25450
1 UNITED STATES OF AMERICA
BEFORE THE
2 OFFICE OF THRIFT SUPERVISION
DEPARTMENT OF THE TREASURY
3
In the Matter of: )
4 )
UNITED SAVINGS ASSOCIATION OF )
5 TEXAS, Houston, Texas, and )
)
6 UNITED FINANCIAL GROUP, INC., )
Houston, Texas, a Savings )
7 and Loan Holding Company )
) OTS Order
8 MAXXAM, INC., Houston, Texas, ) No. AP 95-40
a Diversified Savings and ) Date:
9 Loan Holding Company ) Dec. 26, 1995
)
10 FEDERATED DEVELOPMENT CO., )
a New York Business Trust, )
11 )
CHARLES E. HURWITZ, )
12 Institution-Affiliated Party )
and Present and Former Director )
13 of United Savings Association )
of Texas, United Financial Group,)
14 and/or MAXXAM, Inc.; and )
)
15 BARRY A. MUNITZ, JENARD M. GROSS,)
ARTHUR S. BERNER, RONALD HUEBSCH,)
16 and MICHAEL CROW, Present and )
Former Directors and/or Officers )
17 of United Savings Association of )
Texas, United Financial Group, )
18 and/or MAXXAM, Inc., )
)
19 Respondents. )
20
21 TRIAL PROCEEDINGS FOR OCTOBER 8, 1998
22
25451
1 A-P-P-E-A-R-A-N-C-E-S
2 ON BEHALF OF THE AGENCY:
3 KENNETH J. GUIDO, Esquire
Special Enforcement Counsel
4 PAUL LEIMAN, Esquire
SCOTT SCHWARTZ, Esquire
5 BRUCE RINALDI, Esquire
RICHARD STEARNS, Esquire
6 and BRYAN VEIS, Esquire
of: Office of Thrift Supervision
7 Department of the Treasury
1700 G Street, N.W.
8 Washington, D.C. 20552
(202) 906-7395
9
ON BEHALF OF RESPONDENT MAXXAM, INC.:
10
FRANK J. EISENHART, Esquire
11 of: Dechert, Price & Rhoads
1500 K Street, N.W.
12 Washington, D.C. 20005-1208
(202) 626-3306
13
DALE A. HEAD (in-house)
14 Managing Counsel
MAXXAM, Inc.
15 5847 San Felipe, Suite 2600
Houston, Texas 77057
16 (713) 267-3668
17 ON BEHALF OF RESPONDENT FEDERATED DEVELOPMENT CO. AND
CHARLES HURWITZ:
18
RICHARD P. KEETON, Esquire
19 KATHLEEN KOPP, Esquire
of: Mayor, Day, Caldwell & Keeton
20 1900 NationsBank Center, 700 Louisiana
Houston, Texas 77002
21 (713) 225-7013
22
25452
1 ON BEHALF OF RESPONDENT FEDERATED DEVELOPMENT CO.,
CHARLES HURWITZ, AND MAXXAM, INC.:
2
JACKS C. NICKENS, Esquire
3 of: Clements, O'Neill, Pierce & Nickens
1000 Louisiana Street, Suite 1800
4 Houston, Texas 77002
(713) 654-7608
5
ON BEHALF OF JENARD M. GROSS:
6
PAUL BLANKENSTEIN, Esquire
7 MARK A. PERRY, Esquire
of: Gibson, Dunn & Crutcher
8 1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5303
9 (202) 955-8500
10 ON BEHALF OF BERNER, CROW, MUNITZ AND HUEBSCH:
11 JOHN K. VILLA, Esquire
MARY CLARK, Esquire
12 PAUL DUEFFERT, Esquire
of: Williams & Connolly
13 725 Twelfth Street, N.W.
Washington, D.C. 20005
14 (202) 434-5000
15 OTS COURT:
16 HONORABLE ARTHUR L. SHIPE
Administrative Law Judge
17 Office of Financial Institutions Adjudication
1700 G Street, N.W., 6th Floor
18 Washington, D.C. 20552
Jerry Langdon, Judge Shipe's Clerk
19
REPORTED BY:
20
Ms. Marcy Clark, CSR
21 Ms. Shauna Foreman, CSR
22 .
25453
1
2 INDEX OF PROCEEDINGS
3
Page
4 BARRY MUNITZ
5 Continued Examination by Mr. Guido......25454
6 Examination by Mr. Villa................25602
7 Further Examination by Mr. Rinaldi......25627
8 .
9 .
10 .
11 .
12 .
13 .
14 .
15 .
16 .
17 .
18 .
19 .
20 .
21 .
22 .
25454
1 P-R-O-C-E-E-D-I-N-G-S
2 (9:00 a.m.)
3 THE COURT: Be seated, please. The
4 hearing will come to order.
5 Mr. Guido, you may continue with your
6 examination.
7 MR. GUIDO: Thank you, Your Honor.
8
9 CONTINUED EXAMINATION
10
11 Q. (BY MR. GUIDO) When we broke last
12 evening, Dr. Munitz, I was asking you some
13 questions about Mr. Huebsch. Did -- I would like
14 to finish that line of questioning, if I may.
15 Did Joe Phillips -- was his supervisor
16 Ron Huebsch during the time that Joe Phillips was
17 at USAT?
18 A. That would have been in the early
19 Eighties. I remember Ron Huebsch as being one of
20 the people with whom Mr. Phillips would have
21 worked most closely. I'm not sure about the
22 direct sense of supervisor -- I couldn't say that
25455
1 he wasn't, and I do recall that that probably was
2 the closest relationship he would have had, the
3 financial officers at -- I think we were saying a
4 little bit yesterday about the role of financial
5 officers at USAT.
6 Q. Did USAT have an organizational
7 structure?
8 A. Yes.
9 Q. Was Ron Huebsch in that organizational
10 structure?
11 A. Well, as related to certain areas of
12 responsibility, I saw him as playing a role. I
13 don't have a chart in front of my mind.
14 Q. Prior to Sandy Laurenson's arrival, was
15 he the head of investments?
16 A. I don't -- I just don't recall
17 specifically what his title was at that point.
18 Q. Who did Ron Huebsch report to?
19 A. As related to -- again, he was working
20 on his time in different companies. So, I'm
21 assuming you mean as relates to United Savings?
22 Q. Yes.
25456
1 A. Well, again, I assumed that his
2 supervisors would have been in the financial
3 organizational line so that it would have been
4 probably for most of that time, in my mind,
5 Mr. Crow.
6 Q. Take a look at your transcript of
7 April 3rd, 1997.
8 MR. GUIDO: I have another copy for the
9 Court.
10 Q. (BY MR. GUIDO) Now, look at Page 39.
11 A. May I remove this staple, Mr. Guido?
12 Q. Pardon?
13 A. May I remove this staple?
14 Q. Sure.
15 A. Okay.
16 Q. Look at Page 39. There's a colloquy in
17 there about Mr. Huebsch on that page. And on
18 Line 13, it says, "Let me ask the questions. I'll
19 ask another. Did Mr. Huebsch report to you?"
20 ANSWER: "No."
21 Do you see that?
22 A. Yes.
25457
1 Q. And "who did he report to" is the next
2 question. Will you read the response into the
3 record?
4 A. Line 17, "For most of the time on most
5 activities, he" -- 18 -- "would have reported to
6 Mr. Hurwitz."
7 Q. All right. Does that refresh your
8 recollection of who Mr. Huebsch reported to at the
9 time that you were at USAT?
10 A. Well, it does in one sense. I'm just
11 not sure whether that represents -- I don't know
12 the context here. And if I had been answering
13 that as related to Federated, for example, he
14 clearly would have reported to Mr. Hurwitz.
15 So, I'm just not sure which company was
16 referred to on that Page 39.
17 Q. Is this OTS proceeding an investigation
18 of the management of United Savings Association or
19 the management of Federated?
20 MR. VILLA: I'll object to that
21 question.
22 THE COURT: Would you repeat the
25458
1 question?
2 Q. (BY MR. GUIDO) Is the -- is this
3 proceeding a proceeding challenging the management
4 of Federated or the management of United Savings
5 Association of Texas?
6 MR. VILLA: Object to the question.
7 THE COURT: Well, I think we know who
8 the respondents are in this case.
9 Q. (BY MR. GUIDO) What's your
10 understanding, Mr. Munitz?
11 THE COURT: Can you answer the
12 question?
13 A. Well, I assume, again, that the basic
14 interaction dealt with United -- with the insured
15 institution, but I've also -- you have reminded me
16 repeatedly that other companies are involved here.
17 So, I'm -- I guess the proceeding involves the
18 insured thrift institution.
19 Q. (BY MR. GUIDO) Is your testimony today
20 that with regard to the activities of USAT,
21 Mr. Huebsch did not report to Mr. Hurwitz?
22 A. I'm looking at the page where you
25459
1 directed me. Right underneath there, I say, "Ask
2 me the question again."
