S&G wants this to go to into litigation. While it seems that JMW does not wish it to go there, Susman excels in the courtroom during litigations. I think you are incorrect about the EC and "new facts" simply because, in my opinion, it would be foolish of the EC to "present them" to the examiner or at the confirmation hearing. S&G expected a conflict between the Solomon numbers and the examiners numbers which is why those were not offered to the court, then having seen the putrid examiners report, I find it probable that S&G and the EC made the decision to hold back what ammo and facts they could for later use.
Have a great Sunday,
-Jest