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I haven't seen anything of substance to contradict what grudge denke has so eloquently laid out in the PIERS -vs- LTWs argument, but I may add some pure speculation. (I've been waiting on rebuttal from the lawyers on board, but they haven't touched on this)
Contrary to popular belief, 'a win is not a win'. A win that subordinates the ltws to class 18 is a loss. If that happens, the 'ring fenced' claims reserve goes by the way side, and the piers go unaffected in the current waterfall scenario (since the debtors has done a pathetic job disclosing this point). Therefore the D&O insurance availability question becomes paramount, (assuming the 'win' is predicated on a legal theory that triggers insurance coverage).
Although I take no position of the probability of success of a win that lands the LTWs in class 12, if that win was predicated on a D&O covered claim, the Debtor's fiduciary duty to the PIERS would require that the LTW claim be paid from said insurance coverage. If not, then this may give rise to a claim from the PIERS in a like amount. (And while I make this assertion, I know full well that adherence to 'fiduciary duty' in a bankruptcy proceeding is about as common as seeing a UFO, and I take this position from experiencing it first hand.)
Furthermore, the assumption from CRT and others is that the CS/FJR argument will result in the PIERS 'paying over' the difference in the CR interest and the FJR interest. This may or may not happen, and the PIERS have representation in the current mediation.
One theory, that has been passed along to the indenture trustee, is that once the Debtors pay the senior noteholders in 'full' according to the plan, then that is the point at which the debtors have fulfilled their legal obligation as a core issue within the bankruptcy laws. As Walrath determined as a matter of law, the FJR is to be used. Therefore the 'payover' issue is a non-core proceeding that is subject to Stern v Marshall, which in a nutshell, states that the bankruptcy court can not enter a final order that includes a non-core dispute determination, as this authority is reserved for Article III judges. Therefore, this could be an impediment to a confirmation. Furthermore, it could be argued that since the recipients subject to receiving the 'payover' have already voted to accept whatever interest rate as found by the court prior to the FJR determination, that they have waived any claim to a 'payover' and have agreed to a 9019 settlement via their prior vote on the plan. Thus, if the PIERS can take this issue up outside of the bankruptcy court, they could possibly use the doctrine of Res Judicata to defeat a 'payover', and/or argue that since the FJR rate is the 'legal' rate within the bankruptcy laws, to the extent a 'payover' is designed to usurp bankruptcy law, then the provision would be void ab initio.
I'm sorry sir, it will never happen again. I'm patiently waiting for alternative theories from those folks though, that's if they can add anything worthy of consideration.
Poppycock, non-sensical, bloviation, balderdash, rubbish, nuclear conjecture.
Sir, I'm going to have to ask that your reveal your bar number and credentials to verify your ability to make such conclusions and theories.
lol
I'm pretty sure a claim can be satisfied using multiple years. Furthermore, my understanding is that use of the D&O comes on a first come, first serve basis, and when its used up, that's it. Therefore it is important that if the LTWs prevail and can use the D&O, they do so before the Equity Committee/Liquidation Trustee makes claims against the same D&O.
I don't think that will be necessary. I think we're good now.
sto-
Got your message, 10-4. You wouldn't believe what happens behind the scenes. I'm to cheap to be able to reply with PM's. Thanks.
You didn't want me to use your proper name, did you?
I said parts of the warrant agreement were 'clear as mud'. Mud ain't clear Dave. Therefore, parts of it are ambiguous. Never said it wasn't. I said some parts were clear. You know, splitting hairs and all, like lawyers do.
Given that you deal with criminals every day, defending them, I can see why everyone you run across that you can't drill down in a matter of minutes lends to your believing they have an 'agenda'.
Nope. Some folks just have different views. But that doesn't make them a crook.
I think me and you are done now.
I have, without a scintilla of doubt, more experience in the BK arena and complex civil litigation than you do. It's okay Dave, I don't hold it against you.
If ever I need some guidance on the criminal side, I'll give you a shout.
A parting word of advice. Don't ever pull that 'I'm a lawyer and you stayed at a Holiday Inn' junk on someone you don't know. Unwise.
I'll even hold the salt, good day.
Let me help someone remember.....
I am an attorney, but do not deal in corporate, bankruptcy, securities or complex litigation. I am simply a criminal defense lawyer (which may give me an inside view to the thinking from our adversaries).
Hmmmm. Yep, that's the lawyer I'm going to listen to, huh Dave?
****YAWN**** Strike a nerve with the dallas elite? lol
You're exactly right, my comment was crystal clear. Now what does that have to do with the price of tea in china or the outcome of a summary judgment motion? Nothing.
I told you to go back and look at my previous posts about the clarity of the warrant agreement. That may prove fruitless, as a lot of my posts are deleted.
