Free Motion in Limine - District Court of Federal Claims - federal

, .
Case 1:98-cv-00126-JFM Document 816-10 Filed 06/01/2004 Page 1 of 14
, A.

Assumptions abolit Future Event~
10.
A portion:of the ~aimed damages consists, of "other continuing costs

" that

plaintiff's experts ~aim plaintiff will incur until its nuclear Waste is accept~and removed;
platntiff'~ experts assume that ~is, Will ,not occur until at least
201q~

Wise Report, at 5~.

This

portion of plaintiff's. cI~imed damages is speculati~e because it depends on future events.

Assumptions about the " Non-Breach" Aggregate Acceptance Schedule
( 11.

Plaintiffs ~amage claim fissumes nOt qnly that DOE should have started

disposing, offuetby January ~1, 1998, but ~lsQ, t~~t DO shou!d, and would have continu~d to
" dispose

specified amounts of nuclear fuel at speciJied dates thereafter. The assumed amounts

are set forth in Taple1 of:t.he Graves Repol1, which shows an assumed acceptance rate of
, 1 , 20QMTU

in 1 Q98 and 1999,

000

MT:U in

2000

and

2001

700 MTU in

2002

and

3000

MTU

in eachsub~eqy'e nt ye~r.
Economic Effici~ncy

12.

Plaintiff's experts cla im that this assumed " non-br~~?h world" aggregate

a~ptance s~hedule is. economiG8l1y effiqient, arguing that a slower acceptance rate would
impose ~ddi~ional ~nneces&ary storage requirements and costs on Purcha~ers. " Graves

Report, at 8; John W; Bartlett Expert Witness Report (" Bartlett Reporr), at 9. However, their
, analysis doe~' not~~~~blish
th,c;lt the

assumed"

nOI)~bre~c~ world" aggregate acceptance

schedule woulq beeeonomically efficient because it does not takeintoaccol"lnt how the ' c

, assumedacce.ptan~~ched ul~

would affect other relevanJ costs.

As Dr. Bartlett notes:

The total cost to utilities of storing and disposing of spenUuel . . . can be divided into three parts. One is the program costs - the sum of the fees each contra~ng utility h~s or will pay to the ,govemmenUorthe ~etVices speci~ed in the Standard' Cont~cts. , A second is at-reactor sp,~rit fuel staragecosts ~ the sum of the costs each contracting utili ty haspr wiD incur storing 'spent fyel prior to . it being ac~pted., bytl:te government.: A third is, loadingcosts' the, , costs-each contracting utility will.incur loading:spent fuel into casks provided. by

su""qfthe

3. Moreover,

if plaintiff~ere to 'recOver the claimed damages and did not incur these costs , the difference between plaintiff's projected costs and plaintiffs actual costs would be a windfall

to the plaintiff.

...
Case 1:98-cv-00126-JFM Document 816-10

,"

',

~ .. ' \.:

Filed 06/01/2004

Page 2 of 14

the government pursuant to the Standard Contracts for transport to a government facility. (Bartlett Report. at 2Plaintiffs experts have not shown that the assumed acceptance schedule minimizes

3) "

the sum of
4 In fact, plaintiff's experts ' reports do

r:,

program costs, at-reactor storage costs and loac!ing costs.

riot p~ovide any analysis of how the assumed acceptance schedule would affect program costs
and loading costs.

Alternative Acceptance Rates
13. '
Article IV.

b of the oontract :providesthat "beginning not later than July

1: 1987, DOE shall issue an annualcapacity'repbrt forplannlng
projected annual receiving capacity for th'eOOEfacility(ies). '

purposes... (setting) forth the
"' Article IV.
aof the contract

provides that " beginning on April 1 ~ 1991, ' DOE shall issue anan~tial acceptance priority ranking

for receipt of SNF and/or HLW at the DOE repository. , Pursuant to these requirements the DOE

published both an acceptance priority ranking ("APR" ) and an annual capacity report ("Ack") in

1991. The 1991 ACR projected waste acceptance rates for SNF of 400 MTUiri'1998 , 600 MTU
in 1999 and 900

M1'U in eaCh year from 2000 though 2007 , for 8' 10;.year total of.8, 200 MTU.
HQ()bO2365)~ This acceptance schedule

1991 Annual Capacity Report. Table 2. 1 (Bates Nb.

also is consistent with DOE accepting no mor~ than 10, 000 MTUprior t020tO~

., at 4: (Hates

No. HOOO02364).

14.

