United States' Motion to Exclude Expert Testimony of Plaintiffs'

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available just sitting there, so I think thedecision was made to deploy it. Number 2, wewere -- we still felt that Solution 6 wasdrastically undervalued at that point intime. Number 3 is we could legally do it,because we hadn't launched a tender but Ithink, fourth, part of our thing was to buy-- I think we bought it all in one big swatand tried to just create a little market tosee if we can stir some activity in theSolution 6 shares. (Montgomery Depositionat 459:7-19.)Dubinsky claims to have considered Montgomery's depositionin rendering his expert opinion (Dubinsky, Appendix B, at 1),and he at tended the deposition. Yet Dubinsky does not describe,discuss, analyze, or even cite to this testimony.I t cannot betrue that he considered this statement and also that he has "notseen any evidence" that purchase of these 165,000 shares serveda business goal.WERE THE TRSACTIONS UNDERTAKN PURSUANT TO A PREARGED PLA?Dubinsky asserts that all of the transactions undertaken byBeal and Montgomery and the entities controlled by them at issuein this case "took place according to a pre-arranged plan."(Dubinsky at 27.)He reaches this conclusion based on hisreview of the "documentary evidence." (Id. at 28.)Dubinsky relies on a series of internal Deutsche Bank e-mails. One e-mail message (DBDOJBEMONT 00001396) between aJenkens & Gilchrist attorney and a Deutsche Bank employee hasnot apparent connection to the transactions at issue in this- 17 -
case. Another set of e-mail messages is an internalconversation among Deutsche Bank employees about the terms ofsome swaps.(BPBDOJBEMONT00001310-12.) Nothing on the face ofthese e-mail messages indicates that they are discussing theswaps that are at issue in this case, or even similar or relatedswaps.The e-mail messages describe swaps with payouts of 2: 1 ifthe swaps settle in the money. The payouts on the swaps atissue in this case would have been 4: 1 if the swaps had settledin the money. There is no indication that the swaps discussedin the e-mail messages are foreign currency swaps, let alone USdollar-Australian dollar swaps like those entered into by BPB.The timing of the messages indicates no connection to BPB's swaptrades, which were not executed until approximately five-andone-halfmonths after the dates of these messages.Montgomery described in his deposition testimony theextensive negotiations that took place in August and September2001 between himself and Beal on the one hand and Deutsche Bankon the other regarding the pricing and terms of the swaps.(Montgomery Deposition at 167:19-25,205:11-207:4,415:24-417:14, 418:25-420:25, 431:18-23, 432:23-433:4, 441:17-23,545: 1-6 ("we negotiated thoroughly (with Deutsch Bank) and Ithink I got a reasonable price" for the swaps).)not discuss these statements.Dubinsky does- 18 -
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UNITED STATES DISTRICT COURTEASTERN
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of the transactions in order to com
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Expert ReportOfDavid A. WeisbachUni
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c.v. is attached as Exhibit A. I am
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The background for the rules allowi
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which provide a general defense aga
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2000-44 transaction. Without expres
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for the potential tender offer of S
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In particular, it is my understandi
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taxpayer wil prevail on the merits
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APPENDIX - DOCUMENTS REVIEWEDDescri
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DAVID A. WEISBACHUniversity of Chic
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143-151.Paretian Intergenerational
Page 29 and 30: APPENDIXList of Prior Expert Testim
Page 31 and 32: QUALIFICATIONSI am an Associate Pro
Page 33 and 34: dollar-US dollar exchange rate duri
Page 35 and 36: facili tate the pursuit of a tender
Page 37 and 38: Beal's and Montgomery's formation o
Page 39 and 40: "-"~-_._.~-,----_..__.._._.__._--_.
Page 41 and 42: LOAN PREMIUM VARIATIONThe loan prem
Page 43 and 44: premium variation, but the second a
Page 45 and 46: Beal and Thomas Montgomery stated t
Page 47 and 48: was planning to acquire. Sanding al
Page 49 and 50: irelationship cannot be eva~uated i
Page 51 and 52: To summarize, Notice 2000-44 descri
Page 53 and 54: IRS and Treasury sometimes refer to
Page 55 and 56: swaps in BPB (as opposed to within
Page 57 and 58: APPENDIX AETHAN YALECurriculum Vita
Page 59 and 60: ETHAN YALEVitae, Page 3PUBLICATIONS
Page 61 and 62: APPENDIX BDescriptionBa tes NumerMa
Page 63 and 64: IRS Information Release IR 2004-64,
Page 65 and 66: PURPOSE OF REPORTThis rebuttal repo
Page 67 and 68: (BM Investments LLC, was subsequent
Page 69 and 70: espect to a potential tender offer
Page 71 and 72: premises if the "transaction" refer
Page 73 and 74: e a payoff of at least $552.5 milli
Page 75 and 76: WAS BEMONT FORMD FOR TAX REASONS? W
Page 77 and 78: (Montgomery Deposition at 516:25-51
Page 79: his case (by showing that admitting
Page 83 and 84: made in Australian dollars, for the
Page 85 and 86: 3. failure to treat the short finan
Page 87 and 88: CONCLUSION OF REPORTThere are signi
Page 89 and 90: DescriptionDeposition of Margaret M
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United States' Motion to Exclude Expert Testimony of Plaintiffs'

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