Excerpts from the depositions - Wall Street Journal
Excerpts from the depositions - Wall Street Journal
Excerpts from the depositions - Wall Street Journal
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Case 2:11-cv-10549-MRP-MAN Document 254-1 Filed 03/28/13 Page 14 of 35 Page ID<br />
#:16603<br />
and interest; <strong>the</strong> types of claims that an owner of <strong>the</strong> documents or an owner of <strong>the</strong><br />
securities would have.” 57:19–58:3.<br />
• “A. If somebody had asked me, if anybody had asked me, you know, are <strong>the</strong> tort<br />
claims transferring as part of this deal? I would have told <strong>the</strong>m no.” 75:3–6.<br />
• “Q. So, you thought about whe<strong>the</strong>r or not <strong>the</strong>re would be a legal claim that AIG could<br />
pursue to recover those losses on <strong>the</strong>se RMBS? [Objection] A. I knew that <strong>the</strong>re was a<br />
loss. I knew it would be realized <strong>from</strong> AIG’s perspective. But whe<strong>the</strong>r or not it<br />
would have been actionable in <strong>the</strong> legal sense, you know, was unclear and would<br />
have required <strong>the</strong> litigators to come in, look at <strong>the</strong> facts, and figure out whe<strong>the</strong>r or<br />
not if it was actionable. And that analysis had not been done at that time. Q. [] So<br />
you hadn’t reached some conclusion about whe<strong>the</strong>r or not AIG could pursue claims? A.<br />
That’s correct. Q. But you thought about maybe we could pursue claims? A. Yes.”<br />
77:10–78:7.<br />
• “A. [Referring to ML II Term Sheet] And so, what’s being stated here is that <strong>the</strong><br />
securities that would be listed on Schedule A is—is what’s transferring, less<br />
principal and interest payments that accrue between October 31st and <strong>the</strong> Closing<br />
Date, which were payments that we would have collected already. So, that was being<br />
backed out of <strong>the</strong> purchase price. Q. So, according to <strong>the</strong> Term Sheet, as you<br />
understood it, what was being transferred to ML II in this deal? [Objection] A. The<br />
securities that were listed and <strong>the</strong> rights in those securities.” 134:14–135:4.<br />
• “Q. To your understanding, did <strong>the</strong> scope of what was being transferred, as you just<br />
described it, change between <strong>the</strong> Term Sheet and <strong>the</strong> execution of this final [APA]?<br />
[Objection] A. No.” 135:9–16.<br />
• “Q. Mr. Holmes, what is your understanding regarding whe<strong>the</strong>r <strong>the</strong> Asset Purchase<br />
Agreement transfers tort claims <strong>from</strong> AIG to Maiden Lane II? A. My understanding is<br />
it does not.” 98:20–24.<br />
• “Q. And did you have an opportunity to review <strong>the</strong> Complaint in this case before it was<br />
filed by AIG? A. Yes. Q. And did you understand that that Complaint asserted tort<br />
claims against <strong>the</strong> Defendants arising out of <strong>the</strong>ir sale to AIG of certain of <strong>the</strong> RMBS that<br />
were later sold to ML II? [Objection] A. They were earlier sold to ML II, yes. Q. And<br />
did you have at that point any objection to AIG filing that Complaint? A. No.” 148:2–17.<br />
• “A. My initial reaction [to BoA’s argument that AIG transferred claims to ML II]<br />
and my reaction now are <strong>the</strong> same, which is that those claims were never<br />
transferred.” 149:6–8.<br />
Holmes testified that he had prior experience with transferring tort claims, and that he would<br />
have taken different steps had he been aware <strong>the</strong> FRBNY intended to acquire such claims.<br />
• “Q. Now, you testified earlier that you were familiar with certain law relating to <strong>the</strong><br />
transfer of tort claims at <strong>the</strong> time <strong>the</strong> Asset Purchase Agreement in ML II was negotiated<br />
and executed. A. Right. Q. What did you understand about <strong>the</strong> law on that subject back<br />
at that time? [Objection] A. It’s my understanding that in order to transfer tort<br />
claims, you need to specifically address it in <strong>the</strong>—in <strong>the</strong> assignment documents. Q.<br />
EXHIBIT 2<br />
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