UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
OFFICIAL COMMITTEE OF UNSECUREDCREDITORS OF LEHMAN BROTHERS HOLDINGSINC.,1 Chase Manhattan PlazaNew York, NY 10005Plaintiff v.TIMOTHY F. GEITHNER,DefendantCase No. ____________
OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF LEHMAN BROTHERSHOLDINGS INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTOF MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA BYTIMOTHY F. GEITHNER
Jon D. Corey (D.C. Bar # 491311)QUINN EMANUELURQUHART & SULLIVAN, LLP1299 Pennsylvania Avenue NW, Suite 825Washington, D.C. 20004(202) 538-8000Andrew J. RossmanQUINN EMANUELURQUHART & SULLIVAN, LLP51 Madison Avenue, 22nd FloorNew York, NY 10010-1601(212) 849-7000Erica P. TaggartQUINN EMANUELURQUHART & SULLIVAN, LLP865 South Figueroa Street, 10th FloorLos Angeles, California 90017-2543(213) 443-3000
Counsel for Plaintiff Official Committee of Unsecured Creditors of Lehman Brothers Holdings Inc.
2The Official Committee of Unsecured Creditors of Lehman Brothers HoldingsInc. (the "Committee") respectfully submits this Memorandum Of Points And Authorities InSupport Of Motion To Compel Compliance With Deposition Subpoena By Timothy F. Geithner.For the reasons set forth below, the Committee moves the Court for the entry of an ordercompelling Timothy F. Geithner to comply with the subpoena for his deposition testimony at atime and location convenient for Mr. Geithner before March 16, 2012, pursuant to Rule 37(a)and Rules 26, 30, and 45 of the Federal Rules of Civil Procedure.
I.
INTRODUCTION
In his welcome address to cabinet secretaries and senior staff, President Barack Obama proclaimed, "[T]he way to make government accountable is make it transparent so thatthe American people can know exactly what decisions are being made, how they're being made,and whether their interests are being well served. . . . Transparency and the rule of law will bethe touchstones of this presidency." (Barack Obama, Remarks by the President in WelcomingSenior Staff and Cabinet Secretaries to the White House (January 21, 2009)).
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The Departmentof the Treasury now turns its back on the President's commitment to transparency as it refuses toprovide the creditors of Lehman Brothers with key evidence from the current Secretary of theTreasury, Timothy F. Geithner, who was a crucial witness to certain key events at issue in thecreditors' litigation with JPMorgan Chase Bank, N.A. ("JPMorgan").In the final week before the bankruptcy of Lehman Brothers Holdings Inc.("LBHI" and, collectively with its subsidiaries, "Lehman"), Lehman's primary bank, JPMorgan,demanded that LBHI guaranty any potential future obligation of any Lehman entity of any kind
1
Available at http://www.whitehouse.gov/the-press-office/remarks-president-welcoming-senior-staff-and-cabinet-secretaries-white-house (last accessed Feb. 9, 2012).
3and deliver $8.6 billion in cash and money market funds to support that guaranty. JPMorganwent on to become the single largest creditor of LBHI and has asserted that all of its claimsagainst LBHI are fully secured above all other creditors by virtue of that pre-bankruptcyguaranty and collateral grab. The Committee and the LBHI estate have filed a lawsuit in theUnited States Bankruptcy Court for the Southern District of New York challenging JPMorgan'sright to the $8.6 billion and other collateral. As discovery in this case nears its March 16, 2012conclusion, more than 200 witnesses have already been deposed. But an important deposition isyet to be taken, because the United States Department of the Treasury ("Treasury") has for manymonths delayed and ultimately refused to allow the testimony of Secretary Timothy F. Geithner.The same week before LBHI's bankruptcy, Timothy F. Geithner ("SecretaryGeithner"), then the President of the Federal Reserve Bank of New York ("FRBNY") andcurrently Secretary of the Treasury, had more than thirty-five telephone calls with Lehman'sChief Executive Officer Richard Fuld, as well as more than ten telephone calls with JamesDimon, the Chief Executive Officer of JPMorgan. Some, if not all, of these conversationsconcerned the collateral demands at the center of the present lawsuit. For example, on theevening of September 11, 2008, one business day before LBHI filed for bankruptcy, and atapproximately the same time that JPMorgan demanded the last $5 billion of collateral fromLBHI, Dimon called Secretary Geithner. No one else besides Dimon and Secretary Geithnerwere on that call, but it appears they discussed JPMorgan's purported justification for thecollateral. Moreover, two days later, on September 13, Secretary Geithner had an in-personmeeting with Dimon and Treasury Secretary Henry Paulson
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to discuss concerns that Dimon
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On February 15, 2012 Treasury sent the Committee a letter refusing to allow Mr.Paulson to comply with a deposition subpoena. The Committee will be addressing the subject of Mr. Paulson's testimony separately.
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Lehman's Motion to Compel Geithner Testimony
Motion by Lehman Brothers' bankruptcy estate and its creditors to force Treasury Secretary Timothy Geithner to testify about his actions in the days before the investment bank collapsed.
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