I said the wording in parts of the agreement is as clear as a bucket of mud.
Which is contrary to one particular poster's assertions about their clarity.
I never gave my point of view, really. It has been assumed.
I never said the entire thing was clear, quite the contrary. I suggest you use some of the those lawyering skills and look back as some past posts.
I always get a kick when a 'lawyer' comes forward doing his best with a gotcha question. Motions for summary judgment....wastes of time....defeated by a mere scintilla of contrary evidence. I guess I needed to back up and explain the derivative of the potential liability in my earlier response to you. LOL
There's all kinds of lawyers. I usually don't pay any attention to them. Unless they practice BK law.
Once again, you're too kind in your assessment, imo. You had it at 8, when I had it at 2 (and i was being nice and rounding up), while this was trading around 30+ cents.
Seems like folks would be happy with your 8 cent valuation now. Are we at 8 cents yet? lol
Commercial general liability insurance and Directors and Officers (D&O) insurance are 2 different animals, but i really don't care. You say you discussed it, fine. I'll believe you.
But it's like this. Someone comes on here offering a different point of view to the herd mentality, and then they become the target of 'you're with them, i think you're a crook, what are your motives' and all that bs.
I'm fine with that too, if you are. I don't mind reading misguided uninformed responses and directives. But I don't want to hear any whining once I blindside someone's tunnel vision, and elect to throw a dab of salt in the wound. I think it's fair play since my motives have already been questioned in prior inquiries.
I've seen a lot of conjecture on outcomes, but adding the BOD to the suit most likely not only added another avenue to recovery, but added the most likely avenue to recovery. Very few understand how important that was. And that is a topic of conversation that everyone has been dancing around lately but can't seem to put the pieces together.
I'm inclined to not explain it, since I'm a crook and all, no one would trust it. LOL
That was a directed reply. The D&O option only came available after the complaint was amended.
No that it matters, but i failed to see any of that alleged conversation.
I've never made any proposals and I've never offered any conclusions of law or proposed finding of the court. You all did. I simply raise points to which I receive the 'ol "your a plant, a crook, a SNH spy, a this, a that". Nope, not at all. I've got a good idea on how this should shake out and I certainly know from experience that the court's decision is not a lead pipe cinch that it will be correct.
I've never said it isn't right, never said a sham 363 is kosher. Just living in reality, not fantasy.
To answer your question about passing on the 'value' with worthless shares, I'll offer this:
Court finds no breach of fiduciary duty, affirms claim of 337, puts ltw's in class 18. This knocks out P's, K's, and Commons. LTW's get one share of newco WMMRC (reorganized WMI) per LTW.
There you go. Paid in common shares. LTW holders are now the sole owners of reorganized newco.
Didn't think of that, did you?
EDIT:
And I'll even off this tidbit. Say the court finds a breach of fiduciary duty. Did any of you ever consider that the 337 million may end up being paid with D&O insurance, thus effectively adding 337 million to the waterfall for everyone else?
Didn't think of that either, did you?
I think I'm done for the day. Folks need to do their own DD.
There isn't any interpretation to it. It is plain as day. You wanted to see it....i showed it to you.
I've never said that there may not be potential liability.
This is an interpretation and legal conclusion from you:
Because of potential liability
anything else?
edit: because of a genuine issue of fact, which is liability, which is what dro cant figure out
try docket 6701 and page 26 of this:
http://www.kccllc.net/documents/0812229/0812229110208000000000005.pdf
including the footnotes
anything else?
Retaining 100% of the damages (in cash) is not the same as passing along 85% of its 'value'.
It can not be any clearer. 100% of the recovered damages is property of the estate. How they transfer value is something totally different. You are putting the cart before the horse. You are trying to say that 85% of the damages is directly yours. Not so.
Yawn, look again. Tell me what is taken out of context.
"We will retain control of the litigation against the government and will
retain 100% of the proceeds of any recovery of damages from our litigation. The litigation will remain an asset of Dime Savings"
Because people are selling. Next question please.
Rights of LTW Holder
We will retain control of the litigation against the government and will
retain 100% of the proceeds of any recovery of damages from our litigation. The litigation will remain an asset of Dime Savings. We have reserved the right,however, to pursue this litigation in any manner we deem appropriate. The LTW holders will not have any rights against us for any decision regarding the conduct of our litigation or the disposition of our claim for an amount less than the amount claimed in damages in the ongoing trial in the Claims Court,regardless of the effect on the value of the LTWs.
There it is, straight out of your favorite quoted prospectus. (It's a little farther down from where you stopped reading) I didn't say the LTWs didn't have a recoverable claim.
