Motion to Prohibit Testimony of William Frey

7/29/2019 Motion to Prohibit Testimony of William Frey

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SUPREME COURT OF THE STATE OF

N W

YORK

COUNTY OF N W YORK

In the matter of the application of

THE BANK OF N W YORK MELLON as Trustee under

various Pooling and Servicing Agreements and Indenture

Trustee under various Indentures),

et al.

Petitioners,

for an order, pursuant to C.P.L.R.

7701,

seeking judicial

instructions and approval of a proposed settlement.

Index No. 651786-2011

Kapnick,

J.

MOTION IN

LIMINE

TO

PROHIBIT TESTIMONY OF

WILLI M FREY

THIS

MOTION WILL BE

ARGUED

BEFORE

JUSTICE KAPNICK

ON

MONDAY,

SEPTEMBER

23, 2013,

OR

AS SOON

THERE FTER

AS COUNSEL

M Y BE

HEARD

PRIOR

TO

THE PROFFER

OF

MR. FREY'S TESTIMONY

W RNER

PARTNERS, P.C. GIBBS BRUNS,

LLP

950 Third A venue, 3 nd Floor 1100 Louisiana, Suite 5300

New York, New York

10022

Houston, Texas

77002

212) 593-8000 713) 650-8805

Attorneys

or

the Institutional Investors Intervenor-Petitioners

DECHERTLLP

M YER BROWN LLP

1095

Avenue ofthe Americas

1675

Broadway

New York, New York

10036 New

York,

New

York

10019

212) 698-3500 212) 506-2500

Attorneys/or Petitioner The Bank

o

New York Mellon

INDEX NO. 651786/

SCEF DOC. NO. 938 RECEIVED NYSCEF: 09/20/


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A central question before the Court in this Article 77 proceeding is what information the

Trustee considered in making its decision to accept the $8.5 billion settlement, the servicing

improvements, and the document cure. AIG has subpoenaed an individual named William Frey

to testify as a witness in this proceeding.

AIG does not contend that Mr. Frey played any role in the negotiation of the settlement

or even spoke with the Trustee on any matter relevant to the settlement. Instead,

s

explained by

Mr. Reilly, Mr. Frey had knowledge about alternative investors and potentially alternative

approaches to Ms. Patrick's

group. There is no suggestion that Mr. Frey ever spoke to or

interacted with the Trustee about matters at issue in this proceeding. Instead, the proffer

of

Mr.

Frey's testimony concerns other investors' actual and potential litigation strategies that were not

made known to the Trustee. In other words, Mr. Frey is being called to testify that other

investors, and perhaps he too, had different ideas from the Institutional Investors about how

negotiations with Bank

of

America should have been handled, but not to claim that he brought

any of this to the attention of the Trustee at the time.

This is confirmed by what Mr. Reilly called a non-disclosure agreement, which is an

agreement by which Mr. Frey was retained as a consulting litigation expert by Talcott Franklin,

P.C. on beh lf of investors in Mr. Franklin's consortium, which then included both PIMCO and

BlackRock. As the agreement makes clear, the work Mr. Frey performed as a consulting

litigation expert for Mr. Franklin,

PIMCO and BlackRock was confidential and privileged; it was

not intended to be shared and, in fact, was not shared with either Bank of America or

BNYMellon.

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Since Mr. Frey played no role in the settlement discussions, and had no interactions with

either BNYMellon or Bank

of

America regarding the settlement that is at issue here, his factual

testimony

is

irrelevant. He simply has no information that was either considered in, or conveyed

during, the settlement negotiations.

fAIG seeks to call Mr. Frey to testify to what should have been done by the Institutional

Investors or, perhaps, by the Trustee, that is the subject of expert testimony. AIG has not

designated Mr. Frey as an expert, and indeed Mr. Frey would have been unavailable for such a

designation by AIG, because any such expert retention would have been in conflict with Mr.

Frey s obligations as a former retained expert to PIMCO and BlackRock. The Court should not,

in the guise

of

a subpoena for trial testimony, permit AIG to invade the work product and

attorney client privilege by calling a former retained consulting expert to testify against the

interests

of

the investors who retained him and to whom he owes continuing duties

of

loyalty and

confidentiality.

Dated: New York, New York

September 20, 2013

WARNER PARTNERS

P.C.

By:

~

i t J ~

Kenneth

E

Warner (KW-5524)

950 Third Avenue, 32nd Floor

New York, New York 10022

Phone: (212) 593-8000

GIBBS

BRUNS, LLP

1100 Louisiana, Suite 5300

Houston, Texas 77002

(713) 650-8805

Attorneys or Institutional Investors

Intervenor-Petitioners


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3

DECHERTLLP

By:

I . e ~

Hector Gonzalez

1095 A venue of the Americas

ew York, New York 10036

212) 698-3500

M YER BROWN LLP

By: tixttkw

D t ~ l e

Matthew

D

Ingber

1675 Broadway

ew York, ew York 10019

212) 506-2500

ttorneys for Petitioner

The

ank

ofNew York Mellon

Motion to Prohibit Testimony of William Frey

Documents

Transcript of Motion to Prohibit Testimony of William Frey