3 And then I believe that's me saying,
4 "Not necessarily for UFG and USAT because when he
5 was working on issues related to UFG and USAT, he
6 was, at least in my presence, at the investment
7 committee when I was there working with Gerry
8 Williams, with Jenard Gross."
9 That was the point that I was trying to
10 make.
11 Q. Well, let me -- there's a question in
12 between there where I asked you whether or not he
13 would refuse or not discuss his activities with
14 anyone except Hurwitz.
15 Do you see that?
16 A. I see that. Again, it's -- what I was
17 saying was ask me the question again because,
18 again, I just wasn't understanding the question.
19 Q. I'll ask you the question today --
20 MR. KEETON: Your Honor, before he does
21 that, under the rule of optional completeness,
22 let's get this clear. I want to read it beginning
25460
1 at Page 40, Line 2. This is Dr. Munitz. "Ask me
2 that question again, the whole question."
3 Question by Mr. Guido: "Would this
4 sentence 'would not discuss his activities with
5 anyone except H' describe your view of
6 Mr. Huebsch's approach to his work for UFG and
7 USAT?"
8 ANSWER: "Not necessarily for UFG and
9 USAT."
10 QUESTION: "Okay. Why not not
11 necessarily?"
12 ANSWER: "Because as he was working on
13 issues related to UFG and USAT, he also talked, at
14 least in my presence, at the investment committee
15 when I was there and other occasions with both
16 Gerry Williams and particularly with Jenard
17 Gross."
18 Q. (BY MR. GUIDO) Did Mr. Huebsch report
19 to Charles Hurwitz on his activities on behalf of
20 USAT?
21 A. Now, again, when you say "report," I
22 was asked a question yesterday by Mr. Rinaldi, was
25461
1 I reporting to in the sense of talking to and
2 relating -- you just said to me did he report on
3 Mr. Hurwitz on his activities. Did you mean as a
4 supervisory person or did he talk to him about it?
5 I'm just -- as you can see, I was confused --
6 Q. As a supervisory person. As one of the
7 supervisory people over the activities of USAT,
8 did Ron Huebsch report to Charles Hurwitz?
9 A. I did not perceive that that was a
10 direct and sole reporting line as Mr. Huebsch
11 related to USAT and UFG matters.
12 Q. So, Mr. Hurwitz, you're saying, wasn't
13 his supervisor in that term? Is that what you're
14 saying?
15 A. All I'm saying is that as Mr. Huebsch
16 did work related to UFG and USAT, as I saw him, as
17 I interacted with him at those times that I was at
18 the investment committee, the interaction I saw
19 Mr. Huebsch have was with Mr. Crow, Gerry
20 Williams, and Jenard Gross much more than I saw
21 him have interaction with Mr. Hurwitz.
22 Q. Did you see him have interaction with
25462
1 Mr. Hurwitz about the activities of USAT?
2 A. I saw him talk from time to time with
3 Mr. Hurwitz about USAT's activities, yes.
4 Q. Let's move to another topic, and that
5 is: Have you had or did you have discussions with
6 Mr. Hurwitz at the time that MAXXAM and Federated
7 or MCO and Federated were acquiring interests in
8 the stock of UFG about the Garn-St. Germain
9 statute?
10 A. Okay. That's 16 years ago. At this
11 time, I don't remember specific reference to
12 Garn-St. Germain. I just don't recall right now.
13 Q. Okay. Did you, at the time that MCO
14 and Federated were acquiring stock in UFG, have
15 discussions with Charles Hurwitz in which he
16 related to you that he understood that there was a
17 33 to 1 capital-to-asset ratio in thrifts?
18 A. Again, I just -- a 16-year-ago
19 conversation when I saw -- I was just arriving, I
20 saw him in different settings. I just can't at
21 this point comment specifically on exchanges we
22 might have had.
25463
1 Q. So, you don't recall?
2 A. I don't recall specifically a
3 16-year-ago conversation.
4 Q. Take a look at the larger transcript,
5 the June 8th, 1995 transcript of your deposition?
6 MR. VILLA: Your Honor, I point out
7 again that the examination by Mr. Rinaldi asked
8 the same questions about exactly the same time
9 period slightly differently worded. Instead of
10 asking him about specific questions and answers,
11 he said, "What did Mr. Hurwitz find interesting
12 about USAT? What did you discuss with Mr. Hurwitz
13 about the interesting aspects of USAT? Tell us
14 everything you recall about that."
15 Now, we went through that with
16 Mr. Rinaldi for probably 45 minutes. As a matter
17 of fact, with every board meeting, he asked, "And
18 what else defined interesting about USAT?"
19 Now we're going through the same
20 issues; but instead of using the word
21 "interesting," we're going back on a
22 question-by-question basis. I point this out
25464
1 because this is repetitive questioning, and they
2 are going at the same issue by two different
3 examiners. And that's one thing the Court's
4 ruling did not permit them to do. If Mr. Rinaldi
5 hadn't gone into the issue, I wouldn't be up and
6 objecting now.
7 MR. KEETON: Your Honor, I join in that
8 objection. The whole motivation for buying the
9 stock and how much they were going to buy was gone
10 into my Mr. Rinaldi. If he didn't ask the
11 specific question, it doesn't mean Mr. Guido can
12 go in behind him and fill in the gaps.
13 MR. RINALDI: Your Honor, I showed him
14 a board minute in which the chairman of the board
15 said, "I have an opportunity to acquire UFG
16 shares, and it appears to me to be an interesting
17 opportunity." I asked him if he had any
18 conversation about that interesting opportunity.
19 I did not ask him about Garn-St. Germain. I did
20 not ask him about leveraging. I did not ask him
21 about 33 to 1.
22 None of the materials Mr. Guido is
25465
1 asking him about were part of my examination. I
2 restricted my examination to what was going on at
3 the board minutes where Mr. Hurwitz was at the
4 board and what he told the board with respect to
5 those particular minutes.
6 MR. KEETON: I adhere with my objection
7 and join with Mr. Villa. Very tricky if that's
8 how they are interpreting Your Honor's order.
9 They are covering the same areas with two lawyers.
10 THE COURT: Seems to me Mr. Rinaldi
11 covered the control subject. I thought Mr. Guido
12 was going to get into the investments. Last
13 evening, we started to get into the equity
14 arbitrage and those issues. I thought that's why
15 we had this division of labor. You were the
16 investments person, and Mr. Rinaldi covered these
17 areas of control and the takeover and all that.
18 We had an extensive examination about that.
19 MR. GUIDO: I'm sorry, Your Honor. I
20 am transitioning into the wholesale strategy right
21 here. In fact, this page that I've directed the
22 witness to does exactly that, Your Honor.
25466
1 THE COURT: All right. Let's get --
2 MR. GUIDO: I'm not going into the
3 motivation for the purchase of the thrift. What
4 I'm going into is what Charles Hurwitz' role was
5 and what Mr. Munitz' role was in setting the
6 investment direction of the thrift. This was a
7 transition question, and the answer to the -- to
8 the question I asked the witness to refresh his
9 recollection --
10 THE COURT: All right. Well, let's
11 hear what your question is.
12 MR. GUIDO: -- to look at Page 141 of
13 this transcript.
14 THE COURT: Let's move along.
15 Q. (BY MR. GUIDO) Page 141 of the
16 June 8th, 1995 transcript. It talks about
17 there -- it says, Question, "When he spoke to you
18 in terms of Garn-St. Germain, did he indicate to
19 you that because of that legislation, it was his
20 view that it could be used for takeover
21 activities?"
22 ANSWER: "No, not for takeover
25467
1 activities but for a broader range of more
2 wholesale-oriented investment type ventures." And
3 then it says "but." Then I asked you another
4 question.
5 MR. KEETON: Your Honor, I object if
6 this is a question or if it's not just reading
7 something into the record that is in violation of
8 Your Honor's order about sustaining the objection.
9 He's still into the control and the purchase of
10 the investment. He's not into the areas he's
11 supposed to be covering.
12 THE COURT: I think we're getting there
13 pretty shortly.
14 MR. GUIDO: Thank you, Your Honor.
15 Q. (BY MR. GUIDO) Now, was Charles Hurwitz
16 a leading proponent of the wholesale strategy at
17 USAT?
18 A. He was one of the people, as I recall,
19 in the strategic planning conversations who argued
20 that we had to make a change from what we had been
21 doing earlier around the board table, yes.
22 Q. Take a look at that same deposition
25468
1 transcript, Page 74. And I'll direct your
2 attention to Line 7 through Line 9. Let me back
3 up, and I'll put it -- start at Page 24, Line --
4 Page 74, Line 24, the first question that puts it
5 into context.
