United States' Motion to Exclude Expert Testimony of Plaintiffs'

WAS BEAL REALLY CONSIDERING A TENDER OFFR?Dubinsky cites an absence of documentary evidencesupporting the idea that Beal and Montgomery were pursuing atender offer, which he finds supports the claim that the swapsentered into by BPB had a tax avoidance purpose.(Dubinsky at28-29.) Dubins kyat tended the depos i tions of both Beal andMontgomery. Both stated at their depositions, repeatedly, thatthe swaps were executed as part of their planned tender offerfor Solution 6. Dubinsky does not assess these statements.Again, Dubinsky only cites to and relies on facts that he findssupport his conclusions (however dubious that support might be),and ignores facts that plainly contradict his conclusions.Then, Dubinsky claims that the absence of a hedge of BealFinancial Corporation's stake in Solution 6 "suggest (s) that thesupposed hedge transactions implemented on September 13, 2001were not actually implemented for this purpose but rather forthe capital losses that were ultimately reported by Plaintiffs."(Dubinsky at 29.)There are two problems with this claim.First, as Dubinsky himself recognizes elsewhere in his report,the losses at issue in this case were ordinary in character;they were not capital losses. (Dubins kyat 23 ("BPB was able toreport nearly $200 million of ordinary losses") .)Second, the principals have consistently stated that thehedge was against the currency risk inherent in a tender offer,- 19 -