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United States District Court

Trenton, New Jersey

1952

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

______________________________

JANUARY 29, 2016

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

TRIAL - DAY 12

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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United States District Court

Trenton, New Jersey

1953

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

SZAFERMAN, LAKIND, BLUMSTEIN & BLADER, PC

BY: ARNOLD C. LAKIND, ESQUIRE

DANIEL S. SWEETSER, ESQUIRE

ROBERT L. LAKIND, ESQUIRE

CHRISTOPHER S. KWELTY, ESQUIRE

CHRISTOPHER S. MYLES, ESQUIRE

FOR THE PLAINTIFFS

BLANK ROME, LLP

BY: JONATHAN M. KORN, 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

ALSO PRESENT: PATRICIA LOUIE, ESQUIRE

MANAGING DIRECTOR & ASSOCIATE GENERAL COUNSEL

AXA EQUITABLE LIFE INSURANCE CO.

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United States District Court

Trenton, New Jersey

1954

I N D E X

STEVE POMERANTZ 1955

DIRECT EXAMINATION OF STEVE POMERANTZ, Ph.D.,

CONTINUED BY MR. SWEETSER

1956

CROSS-EXAMINATION OF STEVE POMERANTZ PH.D. BY MR.

MURPHY

1985

REDIRECT EXAMINATION OF STEVE POMERANTZ, PH.D.,

BY MR. SWEETSER

2048

E X H I B I T S

plaintiff's Exhibit 151-J was marked into

evidence

1981

Plaintiff's Exhibit 151-K was marked into

evidence

1984

Defendant's Exhibits 1886 and 1886.1 were marked

into evidence

2011

Plaintiff's Exhibit 151-I was marked into

evidence

2060

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United States District Court

Trenton, New Jersey

1955

THE COURT: Good afternoon. Please be seated.

All right. So, I might as well go through the

schedule for the remainder of the trial. So, next week we'll

meet on Tuesday at 12:00, plus the 4th and the 5th; and I

believe the Friday the 5th will be the plaintiff's last day.

Then the defendants will have the 8th, 9th, 10th, 11th, 18th

and 19th, 22nd and 23rd; eight days. Mr. Benedict wanted to

add four more days on there, but I don't think so.

MR. MURPHY: I'll put his head in a vice this

afternoon.

THE COURT: Exactly. So, that was what was

originally contemplated, so I don't see why we should -- and

it's the best I can do getting you all in in one timeframe as

we could. Any objections to that?

MR. KORN: I just want to confirm, Tuesday the 2nd,

your Honor, are we starting 10:30 or noon?

THE COURT: 12:00. And then the 4th and the 5th.

All right?

Mr. Sweetser?

MR. SWEETSER: Your Honor, plaintiffs call Dr.

Pomerantz back to the stand.

(STEVE POMERANTZ, Ph.D., previously sworn, resumes

witness stand.)

THE COURT: Good morning, Mr. Pomerantz. You're

still under oath.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1956

THE WITNESS: Yes.

(DIRECT EXAMINATION OF STEVE POMERANTZ, Ph.D., CONTINUED BY

MR. SWEETSER:)

Q. Dr. Pomerantz, is one of the opinions that you provided

in this case taking an allocation of fallout benefits

calculated by Mr. Barrett and allocating them to the

individual funds?

A. Yes.

Q. I'm going to show you what's been marked as P-151-L and

ask you if you recognize that document.

A. Yes.

Q. Would you please tell the Court what P-151-L is.

A. This is a chart I prepared that allocates the defined

fallout benefit to the respective subject funds.

MR. MURPHY: Just objection, your Honor; you know,

as we discussed yesterday, Mr. Pomerantz as I understand the

ruling is --

THE COURT: I found he wasn't qualified to testify

on fallout benefits.

MR. SWEETSER: Your Honor, this is the allocation

which counsel expressly said he didn't have a problem with him

doing allocating to the individual funds. It's nothing other

than taking a number of a document which is already in

evidence, which I'm going to be informing the Court about in a

moment, and allocating to the funds. It's a simple

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1957

mathematical calculation.

THE COURT: Denied.

MR. SWEETSER: Denied, we can't put this evidence

in?

