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Bankers Trust Co. v. Publicker Industries Inc.

May 1, 1981.

BANKERS TRUST COMPANY, PLAINTIFF-APPELLEE,
v.
PUBLICKER INDUSTRIES, INC., DEFENDANT-APPELLANT



Before Oakes and Meskill, Circuit Judges, and Sand, District Judge.*fn*

Author: Oakes

Appellant, Publicker Industries, Inc., seeks to overturn a judgment of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, entered upon a jury verdict in a diversity case. The jury awarded appellee Bankers Trust Company approximately $430,000, the amount of an agreed upon finder's fee for Bankers Trust's participation in arranging the sale of Publicker's alcoholic beverage division principally the Inver House Scotch Whisky brand to Standard Brands, Inc. Ordinarily the issues raised here would not warrant discussion in a full length opinion. The points of law involved are well established and the facts, read in the light most favorable to Bankers Trust, as they must be after a jury verdict in its favor, clearly warrant recovery of the fee, which was earned after Bankers Trust had, in the words of Publicker's president (as testified to by the director of mergers and acquisitions at Bankers Trust), "done a wonderful job" and "performed (their) duty well." But we will discuss the issues raised because of Bankers Trust's application for double costs, damages for delay, and attorney's fees under 28 U.S.C. §§ 1912, 1927, and Federal Rule of Appellate Procedure 38.*fn1

Publicker's "Memorandum" on appeal makes seven arguments. Each will be briefly discussed in the order in which they are made.

1. Publicker first claims that the trial court erred as a matter of law in permitting Bankers Trust's principal witness, Mary Jo Zandy (whom the Publicker "Memorandum" refers to as "a junior employee," but who was in fact a vice president specializing in beverage and food industries acquisitions in Bankers Trust's mergers and acquisitions group), to use testimonial notes, specially prepared for trial and without a formal foundation. The simple answer to this claim, given by Judge Griesa in denying Publicker's motion for judgment notwithstanding the verdict or for a new trial, is that Zandy's "testimonial notes" were merely a chronology. They included little of the substance of her testimony, and the use of them was permitted after Zandy had indicated that they were prepared from records and correspondence "to enhance my memory since a lot of this happened two years ago," a use which was within the broad discretion of the trial court to allow. There is no required, ritualistic formula for finding exhaustion of memory. See Goings v. United States, 377 F.2d 753, 760-61 & n.11 (8th Cir. 1967); Thompson v. United States, 342 F.2d 137, 140 (5th Cir.), cert. denied, 381 U.S. 926, 85 S. Ct. 1560, 14 L. Ed. 2d 685 (1965); 3 J. Wigmore, Evidence § 765 (Chadbourn rev. 1970). See generally Fed.R.Evid. 612.

In making its argument, Publicker relies on NLRB v. Federal Dairy Co., 297 F.2d 487 (1st Cir. 1962), where the court was "shocked" that a witness had read from a prepared manuscript whose nature was misrepresented to the trial examiner, and counsel had then argued that a witness "has the absolute right to use anything to refresh his recollection." Id. at 488. The court in that case nevertheless granted enforcement of the NLRB order challenged, noting that "it is not of such stuff that appeals are made." Id. at 489. That court also stated the general rule that a witness' memory must be exhausted before his recollection may be refreshed by a document, but pointed out that the purpose of the rule is to avoid having testimony improperly suggested to the witness. Id. at 488-89 & n.3. There was no impermissible suggestiveness in the instant case. So far as appears the witness referred to the chronology only two or three times, and a comparison of the Zandy testimony with the chronology demonstrates clearly that she was not, as Publicker suggests, "reading from a script."

Publicker further argues for reversal on the basis that "the trial court made clear at the very beginning of Ms. Zandy's testimony that inquiry into the foundation for her use of the chronology of events would not be tolerated," making it futile to cross-examine her about it. But we find no such ruling, certainly not counsel's statement that "I would like to know if the witness can testify first without this or if she is using this document to refresh her recollection," and the court's response, "Let's not worry about that, please. Go ahead." Publicker's counsel was in no way prevented on cross-examination from delving into Zandy's memory or her need to use the chronology. Although at one point Publicker's counsel indicated that he wished to move for production of the records underlying the chronology, after the court stated that it wished the application to be made out of the presence of the jury since it was a "discovery request," the application was never made.

Publicker also rather weakly contends that its cross-examination of Zandy in respect to the chronology, as provided for in Federal Rule of Evidence 612,*fn2 was restricted, but fails to point out any such instances in which questions on relevant points were not allowed. Counsel for Publicker questioned Zandy both as to her sources for the document and as to facts noted in it. Publicker was permitted to inspect the chronology, but chose not to have it introduced into evidence for the jury to see.

The foregoing is the strongest of Publicker's seven arguments for reversal.

2. Publicker next contends that the trial court erred in dismissing its counterclaim for an alleged violation of its "right to publicity." This claim apparently was based on Bankers Trust's publication in the Wall Street Journal of an advertisement mentioning Bankers Trust's handling of the Publicker-Standard Brands deal as one of six mergers and acquisitions in which it had participated in August 1979. On the record below, when Publicker's counsel was asked to identify his theory of law on the counterclaim, he properly disclaimed reliance on section 51 of the New York Civil Rights Law, given its application only to living persons. But as his "best theory" he produced only one, inapposite case, Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.2d 556, 161 N.E.2d 197, 190 N.Y.S.2d 977 (1959), an unfair competition-misrepresentation case which gave the district court nothing with which to work. While we would be justified in affirming the dismissal on this ground alone, we additionally fail to see that Publicker has stated any claim at common law or could establish any damages, since Bankers Trust, by truthfully naming Publicker as one of its clients, did not appropriate Publicker's name in a way that infringed any economic interest of Publicker.*fn3

3. Publicker argues that the trial court's charge respecting the credibility of the key witnesses was prejudicial error. It claims, by way of post-trial affidavits of its counsel, that Zandy was a nervous witness while Publicker's president, Robert Leventhal, was calm on the stand. In light of this, the standard charge bearing on credibility, as set forth in the margin,*fn4 is faulted in Publicker's "Memorandum" on appeal as one-sided. No challenge was made to this portion of the charge before the jury retired, however, so the objection was not preserved for appeal. Fed.R.Civ.P. 51.*fn5

Publicker also argues that the court's inquiries of Mr. Leventhal, while the latter was being examined by counsel for Bankers Trust, involved improper ridicule and embarrassment:

Q. Did anything happen in the month of April 1979 to make you more flexible about your price and your terms for the liquor business?

A. More flexible?

MR. WEISS: Objection. There was no foundation he ...


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