http://messages.finance.yahoo.com/Stocks_%28A_to_Z%29/Stocks_W/threadview?m=te&bn=86316&tid=733579&mid=733579&tof=13&frt=2#733579
Many people were dismayed by Susman’s February billing statement. They viewed it as lack of efforts on EC counsel, or something worse. On the contrary, I always thought I can make a case for it in a positive way easily.
This is February 2011, not April, or May, or June 2010, when Susman just joined EC, and had lots to learn, study, investigate, and strategize from ground up. It was no wonder they logged more hours and billed more dollars during that long period of time (month to month till 12/2010). In my view, most legal and factual researches, including valuations, had been done before December hearings of 2010. So I said (in “Defending EC” 04/06), “The judge said she is not going to re-litigate most issues in GSA. She also said some issues involving JPMC and FDIC are outside her jurisdiction. I think this explains why EC legal counsels logged so few hours during February billing statement. It doesn’t mean EC is giving up. It just means, on a number of important issues, the battle is now moving to District Court for appeal. There is not much EC can do about that except petitioning District Court to expedite the process. Meanwhile, in my view, EC counsels have been immersed with appeal issue already and well prepared for it.” Meanwhile, EC fixates its focus on a few narrower but critical issues such as WMMRC valuation, insider trading investigations, FJR, etc, which the court had singled out as troubling in her January opinions. (Please keep in ind that those issues are narrower in scope but their ramifications are wide open). If EC counsel continue to spend lots of time on “old” GSA issues (which the court said no re-litigations”), I would have real concerns because it could mean EC didn’t do their homework in the first place.
People may argue, you think EC has placed its focus on WMMRC valuations, why didn’t we see much evidence in the billing statements? Well, I said Seth Ard is likely EC’s “appointed man” on WMMRC/NOLs, based on my observation of him since 10/2010 (He is also heavily involved in insider trading investigations, based on 2/8 and 3/21 presentations). But, EC’s real financial/valuation expert is PJS, whom we shouldn’t forget. PJS files its billing statements separately and has done works mostly in the background. When Rosen in the court on 03/21 complained about and asked for EC valuations, he didn’t ask for Susman, or Justin, or Ard valuations, but PJS valuations. If you follow my logic, Susman’s recent billing statements may not be as alarming as you thought.
Regarding Susman March billing, there are several interesting aspects. (1) The timing of first entry for “settlement offer” was 3/20, one day prior to 3/21 DS hearing. It’s possible this was one of the reasons for EC low key performance at the hearing, but most likely, I maintain my previous position that this was a calculated move by EC because it knew DS will get a pass due to low standard, and because it also knew where the major battles lay ahead (namely WMMRC valuation/ownership, insider trading, FJR, especially confirmation hearings.) Please note, on the same day (3/21) when Ard was at DS hearing, Sargent was “preparing for hearing on plan confirmation by reviewing material related to valuation of reorganized debtor.” Again, on the following day (3/22), Sargent was “conferring with trial team members re hearing on disclosure statement, modifications, and strategy for preparation for hearing on confirmation.” Those entries support my analysis of “calculated move.” EC and counsel obviously knew what they were doing.
(2) I’ve said, and I maintain this observation, that, “[deposition] delays are a sign of their [SNHs] knowing they’re guilty. If this is the case, then the delays are necessary but not a solution (for SNHs). So, a solution has to be found. It is also my view that the solution cannot be unilateral. It has to be mutual or multilateral.” Is there any correlations between deposition delays and “settlement offer”? It’s too early to tell. The delays may be just that, delays, and one of the possible solutions is just to let deposition going forward (like what happened to Aurelius on 5/5). Again, it’s too early to tell. We’ve to wait and see.
Aurelius is certainly interesting though. I’ve noticed on the billing (and in court too), EC generally refers to SNHs as a group. For instance, on multiple billing entries, EC records “Reviewing settlement noteholders document productions.” Or “Reviewing materials produced by settling noteholders and summaries.” On one occasion (3/22), it records, “Reviewing debtors' supplemental production and Aurelius, Owl Creek and Centerbridge productions.” But most interestingly, after hours (4 hours to be exact) of “Reviewing materials produced by settling noteholders and summaries” and “Reviewing debtors' supplemental production and Aurelius, Owl Creek and Centerbridge productions” on 3/22, the next day (3/23) Ard singled out Aurelius, and spent nearly 5 hours (4.9 hrs) on “Reviewing Aurelius production.” Again on 3/25, Ard continued pondering on Aurelius, “Reviewing Aurelius and Owl Creek productions” (4.2 hours). It seems to me that Aurelius has something interesting that attracted EC counsel’s attention, and therefore, within this context, in my view, EC wanted Aurelius deposition going forward on 5/5. I caution people against reading too much into 5/5 Aurelius deposition, especially relying on unreliable “price movement” post deposition to gauge the deposition results. The fact is we don’t know what happened at deposition. We don’t know the content of documents being reviewed by EC beforehand, and we don’t have the necessary context to make sensible judgment. For instance, a seemly innocent exchange (Q&A) in deposition, when placed into proper context, can suddenly reveal the guilty side of an answer. Besides, I highly doubt there were any leaks out. We shouldn’t frighten ourselves with wild speculations needlessly.
(3) I said somewhere we saw at the best only half of EC actions. I define the “unseen half” not as things that have not happened or waiting to happen, but activities that had happened or are taking place behind scene. According to March billing, there was an offer or settlement proposal. It’s interesting to note that on the same day (3/28) when Justin was “Conferring re offers and discovery” and L. Godfrey “Reviewing trial team email re settlement offer, etc.” Ard was “Reviewing possible avenues of recovery for equity under current plan”. It indicates there are some sort of talks going on behind scene, but EC isn’t satisfied with whatever on the table, and the case is not over by a long shot. It also means EC is working hard to maximize recovery for equity.
(4) The most interesting thing on 03 billing is the entry “Researching potential extent of disallowance against settlement shareholders.” (Ard, 3/31, 2.40 hrs). To me, it indicates we have gotten some goods on insider trading charge. Otherwise, it’s premature to explore the “potential extent of” punishment for offense. I also noticed after more than two month investigation, beginning on 3/21, there is an increasing number of entries for researches on interest rate (FJR) issues, valuation of reorganized debtor, law of disallowance, and law of good faith settlement. It seems EC has become more confidence in investigation as time goes by.
This insider trading thing is now looking more and more like Sokol situation (one of Warren Buffet hier apparents) . Sokol made recommendation of purchasing Lubrizol Corp (in our, SNHs designed GSA and asset distribution structure); he participated in Lubrizol acquisition discussion (in our, SNH even delivered GSA term sheet to JPMC); meantime, he purchased Lubrizol stocks (in our case, SNHs acquired wmi debts). If the court fails to recognize insider trading frauds and apply proper punishment in our case, I hope people won’t blame EC for not making the effort, but please go screaming at the corrupt system.
(Disclaimer: the content of this post is my observation, analysis, and opinions of on going wmi BK case based on information available to me and wmi equity holder public. They should not be viewed or used as investment advice in any form or shape. I’m neither in financial nor legal profession, and far from qualified to give out investment advices. Patience360)