EFTA01128579.pdf

PAUL, WEISS, RIFKIN D, WHARTON & GARRISON LLP MATTHEW W ABBOTT ALLtli pp{ ARrA NIEL J KRAMER DAVID K LAKTICITOR r trt Wrrlar LYNN a DAY RD sTEPINPN P LAMB. JOHN E LANGE DANIEL) LEFFIV.1. 1285 AVENUE OF THE AMERICAS UNIT 11901, FORTUNE PLAZA OFFICE TOWER A IEL J GELLER. XIAOYIP GREG LI NEW YORK. NEW YORK 10019-8084 NO 7 DONS SANITUANZITONOLU JEFFREY O MAAELL ?Wilting Mair V MASOTTI CNAO YANG DISTRICT ARK 9 BERGMAN P4AYN TELEPHONE. BEIJING 100020 BR BRUCE i s M97113004 DAVID MAYO PI IWIR ODOETINING EZABETH R MECO ARDUt PEOPLE 5 REPUBLIC OF CHINA MARK F MENDELSOHN LLOYD K GARRISON 11948-1991f TIO.IPMONE . 11111 ',RANDS TOBY S MYERSON RANDOLPH C PAUL I11144-19511) I,AM I,. BROBN JOHN E NATHAN thr IC AV ‘ B STEIN CATHERINE NYARADY SIMON H ROTUND 11950 19951 JOHN J Otag. LOUIS 8 WEISS 11927-19501 12TH FLOOR. HONG KONG CLUB BUILDING ALEX YOUNG OH rgien rel :. l WIMP R *NUN CHATER ROAD. CENTRAL JEANETTE K CHAN KELLEY 0 PARKER JOHN F WHARTON 11927.1977) TELEPHONE I MONO KONG ram JAY Ve r-AWS1 EN .4 ROBERT P PARK R• MARC E PERLMUTTER MARK F POMERANTZ 01 1ALEY A CORNISH sitifr i EIR isTOPEW CUMMINGS CHARLES t DAVIOOW la IEI RICCIARDI WALTER ANER ALOCR CASTLE DOUGLAS R_ OAT'S 10 NOBLE STREET Vat? getUtettitl"'" RICHARD A ROSEN WALTER RIEMAN i eni, LONDON ECM TJU. U K VillrfriormeN•eno TELEPHONE Prh574' COORY A itt) nit& ING JACQUELINE P RUBIN RAPHAEL 14 RU880 11.1KOKU SEINE. BUILDING ..-,...w.,,zeag ANDREW C n CM FA"). {9 FR DALE D fAFERSTIEIN {SLR UELS SCHIMEK 2.2 UCHISAIWAICHO 2 GNOME 8040 J FINK LSTEIN KCNNEINM SCHNEIDER ROBERTO ROBERT SCHUMER CHIYODA-KU TOKYO 100 0011. JAPAN Z11I11 IS T OPRICrili E C Ottl JAMES H SCHWAB TELEPHONE JOHN P4 SCOTT MARTIN FLUMNBAUM STEPHEN SHIMSHAK 2001 K STREET. NW init .' 4118Z5 DAVID R SICCLAR SE1115.1LII9M4AN WASHINGTON DC 20005-1047 IPIi. ti=11 . AFSIT.L0 MICIOILEL E GER MAN Törah 'taw.* MARILYN SOBEL HONE P AMe44 TOM AUM ROBERT 0 GOL AUDI.* J SOLOWAY TARUN M STEWART ERIC ALAN STONE 500 DELAWARE AVENUE SUITE 200 in rkriiTEIN AIDAN STI/NOTT ROSYN • ARNOESKY POST OFINCE BOX 52 CARLFSH GOOSE JR MONICA K THURMOND WILMINGTON. I DANIEL J L Mari/ G OIWItt„ Tr R•EIPICI TELEPHONE GAINES GWATHMET III NiZA . QUEZ .IIRO 7 AH Lailkitir tILLEI LAWRENCE 0 WEE THEODORE Y WliLLS. JR alrIANN W TI A WIKIN E'i lli t i NI °WAN 4 DWI CHIC JOYCEr.f7:: MARK WW :r grlit HUNTINGTON JORDAN TM D KA DAN E YARET A A.. 'PUN INO OW 8 KAR June 7, 2011 itti WAVa. TWAY A 7ACCONL T ROBERT ZOCHOVISMI. JR -NOT ADMITTEDTo tist New To« OM BY EMAIL AND BY HAND The Honorable Anthony J. Carpinello (Ret.) Arbitrator, JAMS 620 Eighth Avenue, 34th Floor New York, NY 10019 VRF I LLC v. Jeepers. Inc., JAMS Ref. No. 1425006537 Dear Judge Carpinello: On behalf of Claimants VRF I LLC and Fortress Value Recovery Fund I LLC (together, "Claimants"), we write to respond to the letter to you from Respondents Financial Trust Company, Inc. and Jeepers, Inc. (together, "FTC"), dated June 3, 2011, requesting (a) an opportunity to take Chris Suan's testimony separate from and prior to the arbitration hearings and (b) an order compelling production of certain spreadsheets in native format without the redaction of the names of the Fund's other investors. Claimants oppose the first request because they see no reason for treating Mr. Suan differently than any other hearing witness; as to the second request, Claimants have no problem with providing the information at issue in native format, but do continue to request that the names of other investors be removed. EFTA01128579 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP The Honorable Anthony J. Carpinello (Ret.) 2 I. Pre-Hearing Testimony from Chris Suan Claimants oppose FTC's request to take testimony from Chris Suan apart from and prior to the hearings scheduled in this matter because it