THE COURT: Yes. I didn't find him qualified to

talk about fallout benefits. I haven't heard -- I said that

you could renew the application, but I haven't heard since

that time any qualifications that would allow Mr. Pomerantz to

discuss fallout benefits. So, when you say putting numbers on

a page, someone has to calculate what that number is, and if

he's thinking that some number represents fallout benefits he

doesn't have to qualifications to do that.

MR. SWEETSER: And he's not thinking that, your

Honor.

THE COURT: So it's denied.

MR. SWEETSER: Okay.

BY MR. SWEETSER:

Q. I'm going to show you what's been marked into evidence as

P-197-A and ask if you recognize this document.

A. Yes.

Q. Can you please tell the Court what P-197-A is.

A. This is an exhibit prepared by Mr. Barrett that

identifies the fallout benefits for years 2000 to 2012.

Q. And did you do any calculation with respect to the

information on P-197-A as it relates to the plaintiffs' funds?

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1958

MR. MURPHY: Objection, your Honor. My

understanding is he's just end-running your denial. He's

showing him the starting point of the analysis he just tried

to do and trying to get in the calculation of fallout

benefits.

MR. SWEETSER: Our Honor, the calculation of fallout

benefits is already in evidence. All he did for the Court's

assistance was to take the big number calculated by Mr.

Barrett, and just do the mathematical calculation to the

funds. That's all he's done, that's all this exhibit is.

THE COURT: Go ahead, Mr. Murphy.

MR. MURPHY: So, your Honor, if he's --

THE COURT: Someone has to help me refresh my

recollection; I don't remember Mr. Barrett talking about

fallout benefits.

MR. MURPHY: I believe he did, I think he did offer

a chart into evidence that calculated fallout benefits.

Again, he didn't say they were fallout benefits, he said he's

not offering an opinion they are fallout benefits. What he

did is use the methodology that kind of replicated -- he

believes replicated the analysis that was done in 2005 or 2006

and just used that math to come up with a new number for later

years. He wasn't testifying it was a fallout benefit, he just

did some math.

THE COURT: Oh, I remember that now. So he couldn't

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1959

state whether they were fallout benefits or not, but he

thought it was something that might be something like a

fallout benefit.

MR. MURPHY: That's -- well, I don't think he even

said that last part, your Honor. I asked him pretty clearly,

are you an expert on fallout benefit, no; are you offering an

opinion these are fallout benefits, no, was the trial

testimony. And now Mr. Pomerantz wants to take that and say

well, that's the fallout benefit, I'm then going to take that

fallout benefit and say how much of that fallout benefit is a

attributable to each fund. So it's just building on hearsay

and it's precluded under this Court's prior ruling on his

expertise.

MR. SWEETSER: Your Honor, Dr. Pomerantz is doing no

such thing. All he's doing is taking the information, which

is a summary of the number which is in evidence as 197-A, and

taking --

THE COURT: A summary of a number; what is the

number?

MR. SWEETSER: The number -- what's the specific

number?

THE COURT: What does it represent, the number

represent?

MR. SWEETSER: It represents Mr. Barrett's testimony

on the general account and product wrapper calculations that

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1960

he tried to assimilate to what the defendant was doing when it

actually was reporting that number to the Board. What he did

was project it out, because as your Honor will recall they

stopped doing that in 2006; he projected it out to today's

numbers and comes up with essentially 800,000 for one year, a

million for each -- I'm sorry; a billion for each of the two

subsequent years.

And all Dr. Pomerantz did and all this exhibit does

is take that number and break it down in a way that he'll

explain to the Court to the specific plaintiffs' funds,

because that's information presumably if the Court finds if

these are fallout benefits the Court would want to know how

that number could be allocated to each of the funds.

It's nothing other than a mathematical calculation,

taking an exhibit that's in evidence from Mr. Barrett and

translating it into the breakdown to each of the 12 funds at

issue in this case.

MR. MURPHY: Your Honor, I'm sympathetic to Mr.

Sweetser's position. I think I understand what he wants to do

is just do some math, and perhaps I can talk to him for a

minute and work out some sort of compromise to get the math

that he needs in evidence.

But what he's offering into evidence at 151-L is a

fallout benefit analysis for each of the funds, it then labels

the fallout benefit and has a number attached to it. I mean

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1961

it goes far beyond what he's permitted to testify to.