6 "Based upon your conversation with
7 Mr. Hurwitz, did he feel that this was an
8 opportunity to convert United to a wholesale
9 operation?"
10 ANSWER: "I think the UFG board was
11 having that conversation; and he was one of the
12 talkers, as was I. I mean, we were both directors
13 of the UFGI board at that point; so, it need not
14 take a separate confidential walled-off exchange.
15 It was right out there on the table."
16 Do you see that?
17 A. Yes.
18 Q. And then my question is: "I understand
19 that. In that context, he was a leading proponent
20 that they go to this wholesale strategy."
21 What was your answer?
22 A. "Yes, sir."
25469
1 Q. Is that your testimony today?
2 A. Yes, sir.
3 MR. KEETON: Your Honor, that's the
4 whole point. We've now got four times the same
5 answer in the record. I don't know what
6 Mr. Guido's purpose in this is, but I think
7 Your Honor needs to take control of this. He
8 can't impeach the witness when the witness gave
9 the exact answer he's now read to him three times.
10 MR. GUIDO: Your Honor, I think the
11 witness clarified his answer by reading what his
12 response was.
13 THE COURT: I didn't perceive any
14 difference, but let's get to your investment
15 issues.
16 Q. (BY MR. GUIDO) Now I would like to move
17 to another topic, and that is: Did Charles
18 Hurwitz have any role with regard to setting the
19 profit targets for USAT?
20 A. Well, I think particularly in the time
21 when he was the chair of the United Financial,
22 Inc. board, as I recall now, around -- since --
25470
1 again, I mentioned to Mr. Rinaldi yesterday United
2 Savings was the major asset of United Financial
3 Group, Inc. Mr. Hurwitz was the chairman of the
4 UFGI board. So, although I don't recall
5 specifically those conversations, in my mind I
6 would assume he would be one of the participants
7 in that exchange, yes.
8 Q. I would like to show you a document
9 that's been marked as 4340, which is the minutes
10 of the annual meeting of the shareholders of
11 United Financial Group --
12 MR. EISENHART: Your Honor, could we
13 have a real identification of this exhibit?
14 MR. GUIDO: I'm sorry. B4340 was the
15 minutes of the annual meeting of the
16 shareholders --
17 MR. EISENHART: It would simply help to
18 know if it was in evidence and, if so, if there
19 was a tab number. After 103 days, I would think
20 that procedure would have sunk in.
21 MR. GUIDO: Your Honor, it's B4340,
22 which are the minutes of the annual meeting of the
25471
1 shareholders of United Financial Group, Inc.,
2 dated April 30th, 1985.
3 MR. BLANKENSTEIN: Mr. Guido, do you
4 have extra copies of that?
5 MR. KEETON: It's not on the list.
6
7 (Discussion held off the record.)
8
9 MR. GUIDO: I think it is on the list,
10 Mr. Keeton.
11 MR. NICKENS: It's on the supplemental
12 list. We were looking at the original list. It's
13 on the supplemental list, and we have it.
14 THE COURT: All right. Let's proceed.
15 Are you offering this exhibit?
16 MR. GUIDO: I move B4340 into the
17 record.
18 Q. (BY MR. GUIDO) Take a look at --
19 MR. VILLA: No objection.
20 THE COURT: Received.
21 Q. (BY MR. GUIDO) Take a look at Page 3 of
22 the document, Dr. Munitz.
25472
1 Do you see Page 3 of the exhibit?
2 A. Yes.
3 Q. Do you see where it says "Mr. Hurwitz
4 discussed" -- the fifth paragraph down?
5 A. Uh-huh, yes.
6 Q. -- "discussed the company's earnings
7 and his desire to smooth out the
8 quarter-to-quarter earnings of the company"?
9 A. Yes.
10 Q. Now, my question for you is: Did
11 Charles Hurwitz set the profit targets for the
12 association?
13 A. Again, I just want to be sure -- I
14 think the company that's being referred to here is
15 United Financial Group.
16 Q. Which you've testified, have you not --
17 A. I just want to be sure that -- was the
18 question you were asking me about United Financial
19 Group?
20 Q. United Savings Association --
21 A. Okay. I wanted to be sure I understood
22 the question. I think he was, as I say, one of
25473
1 the key people participating in planning about
2 both the holding company and the association.
3 Q. Now, did there exist an entity called
4 the strategic planning committee for USAT?
5 A. Yes. Over a certain period of time,
6 yes.
7 Q. And who were the members of that
8 committee?
9 A. Well, I don't know if I could tell you
10 specifically who they all were; and it was an
11 informal group. It wasn't a line operating
12 committee designated by the board, as I recall.
13 But it would have essentially been the key
14 managers of the association and the holding
15 company. In most instances, those were the same
16 people. And then probably experts inside would
17 have come, depending upon the topic.
18 Q. Now, I would like to direct your
19 attention to Tab 1294, which is Exhibit B3925,
20 which is a memorandum from Mike Crow dated
21 April 28th, 1986. B3925, Tab 1294.
22 Have you had a chance to review that?
25474
1 A. The single sheet?
2 Q. Yes.
3 A. Yes.
4 Q. Now, I would like you -- does that
5 refresh your recollection of who the specific
6 individuals were that were members of the
7 strategic planning committee?
8 A. Basically, yes, although the point I
9 was trying to make was that that -- I'm -- if you
10 had shown me another invitation to another meeting
11 of the strategic planning group, in all likelihood
12 it would have had some different people. I'm not
13 certain those were all specifically the members,
14 but that sounds basically like the core group.
15 For example, Ron Huebsch -- I would be surprised
16 if Ron Huebsch was a regular member of the
17 strategic planning committee.
18 Q. Were you a regular member of the
19 strategic planning committee?
20 A. Oh, yes.
21 Q. Was Gerald Williams a regular member?
22 A. Yes.
25475
1 MR. KEETON: Your Honor, could you ask
2 Mr. Guido to speak up?
3 MR. GUIDO: I'm sorry.
4 MR. KEETON: Thank you.
5 Q. (BY MR. GUIDO) Gerald Williams, I think
6 you said "yes"?
7 A. Yes.
8 Q. Was Michael Crow a regular member?
9 A. Well, again, as I say, this wasn't a
10 formal operating line responsible group. But Mike
11 Crow had the sort of role where he was either a
12 member or he would have regularly been at that
13 group.
14 Q. And was Jenard Gross?
15 A. In the time that he was there, yes, he
16 would be -- in my judgment, it would have been
17 hard to imagine having some conversation of
18 strategic planning where, if Mr. Gross was
19 available, he wouldn't have been there.
20 Q. Was Charles Hurwitz?
21 A. In many instances, he would have been a
22 person we would have invited to that conversation,
25476
1 yes.
2 Q. Now, I would like to direct your
3 attention to the investment committee now.
4 A. Okay.
5 Q. When was the investment committee set
6 up?
7 A. I couldn't tell you right now
8 specifically the time. I don't know.
9 Q. Okay. Was there -- were there
10 different investment committee -- was there a
11 different investment committee for UFG than there
12 was for USAT?
13 A. I don't recall.
14 Q. Was the -- was there essentially one
15 functioning investment committee?
16 A. I mean, my memory at this point is an
17 investment committee that essentially looked at
18 issues related to UFG and USAT, although it --
19 there would have been such a natural overlap, it
20 wouldn't surprise me if that were the case.
21 Q. So, if the minutes show that there were
22 joint meetings, then you wouldn't have any dispute
25477
1 about that?
2 A. Well, I wouldn't have any dispute with
3 what the minutes showed normally anyway. But in
4 this case, I agree with you.
5 Q. Now, did Charles Hurwitz attend
6 investment committee meetings when you were at UFG
7 and USAT?
8 A. Not every one of them but regularly,
9 yes.
10 Q. Now, how did -- do you recall the
11 origination of USAT's investments in
12 mortgage-backed securities?
13 A. The origination?
14 Q. Uh-huh.
15 A. No.
16 Q. Do you recall whether -- how you
17 learned that USAT was going to be making
18 investments in mortgage-backed securities?
19 A. Well, here again, both a long time past
20 and not an area of expertise; but if I'm not
21 mistaken, I think there were some mortgage-backed
22 securities either or both already underway at
25478
1 United or perhaps -- I might be confusing that
2 with the institution we were discussing yesterday
3 with which we merged. But my vague recollection
4 is there were some mortgage-backed securities on
5 either or both of those activity lists as I was
6 arriving.
7 Q. Well, in terms of the expansion in
8 let's say 1984, do you recall that?
9 A. Well, we had talked yesterday about the
10 arrival of Joe Phillips and fixed income
11 activities. So, I remember his arriving -- and I
12 think he was at American General -- and some more
13 complex activity in that time period.
