Lest anyone care about the swill Wamu just responded with, they manage to feed nicely into the LTW Class' argument, which is essentially that although Section 4.4 allows adjustments, the "may" in that agreement was not intended to be permissive. Now Wamu is conceding that the precident it cited is not accurate and the fact that the Golden State agreement also used "may" after considering using "shall" shows that the term "may" is non-binding.
I realize there's a lot of law there, but Wamu is advancing an argument that could mean that the litigation pays off, and the day after the board says "we're adjusting - LTW holders get nothing." Without repercussions.
Their argument makes absolutely no sense, which is why the argument over "may" and "shall" is so important. Sadly for Wamu, they can't show another agreement including the term "shall."
So now they "accidentally" made an incorrect representation to the court, then they failed (should I say "forgot?") to update their filing, and then they blame Dime counsel because they didn't mention it in their reply or sur-reply. Whatever.
If this doesn't provide the court with ample evidence of Wamu's hardball tactics, nothing will.
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