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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

MARY ANN SIVOLELLA, et al,

PLAINTIFFS

Vs. CIVIL NO.

11-4194 (PGS)

AXA EQUITABLE LIFE INS. CO.,

et al,

DEFENDANTS

______________________________

GLENN D. SANFORD, et al,

PLAINTIFFS

Vs. CIVIL NO.

13-312 (PGS)

AXA EQUITABLE FUNDS

MANAGEMENT GROUP,

DEFENDANT

______________________________

DECEMBER 16, 2015

CLARKSON S. FISHER COURTHOUSE

402 EAST STATE STREET

TRENTON, NEW JERSEY 08608

B E F O R E: THE HONORABLE PETER G. SHERIDAN

U.S. DISTRICT COURT JUDGE

DISTRICT OF NEW JERSEY

HEARING ON SUBMISSION OF BOARD MATERIALS

Certified as true and correct as required

by Title 28, U.S.C. Section 753

/S/ Francis J. Gable

FRANCIS J. GABLE, C.S.R., R.M.R.

OFFICIAL U.S. REPORTER

(856) 889-4761

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A P P E A R A N C E S:

SZAFERMAN, LAKIND, BLUMSTEIN & BLADER, PC

BY: ARNOLD C. LAKIND, ESQUIRE

ROBERT L. LAKIND, ESQUIRE

FOR THE PLAINTIFFS

BLANK ROME, LLP

BY: DAVID C. KISTLER, ESQUIRE

FOR THE DEFENDANTS

MILBANK, TWEED, HADLEY & McCLOY, LLP

BY: SEAN M. MURPHY, ESQUIRE

ROBERT C. HORA, ESQUIRE

JAMES N. BENEDICT, ESQUIRE

FOR THE DEFENDANTS

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THE COURT: So, this is Sivolella versus AXA

Equitable. Can we enter appearances? We'll start with the

plaintiff.

MR. LAKIND: Yes, your Honor, good afternoon.

Arnold Lakind of Szaferman Lakind for the plaintiffs.

MR. R. LAKIND: Good afternoon, your Honor, Rob

Lakind for the plaintiffs.

THE COURT: Good afternoon, Mr. Lakinds.

MR. KISTLER: Good afternoon, your Honor, David

Kistler from Blank Rome on behalf of the defendants, and I'll

allow my co-counsel to introduce themselves.

THE COURT: Good afternoon, Mr. Kistler.

MR. MURPHY: Sean Murphy with Milbank, Tweed, Hadley

and McCloy for the defendants, your Honor.

THE COURT: Good afternoon, Mr. Murphy.

MR. HORA: Robert Hora, also with Milbank Tweed for

the defendants.

THE COURT: Good afternoon, Mr. Hora.

MR. BENEDICT: And Drew Benedict, Milbank Tweed,

also for the defendants, your Honor.

THE COURT: Good afternoon.

So, I'd ask that all the parties assist me or help

me out on these things. Letters are okay, but I still think

you still need to follow the rules. And there are

requirements in the local rules as to double space and the

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type of font size, and, you know, I wish you would follow

those rules.

And secondly, the one application I'm going to be

dealing with today I thought is the amount of materials from

the Board, and this actually looks like a motion to me. And I

don't understand why we're not following motion rules. And

even though it's close to trial, there's ways of doing that;

you can bring it by order to show cause if it needs an

expedited date, but it doesn't seem to comply with the local

practice in my view.

Who wishes to be heard first on the Board materials

is what I think we're dealing with?

MR. MURPHY: Your Honor, it's Sean Murphy from

Milbank Tweed for the defendants, your Honor. First let me

apologize for the way we presented the matter. I'm hoping if

I explain what the issue is, maybe you'll see it's a little --

it doesn't fit squarely into kind of a clean motion.

THE COURT: I know it doesn't, but these letters

come in on the docket, and I try to keep abreast of them all,

as do my law clerks, but when you see it as a notice of motion

it kind of fits into a different category as to what you're

reading.

MR. MURPHY: Fair point, your Honor, and I do

apologize.

THE COURT: The thing about it is when it's a

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discovery matter I know the magistrate judges will handle

things like that, because they'll handle them on an expedited

basis as they come in, but generally when it's a motion that's

dispositive in nature or a significant issue before trial, you

know, I always look at it as well, if it's important enough

for the parties to present it, then it should be presented in

a more formal way I think. So, somehow a motion seems to be

more appropriate to me I guess is the better way of saying it.

MR. MURPHY: Okay, your Honor. And I do apologize.

THE COURT: The double spacing is better for me,

because the way I prepare every day, I wake up very early in

the morning, and some would say it's not even -- it's before

dawn usually. And so when you wake up, even though my mind is

very alert, my eyes are still very -- squinting at the page,

so I'd just like it to be easier to read early in the day.

So, the double spacing and the font size are more important.

And I don't put it on my computer because -- and I

know it's old fashioned, but that's just the way I am, I write

all my notes on the side of the pages. So it's just easier to

do it.

MR. MURPHY: And there's certainly no excuse for

that, your Honor, I apologize. We should have double-spaced

and used larger font regardless of whether it was a motion, so

I do appreciate that and we won't let it happen again.

THE COURT: Okay, thanks.

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MR. MURPHY: So, just to tee up the issue because

you may want it presented differently in a motion or an order

to show cause, but what we were hoping to do --

THE COURT: No, I have you here, we'll do it today.

MR. MURPHY: What we'd like, your Honor, is guidance

on what to do with these "Board materials", and how to handle

the admission of them. And I'm going to -- I'm not going to

try and move them into admission today obviously, but I'm just

trying to frame some of the issues so we can take some of the

burden off you and the delay of trial. And I recognize at

first blush this might seem kind of like a procedural issue,

but it really is -- it does hold the potential to

substantially delay or disrupt trial if we don't deal with it

a little bit in advance.

And first some context here. You'll recall, your

Honor, perhaps from summary judgment, this is a 36(b) case

where plaintiffs have challenged the fees charged to 12 mutual

funds as excessive. And the relevant period, at least

certainly according to plaintiffs, spans over many years, from

2010 at least through 2014, so at least five years.

And these fees were approved by a Board of Directors

each year, a majority of whom were independent trustees,

independent of the advisor. And the documents we're talking

about are the documents that these Board members are given

each year as part of their approval of the fees. There's

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statutes that govern this, there's a section of the Investment

Company Act that says you must give the Board information that

reasonably allows them to conclude or give them enough

information to approve the fees, so they're governed by

statute.

THE COURT: And they're kept in the ordinary course

of business?

MR. MURPHY: Totally kept in the ordinary course of

business, your Honor. There's actually Investment Company

rules, Section 31(a) and (b) requires these books and records

be kept; they're subject to inspection by the SCC, when the

SCC comes in this is what they get. There's no question that

these were prepared both before and after the litigation, and

there's very much we think business records -- again I'm not

trying to lay the foundation, we can bring in a witness to do

that, but we have this -- a significant issue and these are --

I should say, your Honor, we believe these are the critical

materials at trial.

We have -- between our collective counsel we've

tried four of the seven cases to go to trial under 36(b),

these are always the core of the case. You may recall from

summary judgment the Gartenberg factors, you know, these six

factors, one of which is the independence and

conscientiousness of the independent trustees, and courts have

said it's among the most important factor. The Supreme Court

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approved the standard in Gartenberg and said really the

starting point of your analysis is whether the Board had

adequate information.

THE COURT: So what I was uncertain about when I

read the letters, was I thought you were trying -- or there

was an attempt to put in all Board materials on all matters

that were reviewed by the Board; but you're only asking to put

in the materials dealing with the fees?

MR. MURPHY: They tend to be bundled together, and

maybe the best way to do this is to get right to the heart of

the matter. I mean we're talking about as I said five years

of Board materials, there's at least five meetings a year, but

for example in 2011 and '12 there were 14 meetings, so there's

maybe 50 meetings of the Board at issue. And let me just show

you what they look like.

If I may approach, your Honor?

THE COURT: Okay, you may. You have to show it to

your adversary.

MR. MURPHY: Yes, I'm going to give them one.

They've seen this, this is Exhibit 1. They're very --

MR. LAKIND: We've seen it, your Honor.

MR. MURPHY: I'll give them another copy as well.

Actually that may have my handwriting in it. I

don't want ex parte communications -- I think I might get in

trouble if I circled some stuff on the first page, your Honor.

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(Handing to Court.)

THE COURT: Thank you.

MR. MURPHY: So, this is -- this is Book 1, and

really what you have is -- we needed an efficient way to

handle these at trial; right? So this is Book 1. There's

usually a Book 1, 2 and 3 for a board meeting; sometimes

there's a Book 1 and a Book 2, but there's usually a Book 1,

Book 2 and Book 3 particularly at the annual meeting where

there's an actual vote on the contracts. And this is how

they're kept in the ordinary course of business, your Honor.

So there's -- if you go into AXA's files this is

what you'd find. When the SEC comes in and they say let me

see your Board materials they're subject to inspection, they

lay these on the table and the SEC goes through them. So,

these are -- these are how they're kept in the ordinary course

of business; it's a book. And if you look through them, your

Honor --

THE COURT: Let's just go back through this book.

So, if I was attending this board meeting, which this would be

the quarter ending December 31st, 2009; let's say I was a

board member, I'd just have one book?

MR. MURPHY: So these are actually --

THE COURT: How many books would I have?

MR. MURPHY: There'd be three books -- for this

meeting I think there was three, there's often three. So it

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would be three books, but they're presented to the Board on an

electronic system called Diligent, which is a big provider in

the industry, and they would be posted as Book 1 on Diligent.

And if you look at --

THE COURT: So, you mean posted in some way on the

Internet so they can review these documents?

MR. MURPHY: Yeah, and we would go through this at

trial, your Honor, but they would have an IPad that they can

access them as well that's specifically hooked up. And if you

look at the tab, for example the second tab is the Agenda,

your Honor, you'll see at the top there's a legend, EQ

Advisors Trust Agenda, and then there would be a legend on

every page of the entire book.

The pages are consecutively numbered, they start

with page 1, and the very last page of this entire book is

numbered 1186. So there's -- it's consecutively numbered from

1 to 1186. And if you look at the agenda, your Honor, what

you say is, you know, references on the right-hand side to

presenter, and it has references to tab 6 of Book 1, tab 5 of

Book 2.

So, the agendas go through and highlight references

to the tab numbers that we don't think would make sense, if

you start unbundling the book, take out random pages. There

are numerous -- there was many depositions in this case, your

Honor, and witnesses referred to Book 1, Book 2, Book 3; at

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trial they will certainly refer to the various books and the

tabs within the books.

And if I may just hand out one other thing, your

Honor. If I may approach?

THE COURT: You may.

(Handing to Court.)

THE COURT: We'll mark that Defendant's Exhibit 1

for today. That's the book.

MR. MURPHY: That's Book 1, yes.

THE COURT: And then this other one we'll mark as

Defendant's Exhibit 2.

MR. MURPHY: Correct. Thanks, your Honor.

THE COURT: Can you just describe what Defendant's

Exhibit 2 is, sir?

MR. MURPHY: Yeah, for the record, Defendant's

Exhibit 2 is a compilation of actually three different

documents behind separate tabs. The first one is an agenda of

a board meeting for July 8th and 9th, 2013; second tab is a

set of meeting minutes of the EQAT Board of Trustees for a

meeting held on July 8th and 9th, 2013; and the third is --

it's one of the exhibits off plaintiff's exhibit lists and how

they presented the materials, I don't have the exact exhibit

number.

THE COURT: Okay.

MR. MURPHY: So, if you just look at tab 2 of

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Defendant's Exhibit 2, your Honor, so this is the minutes of

the meeting of the Board of Trustees, this one was in July of

2013. And I didn't do all of them, if you turn to page 3

there's references in the minutes to presentations that were

given by defendant's employees to the Board that reference --

this one's -- this one references a tab 6 of Book 3. Again,

on page 6, Mr. Joenk then referred the Trustees to the

overview of FMG's profitability located behind tab 5 of Book

3. Page 10 there's two references, one to a tab 1 of Book 1,

and a tab 2 of Book 1. Two more references on page 11 to tab

2 of Book 2, tab 3 of Book 1.

So the minutes, which are the critical record of

what the Board reviewed, what was presented, what they

questioned, it's based on tab numbers in an overall book. And

we don't think it would create a very good record to sort of

pull out random pages, and many of which -- we believe many of

these documents, maybe not all of them, we don't need to move

in every single piece, but we believe many of them are

information the directors relied on in approving these fees.

So, we think these are the way they're kept in the

ordinary course of business. It puts us in a weird position

to unbundle it somehow and then say well's it not how it's

kept, we pulled out random pages. It would be an unclear

record because we might pull out pages 12, 18, 28, instead of

having consecutively numbered pages, so it wouldn't create a

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very clear record.

So what plaintiffs have done -- so on our exhibit

list, your Honor, this would be Exhibit 1. And we think it's

a -- I'm just trying to respect your time because it will be a

lengthy trial; when we put a witness on to lay a foundation to

say we need to move a voluminous amount of Board materials in,

we would put on a witness to say this is Book 1, this is the

way it's kept, meet that requirement and move on.

If we unbundle, the plaintiffs would have this taken

apart and made into -- there'd be some subjectivity to what's

a separate document. But they would say break this into 150

or 200 components, and then have a witness come in and say for

each one, okay, this is this, this is this, and we'd do six

days of foundational testimony by unbundling the book for what

end. I mean the Trustees say they rely on all the information

they get in approving the fees.

And just to go back to Defendant's Exhibit 2, your

Honor --

THE COURT: So you're saying the custodian of

records may show as one of your witnesses, and the custodian

of records would say, well, these are all the books from the

Board of Trustees meetings between certain periods.

MR. MURPHY: Yeah. And whatever -- and if you

wanted more detail we can obviously break it down, but we

would try and do it -- and we think these qualify quite

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clearly as business records. You know, plaintiffs will point

to one document in there that they think is, you know, hearsay

within hearsay, but we think the bulk of them will come in as

business records.

Just to turn to tab 3 in Defendant's Exhibit 2, your

Honor, which is the skinny book, so this is the way -- and I

was actually generous because there's a more confusing one

that's on plaintiff's list, but this is a document as it

appears on plaintiff's exhibit list. And so if you look at

the heading at the top, it says EQ Advisors Trust Board

Meeting July 8th and 9th, 2013, Book 2 Industry Report; so

this was pulled out of Book 2, but we have no idea what tab it

was behind. So if this is referenced in the Board materials

as tab 2 of Book 2 we don't know what it is, there's no cross

reference to the Board materials.

