Prosper has sued Greenwich Insurance for failing to defend in class action

[onthefence]

So prosper has two sets of separate lawyers out to prove that Prosper illegally sold securities at the same times.  It sounds like both law firms will be able to save themselves some work by checking out each other's filings.

[Beerbud1]

Couldn't Prosper file a complaint with the Consumer affairs department of the California department of Insurance?

[xraider]

Prosper is between a rock and a hard place with all those consent decrees.

[xraider]

Prosper's insurer, Greenwich Insurance Company, has answered the complaint.  As I expected, it cited to the exclusion for unregistered securities, saying the exemption from registration language only applies if there has been a public offering of stock or a public sale of debt securities.

Greenwich also cited to the exclusion for intentionally dishonest, fraudulent or criminal act or omission, or willful violation of law.

The (second) Fourth Affirmative Defense (attornie speak for "why we're not liable") is particularly interesting.  It states:

[Prosper's] claim for coverage under the Policy is barred and/or limited in part by [Prosper's] May 28, 2008 Warranty and Representations Letter, in which [Prosper] made certain false representations, and then stated that it was agreed and understood that if such claim, civil or criminal litigation, administrative or regulatory proceeding or arbitration, including but not limited to any investigation, or knowledge information [sic] exists, then any such claim, civil or criminal litigation, administrative or regulatory proceeding or arbitration, including but not limited ot any investigation arising therefrom, or arising from such knowledge or information is excluded from additional limits being purchased under the proposed policy referenced above.

I'd like to see that letter!

[NewHorizon]

I'd like to see that letter too.  But I can't imagine that Greenwich has any motivation for divulging it - unless, I suppose, the plaintiffs in the class action suit demand to see it hoping to find more damaging stuff.

The first case management conference is scheduled for 1/22/2010.  It's been projected that Prosper will run out of cash at the end of 2009.  Would a case management conference still be held after the plaintiff files for BK?

[xraider]

That letter will be filed by Greenwich when it brings its summary judgment motion.  I would expect one side or the other to move for summary judgment quickly.

[112233]

"move for summary judgment" = no more chit chat. we want the judge to decide who wins now?

[ira01]

I'd like to see that letter too.  But I can't imagine that Greenwich has any motivation for divulging it - unless, I suppose, the plaintiffs in the class action suit demand to see it hoping to find more damaging stuff.

I don't see how it would be privileged.  So the class action attorneys should subpoena it.

The first case management conference is scheduled for 1/22/2010.  It's been projected that Prosper will run out of cash at the end of 2009.  Would a case management conference still be held after the plaintiff files for BK?

If Prosper files for BK, the class action would probably be stayed pending resolution of the BK.

[Fred93]

"move for summary judgment" = no more chit chat. we want the judge to decide who wins now?

IANAL, but... no, not exactly.

Move for summary judgement == Lawyer saying "Hey judge, the facts are so damn obvious at this point that we don't need a trial.  I just win.  Right?"

This tactic is very common.  It is common because sometimes the judge goes for it, and there's little down side.  Lawyers try it, even if they don't think it is likely that the judge will agree, because hey -- he might.  And if he does, well that's a big win.

The judge usually says "Nice try, but no." and they go on and have a trial.

[ira01]

"move for summary judgment" = no more chit chat. we want the judge to decide who wins now?

IANAL, but... no, not exactly.

Move for summary judgement == Lawyer saying "Hey judge, the facts are so damn obvious at this point that we don't need a trial.  I just win.  Right?"

This tactic is very common.  It is common because sometimes the judge goes for it, and there's little down side.  Lawyers try it, even if they don't think it is likely that the judge will agree, because hey -- he might.  And if he does, well that's a big win.

The judge usually says "Nice try, but no." and they go on and have a trial.

This is pretty much right, except the downside is that summary judgment motions are very expensive to prepare -- a lot of time goes into them.

A motion for summary judgment can only be granted when there is no genuine issue of material fact.  Judges cannot weigh the evidence or make credibility determinations -- if there is basically ANY evidence supporting the non-moving party on a material issue (one that matters), the motion is denied.  For example, if the case is a car accident, and 100 independent witnesses all say that the light was red, but the one party says the light was green, summary judgment cannot be granted because it is up to a jury to determine disputed issues of fact.