The 1991 ACR applied the waste acceptanCe rates to ;the 1991 APR, '
priority. See

resulting in individual Purchaser allocations based on an oldest fuel first ("OFF")

1991 Annual Capacity Report. Table 3. 1 (Bates No. HOOO02369). Even with the acceptance

4. In order to ~how that a proposed acceptance schedule was sociaUy efficient, one would also
have (0 ~ake into aCGQunt
external ,

societalcosts, '$uch as the costs associated with

potenti~raccidenta~discharges dhadioactive material. '

5. I understahd that the 1987 amendments to the NWPA authorized DOE to site , construct and
operate a single Monitored Retrievable Storage, ("MRS" ) facility, and provided that no more than 10 000 MTU of nuclear waste could be stored at the MRS facility until a permanent repository began to operate. I also understand that DOE had announced prior to issuance of the 1991 ACR that it did not anticipate that the permanent repository would begin

operating:untilatleast2010. ,

, ",

"

,. ,

.. ':' " , ,''
;,

:' "' : '..";' , .. " ' " ' ..
"

:'

."

.. , ,
, ,

Case 1:98-cv-00126-JFM

Document 816-10

Filed 06/01/2004

Page 3 of 14

- 7-

schedule plailltifrs experts assume, an OFF priorjty alloCation- would not alloW Maine Yankee to
dispose of all of its nuclearwaste before 2010.

~ee Exhibit C. Because the ' acceptance rate

projected in the 1991 ACR is lower, an OFF priority allo~tion using this acceptance rate also

uld not allow Main~ Yankee to dispose of its nuclear waste before 2010.6 Moreover, eVen if
the exChange market' functionf3d to minimize aggregate storage cOsts as Mr. Graves has

assumed, plaintiff would continue to, stor~ fuel through 2010 undetlheacceptance ~ates

projected in the 1991 ACR because, according to Mr. Graves' talculations, the amount of " Must-

, , Move" fuel generated, by discharges from' operating reactorS (i. a;: discharges in extess of spent

fuel pool capacity)exceeds 1() 000MfU by 2010. See

raves~ Repo~ Fig ure 1., Therefore , if

the 1991 ACR accepta'nce rate had been achieved, plaintiff would not avoid the additional

storage costs on which its damage claim is predicated.

Assutnptionsabout Exdlanges
15.
ArtiCle v. E ' of

the contract provides Purchasers with the "rJght'to' exchange -

approved delivery commitment schedules with parties to other contracts with' DOE for disposal
of SNF and/or HLW;

provided however, that DOE shall, in advance, have the right tb' ~pproveor

disapprove, in its sole discretlon, any such exchimges. " Plaintiffs damage cI~liin " assume(s)
that such swaps would approach the efficient economic allocation of slots "
U.

e., the allocation of

slots which minimize~: the aggregate on-site storage costs of all' purchasersJ. ; Graves Rep()~ at

13. Mr. Graves ' conq.!usionthat all of Maine Yankee s SNFand HLW would have been removed
by 2002 in the " Non- Breach World" depends on this assumption. However, this assumption is
both speculative (because there is no way to know with certainty how the market would
functiQn) and implau~ible for several reasons.

' With an OFF prio~ty, Maine Yankee s allocation would total 216. 5MTU through 2007. Mr. , GrCives ' data shgW that Maine Yankee has , an SNF inventory of 541. 83 MTU. " 7. To minimize aggregate storage costs under plaintiff's model Must- Move" fliel generated by discharges from operating reactors in excess of spent fuel pool capacity would have to be moved first, because if this fuel is not mov~; an additional storage facility would have to be

bu~l

' 4

:,

,: '

:' "

Case 1:98-cv-00126-JFM

Document 816-10

Filed 06/01/2004

Page 4 of 14

16.

First, only approved delivery commitment schedules ("PCSs ) can be
V.

exchange d under the contract. , See Article

E. Moreover, under the contract, DOE is only

required to project receiving capacity for ~ 0 years following the projected commencement of
qperation of the initial DOE facility" and ~tilities are not r~quir~d to submit DCSs for the full 1
years.

Se~ Article

IV.

and Article

V.

1. Purc~asers could not e~cha nge allocations that

had not been projected, requested, and approved.
17.

