Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:95-cv-00468-TCW

Document 161

Filed 02/08/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) ASTORIA FEDERAL SAVINGS & LOAN ) ASSOCIATION, ) Plaintiff, ) ) v. ) No. 95-468C ) (Judge Wheeler) THE UNITED STATES, ) ) Defendant. ) __________________________________________) DEFENDANT'S MOTION FOR LEAVE TO REVISE BY SUPPLEMENTAL UPDATE THE EXPERT WITNESS REPORT OF DR. DAVID P. ROCHESTER Defendant, the United States, respectfully requests leave to submit to plaintiff a supplemental update of the expert witness report of Dr. David P. Rochester. Since the January 17, 2002 date of his expert witness report, Dr. Rochester obtained and reviewed publicly-available financial information for the period since 2001 concerning the plaintiff. He similarly obtained updated market price data relevant to his opinion. Applying his franchise valuation approach to this updated information leads to a revised figure for the benefit plaintiff received from the Suburbia acquisition. The updated information and its application is discussed in two pages in the supplemental update set forth in Exhibit 1 to this motion. Exhibits attached to the supplemental update summarize this data and Dr. Rochester's updated calculation of the benefit conferred upon plaintiff. We are producing to plaintiff the source material from which the updated data considered was obtained by Dr. Rochester. Previously, we consented to plaintiff's September 12, 2003 revision of Dr. Kaplan's report. We consulted with plaintiff's counsel concerning this motion, and offered to make Dr. Rochester available for a deposition, as Dr. Kaplan was when plaintiff submitted revisions to

Case 1:95-cv-00468-TCW

Document 161

Filed 02/08/2007

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his report. We also offered to consent to the parties being permitted to revise their Appendix A submissions if (and limited to the extent) necessitated by the scheduling of such a deposition. Plaintiff's counsel advised us that he does not object to our update on the grounds of the timeliness of our update, but he does object, as a general matter, to the relevance of Dr. Rochester's opinion to plaintiff's damage claims. We respectfully submit that Dr. Rochester's supplemental update to his report will be helpful to the Court and the parties, in disclosing the impact of additional information considered by Dr. Rochester after his 2002 opinion. CONCLUSION For the foregoing reasons, we respectfully request that the Court grant this motion. Respectfully submitted, STUART E. SCHIFFER Deputy Assistant Attorney General /s/ JEANNE E. DAVIDSON Acting Director /s/ John H. Roberson by /s/ Brian A. Mizoguchi JOHN H. ROBERSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L St., N.W. Washington, D.C. 20530 Tele: (202) 353-7972 Fax: (202) 514-8640 Attorneys for Defendant

OF COUNSEL: ARLENE PIANKO GRONER ELIZABETH HOSFORD BRIAN A. MIZOGUCHI JOHN J. TODOR SAMEER YERAWADEKAR Trial Attorneys Department of Justice

February 8, 2007

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Case 1:95-cv-00468-TCW

Document 161

Filed 02/08/2007

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on this 8th day of February, 2007, a copy of the foregoing DEFENDANT'S MOTION FOR LEAVE TO REVISE BY SUPPLEMENTAL UPDATE THE EXPERT WITNESS REPORT OF DR. DAVID P. ROCHESTER 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/ Brian A. Mizoguchi Brian A. Mizoguchi

Case 1:95-cv-00468-TCW

Document 161

Filed 02/08/2007

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EXHIBIT 1