You'll see it starts on page 9, and goes to page

226. Obviously there's only about 50 pages here, so they jump

all over the place, it goes from page 9, then it goes to page

18 to 27, 46 to 50, 62 to 80, whatever the page numbers are

but there's massive gaps. And to what end? That's not how

they're kept, and the references in the Board materials will

be incomplete. It just doesn't seem like an efficient way to

do it.

The reason why we're trying to deal with this now,

your Honor, again going back to where I started was at first

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blush this could seem like something we could wait on, you

could hear testimony and decide; but the problem is the

parties have made absolutely no progress at resolving what

Board materials can come in.

And your Honor -- so, they're relying on the Board

materials extensively. All their experts use them. We looked

at their exhibit list, they have 400 exhibits; over 200 of

them are the Board materials, more than half their exhibits

are the Board materials. We want the complete record to come

in, but we haven't resolved a single objection.

Plaintiffs have objected to every single page of the

Board materials; they're not conceding one page should come in

yet. Even though they admit some are business records they're

relying on them, because they're saying well, you've got these

big books, and if I have one -- one objection on one page, I'm

-- that's my objection; and I'm not going to go through them

and tell you what they are, it's -- we don't like the way

you've done it.

If we were, your Honor, to have some guidance from

you that these can be as presented as one book and that's how

we lay the foundation through a witness at trial, you would

accept them as such and it's appropriate to include them on

the witness as such, they could then go through them. If they

have some objections to some pages we could meet and confer;

we may be willing to pull out some pages that we both agree

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are irrelevant, it's not a problem.

If for purposes of ease of trial, people want to

take out one tab and use it, we have no objection to that. So

we're not saying they can't use the exhibits on their list,

we're just trying to do this in an efficient way and put the

records into evidence the way they're kept in the ordinary

course. That doesn't seem like a tall ask.

But if we wait 'til trial, here's my fear, your

Honor, here's why I think you need to do something; we go to

put on Book 1 and we've got a stack of books and we're going

to go through them all. They say no, you need to unbundle

them into 200 components each, so it's really now 4,000

different exhibits. And then they're going to object and say

well, this relates to a fund not at issue, redact that out,

you know, do redactions, pull out pages; then we would do that

-- we'd have a new exhibit list with 4,000 pages which would

take a tremendous amount of time. They would then have to go

through and lodge a new set of objections, all of which we

could do that if we got some guidance from your Honor.

THE COURT: Well, assuming that -- I don't know

exactly have to state my -- but I'd ask the parties to look at

Rule 1006, and it says there: The proponent may use a summary

chart or a calculation to prove the content of voluminous

writings, recordings or photographs that cannot be

conveniently examined by the court.

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So, if you're going to have 50 of these books, I

would say that fits into the phrase "cannot be conveniently

examined by the court." So the proponent must make the

originals or duplicates available for inspection on a

reasonable timeframe, but you may make a summary of that;

right? Is there a way that I get a summary of what's in the

books, so I get a list of what pages I should refer to when

you're going through all this testimony?

MR. MURPHY: So yes, in some regard -- and we're

very cognizant of burdening you with -- with cumbersome

exhibits and voluminous materials, so we've -- we've

undertaken, for example, to go through the Gartenberg factors,

profitability is one of the factors. And there's 12 funds and

five years, so there's 60 data points of profit margins

there's; there's also a management and admin contract, so now

you double it, there's 120 data points, all of which are drawn

from the Board materials.

And we've prepared demonstrative exhibits that we

think qualify as summary charts under 1006. We've cited the

source material which is in the Board materials, so we're

going to do all that, and that will certainly make your life

easier, but we do -- there are a couple reasons where we think

we need the Board materials actually to be moved into

evidence, and there's two main reasons, your Honor.

First, one of the most important things you have to

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decide up front is whether the Board was fully informed, and

if we just give you a list of, you know, they got this broad

type of information, you don't -- you don't necessarily have

in the record what the Board saw. And they could come in

after trial in post trial briefings and say there's no

evidence, your Honor, the Board was told A, B and C; and it's

absolutely buried in the Board materials, but it's not in some

summary list.

And secondly, your Honor, you may recall the

complaint in this matter, the allegation is that FMG delegated

virtually all of the work to a sub-advisor, and one of the

things that's required by both the management and admin

contract, different pieces, but both contracts cover some

portions of the Board materials, so it's -- a lot of the stuff

that's in there you need to see and see how hard it is to

prepare and the work that FMG does to put it together as

evidence of what we do.

And again, that's -- that's regardless of the truth

of the matter asserted, your Honor. So even if they had some

business records problem, we could put in a lot of this

material to show what FMG does. So there's a lot of reasons

why isolated pieces or just summarize don't get it done for

us, given the allegations that we don't do anything. So they

don't want us to put in what we do, your Honor, this is a huge

substantive piece to say well, you don't -- it doesn't take

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any time to prepare this, anybody can do this. That's just

not the case and we need to show you that in many respects.

Now, that doesn't mean, your Honor --

THE COURT: I got your point.

MR. MURPHY: Okay. So what are we asking for; we

just think because these are the way the documents are kept,

it's a more efficient use of the Court's time, it would be a

clearer record, that we be permitted to treat these as a

single exhibit. And plaintiffs, if they object -- there's

many of these documents they want in too, but if they object

to portions of it, identify them and we'll meet and confer and

see if we can resolve those, because there may be some where

we can reduce the volume by taking it out.

I will say -- you know, they'll say there's hundreds

of thousands of pages; there are significant portions of, for

example, Book 2 we think we can eliminate 50,000 pages if we

can meet and confer on the issue, and just stipulate that

although this is not the way they're kept in the ordinary

course of business, we remove these 50,000 pages we could

greatly shorten them. So I think there are ways we can make a

lot of progress, it's more of just can we start doing it.

THE COURT: Why can't we just put them on a disk?

Why do we have to have all the books?

MR. MURPHY: And that would be our intent, your

Honor. We have no intention of showing up and going through

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page by page with you, it would really just be getting them in

as business records; they would want us to unbundle it, and --

they may say this is a thousand documents, I suspect they have

their -- they're going to stand up and probably show you as

they showed to Judge Arpert, they're going to take this exact

same document and say, it's got yellow tabs all over it, and

all they've done is pull the chapters out of a book and say

oh, it's a thousand different documents, and they want us to

lay a foundation for each of those thousand which is totally

not practical or efficient use of your time when many of them

they don't even object to.

THE COURT: All right.

MR. MURPHY: Thank you, your Honor.

MR. LAKIND: Thank you, your Honor. And I, too,

apologize for the manner in which our papers were submitted.

THE COURT: Yes, thanks.

MR. LAKIND: Unfortunately the problem is

considerably more complicated than counsel has indicated,

which is why plaintiffs are of the view they should be

revolved by way of motion.

What I would like to do is first address the context

in which this problem arises, and secondly, propose what I

think is a fair and reasonable solution for all parties.

Let me start first with the context in which this

problem arises. Defendants in this matter have served an

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exhibit list with 1,871 separate documents, that total nearly

one million pages. We frankly were overwhelmed by that list.

We could not sensibly review an exhibit list of that

magnitude. It contains many, if not the majority, of

documents are utterly irrelevant to this case. By serving an

exhibit list of that magnitude it defeats the goal of the

whole pretrial process to have -- to make our cases

transparent. In contrast, our exhibit list is some 400 odd

exhibits, most of which are drawn from the Board material.

When defendants made their summary judgment motion,

they had the ability to isolate documents they thought were

relevant to the disposition of this matter included in their

motion, and respectfully that's what they should have done

here.

Now, this is not a problem that arose recently; it

arose in November, 2014, more than one year ago when I had a

conversation with counsel, and indicated that I did not think

Board material was a business record. It's an advocacy

document, it's a document which the Board uses -- excuse me;

which FMG uses to negotiate a higher fee with my clients'

Board of Directors. If we have the opportunity to brief the

issue, we will demonstrate that this -- these 15,000 pages are

not business records, they're documents prepared by counsel,

they're documents with opinions; they could not satisfy the

business record exception.

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But the evidential ruling on this document is

inextricably intertwined with substantive issues. And what

I'd like to do now, your Honor, is turn to what I perceive to

be a simple straightforward way to deal with the issues. It

appears from reviewing defendant's papers that they are of the

view that the Board materials are relevant on three issues:

Number one, the extent of the work done by FMG; number two,

was the Board fully informed; and number three, were the

substantive truth of a variety of documents, the performance

of the funds and the expenses of the funds and so on.

Let me first turn to the first issue, which is the

extent of the work done by FMG. The overwhelming majority of

the 1,871 exhibits and the 100,000 pages of Board material are

utterly irrelevant to this case. This case is brought on

behalf of 12 mutual funds. FMG claims to be the advisor to 90

mutual funds. So there is information in that Board material

with regard to 78 mutual funds that have nothing to do with

this case. How we or the Court or any witness is able to go

through and understand those is well beyond me.

THE COURT: Well, couldn't some of the funds have

overlapping issues?

MR. LAKIND: That's what I'd like to turn to. There

are three categories of information within the Board material.

The first category is material that clearly relates to our 12

funds. The second category is Board material in which there

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is overlap, that it affects our 12 funds and the 78 other

funds. And the third category is work done on behalf of other

funds.

For instance, in the very first exhibit on their

exhibit list, there are 100 -- there are well over 100

documents in that single exhibit which pertain to other funds.

There are contract with other funds, they're boards of ethics

of other advisers, they're information about other funds; that

is not the least bit relevant to what the Board does with

regard to the 12 funds we represent. And it's simply

impossible for counsel or the Court to examine them.

I would respectfully submit the way to deal with

this issue insofar as they want to demonstrate the magnitude

of their work, is to pull out the information that is

completely irrelevant to this case, to the 78 funds that are

not even plaintiffs before your Honor.

With regard to the remainder, some of those were

prepared by FMG, and we can look at them and agree to that.

But a various large number were prepared by others. And one

of the issues in this case is who did what work; well, with

regard to the others we should have an agreement that the work

that indicates it was prepared by others was in fact prepared

by others. The remaining documents we can talk to and try and

resolve what happens to them. We can't do it with 100,000

pages of paper. It's impossible to know what is in there.

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The second issue they tell you this information is

important to is --

THE COURT: I don't know, but during the course of

this trial they'll be presenting certain pages for me to

review; right? They're not going to ask me to review the

documents of 78 mutual funds that have no bearing on the case

so to speak; right? So if they're only asserting certain

pages, why don't you just go to those pages? Why should they

do this initial -- go through all the Board documents and then

delete everything that's not -- what you say may not be

relevant.

And if you say it's not relevant, why isn't it your

job to show exactly what pages they are? I mean, they keep

these records -- I don't know why who the secretary of the

Board is, but generally the custodian of records could be just

some person, you know, that doesn't have all the -- I want to

say this correctly; it could be just a person that's familiar

with what was presented at the Board, and what they have kept

as a result of that Board meeting, and they would be the ones

to say I've had it, it's been in my office, we haven't altered

it, and it's usually kept every week or every month, and

that's how you get the board pages in.

But they might not have the knowledge to know what

mutual funds they apply to, whether it's the 78 or less than

the -- or whatever it is. So, I'm not sure why it's their

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burden to do that. Maybe you'd have to come forward with

what's irrelevant.

MR. LAKIND: Okay. Your Honor, let me --

THE COURT: I mean you're asking them to do your job

first.

MR. LAKIND: I think not, your Honor. Number one,

the Board materials are hearsay; I mean everyone agreed to

that when we were in court before Judge Arpert. In the course

of the discussions, defendants said they would undertake the

burden to make a motion for -- to make a motion to admit these

documents as an exception to the hearsay rule.

These documents are not business records, and if we

are given the opportunity to brief this issue, we will

demonstrate that they are not business records. They are full

of conclusions, they are full of judgments -- some are, some

are financial records that are legitimate business records,

and we didn't object to over 400 of those documents.

But the overwhelming majority are opinions, they are

not business records. And it's their burden to demonstrate

that these documents fall within the exception to the hearsay

rule, and if we are permitted to brief it they will not be

able to do take.

Secondly, your Honor indicates that -- I'm sorry.

THE COURT: No, go ahead.

MR. LAKIND: Your Honor indicates that, well,

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they're going to only ask you to look at a certain subset of

these documents and hopefully that is the case. But the whole

purpose of an exhibit list in a pretrial order, is to provide

some transparency to all parties as to what each party thinks

is relevant to the disposition of the case. When we receive

an exhibit list of 400 different pages -- excuse me; 400

documents that constitute Board materials, and 1,871 documents

that they say are exhibits, it's impossible for us to discern

what is relevant and to properly prepare our witnesses.

Third, if defendants are going to ask your Honor to

only look at some documents in trial, why should they not do

it now so that we can simply eliminate the objections in

advance. Plaintiffs did that, and defendants did that in

connection with their motion for summary judgment. To require

the parties to sit here and go through irrelevant page after

irrelevant page, simply is not in anyone's interest.

The issue here is what did FMG do; we say they

didn't do very much and others did. They need to lay that

foundation as to what they did. Simply putting the Board

materials in does not do that.

There's a second issue --

THE COURT: Well, it may not be all of the evidence,

but it could be a portion of their case. So, I think that

they should be -- in zealously defending their case they

should be able to put in all the information they believe is

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relevant; one of it would be what the Board members were

thinking or how they formed their opinions.

MR. LAKIND: Absolutely, and I'll get to that in a

moment --

THE COURT: So that's where you get to these Board

members; here's what I was looking at, this is what I thought

was a smart thing to do.

MR. LAKIND: Absolutely and I'd like to get to that

in one moment, but your Honor, let me just clarify one thing;

there are many things in this Board material which they are

going to claim credit for having done. And that's an area of

significant dispute. Our evidence --

THE COURT: That's why we have trials.

MR. LAKIND: Our evidence will show that others did

that work. They need to lay a foundation to demonstrate what

they did, because otherwise a document will simply come in as

being handed to your Honor as an example of work, which they

cannot lay a foundation that they did it. So that's why with

regard to what they did we're objecting on foundational

grounds.

Now, your Honor said a moment ago --

THE COURT: The question is evidence; right? So

they're looking at this as showing this is evidence of

something we've done; if you dispute that they haven't done it

then you can bring in whatever evidence you want. Right?

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MR. LAKIND: Yes, sir.

THE COURT: So, then it's up the Court because I'm

also the trier of fact as to weigh that evidence, who's right.

So I don't get your point that they're going to try to say

they did something they didn't do; well, if that happens

you'll have your opportunity to present that evidence.

MR. LAKIND: Well, perhaps, your Honor, let me give

you an example of one piece of evidence that is typical of

this. There's been a good deal of argument over the

admissibility of a side-by-side chart and your Honor might

recall that was argued before your Honor some months ago.

Defendants are of the view that that was something that was

prepared by FMG; plaintiffs are of the view that is something

that was prepared by counsel.