If he wants to say I took a billion dollars which

Mr. Barrett calculated is the product wrapper and general

account and did some math and here are the numbers, I think I

would allow that.

MR. SWEETSER: That's all he seeks to do. If

counsel's concern is the labeling on this document of a

fallout benefit, I certainly have no objection if counsel has

a substitute word that he would like to use there to putting

that in there to avoid this conflict.

MR. MURPHY: So is what --

THE COURT: I don't see why it's relevant. So far

we haven't had any testimony or substantial testimony about

what a fallout benefit is, and I've ruled that Mr. Pomerantz

can't testify as to fallout benefits because he really doesn't

possess any expertise in that field; and now you want me to

accept numbers that might be, which I would say is

speculative, representing fallout benefits. I don't

understand why that's even relevant at this timeframe.

MR. SWEETSER: Let me address your Honor's concern.

So fallout benefits are one of the Gartenberg factors. As

your Honor may recall, I questioned Mr. Joenk extensively on

this issue, among other things, inquiring as to why for

several years FMG reported to the Board the product wrapper

fees and the general account spread; not only reported that as

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1962

a fallout benefit, but specifically attached the dollar value

for each. And then they stopped doing that, which plaintiffs

have obviously a serious concern about. They classified it as

a fallout benefit for a substantial period of time and they

stopped doing it and stop reporting it to the Board.

So that's the significance of the two items that are

in Mr. Barrett's calculation of -- that's set forth in 197-A.

And again, with respect to what Dr. Pomerantz did, the Court

is -- it's obviously plaintiffs' position is that the Court is

required -- the law requires each fund to be reviewed

individually. And all we did to assist the Court in the event

that the Court finds, which we believe we've established

yesterday as a matter of law, that these two items, the

product wrapper fees and the general account are fallout

benefits; all this document does, all that Dr. Pomerantz did

was take Mr. Barrett's calculation, and again, allocate to

each of the funds so your Honor can know how this allocation

translates to each of the funds at issue.

MR. MURPHY: Again, your Honor, so I believe he said

he asked Mr. Joenk about fallout benefits, and my recollection

was that you, your Honor, asked Mr. Joenk a question, you

turned to him and said, are these fallout benefits; and he

said absolutely not, and explained why the general account

definitely wasn't and then explained product wrapper. So the

only testimony to date is that they're not fallout benefits.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1963

Again, this witness has been precluded from

testifying about it, and if it goes in, as with many of Mr.

Pomerantz's calculations, there's a lot of numbers on here

that I have to unpack; and I have eight days. I have a lot of

problems with some of these numbers, he just rounds up Mr.

Barrett's numbers with a precise number and says, oh why don't

we just call at a billion, just call it a billion, don't worry

about the exact number.

So it's just going to consume trial testimony that I

think is totally unnecessary and there's no foundation for at

this point.

MR. SWEETSER: Your Honor, first of all, he rounded

down, so he benefited the defendant in what he did; he rounded

down, he doesn't round up. And on the chance that the Court

might reject Mr. Joenk's testimony about his self-serving

opinion that these are not fallout benefits that they have

continuously reported as fallout benefits, and even after they

stopped reporting the dollar number from the Court, the Court

may recall there's voluminous evidence that shows that they

mentioned that it is a fallout benefit, then they changed the

wording to it's possibly a fallout benefit; it's up to your

Honor to decide from the evidence whether or not it's a

fallout benefit.

But again, in the event that your Honor does decide

that the product wrapper and/or general account fees are

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1964

fallout benefits, this is a document again which I would think

would be helpful to the Court because it takes Mr. Barrett's

calculation of those two numbers which they stopped reporting

in 2005/2006, he does the exact same calculation, he testified

about how he did that; this document's in evidence, and all it

does again is just translate that number to each of the funds

so when your Honor's reviewing each of the funds on an

individual basis you will have this information available to

him.

THE COURT: The original request was that I -- what

was your request that I do? Allow Dr. Pomerantz to discuss

fallout fees?

MR. SWEETSER: Not at all. Just to explain what he

did in P-151-L, just to explain to the Court essentially what

I just explained to the Court; that he took Mr. Barrett's

number, rounded them down, and just attributed the number to

each of the funds based upon allocation that he will discuss

with the Court if your Honor permits the testimony.

