Monthly Archives: April 2012
Excerpt from “Rebuttal Expert Report of Tsvetan N. Beloreshki”:
“B. Summary of conclusions
4. Based on my review of the data, I conclude that:
– Indymac’s DSPP stock issuance between February 26, 2008 and February 29, 2008 reduced the book value of the company’s equity by $0.09 per share. That amount equals 0.57% of the $16.61 per share book value as of December 31, 2007.
– Indymac’s DSPP stock issuance during the first quarter of 2008 reduced the book value of the company’s equity by $0.47 per share. That amount equals 2.84% of the $16.61 per share book value as of December 31, 2007. The decline in the book value of the company’s equity during the first quarter of 2008 was attributable overwhelmingly to factors other than the DSPP, among those the net realized and unrealized losses that flowed through shareholders’ equity.
– Indymac’s hypothetical DSPP stock issuance of $50 million worth of Company stock between February 26, 2008 and March 31, 2008 would have reduced book value of the company’s equity by $0.62 per share. That amount equals 3.74% of the $16.61 per share book value as of December 31, 2007.”
Former FASB Director MacDonald Opines on $18 million Intercompany Payable/Receivable at March 31, 2008
Excerpts from “Rebuttal Report of Linda MacDonald”:
10. Based on my review of the materials listed in Exhibit A and my knowledge, training, and professional experience, it is my opinion that the $18 million capital contribution was not “backdated” to March 31, 2008 in the Bank’s Q12008 regulatory filings, as Professor Saunders asserts. Rather, the $18 million capital contribution was appropriately recorded as an intercompany payable/receivable at March 31, 2008 under GAAP, which forms the basis for the Bank’s reporting in the regulatory filings. Accordingly, there was no act of “backdating” to be disclosed in Bancorp’s Q12008 SEC filings.”
“16. Relying on the SEC Complaint in this matter, Professor Saunders asserts that the capital ratio disclosed in Bancorp’s Q12008 SEC filings (10.26%) was false and misleading because the $18 million capital contribution was “backdated” to March 31, 2008 in the Bank’s Q12008 regulatory filings.3
Footnote 3: Professor Saunders states, “For the purposes of preparing this report and developing the opinions expressed herein, I assume the facts as alleged in the SEC’s complaint in this case are true.” (Saunders Report Paragraph 8).”
“17. Recognition is a key concept underlying GAAP and its application. FASB Concepts Statement No. 5, “Recognition and Measurement in Financial Statements of Business Enterprises (“CON 5”) explains, “Recognition is the process of formally recording or incorporating an item” in GAAP financial statements (for example, as a liability or asset). (¶6) Yet the issue of recognition in GAAP is not addressed or otherwise referred to by Professor Saunders (or the SEC).”
“18. As a basis for addressing issues like this one under GAAP the primary focus must be on recognition. That is the essential starting point. The related issues that then follow are measurement and classification. Measurement refers to the amount at which an item is recognized in GAAP financial statements. Classification refers to where in GAAP financial statements the item is shown (for example, within assets, liabilities, or equity). I address those issues below.”
“VI. The Alleged Failure To Disclose
42. Professor Saunders asserts that the alleged “backdating” in the Bank’s Q12008 regulatory filings should have been disclosed in Bancorp’s Q12008 regulatory SEC filings. (Saunders Report p. 6(c)). I disagree. The $18 million capital contribution was not “backdated” to March 31, 2008 in the Bank’s Q12008 regulatory filings. Accordingly, there was no act of “backdating” to disclose in Bancorp’s Q12008 SEC filings.”
Excerpt from Page 1 of “Memorandum of Points And Authorities…”:
“The financial crisis has generated intense pressure on the SEC to target the leaders of many financial institutions that failed in its wake. While that may be warranted in some cases, here the SEC has wrongly maligned the reputation of a CEO who was transparent in disclosing the many challenges Bancorp faced, and whose conduct as a Bancorp shareholder demonstrates that he strongly believed the company could meet those challenges. Things obviously did not turn out as hoped, but that does not justify the SEC’s baseless allegations of securities fraud.
As shown below, Mr. Perry is entitled to summary judgment on most of the SEC’s claims. The remainder can be disposed of at trial.”
Excerpt from “Report of Edward H. Fleischman, SEC vs. Michael W. Perry and A. Scott Keys”:
“III. SUMMARY OF OPINIONS
10. Based on my review of the record, and more than fifty years of experience as a securities regulator and an adviser to public companies on disclosure and corporate governance matters, I have reached the following opinions regarding Indymac’s disclosure process and controls in 2008.
11. Indymac’s Sarbanes-Oxley disclosure controls and process were rigorous and well within the standards for such controls set by applicable guidance.
12. Indymac’s disclosure controls were applied and followed consistently throughout the period from January 1, 2008 through May 12, 2008, even under the pressure of fast-moving events.
13. The application of Indymac’s disclosure controls during this period evidence a great deal of good faith effort to comply with Indymac’s disclosure obligations by Mr. Perry, Mr. Keys, and many others acting under their supervision.
14. Indymac’s disclosure of its total risk-based capital ratio in the May 12, 2008 Form 10-Q compares favorably with that of other bank holding companies of similar size at the time.”
Excerpts from “Expert Report of Kenneth M. Lehn”:
“8. I have been asked by counsel for the Defendants to form an opinion as to whether the alleged misrepresentations and omissions regarding the DSPP and the Bank’s capital ratios materially affected Indymac’s stock price. I have also been asked to determine whether the Defendant’s trading in Indymac stock provides a reliable basis to conclude that they intended to conceal material information from Indymac’s shareholders.”