There are a variety of reports that we think were

prepared by sub-advisors; defendants of the view that it was

prepared by them. They need to lay a foundation to say we're

giving this to you, the finder of fact, as an example of our

work, and the foundation that we -- that we did this work is

this. We are entitled to have them lay a foundation if a

document is to come in as an example of work. It shouldn't

simply be handed up to your Honor as the work.

Your Honor also mentioned that well, doesn't the

Board -- don't they have the ability to have the Board say we

looked at this document, we reviewed this document; and the

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answer to that is yes, because one of the issues in this case

is how careful and how conscientious was the Board.

However, this information was posted to an Internet

site called Diligent, three weeks before the meeting. Board

members have testified they didn't review this information.

So when the assessment becomes how well informed was the

Board, the fact that it was posted is not an indicia of what

the Board did and what the Board knew.

We will have testimony from a board member that said

that they didn't look at all of this information. So the

notion that merely posting it is -- is evidential of how well

informed the Board is, is a legal issue. Going back many

years in the old days when the question was if you mailed a

letter was it received, and there were certain inferences or

presumptions that developed. Likewise there's a legal issue

here. Merely posting this information --

THE COURT: I don't get how those two things are

related. I mean mailing a letter always goes to -- it's

whether people had notice of a hearing, for instance, if you

go to a planning board or a variance or something of that

nature, you know, you have to send a letter to your neighbors

telling them that you're applying for something. And the

issue with regard to that notice is whether the parties had

the right to present any objections they might have. So it

goes into a notice and due process issue.

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Here we're talking about the posting of things on

the Internet for Board members to read. It's not whether they

got it or not, we know they got it. So, I don't see how you

analyze whether a letter was sent and received to be the same

as what we're doing in this case.

MR. LAKIND: I think the analogy was a poor one, but

that being said, that being said, the mere fact that this

material was posted on the Internet in the face of testimony

from Board members that they did not read it, does not

demonstrate that the Board was well informed. They need to

bring in --

THE COURT: I don't even see the merit in your

argument, because that seems to me as that the defense

presents this as evidence that the Board considered it, you

present evidence that the Board didn't consider it, and then I

have to weigh the evidence. That's what we do at trials. So,

I don't see why because you have this evidence that's contrary

to the defendants, that I should rule that the evidence is not

admissible. That makes no sense to me.

MR. LAKIND: No, I'm not making that argument. The

argument I'm making, your Honor --

THE COURT: Yes, you are.

MR. LAKIND: -- is that in addition to posting the

information on the Internet, to make it relevant they need to

bring a board member or Board members in to say we reviewed

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this information, and it formed part of our decision-making

process. Merely posting it on the Internet does not make it

admissible. If they take the second step, then we have a

factual dispute, because we'll bring in evidence that they

didn't look at it.

THE COURT: So you think that the custodian of

records -- we usually do it through a custodian of records,

but you're just saying that to have the entire books

admissible, then we'd need the custodian of records who

maintained the books, plus some board member who said we

relied on it; is that what we're here about?

MR. LAKIND: That's one component of the argument,

that merely posting it on the Internet does not make it

admissible unless they take the second step, which is to bring

a board member in -- which they can't do because the Board

members will testify they didn't review it; bring a board

member in to connect the posting to the deliberative process.

THE COURT: All right.

MR. LAKIND: Your Honor, the third issue, of course,

is the substantive relevance, and here I think we did our best

to identify all of the Board material that represents --

excuse me; that relates to these significant issues, the

profitability, comparative fees, expenses and so on. We

didn't object to some 400 of the 1,800 exhibits that they

mentioned; we think we have the universe of what was relied

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on.

If they are -- if they will make a motion and

indicate we left information out or they left information out,

and it qualifies as a business record, we're going to consent

to it. But to resolve an issue of this magnitude without a

motion that really explains in detail what went on, is simply

not fair to plaintiffs, your Honor.

THE COURT: Well, why isn't it fair?

MR. LAKIND: Well, your Honor, because number one,

we haven't even briefed the business record issue at any

length. The premise of the argument you heard a few minutes

ago was that these are -- these are definitively business

records. Yet there is a decision in the District of New

Jersey that -- in the Ebenhoech/Koppers case which essentially

says documents of this nature would not qualify as business

records. So we need the opportunity to address those issues,

your Honor.

THE COURT: Well, I'm not moving off the trial, I

was actually going to ask you if you wanted to move up the

trial. So, if they present the books at trial, right, then

you make their objection when they come up; right? That's

usually how it happens. So, you got this letter -- I think

the first letter came from Blank Rome --

MR. LAKIND: Yes, your Honor.

THE COURT: So, they presented the issue, and I

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believe you've responded; I don't know if it was on the same

issue, it was respect to the admission of 409 exhibits -- oh

yes, consisting of 200 pages of the Board materials. So you

filed some response, but you didn't file a full response; is

that what you're saying?

MR. LAKIND: No, what I said in my letter, your

Honor, is that we were responding to whether or not this

should be done informally or on a motion, and we didn't

understand defendants to be moving for the actual admission of

the documents.

THE COURT: Well, I didn't either, that's why I

brought up that point in the beginning.

MR. LAKIND: Yes.

THE COURT: But they're looking for some guidance

here. So, do you have any other arguments? You just want

more opportunity to be heard?

MR. LAKIND: Your Honor, I don't think -- listening

to your Honor's inclinations, I'm not sure it would be

fruitful to submit anymore papers; I think I have a sense of

what your Honor's thinking.

THE COURT: I'm not sure exactly what I'm thinking.

I have some ideas of what I would do --

MR. LAKIND: Then I'd like a chance --

THE COURT: -- to narrow the dispute to tell you the

truth.

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MR. LAKIND: Then your Honor, can I submit a five

page, double-spaced, 14 font letter that just tells what our

position is, responding to the substantive letter that Blank

Rome submitted?

THE COURT: When can you do that by? Friday?

MR. LAKIND: I'm sorry, your Honor?

THE COURT: Friday?

MR. LAKIND: Yes, your Honor, Friday.

THE COURT: And do you want to reply?

MR. MURPHY: Yes, your Honor, I don't know what he's

arguing --

THE COURT: Monday.

MR. MURPHY: Okay.

THE COURT: So I'm breaking early next week, but

I'll try to give you a decision before I leave next week.

MR. LAKIND: Your Honor, may I raise a couple of

issues counsel had been speaking about?

THE COURT: All right.

MR. LAKIND: Number one is we know there are a

number in limines on in early January, but it's all of our

expectations that objections to expert testimony will be

handled in the course of trial. We just -- all of us wanted

to make sure that was the case and they wouldn't be argued.

THE COURT: Usually that's what I do.

MR. LAKIND: Okay.

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THE COURT: But I will -- actually if you want to

make arguments on any of the experts, I'll listen to that at

the time of the in limine motions. A lot of times I reserve,

but --

MR. LAKIND: I think we've argued the issue once,

and I think it would be certainly our preference when the

witness is called; I don't know how Mr. Murphy feels.

MR. MURPHY: For experts that's correct, there may

be other motions in limine that we want to argue --

THE COURT: Right. We don't have a jury, so we can

spent time arguing whether an expert should be heard or barred

or whatever during the course of the trial. I think that

makes sense to me to tell you the truth.

MR. MURPHY: And your Honor, I'm certainly not

interested in arguing something that if there's not a point to

it -- if that's the practice on any of these motions in

limine, if you read them and you're clearly going to need to

hear the evidence at trial there's -- we can take the argument

up at trial. So --

THE COURT: I know. I don't mind doing in limine

motions, only because I learn a lot about the case from when

we start the trial, so it's of help to me.

MR. MURPHY: Good.

MR. LAKIND: Your Honor, the second question is, I

think there's a indication of Dolores of your office that she

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might be able to show our technical people today some

material? I don't know if it's a bad day --

THE COURT: Yes, whenever they want. We need to get

Dan and the technical guys up here, but they're here

full-time. So if you just tell us when they're coming in,

we'll probably be able to set up an appointment with them.

MR. LAKIND: Okay. Third, your Honor, is on January

25th I have to be in California to argue a case; is there any

chance -- and I can raise it as we get closer -- that we might

not proceed on that date?

THE COURT: Does anyone object to that?

MR. MURPHY: Just missing one day of trial -- I

didn't catch the date?

MR. LAKIND: January 25th.

MR. MURPHY: Yes, no objection.

THE COURT: All right. No problem.

Okay. So, there might be times during this trial

where I might have to break for a while, I don't know; I have

some criminal cases that are pending. So, we were looking at

five to seven days, but it seems it's going to be a lot longer

than that?

MR. LAKIND: I think, your Honor, my guess is it

will be about 15 trial days; I don't know how Mr. Murphy

feels.

MR. MURPHY: Yes, your Honor, we're in a little bit

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-- and some of that relates to this issue; we're in a little

bit of an uncomfortable position in the sense that our

allegation is we don't do anything, right. So kind of backs

me into a corner to bring in evidence, and I'm trying to do it

in summary ways, but I need to tell you what FMG does as an

advisor/administrator for a mutual fund which we would say is

a massive amount of work, and it's hard for me to just sort of

put on a witness and say yeah, we're working a lot.

I've been backed into a corner where I need to bring

in witnesses and say okay, tell me what services we provide in

various buckets, compliance, admin or portfolio management.

So it is going to be -- I think we projected eight to 10

trials days just for our case.

THE COURT: So, it may come a time where -- well,

let me tell you when I wanted to start. I have you down for

the 11th or 12th, but the case the week before was adjourned

for some reason, so I might be able to start on the 6th.

MR. LAKIND: The only thing, your Honor, from our

perspective, we have our experts lined up, I'm not -- and one

of my partners is trying it -- or two of my partners are

trying it with me, so I'm just not sure what the experts' and

everyone's schedule is, that's the only thing.

THE COURT: Well, we can put all your fact witnesses

on, we'll accommodate the expert witnesses to the extent we

can, but we can do those in limine motions earlier. So, I'm

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available beginning the 6th. So, we had you coming in on the

11th; right?

MR. LAKIND: I think, your Honor, you have us in on

the 4th for the in limines.

MR. MURPHY: 4th for the in limines, January 11th

for the start of the trial, your Honor.

THE COURT: Well, we'll do the in limines on the

6th.

MR. MURPHY: We'll do whatever -- we're happy to

start on the 6th, we're happy to do the in limines on the 6th,

whatever your Honor wishes.

THE COURT: I have the 6th, 7th and 8th, so all the

motions we can do and any practical problems on the 6th and

the 7th, and we can start the testimony on the 8th. And then

you'll be right where you were, Mr. Lakind, and then you can

present your experts starting the 12th.

So I have you the week of the 6th, 7th and 8th, 11th

through the 15th, and then I believe I have you the next week

the 18th through the 22nd. And you wanted off the 25th?

MR. LAKIND: If possible, your Honor. I think

that's a Monday.

THE COURT: Yes, the 25th is -- I might have to

adjourn that week, I have a number of trials on.

MR. LAKIND: Your Honor, it might be the 25th and

the 26th just because I'll be flying back from California.

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THE COURT: Okay. So, if we're not going to do the

25th and 26th, the 27th, that looks to me maybe the afternoon,

1 o'clock to 4:00. Then the 28th and 29th we should be

around. And then the 2nd I'm here, and the 4th and 5th of

February I'm here. Is that enough time? Until the 5th of

February?

MR. LAKIND: I think we'll go probably about seven

to eight days, your Honor, for us.

THE COURT: I have 6th, 7th, 8th, that's three; then

the next week is five; then the next week -- well, the 18th is

a holiday, it's Martin Luther King Day; the 19th's a motion

today so you won't come in. And then I have the 20th, 21st,

and 22nd, three days; there's a few things on so I think we

will go the whole day, but we might be interrupted for an

hour. And then the 25th and 26th you're out.

So then 27th is from 1 o'clock; and then the 28th

and 29th. The 1st is a motion day, so I won't have court that

day. The 2nd, the 4th and 5th, three more days; looks like a

lot of time.

MR. LAKIND: Yes, it is. Your Honor, just if I

might mention, the 25th and 26th we're going to have three

attorneys trying this case, so if I'm away and it's not a

witness I'm going to do, we may if it's okay with your Honor

suggest that we proceed that day.

THE COURT: You have to let us know --

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MR. LAKIND: We'll know as soon as we see how fast

we're going.

THE COURT: Well, hopefully it will be fast.

All right. So, we didn't get back to the issue yet.

Does that take care of the timeframe? Does anyone have any

objections to that?

MR. LAKIND: We do not, your Honor.

MR. MURPHY: No, your Honor.

THE COURT: So, you've made all your arguments with

regard to the board minutes?

MR. LAKIND: I have, your Honor.

THE COURT: Do you wish to bring?

MR. MURPHY: I'm very tempted, your Honor; just

maybe two minutes?

THE COURT: You may.

MR. MURPHY: Thank you, your Honor. Just in terms

of, you know, transparency is what he said, we did offer last

week -- we're not trying to hide the ball. We think the Board

materials heed to come in and a significant volume of them,

but we did offer to try and identify what documents we're

actually going to show our witnesses and the judge. We're not

going to go through a hundred thousand pages and show you

stuff. We're going to identify some stuff, we're going to

have summary charts, we're going give them those summary

charts, and we're going to identify specific pages of the

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Board materials.

Again, we won't have a hundred percent precision

because some of our case is rebuttal, but we think we can cull

down the list and get, you know, a large chunk of what we show

our witnesses and tell them that in advance, so they're going

to see what we show witnesses.

THE COURT: When will you tell them in advance by?

MR. MURPHY: I imagine the next couple weeks. We

just have to go to each witness and look at their direct exam

and pull out those documents, so we can do well in advance of

trial.

THE COURT: Okay. So, by the 23rd of December.

MR. MURPHY: Okay. The second point I would just

make, your Honor, is that most of the stuff he's talking about

is cross-examination, so he can stand up --

THE COURT: I understand.

MR. MURPHY: Okay. In terms of the other funds at

issue, your Honor, just a couple points on that because it

actually is a significant issue. There are 12 funds at issue

and they're part of a trust, so it's one trust; the Board sits

on all of them, and they're claiming that there's stuff about

other funds that's irrelevant. And as your Honor said, are

there overlapping issues; absolutely, right.

So they're pointing to advantages across all funds.

They're pointing to overall profitability, they're arguing

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that economies of scale in one fund that's not at issue should

cause breakpoints in our funds and they should be aggregated

across assets. They're claiming our employees are spending

time on other funds, so they're very much at issue.

