Mr Bogatz
138 The central opinion of Mr Bogatz that falls for consideration is his opinion that the word "liabilities" in § 92A.250(1)(d) encompasses only monetary liabilities, and does not encompass non-monetary regulatory obligations.
139 Mr Bogatz gave his evidence in an open manner. He generally answered questions directly, and did not attempt to avoid questions that challenged positions essayed in his report. As I have noted, Mr Bogatz was asked to give opinions that sometimes strayed outside the identification of the content of foreign law, as a result of which a direction was made under s 136 of the Evidence Act in relation to some passages in his report.
140 There were some aspects of Mr Bogatz's reasoning that were not sufficiently explained. For example, Mr Bogatz was asked about the meaning of the word "duty" as that term was used in the merger agreement, in combination with NRS Chapter 92A. Mr Bogatz began by noting that there was no definition of "duty" in NRS Chapter 92A. He then immediately proceeded to the proposition that the term "duty" in Nevada law "applies to contexts such as fiduciary obligations". Mr Bogatz gave two examples of where the word "duty" is used to refer to what he cast as fiduciary duties. Without any further analysis, Mr Bogatz then said that, because these two sections related to relationships between parties, a Nevada court would not conclude that a foreign regulator's information request is a "duty". The reasoning behind this analysis, and how it accords with the principles of interpretation that Mr Bogatz identified, was otherwise left unexplained.
141 Mr Bogatz's reliance on Nevada gaming legislation was another area where the path of reasoning supporting his opinions was not always apparent. Mr Bogatz relied on analogies with Nevada gaming legislation in his answer concerning NRS § 92A.250(1)(c), and during cross-examination on the public policy of Nevada. Clearly, the law relating to business transactions involving gaming in Nevada lies squarely within Mr Bogatz's field of experience. But the logic of Mr Bogatz's reliance on Nevada gaming law was not persuasive. For example, in the concurrent evidence session, Mr Bogatz explained that the reason he referred to Nevada gaming law in his report was that the present case deals with regulatory law, so he looked at regulatory issues in Nevada as they pertain to mergers. This led him to consider gaming law because, in Nevada, the regulatory consequences of mergers are usually related to gaming regulation. Mr Bogatz's reasoning appeared to proceed by identifying that Nevada courts are keen to uphold Nevada's policy of not permitting gaming rights to be transferred by corporate