14 Q. Did you attend any presentations of
15 investment bankers regarding mortgage-backed
16 security risk-controlled arbitrage programs?
17 A. Yes.
18 Q. And who were those investment bankers?
19 A. Well, I believe that there were
20 several; and I don't know that I sat in on all of
21 them. The one that comes to mind as you ask the
22 question, I think, is Salomon Brothers.
25479
1 Q. Do you recall when that occurred?
2 A. No.
3 Q. I would like you to look at Tab 242,
4 B377.
5 THE COURT: Is that B377?
6 MR. GUIDO: B377, Your Honor.
7 Q. (BY MR. GUIDO) Does that refresh your
8 recollection of about the time that USAT was
9 expanding its investments in mortgage-backed
10 securities?
11 A. Well, I don't -- again, I'm assuming
12 you don't want me to read this. So, what it --
13 what it says to me is that there was a
14 presentation by Salomon Brothers on the 24th of
15 October 1984 to United Savings of Texas. I don't
16 know if that was the one to which I was referring.
17 I don't know what this is about.
18 Q. Well, was the Salomon presentation on
19 that date at about the time that USAT was
20 increasing its investments in high-yield bonds and
21 equity arbitrage?
22 A. I don't remember the exact timing, but
25480
1 it seems to me roughly the time period that Joe
2 Phillips was arriving. I can't comment now, but
3 I've got no reason to not feel it's in roughly
4 that period.
5 Q. What was the original reason for hiring
6 Joe Phillips?
7 A. My recollection was the desire to have,
8 as part of the management group, someone with more
9 experience in fixed income investments.
10 Q. High-yield bonds?
11 A. I think to the extent to which you
12 would call high-yield bonds within a fixed income
13 category and that that was his experience, I
14 suspect yes.
15 Q. Wasn't that his prior experience?
16 A. I commented again yesterday what I
17 recall about Mr. Phillips -- and I think it was at
18 American General -- that his broad experience, as
19 contrasted with the equity side, was more on the
20 fixed income side. I don't know specifically,
21 Mr. Guido, what part of that. I just don't
22 remember.
25481
1 Q. Now, did Jenard Gross and Charles
2 Hurwitz inform you that they wanted the
3 mortgage-backed security portfolio to increase at
4 about the time of the Salomon presentation?
5 A. Can I separate -- there are two parts
6 of the question. Let me comment to the latter. I
7 can't say right now specifically as to the timing.
8 So, if you'll allow me, I'd like to take that part
9 separately.
10 I don't remember exactly the timing,
11 but Salomon Brothers is a company that I remember
12 making a presentation. So, that sounds, timing,
13 right.
14 Then back to the first part. I don't
15 know that Mr. Gross was there in 1984; but at some
16 point during the strategic planning conversations
17 and around the board table, both Mr. Hurwitz and
18 Mr. Gross would have been amongst the people
19 talking about that strategic direction.
20 Q. Did they -- either Mr. Gross or
21 Mr. Hurwitz -- at any time ask you to recruit
22 somebody to manage the mortgage-backed securities
25482
1 portfolio?
2 A. At any time?
3 Q. Uh-huh.
4 A. Yes. They would have been two of the
5 people who asked me to be in the middle of
6 recruitment that led to Sandy Laurenson's hiring,
7 for example.
8 Q. What about Joe Phillips?
9 A. Well, I would have -- again, as I told
10 Mr. Rinaldi yesterday, I just have less clear of a
11 recollection because that would have been several
12 years before that. I'm pretty clear on the
13 process of Sandy Laurenson because I was right in
14 the middle of that one. I just don't remember as
15 well the Joe Phillips hiring.
16 Q. Why did they tell you -- either
17 Mr. Gross or Mr. Hurwitz -- tell you that they
18 wanted to recruit someone with Sandy Laurenson's
19 qualifications?
20 A. I think by then, it's -- I don't
21 know -- probably a couple of years after this date
22 you've shown me. That exchange I remember more
25483
1 clearly with Mr. Gross where we had had subsequent
2 to this a number of other consultants and
3 conversations with other financial institutions
4 about fixed income paper, about mortgage-backed
5 securities. And the conclusion reached by all of
6 us was that, again, we wanted to further
7 strengthen the portion of the management team that
8 had experience in that area. Their request to me
9 was to look everywhere we could look and try to
10 find the strongest possible person for that role.
11 Q. Why did they want to strengthen the
12 team? Did they tell you?
13 A. Well, they probably -- I can't at this
14 time comment what they said. I could give you a
15 feel for my sense of it.
16 Q. Go ahead. What was your understanding?
17 A. My sense of it was that it was an area
18 that we were gaining great and great understanding
19 of; that amongst our strategic choices, it was an
20 activity that made sense to us; and that, as in
21 all things we did, no differently than they said
22 to me, "We think that that money desk activity
25484
1 makes sense, and let's find the strongest possible
2 person." That led to Jim Jackson. It was the
3 same exchange regarding "Let's find the strongest
4 possible person for this other strategic area of
5 the company."
6 Q. Well, you already had Joe Phillips
7 managing the mortgage-backed security portfolio,
8 didn't you?
9 A. I can't comment specifically on the
10 timing. The only thing I recall was -- again,
11 this would not have been strange at all -- if this
12 is an area we want to be involved and it's a
13 complicated area, let's be absolutely certain that
14 we have the best possible people.
15 Q. Now, what were the purposes of the
16 mortgage-backed security portfolio?
17 A. Well, in general, my sense of it was
18 to -- that it would be one component of an overall
19 financial strategy. That part, as I recall,
20 basically geared to, in general, obviously the
21 generation of revenue. I think that was the
22 purpose of everything we were doing. And
25485
1 specifically in this way, to create a yield income
2 over time that would strengthen the bottom line.
3 Q. How was it to generate a yield income
4 or spread?
5 A. Well, you're about to enter an area
6 where I move precariously in terms of my own
7 knowledge and particularly after all of this time.
8 My general sense was that by matching certain
9 assets and certain liabilities without any
10 scientific certainty, that what Salomon Brothers
11 and others were saying were this was a financial
12 strategy that, in all likelihood, would generate a
13 yield positive impact on the bottom line.
14 Q. Well, how were you to protect against
15 interest rate shifts?
16 A. Well, again, my feel -- I'm not sure
17 that anyone was guaranteeing that you could
18 protect against interest rate shifts. I remember
19 either Salomon Brothers or someone else making a
20 presentation that had an overhead that looked at
21 historically here's how interest rates have
22 shifted and, in all likelihood, they shift in this
25486
1 pattern up and this pattern down and that in
2 certain combinations of assets and liabilities and
3 there were -- again, without being able to
4 scientifically define them -- hedges and swaps
5 related to the mortgage-backed securities that
6 would generate that revenue.
7 Q. Well, was it your understanding, then,
8 that what was being proposed was a risk-controlled
9 arbitrage in which short-term funding of reverse
10 repurchase agreements were used to finance
11 purchases of mortgage-backed securities and the
12 interest rate risk was to be hedged with swap
13 agreements?
14 A. Well, you've just told me a lot more
15 than I either knew or remembered. I'm just not
16 sure at this point in time about that level of
17 detail, Mr. Guido. I ought not to comment on that
18 degree of specificity.
19 Q. So, you don't know?
20 A. I don't right now remember that level
21 of detail.
22 Q. Let's take a look at your June 8th,
25487
1 1995 transcript at Page 1 --
2 A. Is that the big one?
3 Q. The big one. Page 154 through 155
4 starting on Line 10 of 154 through Line 19 of
5 Page 155.
6 A. Sir, I want to be sure I have the
7 right -- Line 10 says, "Mr. Stuart, excuse me. Is
8 there a date on that?"
9 Q. Hold on one second. I'm sorry. Well,
10 I can't address you to the transcript because I
11 have the wrong page.
12 So, you don't recall specifically what
13 the nature of the mortgage-backed security
14 portfolio was to be in 1984?
15 A. I was referring -- just trying to move
16 through with you to the last question. I don't
17 recall at this point the specific -- you mentioned
18 something repo, and I simply don't at this point
19 remember the specificity that you were reflecting
20 in your question.
21 Q. Okay. Was it your understanding that
22 the interest rate risk was to be hedged with some
25488
1 instrument?
2 A. In general, that there was to be a
3 balance or -- and/or a hedge, yes.
4 Q. Now, did there come a time when the
5 portfolio was to be increased in size beyond what
6 happened at the end of 1984 and early 1985?
7 A. As I recall -- I'm not sure whether it
8 was that particular portfolio. But as I recall,
9 somewhere in that period to which you were
10 referring earlier about the hiring of Sandy
11 Laurenson, that there was a change in order of
12 magnitude.
13 Q. And was it a threefold increase in
14 magnitude? Do you recall?
15 A. I don't remember -- I don't remember
16 the specifics, but I do remember a change -- an
17 increase.