would amount to unjustified special treatment for a single witness. As you may recall, the parties have already had similar issues with two other third-party witnesses, Messrs. Gruss and Dubin (although we continue to believe Mr. Dubin is in fact under FTC's control for purposes of this proceeding). In any event, the resolution ultimately reached as to both of those witnesses was that because, as a matter of law, you would have to be present for their testimony, it did not make sense to have a separate "pre-hearing hearing," and FTC could simply call these individuals as witnesses during the arbitration hearings. We do not see why Mr. Suan should be treated any differently. Further, at this point, taking testimony pm-hearing from only one witness can serve only to prejudice the other parties. Unlike testimony taken at the hearing, Mr. Suan's testimony would be uniquely singled out and given undue prominence. We certainly do not doubt your ability to weigh and consider all of the testimony whenever received, but there appears to be no reason here to warrant taking Mr. Suan's testimony out of order or otherwise giving it some prominence it would not otherwise have. FTC offers no real reason for any of the special treatment it seeks here. FTC argues that, unlike Mr. Gruss, who has already given testimony in other matters, Mr. Suan is a "clean slate," and that taking his testimony at the hearing "will consume time, which will be tight." FTC makes no effort to distinguish Mr. Dubin's testimony, however, or explain why Mr. Suan's testimony would take up an inordinate amount of time relative to time spent on other witnesses. Barring a stronger showing of why taking Mr. Suan's testimony at the hearing would present some substantial burden, we see no reason for treating him any differently from any other hearing witness, and oppose taking his testimony at a prior hearing session. H. Production of Spreadsheets Without Red action of Investor Names We oppose FTC's request for an order compelling production of the spreadsheets unredacted. (We have no objection to producing the spreadsheets in native format, and, as FTC has already noted, have offered to do so.) Claimants have obligations under both consumer privacy laws and the subscription agreement executed by the Fund to attempt to maintain the privacy of their other investors. Accordingly, we continue to object to the disclosure of those investors' names. Although admittedly the Zwirn parties may have produced documents indicating the names of the other investors, Claimants should not be held responsible for the Zwim parties' conduct in this regard. EFTA01128580 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP The Honorable Anthony J. Carpinello (Ret.) 3 We recognize that it is relevant for this matter whether other investors were treated like FTC — and in particular whether their "lockups" operated on a "by investment" (or a "by tranche") basis, or whether, as FTC asserts, each investor should be subject to a single "lockup" applicable to all of its investments. Nonetheless, we believe such information can be determined from the materials already produced. Finally, if you are at all inclined to grant this request, Claimants urge that you make absolutely clear that any production of such information be subject to the confidentiality agreement the parties have been following for this proceeding. Thank you for your attention to this matter. Respectfully submitted, 44:a /-9AO Allan J. Arffa A.IA:aeb cc: Harry Susman (counsel for Financial Trust Company, Inc. and Jeepers, Inc.) John Siffert and Daniel Reynolds (counsel for Daniel B. Zwim) William Schwartz and William O'Brien (counsel for D.B. Zwim Partners, LLC; D.B. Zwim & Co., L.P.; DBZ OP, LLC; and Zwirn Holdings, LLC) EFTA01128581