Second, if GTCC ' can not be included iI!1 DCSs and failed fu~1 might not

be accepted in the year stated on a DCS, then P~r~hasers would have little incenti
i~) ~)(c~anges

to engage

(because E!xchanges would not eliminate t~e need for on.;site storage).
18.
Third, Article V. E
of tt!e contract provides for

bilate,ral exchanges of like

amounts of SNF and/or HLW (i.e. , exchanges of DCSsfor equal MTUs betwee~; Purchasers),
not the " last- bid auction procedur~" that Mr. Graves refers to in his report (at page 14). On~

cannot as~ume that a market with bilateral exchanges in- kind will tJ,roduce the same results as a
market w,ith , a last- bid auction prOcecJure. A large number of bilateral' exchanges would be

required.to achieve the ~ame result and, in ea~ exchange, there would b ~ bargainin

~~d the

attendant.possibility of expropriation by Purcha~ers with desirable allocations. Moreover, a
m~rket with bilateral exchanges in-kind does not produce as much inf()rmation as a mark , with
~ last- bid

auction procedure. Economist~ have recognized that sequential, ~Uateral trading is

, not the most efficient way to or~anize a market.8

8. See, e.

, Hahn & Noll Barriers to Implementing Tradable Air Pollution Permits: Problems OfRegulatory Interactions, " 1 Yale J. on R (1983)63, 74; Stavins, "Trciri Sadtion Costs and Tradeable Permits " 29 J. Envir. , con. & Manag ement, (1995) 133, 135, note 5 1ulcition

the sequential and bilateral nature o ng process (leadS) to some initial trades that preclude better trades from being carried out subsequently"), andAtkinson & Ttet~nberg, Market Failure in Incentive-Based Regulation: The Case of Emis sions Trading, " 21 J. Environmental Econ. & Management (1991) 17~ 28 ("the type of bilateral, sequential trading that occurs under the bubble policy resuits insubstantially smaller cost savings than would be expected from the more sophisticated~ but uncommon , cost-effective trading process that' analysts have historically presumed to exist"

Case 1:98-cv-00126-JFM

Document 816-10
9-

Filed 06/01/2004

Page 5 of 14

19.

Fourth, Articie \f. E

of the Contract also' provldes

that pu'rchasers must

submit exchange requests to DOE for approval and gives DOE the discretion to disapprove'
proposed exchanges. ' EConomists also have recognized th~t a requirement for government
~pproval discourages trading.

See

, Stavins~' "Transaction Costs and Tradeable : Permits,

29

Envir. Econ. & Management,

(1995) 133, 145.

understand that"O'OE might disapprove

exchanges for many reasons , including (.tiIferen~s in storage cask requirements and'
transportation requirements that potential exchanges would generate.

20. '- The actual behavior of PurChase rs ' to date does not supporfMr. Graves
allocation as~limptioit Even though ,n'anyPurchaserS ' currently h~"e tradahle DCSs and some
, utilities (such as Y~nkee Atomic) have acti~ely solicited exctiangeproposals; no exchanges

have occurred .
in the "

In his' report, Mr.

Graves argues that the incentive to ' exchange wdlJld begr~ater

n~Breach Wand. "

Graves' Report, at 11- 13

& 17':'19. However, even if this were true,
would

, would not establish that theexChanges1hat would occutin the Non~BreachWorlci

minimize aggregate on-site storage costs and allow Maine Yankee to dispose ohtll of its nuclear

waste by 2002.

9. In 19a 1

the State of WiscOnsih implement~; a program 'designed to allow for the' iiiTIited trading of marKe~ble (n~charge permits to control biological oxygen demand on a part of the Fox River. Hahn; "' EConomic Prescripti()ns for Environment Problems: How thePatieht , 3 (1989) 95 97. The actual trading Followed the Doctor s Orders, J. Econ. pers ma. sectives , alg8. The program disappainting and cost'savingsof this program were
results have been attributed to certain features oflhe market structure that also exist here:

limited permit trading between small numbers of market partiCipants , subject to regulatory ,

Transferable Rights Wograms,
rights

approval. Id. Also, see , Tripp & Dudek, " Institutional Guidelines for Desigining Successful yaleJ. onRe~ ulatio~ (1989), ~69,. 38?,J"the right~tq
pollute are not freely tradeable un er t
ox

iver program, which Impairs the value of the

10. Mr. Graves asserts that " swaps of acceptance slots would , allow Purchasers (and riot insignificantly, OPE also) to rea1ize substa ntial savin~s in cost ~nd efficiencY' as cOmpared with the, initial allQcation of acceptance slots under OFF." ' Graves Report~ at3. . However even if this wereJrue , it woLildnot be suffiCient to establish that Purchasers would propose

the necessary s~quen~ of ~xchanges or that theb'OE w()uldapprovethe exchanges as they ~er~ proppsed. Both Purchaser~ and the DPJ;wouldhave t6evalua'te each exchange
on ItS own ments. The DOE would not be abl~ to r~lyon Mr. G(8v~s assumption that a series of biiater~lexchange$ would ul~imatelyresulnn an allocation that allowed them to obtain " substantial saving~fin cost and efficiency" because it would have no way of knowing whether all of the necessary exchanges would be proposed.