MR. MURPHY: I can tell your Honor's tiring of this

issue, and if -- perhaps a compromise just to facilitate --

THE COURT: Oh no. I'm denying the application. It

seems to me that -- I don't know if this came up in the

testimony, but when Mr. Barrett was testifying about this, in

my mind I was thinking that well, he's not saying it's a

fallout benefit, but I thought -- and I can't remember from

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1965

where, but I do believe that from the discussions amongst

counsel and what was presented to the Court, that there was

going to be testimony at some time in the future about fallout

benefits that would match up or be a proffer of evidence --

we'd allow the evidence in by Mr. Barrett because it would all

be connected later in time with more information about fallout

benefits.

But I denied Dr. Pomerantz to testify on that,

because I didn't feel he had an expertise, and now we're just

trying to augment really iffy material from Mr. Barrett based

on what I thought was a proffer that there would be future

fallout benefit testimony, and there's none. So, I don't see

why I'm getting into this. So I'm denying the application.

MR. SWEETSER: And your Honor, I understand that.

On that point, however, I would just point out as far as

future testimony about this, it would seem that your Honor's

ruling precluding Dr. Pomerantz from discussing this yesterday

would preclude any witness from discussing this yesterday. My

understanding of the Court's ruling yesterday is that --

THE COURT: The evidence yesterday dealt with Dr.

Pomerantz. There's been no proffer by anyone from your team

that there will be other evidence to support fallout benefits.

So, if there's no testimony that's going to be forthcoming,

then what am I hooking up in the future; there's nothing

there. There's no way the connect it all up.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1966

MR. SWEETSER: And again, your Honor, I know it's

been, you know, an enormous record that's before the Court and

the Court may not recall, but there is a multitude of board

materials every single year, fallout benefits are reported to

the Board.

THE COURT: I know that.

MR. SWEETSER: Okay. And your Honor will recall

that for several years these fallout benefits that are

calculated -- that were calculated by Mr. Barrett were

reported by a number and then the defendants stopped reporting

them.

THE COURT: I recall that.

MR. SWEETSER: Then, your Honor, also on the record

are documents where FMG is reporting these benefits, first of

all, as a fallout benefit, and then after that as a possible

fallout benefit. So there is --

THE COURT: The testimony was, Mr. Sweetser, what I

recall from Mr. Joenk was, I don't know whoever made them

fallout benefits, they don't represent fallout benefits to me,

and the burden of proof in this case is upon the plaintiffs,

and you haven't shown any evidence. So I don't understand why

I'd let it in this at this time.

MR. MURPHY: Your Honor, just one addition to that.

Mr. Joenk said I have a strong suspicion as to why they were

removed, and Mr. Sweetser didn't purposely ask the question.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1967

And again, he's got the burden of proof to lay a foundation,

he could have asked the question, I think Mr. Joenk said twice

I have a strong suspicion why they were removed and he didn't

ask the question.

MR. SWEETSER: Your Honor, on that point I don't

really particularly care why Mr. Joenk removed them, because

the fact is -- and your Honor, I'm talking about beyond the

testimony. I mean certainly Mr. Joenk isn't going to stand up

and say these are absolutely fallout benefits and I didn't

report a billion dollars of fallout benefits every year

intentionally.

But again, all I'm going to do is remind the Court

that putting aside his testimony, you know, the plaintiffs in

this case have a difficult burden of having to put in their

case through defense witnesses which is difficult. All that

being said, the documents tell the story; the documents reveal

these fallout benefits; the documents acknowledge FMG's

position that at one point in time they are fallout benefits,

and now they're possibly fallout benefits.

And again, the ultimate resolution of whether or not

they're fallout benefits or not based upon what they are will

be up to your Honor. That's why we believe this will be

helpful to the Court.

THE COURT: Believe what?

MR. SWEETSER: We believe that the allocation --

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1968

first of all, the calculation done by Mr. Barrett of the two

biggest fallout benefits here, first, which is already in

evidence; and Dr. Pomerantz's simple mathematic calculation

allocating those to the individual funds at issue for the

Court to analyze, if the Court determines that these are

fallout benefits, will be of assistance to the Court. That's

all this document is.

THE COURT: All right. So my ruling is as follows,

in my view the plaintiff has the burden of proof to show what

a fallout benefit is. And to date, the plaintiffs have not

shown what a fallout benefit is in this case. The plaintiffs

also are not proffering that other people or witnesses will

demonstrate what a fallout benefit is.

