Rosen certainly doesn’t want to deal with the transparency/truth. One of his arguments against the examiner is the debtor has conducted “meet and confer” with EC, and even agreed to offer the EC its tightly guarded “work products”. But the question will be: should we trust him? After the repeated roadblocks/refusals by the debtor to allow the EC access the discovery information, no shareholders are likely to trust the debtor/Rosen this time around. It was also Rosen who stopped the Judge from making a critical SJ ruling on $4b deposit by promising the court a forthcoming “global settlement agreement.” It turned out the so-called “global agreement” was a complete one-sided back door dealing among the “big and powerful”, giving away billions of dollars of the estate assets to its adversaries, and benefitting only a handful of bondholders and creditors. There is no way, now how for the shareholders to trust Rosen and the debtor.
Rosen’s another argument is, by borrowing the Judge’s words, that “… this debtor has been investigated to death” and “… no stone left unturned.” As I said in an earlier post, while it’s true that numerous investigations had been conducted by multiple parties, the investigations are far from impartial and complete. Taking the widely publicized Senate (SPI) hearing as an example, it completely ignored the role of jpm in Wamu takeover. Since jpm is the actual buyer and holder of the debtor's crown jewel, given the facts of “Project West”, and other suspicious conducts between jpm, fdic, media, rating agencies discovered through the debtor’s own half-hearted, incomplete discovery, it’s both necessary and reasonable for the EC, or a court appointed independent examiner to investigate jpm’s role and continue the unfinished discovery task. (Yes, the debtor had conducted its own investigation into jpm. But why did the debtor abandon the efforts and give up claims? What are the processes and reasoning behind the current deal/agreement?) Moreover, SPI and other investigations uncovered no detailed financial data before, during, and after the time of the seizure. As a matter of fact, we still don't know what's actually sold and bought by involved parties (e.g. where is the all illusive 3.1a). To debtors' dismay, SPI investigation (and other investigations including the debtor’s own) raised more questions than answers. EC in its motion pinpointed numerous deficiencies in previous investigations, as well as the difference between politically motivated investigations (on “systemic risks”) and EC- required more targeted, specific discovery. Contrary to Rosen’s charge, EC’s arguments in the examiner motion are fully backed up by the facts, and I hope, the Judge will recognize the merits of examiner motion, and be convinced of the need for true investigation.
Rosen’s intention is to move to the confirmation hearings of DS/POR as fast as possible while delaying the discovery/examiner issue as long as he can. At the 6/3 hearing, the Judge showed she really cares about the importance of openness, transparency, and fairness. By my observation, she was close to say without actually saying it: no discovery, no DS/POR. I hope that the Judge will have the courage and wisdom to appoint an independent examiner in order to uncover and maximize the value of estate assets to the benefits of all impaired parties, or at least, allow the EC time to complete its own investigation, and meanwhile allow the 3rd Circuit court sufficient time to hear the appeal case before DS/POR confirmation happens if she chooses to delay or deny the examiner motion.
June 17th will be the moment of truth for all parties, even for the Court. The bottom line is, can the Judge uphold the jurisprudence and due process: Transparency/Discovery/Examination first, then DS/POR. Not the other way around.
Fingers crossed.