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60 Main #3

60 Main #3

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Published by Griswold
11/02/2011 - UWBK UNITED WESTERN BANK, et al v. COMPTROLLER OF THE CURRENCY, et al
11/02/2011 - UWBK UNITED WESTERN BANK, et al v. COMPTROLLER OF THE CURRENCY, et al

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Published by: Griswold on Nov 03, 2011
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11/03/2011

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA_______________________________________)UNITED WESTERN BANK,
et al.
, ))Plaintiffs, ))v.
 
))OFFICE OF THE COMPTROLLER OF THE )CURRENCY,
et al.
, ))Defendants. )_______________________________________)1:11-cv-00408The Honorable Amy Berman Jackson
PLAINTIFF’S RENEWED SECOND MOTION TO COMPELPRODUCTION OF THE COMPLETE ADMINISTRATIVE RECORD
Plaintiff United Western Bank, shortly after filing this challenge to its seizure by theOffice of Thrift Supervision (“OTS”), sought the immediate production of the administrativerecord that the OCC claims justified the seizure.
See
Pls.’ Mot. Compel Production of theAdmin. R., Mar. 1, 2011, ECF 10. During the ensuing eight months Defendants have, indeclarations, its court filings, and in oral argument, repeatedly represented to the Court that it hasin fact produced the entirety of the administrative record. After Plaintiffs established to thisCourt’s satisfaction that significant questions still existed about the completeness of theadministrative record, the Court issued an Order requiring Defendants to respond toInterrogatories and Requests for Production of Documents designed to establish the adequacy of that record. The Court did not give Plaintiffs a discovery blank check and edited the discoveryrequests and their instructions after a careful review. The response to the discovery requests bythe OCC demonstrates that the sworn declarations filed with this Court that the administrativerecord produced on June 15, 2011, was “an accurate and complete record of all information that
Case 1:11-cv-00408-ABJ Document 60 Filed 11/02/11 Page 1 of 4
 
 
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[the former Acting Director] considered, directly or indirectly, and upon which [he] relied inmaking the January 21, 2011 decision to appoint a receiver for United Western Bank,” werefalse.Defendants in their discovery responses have identified over 1,000 pages of documentsprovided to, considered by, or relied upon by the former Acting Director that were not includedin the incomplete record they presented to the Court as the only information it should consider inpassing on the appropriateness of the seizure of the Bank. Moreover, even with this court-ordered supplementation of record, it remains demonstrably incomplete. Therefore, Plaintiff respectfully requests that this Court order Defendants Office of the Comptroller of the Currencyand Acting Comptroller John G. Walsh immediately comply with the Court’s September 9, 2011discovery order.In view of Defendant’s continued refusal to identify or produce a complete administrativerecord and the inaccuracy of their prior certifications of its completeness, Plaintiff respectfullyrequests that the Court also order (i) Defendants to provide a declaration detailing the effortsmade to comply with the September 9 order and make the declarant available for a deposition orquestioning before the Court and (ii) that Defendants make available former Acting DirectorJohn E. Bowman for a limited deposition or questioning before the Court to reconcile hisconflicting representations regarding what information he considered, directly or indirectly, orrelied upon in making the January 21, 2011 decision to seize the Bank.Plaintiff’s counsel and Defendants’ counsel attempted to reach a resolution of this issueas required by LCvR 7(m), but were unable to do so and the Defendants oppose this motion.
Case 1:11-cv-00408-ABJ Document 60 Filed 11/02/11 Page 2 of 4
 
 
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Respectfully submitted,_/s/ Andrew L. Sandler ______________Andrew L. Sandler (DC Bar No. 387825)Samuel J. Buffone (DC Bar No. 161828)Liana R. Prieto (DC Bar No. 987287)B
UCKLEY
S
ANDLER
LLP1250 24th St., NW, Suite 700Washington, DC 20037(202) 349-8001 (Telephone)(202) 349-8080 (Facsimile)
 Attorneys for Plaintiff United Western Bank 
 _/s/ Kirby D. Behre _____________Kirby D. Behre (DC Bar No. 398461)Lawrence D. Kaplan (DC Bar No. 415186)P
AUL
H
ASTINGS
LLP875 15th Street NWWashington, DC 20005(202) 551-1719 (Telephone)(202) 551-0119 (Facsimile)
 Attorneys for Plaintiff United Western Bank 
_/s/ Theodore J. Abariotes____________Theodore J. AbariotesDeputy General CounselUnited Western Bancorp, Inc.700 17th Street, Suite 2100Denver, Colorado 80202(720) 932-4216 (Telephone)(720) 946-1218 (Facsimile)
 Attorney for Plaintiff United Western Bank 
Dated: November 2, 2011
Case 1:11-cv-00408-ABJ Document 60 Filed 11/02/11 Page 3 of 4

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