18 Q. All right. A sizable increase?
19 A. Well, I don't know what the definition
20 is; but I certainly do remember -- it was an
21 increase that, in my memory, wasn't unrelated to
22 the question that I participate in finding what
25489
1 led to Sandy Laurenson.
2 Q. If Sandy Laurenson had testified that
3 she was instructed by Jenard Gross to increase
4 that mortgage-backed security portfolio to
5 $3 billion by May of 1987, would you have any
6 reason to disagree with her?
7 A. I wouldn't have any reason to challenge
8 her testimony, no.
9 Q. Now, who supervised Sandy Laurenson?
10 A. Well, to my -- the conversations I
11 remember most regularly were with Mr. Gross and
12 Mr. Crow. Of hers, that is. Not of mine.
13 Q. Now, you testified that there was an
14 investment committee. Do you recall?
15 A. Today?
16 Q. Do you recall that there was an --
17 A. Yes. I didn't remember when it
18 started; but yes, there was an investment
19 committee.
20 Q. And do you recall whether you were the
21 person that created the investment committee?
22 A. Well, I didn't -- I didn't create it.
25490
1 I certainly remember being involved -- I was
2 involved in getting it started.
3 Q. And do you recall who the members of
4 the investment committee were?
5 A. I don't specifically. Again, as with
6 the strategic planning group, I have a general
7 sense of who was likely to be the members. But
8 I -- if you were to read me the names, I could
9 give you probably a good sense.
10 Q. Was Jenard Gross a member of that
11 committee?
12 A. Well, again, I'm almost certain that he
13 was. You know -- I mean, I just -- it seems to me
14 that he would be one of the people who would be on
15 the investment committee.
16 Q. Were you a member of the committee?
17 A. I originally was a member of it to get
18 it started. And then at some point -- I wouldn't
19 attend regularly each meeting because my function
20 there was very different than the other people's
21 there. And then at some point, I made it --
22 formally made it clear that I was leaving so they
25491
1 would stop saying in the minutes that I wasn't
2 there.
3 Q. Whatever it reflects in the minutes,
4 you have no reason to disagree with them?
5 A. I have no reason to disagree with that.
6 Q. I would like to show you Document 1654,
7 B1626.
8 A. Thank you.
9 Q. Have you had a chance --
10 A. I have.
11 Q. Now, does that refresh your
12 recollection of when you resigned formally from
13 the investment committee?
14 A. Yes. Yes, absolutely.
15 Q. Okay. Now, the -- when was the
16 investment committee created?
17 A. Well, I think I said earlier I just
18 don't remember the specific time.
19 Q. Was it more than a year before
20 May 19th, 1987?
21 A. Again, you -- I suspect you know the
22 date. I don't know the date.
25492
1 Q. If the records show that, would you
2 have any reason to disagree with the fact that you
3 sat on the investment committee for over a year?
4 A. I wouldn't have any reason to disagree
5 with my being a member of the investment committee
6 from whenever the record shows the starting time
7 was to this memo.
8 Q. The memo says that the reason you were
9 given formal membership was "in order to have a
10 critical mass of policy people shaping the initial
11 framework for our activities."
12 Do you see that?
13 A. Yes.
14 Q. What are you referring to there?
15 A. That when the first committee was first
16 established, I believe, by the board, they were
17 concerned -- it was at a time that I was spending
18 more time -- somewhere in that period, I discussed
19 with Mr. Rinaldi about the change of my role and
20 that my responsibility here was to see that the
21 committee was established, that minutes were being
22 taken, that issues were being discussed openly,
25493
1 and that enough people around that table had
2 different policy perspectives to literally, what
3 it says, shape the initial framework for our
4 activities.
5 That having been done, I needed to move
6 on.
7 Q. Now, did the investment committee
8 review mortgage-backed security transactions on an
9 individual basis?
10 A. On an individual basis? I just -- I'm
11 not sure. I mean, the minutes -- I'm just
12 assuming the minutes would have reflected what
13 they did. I don't know if it was on an individual
14 basis. And I wasn't there, as you can see, at
15 every meeting or subsequent to the 19th of May.
16 So, I don't know the specific answer to that
17 question.
18 Q. Was every trade that was made in the
19 mortgage-backed security portfolio reviewed by the
20 investment committee during the period of time you
21 were a member of that committee?
22 A. I'm just not sure. Every trade? I'm
25494
1 just not sure.
2 Q. If Sandy Laurenson testified to that
3 fact, would you have any reason to disagree with
4 her?
5 A. I would have no reason to dispute her
6 sworn testimony.
7 Q. Now, I would like to direct your
8 attention to another topic. And I would you to
9 take a look at Tab 329, which is T4333.
10 Do you have the document before you?
11 A. The one that says "bond man"?
12 Q. Yes. Look at the very last paragraph
13 on that first page.
14 MR. VILLA: Your Honor, may I ask that
15 we give the witness an opportunity to read this
16 document? It wasn't on their pull list; and it's
17 been 14 years or 12 years, whatever it's been. He
18 ought to be given an opportunity to read it, even
19 if he is on the stand.
20 A. (Witness reviews the document.) Okay.
21 Q. Do you see the last paragraph on the
22 first page where it makes a reference to the
25495
1 swaps? It says, "Just like our swaps were not
2 designed properly and didn't give any thought to
3 the possibility of prepayments."
4 Do you see that?
5 A. Yes.
6 Q. Do you know what that refers to?
7 A. No.
8 Q. Do you recall that --
9 A. I should correct one thing. The "no"
10 was to the swaps issue. I have some vague
11 recollection of the issue of prepayments. So, my
12 "no" was to the swap question. Perhaps I answered
13 too quickly.
14 Q. What do you recall about the
15 prepayments?
16 A. Only that at some point in time, there
17 was a discussion about the relationship between
18 interest rates and the rate of prepayment.
19 Q. Now, when I asked you earlier about the
20 question of what the mortgage-backed security
21 portfolio was, as you understood it to be, did
22 you -- you indicated that the purpose was to have
25496
1 some sort of a yield going forward so that it
2 would generate a profit.
3 Do you recall that testimony?
4 A. Yes, sir.
5 Q. That was your understanding of that
6 portfolio?
7 A. That was my general understanding, yes,
8 sir.
9 Q. Now, do you recall there came a point
10 in time after the Salomon Brothers presentation in
11 November of 1984 that that turned out not to be
12 the case?
13 MR. NICKENS: Your Honor, I'm not sure
14 what "not to be the case" means. And "after 1984"
15 takes into a period of about seven years where he
16 was involved. I mean, we need to be a little more
17 specific. We know we have United MBS. We have
18 other portfolios. I'm not sure what he's asking.
19 MR. GUIDO: I'll rephrase the question,
20 Your Honor.
21 Q. (BY MR. GUIDO) Do you recall that there
22 came a time when interest rates declined and it
25497
1 had an impact on the mortgage-backed security
2 risk-controlled arbitrage portfolio at USAT?
3 A. I recall at least one period of time
4 when an interest rate decline caused a greater --
5 at least my memory now is that it caused a greater
6 pace of refinancing or prepayment or both than had
7 been originally assumed in the structure. At
8 least, that's vaguely right now what I remember.
9 That may be, in part, because you have a similar
10 phenomenon. As I look in the newspaper, the same
11 thing is happening today.
12 Q. Do you recall whether it was -- there
13 was an interest rate shift both in time and by
14 intensity of interest rates that caused
15 prepayments to accelerate beyond the point that
16 people at USAT had anticipated?
17 A. I think that was the question I was
18 answering. Maybe I misunderstood the first
19 question.
20 Q. Is your answer "yes"?
21 A. Yes.
22 Q. Do you remember the entity called USAT
25498
1 Mortgage Finance?
2 A. Do I remember it? No.
3 Q. Okay. Do you recall that at the end of
4 1985, that USAT created a subsidiary to purchase
5 additional mortgage-backed securities?
6 A. Well, I have a vague recollection
7 somewhere in that time period that, at least one
8 instance, that a subsidiary was created. And I
9 think -- at least my recollection was one of those
10 subsidiaries was created and then fairly soon
11 after was uncreated.
12 Q. Okay. And do you recall whether or not
13 you participated in any decisions regarding the
14 creation and dissolution of that subsidiary?
15 A. Whether I personally participated?
16 Q. Yeah, as a member of a committee or a
17 member of management.
18 A. I don't remember now where I would have
19 been.
20 Q. If the minutes would reflect that you
21 participated in its creation and discussion of its
22 dissolution, would you have any reason to disagree
25499
1 with those minutes?
2 MR. NICKENS: What minutes are we
3 referring to, Your Honor?
4 MR. GUIDO: The minutes of the
5 executive committee. Excuse me.
6 A. Is this something I've seen? Am I
7 missing something?
