aus yahoo finance bezugnehmend auf die ec-objection
messages.finance.yahoo.com/...10505&tof=1&frt=2#610505
II. THE PLAN SHOULD NOT BE CONFIRMED BECAUSE IT IS PREDICATED ON A SETTLEMENT
THAT HAS NOT BEEN SHOWN TO BE FAIR AND REASONABLE.
It is no coincidence that the Global Settlement pays off all creditors virtually in full but
leaves Equity holding an empty bag. Under the Global Settlement, preferred shareholders are just barely out of the money, and may well receive a minimal recovery even under the current
Plan.
PDF Page 26
Compounding the problem, time constraints apparently forced the Examiner to rely on unsworn and unverified statements from witnesses rather than depositions. At many of these interviews, counsel for the Debtors were present, even though the Equity Committee was not informed or given the opportunity to attend. At least one witness who offered opinions on which the Examiner relies was employed by JPMC and Debtors' counsel as a consultant, although this conflict of interest is not acknowledged by the examiner.
PDG Page 29
Moreover, in at least once instance, a witness interviewed by the Examiner was subject to potential bias from a conflict of interest that does not appear to have been disclosed. peter Freilinger had been a Senior Vice President and Assistant Treasurer at Washington Mutual. the Examiner relied on statements made my Mr. Freilinger in an unsworn interview for much of his analysis of Washington Mutual's claimed liquidity crisis in the final days before seizure. The Examiner quotes Mr. Freilinger as saying - contrary to other Washington Mutual employees interviewed - that the OTS "did the right thing" in closing the bank. Counsel for the Equity Committee learned in a deposition of Mr. Freilinger that he was hired by JPMC following the acquisition and that he is currently employed as a consultant to Weil Gotshal, Debtors counsel. This conflict of interest was apparently not disclosed to the Examiner and, in any event, is not acknowledged in his report.
PDF 15
"THE RELEASED PARTIES HAVE NOT MADE A SUBSTANTIAL CONTRIBUTION TO THE DEBTOR'S ESTATE TO JUSTIFY THE DEBTOR'S RELEASE."
Page 27 Footnote 13 - "The report itself is hearsay and not admissable as evidence supporting the plan".
In fact, the Plan proposes to force expansive releases upon the holders of the Debtors' equity securities — including common (no recovery) and preferred (perhaps one-percent recovery) equity holders — regardless of whether they affirmatively opt out of the Third-Party Releases, and, to the extent that they do elect the opt-out option, proposes to withhold any distribution they otherwise would have received under the Plan.
That is, despite a preferred equity holder's election to not grant the Third-Party Releases by checking the "opt out" box on its respective ballot, the Debtors will nevertheless seek to bind and enforce the Third-Party Releases against such holder. (DS at 15). And of course the death-trap is meaningless for the holders of common equity who receive no recovery in return for the releases imposed upon them whether they opt out or not. In sum, and to echo the words of the Examiner, "the Releases are unduly broad and inappropriate." (Report at 20).
"And with respect to those additional assets of WMI that JPMC is purchasing under the Plan (for example, WMI's 3.147 million Class B shares of Visa Inc. (Plan § 2.1(c))), JPMC will surely take the position that it is paying fair consideration in exchange for such assets. Indeed, even JPMC cannot dispute that it will receive far more from WMI than it will ever contribute to the Debtors' estate."
"With respect to the FDIC, under the Plan and the Global Settlement Agreement, the Debtors and the FDIC will exchange releases; however, the FDIC will also recover approximately $0.85 billion of the Tax Refund otherwise receivable by the Debtors' estate. (DS at 11). Thus, it appears more likely that the Debtors' estate is making a substantial contribution to the FDIC, rather than the FDIC making a substantial contribution to the Debtors' estate."