Our Board has negotiated numerous fee reductions on

funds not at issue as well, and that certainly goes to

diligence. Even if it's one fund not at issue, if where they

saw a problem, they negotiated a fee reduction and they

explain why, it certainly goes do their diligence. So it's

relevant, but to redact it -- and you can just look at Book 1,

your Honor, which Defendant's Exhibit 1, you can go through --

a lot of times it's a page of all the funds, and you're not

going to redact out individual funds, it would take us an

enormous amount of time, to what end. If it's irrelevant it's

going to be on a disk, we're not going to show it to your

Honor, there's no harm, it would just create a significant

amount of work for no reason.

And the last thing, your Honor, which I agree

doesn't go to the substance, but, you know, they claim that a

board member said they didn't read every page; the correct

testimony was they don't read every page because they rely on

counsel in some instances to summarize what's relevant, and

that was one trustee. Two other trustees, including the

30(b)(6) for the Board, testified very clearly I review all

the materials or in some instances my counsel reviews them and

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summarizes them for me.

So there is going to be testimony, we're designating

that in, from two trustees saying they review all the

materials. But it doesn't matter, even if they didn't it's

still a business record because they're records of FMG the

advisor. Thank you, your Honor.

MR. LAKIND: Your Honor, I know it's late, but could

I just raise two very quick issues?

THE COURT: Well, quick is a minute or so.

MR. LAKIND: They will both be. If we get that list

-- I had not realized they were prepared to give us that list,

that may obviate a lot of these issues, so that would help

enormously, we were not aware that that was going to happen.

Secondly, our first witness is Mr. Joenk, who's the

defendant's CEO, he sets the stage and I think it's critical

that he be our first witness; I want to make sure he can be

available on the first day of trial.

MR. MURPHY: Sorry. The 4th through the 6th were

the motions and the first day of trial would be the 8th? I

would -- I'm sure he'll make himself available. I haven't

spoken with him obviously, he's not here, but --

THE COURT: Well, Mr. Lakind can't have his experts

here, so he needs you to bring your witnesses.

MR. MURPHY: I'll just make sure my witnesses can

make for it up, so we'll certainly endeavor to do that.

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THE COURT: I'm sorry, Mr. Lakind, but I think you

should, if it helps the trial move smoothly I'd appreciate if

you do that.

MR. LAKIND: I'm sorry, your Honor?

THE COURT: I was asking if you could have Mr.

Joenk --

MR. MURPHY: No, absolutely, it's a matter of --

THE COURT: You know, if it makes the trial go

smoother and he can be here, I'd request that you do it.

MR. MURPHY: I just work for him, so he's the

president of my defendant so I don't commit his schedule, but

I think he's available and we certainly would make him

available, yeah.

THE COURT: I'm thinking that all those motions will

probably take us all day on the 6th, so the trial wouldn't

start until the 7th, so if that's the first day.

MR. LAKIND: Thank you, your Honor.

THE COURT: And it might take us a little longer

than that on the motions, but we should get the trial started

on the 7th.

MR. MURPHY: Thank you.

MR. LAKIND: Thank you, your Honor.

MR. MURPHY: Thank you for your patience.

THE COURT: At any rate, I don't know if it's a

ruling or it's just guidance, but when I was listening to the

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issue and even before I came out here, I had looked at that

summary rule, and I had set it forth before, but it's 1006 is

the rule. And generally when you have use summary charts and

things of that nature, you always have the originals available

for the other party to look at at a reasonable time, which

they have. And if there's a list of the materials that are

going to be referred to from the Board members, it should be

given to the plaintiffs by December 23rd so they can start to

review it, and I think that's the best way of doing this.

Having a lot of redactions and missing pages during

the trial can cause disruption, and we'll be looking for other

pages, I can't see doing that. So if we have them all here in

some kind of disk format or some kind of format that we can

see on the computers, then I think that's the way we should

proceed. I can't see doing it any other way.

It seems to me that -- I know, Mr. Lakind, you're

saying they're not business records and they could be hearsay,

but in this case -- and I haven't read the case that you were

referring to that said they were not business records kept in

the ordinary course of business, to me when you're looking at

what the Board of Directors does, it's what they do; they look

at these volumes of materials time in and time out at every

meeting, and you're questioning their diligence, their

negligence, their carelessness, and these are all things that

go to show whether they were amply advised before they made

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the decision.

To me they look like they were the records that were

relied on by the Board of Directors in the course of their

business, so I would think I would allow them in on that

basis; subject to you having any more briefing time if you

want. But I think the smart way to do this is let's -- we

have all the Board members, we'll admit them into evidence;

the defendants under the obligation to give you the summary of

what they're going to be relying on by next Wednesday the

23rd, and then we'll rely on those summaries for the evidence

that I'm going to be weighing. I believe that's what we're

going to be doing; right? And I think you should make your

objections as to those specific items that are listed in the

summary.

MR. LAKIND: Your Honor, I think -- given your

Honor's explanation I think we should not further brief the

issue. We'll deal with it at trial or even in post trial

briefing. It is a bench trial, so to the extent something

comes in we want to object to we can deal with it later.

THE COURT: Exactly. Although we use the rules of

evidence, it's not like you have six jurors there.

MR. LAKIND: Right.

THE COURT: You know, that could be misled or

whatnot, and I guess I could be misled, but usually I see

through it. And you know now that I'm not going to read 50

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volumes of board member notes and books, so I'm only going to

read what's in the summary.

MR. LAKIND: I think your Honor's procedure obviates

a lot of the concerns we had as to what we should prepare for,

too, so I think that --

THE COURT: Now, if you're going to be relying on

parts of those board minute meetings, are you going to give a

summary to them?

MR. LAKIND: They have a list of what -- exactly

what we're relying on and it's self-evident what it's for;

it's performance, expenses, I don't think there's any dispute

about that. They've not objected.

MR. MURPHY: Ironically, your Honor, I think we're

relying -- we're going to be all showing you the same

documents, it's just we need a complete record as well.

THE COURT: All right. Any other matters?

MR. MURPHY: Not for the defendants, your Honor.

MR. LAKIND: Not for plaintiffs, your Honor.

THE COURT: All right. Thank you for coming in

today.

(Counsel say thank you.)

(Matter concluded.)

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'

'12 [1] - 8:13

/

/S [1] - 1:24

0

08608 [1] - 1:15

1

1 [24] - 8:20, 9:3, 9:5,

9:6, 9:7, 10:3, 10:15,

10:17, 10:19, 10:25,

11:7, 11:9, 12:9,

12:10, 12:11, 13:3,

13:7, 16:10, 39:3,

39:16, 42:10, 42:11

1,800 [1] - 31:24

1,871 [3] - 21:1, 22:13,

26:7

10 [2] - 12:9, 37:12

100 [2] - 23:5

100,000 [2] - 22:13,

23:24

1006 [3] - 16:22,

17:19, 45:2

11 [1] - 12:10

11-4194 [1] - 1:5

1186 [2] - 10:16, 10:17

11th [4] - 37:16, 38:2,

38:5, 38:17

12 [8] - 6:17, 12:24,

17:13, 22:15, 22:24,

23:1, 23:10, 41:19

120 [1] - 17:16

12th [2] - 37:16, 38:16

13-312 [1] - 1:10

14 [2] - 8:13, 34:2

15 [1] - 36:23

15,000 [1] - 21:22

150 [1] - 13:11

15th [1] - 38:18

16 [1] - 1:13

18 [2] - 12:24, 14:19

18th [2] - 38:19, 39:10

19th's [1] - 39:11

1st [1] - 39:17

2

2 [20] - 9:6, 9:7, 9:8,

10:20, 10:25, 11:11,

11:14, 11:16, 11:25,

12:1, 12:10, 12:11,

13:17, 14:5, 14:11,

14:12, 14:14, 19:16

200 [4] - 13:12, 15:7,

16:12, 33:3

2009 [1] - 9:20

2010 [1] - 6:20

2011 [1] - 8:13

2013 [4] - 11:18,

11:20, 12:3, 14:11

2014 [2] - 6:20, 21:16

2015 [1] - 1:13

20th [1] - 39:12

21st [1] - 39:12

226 [1] - 14:17

22nd [2] - 38:19, 39:13

23rd [3] - 41:12, 45:8,

46:10

25th [8] - 36:8, 36:14,

38:19, 38:22, 38:24,

39:2, 39:15, 39:21

26th [4] - 38:25, 39:2,

39:15, 39:21

27 [1] - 14:19

27th [2] - 39:2, 39:16

28 [2] - 1:23, 12:24

28th [2] - 39:3, 39:16

29th [2] - 39:3, 39:17

2nd [2] - 39:4, 39:18

3

3 [8] - 9:6, 9:8, 10:25,

12:3, 12:6, 12:9,

12:11, 14:5

30(b)(6 [1] - 42:24

31(a [1] - 7:10

31st [1] - 9:20

36(b [2] - 6:16, 7:20

4

4,000 [2] - 16:12,

16:16

400 [6] - 15:7, 21:8,

25:17, 26:6, 31:24

402 [1] - 1:14

409 [1] - 33:2

46 [1] - 14:19

4:00 [1] - 39:3

4th [5] - 38:4, 38:5,

39:4, 39:18, 43:18

5

5 [2] - 10:19, 12:8

50 [5] - 8:14, 14:17,

14:19, 17:1, 46:25

50,000 [2] - 19:16,

19:19

5th [3] - 39:4, 39:5,

39:18

6

6 [3] - 10:19, 12:6,

12:7

60 [1] - 17:14

62 [1] - 14:19

6th [11] - 37:17, 38:1,

38:8, 38:10, 38:12,

38:13, 38:17, 39:9,

43:18, 44:15

7

753 [1] - 1:23

78 [5] - 22:17, 23:1,

23:15, 24:6, 24:24

7th [6] - 38:12, 38:14,

38:17, 39:9, 44:16,

44:20

8

80 [1] - 14:19

856 [1] - 1:25

889-4761 [1] - 1:25

8th [8] - 11:18, 11:20,

14:11, 38:12, 38:14,

38:17, 39:9, 43:19

9

9 [2] - 14:16, 14:18

90 [1] - 22:15

9th [3] - 11:18, 11:20,

14:11

A

ability [2] - 21:11,

28:24

able [6] - 22:18, 25:22,

26:25, 36:1, 36:6,

37:17

abreast [1] - 4:19

absolutely [4] - 15:3,

18:7, 41:23, 44:7

Absolutely [2] - 27:3,

27:8

accept [1] - 15:22

access [1] - 10:9

accommodate [1] -

37:24

according [1] - 6:19

Act [1] - 7:2

actual [2] - 9:9, 33:9

addition [1] - 30:23

address [2] - 20:21,

32:16

adequate [1] - 8:3

adjourn [1] - 38:23

adjourned [1] - 37:16

admin [3] - 17:15,

18:12, 37:11

admissibility [1] -

28:10

admissible [4] -

30:19, 31:3, 31:9,

31:14

admission [4] - 6:7,

6:8, 33:2, 33:9

admit [3] - 15:13,

25:10, 46:7

advance [5] - 6:14,

26:13, 41:5, 41:7,

41:10

advantages [1] -

41:24

adversary [1] - 8:18

advised [1] - 45:25

advisers [1] - 23:8

advisor[4] - 6:23,

18:11, 22:15, 43:6

advisor/

administrator [1] -

37:6

Advisors [2] - 10:12,

14:10

advisors [1] - 28:16

advocacy [1] - 21:18

affects [1] - 23:1

afternoon [9] - 3:4,

3:6, 3:8, 3:9, 3:12,

3:15, 3:18, 3:21,

39:2

Agenda [2] - 10:10,

10:12

agenda [2] - 10:17,

11:17

agendas [1] - 10:21

aggregated [1] - 42:2

ago [4] - 21:16, 27:21,

28:11, 32:12

agree [3] - 15:25,

23:18, 42:18

agreed [1] - 25:7

agreement [1] - 23:21

ahead [1] - 25:24

al [3] - 1:3, 1:6, 1:8

alert [1] - 5:14

allegation [2] - 18:10,

37:3

United States District Court

Trenton, New Jersey

48

allegations [1] - 18:23

allow [2] - 3:11, 46:4

allows [1] - 7:3

altered [1] - 24:20

amount [6] - 4:4, 13:6,

16:17, 37:7, 42:14,

42:17

amply [1] - 45:25

analogy [1] - 30:6

analysis [1] - 8:2

analyze [1] - 30:4

ANN [1] - 1:3

annual [1] - 9:8

answer[1] - 29:1

apart [1] - 13:10

apologize [5] - 4:15,

4:24, 5:9, 5:22,

20:15

appearances [1] - 3:2

application [1] - 4:3

apply [1] - 24:24

applying [1] - 29:22

appointment [1] -

36:6

appreciate [2] - 5:24,

44:2

approach [2] - 8:16,

11:4

appropriate [2] - 5:8,

15:22

approval [1] - 6:25

approve [1] - 7:4

approved [2] - 6:21,

8:1

approving [2] - 12:19,

13:16

area [1] - 27:11

argue [2] - 35:9, 36:8

argued [3] - 28:11,

34:23, 35:5

arguing [4] - 34:11,

35:11, 35:15, 41:25

argument [7] - 28:9,

30:13, 30:20, 30:21,

31:12, 32:11, 35:18

arguments [3] - 33:15,

35:2, 40:9

arises [2] - 20:22,

20:25

ARNOLD [1] - 2:4

Arnold [1] - 3:5

arose [2] - 21:15,

21:16

Arpert [2] - 20:5, 25:8

asserted [1] - 18:19

asserting [1] - 24:7

assessment [1] - 29:6

assets [1] - 42:3

assist [1] - 3:22

Case 3:11-cv-04194-PGS-DEA Document 196 Filed 12/27/15 Page 48 of 55 PageID: 13828
assuming [1] - 16:20

