Free Witness List - District Court of Federal Claims - federal

Case 1:95-cv-00468-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ASTORIA FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 95-468C (Judge Thomas C. Wheeler)

DEFENDANT'S FINAL WITNESS LIST Defendant, the United States, respectfully submits its final list of witnesses it will or may call at trial. A. Witness Who Defendant Will Call At Trial 1. Robert Albanese Office of Thrift Supervision ("OTS") Harborside Financial Center Plaza Five Suite 1600 Jersey City, NJ 07311

Mr. Albanese is currently Regional Director for the Northeast Region of the OTS. Mr. Albanese participated in the supervision of Suburbia Federal Saving and Loan Association ("Suburbia") and Fidelity New York, F.S.B. ("Fidelity) in the 1980s and 1990s. He will testify about efforts to resolve Suburbia, and the feasibility of liquidation as a method for resolution of troubled thrifts. He will also testify about Fidelity's financial performance before and after enactment of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L.

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No. 101-73, 103 Stat. 183 (1989) ("FIRREA"). Mr. Albanese's direct testimony is expected to last two hours.1 2. Walter Amend OTS Harborside Financial Center Plaza Five Suite 1600 Jersey City, NJ 07311

Mr. Amend is a Field Manager at the OTS and has served as an Examiner, Field Manager or Assistant Director at the OTS or its predecessor, the Federal Home Loan Bank of New York ("FHLB-NY"), since 1972. He was involved with the regulation New York thrifts, including Fidelity and Astoria. The topics about which Mr. Amend may testify include: Federal thrift regulation, including forbearances, goodwill, examinations, assessments, and the regulatory relationship between the OTS and the Federal Deposit Insurance Corporation ("FDIC") after FIRREA; the Federal Savings and Loan Insurance Corporation ("FSLIC") guidelines and procedures for resolving supervisory cases; Federal regulation of Fidelity and Astoria Federal Savings and Loan Association ("Astoria"); the efforts to find a buyer for Suburbia; Fidelity's acquisition of Suburbia; Fidelity's operations and performance, including enforcement actions; the impact of FIRREA upon Fidelity and Astoria; Fidelity response to FIRREA including its capital plan; Fidelity's conversion to stock form and public offering of stock; Astoria's operations and performance; Astoria's acquisition of Fidelity; and may respond to opinions expressed by plaintiff's witnesses. Mr. Amend's direct examination is expected to take 8 hours. 3. H. Brent Beesley 95 East Tabernacle Street Saint George, UT 64770

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Mr. Albanese is unavailable from April 23, 2007 - April 27, 2007. -2-

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Mr. Beesley was the Director of the FSLIC from 1981 to 1983. Mr. Beesley will testify about the problems the thrift industry faced in the early 1980s, the role FSLIC played in regulating thrift institutions, FSLIC's policies and practices in regulating seriously troubled thrifts, and the tools available to FSLIC in regulating troubled thrifts. Mr. Beesley's testimony is expected to take approximately two hours. 4. Vito Caporusso

Mr. Caporusso was a senior lending officer of Fidelity and can discuss the condition of Fidelity's loan portfolio, the effect of its bad loans upon its operations, and the effect of FIRREA upon Fidelity's lending operations. Mr. Caporusso's testimony is expected to take approximately two hours. 5. Dr. Andrew Carron National Economic Research Associates, Inc. 1166 Avenue of the Americas New York, NY 10036

Dr. Carron is President of NERA. He is an expert in the areas of financial economics, economic damages, thrift industry structure and performance, government policy toward and regulation of the thrift industry, mortgage and capital markets, and thrift industry asset/liability management. He will respond to plaintiff's claims for restitution, reliance damages, lost profits, and wounded bank damages, as outlined in his expert reports and at his depositions. He will respond to Dr. Kaplan and plaintiff's fact witnesses and will show that Fidelity's net benefits exceeded its costs in connection with the Suburbia acquisition. He will also rebut plaintiff's claim that Fidelity discharged Suburbia's net liabilities, and will demonstrate that Fidelity did not confer a benefit upon the Government. He will also show that neither Fidelity nor Astoria lost profits as a result of the disallowance of the inclusion of goodwill in Fidelity's regulatory -3-

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capital. He will also explain that Fidelity incurred no lost profits from the sales of FHLMC stock, and will address plaintiff's claims for wounded bank damages. He will also explain that an award to Astoria would constitute a windfall. Dr. Carron's direct examination is expected to take 5 hours.2 6. Daniel Dionne New York, New York