As such, I don't see how putting in a mathematical

sheet showing what the possible fallout benefits would be per

each fund makes any sense at all. So, I'm denying the

application. Go on to the next area.

MR. SWEETSER: Thank you.

BY MR. SWEETSER:

Q. I'd like to show you what's been marked as 151-J. Dr.

Pomerantz, were you requested to provide any damages analysis

in this case?

A. Yes.

Q. Can you please tell the Court what P-151-J is?

A. P-151-J is a damage calculation that I performed for the

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1969

subject funds, for the three years identified, 2010 through

2012.

Q. And this document says it's based on a 39 percent profit

margin.

A. Yes.

Q. Correct? Why did you use a 39 percent profit margin?

A. There are two surveys, one conducted by Lipper and one

conducted by Strategic Insight, that aggregate the information

available from public mutual fund companies, and report in

their survey a pre-tax margin, across not just each individual

complex, but also for the group as a whole. And they offer 39

percent as the average profit margin of that group.

Q. I'm going to show you what's been marked into evidence as

P-164.

Do you have P-164?

A. Yes.

Q. Is this the -- first of all, what is Strategic Insights?

A. Strategic Insight is like I said a third-party

organization that collects information from mutual fund

companies, maintains databases of aggregate information, both

pertaining to investments as well as the businesses, and

serves as a -- I guess just a clearing house for a variety of

mutual fund business information.

Q. Do you know if FMG provides Strategic Insight information

to the Board?

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1970

A. Yes, everybody does.

Q. I'm going to direct your attention to page 441 of P-164,

Bates ending 9079. Do you have that document?

A. Yes.

Q. Are on that page? Okay. If you look down the left-hand

column about two-thirds of the way down the page, is that the

information -- or at least I think you said you relied on

Lipper as well as Strategic Insight; is that correct?

A. Lipper also has a survey that's pretty much the same as

Strategic Insight.

Q. Okay. And down at the bottom where it says in 2012; do

you see that?

A. Yes.

Q. And it's bolded?

A. Yes.

Q. It says in 2012 the average pre-tax operating margin for

the public companies was 39 percent, slightly lower than the

40 percent posted the year prior; is that correct?

A. Yes.

Q. Okay. Now, when it says public companies, to what

companies does this survey apply?

A. I mean the survey applies to the industry, the

information is only publicly available for public companies.

Q. Okay. When you say the industry, what industry are you

referring to?

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1971

A. The mutual fund industry.

Q. Okay. So, you've told us the basis for why you use the

39 percent profit margin. Now, can you explain to the Court

-- let's start with the top chart or the top table that you

have on P-151-J. Can you tell the Court what it is to -- what

it is you did to calculate the numbers that are set forth in

this chart.

MR. MURPHY: Just, your Honor, as I understand this

document --

THE COURT: So you're looking at 164?

MR. MURPHY: Sorry; I think he switched back to

151-J just now.

Am I correct, Mr. Sweetser?

MR. SWEETSER: Yes, 151-J.

MR. MURPHY: So 151-J purports to be a damage

calculation based on a 39 percent profit margin that I believe

Mr. Pomerantz calculated. So he's calculating a profit

manager. My client's been unable to replicate that number by

using his results to determine how he got to a 39 percent

profit margin. It's very clear he's including major

categories of expenses like sub-advisory fees and variable

expenses, but excluding -- sorry, variable expenses and

sub-advisory fees, but there's all kinds of adjustments,

accounting adjustments like offsets to revenues and fee

waivers, and we cannot figure out how he got these numbers.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1972

Essentially what he's doing is I've calculated what

it means to have a 39 -- a hypothetical 39 percent profit

margin. That would be squarely within Mr. Barrett's realm of

expertise, but as I objected to yesterday, Mr. Pomerantz has

no accounting expertise, he has no accounting degrees; he's

never written any accounting articles that have been peer

reviewed, and has no basis to go through a financial statement

and contact a profit margin as an accountant would. They

could have had Mr. Barrett do that and they chose not to do

that.

THE COURT: Mr. Sweetser?