8 Q. (BY MR. GUIDO) No. I haven't shown you
9 anything just yet.
10 A. So, I don't know --
11 Q. I'm just asking you whether or not --
12 A. I don't know.
13 Q. I would like you to take a look at a
14 series of documents which are at -- the first
15 document is Tab 1389 at A1218. The second is
16 Tab 1438, which is at A1219. The third is
17 Tab 1390, which is A1220. The fourth is Tab 1310,
18 which is at B697. And the fifth is Tab 585, which
19 is B690.
20 A. Do you want me to look at all of them
21 now or one at a time?
22 Q. We'll go through them one at a time.
25500
1 A. First one is?
2 Q. This is Tab 1389. I think they are in
3 the order that I will be going through them.
4 A. No, they are not. Tell me the first
5 one.
6 Q. Tab 1389.
7 A. Okay.
8 Q. Do you see the discussion of the -- in
9 the second paragraph of the new financing
10 subsidiary regulations?
11 A. Yes.
12 Q. Okay. Does that refresh your
13 recollection that you participated in discussions
14 of the creation of a financing subsidiary of USAT
15 to purchase mortgage-backed securities?
16 A. Yes. That is, that I was there. It
17 doesn't give me much more than that, but yes.
18 Q. Now, take a look at the next document,
19 which is Tab 1438 which is A1219.
20 Does that refresh your recollection
21 that you attended meetings of the --
22 A. Hold on for a minute. (Witness reviews
25501
1 the document.) Okay.
2 Q. Now, I would like to direct your
3 attention in that to Page 2 in the
4 next-to-the-last paragraph.
5 Do you see that?
6 A. Uh-huh. (Witness nods head
7 affirmatively.)
8 Q. It also talks about the new financing
9 subsidiary regulations and possible alternatives.
10 That paragraph which is for the minutes of the
11 executive committee of United Savings Association
12 of Texas is virtually identical to the second
13 paragraph on A1218, which is the minutes of the
14 executive committee of United Financial Group, is
15 it not?
16 A. Looks a lot alike, yes.
17 Q. And did the executive committee of UFG
18 meet jointly with the executive committee of USAT?
19 A. Sometimes. Sometimes.
20 Q. And did it do so at times that the
21 minutes reflect that two separate meetings
22 occurred?
25502
1 A. I don't remember if it was -- one of
2 you yesterday asked me about the membership of the
3 executive committees, and I think you showed that
4 they were virtually the same group. So, I
5 don't -- it wouldn't have surprised me if they
6 were meeting together or in series. And I don't
7 recall -- this is just an occasion where I see
8 there are two separate minutes. I don't know
9 whether that would happen frequently or
10 infrequently.
11 Q. Now I would like to direct your
12 attention to B690, which is at Tab 585.
13 A. (Witness reviews the document.)
14 Q. Have you seen this document before?
15 A. Well, it shows a copy to me. And so, I
16 suspect -- I have no reason to believe that at
17 some point I had not seen it.
18 Q. Have you reviewed this document
19 recently?
20 A. Have I reviewed it recently? No. I
21 don't recall reviewing this document.
22 Q. Have you reviewed any documents that
25503
1 were designated by the OTS as potential exhibits
2 to be used in your testimony by me in this case?
3 MR. VILLA: For the record, I don't
4 know that he knows the source of the documents
5 that we gave him; but they were most of the
6 documents that the OTS had designated. So, he was
7 just shown documents. I'm not sure he could
8 answer that question.
9 Q. (BY MR. GUIDO) You reviewed documents
10 before your testimony?
11 A. It depends on the definition. I flew
12 in the night before this, and I had a brief period
13 once before to take a quick look at some of those
14 documents.
15 Q. Okay. Now, take a look at Page 2 of
16 the document. It talks about USAT Mortgage
17 Finance.
18 Do you see that at the bottom of the
19 page?
20 A. (Witness reviews the document.)
21 Q. Does that refresh your recollection
22 about the creation of the subsidiary by USAT to
25504
1 buy $500 million worth of mortgage-backed
2 securities hedged with swaps?
3 A. Beyond -- in any meaningful way beyond
4 reading this paragraph right now, no.
5 Q. Okay. Let's take a look at
6 Exhibit B697, which is at Tab 1310.
7 A. Two pages?
8 Q. I have one page.
9 A. Okay.
10 Q. Do you see it indicates you as being a
11 recipient of that memorandum?
12 A. Yes, sir.
13 Q. Do you recall reviewing this document
14 before your testimony?
15 A. I'm not -- again, I don't know -- I
16 just don't know. Do you want me to read it?
17 Q. Do you recall ever seeing this
18 document?
19 A. I have no reason to believe I didn't,
20 but I don't remember it.
21 Q. Do you know why USAT Mortgage Finance
22 was dissolved?
25505
1 A. I have a vague recollection if -- as I
2 referred earlier, if this is the one -- and Jim
3 Pledger -- I think Jim Pledger had been the
4 general counsel and then became the Texas Savings
5 and Loan commissioner. If that's the -- if this
6 is the occasion, some expectation about
7 regulations referred to in this Pledger memo
8 turned out not to be the case. That's a very
9 vague -- I'm not sure that I'm even referring to
10 the right situation.
11 So, I probably should answer the
12 question, "No, I'm not certain."
13 Q. Now, I would like to direct your
14 attention to another area; and that is how the
15 mortgage-backed security portfolio was managed
16 by -- by USAT.
17 A. Okay.
18 Q. You testified that your understanding
19 was that the general purpose was -- your
20 understanding of the general purpose of the
21 portfolio is it would be a risk-controlled
22 arbitrage hedged with instruments such as swaps to
25506
1 generate an interest rate spread.
2 Do you recall that testimony?
3 A. I think you just summarized it better
4 than I did. That was basically my understanding.
5 Q. Basically your understanding of what
6 the mortgage-backed security portfolio was?
7 A. Yes.
8 Q. Did the mortgage-backed securities
9 portfolios end up operating that way?
10 MR. NICKENS: Your Honor, he just asked
11 the witness "portfolio"; and now he's asking a
12 question which I can barely hear where I believe
13 he said "portfolios." Now, this witness'
14 recollection of these events from a long time ago
15 is understandably vague. We have known from,
16 what, 103 days here that there were many
17 strategies involving mortgage-backed securities.
18 If Mr. Guido wants to focus on a
19 specific one and get the witness' recollection, we
20 have absolutely no problem with that. For him to
21 summarize a strategy and say "portfolio" and then
22 come back and say, I will say under his breath,
25507
1 "portfolios" is not a fair question.
2 THE COURT: All right. Restate it
3 so --
4 MR. KEETON: I want to join in that,
5 Your Honor; and I don't think it's unintentional
6 when he drops his voice.
7 Q. (BY MR. GUIDO) Mr. Munitz, do you have
8 any understanding of any mortgage-backed security
9 portfolios or portfolio at USAT that USAT didn't
10 attempt to reduce the interest rate risk in that
11 portfolio by the use of hedging instruments?
12 A. Well, I -- I don't even under the
13 question. So, I guess the answer is "no."
14 Q. You sat on the investment committee,
15 correct?
16 A. As I think I said earlier, I was not
17 there as one of the world's greatest experts on
18 these instruments. I was there to make sure the
19 people who were were acting in the best interests
20 of the institution.
21 Q. How were you able to ascertain whether
22 or not they were acting in the best interests of
25508
1 the institution?
2 A. Well, this is basically what I do for a
3 living, deal with people in my academic life who
4 know more than I do about virtually everything.
5 My task is to use my good judgment to be sure the
6 right issues are raised, that the rights experts
7 are there, that the right materials are studied,
8 and to make sure responsible expertise is brought
9 to bear. This is what I've been raised to do.
10 Q. Is one of your views of your role to
11 make sure that the proper policies are followed?
12 A. I don't monitor it all the time, but
13 one of my roles is to try to be sure that
14 appropriate policies are in place and that there
15 are people there whose job it is to monitor their
16 application.
17 Q. Was it your understanding at the time
18 that you were at USAT that sales out of a
19 mortgage-backed security risk-controlled arbitrage
20 for the purpose of generating accounting gains was
21 a proper function of a risk-controlled arbitrage
22 portfolio?
25509
1 A. Again, I don't -- I just don't know
2 enough at this point in time to answer that
3 question or even be certain that I understand the
4 technical nature of that question.
5 Q. So, you don't know what the distinction
6 is between managing a portfolio for purposes of
7 generating an interest rate spread and managing a
8 portfolio in order to generate accounting gains
9 through sales?
10 A. Well, I have a general sense of a
11 distinction between managing a portfolio for yield
12 and spread, managing a different kind of portfolio
13 for investment returns. I'm not sure about the
14 question about accounting gains because that --
15 being raised by a father who's an accountant, he's
16 taught me a long time ago not to throw that word
17 around. I'm not sure what that means.