Mr. Dionne is a former Assistant Regional Director of the FDIC and had a primary role in the FDIC's oversight of thrift institutions in the New York region between 1989 and the end of 1991. Mr. Dionne is expected to testify about the FDIC's role in overseeing thrifts, including Fidelity. He is expected to testify concerning the findings set forth in the FDIC's reports of examination of Fidelity. He is also expected to testify concerning the adequacy of capital from the FDIC's perspective given Fidelity's asset quality problems and risk to the insurance fund. Our direct examination of Mr. Dionne is expected to last two hours.3 7. George Engelke Astoria Federal Savings & Loan Association One Astoria Plaza Lake Success, NY 11042

Mr. Engelke is President, Chief Executive Officer, and Chairman of Astoria, and has been employed by Astoria since 1971. Mr. Engelke is expected to testify about Astoria's operations and strategy prior to FIRREA, the nature of goodwill, the effect of FIRREA, the New York economy in the early 1990s and its effect upon Astoria, Astoria's conversion from mutual

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Mr. Carron is unavailable May 1, 2007, May 8, 2007 - May 11, 2007, and May 21, Mr. Dionne is unavailable May 9, 2007 - May 23, 2007. -4-

2007.
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to stock form, Astoria's use of capital and profits, and Astoria's overall performance. Mr. Engelke's testimony is expected to take approximately four hours. 8. Peter Finn

Mr. Finn is a vice president of Astoria and had responsibility connected with Astoria's due diligence of Fidelity. Mr. Finn can discuss the condition of Fidelity at the time of its acquisition of Astoria and Astoria's actions in dealing with the assets it acquired from Fidelity, factual issues that are relevant in rebutting plaintiff's lost profits damages claims. Mr. Finn's testimony is expected to take approximately one hour. 9. Carlos Fiol Manager, Risk Analysis Division of Resolutions and Receivership Federal Deposit Insurance Corporation Washington, D.C.

Mr. Fiol served as a financial analyst in the Analysis and Evaluation Division ("AED") of the FSLIC beginning in 1984. Mr. Fiol is expected to testify about matters relating to Fidelity and Suburbia, including FSLIC's analysis of proposed acquisitions and his involvement in preparing the analyses that were required with respect to proposed acquisitions, including estimated proposal cost and viability, and estimated liquidation cost. To the extent plaintiff examines Mr. Fiol with respect to other matters during plaintiff's case-in-chief, we also expect to cross-examine Mr. Fiol in relation to such matters. Our direct examination of Mr. Fiol is expected to last approximately one hour.4

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Mr. Fiol is unavailable April 24, 2007, and May 7, 2007 - May 9, 2007. -5-

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10.

Bruno Greco 492 Boulevard Place Garden City, NY 11530

Mr. Greco was Executive Vice President, Chief Operating Officer and President and Fidelity before retiring in 1990. Mr. Greco will testify about the Suburbia merger, the postmerger operation and management of Fidelity, Fidelity's loan practices and their outcomes, Fidelity's business plans, and Fidelity's operations after FIRREA. Mr. Greco's testimony is expected to take approximately three and a half hours. 11. David A. Kennedy Intellectual Property Asset Corporation, LLC Atlantic Center Plaza 1180 West Peachtree Street Suite 2400 Atlanta, GA 30309

Mr. Kennedy is the CEO and Co-Chairman of alseT-IP, an investment fund focused upon acquiring, or providing financing secured by, royalty interests. Mr. Kennedy is also the founder of Intellectual Property Asset Corporation ("IPAC"), an intellectual property investment and asset management company. In addition, IPAC provides expert testimony and services related to damages for intellectual property infringement disputes and other complex commercial litigation disputes. Prior to IPAC, Mr. Kennedy founded and was the Managing Director of InteCap, an international consulting firm that advised clients on economic, valuation and strategy issues related to intellectual property and complex commercial disputes. Since 1985, Mr. Kennedy has served as an auditor, accountant, consultant and expert witness for clients that include banks, thrifts, and government agencies, among others. Mr. Kennedy will testify to as to the matters set forth in his report. Those topics about which Mr. Kennedy is expected to offer expert testimony include: Fidelity's financial condition and performance before and after FIRREA; Fidelity's capital position before and after FIRREA; the effect of the passage of FIRREA upon Fidelity; the -6-

