Quick Rebuttal to SNH/AOC Objection
1. SNH/AOC ignored the factor that things can change after depositions. THE EC cannot have a fuller view of their document needs until they reviewed the already-submitted documents, and especially, conducted the depositions. It's obvious that EC cannot decide whether or not further documents are needed until they held depositions. I hope the Judge will understand this point.
2. SNH/AOC is accusing the EC wasted 3-4 months not requesting more documents but waited until the very last minutes to make the request in order to disrupt the confirmation process. However, SNH/AOC blatantly ignored the factor of more than month long "settlement talks" (POR7 negotiations). The timeline went like this. On 2/11, the court issued the order of IT investigation. On 2/25, SNH/AOC provided the bulk of their documents to EC (according to SNH objection). Around 3/20, EC received "settlement offer or proposal" from the debtors (likely on behalf of SNH/AOC), according to Susman March Billing Statement. In April, EC was actively pursuing IT investigation (reviewing documents, preparing for depositions, and researching laws) while keeping the dialogue open to the “settlement offer” (see Susman April Billing). Beginning in mid-April, the depositions had been repeatedly rescheduled (see also Susman April Billing and numerous rescheduling notices). It became evident later that the postponements were the result of then on-going “settlement negotiations” between EC, the debtors, and SNHs. Going into May and early June, the settlement negotiations intensified (Susman May Billing), and the depositions were understandably put off further. It’s clear that the settlement negotiations were the main reason to cause the delay of depositions, and subsequently the delay of EC Compel Request. It’s also clear the settlement negotiations were conducted among at least three major parties: the debtors, SNHs, and EC, which we assume they all participated in good faith. It’s utterly erroneous to hold EC responsible for its “delayed” request for further materials. I hope the Judge can see the fallacies in SNH/AOC argument.
3. SNH/AOC contends the knowledge of settlement negotiations (not an actual agreement) is not material information. I’m thinking of the recent fall of Warren Buffet’s lieutenant Sokol. He recommended, negotiated, and had full knowledge of Lubrizol acquisition. He also purchased Lubrizol stocks before the actual agreement. It’s now universally known he had committed improper insider trading activities. How can SNH/AOC argue differently? Why double (or even multiple) standards? The Judge’s remarks that the settlement negotiations themselves are not relevant bothers me. I hope EC can make a well reasoned argument to tear off such notion.
4. SNH/AOC quoted Rosen’s 5/24 statement that EC has not proved anything yet. Technically, Rosen was correct because as of the time he spoke, EC has not completed its investigations yet. In fact, EC has put the investigation (e.g. depositions) on hold because of on going settlement talks. It will be irresponsible for anyone to make conclusions one way or another before the completion of IT investigations. I hope the Judge can fully understand this point too, and support EC’s Motion to Compel.
