The darkest and scariest moments were the days between 3/12 and late May/early June (supposed dates for debtor’s DS confirmation hearing). They were gone now, at least for the time being.
During those days and thereafter I kept reminding myself and the board what Susman said in April: his focus was on POR and Discovery. For a while after 3/12, I was unclear on how to defeat the debtor’s DS and POR, which were fast approaching the confirmation hearings. After observing EC/Susman pushing hard on examiner/discovery issue, I started to understand Susman’s strategy and its brilliance. Its immediate and short term goal was to put a brake on debtor’s DS and POR. Its long term (relatively speaking) and ultimate goal is to use the examiner and discovery process as a vehicle to uncover the true value of wmi estate. So far this strategy has been executed brilliantly. Despite some detours and setbacks, we have succeeded in our first goal. EC/Susman has convinced the Judge the need for further investigation and to put the debtor’s POR on hold. We found we are now at the door of true discovery with a UST selected and Court appointed examiner holding the key. We are working towards realizing our final goals.
It’s disheartening to see some shareholders feel afraid after we won the examiner issue. Since the examiner is a neutral, Court-appointed independent party, its investigation is to reveal the truth about the estate assets, which may or may not be in favor of the shareholder. It’s therefore understandable people are feeling anxious and uncertain. But, to be scared because of our adversaries’ sudden change of behavior (acceptance of the examiner and no objections to the examiner’s work plan) is off the cold facts and right reasoning.
Keep in mind we (EC/Susman) fought hard FOR the examiner and won it.
Keep in mind our adversaries fought tooth and nail AGAINST the appointment of the examiner but lost.
They were not voluntary, but forced by EC/Susman, the UST, and the Court to accept the reality of the examiner.
Also don’t forget those two months (may-July) of examiner/discovery fighting were also the days of our adversaries’ self-destruction. It demonstrated more than amply their obstructionist behavior despite court order, failure to conduct real discovery despite their fiduciary duty, and damaged (in my view) their credibility in the eyes of the Judge and the Court. Facing the changing reality, they have to show some “good will” gestures to appease the Judge, to repair the fence with the UST, and try not to offend the examiner from the very beginning, at least on surface.
Furthermore, who knows what else EC/Susman hold in their hands besides the sealed motion? Our opponents must wonder about it. I think EC/Susman released the necessary information just enough to get the examiner motion approved. It’s very likely, after months of diligent digging and collecting, they could hold more than one card. It’s better this way to keep the enemy guessing and feeling terrorized. EC/Susman, I believe, will not show the final cards until the right moments.
As I said after the appointment of the examiner, we’re entering a new stage of delicate discovery and “diplomacy”. Our targets are clear: jpmc, fdic, the debtors, and the true asset valuation. At the time of uncertainty, I trust UST’s integrity and Susman’s wisdom. Let the examination run its course. Meanwhile, EC, Susman, and Solomon will not sit on their hands waiting for results. Good lawyers (like ours) know how to take care of their clients’ worries and concerns. It is almost certain EC/Susman will continue to collect and use every available source to construct the estate’s financial picture, which can serve as valuable leads for the examiner as well as our contingency/backup plan. The EC, I believe, will be ready at the appropriate time to either consent to or challenge the examiner’s results depending on the outcome. In fact, the examiner’s report, favorable or not, will and should face the challenges from every involved party, EC and its opponents included. In an intensely contested, challenged environment, assets will be hard to hide, and the truth shall have a real chance to emerge.
