FWIW, Grudge does seem to have the more compelling (and fact-based) position, relying on facts rather than statements beginning with "I think" or "I believe" and my personal "favorite," the "Apparently . . . blah, blah, blah . . ." phrases used by a certain poster whose name rhymes with "Binda1."
I reviewed the issues raised by Grudge in his long, but analytical post, and decided to address mostly the latter part of it as follows:
The issue of whether this is a Zero Sum Game (and where a Dime win is an H loss and vice versa), is somewhat irrelevant for the following reasons:
1. A Dime Ltw win is a WIN, and a Dime loss is a LOSS. How much other classes "might" recover might be of importance to Kevin Starke and anyone else holding the H's (or any other securities for that matter), but is irrelevant as it relates to Ltw holders. While it's nice to think that we can all wind up as "super-winners," and whether D&O insurance will make good on some/all of the $337 million owed to the Ltw's, the fact is that we have $337 million ring-fenced for the very purpose of ensuring that DIMEQ's get paid in the event of a victory.
Cash is fungible, and whether it comes from D&O insurance, or from a not so segregated, separated Litgation Trust Fund Account, we are entitled to what we are owed for Breach of Contract, Breach of Fiduciary Duty, "Negligence of Contract" for an amount of up to $337 million, but not a penny more. BTW, I was just kidding on the last one, "Binda1," there's no such beast as a "Negligence of Contract," at least as far as I know.
Whether we get "paid" by WMI or by the D&O insurer(s), there are no punitive damages in a Breach of Contract or a Breach of Fiduciary Duty suit, or any other "extras" that we should be entitled to as a result of bad acts by WMI, its "A&M" board, the chicanery, the "unfairness" of it all . . . $337 million is the cap. We get $337 million dollars or whatever we are out as a result of the breach(es), whichever is less (see, Judge Walrath's January 7, 2011 Opinion, passim)
And while it might be "nice," that D&O insurance cover some of the damages, it is not a major concern to Dime Ltw holders (as far as it relates to damages on any of several legal theories advanced by the Plaintiffs), as the $337 million has already been "set aside" by Judge Walrath for the benefit of Ltw holders in the event of a victory by "Arthur & Friends."
Yes, I know that there are many wonderful lawyers on the Ltw side besides Arthur, but Mr. Steinberg is the most visible, the most charismatic and the most impassioned of the attorneys on our side - and to avoid any argument that "Arthur wasn't the attorney that signed off on the most recent Post Trial Reply, I am including the "& Friends." I hope that addresses any concerns that Binda1 might have.
2. As "unfair" as it might be to Kevin Starke and the other H holders, that a Steinbeg victory reduces the H's recoveries (or not), the H's are not "getting screwed" by Dime, or even by the Sr. Bond holders (as might appear to be the case); the subordination agreement was part of a contract that was willingly entered into by the issuing 2001 Trust and the initial purchasers of the H's. THAT is the Contract that THEY entered into. All subsequent H purchasers put themselves into the same position of the initial purchasers, and that is, in a position whereby THEY agreed and agree to subordinate themselves to Sr. Creditors, to make Sr. Creditors whole in the "unlikely" event that an asteroid were to strike Earth, and whereby Sr. Creditors might receive less than Contract Rate. Yes, unlikely at the time, but who would've thunk it?
So "irregardless" as to whether the H's will get torpedoed by a Dime victory, the H's are going to get eaten/skinned alive by having to make up the shortfall as a result of FJR. Unless there is a Settlement very soon (and whereby the Sr. Creditors agree to give up some of what they're entitled to), in the interest of bringing finality to this show . . . there will be little to nothing left for the H's after their money is distributed by the Court as the Trustee for the H's will then be battling it out with the Sr. Creditors for the CR-FJR short-fall, again, further grinding away any recovery due to even more never-ending attorneys fees. Again, a settlement/compromise would help both sides . . . but it wouldn't help the attorneys (which is who the attorneys "should" be looking out for first and foremost).
I know that this doesn't settle the "'Binda1' vs. almost everybody else dispute," but again, this seems to be an issue that would be of greater interest (and much more appropriate) to the H Board.
In the interest of FULL DISCLOSURE: I own ALL classes of WaMu securities, with the exception of the U's (commons), and in greatly varying degrees. Suffice it to say that I own more Dime Ltw's than I do H's, but I do own them all (except commons).
And in the interest of Further Full Disclosure: I am not really a lawyer. That was just my lame attempt at using self-deprecating humor in calling myself "an attorney," and funnier still, a defense attorney at that! Must've come from years of hearing about Perry Mason, but never actually remembered having watched any shows - I just remembered hearing that he always won. Hence, the difficulty/impossibility of others in being able to "verify [my] credentials and bar [card] number."
Additionally, I truly did stay at a Holiday Inn, but that must've been more than 20 years ago during a cross-country drive, so I don't know if there is some special kind of Statute of Limitations for that type of thing. Also, it might've been a Best Western, for all know. I can't really remember.
Finally, and most importantly, I did, as many guys are prone to do, and (slighty) exaggerated my size as 45. In reality, I am really more of a 40 kinda guy. But I thought that many would consider 40 to be Short & Wimpy, hence the slight embellishment.
Color me embarrassed.
But in all other respects, I think everything else is (kinda, sorta, mostly) true.
I hope that y'all can forgive me.
Sincerely,
"Dave" (as in "Dave's not here, man")
But my friends call me "SIG."
Simple
Is
Good
AI