That would be incorrect thinking. The LTWs were given an estimated claims reserve of 337m that was included in the estimated claims pool for the general unsecured claims,,,,,which is ahead of class 16 in class 12.
If 'ifs and buts were candy and nuts'. WMI held control of the litigation and the proceeds. Read the prospectus some more. They can give it away if they want to. It's gone and isn't coming back.
8 cents looking like a double now....triple next week?
What exactly are you trying to say? 18 gets paid after 16? Of course. The DS you refer to was before the ruling on the FJR, which makes the 73 or 37% or whatever go to 100%, but that depends on contractual subordination outside of bk law.
The anchor litigation is gone, bye bye, got it? In the GSA that the judge has already gave the nod to. Nothing to do with the waterfall as it currently stands.
SNH's may have thrown out some term sheets, but it is the debtor who made it happen.
The piers are preferred stock in a sub trust call WMCT 2001, which was set up to hold debt of WMI. Therefore the piers are treated as debt. LTWs with an allowed debt/liability claim = class 12. Allowed equity claim = class 18. Piers sit in the middle in class 16. The piers were the fulcrum for some time, now it's the p's and k's, albeit not by much.
Funds disappear fast. For example, when one lawyer sends out an email, then 25 more read it, something so simple costs a ton of money. .5 hour to prepare and send simple email, .1 hour to document so you can bill for it = .6 hour for email. 25 recipients read email, .1 hour for each, then .1 hour to document for billing. All at a blended rate of $600/hr. That's $3,360 for one lousy email(and a cheap one at that) than can breed a dozen more. Not including research to try to figure out what it meant. It's nuts. You get all these law firms involved, and then they get every tom dick and harry that works there copied, even though they don't need to, to bill the estate. It's a racket, but the nature of the beast.
If a settlement and plan is not confirmed in short order, the piers will once again be the fulcrum security. Running out of water to fall.
PIERS protection? How so, a nonsensical conspiracy theory? The LTWs have a claims reserve established for their consideration and that is reflected in the current POR to the detriment of the PIERS.
The PIERS will get 100% because of the FJR ruling (for a limited amount of time). But the debtors may try to do some bill collecting for the benefit of the noteholders concerning contractual subordination.
Right now your equity committee is chewing through any class 18 payout.
The 'intent' is the whole enchilada, in a sense. Your words speak for themselves.
Exactly who is trying to engage who? What's the matter, folks coming out of the woodwork with some doubts?
A-D = Irrelevant
E = No, but maybe you should look at the 12/29/00 prospectus that says you get common shares.
F = Yes.
G = Dimeq is not the fulcrum security.
Irrelevant, see below, as the plaintiffs don't have any burden, lollollollloll.
You're right, I'm clueless.
With your commanding knowledge of bankruptcy law and apparent undisputable evidence of wrongdoing, I suggest you file a Rule 60 motion, since you have standing, that will enable the court to unwind the GSA to the benefit of the LTW holders.
Bravo.
Nice comments. If you guys are so sure with your legal conclusions, may I suggest you bet the farm.
I'm still waiting for someone to explain away why it was made public via the prospectus, original and amended agreement, several 8K's etc, that your value you have a claim to will be paid in common stock shares.
Although the argument can be made the BOD should have made an adjustment to guarantee payment of the value via other means, such as cash, they did not. And no one said anything about it for years. And 'may' is part of the equation. That's big, even if someone doesn't 'get it'.
Furthermore, the burden of proof is on the Plaintiffs to show the original intent of the LTWs. It is quite telling they chose not to put the original drafters on the stand to testify on the LTW owners behalf.
That time period was included, you must have overlooked it.
No amount of red ink in your posts will ever amount to squat if you don't understand the nature of global settlement discussions. They are never understood by the general public.
I've sat in on a couple of those 'all hands' settlement discussions. The BOD was at neither. The CEO was there but didn't do a damn thing. The debtor's attorneys run the show. Such is the nature of the beast.
Silly argument? Sure. You can sit there and think this or that, but if your interpretation required an adjustment at the time of the dime/wmi merger....to give you what you say you deserve, cash, etc., then you are screwed by the statute of limitations. If your argument hinges on a breach of fiduciary duties of the board of directors to make that adjustment, according to the intent and all, you just lost. You have been explaining that very position for some time now, not even getting into the subject of whether the ltw's are equity or not, and you just lost.
Now you can come back and say but what about now? Well that is something totally different. Was an adjustment required at the time of the dime/wmi merger, taking into consideration of a 'good faith opinion'? The argument can be made that is was not required, because the thought of WMI filing for BK didn't even enter the mind of the BOD or any LTW holder at that time.
You can chew on that a bit and see if it is silly or if the agreement is as clear as you think it is.