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effect of the breach upon Fidelity; the effect of non-breach related factors upon Fidelity after FIRREA; Fidelity's growth opportunities after FIRREA; and Astoria's merger with Fidelity, including, but not limited to, the transferability of supervisory goodwill in the merger pursuant to purchase accounting principles and Astoria's ability and willingness to leverage excess regulatory capital. Mr. Kennedy will also testify regarding factual and methodological errors in the analyses of plaintiff's experts, including, but not limited to, Dr. Kaplan's assessments of: Fidelity's "foregone assets," growth rate and spread on investments, additional borrowings, "wounded bank" damages; reliance damages based upon "net liabilities assumed," including, but not limited to, the offsetting benefits of the Suburbia acquisition, as these errata relate to Mr. Kennedy's expert opinion. Our direct examination of Mr. Kennedy is expected to take 6 hours. 12. Thomas Dixon Lovely Marco Island, FL

Mr. Lovely was the Chairman and Chief Executive Officer of Fidelity from approximately 1979 until 1993. Mr. Lovely is expected to testify to Fidelity's business strategy, plans, performance, condition, supervision, examination and regulation, before and after the Suburbia acquisition; competition for, and the acquisition of, Suburbia; regulatory matters relating to Fidelity; Fidelity's review of and response to regulatory matters including capital requirements, growth restrictions, and its capital plan. In addition, we expect to cross-examine Mr. Lovely with respect to any other matters to which he may testify when first called by plaintiff in its case-in-chief. Our direct examination of Mr. Lovely is expected to last approximately six hours.

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13.

Neal Moran OTS Harborside Financial Center Plaza Five Suite 1600 Jersey City, NJ 07311

Mr. Moran is the OTS's Regional Capital Markets Manager for the Northeast region, a region which encompasses 11 states, including New York. Mr. Moran will testify concerning capital markets instruments (e.g., mortgage backed securities and various related derivative and residual securities) and wholesale funding held or obtained by Fidelity and Astoria, and regulatory concern with respect to these instruments and investment schemes. He will also discuss OTS's criticisms of Fidelity's interest rate risk. Mr. Moran's testimony is expected to take approximately two and a half hours.5 14. Thomas Powderly

Mr. Powderly is expected to testify to Fidelity's business strategy, plans, performance, condition, supervision, examination and regulation, before and after FIRREA; Fidelity's growth and acquisition opportunities before and after FIRREA; competitive and environmental conditions in Fidelity's market; Fidelity's review of and response to regulatory matters including capital requirements, growth restrictions, and its capital plan; Fidelity's conversion to stock form and initial public offering; and, Fidelity's merger with Astoria. In addition, we expect to crossexamine Mr. Powderly with respect to any other matters to which he may testify when first called by plaintiff in its case-in-chief. Our examination is expected to last 6 hours.

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Mr. Moran is unavailable April 30, 2007 - May 2, 2007. -8-

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15.

Dr. Richard T. Pratt

Dr. Pratt is expected to testify regarding the regulatory and economic conditions in the thrift industry during his time as head of the Federal Home Loan Bank Board (FHLBB). We also expect him to testify regarding the FHLBB's decision making process regarding the liquidation of insolvent thrifts during his time at the FHLBB, and FHLBB's financial capacity to liquidate insolvent thrifts during this time period. In addition, we expect to cross-examine Dr. Pratt with respect to any other matters to which he may testify when first called by plaintiff in its case-in-chief. Our examination of Dr. Pratt is expected to last one hour. 16. Dr. David P. Rochester

Dr. Rochester is the Chairman and Chief Executive Officer of Capital Resources Group, Inc., a firm that provides investment banking and financial consulting services to financial institutions and other companies nationally. The topics about which Dr. Rochester is expected to offer expert testimony concern damages claims made by plaintiff in this case, including the benefits that Fidelity obtained in acquiring Suburbia, as described in his expert report or as discussed during his deposition. He will also respond to any new contentions that plaintiff makes during the trial that are relevant to his previously expressed opinions. We expect our direct examination to last four hours. 17. Michael Spaid Supervisory Resolutions & Receivership Specialist Division of Resolutions and Receivership Federal Deposit Insurance Corporation Washington, D.C.