. ,

,"', ''" ' " " ' ..
'"

,,' ,,".. : , ,,.. " ,'.. , '
',
, "

' , ' , "' ,,; ,,' ' ~, ,' " ::, ,
':

',

,"

' :' ,

."

, ' ,' :"
Page 6 of 14

~~) ~"'\

Case 1:98-cv-00126-JFM

Document 816-10
10 -

Filed 06/01/2004

21.

Mr. (3raves' conclusion regarding the net proceeds th~t plaintiff would

obtain from exchanging DCSs is also questionable because, for the reasons stated above , one
~.J

cannot know with ~rtainty whether exchanges would occur and what th~ terms

of

exchanges

which did occur would be. 11 It is p~ssible th~t the exchanges which did occur would occur at
:terros ~ r1favpr~ble ~()plaintiff
plaintiff would incur net.

anc;l that

instead

of

obtaining net revenues from exchanges,
storage

costs. Of course ,

~ny such C9sts. would offs~~plainti~s claimed

costs savings.

Assumptions ab?~t GTCC Waste ~nd Failed Fuel
~2.
I~rderstand that plaintiff has both ,f~iled fuel and GTCC waste on its
of

site. 12 Under th~s~ circumstances , plaintiff will incur the costs

on-site storage until its failed

fuel and GTCC waste are removed from its site. Therefore, plaintiff's damage calculations
" :1'

nece~sarily assut:ne that it~ failed fuel and GTCC wa~te would~lso be ac~epted bY, DOE under

the assumed sch~d~~~

(jiscussed above. ,

This assump~i9n i ~ specu!~~v~ because the contract
1':

, does not r~quire DO~ to do this.
The Interrelationship between Assumptions

23.

Plaintiff's assumptions are interrelated in several respects. First , plaintiff's

experts ' conclusion that the proposed acceptance schedule ~ould , minimize at-reactor storage
costs depends on their assumptiOns about exchanges ~TCC waste and fail~d f!.lel: if the
exchange market did not function as plaintiff's experts assume , or:DqE didn9(?ccept GTCC

waste and failed fuel as plaintiff's experts assume, then there would be no way to know whether
.. the

assumed acc~ptance schedule would minimize at.;.reactor storage costs. " Second , Mr.
of exChanges Could also be affected by other facto~ noUaken into accounf by Mr. etonomiq sequence model" such ' as Purchasers' ability to shtft-doWnplalits prior to of

11. The price

Graves
the end licensed lives

their currently licensed lives, and Purchasers
of

ability, to obtain exiensions

of

the

their nuclear' plants. '

12. I understand that GTCC waste isa form low-level radioactive W~ste that contains of GQncentratiohsofcertain radioa~tive nuclides that' exCeed the cOnCentration limits established by the Nt.icl~ar Regulatory Commission for:Cla~s C waste. Failed fuel is SNF and/or HLW that does not meet the General Specificatiohsfor ~uch fuel as set forth in

, " , (...

,'..

Case 1:98-cv-00126-JFM

Document 816-10

Filed 06/01/2004

Page 7 of 14

11, Graves' analysis of the demand for allo cation slots (which determines the allocation schedule in

his economic sequence model) depends on the assumed " non-breach

wor1d"

acceptance.

$cheduleand the assumption that DOE would accept GTCC waste and failed fuel under the

non-breach world" acceptance schedule. The interrelationship between these assumptions

makes plaintiffs damage claim a house of cards: if anyone of the assumptions is incorrect, the
entire model would fall apart.

Daniel R. Fischel

March 1, 2002

continued)
Appendix E of the contract.

Case 1:98-cv-00126-JFM

Document 816-10

Filed 06/01/2004

Page 8 of 14

100

....

