Free Status Report - District Court of Federal Claims - federal

Case 1:95-cv-00524-GWM

Document 356

Filed 03/12/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) )

HOMER J. HOLLAND, HOWARD R. ROSS, AND FIRST BANK Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No. 95-524 C (Judge G. Miller)

PLAINTIFFS' PROPOSED SCHEDULE FOR FURTHER PROCEEDINGS Pursuant to the Court's Order of February 27, 2007, Plaintiffs hereby submit a proposed schedule for further proceedings in this case. Further, in accordance with this Court's liability ruling, and the development of Federal Circuit Winstar damages jurisprudence in the three years that have elapsed since this case was initially set for trial, Plaintiffs seek leave to submit certain revisions to their damages calculations. Specifically, Plaintiffs will revise their existing damages claims as necessary to account for the $5 million in FSLIC-owned preferred stock that the Court has now ruled was not capital contractually promised to River Valley. See, Holland v. United States, 74 Fed. Cl. 225, 258-263 (2006).1 In addition, Plaintiffs seek to submit a supplemental damages analysis to recover mitigation damages measured by the cost to retain earnings to replace the breached regulatory capital in the years following the breach, an analysis that the Federal Circuit has endorsed since Plaintiffs' experts last presented any damages calculations in this case. See Home

Revisions to damages calculations relating to the Court's recent decision on liability will be submitted either in expert reports or in the Memorandum of Contentions of Fact and Law.

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Case 1:95-cv-00524-GWM

Document 356

Filed 03/12/2007

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Savings of America, FSB v. United States, 399 F.3d. 1341, 1353-1355 (Fed. Cir. 2005) (affirming award of mitigation damages base on cost of retained earnings). Plaintiffs will disclose their retained earnings damages through a supplemental expert report authored by Dr. Homer Holland. Recognizing that Defendant will likely wish to depose Dr. Holland concerning his retained earnings analysis, and submit an opposition report, Plaintiffs propose a pretrial schedule to accommodate such activities. In accordance with the proposed schedule set forth below, Plaintiffs propose a two-week trial in Washington, D.C., commencing October 29, 2007 and concluding November 9, 2007. Plaintiffs generally adopt the intervals between pre-trial activities that the Court set in its January 14, 2005 and December 14, 2005 Scheduling Orders, which are consistent with the deadlines set forth in the Rules of the Court of Federal Claims, Appendix A: Event · · · · · Plaintiffs submit Dr. Holland's supplemental expert report Deadline to depose Dr. Holland Defendant's opposition expert report(s) due Deadline to depose Defendant's expert(s) Preliminary pretrial conference to be held at the National Courts Building, Washington, DC, beginning at 10 a.m. to discuss the terms of an order governing procedures and logistics relating to the conduct of trial Parties confer and make the exchanges required by paragraph 13 of Appendix A, RCFC. (Preliminary witness lists and exhibits) Plaintiff files Memorandum of Contentions of Fact and Law, final witness list, and exhibit list in accordance with paragraphs 14, 15 and 16 of Appendix A. Date April 30, 2007 May 30, 2007 June 27, 2007 July 25, 2007 August 3, 2007

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August 10, 2007

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August 24, 2007

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Case 1:95-cv-00524-GWM

Document 356

Filed 03/12/2007

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Defendant files Memorandum of Contentions of Fact and Law, final witness list, and exhibit list in accordance with paragraphs 14, 15 and 16 of Appendix A. Parties file motions in limine, including any objections to witnesses or exhibits that can be made in advance of trial. Parties file responses to motions in limine. Final Pre-Trial Conference and oral argument upon motions in limine Trial at the National Courts Building Washington, DC

September 21, 2007

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October 5, 2007

October 15, 2007 October 25, 2007

October 29-November 9, 2007

Respectfully Submitted,

Of Counsel: Melvin C. Garbow Howard N. Cayne Michael A. Johnson Joshua P. Wilson ARNOLD & PORTER, LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 Co-counsel for First Bank: Donald J. Gunn, Jr., Esq. Sharon R. Wice, Esq. Gunn and Gunn First Bank Building Creve Coeur 11901 Olive Blvd., Suite 312 P.O. Box 419002 St. Louis, Missouri 63141 (314) 432-4550 (tel.) (314) 432-4489 (fax) Dated: March 12, 2007

/s/ David B. Bergman David B. Bergman ARNOLD & PORTER, LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 (202) 942-5000 (tel.) (202) 942-5999 (fax) Counsel for plaintiffs Holland and Ross and First Bank.

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Case 1:95-cv-00524-GWM

Document 356

Filed 03/12/2007

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CERTIFICATE OF SERVICE I certify that on this 12th day of March 2007, I caused the foregoing Plaintiffs' Proposed Schedule for Further Proceedings to be filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system.

Dated: March 12, 2007

/s/ Joshua P. Wilson Joshua P. Wilson

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