MR. SWEETSER: Your Honor, I'm not exactly sure like

there was a question that he's objecting to, he's objecting to

even this document being discussed at all. Counsel had a full

opportunity -- this was in Dr. Pomerantz's report. Counsel

deposed Dr. Pomerantz for several hours on whatever subject

matter he wanted to depose him on. Dr. Pomerantz has a Ph.D.

in mathematics from Berkley, he can certainly calculate a

profit margin, and he was about to explain before I was

interrupted how it is he did his calculation.

To the extent that the defendant can't figure it out

or has issues with the way that he calculated the profit

margin, they're certainly welcome to address that on

cross-examination. But it's certainly something within his

realm of expertise to look at numbers and calculate a profit

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1973

margin based on those numbers.

MR. MURPHY: Your Honor, I did read his report, I

did depose him and then I immediately moved to strike because

he didn't have expertise as an accountant. I'm not sure what

else I can do. As I understand the discussions we had

yesterday and the testimony Mr. Pomerantz gave about his lack

of accounting experience, he's calculating a profit -- that's

what accountants do, that's the core of what they do; right?

So I don't understand why Mr. Barrett couldn't have

done it, and I don't see what expertise Mr. Pomerantz has to

calculate a profit margin that again is going to consume trial

time because we can't even create how he got there.

THE COURT: I just gave everybody enough time for

time on trial, so this idea that your objections are based on

the amount of time we have, doesn't ring with me at the

present time.

But generally, with regard to P-151-J, my

recollection from yesterday was that I allowed Mr. Pomerantz

to testify based on his experience in the industry, with both

sub-advisors and companies like FMG, which are advisors, and

he seemed to have substantial experience in that regard. And

he is a mathematician, so -- and it's really not math that

he's doing here, it's what is the appropriate formula that you

would use to determine what the margins are and the profit is,

which seems more like an accountant type of calculation.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1974

But here, based on Mr. Pomerantz's experience in the

industry with regard to sub-advisors and advisors and

companies like FMG, I think he's qualified to make this type

of an opinion as to the damages. So, I'll allow it.

MR. SWEETSER: Thank you, your Honor.

BY MR. SWEETSER:

Q. Dr. Pomerantz, again, getting to the top table on the

first page of P-151-J, will you please walk the Court through

the process that you used in order to calculate these figures.

A. The data used to create these numbers is based upon

what's offered in the profitability reports.

Q. So just to be clear on that so the Court's clear, we were

discussing yesterday it's 52-B, the landscapes?

A. Yes.

MR. SWEETSER: Does your Honor need a copy of that

or do you recall 52-B?

Tc: No, you can just go through this.

MR. SWEETSER: Okay.

BY MR. SWEETSER:

Q. So it's based on the landscapes that FMG itself prepares?

A. Yes. And the relationship between revenue and margin is

a very simple formula.

Q. Can you tell the Court what that formula is?

A. And that formula is that the margin is equal to the

revenue minus the cost, as a quantity, divided by the revenue.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1975

So, just as an example, if the revenue is 10 and the cost is

3, then 10 minus 3 is 7, divided by 10 is 70 percent.

Q. So that's the basic formula that you used to calculate

the numbers that are set forth in 151-J?

A. Yes.

Q. So again, understanding that's the formula, can you

continue please to walk the Court through what you did.

A. So that's a formula that relates revenue to margin. The

formula that -- the application of that to this problem is to

utilize 39 percent as the target margin, and to calculate what

should the revenue be, in order for that formula to produce a

39 percent value as the margin.

I don't need to look at what the actual revenue is,

even though that's on the report, I get to that at the second

step; but the first step is to calculate what revenue would

produce a value of 39 percent based on the cost assigned to

the product. And for the cost I exclude the sub-advisory

expense, and I similarly subtract that number from the

revenue.

So I'm just looking at FMG's business, I'm not

looking at the sub-advisor, I take that number out of revenue

and I take that number out of cost.

Q. And explain to the Court why you did that.

A. Because that's not FMG's business, FMG's business is as

we discussed the oversight of those sub-advisors and the

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1976

creation of the product, and they do have costs that are

associated with the 50 employees who are performing a variety

of functions, and that's the cost for FMG to run their

business. I'm not looking at the revenue of the sub-advisor,

I'm not looking at the cost of the sub-advisor, including

those numbers actually just serves to artificially lower the

margin that is being earned on FMG's revenue and FMG's

service.