attempt [1] - 8:6

attending [1] - 9:19

attorneys [1] - 39:22

available [7] - 17:4,

38:1, 43:17, 43:20,

44:12, 44:13, 45:4

aware [1] - 43:13

AXA [3] - 1:6, 1:10, 3:1

AXA's [1] - 9:11

B

backed [1] - 37:9

backs [1] - 37:3

bad [1] - 36:2

ball [1] - 40:18

barred [1] - 35:11

based [1] - 12:14

basis [2] - 5:3, 46:5

bearing [1] - 24:6

becomes [1] - 29:6

beginning [2] - 33:12,

38:1

behalf [3] - 3:10,

22:15, 23:2

behind [3] - 11:17,

12:8, 14:13

bench [1] - 46:18

BENEDICT [2] - 2:11,

3:19

Benedict [1] - 3:19

best [3] - 8:10, 31:20,

45:9

better [2] - 5:8, 5:10

between [2] - 7:19,

13:22

beyond [1] - 22:19

big [2] - 10:2, 15:15

bit [4] - 6:14, 23:9,

36:25, 37:2

BLADER [1] - 2:3

BLANK [1] - 2:7

Blank [3] - 3:10,

32:23, 34:3

BLUMSTEIN [1] - 2:3

blush [2] - 6:11, 15:1

Board [83] - 4:5, 4:11,

6:6, 6:21, 6:24, 7:2,

8:2, 8:6, 8:7, 8:12,

8:14, 9:13, 10:1,

11:19, 12:2, 12:5,

12:13, 13:6, 13:22,

14:10, 14:13, 14:15,

14:21, 15:4, 15:5,

15:8, 15:9, 15:12,

17:17, 17:20, 17:23,

18:1, 18:4, 18:6,

18:7, 18:14, 21:9,

21:18, 21:19, 21:21,

22:6, 22:8, 22:13,

22:16, 22:23, 22:25,

23:9, 24:9, 24:15,

24:18, 24:19, 25:7,

26:7, 26:19, 27:1,

27:5, 27:10, 28:24,

29:2, 29:4, 29:7,

29:8, 29:12, 30:2,

30:9, 30:10, 30:14,

30:15, 30:25, 31:15,

31:21, 33:3, 40:18,

41:1, 41:20, 42:5,

42:24, 45:7, 45:21,

46:3, 46:7

board [15] - 9:6, 9:19,

9:21, 11:18, 24:22,

29:9, 29:20, 30:25,

31:10, 31:15, 31:16,

40:10, 42:20, 47:1,

47:7

boards [1] - 23:7

Book [28] - 9:3, 9:5,

9:6, 9:7, 9:8, 10:3,

10:19, 10:20, 10:25,

11:9, 12:6, 12:8,

12:9, 12:10, 12:11,

13:7, 14:11, 14:12,

14:14, 16:10, 19:16,

42:10

book [12] - 9:16, 9:18,

9:21, 10:13, 10:15,

10:23, 11:8, 12:14,

13:14, 14:6, 15:20,

20:7

books [16] - 7:10,

9:23, 9:24, 10:1,

11:1, 11:2, 13:21,

15:15, 16:10, 17:1,

17:7, 19:23, 31:8,

31:10, 32:20, 47:1

break [3] - 13:11,

13:24, 36:18

breaking [1] - 34:14

breakpoints [1] - 42:2

brief [4] - 21:21,

25:13, 25:21, 46:16

briefed [1] - 32:10

briefing [2] - 46:5,

46:18

briefings [1] - 18:5

bring [12] - 4:8, 7:15,

27:25, 30:11, 30:25,

31:4, 31:14, 31:16,

37:4, 37:9, 40:12,

43:23

broad [1] - 18:2

brought [2] - 22:14,

33:12

buckets [1] - 37:11

bulk [1] - 14:3

bundled [1] - 8:9

burden [4] - 6:10,

25:1, 25:10, 25:19

burdening [1] - 17:10

buried [1] - 18:7

business [28] - 7:7,

7:9, 7:14, 9:10, 9:16,

12:21, 14:1, 14:4,

15:13, 18:20, 19:19,

20:2, 21:18, 21:23,

21:25, 25:12, 25:14,

25:16, 25:19, 32:4,

32:10, 32:12, 32:15,

43:5, 45:17, 45:19,

45:20, 46:4

BY [3] - 2:4, 2:7, 2:10

C

C.S.R [1] - 1:24

calculation [1] - 16:23

California [2] - 36:8,

38:25

cannot [3] - 16:24,

17:2, 27:18

care [1] - 40:5

careful [1] - 29:2

carelessness [1] -

45:24

case [27] - 6:16, 7:21,

10:24, 19:2, 21:5,

22:14, 22:18, 23:15,

23:20, 24:6, 26:2,

26:5, 26:23, 26:24,

29:1, 30:5, 32:14,

34:23, 35:21, 36:8,

37:13, 37:16, 39:22,

41:3, 45:18

cases [3] - 7:20, 21:7,

36:19

catch [1] - 36:13

categories [1] - 22:23

category [4] - 4:21,

22:24, 22:25, 23:2

CEO [1] - 43:15

certain [5] - 13:22,

24:4, 24:7, 26:1,

29:14

certainly [10] - 5:21,

6:19, 11:1, 17:21,

35:6, 35:14, 42:6,

42:9, 43:25, 44:12

Certified [1] - 1:23

challenged [1] - 6:17

chance [2] - 33:23,

36:9

chapters [1] - 20:7

charged [1] - 6:17

chart [2] - 16:23,

28:10

charts [4] - 17:19,

40:24, 40:25, 45:3

chunk [1] - 41:4

circled [1] - 8:25

cited [1] - 17:19

CIVIL [2] - 1:5, 1:9

claim [2] - 27:11,

42:19

claiming [2] - 41:21,

42:3

claims [1] - 22:15

clarify [1] - 27:9

CLARKSON [1] - 1:14

clean [1] - 4:17

clear [1] - 13:1

clearer [1] - 19:8

clearly [4] - 14:1,

22:24, 35:17, 42:24

clerks [1] - 4:20

clients' [1] - 21:20

close [1] - 4:7

closer[1] - 36:9

CO [1] - 1:6

co [1] - 3:11

co-counsel [1] - 3:11

cognizant [1] - 17:10

collective [1] - 7:19

coming [3] - 36:5,

38:1, 47:19

commit [1] - 44:11

communications [1] -

8:24

Company [2] - 7:2, 7:9

comparative [1] -

31:23

compilation [1] -

11:16

complaint [1] - 18:10

complete [2] - 15:9,

47:15

completely [1] - 23:15

compliance [1] -

37:11

complicated [1] -

20:18

comply [1] - 4:9

component [1] - 31:12

components [2] -

13:12, 16:12

computer [1] - 5:17

computers [1] - 45:14

conceding [1] - 15:12

concerns [1] - 47:4

conclude [1] - 7:3

concluded [1] - 47:22

conclusions [1] -

25:15

United States District Court

Trenton, New Jersey

49

confer [3] - 15:24,

19:11, 19:17

confusing [1] - 14:7

connect [1] - 31:17

connection [1] - 26:14

conscientious [1] -

29:2

conscientiousness

[1] - 7:24

consecutively [3] -

10:14, 10:16, 12:25

consent [1] - 32:4

consider [1] - 30:15

considerably [1] -

20:18

considered [1] - 30:14

consisting [1] - 33:3

constitute [1] - 26:7

contains [1] - 21:4

content [1] - 16:23

context [3] - 6:15,

20:21, 20:24

contract [3] - 17:15,

18:13, 23:7

contracts [2] - 9:9,

18:13

contrary [1] - 30:17

contrast [1] - 21:8

conveniently [2] -

16:25, 17:2

conversation [1] -

21:17

copy [1] - 8:22

core [1] - 7:21

corner [2] - 37:4, 37:9

correct [3] - 1:23,

35:8, 42:20

Correct [1] - 11:12

correctly [1] - 24:17

Counsel [1] - 47:21

counsel [10] - 3:11,

7:19, 20:18, 21:17,

21:23, 23:11, 28:14,

34:17, 42:22, 42:25

couple [4] - 17:22,

34:16, 41:8, 41:18

course [14] - 7:6, 7:8,

9:10, 9:15, 12:21,

16:7, 19:19, 24:3,

25:8, 31:19, 34:22,

35:12, 45:20, 46:3

court [4] - 16:25, 17:3,

25:8, 39:17

Court [6] - 7:25, 9:1,

11:6, 22:18, 23:11,

28:2

COURT [93] - 1:1,

1:17, 3:1, 3:8, 3:12,

3:15, 3:18, 3:21,

4:18, 4:25, 5:10,

Case 3:11-cv-04194-PGS-DEA Document 196 Filed 12/27/15 Page 49 of 55 PageID: 13829
5:25, 6:4, 7:6, 8:4,

8:17, 9:2, 9:18, 9:23,

10:5, 11:5, 11:7,

11:10, 11:13, 11:24,

13:19, 16:20, 19:4,

19:22, 20:12, 20:16,

22:20, 24:3, 25:4,

25:24, 26:22, 27:5,

27:13, 27:22, 28:2,

29:17, 30:12, 30:22,

31:6, 31:18, 32:8,

32:18, 32:25, 33:11,

33:14, 33:21, 33:24,

34:5, 34:7, 34:9,

34:12, 34:14, 34:18,

34:24, 35:1, 35:10,

35:20, 36:3, 36:11,

36:16, 37:14, 37:23,

38:7, 38:12, 38:22,

39:1, 39:9, 39:25,

40:3, 40:9, 40:12,

40:15, 41:7, 41:12,

41:16, 43:9, 43:22,

44:1, 44:5, 44:8,

44:14, 44:18, 44:24,

46:20, 46:23, 47:6,

47:16, 47:19

Court's [1] - 19:7

COURTHOUSE [1] -

1:14

courts [1] - 7:24

cover[1] - 18:13

create [3] - 12:15,

12:25, 42:16

credit [1] - 27:11

criminal [1] - 36:19

critical [3] - 7:17,

12:12, 43:15

cross [2] - 14:14,

41:15

cross-examination [1]

- 41:15

cull [1] - 41:3

cumbersome [1] -

17:10

custodian [6] - 13:19,

13:20, 24:15, 31:6,

31:7, 31:9

D

Dan [1] - 36:4

data [2] - 17:14, 17:16

date [3] - 4:9, 36:10,

36:13

DAVID [1] - 2:7

David [1] - 3:9

dawn [1] - 5:13

days [8] - 13:14,

29:13, 36:20, 36:23,

37:13, 39:8, 39:13,

39:18

deal [7] - 6:13, 14:24,

22:4, 23:12, 28:9,

46:17, 46:19

dealing [3] - 4:4, 4:12,

8:8

December [3] - 9:20,

41:12, 45:8

DECEMBER [1] - 1:13

decide [2] - 15:2, 18:1

decision [4] - 31:1,

32:13, 34:15, 46:1

decision-making [1] -

31:1

defeats [1] - 21:6

DEFENDANT [1] -

1:11

defendant [1] - 44:11

Defendant's [8] - 11:7,

11:11, 11:13, 11:15,

12:1, 13:17, 14:5,

42:11

defendant's [3] - 12:5,

22:5, 43:15

Defendants [2] -

20:25, 28:12

defendants [14] -

3:10, 3:14, 3:17,

3:20, 4:14, 21:10,

25:9, 26:10, 26:13,

28:16, 30:18, 33:9,

46:8, 47:17

DEFENDANTS [3] -

1:7, 2:8, 2:12

defending [1] - 26:24

defense [1] - 30:13

definitively [1] - 32:12

delay [2] - 6:10, 6:13

delegated [1] - 18:10

delete [1] - 24:10

deliberative [1] -

31:17

demonstrate [6] -

21:22, 23:13, 25:14,

25:19, 27:15, 30:10

demonstrative [1] -

17:18

depositions [1] -

10:24

describe [1] - 11:13

designating [1] - 43:2

detail [2] - 13:24, 32:6

developed [1] - 29:15

different [6] - 4:21,

11:16, 16:13, 18:13,

20:8, 26:6

differently [1] - 6:2

diligence [3] - 42:7,

42:9, 45:23

Diligent [3] - 10:2,

10:3, 29:4

direct [1] - 41:9

directors [1] - 12:19

Directors [4] - 6:21,

21:21, 45:21, 46:3

discern [1] - 26:8

discovery [1] - 5:1

discussions [1] - 25:9

disk [3] - 19:22, 42:15,

45:13

disposition [2] -

21:12, 26:5

dispositive [1] - 5:4

dispute [5] - 27:12,

27:24, 31:4, 33:24,

47:11

disrupt [1] - 6:13

disruption [1] - 45:11

DISTRICT [4] - 1:1,

1:1, 1:17, 1:18

District [1] - 32:13

docket [1] - 4:19

document [11] -

13:11, 14:2, 14:8,

20:6, 21:19, 22:1,

27:16, 28:21, 28:25

documents [32] -

6:23, 6:24, 10:6,

11:17, 12:17, 19:6,

19:10, 20:3, 20:8,

21:1, 21:5, 21:11,

21:23, 21:24, 22:9,

23:6, 23:23, 24:6,

24:9, 25:11, 25:12,

25:17, 25:20, 26:2,

26:7, 26:11, 32:15,

33:10, 40:20, 41:10,

47:15

Dolores [1] - 35:25

done [12] - 13:2,

15:18, 18:22, 20:7,

21:13, 22:7, 22:12,

23:2, 27:11, 27:24,

33:8

double [6] - 3:25,

5:10, 5:16, 5:22,

17:16, 34:2

double-spaced [2] -

5:22, 34:2

down [3] - 13:24,

37:15, 41:4

drawn [2] - 17:16,

21:9

Drew [1] - 3:19

due [1] - 29:25

duplicates [1] - 17:4

during [4] - 24:3,

35:12, 36:17, 45:10

E

early [4] - 5:11, 5:15,

34:14, 34:20

ease [1] - 16:2

easier[3] - 5:15, 5:19,

17:22

EAST [1] - 1:14

Ebenhoech/Koppers

[1] - 32:14

economies [1] - 42:1

efficient [5] - 9:4,

14:22, 16:5, 19:7,

20:10

eight [2] - 37:12, 39:8

either [1] - 33:11

electronic [1] - 10:2

eliminate [2] - 19:16,

26:12

employees [2] - 12:5,

42:3

end [3] - 13:15, 14:20,

42:14

endeavor [1] - 43:25

ending [1] - 9:20

enormous [1] - 42:14

enormously [1] -

43:13

enter [1] - 3:2

entire [3] - 10:13,

10:15, 31:8

entitled [1] - 28:20

EQ [2] - 10:11, 14:10

EQAT [1] - 11:19

EQUITABLE [2] - 1:6,

1:10

Equitable [1] - 3:2

ESQUIRE [6] - 2:4,

2:4, 2:7, 2:10, 2:11,

2:11

essentially [1] - 32:14

et [3] - 1:3, 1:6, 1:8

ethics [1] - 23:7

evidence [24] - 16:6,

17:24, 18:6, 18:17,

26:22, 27:12, 27:14,

27:22, 27:23, 27:25,

28:3, 28:6, 28:8,

30:14, 30:15, 30:16,

30:17, 30:18, 31:4,

35:18, 37:4, 46:7,

46:10, 46:21

evident [1] - 47:10

evidential [2] - 22:1,

29:11

ex [1] - 8:24

exact [2] - 11:22, 20:5

Exactly [1] - 46:20

exactly [4] - 16:21,

United States District Court

Trenton, New Jersey

50

24:13, 33:21, 47:9

exam [1] - 41:9

examination [1] -

41:15

examine [1] - 23:11

examined [2] - 16:25,

17:3

example [8] - 8:13,

10:10, 17:12, 19:16,

27:17, 28:8, 28:18,

28:21

exception [3] - 21:25,

25:11, 25:20

excessive [1] - 6:18

excuse [4] - 5:21,

21:19, 26:6, 31:22

exhibit [16] - 11:21,

11:22, 13:2, 14:9,

15:7, 16:16, 19:9,

21:1, 21:3, 21:6,

21:8, 23:4, 23:5,

23:6, 26:3, 26:6

Exhibit [10] - 8:20,

11:7, 11:11, 11:14,

11:16, 12:1, 13:3,

13:17, 14:5, 42:11

exhibits [12] - 11:21,

15:7, 15:8, 16:4,

16:13, 17:11, 17:18,

21:9, 22:13, 26:8,

31:24, 33:2

expectations [1] -

34:21

expedited [2] - 4:9,

5:2

expenses [3] - 22:10,

31:23, 47:11

expert [3] - 34:21,

35:11, 37:24

experts [6] - 15:6,

35:2, 35:8, 37:19,

38:16, 43:22

experts' [1] - 37:21

explain [2] - 4:16, 42:9

explains [1] - 32:6

explanation [1] -

46:16

extensively [1] - 15:6

extent [4] - 22:7,

22:12, 37:24, 46:18

eyes [1] - 5:14

F

face [1] - 30:8

fact [6] - 23:22, 28:3,

28:18, 29:7, 30:7,

37:23

factor [1] - 7:25

Case 3:11-cv-04194-PGS-DEA Document 196 Filed 12/27/15 Page 50 of 55 PageID: 13830
factors [4] - 7:22,