' ' .. " "
Case 1:98-cv-00126-JFM

' ,' ',' ;'' ,
Document 816-10
Lexecon Inc. 332 South Michigan Avenue

" ,

, "
Page 9 of 14

Filed 06/01/2004

DANIEL R. FISCHEL
Business Addresses:

February 2002

Chicago, Illinois 60604
University of Chicago Law School
1111 East 60th Street

(312) 3~2-0209

ChicagO; Illinois 60637

(773) 834-4167

PROFESSIONAL EXPERIENCE
Dean of Law School (1/4/99 - 2/01); Le~and Brena Freeman Professor of ~aw and Business, University of Chicago Law School (7/1/89':' present); Professor of Law, University of Chicago - present); Visiting Professor of Law, University of Chicago Law School (:111/a4 Law Schoo.!

(7/1/82 - 6/30/83).
6/30/90).

Professor of Law and Business" University of Chicago Graduate School of Business

(7/1187 -

Director, Law and Economics Program, University of Chicago (1/1/84 - 6/30/91).
Assistant Profe$~or of Law, Northwestern University School of Law (6/80 - 6/81); Associate 6/82); promoted to full (6Ja1

Professor of Law, N9fthwestern University School of Law

professor in 6/82.
Attorney with Levy and Erens, C!1i~go, Illinois

law Clerk

1979).
for

(7fl9

- 6/80).

A$sociate Justice Potter Stewart of the United States Supreme COurt (1978 -

law Clerk

(1977-

1978).

for

Judge Thomas E. Fairchild, Chief Judge of the Seventh Circuit Court of Appeals

CONSULTING EXPERIENCE
Chairman and President , Lexecon Inc.

AREAS OF SPECIALIZATION

Corporate, Fi(1ance, Corporate Control Transactions, Corporations, Financial Institutions
Regulation of Rnancial Markets , Regulation of Investments, Economic Analysis of Law.

101

,,
Case 1:98-cv-00126-JFM Document 816-10

, "
Filed 06/01/2004 Page 10 of 14

- 2-

PUBLICATIONS

Business (1995).
Easterbrook).
- ARTICLES
Multidisciplinary Practice , The Business Lawyer, Vol. 55 , (May 2000).
Government Liabilitv for Breach of Contract, American L. & Econ~ Rev. V1 , (with Alan Sykes).

Payback: : The Conspiracy to Destroy Michael Milken and His Financial Revolution, Harper
The EcOnomic Structure of Corporate Law, Harv~rd University Press (1991) (with Frank H.

N1/2

313 (1999)

lawyers and Confidentialitv. 65 U. Chi. L. Rev. 1 (1998).
The Law and Economics of Vanish in a Premium Life Insurance , 22 Del. J. Corp. Law 1 ' (1997)

(with Robert S. Stillman).
Corporate Crime , 25 J. Legal Studies 319 (1996) (with Alan o. Sykes)~

Clusterina' and Competition in Asset Markets , 20 J. Law & ECon~ 23 (1997) (with Sanford J. ' Grossman, Merton H. Miller, Kenneth R. Cone and David J. Ross).

The Use of Tradina Models to Estimate Aaareaate Damaaes in Securities Fraod Litiaation:, , Proposal for Chanae , in Securities Class Actions:' Abuses and' Remedies (The National Legal

Center for the Public Interest, 1994) (with OavidJ. Ross).
Civil , Rico

After Reves: An Economic Commentary, 1993 Sup. Ct. 'Rev. 157 (with Alan O~ Sykes).

Contract and Fiduciary Dutv; 36 J. Law & Econ. 425 (1993)(with Frank H. Easterbrook).

(with David J. Ross).

Should the Law Prohibit " Manipulation " in Financial Markets? , 105 Harv. L. Rev. 503 (1991)

Efficient Capital Markets. the Crash. and the Fraud on the Market Theory , 74 Cornell L. R,ev. 907 (1989).

The Corporate Contract , 89 Colum. L. Rev. 1416 (1989)(with Frank H. Easterbrook); also Corporate Law and Economic Analysis (Cambridge University Press 1990) (Lucian published in

Bebchuked.
The Economics of Lender Liability , 99 Yale L. J. 131 (1989).
Should One AQency ReQulate Financial Markets , in Black Monday and the Future of FinanCial Markets (R Kormendi , R. Kamphuis & J~ W. H. Watson, ed. ) (Dow Jones~lrwin Inc., 1988).
ERISA' s Fundamental Contradiction: The Exclusive Benefit Rule , 55 U. Chi. L. Rev. 1105 (1988) (with John H. Langbein).