“9. Based on this review and analysis, as well as my background and expertise, I have reached the following principal conclusions:
– The economic evidence does not provide a reliable basis to conclude that the alleged false and misleading statements and omissions materially affected Indymac’s stock price.
– Defendants’ trading behavior and public statements do not provide a reliable basis to conclude that the Defendants intended to conceal material information from Indymac’s shareholders.”
“11….I find that there is no reliable basis to conclude that the alleged misstatements and omissions related to Indymac’s DSPP materially affected Indymac’s stock price.”
“19. As a result of these adverse changes in economic conditions, it was well understood by market participants that Indymac’s capital ratios could fall below regulatory “well-capitalized thresholds and that the Company might need to raise additional capital.”
“38. On May 1, 2008, the first trading day following Indymac’s alleged first disclosure that it was raising capital through its DSPP during the first quarter of 2008, Indymac’s stock price exhibited a large positive abnormal return of +19.9 percent.”
“38….”Indeed, a May 1, 2008 KBW analyst report states that KBW analysts were not surprised by Indymac’s use of its DSPP and that they believe that Indymac needs to raise much more capital:”
“44. Contrary to the SEC’s claims, I find that Indymac’s Forms 10-Q and 10-K filings did disclose whether the Bank’s risk-based capital ratio numbers were or were not based on double risk-weighting of subprime assets.”
“46/48.….So long as the Bank was considered well-capitalized by the OTS, there is no reason to believe that Indymac’s stock price would have been materially impacted by further disclosures concerning the methodology used for determining the Bank’s risk-based capital ratio or additional information regarding the specific OTS-approved capital ratio criteria.”
“49….In fact, I understand that Indymac Bank’s risk-based capital ratio would have remained above 10 percent even if the $18 million contribution were excluded from the Bank’s calculations and the full amount of the identified audit adjustments were included in the Bank’s calculations.”
“51. The economic evidence concerning the Defendants’ trading in Indymac common stock and their negative public statements about conditions in the housing and credit markets and the resultant impact on Indymac’s business does not provide a reliable basis to conclude that the Defendants intended to conceal material information from Indymac’s shareholders.”
“52. Neither Mr. Perry nor Mr. Keys sold any of their Indymac common stock holdings between the time of the first alleged false and misleading statement on February 12, 2008 and July 14, 2008 the first day of trading following the announcement that Indymac Bank was seized by regulators. See Exhibit P. In fact, as the exhibit demonstrates, Mr. Perry spent over $2.6 million purchasing Indymac common stock during this time period. The exhibit also shows that both Mr. Perry and Mr. Keys lost virtually their entire investment in Indymac common stock. Mr. Perry’s and Mr. Key’s stock and vested options were worth $69.7 million and $3.0 million, respectively, on December 31, 2006. Defendants lost virtually the entire value of that investment, as well as the value of their subsequent stock purchases…… Defendants would have had a financial incentive to sell their Indymac holdings rather than purchase additional shares prior to the disclosure of the alleged missing information if Defendants had intended to conceal material information from Indymac’s stockholders in an attempt to artificially inflate Indymac’s stock price.”
“54. Additionally, Defendants made numerous negative statements during this same time period about the collapse of the housing and credit markets and the impact of those adverse changes in economic conditions on Indymac’s business and future prospects. Exhibit Q lists a selection of some of the negative statements made by Defendants or included in signed company filings in 2008. It would not have been in Mr. Perry’s and Mr. Key’s financial interest to make these negative statements prior to selling their Indymac stock holdings.”
Excerpts from “Expert Report of Angelo A. Vigna”:
“III. Summary of Opinions
6. Based on my review of the materials and my knowledge and experience as a banking regulator, I conclude the following:
– It was appropriate for the Bank to calculate and report its regulatory capital ratios at March 31, 2008 in accordance with criteria approved by the OTS, the Bank’s primary federal regulator.
– It is a common regulatory practice for regulators to require institutions under their supervision to submit non-public specialized reports covering areas of concern or interest to the regulator.
– The Bank was prohibited by OTS regulation from publicly disclosing its CAMELS rating or any potential changes to its CAMELS rating.
– It has been the OTS’s longstanding policy and practice to look to thrift holding companies as a source of strength for their thrift subsidiaries. In this regard, it is common and customary for holding companies to maintain sufficient capital at their thrift subsidiaries through capital markets transactions.”
“11. Because the Bank’s primary federal regulator, the OTS, approved the transaction (the $18 million intercompany receivable) and did not raise any safety and soundness concerns, it is my opinion that the Bank acted appropriately by calculating its capital ratios as of March 31, 2008, in accordance with the criteria approved by the OTS.”
“12…..Accordingly, Bancorp’s disclosures in its 2007 10-K and first quarter 10-Q that the Bank was well capitalized were entirely accurate.”
“17…..Indeed, any public disclosure of such information (the CAMELS rating or possible changes to it) by Indymac management could have resulted in regulatory and/or criminal sanctions.”
“18…..Accordingly, there was nothing for Indymac to disclose with respect to its CAMELS rating, or the effects thereof, in the relevant SEC filings.”
“21…..Investors in a holding company like Bancorp would well understand that capital raised through a direct stock purchase plan or otherwise would have been used to maintain the subsidiary bank’s capital ratios and otherwise support its operations.”
“22…..For this further reason, investors would well understand that Bancorp would likely have contributed capital to the Bank to support its capital ratios and otherwise maintain the Bank’s financial strength.”