7:23, 17:12, 17:13

factual [1] - 31:4

fair[3] - 20:23, 32:7,

32:8

Fair [1] - 4:23

fall [1] - 25:20

familiar [1] - 24:17

fashioned [1] - 5:18

fast [2] - 40:1, 40:3

fear[1] - 16:8

February [2] - 39:5,

39:6

fee [3] - 21:20, 42:5,

42:8

fees [8] - 6:17, 6:21,

6:25, 7:4, 8:8, 12:19,

13:16, 31:23

few [2] - 32:11, 39:13

file [1] - 33:4

filed [1] - 33:4

files [1] - 9:11

financial [1] - 25:16

finder [1] - 28:18

first [19] - 4:11, 6:11,

6:15, 8:25, 11:17,

14:25, 20:21, 20:24,

22:11, 22:24, 23:4,

25:5, 32:23, 43:14,

43:16, 43:17, 43:19,

44:16

First [2] - 4:14, 17:25

FISHER [1] - 1:14

fit [1] - 4:17

fits [2] - 4:21, 17:2

five [7] - 6:20, 8:11,

8:12, 17:14, 34:1,

36:20, 39:10

flying [1] - 38:25

FMG [12] - 18:10,

18:16, 18:21, 21:20,

22:7, 22:12, 22:15,

23:18, 26:17, 28:13,

37:5, 43:5

FMG's [1] - 12:8

follow [2] - 3:24, 4:1

following [1] - 4:6

font [4] - 4:1, 5:16,

5:23, 34:2

FOR [3] - 2:5, 2:8,

2:12

formal [1] - 5:7

format [2] - 45:13

formed [2] - 27:2, 31:1

forth [1] - 45:2

forward [1] - 25:1

foundation [10] - 7:15,

13:5, 15:21, 20:9,

26:19, 27:15, 27:18,

28:17, 28:19, 28:20

foundational [2] -

13:14, 27:19

four[1] - 7:20

frame [1] - 6:9

Francis [1] - 1:24

FRANCIS [1] - 1:24

frankly [1] - 21:2

Friday [3] - 34:5, 34:7,

34:8

front [1] - 18:1

fruitful [1] - 33:19

full [4] - 25:14, 25:15,

33:4, 36:5

full-time [1] - 36:5

fully [2] - 18:1, 22:8

fund [4] - 16:14, 37:6,

42:1, 42:7

funds [28] - 6:18,

17:13, 22:10, 22:15,

22:16, 22:17, 22:20,

22:25, 23:1, 23:2,

23:3, 23:6, 23:7,

23:8, 23:10, 23:15,

24:6, 24:24, 41:17,

41:19, 41:22, 41:24,

42:2, 42:4, 42:6,

42:12, 42:13

FUNDS [1] - 1:10

G

Gable [1] - 1:24

GABLE [1] - 1:24

gaps [1] - 14:20

Gartenberg [3] - 7:22,

8:1, 17:12

generally [3] - 5:3,

24:15, 45:3

generous [1] - 14:7

given [6] - 6:24, 12:5,

18:23, 25:13, 45:8,

46:15

GLENN [1] - 1:8

goal [1] - 21:6

govern [1] - 7:1

governed [1] - 7:4

greatly [1] - 19:20

grounds [1] - 27:20

GROUP [1] - 1:11

guess [3] - 5:8, 36:22,

46:24

guidance [5] - 6:5,

15:19, 16:19, 33:14,

44:25

guys [1] - 36:4

H

Hadley [1] - 3:13

HADLEY [1] - 2:10

half [1] - 15:8

hand [2] - 10:18, 11:3

handed [2] - 27:17,

28:22

Handing [2] - 9:1, 11:6

handle [4] - 5:1, 5:2,

6:6, 9:5

handled [1] - 34:22

handwriting [1] - 8:23

happy [2] - 38:9, 38:10

hard [2] - 18:15, 37:7

harm [1] - 42:16

heading [1] - 14:10

hear [2] - 15:2, 35:18

heard [4] - 4:11,

32:11, 33:16, 35:11

hearing [1] - 29:19

HEARING [1] - 1:20

hearsay [6] - 14:2,

14:3, 25:7, 25:11,

25:20, 45:17

heart [1] - 8:10

heed [1] - 40:19

held [1] - 11:20

help [3] - 3:22, 35:22,

43:12

helps [1] - 44:2

hide [1] - 40:18

higher[1] - 21:20

highlight [1] - 10:21

himself [1] - 43:20

hold [1] - 6:12

holiday [1] - 39:11

Honor [105] - 3:4, 3:6,

3:9, 3:14, 3:20, 4:13,

4:14, 4:23, 5:9, 5:22,

6:5, 6:16, 7:9, 7:17,

8:16, 8:21, 8:25,

9:10, 9:17, 10:8,

10:11, 10:17, 10:25,

11:4, 11:12, 12:1,

13:3, 13:18, 14:6,

14:25, 15:5, 15:19,

16:9, 16:19, 17:24,

18:6, 18:9, 18:19,

18:24, 19:3, 19:25,

20:13, 20:14, 22:3,

23:16, 25:3, 25:6,

25:23, 25:25, 26:10,

27:9, 27:17, 27:21,

28:7, 28:10, 28:11,

28:22, 28:23, 30:21,

31:19, 32:7, 32:9,

32:17, 32:24, 33:7,

33:17, 34:1, 34:6,

34:8, 34:10, 34:16,

35:14, 35:24, 36:7,

36:22, 36:25, 37:18,

38:3, 38:6, 38:11,

38:20, 38:24, 39:8,

39:20, 39:23, 40:7,

40:8, 40:11, 40:13,

40:16, 41:14, 41:18,

41:22, 42:11, 42:16,

42:18, 43:6, 43:7,

44:4, 44:17, 44:22,

46:15, 47:13, 47:17,

47:18

Honor's [4] - 33:18,

33:20, 46:16, 47:3

HONORABLE [1] -

1:17

hooked [1] - 10:9

hopefully [2] - 26:2,

40:3

hoping [2] - 4:15, 6:3

HORA [2] - 2:11, 3:16

Hora [2] - 3:16, 3:18

hour [1] - 39:15

huge [1] - 18:24

hundred [2] - 40:22,

41:2

hundreds [1] - 19:14

I

idea [1] - 14:12

ideas [1] - 33:22

identify [5] - 19:11,

31:21, 40:20, 40:23,

40:25

imagine [1] - 41:8

important [5] - 5:5,

5:16, 7:25, 17:25,

24:2

impossible [3] -

23:11, 23:25, 26:8

IN [1] - 1:20

inclinations [1] -

33:18

include [1] - 15:22

included [1] - 21:12

including [1] - 42:23

incomplete [1] - 14:22

independence [1] -

7:23

independent [3] -

6:22, 6:23, 7:24

indicate [1] - 32:3

indicated [2] - 20:18,

21:17

indicates [3] - 23:22,

25:23, 25:25

indication [1] - 35:25

United States District Court

Trenton, New Jersey

51

indicia [1] - 29:7

individual [1] - 42:13

industry [1] - 10:3

Industry [1] - 14:11

inextricably [1] - 22:2

inferences [1] - 29:14

informally [1] - 33:8

information [20] - 7:2,

7:4, 8:3, 12:19,

13:15, 18:3, 22:16,

22:23, 23:8, 23:14,

24:1, 26:25, 29:3,

29:5, 29:10, 29:16,

30:24, 31:1, 32:3

informed [5] - 18:1,

22:8, 29:6, 29:12,

30:10

initial [1] - 24:9

INS [1] - 1:6

insofar[1] - 23:13

inspection [3] - 7:11,

9:13, 17:4

instance [2] - 23:4,

29:19

instances [2] - 42:22,

42:25

instead [1] - 12:24

intent [1] - 19:24

intention [1] - 19:25

interest [1] - 26:16

interested [1] - 35:15

Internet [7] - 10:6,

29:3, 30:2, 30:8,

30:24, 31:2, 31:13

interrupted [1] - 39:14

intertwined [1] - 22:2

introduce [1] - 3:11

Investment [2] - 7:1,

7:9

IPad [1] - 10:8

Ironically [1] - 47:13

irrelevant [9] - 16:1,

21:5, 22:14, 23:15,

25:2, 26:15, 26:16,

41:22, 42:14

isolate [1] - 21:11

isolated [1] - 18:22

issue [36] - 4:16, 5:4,

6:1, 6:11, 7:16, 8:14,

16:14, 19:17, 21:22,

22:11, 23:13, 24:1,

25:13, 26:17, 26:21,

29:12, 29:15, 29:23,

29:25, 31:19, 32:5,

32:10, 32:25, 33:2,

35:5, 37:1, 40:4,

41:18, 41:19, 42:1,

42:4, 42:6, 42:7,

45:1, 46:17

issues [13] - 6:9, 22:2,

Case 3:11-cv-04194-PGS-DEA Document 196 Filed 12/27/15 Page 51 of 55 PageID: 13831
22:4, 22:6, 22:21,

23:20, 29:1, 31:22,

32:16, 34:17, 41:23,

43:8, 43:12

items [1] - 46:13

J

JAMES [1] - 2:11

January [4] - 34:20,

36:7, 36:14, 38:5

JERSEY [3] - 1:1,

1:15, 1:18

Jersey [1] - 32:14

job [2] - 24:13, 25:4

Joenk [3] - 12:7,

43:14, 44:6

judge [1] - 40:21

Judge [2] - 20:5, 25:8

JUDGE [1] - 1:17

judges [1] - 5:1

JUDGMENT [1] - 1:20

judgment [4] - 6:16,

7:22, 21:10, 26:14

judgments [1] - 25:15

July [4] - 11:18, 11:20,

12:2, 14:11

jump [1] - 14:17

jurors [1] - 46:21

jury [1] - 35:10

K

keep [2] - 4:19, 24:13

kept [15] - 7:6, 7:8,

7:11, 9:10, 9:15,

12:20, 12:23, 13:8,

14:21, 16:6, 19:6,

19:18, 24:18, 24:21,

45:19

kind [6] - 4:17, 4:21,

6:11, 37:3, 45:13

King [1] - 39:11

KISTLER [2] - 2:7, 3:9

Kistler [2] - 3:10, 3:12

knowledge [1] - 24:23

L

LAKIND [58] - 2:3, 2:4,

2:4, 3:4, 3:6, 8:21,

20:14, 20:17, 22:22,

25:3, 25:6, 25:25,

27:3, 27:8, 27:14,

28:1, 28:7, 30:6,

30:20, 30:23, 31:12,

31:19, 32:9, 32:24,

33:6, 33:13, 33:17,

33:23, 34:1, 34:6,

34:8, 34:16, 34:19,

34:25, 35:5, 35:24,

36:7, 36:14, 36:22,

37:18, 38:3, 38:20,

38:24, 39:7, 39:20,

40:1, 40:7, 40:11,

43:7, 43:10, 44:4,

44:17, 44:22, 46:15,

46:22, 47:3, 47:9,

47:18

Lakind [7] - 3:5, 3:7,

38:15, 43:22, 44:1,

45:16

Lakinds [1] - 3:8

large [2] - 23:19, 41:4

larger [1] - 5:23

last [3] - 10:15, 40:17,

42:18

late [1] - 43:7

law [1] - 4:20

lay [10] - 7:15, 9:14,

13:5, 15:21, 20:9,

26:18, 27:15, 27:18,

28:17, 28:20

learn [1] - 35:21

least [5] - 6:18, 6:20,

8:12, 23:9

leave [1] - 34:15

left [2] - 32:3

legal [2] - 29:12, 29:15

legend [2] - 10:11,

10:12

legitimate [1] - 25:16

length [1] - 32:11

lengthy [1] - 13:5

less [1] - 24:24

letter [9] - 29:14,

29:18, 29:21, 30:4,

32:22, 32:23, 33:6,

34:2, 34:3

Letters [1] - 3:23

letters [2] - 4:18, 8:5

life [1] - 17:21

LIFE [1] - 1:6

Likewise [1] - 29:15

limine [5] - 35:3, 35:9,

35:17, 35:20, 37:25

LIMINE/SUMMARY [1]