Mr. Spaid served in a supervisory role as a financial analyst in the Mergers and Acquisitions Division ("MAD") of the FSLIC beginning in 1984. Mr. Spaid is expected to

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testify about matters relating to Fidelity and Suburbia, including Suburbia's condition; the alternatives that were available to the FSLIC/FHLBB in dealing with Suburbia, including but not limited to Fidelity's proposed acquisition of Suburbia, and FSLIC's analysis of the proposed acquisition and alternatives. To the extent plaintiff examines Mr. Spaid with respect to other matters during plaintiff's case-in-chief, we also expect to cross-examine Mr. Spaid in relation to such matters. Our direct examination of Mr. Spaid is expected to last approximately one to two hours. 18. Peter Stearns Sarasota, Florida

Mr. Stearns was the former head of the FSLIC between the fall of 1984 and the end of 1985. He will provide testimony concerning the FSLIC's capabilities and history in resolving troubled thrifts in the early and mid 1980s, and the tools available to the FSLIC in regulating and resolving troubled thrifts. To the extent plaintiff examines Mr. Stearns with respect to other matters during plaintiff's case-in-chief, we also expect to cross-examine Mr. Stearns in relation to such matters. Our direct examination of Mr. Stearns is expected to take two hours. 19. Angelo Vigna Sandler, O'Neill & Partners 919 3rd Avenue 6th Floor New York, NY 10022

Mr. Vigna was the Senior Executive Vice President and Director of Agency Functions at the FHLB of NY, an Acting Director of the FSLIC, and after FIRREA, became the Northeast Regional Director of the OTS until he retired in 1996. He was involved with the regulation New York thrifts, including Suburbia, Fidelity and Astoria. The topics about which Mr. Vigna may testify include: Federal thrift regulation, including forbearances, goodwill, examinations, -10-

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assessments, and the regulatory relationship between the OTS and the FDIC after FIRREA; FSLIC's guidelines and procedures for resolving supervisory cases; Federal regulation of Suburbia, Fidelity and Astoria; Suburbia's operations and performance; the efforts to find a buyer for Suburbia; Fidelity's acquisition of Suburbia; Fidelity's operations and performance, including enforcement actions; the impact of FIRREA upon Fidelity and Astoria; Fidelity response to FIRREA including its capital plan; Fidelity's conversion to stock form and public offering of stock; Astoria's operations and performance; Astoria's acquisition of Fidelity; in response to opinions expressed by plaintiff's witnesses. Mr. Vigna's direct examination is expected to take 4 hours.6 20. William E. Wesp

Mr. Wesp was an executive vice president of Fidelity and can discuss the investment and operational activities of Fidelity in the pre-breach and post-breach periods, and Fidelity's regulatory oversight by, and interaction with, thrift regulators. Our examination of Mr. Wesp is expected to take approximately 4 hours. B. Witnesses Who Defendant May Call At Trial 1. Monte Redman Astoria Federal Savings & Loan Association One Astoria Plaza Lake Success, NY 11042

Mr. Redman was Astoria's chief financial officer and can discuss Astoria's acquisition of Fidelity and Astoria's utilization of capital from the early 1990s to the present, Astoria's

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Mr. Vigna is unavailable April 20, 2007 - April 27, 2007, and May 1, 2007 - May 4, -11-

2007.

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treatment of goodwill, its projections of earnings growth, and Astoria's investment strategies. These factual issues are relevant in rebutting plaintiff's lost profits damages claims. Mr. Redman's testimony is expected to last one hour. 2. Alan Eggleston Astoria Federal Savings & Loan Association One Astoria Plaza Lake Success, NY 11042

Mr. Eggleston is senior vice president of Astoria and has been general counsel of Astoria since 1993. Mr. Eggleston will testify about the impact of FIRREA, Astoria's conversion from mutual to stock form, goodwill, Astoria's operations and use of capital and profits, Astoria's acquisition of Fidelity, and the thrift industry in the 1980s. Mr. Eggleston's testimony is expected to last approximately one hour. Respectfully submitted, MICHAEL F. HERTZ Deputy Assistant Attorney General

JEANNE E. DAVIDSON Director

/s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director

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/s/ John H. Roberson JOHN H. ROBERSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, D.C. 20530 Tel. (202) 353-7972 Fax (202) 514-8640 Attorneys for Defendant

OF COUNSEL: ARLENE PIANKO GRONER ELIZABETH M. HOSFORD BRIAN A. MIZOGUCHI JOHN J. TODOR SAMEER YERAWADEKAR

March 15, 2007

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CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of March 2007, a copy of the foregoing "DEFENDANT'S FINAL WITNESS LIST" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ John H. Roberson John H. Roberson

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