102

~ ' ... ' , ~
, "
Case 1:98-cv-00126-JFM Document 816-10 Filed 06/01/2004 Page 11 of 14
From MiTE to CTS: Takeovers the Williams At. " and .the Commerce Clause, 1987 Sup. Ct. Rev.
The Reaulation of Banks and Bank Holdina ,Co~anies, 73 Va. L. Rev. 301 (1987) (with Andrew
M. Rosenfield and Robert S. Stillman).

The Reaulation of Account in a: Some Economic Issues,

52 Brooklyn L. Rev. 1051 (1987), '

Oraanized Exchanaes and the Realilation of Dual Class Common Stock, 54 U. Chi. L, Rev. 119

(1987).
Comparable Worth and Discrimination in labor Markets
p3 U. Chi. L. ReV.

891 (1986) (with

EdwardP. Lazear).
Comparable Worth: A Reioi~der.
53 u. C~i. L Rev. 950,,(

1~86) (with ~dward P. Lazear).
(1986) (with Frank H. Easterbrook).

Close Corporations andA~encvCosts , 38 Stan. L.

Rev. 271

The Role of Liability Rules and the Derivative Suit in Comotate' Law: ' A TheOretical :arid Empirical Analvsis , 71 Corn. L. Rev. 261 (1986) (with MichaerB' radley).

Reaulatory, Conflict and ej,trv Reaulation of New Fut~res Coritr~cts , 59 J. Bus. S85 (1985)~
Optimal Damaaes inSecurities Cases, 52 U. Chi. L. Rev. 611 (19a5) (with (7rank H.

Easterbrook).

The Business Judament Rule and th~ Tfans Unioncase, 4o' Bus.

Law;: 14'37 (1985).
L.

Insider TradinQ and Investment Analvsts: An Economic AnalvsIs of Dirks v. SEC 13 Hofstra Rev. 127 (1984).

Limited liability and theCOiPoration 52 U. Chi. L. Rev. 89 (1985) (withi=rankH~ Easterbrook).
Labor Markets and Labor Law Compared with Capital Markets and Corporate Law,

51 U. Chi. L.

Rev. 1061(1984)., '
Customer Protection in Futures and Securities Markets , 4 J. Futures Markets 273 (1984) (with

Sanford J. Grossman).

Easterbrook).
Easterbrook).
..I

Mandatory Disclosure and the Protection of Investors 70 Va. L Rev. 669 (1984) (with Frank H.

The Appraisal Remedv, In Corporate Law 1983 Am. Bar Found. Res. J ~75.

The Requlation of Insider Tradinq , 35 Stan. L. Rev. 857 (1983) (with Dennis W. Carlton).
VotinQ in Corporate Law , 26 J. Law & Econ. 395 (1983) (with Frank H. Easterbroo.k)~

Auctions and SunkCosts in Tender Offers 35 Stan. L. Rev. 1 (1982) (with Frank H.

The Corporate Governance Movement, 35 Va ~d. L Rev. 1259 (1,982).

103

.. ", ,'

'" "

""' ' .. ,',:",',.. : " .. , ,,: '

,"

,'

:.

" ,' '
Document 816-10
91 Yale LJ. 698 (1982)

, ,,

,

, "' '

," ::"

:~) " ~.... '

Case 1:98-cv-00126-JFM

Filed 06/01/2004

Page 12 of 14

Use of Modem Fii'1an~ Theory I" Sectlfities Fraud Cases Involvinq ActivelV Traded SeCUrities

Easterbrook).
Corporate Control Transactions,

38 Bus. Law 1 (198~).

""jI

Antitrust Suits BvTargets of Tender Offers , 80 Mich. L Rev. 1155 (~ay'1982) (with Frank
(with Frank H. Easterbrook).

The Race to the Bottom" Revisited: ' Reflections on RecentDevelopments in DelaWare
CorPOration Law, 76 Nw. Univ. L Rev. 913 (1982).
takeover Bids. Defensive

Frank H. Easterbrook).

Tactics and Shareholders Welfare 36 Bus. Law 1733 (1981) (with

The Law and Economics of Dividend Policy, 67Va. L'Rev. 699 (1981).
The Proper Role of a Tarnet' s Management in Responding to a Tendt3rOffer , 94 Harv. LRev. 1161 (1 ~81 ) (with Frank H. Eas~erbrook) (awarded prize by Emory University for best paper

written in law and economics for the year 19~1).