18 I understand the distinction between
19 those two. And at least I thought I once
20 understood that in looking at earnings, sometimes
21 one acts in a way that looks like the other. I
22 just don't understand the specifics of the
25510
1 question.
2 Q. What is your understanding of the
3 distinction between those two portfolios?
4 A. My basic understanding of the
5 underlying distinction is that in one set of
6 activities, the basic objective is as close as one
7 can get to a managed -- "locked-in" is the phrase
8 that people used. I never believed that was a
9 scientific term myself. That you're managing one
10 portfolio for its yield spread income and thereby
11 bring certain accounting and regulatory
12 implications and that you're managing another kind
13 of portfolio for trading purposes or for
14 shorter-term activity purposes or because you're
15 planning to sell all or part of those pieces over
16 different periods of time and thereby bring very
17 different accounting and regulatory expectations.
18 Q. What is your understanding of the
19 purposes of the equity arbitrage portfolio that
20 was held at USAT?
21 A. My sense of the equity arbitrage
22 portfolio is that it tended to fall into the
25511
1 latter of those two categories. That's my memory
2 of it. I could be putting it in the wrong
3 category.
4 Q. What do you mean when you say "the
5 latter"?
6 A. The latter of my two was that the
7 equity arbitrage portfolio was more likely to be
8 managed with a shorter framework which might or
9 might not be matched to other instruments but that
10 was treated by accountants and by regulators
11 differently than the portfolio that would be
12 managed for fundamentally yield and spread
13 purposes, although trades may be made there, as
14 well. Those are the two roads I was trying to
15 describe.
16 Q. Now, with regard to the high-yield bond
17 portfolio, which of the two roads did you
18 understand that to be on?
19 A. As an amateur here and against my
20 better judgment, my instinct is -- and that is in
21 answering the question -- that it's more likely to
22 be in the -- that it's closer to the equity
25512
1 arbitrage than to the mortgage-backed securities.
2 Q. Okay.
3 A. I'm on thin ice of knowledge here.
4 Q. What about the mortgage-backed security
5 portfolio? What did you understand that to be in
6 terms of these two categories?
7 A. I think my earlier testimony was that
8 in terms of those two categories, that the
9 mortgage-backed security portfolio was much more
10 likely to be in the former of those two roads.
11 Q. Now, did there come a time at USAT
12 where its growth strategy wasn't generating
13 sufficient income to offset losses that were
14 embedded in its portfolio?
15 A. I'm not sure -- I'm not sure what "its
16 growth strategy" means.
17 Q. Well, let's go back to the wholesale
18 strategy. What was the purpose of the wholesale
19 strategy?
20 A. Well, again, I'm not -- you had
21 mentioned that earlier. I think I have a vague
22 sense of what the wholesale as against the retail
25513
1 contrast is. I don't think we've talked about
2 that. But my answer to your question basically
3 would be to make money.
4 Q. Well, why don't we start off with, I
5 guess, the questions that I didn't ask you. And
6 that is: What was the wholesale strategy, and how
7 did it differ from what you've just referred to as
8 the so-called retail strategy?
9 A. When I was joining the board and the --
10 in that '82, '3, '4 period that I discussed
11 yesterday with Mr. Rinaldi, basically the
12 activities of most savings and loans -- I think
13 fairly clearly Texas savings and loans -- were
14 dealing with branches and single-family
15 residential lending. And for a variety of
16 economic reasons somewhat vague to me now, those
17 strategies were not all that successful. And,
18 therefore, a lot of people to whom I was listening
19 were discussing more of a wholesale strategy
20 which, as I recall, dealt with a different
21 configuration of branches, a different
22 configuration of the way you brought money in, a
25514
1 somewhat different configuration of the way you
2 dealt with the housing market in terms of putting
3 money out, and other distinctions in business
4 strategy.
5 Q. And was one of the components of that
6 business strategy the sale of branches and to
7 depend more on wholesale deposits, the money desk,
8 to raise funds and to use the profits from the
9 branch sale to leverage up the growth of the
10 institution and invest those funds in
11 mortgage-backed securities, high-yield bonds, and
12 equity arbitrage?
13 A. Would you respectfully let me make
14 those two questions right where you paused?
15 Q. Sure.
16 A. It just might be easier for me to
17 answer your question.
18 I have a fairly clear recollection that
19 one of the strategies in that shift I was
20 describing engaged the sale or the merger or the
21 dispensation or the closing of a number of
22 branches. And as part of that, in the way money
25515
1 was coming in, to deal more with -- not
2 exclusively. There were regular deposits but also
3 more of a money desk deposit. It was kind of
4 answering the first of the two questions. Less
5 clear to me specifically about the linkage.
6 But in my recollection, the number of
7 things that you then went through in the second
8 part of the question or what I'm making the second
9 question were, yes, part of an overall pattern. I
10 just wasn't as sure about the -- you said
11 something about leveraging up or increasing size,
12 and I was trying to piece those apart. Sorry.
13 Q. Now -- but, essentially, what the
14 institution did around November of 1984 was to
15 make a decision to dispose of the branch sales, to
16 use those profits to increase its investments so
17 that there would be new investments that would
18 generate an income to offset the negative earnings
19 of the institution that existed at that time?
20 A. I'm only questioning the linkage you
21 made in terms of "use those profits." As I
22 recall -- I was fairly much involved in the
25516
1 aftermath of the branch sale and combination -- as
2 we were discussing yesterday, that came with the
3 merger. I was less involved with the sort of
4 arithmetic fiscal matters than I was with branches
5 and which people and what did it mean. The only
6 places I can't testify is whether one generated
7 profits and those moneys were then used for other
8 things. As to the broad shift in strategy, that's
9 consistent with what I recall.
10 Q. And that broad shift in strategy
11 included growing the institution to generate
12 additional earnings?
13 A. That's my recollection.
14 Q. And what were those additional earnings
15 to be used for?
16 A. Generating more additional earnings.
17 Q. Were they there to -- I mean, was the
18 increase -- was the growth designed to create an
19 income stream that would offset a pre-existing
20 negative income stream?
21 A. I hope so. I mean, it seems like a
22 reasonable -- yeah, I think so.
25517
1 Q. All right. And were some of the
2 investments that were made, in mortgage-backed
3 securities, high-yield corporate bonds and equity
4 arbitrage?
5 A. Were those some of the investments
6 made? Yes.
7 Q. And were those the primary investments
8 that were made?
9 A. Well, I only remember another of -- a
10 range of other kinds of investments, as well. So,
11 I just can't comment on primary. I don't remember
12 the mix of the numbers. I do remember that there
13 were other strategies.
14 Q. Did there come a point in time when you
15 recognized that the income stream from the growth
16 in the investments in the mortgage-backed
17 securities, high-yield bonds, and equity arbitrage
18 would not offset pre-existing losses?
19 A. My memory is that of the three items
20 you mentioned there in the second half of that
21 question, their income streams over different
22 periods of time were dramatically different. But
25518
1 I testified yesterday that all put together, at
2 some point the numbers for the entire institution
3 at the bottom line were getting worse.
4 Q. What do you mean? After the initiation
5 of the wholesale strategy?
6 A. Well, I was just talking about the time
7 period in which -- you asked me did I remember
8 what they were contributing to the revenue stream.
9 And what I was saying was at different times,
10 different of those pieces were making dramatic
11 contributions to the revenue stream. But that my
12 recollection is over that period of time of my
13 experience there, the overall revenue was going
14 down.
15 Q. I would like you to take a look at
16 Tab 867, which is A10645. I would like to direct
17 your attention to the first paragraph which
18 says -- where it talks about the non-operating
19 gains.
20 A. I haven't gotten through the whole
21 thing. It will just take too much time. Go
22 ahead.
25519
1 Q. See the first paragraph that talks
2 about "the non-operating gains will be necessary
3 to report profits for the third and fourth
4 quarters of 1986"?
5 A. Yes.
6 Q. Does this refresh your recollection of
7 when you became aware that the growth strategy was
8 not going to generate a net income spread
9 sufficient to offset the various items that were
10 generating a negative income spread?
11 A. If you mean when I first became aware,
12 no, because it's very possible that I was becoming
13 aware of that earlier than this. I'm showed a
14 copy of this memo, and it would have been an
15 update. But I'm not sure this was news to me.
16 Q. At least as of this date, June 23rd,
17 1986, you were aware of that fact?
18 A. Yes, sir.
19 Q. And the negative figures are set out in
20 that "net income contribution net of cost of
21 carry."
