United States' Motion to Exclude Expert Testimony of Plaintiffs'

premises if the "transaction" referred to in the first premiseis the same as "the swaps" referred to in the second premise.This would only make sense if the transaction at issue was aninvestment in the swaps by themselves, shorn of all of the otheraspects of the transaction (described by Dubinsky at pages 3-15of his report).Dubinsky does not explain why those otheraspects ought to be ignored when assessing profit potential andeconomic substance.In their deposition testimony the principals stated thatthey viewed the swaps and the other aspects of the transactionas parts of an integral whole. For instance, Montgomeryexplained in his deposition that he viewed the swaps as "anoverall part of the transaction."(Montgomery Deposition at446: 7. ) He explained that if the strike prices were not hit, sothe swaps settled out of the money, it would be a benefitbecause the tender offer would be cheaper. (Id. at 446:8.) Onother hand, if the strike prices were hit, so the swaps settledin the money, there would be a benefit from the swaps, but thiswould be offset by the higher price (in us dollars) for pursuingthe tender offer. (Id. at 446:9-10.) Beal stated in hisdeposition thatyou enter in (to) a hedge not to make moneyon the hedge; you ender into a hedge toprotect against some other consequence. So,you know, the expectation of the transactionhad more to do with the value of completing- 8 -