- 1:20

limines [5] - 34:20,

38:4, 38:5, 38:7,

38:10

lined [1] - 37:19

list [22] - 13:3, 14:8,

14:9, 15:7, 16:4,

16:16, 17:7, 18:2,

18:8, 21:1, 21:2,

21:3, 21:6, 21:8,

23:5, 26:3, 26:6,

41:4, 43:10, 43:11,

45:6, 47:9

listed [1] - 46:13

listen [1] - 35:2

listening [2] - 33:17,

44:25

lists [1] - 11:21

litigation [1] - 7:13

LLP [2] - 2:7, 2:10

local [2] - 3:25, 4:9

located [1] - 12:8

lodge [1] - 16:18

look [19] - 5:5, 8:15,

9:16, 10:4, 10:10,

10:17, 11:25, 14:9,

16:21, 23:18, 26:1,

26:11, 29:10, 31:5,

41:9, 42:10, 45:5,

45:21, 46:2

looked [3] - 15:6,

28:25, 45:1

looking [6] - 27:6,

27:23, 33:14, 36:19,

45:11, 45:20

looks [3] - 4:5, 39:2,

39:18

Luther [1] - 39:11

M

magistrate [1] - 5:1

magnitude [4] - 21:4,

21:6, 23:13, 32:5

mailed [1] - 29:13

mailing [1] - 29:18

main [1] - 17:24

maintained [1] - 31:10

majority [4] - 6:22,

21:4, 22:12, 25:18

MANAGEMENT [1] -

1:11

management [3] -

17:15, 18:12, 37:11

manner[1] - 20:15

margins [1] - 17:14

mark [2] - 11:7, 11:10

Martin [1] - 39:11

MARY [1] - 1:3

massive [2] - 14:20,

37:7

material [13] - 17:20,

18:21, 21:9, 21:18,

22:13, 22:16, 22:23,

22:24, 22:25, 27:10,

30:8, 31:21, 36:2

materials [35] - 4:4,

4:11, 6:6, 7:18, 8:6,

8:8, 8:12, 9:13,

11:22, 13:6, 14:13,

14:15, 14:21, 15:4,

15:6, 15:8, 15:9,

15:12, 17:11, 17:17,

17:20, 17:23, 18:7,

18:14, 22:6, 25:7,

26:7, 26:20, 33:3,

40:19, 41:1, 42:25,

43:4, 45:6, 45:22

Matter[1] - 47:22

matter [9] - 4:15, 5:1,

8:11, 18:10, 18:19,

20:25, 21:12, 43:4,

44:7

matters [2] - 8:6,

47:16

McCloy [2] - 2:10,

3:14

mean [8] - 8:11, 10:5,

13:15, 19:3, 24:13,

25:4, 25:7, 29:18

meet [4] - 13:8, 15:24,

19:11, 19:17

meeting [11] - 9:6, 9:8,

9:19, 9:25, 11:18,

11:19, 11:20, 12:2,

24:19, 29:4, 45:23

Meeting [1] - 14:11

meetings [5] - 8:12,

8:13, 8:14, 13:22,

47:7

member[8] - 9:21,

29:9, 30:25, 31:10,

31:15, 31:17, 42:20,

47:1

members [10] - 6:24,

27:1, 27:6, 29:5,

30:2, 30:9, 30:25,

31:16, 45:7, 46:7

mention [1] - 39:21

mentioned [2] - 28:23,

31:25

mere [1] - 30:7

merely [2] - 29:11,

31:13

Merely [2] - 29:16,

31:2

merit [1] - 30:12

might [16] - 6:11, 8:24,

12:24, 24:23, 28:10,

29:24, 36:1, 36:9,

36:17, 36:18, 37:17,

38:22, 38:24, 39:14,

39:21, 44:18

MILBANK [1] - 2:10

Milbank [4] - 3:13,

3:16, 3:19, 4:14

million [1] - 21:2

mind [2] - 5:13, 35:20

minute [2] - 43:9, 47:7

minutes [7] - 11:19,

United States District Court

Trenton, New Jersey

52

12:1, 12:4, 12:12,

32:11, 40:10, 40:14

misled [2] - 46:23,

46:24

missing [2] - 36:12,

45:10

moment [3] - 27:4,

27:9, 27:21

Monday [2] - 34:12,

38:21

month [1] - 24:21

months [1] - 28:11

morning [1] - 5:12

most [4] - 7:25, 17:25,

21:9, 41:14

motion [19] - 4:5, 4:6,

4:17, 4:20, 5:3, 5:7,

5:23, 6:2, 20:20,

21:10, 21:13, 25:10,

26:14, 32:2, 32:6,

33:8, 39:11, 39:17

motions [9] - 35:3,

35:9, 35:16, 35:21,

37:25, 38:13, 43:19,

44:14, 44:19

MOTIONS [1] - 1:20

move [6] - 6:8, 12:17,

13:6, 13:8, 32:19,

44:2

moved [1] - 17:23

moving [2] - 32:18,

33:9

MR [106] - 3:4, 3:6,

3:9, 3:13, 3:16, 3:19,

4:13, 4:23, 5:9, 5:21,

6:1, 6:5, 7:8, 8:9,

8:19, 8:21, 8:22, 9:3,

9:22, 9:24, 10:7,

11:9, 11:12, 11:15,

11:25, 13:23, 17:9,

19:5, 19:24, 20:13,

20:14, 20:17, 22:22,

25:3, 25:6, 25:25,

27:3, 27:8, 27:14,

28:1, 28:7, 30:6,

30:20, 30:23, 31:12,

31:19, 32:9, 32:24,

33:6, 33:13, 33:17,

33:23, 34:1, 34:6,

34:8, 34:10, 34:13,

34:16, 34:19, 34:25,

35:5, 35:8, 35:14,

35:23, 35:24, 36:7,

36:12, 36:14, 36:15,

36:22, 36:25, 37:18,

38:3, 38:5, 38:9,

38:20, 38:24, 39:7,

39:20, 40:1, 40:7,

40:8, 40:11, 40:13,

40:16, 41:8, 41:13,

Case 3:11-cv-04194-PGS-DEA Document 196 Filed 12/27/15 Page 52 of 55 PageID: 13832
41:17, 43:7, 43:10,

43:18, 43:24, 44:4,

44:7, 44:10, 44:17,

44:21, 44:22, 44:23,

46:15, 46:22, 47:3,

47:9, 47:13, 47:17,

47:18

MURPHY [49] - 2:10,

3:13, 4:13, 4:23, 5:9,

5:21, 6:1, 6:5, 7:8,

8:9, 8:19, 8:22, 9:3,

9:22, 9:24, 10:7,

11:9, 11:12, 11:15,

11:25, 13:23, 17:9,

19:5, 19:24, 20:13,

34:10, 34:13, 35:8,

35:14, 35:23, 36:12,

36:15, 36:25, 38:5,

38:9, 40:8, 40:13,

40:16, 41:8, 41:13,

41:17, 43:18, 43:24,

44:7, 44:10, 44:21,

44:23, 47:13, 47:17

Murphy [5] - 3:13,

3:15, 4:13, 35:7,

36:23

must [2] - 7:2, 17:3

mutual [7] - 6:17,

22:15, 22:16, 22:17,

24:6, 24:24, 37:6

N

narrow [1] - 33:24

nature [4] - 5:4, 29:21,

32:15, 45:4

nearly [1] - 21:1

necessarily [1] - 18:3

need [20] - 3:24,

12:17, 13:6, 16:9,

16:11, 17:23, 18:15,

19:2, 26:18, 27:15,

28:17, 30:10, 30:24,

31:9, 32:16, 35:17,

36:3, 37:5, 37:9,

47:15

needed [1] - 9:4

needs [2] - 4:8, 43:23

negligence [1] - 45:24

negotiate [1] - 21:20

negotiated [2] - 42:5,

42:8

neighbors [1] - 29:21

new [2] - 16:16, 16:18

NEW [3] - 1:1, 1:15,

1:18

New [1] - 32:13

next [7] - 34:14, 34:15,

38:18, 39:10, 41:8,

46:9

NO [2] - 1:5, 1:9

notes [2] - 5:19, 47:1

nothing [1] - 22:17

notice [4] - 4:20,

29:19, 29:23, 29:25

notion [1] - 29:11

November[1] - 21:16

number[7] - 11:23,

22:7, 22:8, 23:19,

32:9, 34:20, 38:23

Number [3] - 22:7,

25:6, 34:19

numbered [4] - 10:14,

10:16, 12:25

numbers [3] - 10:22,

12:14, 14:19

numerous [2] - 10:24,

42:5

O

o'clock [2] - 39:3,

39:16

object [8] - 16:13,

19:9, 19:10, 20:11,

25:17, 31:24, 36:11,

46:19

objected [2] - 15:11,

47:12

objecting [1] - 27:19

objection [6] - 15:10,

15:15, 15:16, 16:3,

32:21, 36:15

objections [7] - 15:24,

16:18, 26:12, 29:24,

34:21, 40:6, 46:13

obligation [1] - 46:8

obviate [1] - 43:12

obviates [1] - 47:3

obviously [3] - 6:8,

13:24, 43:21

Obviously [1] - 14:17

odd [1] - 21:8

OF [2] - 1:1, 1:18

offer[2] - 40:17, 40:20

office [2] - 24:20,

35:25

OFFICIAL [1] - 1:25

often [1] - 9:25

old [2] - 5:18, 29:13

ON [1] - 1:20

once [1] - 35:5

one [44] - 4:3, 7:23,

8:19, 9:21, 11:3,

11:10, 11:17, 11:21,

12:2, 12:6, 12:9,

13:13, 13:20, 14:2,

14:7, 15:12, 15:15,

15:20, 16:3, 17:13,

17:25, 18:11, 21:2,

21:16, 22:7, 23:19,

25:6, 27:1, 27:9,

28:8, 29:1, 30:6,

31:12, 32:9, 34:19,

36:12, 37:19, 41:20,

42:1, 42:7, 42:23

one's [1] - 12:6

ones [1] - 24:19

opinions [3] - 21:24,

25:18, 27:2

opportunity [5] -

21:21, 25:13, 28:6,

32:16, 33:16

order[3] - 4:8, 6:2,

26:3

ordinary [8] - 7:6, 7:8,

9:10, 9:15, 12:21,

16:6, 19:18, 45:20

originals [2] - 17:4,

45:4

otherwise [1] - 27:16

overall [2] - 12:14,

41:25

overlap [1] - 23:1

overlapping [2] -

22:21, 41:23

overview [1] - 12:8

overwhelmed [1] -

21:2

overwhelming [2] -

22:12, 25:18

P

page [24] - 5:14, 8:25,

10:13, 10:15, 12:3,

12:7, 12:10, 14:16,

14:18, 14:19, 15:11,

15:12, 15:15, 20:1,

26:15, 26:16, 34:2,

42:12, 42:20, 42:21

Page [1] - 12:9

pages [31] - 5:19,

10:14, 10:23, 12:16,

12:23, 12:24, 12:25,

14:17, 15:24, 15:25,

16:15, 16:16, 17:7,

19:15, 19:16, 19:19,

21:2, 21:22, 22:13,

23:25, 24:4, 24:8,

24:13, 24:22, 26:6,

33:3, 40:22, 40:25,

45:10, 45:12

paper [1] - 23:25

papers [3] - 20:15,

22:5, 33:19

part [3] - 6:25, 31:1,

41:20

parte [1] - 8:24

particularly [1] - 9:8

parties [8] - 3:22, 5:6,

15:3, 16:21, 20:23,

26:4, 26:15, 29:23

partners [2] - 37:20

parts [1] - 47:7

party [2] - 26:4, 45:5

patience [1] - 44:23

PC [1] - 2:3

pending [1] - 36:19

people [3] - 16:2,

29:19, 36:1

perceive [1] - 22:3

percent [1] - 41:2

performance [2] -

22:9, 47:11

perhaps [2] - 6:16,

28:7

period [1] - 6:18

periods [1] - 13:22

permitted [2] - 19:8,

25:21

person [2] - 24:16,

24:17

perspective [1] -

37:19

pertain [1] - 23:6

PETER [1] - 1:17

PGS [2] - 1:5, 1:10

photographs [1] -

16:24

phrase [1] - 17:2

piece [3] - 12:18,

18:25, 28:8

pieces [2] - 18:13,

18:22

place [1] - 14:18

plaintiff [1] - 3:3

plaintiff's [3] - 11:21,

14:8, 14:9

PLAINTIFFS [3] - 1:4,

1:8, 2:5

Plaintiffs [2] - 15:11,

26:13

plaintiffs [14] - 3:5,

3:7, 6:17, 6:19, 13:2,

13:9, 14:1, 19:9,

20:19, 23:16, 28:13,

32:7, 45:8, 47:18

planning [1] - 29:20

plus [1] - 31:10

point [8] - 4:23, 8:2,

14:1, 19:4, 28:4,

33:12, 35:15, 41:13

pointing [2] - 41:24,

41:25

points [3] - 17:14,

17:16, 41:18

United States District Court

Trenton, New Jersey

53

poor [1] - 30:6

portfolio [1] - 37:11

portion [1] - 26:23

portions [3] - 18:14,

19:11, 19:15

position [3] - 12:21,

34:3, 37:2

possible [1] - 38:20

post [2] - 18:5, 46:17

posted [5] - 10:3,

10:5, 29:3, 29:7,

30:8

posting [7] - 29:11,

29:16, 30:1, 30:23,

31:2, 31:13, 31:17

potential [1] - 6:12

practical [2] - 20:10,

38:13

practice [2] - 4:10,

35:16

precision [1] - 41:2

preference [1] - 35:6

premise [1] - 32:11

prepare [5] - 5:11,

18:16, 19:1, 26:9,

47:4

prepared [12] - 7:13,

17:18, 21:23, 23:18,

23:19, 23:22, 28:13,

28:14, 28:16, 28:17,

43:11

present [6] - 5:6, 28:6,

29:24, 30:15, 32:20,

38:16

presentations [1] -

12:4

presented [9] - 4:15,

5:6, 6:2, 10:1, 11:22,

12:13, 15:20, 24:18,

32:25

presenter[1] - 10:19

presenting [1] - 24:4

presents [1] - 30:14

president [1] - 44:11

presumptions [1] -

29:15

pretrial [2] - 21:7, 26:3

problem [9] - 15:2,

16:1, 18:20, 20:17,

20:22, 20:25, 21:15,

36:16, 42:8

problems [1] - 38:13

procedural [1] - 6:11

procedure [1] - 47:3

proceed [3] - 36:10,

39:24, 45:15

process [4] - 21:7,

29:25, 31:2, 31:17

profit [1] - 17:14

profitability [4] - 12:8,

Case 3:11-cv-04194-PGS-DEA Document 196 Filed 12/27/15 Page 53 of 55 PageID: 13833
17:13, 31:23, 41:25