22 Do you see that?
25520
1 A. I do.
2 Q. Now, I would like to direct your
3 attention to another document which is dated
4 9/8/86. It's really two documents. Tab 335,
5 T4246, which is the strategic planning committee
6 notes of 9/8/86. And then there is the Tab 870,
7 which is the 9/15 Smith Breeden presentation at
8 A10660.
9 A. Do you want me to look at both?
10 Q. I would like you to look at both
11 documents. In fact, the first document, the
12 strategic planning committee notes which is the
13 Tab 335 document --
14 A. Okay. That one first?
15 Q. Take a look at that and flip into the
16 document to where it talks about the Smith Breeden
17 presentation.
18 A. Page?
19 Q. Let me get the page for you. Does
20 yours have the US Bates stamp numbers on the
21 right-hand --
22 A. I have underneath in the middle OW
25521
1 numbers and a T4246 on the top page.
2 Q. I think I have a different --
3 THE COURT: We'll take a short recess.
4 MR. GUIDO: Thank you, Your Honor.
5
6 (Whereupon, a short break was taken
7 from 10:35 a.m. to 11:00 a.m.)
8
9 THE COURT: Be seated, please. We'll
10 be back on the record.
11 Mr. Guido, you may continue.
12 MR. GUIDO: Thank you, Your Honor.
13 THE COURT: We were looking at T4246,
14 and the copy that I have doesn't have any imaging
15 numbers on it. So, when you're directing to a
16 particular paragraph, you'll have to use the
17 numbers on the document.
18 MR. GUIDO: Yes, Your Honor.
19 Q. (BY MR. GUIDO) I would like to direct
20 your attention to the next-to-the-last page of the
21 document.
22 A. Please tell me again, please, the
25522
1 number.
2 Q. Tab 335, T4246. It was the two
3 documents that I gave you together.
4 A. Give me a hand here. Thank you.
5 Sorry.
6 Q. Look at the next-to-the-last page. See
7 where it makes reference to Smith Breeden senior
8 management meeting, Monday, September 15th?
9 A. Yes, sir.
10 Q. Okay. Do you see who it has listed as
11 attending: Mr. Hurwitz, Mr. Gross, you, and then
12 other people?
13 A. Yes.
14 Q. Do you recall attending a presentation
15 by Smith Breeden?
16 A. I do -- I remember at least one
17 discussion with Smith Breeden, yes.
18 Q. All right. And was that shortly before
19 Sandy Laurenson's arrival at USAT?
20 A. Well, I can't -- I think it was roughly
21 in that same period of time. I don't remember the
22 specific sequence.
25523
1 Q. Okay. I would like to now direct your
2 attention to Tab 870, which is the second document
3 I showed you.
4 THE COURT: What number is that,
5 Mr. Guido?
6 MR. GUIDO: That is A10666, Your Honor.
7 That is the document that has been described as
8 the Smith Breeden presentation of September 15th,
9 1986, in the record, Your Honor.
10 THE COURT: Thank you.
11 A. I have the document.
12 Q. (BY MR. GUIDO) Now, I would like to
13 direct your attention to Page 20 -- Page 9 of the
14 document where it talks about recommendations.
15 A. Mr. Guido, mine is not very legible;
16 but I can make it out, I think.
17 Q. I'm sorry. I think that some of these
18 have been faxed and copied and copied and copied.
19 A. Yeah. I think we banned this
20 typewriter.
21 Q. We had a discussion about a similar
22 typewriter in your deposition, didn't we?
25524
1 A. We did.
2 Q. Now, see under "immediate strategies,"
3 it says, "Take gains on portfolio to offset
4 operating losses"?
5 A. Yes. The first bullet, yeah.
6 Q. Now, what portfolio was Smith Breeden
7 hired to take a look at for USAT?
8 A. I'm not -- I'm not sure that I
9 remember. I don't remember.
10 Q. Was Smith Breeden a consulting firm
11 that specialized in risk-controlled arbitrages?
12 A. I don't know -- I remember them as a
13 consulting firm that talked about fixed income
14 securities, I think, from the east coast. I think
15 so. I think so.
16 Q. You think that they --
17 A. That the answer to your question is
18 "yes." I think so.
19 Q. That they were -- I think you said that
20 they were specializing in fixed income securities?
21 A. I vaguely remember that was one of
22 their areas of expertise. I don't know what else
25525
1 they did.
2 Q. Were they hired to look at the
3 mortgage-backed securities portfolio, or were they
4 hired to look at the high-yield bond portfolio?
5 A. My only recollection was their coming
6 to talk about the overall strategy. So, I don't
7 know. I remember them only in terms of broader
8 strategy conversation.
9 Q. You don't remember them doing
10 evaluations of the mortgage-backed securities
11 portfolios?
12 A. I don't remember that.
13 Q. Okay. You don't recall them being
14 retained to provide advice on the mortgage-backed
15 security portfolios?
16 A. As I said, I recall -- I pretty clearly
17 recall them being retained to provide general
18 facilitation of strategy conversations. I just
19 don't remember the specific topics.
20 Q. Okay. So, you don't recall the
21 portfolio that they were asked to advise about?
22 A. I just don't know which specific
25526
1 portfolio that first bullet would have been
2 referring to. I don't remember that.
3 Q. Now, I would like to direct your
4 attention to another document, which is at
5 Tab 871, which is T4250. It's dated 9/22/86.
6 9/22/86, T4250.
7 A. Do I have that? Thank you.
8 Q. Do you see where it has you as a
9 recipient to this memorandum?
10 A. I do vaguely, yes.
11 Q. Now, this is one of the memoranda, I
12 think, that we discussed in your deposition about
13 how difficult they are to read.
14 Do you recall that?
15 A. If it wasn't, it should have been,
16 yeah.
17 Q. I think you referred to these as
18 hieroglyphics in your deposition.
19 Do you recall that?
20 A. I'll stand by that.
21 Q. Now, I would like to direct your
22 attention to the third page of the document.
25527
1 Do you see under "earnings and growth
2 strategy"?
3 A. No. 31?
4 Q. Yes.
5 A. I see that title.
6 Q. Do you see where it saws "our actual
7 net worth"? Do you see that bullet point?
8 A. No. Which is it?
9 Q. It's -- look at the one --
10 A. Which indent?
11 Q. Look at the first five indents.
12 A. Okay.
13 Q. Can you read them?
14 A. I can't. I can read a couple of them.
15 Q. Okay. Let me read them for you.
16 A. Thank you.
17 Q. First bullet point, "Prospects for
18 positive GAAP and RAP earnings are poor in
19 something '87. Our actual net worth will be the
20 same as or below recorded net worth at the end of
21 the third and fourth quarters unless action is
22 taken."
25528
1 A. Is it -- okay. Is that "reported" or
2 "required"? Okay. I guess it doesn't --
3 Q. "Required."
4 A. I thought mine said "required."
5 Q. "We will need earnings and good net
6 worth in the third quarter as we still will be
7 bargaining with the examiners and looking for a
8 capital note issue."
9 Do you see that?
10 A. Yes.
11 Q. Do you know what the reference to
12 bargaining with the examiners was?
13 A. No. It doesn't ring a bell.
14 Q. Do you know what the capital note issue
15 is that's being discussed here?
16 A. I know that -- I think I know that at
17 some point, there was an attempt to increase
18 capital via some sort of instrument. I don't know
19 if that's the one that he's referring to. I
20 believe at one point there was a conversation
21 about that.
22 Q. And who was the underwriter that USAT
25529
1 was discussing that capital note issue with?
2 A. This one referred to --
3 Q. Uh-huh.
4 A. -- the one that I -- I remember a
5 conversation about a capital note issue. I don't
6 remember if they had gone that -- I simply don't
7 remember who that would have been or if they knew
8 who that was. I don't --
9 Q. Then it says, "There is a strong case
10 for taking portfolio gains in the third quarter in
11 order to shore up reserves in the capital
12 position."
13 Do you see that?
14 A. I see that.
15 Q. And it says, "Third quarter results
16 need to be close to those forecast in the
17 regulatory business plan."
18 Do you see that?
19 A. I do.
20 Q. Now -- then I would like to direct your
21 attention to the next page to various bullet
22 points there, and I would like to -- five points
25530
1 up where it says, "Quarter end actions will be
2 considered next Monday."
3 You can't read that?
4 A. I'm having a hard time. I see it
5 basically.
6 Q. Let me read it for you.
7 A. Thank you.
8 Q. "Quarter end actions will be considered
9 next Monday. We should take all MBS and liquidity
10 portfolio gains, monitor equity arbitrage results,
11 alert Joe as to the possibility of taking junk
12 bond gains, and track the profit and capital
13 positions closely."
14 Do you see that?
15 A. With your reading that to me, yes.
16 Q. Now, do you recall that there -- you
17 had discussions in the latter part of 1986
18 regarding taking gains out of the mortgage-backed
19 security portfolio?
20 A. Well, again, having you read that to me
21 and seeing, as I had said earlier to you, the