Houyhnhnms in Chancery


From Delaware Vice Chancellor Glasscock in Thursday's Preston Hollow Capital LLC v. Nuveen LLC:

Plaintiff Preston Hollow Capital LLC ("Preston Hollow") and Defendants Nuveen LLC, Nuveen Investments, Inc., Nuveen Securities LLC and Nuveen Asset Management LLC (collectively, "Nuveen") are all institutional investors in municipal bonds. Preston Hollow and Nuveen are competitors in that market. Preston Hollow alleges that Nuveen tortiously contacted institutions that Preston Hollow had business relationships with, lied about Preston Hollow's business practices, and threatened to remove its considerable business from those institutions if they continued doing business with Preston Hollow. Nuveen denies that it made false representations about Preston Hollow.

In Gulliver's Travels, Swift puts Gulliver in contact with the Houyhnhnms, beings so moral and rational that they cannot comprehend the art of lying. They do not even have a word for the concept, and are forced to describe a lie as "the thing which is not."

After hearing the testimony of some of Nuveen's witnesses, one might think they were such beings. Their circumlocutions for falsehoods—"hedge," "bluff," "exaggeration," "role-play," "scenario," "overstatement," "blustering," "short-cutting," "puff," "shorthand," "overblowing"—in situations where more quotidian creatures would simply say "lie," might make one doubt that the latter word is in their vocabulary. Their testimony was generally that institutional investors and their bankers speak in an argot of forceful misstatements that all parties involved know is posturing, so that no real untruth is conveyed. Perhaps. Far more likely is that institutional investors, like the rest of us Yahoos, make statements of fact, true or false, with the intent to be believed.

In this post-trial Memorandum Opinion, I find that Nuveen used threats and lies in a successful attempt to damage the Plaintiff in its business relationships. Accordingly, Nuveen is responsible for the tort of intentional interference with business relations. I find the equitable relief sought by Preston Hollow is unavailable, however.

My reasoning follows….

NEXT: Today in Supreme Court History: April 12, 1945

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  1. See also this week’s Lowering The Bar post about police jargon: https://loweringthebar.net/2020/04/agents-speak-impenetrable-jargon.html

    There the court resorted to the following footnote:
    The agents involved speak an almost impenetrable jargon. They do not get into their cars; they enter official government vehicles. They do not get out of or leave their cars, they exit them. They do not go somewhere; they proceed. They do not go to a particular place; they proceed to its vicinity. They do not watch or look; they surveille. They never see anything; they observe it. No one tells them anything; they are advised. A person does not tell them his name; he identifies himself. A person does not say something; he indicates. They do not listen to a telephone conversation; they monitor it. People telephoning to each other do not say “hello;” they exchange greetings. An agent does not hand money to an informer to make a buy; he advances previously recorded official government funds. To an agent, a list of serial numbers does not list serial numbers, it depicts Federal Reserve Notes. An agent does not say what an exhibit is; he says that it purports to be. The agents preface answers to simple and direct questions with “to my knowledge.” They cannot describe a conversation by saying “he said” and “I said”; they speak in conclusions. Sometimes it takes the combined efforts of counsel and the judge to get them to state who said what. Under cross-examination, they seem unable to give a direct answer to a question; they either spout conclusions or do not understand.

  2. I read a lot transcripts of police officer testimony. The excerpt you posted captures a lot of what I see. I mean, “observe.” In fact, I have to be careful not to let their jargon slip into my statement of the facts when briefing a case.

    1. Do you have your own jargon, though?

      1. arch1: No no no, jargon is what the other guys speak — what we speak is perfectly ordinary English.

        1. So so true! It is hard to speak to others about our own work without throwing in jargon which we have been using for years. But I have found that I can do it, if I speak slowly and think for a few seconds before each sentence or paragraph, which seems a strange thing to think of in relation to speaking.

  3. Is it balderdash, doublepeak, gibberish, gobbledygook, Newspeak, rigamarole or mumbo jumbo?

    1. It’s jiggery-pokery.

    2. Tommyrot!

  4. Gulliver’s Travels is full of concepts and images and memes appropriate to today. In one of the nations I may recall, who serve as attorneys do so by flapping inflated bladders on the mouths of the elect. That is very appropriate I believe.

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