CORRECTION: the spelling of the DOJ lawyer's surname should be Todor and not Tudor. Here is the letter again with the correction.
JOHN J. TODOR
Senior Trial Counsel
Commercial Litigation Branch
Civil Division Department of Justice
P.O. Box 480
Ben Franklin Station
Washington, D.C. 20044
Tele: (202) 616-2382
Fax: (202) 514-8640
RE: Case No. 95 - 39C
Mr. John J. Todor:
I am a Holder of Dime LTWs - which represent an 85 % Net
ownership interest in the Anchor Savings Bank litigation.
I understand that you represent the DOJ interest in this case.
On Aug. 31, 2015 the US Court of Federal Claims issued
a Final Opinion and Order in the Anchor Savings Bank litigation
- No. 95 - 39C - and in which Opinion the Honorable Judge Block
stated that the LTWs are " ownership interests in the Anchor litigation " :
" In this case, the court finds that
the litigation tracking warrants provide a reasonable proxy for the
tax basis of the Anchor litigation. As plaintiff points out, these
ownership interests in the Anchor litigation were actively
traded on the NASDAQ market on the day that JPMC acquired them. "
The LTW Holders interpret the foregoing statement of the
Honorable Judge Block to also mean that JPMC acquired the LTWs
when it acquired WMB - and therefore is obligated to ratify the
LTW Agreements - per the Purchase and Assumption Agreement -
and distribute 85 % Net of the Anchor Award to
the LTW Holders who did not " opt in " to WMI's Stipulation Agreement
and exchange their LTWs into WMI reorganized stock.
Do you agree with the LTW Holders that JPMC acquired the LTWs
when it acquired WMB ?
Temporarily elevating the LTWs to the status of " ownership interests
in the Anchor Litigation " - only for the sake of calculating the Tax
Gross - Up is not fair or just to the LTW Holders.
Following the US Court of Federal Claims Opinion of
Aug. 31, 2012 - which Opinion denied the
LTW Holders intervention in the Anchor Litigation due to
the Bankruptcy Court's Opinion that the LTWs did not
represent an interest in the Anchor Litigation - the
LTW Holders Appealed to the US Court of Appeals for the
Federal Circuit.
It was decided between the Parties and the Judges at
the Federal Circuit Appeals Court hearing that the LTW Holders
could bring Claims against the Party that is assigned ownership of
the Anchor Award by the US Court of Federal Claims.
Following the Bankruptcy Court's Opinion on Jan 3, 2012, it
came to light in a Court filing that the representative for
the LTW Holders - the Law Firm of King & Spalding - was
in a Conflict of Interest and would not intervene in the
Anchor Litigation to litigate against JPMC due to the fact
that it had also represented JPMC.
This Conflict of Interest was conveyed to the Hedge Funds
that retained King & Spalding for the LTW Holders, however this
information was not conveyed to all of the LTW Holders.
There were at least 2 authoritative star witnesses - Diime Senior Executives -
that King & Spalding could have presented at the Trial to testify
on behalf of the LTW Holders in the WMI Adversary Proceedings.
The star witness that King & Spalding chose to call at the Trial
- on behalf of the LTW Holders - did not rise to
the Court's level of expertise - as stated and noted in the
Honorable Judge Walrath's Opinion of Jan 3, 2012.
This Opinion lead to the 2 Senior Executives of Dime Bancorp - which
had issued the LTWs - to write authoritative letters to the
Honorable Judge Walrath to correct the misinterpretation of the
LTWs as WMI Equity Interests.
Regrettably - the 2 authoritative letters from the Dime Senior
Executives were filed too late - it was over the Court Rules
time limit for filing a Motion for Reconsideration.
The LTW Holders who did not " opt in " to WMI's Stipulation
Agreement and exchange their LTWs for WMI reorganized stock
feel quite strongly that the LTWs did not receive fair or adequate
representation in the Bankruptcy Court's adversary proceedings
due to the above - noted Conflict of Interest.
It appears to me and other LTW Holders that there was a back room
agreement or understanding between JPMC and King & Spalding to
hinder our success in the WMI Adversary Proceedings - with
inadequate and unfair representation. An agreement or understanding of
this type is fraudulent and does not represent the best interests of
the LTW Holders.
Also, the LTW Holders who did not " opt in " have argued that the
Bankruptcy Court lacked the jurisdiction to adjudicate the LTW
Holders' Claims due to that the Anchor Litigation was transferred to
JPMC - per the Purchase and Assumption Agreement - which has
been confirmed by the US Court of Federal Claims.
The LTW Holders wish to exercise our rights as " ownership interests
in the Anchor Litigation " - as noted in the US Court of Federal Claims'
Opinion of Aug 31, 2015 - and file claims with the DOJ for our 85 % Net
ownership interest in the Anchor Award.
I am respectfully requesting your help in stopping any payment to JPMC
until our claim is addressed. We have a contract - based interest in 85% net
of any payout of the Award and would also like a letter issued to JPMC,
instructing it to address our contractual rights as LTW Holders.
As noted in the Purchase and Assumption Agreement under 2.1
between the FDIC and JPMC, the Anchor Litigation was transferred to
JPMC with all liabilities, liens, and contractual rights attached - our
contractual agreement for 85 % net of the Award must be paid.
Feel free to contact me if you have any questions.
Respectfully,
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