EFTA01082212.pdf

LANKLER SIFFERT & WOHL LLP ATTORNEYS AT LAW New IIIIIIIII I . N. . 398 April 8, 2011 BY EMAIL The Honorable Anthony J. Carpinello JAMS 620 Eighth Avenue, 34th Floor New York, New York 10018 Re: Fortress VRF I LLC and Fortress Value Recovery Fund I LLC v. Jeepers, Inc. JAMS Ref. No. 1425006537 Dear Judge Carpinello: Third-Party Respondents and Counter-Respondents submit this letter regarding the deposition of Glenn Dubin. Third-Party Claimants Financial Trust Company, Inc. and Jeepers, Inc. (collectively, "Jeepers") solicited and received an affidavit from Mr. Dubin, which they attached to their Third-Party Claim. All parties have agreed that Mr. Dubin needs to be deposed for this arbitration. Nonetheless, Jeepers has refused to produce Mr. Dubin for his00 de sition, claiming that it does not control him and suggesting that we contact his counsel. Mr. counsel has yet to confirm that Mr. Dubin will appear for his deposition, and has suggest at if he were to appear voluntarily, there would be certain conditions, including the presence of Your Honor. We submit that Mr. Dubin is not a mere third-party witness here, whose deposition testimony would serve as his trial testimony. Surely Mr. Dubin knew the affidavit was to be used in this case, especially since Jeffrey Epstein, Jeepers' principal, sent Mr. Dubin a draft affidavit the day before Mr. Dubin signed it (attached as Exhibit A). Having prevailed upon Mr. Dubin to provide an affidavit critical to its claims, Jeepers should not now be permitted to assert that he is beyond its control for purposes of testifying at a deposition. Simply put, if Jeepers could obtain an affidavit from Mr. Dubin as part of its pleading, it can (and should) produce him for a deposition before calling him as a witness at trial. EFTA01082212 LANKLER SIFFERT & WOHL LLP The Honorable Anthony J. Carpinello April 8, 2011 Page 2 We therefore respectfully request that Your Honor issue an Order compelling Jeepers to produce Mr. Dubin for a deposition on May 17, 2011, and directing that, if it fails to do so, Mr. Dubin will be precluded from testifying at the hearing and his affidavit will be stricken. Respectfully, O/ 7 John S. Siffert cc: All counsel of record (by email) EFTA01082213 EXHIBIT A EFTA01082214  Jeffrey Epstein 358 'Maras Way Tabu Beach, 'FL 33480 To: glen Dubin Trom: Jeffrey Epstein Date: ¶Fe6ruary 2, 2010 Jeffrey requested!sendyou the attached Assistant to Jeffrey Epstein (Dictated but not read JE001564 EFTA01082215  AFFIDAVIT OF GLENN DUBIN STATE OF N EW YORK ) ss.: COUNTY OF NEW YORK Glenn Dubin, being duly sworn, deposes and says: to testify to the matters I. I am over twenty-one years of age and am competent of the facts and statements herein. stated in this affidavit. I have personal knowledge t. Each of the facts and statements herein is true and correc lled, currently known as 2. Starting in 2002, an entity that l both owned and contro owned interests in the general Dubin & Swieca Asset Management, LLC ("DSAM"), Special Opportunities Fund, M. partner and in the investment manager ofIli. Zwirn Daniel Zwim ("Zwirn"). While (the "Zwirn Fund"). The Zwirn Fund was named after ement and operations of the Zwirn Fund, Zwirn was responsible for the day-to-day manag known as Highbridge Capital after Zwirn spun off his business from DSAM (then Zwirn, invested my personal and Management, LLC), I helped introduce investors to ted assets of Highbridge Capital family foundation assets with Zwirn, and my firm alloca 's company which was also the Corporation ("HCC") to an account managed by Zwirn investment manager of the Zwirn Fund. Zwirn was Jeffrey Epstein 3. One of the early investors that I introduced to and a long-t ime investor in ("Epstein"). Epstein was both a personal friend of mine Epstein invested assets in the Zwirn HCC. My understanding is that beginning in 2002 Inc. Fund through an entity called Financial Trust Company, JEOO1565 EFTA01082216 4. In the fall of 2006, Zwim called me and told me that he was firing the Zwirn Fund's Chief Financial Officer. Zwim told me that there had been various irregularities at the Zwim Fund, including that investors' money was used to pay for an airplane that would be owned by Zwim's company. 5. During October 2006, Zwirn told me that he was making attempts to contact each investor in the Zwirn Fund, including Epstein, to explain the irregularities to them. 6. After speaking with Zwirn, Epstein called me very upset. Epstein said that Zwim had initially described the irregularities as "nonmaterial", but on a subsequent call, Zwim's description of the issues made it clear to Epstein that the problems were in fact very material. Epstein told me that when he confronted Zwim about the earlier description of the irregularties, Zwim said that his counsel had told Zwirn to use the word "non-material". Epstein felt that Zwirn had lied to him. Epstein told me that he wanted to redeem Financial Trust Company, Inc.'s entire capital account in the Zwirn Fund immediately and that Epstein had made that demand to Zwim. 7. I subsequently spoke to Zwim about Epstein's demand. Zwirn was concerned that a complete redemption could cause a "run-on-the-bank." Zwirn asked me to discuss with Epstein reducing his demand to one-half of Financial Trust Company, Inc.'s total capital account in the Zwim Fund at the time, and I agreed I would discuss it with Epstein. 8. Subsequently, I participated in a three-way call with both Zwirn and Epstein. During this call, Epstein demanded from Zwirn the withdrawal of all of Financial Trust JEOO1566 EFTA01082217 Company, Inc.'s capital account in the Zwirn Fund. Epstein said he wanted to redeem all of Financial Trust Company, Inc.'s 140 plus million dollars in that capital account immediately. Zwirn responded that such a redemption could cause a "run-on-the-bank" and asked Epstein to reduce his redemption demand to half of that amount. Zwirn said that if Epstein made only a partial redemption request, Zwirn would honor the request quickly. During this discussion with Epstein, Epstein agreed to redeem slightly more than half of Financial Trust Company, Inc.'s total capital account and said that Financial Trust Company, Inc. would redeem 80 million dollars, and Zwirn agreed to honor that request. Zwim did not dispute that Epstein had the right to the total redemption of Financial Trust Company, Inc.'s capital account in the Zwirn Fund. It is my understanding, based on subsequent conversations with Epstein, that after this conversation, Epstein made a written request for that partial redemption of Financial Trust Company, Inc.'s capital account in the Zwirn Fund and that Zwim refused to honor this request. Glenn Dubin Sworn to before me this day of February, 2010. (Seal) Notary Public JEOO156 7 EFTA01082218