p. 827. 10 . The Producers’ counsel soundly pointed out at oral arguments that delivery of the contracted commodity may occur under a futures contract. The Seventh Circuit Court of Appeals, however, observed that: Although futures contracts specify delivery as a possible method of satisfying the short's obligations, it is much more common for such contracts to be closed out by the "buyer’s” taking an offsetting position in a new contract identical but for its price. Dunn v. CFTC, 519 U.S. 465, 472, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, supra, 456 U.S. at 359 n. 18, 102 S.Ct. 1825 (only 3 percent closed out by delivery); Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 971 (4th Cir.1993); Cargill, Inc. v. Hardin pp. 1221 (N.D.Iowa 1994) (<HOLDING>). 13 .Such factors included whether the
holding that belated affidavit could be considered where affiants memory was recently refreshed by photographs which he had not been shown during deposition holding actual malice was not shown although defendant relied upon a single affidavit as a source without knowledge of the affiants reputation for veracity or lack thereof holding that plaintiffs affidavit submitted at summary judgment stage and contradicting earlier deposition testimony should not be considered holding that hearsay in affidavit which would be inadmissible in evidence at trial could not be considered on motion for summary judgment holding that a deposition that was not presented to the trial court could not be considered on appeal