(1981). ,

Secondary Liabilitv Under Section 10(b) of the Securities Actof 1934 , 69 California L Rev. 80

Efficient Capital Market Theorv. the Market for COroorati6h Control. and the Regulation' of Cash Tender Offers , 57 Tex. L Rev. , 1 (1978); reprinted in K Scott and R Posner ed., Economic Perspecti~es on Corporation Law and Securiti~s Reaulation (Little Brown 1980).

Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr- PenningtonOoctrine ' 45\:1 ChLL. Rev. 8Q~197i).
Comment,

The Demand and Standing Requirements in Stockholder Derivation Actions , 44 U.

Chi.L.Rev. 168(1977).
Comment, The Use of Government Judriments in Private Antitrust Litigation: ClaYton Act Section 5(a), Collateral Estoppel. and JurvTrial , 43U. Chi. t. Rev. 338 (1976).
EDUCATION

Awarded Casper Platt Award for best paper written by a student of the University of Chicago Law School; awarded Jerome N. Frank Prize for excellence in 1egal writing while a member of the University of Chicago. Law Review, 1974 - 1977. Studied law and economics with Richard

University of Chicago Law School , Chicago, Ilfinois;J. D~ 1977, cum laude;Order of the Coif; Comment Editor, Vol. 44 University of Chicago Law Review; Approximately top 1~/oof the, Class.

Posner and other members of the faculty.
Brown University. Providence, Rhode Island; M. A. 1974 in American History.
Cornell University .

Ithaca . New York; major-American History; minor'-Economics;

B. A.

1972,

104

Case 1:98-cv-00126-JFM

Document 816-10

Filed 06/01/2004

Page 13 of 14

- 5-

Ti:STlMONY
In the Matter of Coram Healthcare Corn. and Coram. Inc.. Debtors , In the UniJed: State~eank.ruptcy Court for the Di~trict of Delaware, Case No. 00-

, Testimony of Daniel R. Fischel Re:

3299J1trough 00.;.3.300 (MpN) (December ~4, 2QO1).
Affidavit ofDariiel R;Fischei Ih, Re: Ja6kM. Webb.' Special De.putV'Rece!ver For American Eaqle Insurance cOinosnv vo EMs. Mason.-Mason Best COmPanv. loP.. DOn D. tlutsoriiAmerican Esale GrouP. Inc.. Manbl'l"PhiRilfGythne Frederick&::.Airiderson. Georae'F: Casso Richard M., Kurz. Patr:icia S. Pickard: Arthur AndersEm&Co:';;t:L:P;. and Towers. Pt!mil Forester & st Judicial xas, 201 Crosby. Inc.. D/B/A TillinQhast. hi the District COurt of TraVis County,
, District"

Cau~ No.

9g,.Q8253 (September.7, 2Q01).
i"

Declaration of Daniel R. Aschel Re: ln the 'Matter of Inauir\iCoricemina Hiah-Speed Access to the Internet Over Cable and Other Facilities: Before the Federal Communications ' Commissio~, Washington DC , GN, Docket No. 00- 185, (qeclaration with , K. Arrow, G. " Becker,-P::Cadtoo,; R. Gertner, J. Kalt, ~. $ider, an~, Gus~vo Bamberger) (~uly?4 2001).
..' r ;.

beclaration of Daniel R: Fischel i'n Re: Walter Green. on behalfof himself'andallolhers similarly situated v. Merck-Medco Manaaed Care. L.L.C. , United States bistribtCourt, S0ut~~rn Distri~of N~w.yorkt Civil ACtion No. 99 CIV 0847 (Clf?) (J~~e 18, 2901).

Te~ti~~ny of Da~iel R. Fischel in Re:Tyson Foods. lric~and lassO ACQuisition ' Co' tboration v. IBP. lnc. , In the Chancery Court of Washington County, 'Arkansas, Case No. E2001- 749-4

.(May25, 2001).

Deposition of Daniel R. Fischel in Re:Tvson Foods. Inc. and lasso ACQuisition Comoration v. lap. Inc. , to the Cl'lancery Gourt of W~shingtori County, Arkansas, Case No. E 2001- 749-4 (May 10 , 2001).

R~buttal Report of Daniel R. Fischel in Re~

Myron Weiner. Nicholas Sitnyckv. Ronald Anderson v: The Quaker and Robert,:Furrrian on, hehalf of themselves and all others similartysituated Oats Company and William. Do SmithbliiQ , United States District Cbur1;, Northern District of Illinois , Case No. 98 C 3123 (February 19, 2001).

