgments.


If you have any questions, please call John or me.


Best regards,


Steve


Stephen Novack

snovack@novackmacey.com

312.419.6900 T
312.419.6928 F


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