PurpleTurtle

Your hypotheticals are all over the place. If you think I said something contrary to facts or contracts or law then feel free to comment on any of that.

I don't pretend to know what the panel will do and I am not making any predictions.

Again, what is the basis for your hypotheticals?

eaglefly

It's a simple question and the "basis" for asking it is irrelevant just as answering a question with a question isn't an answer. OK, I'll break it down;

1. Do you believe that "the law" or the "facts" of any contracts prevents the preliminary arbitration panel from affirming APA's right to appoint a West merger committee and if so, specifically why ?

2. Do you believe that "the law" or the "facts" of any contracts prevents the preliminary arbitration panel from appointing a West merger committee unilaterally and if so, specifically why ?

These are NOT "hypothetical" questions, they are specifically relevant based to any such argument to the contrary and one that you appear to be making. In essence, if you believe the answers to one or both SPECIFIC non-hypothetical questions is "yes", then defend that assertion with specifics.

PurpleTurtle

An arbitration award is effective to the extent provided for in the contract that established the arbitration. Some people may overestimate or underestimate the provisions of the PA (both the lattitude of arbitrators during the process as well as the effectiveness of the award afterward).

I won't bother to address the legal lattitude of the arb panel (If you want to assert how much they have then provide a basis for it, in the PA)..

But I will address the assumption people seem to have regarding the adequacy of the question "Does APA have the authority to establish a separate west committee for MB SLI arbitration?" That question will not resolve the west's application. It simply won't. An answer to that question does not provide an answer to the west's application for a separate committee, unless one is willing to assume the APA would follow through on its expressed intent to establish a west committee. Making assumptions about the APA might not be a good strategy (ask the TWA pilots.)

The west request must be granted or denied. None of the participants to the arb will do that.

eaglefly

Well, the arbitrators are there for exactly that. The question before them is whether APA has the right to appoint a West merger committee. Not coincidentally, three parties (Leonidas, AAG and APA) also believe that APA SHOULD appoint a west committee with USAPA as the minority 1 against 3.

I think the arbitrators WILL make a decision and again, that the positions of the majority in this arbitration will prevail.

PurpleTurtle

Are you joking? Majority has nothing to do with it. Where have you been the last ten years? Don't you know the whole industry hates USAPA, but not as much as Judge Silver does? .

The PA does not establish the question before them to be about APA's authority, and even if it did, an answer to that question would not establish or prevent a west committee. The question is meaningless.

The panel will grant or deny the west's request, as the PA requires, and we will all live happily ever after with the decision.

eaglefly

Well, in reading the 4 parties briefs submitted earlier this week and objectively looking at their arguments and positions, the "majority" collectively makes a convincing argument (legal and otherwise) why the West should have separate representation. All I've said is that I think they will.

I'm not so sure about that part....at least not in the near-term. I suspect that in the likely event the West DOES prevail in this stage of the SLI, USAPA will respond in their usual predictable manner, by NOT "living happily ever after". I'd be surprised if they did.

PurpleTurtle

The company brief has the fatal premise that the APA may grant or deny a west committee (irrespective of the MB statute). Not only false but also irrelevant. By contract the APA relinquished the decision to grant or deny the west request for a merger committee solely to the arbitration panel (and the company and USAPA joined the APA in binding themselves to that). The APA is contractually barred from granting or denying the west's request for a committee. This contractual stipulation is exactly why the PA was written and it allowed us to move past the litigation between APA and USAPA.

The APA brief inadequately suggests that the panel must assume a west committee is statutorily permissible, even required, based solely upon unproven APA discretion. Not only is the alleged APA discretion unproven and inadequate, it is also irrelevant by contractual stipulation, regardless of what discretion may have existed prior to the PA.

The West lawyers make fatal errors in both their opening and their conclusion. To start, they request the arbitration panel to assume authority to arbitrate an irrelevant question that is unsupported by the PA. And in conclusion they ask the panel to authorize the APA to appoint a west committee (rather than ask the panel to grant or deny their request for a committee, as the PA stipulates).

This is the thing lawyers live for. Being paid to engage in sophistry!

The panel is contractually authorized to grant or deny the west request for a committee for the MB SLI Arbitration, and the panel will be well aware of the basis to their decision by the time they have to make it.

Personally I think it would be really nice for the west to have their own committee.

I will not predict what decision the panel will make, but I assure you we will live happily ever after, for better or for worse. Its in the contract.

eaglefly

We obviously interpret the briefs differently and apparently USAPA disagrees with you as well. If USAPA also believed that it would be "nice" for the West to have their own committee, there would neither be this arbitration, nor their request to have that consideration rejected by this arbitration panel as stated in their brief.

It's good to see at least one in USAPA's orbit not agree with their assertions and demands on this issue.

Although I still think it won't lead to a pure Nic inclusion, I think for all concerned, it's the proper course.

PurpleTurtle

Yes I agree it would be really nice for the west to have their own committee, but I didn't get paid to write as much in a bunch of thinly veiled legal mumbo jumbo, while deceiving people, hocking ties, and stacking the deck to subvert any future lawsuits by AOL.

Niceness won't rule the day.

eaglefly

No it won't and no you didn't get paid to do that. But, if the arbitrators rule in favor of the West, it would kinda lend at least a little credence that their argument in that respect wasn't just "thinly veiled mumbo jumbo".

Of course, I suppose in that case they could all be declared just as senile as Nicolau apparently was.