MvronWeiner. Nict1ol.~s Sitnyckv. RonaldAnderson and Deposition ofQan iel R~ .FischeUn Re: Robert Furman on behalf offllemselves and all others simii~uty situated v. The Quaker Oats Company and William D. Smithburo , United States District Court , Northern District of ' lllinqis; Case No. 9a C 312~, (Jariuary24, 2001). ,,
Report of Daniel R. Fischel in Re:

Myron Weiner. Nicholas Sitnycky. Ronald Anderson and Robert Furman on, behalf af. themselves and all others similarly situated v. The Quaker Oats Companv and William D. SnlithburQ United States District Court, Northern District of Illinois; Case No. 98 C 3123; (December

S, 2000).

Dep()sitionof Dani~1 R. Fisc~el in ,Re: Retsky Family Limited Partnership v. Price Waterhouse. llP . United St~te$~istrictCourt~Northern District of Illinois , EastemDivlsion, No. 97 C 7694 , (October 31

2000). '
105

Case 1:98-cv-00126-JFM

Document 816-10

Filed 06/01/2004

Page 14 of 14

- 6-

Joint Affidavit of Daniel R. Fischel and David J. Ross in Re: Floyd D. Wilson. for himself and all others similarlY situated v. Massachusetts Mutual Life Insurance Comoany , in the First Judicial District Court, County of Santa Fe, State of New Mexico, No. 00101 CV-98-D2814 (August 4, 2000).
~owe Price Recoverv F~nd;' LP.. and Carl Marks Affidavit of Daniel R. Fischel in Re: Manaaement Co.. LP.. individually and deriVativelxon behalf of Seaman FurriitureCo.. Inc, v. James Rubin. M. D. Sass Associates. Inc.. Resuraence Asset Manaaement. LLC.. :SassCofPOration ,Resul"gence PartnerS,. LP.. M I). Sass CorDbrateResur~ International. Ltd~. RobertSVtliinaton. Bvrort Haney: Alan, Rosehbeta; ' Steven H; Halper. arid' Peter'McGeolioh a nd:Seaman Fumitut~co~;lnc~ i Irfthe Court o(;Chancery of the State of De1aware ihandfor~ewCastieCOuilty, A. ' No. 18013, (June ' 2000).
Testimony of Daniel R. Fischel in Re:

Bank' United of Texas; FSB. eta1. , v. United States of America , United States Court of Federal Claims, Case Number 95-437C , (October 12 and'

14;1999). '

Report ofDa~iel R. Flsche,l in Re:
1999).

Bell Atlantic COrp.. Gellco Partnership. and GTE Com. AirTouch Communications. Inc. and ' WMC Partners' LP; United States District Court, N,orthern District of California, San ~fancisco Divisio!", Case No. C99..0141- MHP, (August,

Deposition of'Oaniel RFischel in Re: Ba' nk United of Texas. FSB. et al. United'States of America , U'1ited States Court of Federal Claims, Case Number 95-437C , (September, 26 , 1999; July 10, 1999; and June 16 , 17,

1999),

Testimony of Daniel R Fischel in Re:

C. Robert Suess. et aI. , v. The United States , United States Court of Federal Claims, No ~ 90- 981C (May 15, 1999).

California Federal B'~nk v. United States , in the United Testimony of,Daniel R Fischel inRe: , Case Number 92.. 138C, , (February 4 ' and 11 , 1999). States Co~rt of Federal Claims

Deposition of Daniel RFischeUn Re:

Califomia Federal Bank v. United States , in the United States Court of F~eral Claims , Case Number 92- 138C (February 6. 1999; January 27

and 30, 1999).
Depositiqn of Daniel R Fischel in Re:

States Court'of Fed.er~I

C. Robert Suess. et al. , v. The United States , United Claims , No. 90- 981C(October27 and 28, 1998).

Deposition of Daniel R. Fischel in Re:

Connector Service Corporation v. Jeffrey BriQQs , United States District Court, Northern District of Illinois , Eastern Division , No~ 97~C-7088 (August
28, 1998).

DepOsition of Daniel R Fischel in Re:

StatesmanSavinas Holdina Corp.. et al. v. United States of America United States Court of Federal Claims, Case No. 90-773C. (May 4 , 1998 and

February 12,

1998).
106

Testimony of Daniel R Fischel in Re:

Glendale Federal Bank FSB v. United States , of America United States Court of Federal Claims , No. 90- 772C , (March 24 , 25 and 26 . 1998; , 10 , 11 , 12 26 and 27 , 1997; October 7 , 9, 16 , 17, 30 September 2, and 31 1997; December 8 9 and 10 1997).