progress [2] - 15:3,

19:21

projected [1] - 37:12

properly [1] - 26:9

proponent [2] - 16:22,

17:3

propose [1] - 20:22

prove [1] - 16:23

provide [2] - 26:3,

37:10

provider [1] - 10:2

pull [7] - 12:16, 12:24,

15:25, 16:15, 20:7,

23:14, 41:10

pulled [2] - 12:23,

14:12

purpose [1] - 26:3

purposes [1] - 16:2

put [14] - 5:17, 8:6,

8:7, 13:5, 13:7, 16:5,

16:10, 18:16, 18:20,

18:24, 19:22, 26:25,

37:8, 37:23

puts [1] - 12:21

putting [1] - 26:19

Q

qualifies [1] - 32:4

qualify [3] - 13:25,

17:19, 32:15

quarter [1] - 9:20

questioned [1] - 12:14

questioning [1] -

45:23

quick [2] - 43:8, 43:9

quite [1] - 13:25

R

R.M.R [1] - 1:24

raise [3] - 34:16, 36:9,

43:8

random [3] - 10:23,

12:16, 12:23

rate [1] - 44:24

read [10] - 5:15, 8:5,

30:2, 30:9, 35:17,

42:20, 42:21, 45:18,

46:25, 47:2

reading [1] - 4:22

realized [1] - 43:11

really [6] - 6:12, 8:1,

9:4, 16:12, 20:1,

32:6

reason [3] - 14:24,

37:17, 42:17

reasonable [3] - 17:5,

20:23, 45:5

reasonably [1] - 7:3

reasons [3] - 17:22,

17:24, 18:21

rebuttal [1] - 41:3

receive [1] - 26:5

received [2] - 29:14,

30:4

recently [1] - 21:15

recognize [1] - 6:10

record [14] - 11:15,

12:12, 12:15, 12:24,

13:1, 15:9, 18:4,

19:8, 21:18, 21:25,

32:4, 32:10, 43:5,

47:15

recordings [1] - 16:24

records [27] - 7:10,

7:14, 13:20, 13:21,

14:1, 14:4, 15:13,

16:6, 18:20, 20:2,

21:23, 24:14, 24:15,

25:12, 25:14, 25:16,

25:19, 31:7, 31:9,

32:13, 32:16, 43:5,

45:17, 45:19, 46:2

redact [3] - 16:14,

42:10, 42:13

redactions [2] - 16:15,

45:10

reduce [1] - 19:13

reduction [1] - 42:8

reductions [1] - 42:5

refer [2] - 11:1, 17:7

reference [2] - 12:5,

14:15

referenced [1] - 14:13

references [8] - 10:18,

10:19, 10:21, 12:4,

12:6, 12:9, 12:10,

14:21

referred [3] - 10:25,

12:7, 45:7

referring [1] - 45:19

regard [8] - 17:9,

22:17, 23:10, 23:17,

23:21, 27:19, 29:23,

40:10

regardless [2] - 5:23,

18:18

related [1] - 29:18

relates [4] - 16:14,

22:24, 31:22, 37:1

relevance [1] - 31:20

relevant [12] - 6:18,

21:12, 22:6, 23:9,

24:11, 24:12, 26:5,

26:9, 27:1, 30:24,

42:10, 42:22

relied [4] - 12:19,

31:11, 31:25, 46:3

rely [3] - 13:15, 42:21,

46:10

relying [6] - 15:5,

15:14, 46:9, 47:6,

47:10, 47:14

remainder [1] - 23:17

remaining [1] - 23:23

remove [1] - 19:19

reply [1] - 34:9

Report [1] - 14:11

REPORTER [1] - 1:25

reports [1] - 28:15

represent [1] - 23:10

represents [1] - 31:21

request [1] - 44:9

require [1] - 26:14

required [2] - 1:23,

18:12

requirement [1] - 13:8

requirements [1] -

3:25

requires [1] - 7:10

reserve [1] - 35:3

resolve [3] - 19:12,

23:24, 32:5

resolved [1] - 15:10

resolving [1] - 15:3

respect [2] - 13:4,

33:2

respectfully [2] -

21:13, 23:12

respects [1] - 19:2

responded [1] - 33:1

responding [2] - 33:7,

34:3

response [2] - 33:4

result [1] - 24:19

review [9] - 10:6, 21:3,

24:5, 29:5, 31:16,

42:24, 43:3, 45:9

reviewed [4] - 8:7,

12:13, 28:25, 30:25

reviewing [1] - 22:5

reviews [1] - 42:25

revolved [1] - 20:20

right-hand [1] - 10:18

Rob [1] - 3:6

Robert [1] - 3:16

ROBERT [2] - 2:4,

2:11

ROME [1] - 2:7

Rome [3] - 3:10,

32:23, 34:4

rule [5] - 25:11, 25:21,

30:18, 45:2, 45:3

Rule [1] - 16:22

rules [6] - 3:24, 3:25,

4:2, 4:6, 7:10, 46:20

ruling [2] - 22:1, 44:25

S

SANFORD [1] - 1:8

satisfy [1] - 21:24

saw [2] - 18:4, 42:8

scale [1] - 42:1

SCC [2] - 7:11, 7:12

schedule [2] - 37:22,

44:11

SEAN [1] - 2:10

Sean [2] - 3:13, 4:13

SEC [2] - 9:12, 9:14

second [9] - 10:10,

11:18, 22:25, 24:1,

26:21, 31:3, 31:14,

35:24, 41:13

secondly [3] - 4:3,

18:9, 20:22

Secondly [2] - 25:23,

43:14

secretary [1] - 24:14

Section [2] - 1:23,

7:10

section [1] - 7:1

see [17] - 4:16, 4:20,

9:13, 10:11, 14:16,

18:15, 19:12, 30:3,

30:12, 30:17, 40:1,

41:6, 45:12, 45:14,

45:15, 46:24

seem [5] - 4:9, 6:11,

14:22, 15:1, 16:7

self [1] - 47:10

self-evident [1] -

47:10

send [1] - 29:21

sense [5] - 10:22,

30:19, 33:19, 35:13,

37:2

sensibly [1] - 21:3

sent [1] - 30:4

separate [3] - 11:17,

13:11, 21:1

served [1] - 20:25

services [1] - 37:10

serving [1] - 21:5

set [4] - 11:19, 16:18,

36:6, 45:2

sets [1] - 43:15

seven [3] - 7:20,

36:20, 39:7

SHERIDAN [1] - 1:17

shorten [1] - 19:20

show [17] - 4:8, 6:3,

8:14, 8:17, 13:20,

18:21, 19:2, 20:4,

United States District Court

Trenton, New Jersey

54

24:13, 27:14, 36:1,

40:21, 40:22, 41:4,

41:6, 42:15, 45:25

showed [1] - 20:5

showing [3] - 19:25,

27:23, 47:14

side [4] - 5:19, 10:18,

28:10

side-by-side [1] -

28:10

significant [8] - 5:4,

7:16, 19:15, 27:12,

31:22, 40:19, 41:19,

42:16

simple [1] - 22:4

Simply [1] - 26:19

simply [6] - 23:10,

26:12, 26:16, 27:16,

28:22, 32:6

single [5] - 12:18,

15:10, 15:11, 19:9,

23:6

sit [1] - 26:15

site [1] - 29:4

sits [1] - 41:20

SIVOLELLA [1] - 1:3

Sivolella [1] - 3:1

six [3] - 7:22, 13:13,

46:21

size [2] - 4:1, 5:16

skinny [1] - 14:6

smart [2] - 27:7, 46:6

smoother [1] - 44:9

smoothly [1] - 44:2

solution [1] - 20:23

sometimes [1] - 9:6

soon [1] - 40:1

Sorry [1] - 43:18

sorry [4] - 25:23, 34:6,

44:1, 44:4

sort [2] - 12:15, 37:7

source [1] - 17:20

space [1] - 3:25

spaced [2] - 5:22, 34:2

spacing [2] - 5:10,

5:16

spans [1] - 6:19

speaking [1] - 34:17

specific [2] - 40:25,

46:13

specifically [1] - 10:9

spending [1] - 42:3

spent [1] - 35:11

spoken [1] - 43:21

squarely [1] - 4:17

squinting [1] - 5:14

stack [1] - 16:10

stage [1] - 43:15

stand [2] - 20:4, 41:15

Case 3:11-cv-04194-PGS-DEA Document 196 Filed 12/27/15 Page 54 of 55 PageID: 13834
standard [1] - 8:1

start [13] - 3:2, 10:14,

10:23, 19:21, 20:24,

35:22, 37:15, 37:17,

38:6, 38:10, 38:14,

44:16, 45:8

started [2] - 14:25,

44:19

starting [2] - 8:2,

38:16

starts [1] - 14:16

STATE [1] - 1:14

state [1] - 16:21

STATES [1] - 1:1

statute [1] - 7:5

statutes [1] - 7:1

step [2] - 31:3, 31:14

still [4] - 3:23, 3:24,

5:14, 43:5

stipulate [1] - 19:17

straightforward [1] -

22:4

STREET [1] - 1:14

stuff [6] - 8:25, 18:14,

40:23, 41:14, 41:21

sub [2] - 18:11, 28:16

sub-advisor[1] -

18:11

sub-advisors [1] -

28:16

subject [3] - 7:11,

9:13, 46:5

subjectivity [1] -

13:10

submit [3] - 23:12,

33:19, 34:1

submitted [2] - 20:15,

34:4

subset [1] - 26:1

substance [1] - 42:19

substantially [1] -

6:13

substantive [5] -

18:25, 22:2, 22:9,

31:20, 34:3

suggest [1] - 39:24

summaries [1] - 46:10

summarize [2] -

18:22, 42:22

summarizes [1] - 43:1

summary [18] - 6:16,

7:22, 16:22, 17:5,

17:6, 17:19, 18:8,

21:10, 26:14, 37:5,

40:24, 45:2, 45:3,

46:8, 46:14, 47:2,

47:8

Supreme [1] - 7:25

suspect [1] - 20:3

system [1] - 10:2

SZAFERMAN [1] - 2:3

Szaferman [1] - 3:5

T

tab [18] - 10:10, 10:19,

10:22, 11:18, 11:25,

12:6, 12:8, 12:9,

12:10, 12:11, 12:14,

14:5, 14:12, 14:14,

16:3

table [1] - 9:14

tabs [3] - 11:2, 11:17,

20:6

tall [1] - 16:7

technical [2] - 36:1,

36:4

tee [1] - 6:1

tempted [1] - 40:13

tend [1] - 8:9

terms [2] - 40:16,

41:17

testified [2] - 29:5,

42:24

testify [1] - 31:16

testimony [9] - 13:14,

15:2, 17:8, 29:9,

30:8, 34:21, 38:14,

42:21, 43:2

themselves [1] - 3:11

There'd [1] - 9:24

there'd [1] - 13:10

They've [2] - 8:20,

47:12

they've [1] - 20:7

thinking [4] - 27:2,

33:20, 33:21, 44:14

thinks [1] - 26:4

third [3] - 11:20, 23:2,

31:19

Third [2] - 26:10, 36:7

thousand [4] - 20:3,

20:8, 20:9, 40:22

thousands [1] - 19:15

three [13] - 9:24, 9:25,

10:1, 11:16, 22:6,

22:8, 22:23, 29:4,

39:9, 39:13, 39:18,

39:21

timeframe [2] - 17:5,

40:5

Title [1] - 1:23

today [7] - 4:4, 6:4,

6:8, 11:8, 36:1,

39:12, 47:20

together[2] - 8:9,

18:16

top [2] - 10:11, 14:10

total [1] - 21:1

Totally [1] - 7:8

totally [1] - 20:9

transparency [2] -

26:4, 40:17

transparent [1] - 21:8

treat [1] - 19:8

tremendous [1] -

16:17

TRENTON [1] - 1:15

trial [40] - 4:7, 5:4,

6:10, 6:13, 7:18,

7:20, 9:5, 10:8, 11:1,

13:5, 15:21, 16:2,

16:8, 18:5, 24:4,

26:11, 32:18, 32:20,

34:22, 35:12, 35:18,

35:19, 35:22, 36:12,

36:17, 36:23, 38:6,

41:11, 43:17, 43:19,

44:2, 44:8, 44:15,

44:19, 45:11, 46:17,

46:18

trials [4] - 27:13,

30:16, 37:13, 38:23

tried [1] - 7:20

trier [1] - 28:3

trouble [1] - 8:25

true [1] - 1:23

trust [2] - 41:20

Trust [2] - 10:12,

14:10

trustee [1] - 42:23

Trustees [5] - 11:19,

12:2, 12:7, 13:15,

13:22

trustees [4] - 6:22,

7:24, 42:23, 43:3

truth [4] - 18:18, 22:9,

33:25, 35:13

try [7] - 4:19, 6:8,

13:25, 23:23, 28:4,

34:15, 40:20

trying [11] - 6:9, 7:15,

8:5, 13:4, 14:24,

16:5, 37:4, 37:20,

37:21, 39:22, 40:18

turn [5] - 12:3, 14:5,

22:3, 22:11, 22:22

TWEED [1] - 2:10

Tweed [4] - 3:13, 3:16,

3:19, 4:14

two [8] - 12:9, 17:24,

22:7, 29:17, 37:20,

40:14, 43:3, 43:8

Two [2] - 12:10, 42:23

type [2] - 4:1, 18:3

typical [1] - 28:8

U

U.S [2] - 1:17, 1:25

U.S.C [1] - 1:23

unbundle [4] - 12:22,

13:9, 16:11, 20:2

unbundling [2] -

10:23, 13:14

uncertain [1] - 8:4

unclear [1] - 12:23

uncomfortable [1] -

37:2

under [3] - 7:20,

17:19, 46:8

undertake [1] - 25:9

undertaken [1] - 17:12

Unfortunately [1] -

20:17

UNITED [1] - 1:1

universe [1] - 31:25

unless [1] - 31:14

up [18] - 5:11, 5:13,

6:1, 10:9, 18:1,

19:25, 20:4, 28:2,

28:22, 32:19, 32:21,

33:12, 35:19, 36:4,

36:6, 37:19, 41:15,

43:25

uses [2] - 21:19, 21:20

utterly [2] - 21:5,

22:14

V

variance [1] - 29:20

variety [2] - 22:9,

28:15

various [3] - 11:1,

23:19, 37:11

versus [1] - 3:1

view [6] - 4:10, 20:19,

22:6, 28:12, 28:13,

28:16

virtually [1] - 18:11

volume [2] - 19:13,

40:19

volumes [2] - 45:22,

47:1

voluminous [3] - 13:6,

16:23, 17:11

vote [1] - 9:9

Vs [2] - 1:5, 1:9

W

wait [2] - 15:1, 16:8

wake [2] - 5:11, 5:13

ways [3] - 4:7, 19:20,

United States District Court

Trenton, New Jersey

55

37:5

Wednesday [1] - 46:9

week [10] - 24:21,

34:14, 34:15, 37:16,

38:17, 38:18, 38:23,

39:10, 40:18

weeks [2] - 29:4, 41:8

weigh [2] - 28:3, 30:16

weighing [1] - 46:11

weird [1] - 12:21

well's [1] - 12:22

whatnot [1] - 46:24

whole [3] - 21:7, 26:2,

39:14

willing [1] - 15:25

wish [2] - 4:1, 40:12

wishes [2] - 4:11,

38:11

witness [13] - 7:15,

13:5, 13:7, 13:12,

15:21, 15:23, 22:18,

35:7, 37:8, 39:23,

41:9, 43:14, 43:16

witnesses [11] -

10:25, 13:20, 26:9,

37:10, 37:23, 37:24,

40:21, 41:5, 41:6,

43:23, 43:24

write [1] - 5:18

writings [1] - 16:24

Y

year [4] - 6:22, 6:25,

8:12, 21:16

years [5] - 6:19, 6:20,

8:11, 17:14, 29:13

yellow [1] - 20:6

Z

zealously [1] - 26:24

Case 3:11-cv-04194-PGS-DEA Document 196 Filed 12/27/15 Page 55 of 55 PageID: 13835