Q. Okay. What I'd like to do --

MR. SWEETSER: Chris, can I ask you to show the

witness 52-B?

Q. Just so we're crystal clear on what you did and what

costs you used.

So, Dr. Pomerantz, if you would, let's find the Core

Bond Index Fund and let's walk the Court through the numbers

that you used to calculate your 39 percent profit margin and

the damages attributable to that; okay? I've got that on

Bates ending 4211, and it's about three-quarters the way

across the page.

THE COURT: What page are you on?

MR. SWEETSER: Bates ending 4211, your Honor. The

Core Bond Index, two-thirds across the page.

Q. Dr. Pomerantz, do you have that?

A. Yes.

Q. Okay. So again, can you please explain to the Court the

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1977

numbers that you used to do your calculation on P-151-J.

A. So, the revenue that I'm concerned with is the 22.1

million, but I subtract from that the 1.06 million, and that

is FMG's revenue, for its service.

Q. All right. So when you say the revenue that you're

concerned with, the revenue -- the investment management fee

that's discussed in this top chart is under the bolded

revenues; right? And it's the first item, management fees;

right?

A. Yes.

Q. Then you go all the way across and you get to the 21 --

$22.1 million that you were just speaking about.

A. Yes.

Q. Okay. Then can you please tell the Court what expense

you subtracted from that before you -- in order to do your

profit margin calculation?

A. Well, okay, as I said the sub-advisory fee is the 1.06

million.

Q. So now we're going a little bit further down the page

under variable expenses, and that's bolded?

A. Yes.

Q. And then it says the first item there is sub-advisor

fees, and then you just go all the way across under that same

column with the 22.1 million in investment management fees and

there's 1.06 million in the sub-advisory fee; is that correct?

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1978

A. Yes.

Q. Okay. So you excluded that; and then what did you do?

A. So what I -- what I need to know is what are their costs

of running the fund, and their cost is what we've called the

total direct expense.

Q. Okay. And that's about halfway down the page?

A. Which is about halfway down the page for Core Bond Index,

that's approximately $864,000.

Q. And then what did you do?

A. And I calculate their margin by taking the revenue, which

is approximately 21 million, subtracting the direct expense,

and then dividing by the revenue, and if you do that you will

not get 39 percent; you'll get what their actual profit margin

is. But what I want to know is what revenue value will

actually produce 39 percent in that formula.

Q. Okay.

A. And then I saw for what that revenue is, just following

the formula. And then from the -- and then once I have that

number I subtract it from what their actual 21 million of

revenue is, to produce the damage number that is on 151-J.

Q. And the numbers listed here are, pursuant to that

formula, the amount of money that would be paid back to the

funds if the Court applied a 39 percent margin applying your

methodology; is that correct?

A. Yes.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1979

Q. Now, let me ask you something about the direct expenses

that you were just mentioning. I see under that there's

administration and compliance discussed, did you use -- did

you subtract the entire total direct expense or just the

management aspect of the direct expenses?

A. To -- for the -- to calculate the management -- to do

this calculation for the advisory fee I'm just looking at the

management fee revenue and the sub-advisory fee revenue.

Q. Now, did you employ the same methodology for all three

years at issue in this chart?

A. Yes.

Q. And would that same methodology apply to the years since

2012 when you did this calculation?

A. I mean that's the methodology that I would use for any

year.

Q. And then at the bottom it says, subject funds, bolded,

and then there are numbers listed there; can you please tell

the Court what those bolded numbers are at the bottom of the

chart?

A. The bolded numbers are the totals for each of the

respective years.

Q. So, this is what would be paid back to the funds in the

event that the Court applied a 39 percent profit margin; is

that correct?

A. Yes.

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1980

Q. Can you please tell the Court what the bottom chart on

this page is?

A. The bottom chart does the same calculation, but for the

administrative fee, but similarly eliminates the -- the

sub-administrator payment.

Q. So, the sub-administrator being JP Morgan, you eliminated

its --

A. Yes.

Q. The payment to JP Morgan?

A. Yes. I would eliminate that as a revenue item and as a

cost.

Q. And why would you do that?

A. For the same reasons that -- those numbers belong to JP

Morgan, it's what -- it's their business, doesn't have to do

with FMG's business, and it artificially lowers the margin if

you do include them.

Q. What expenses did you include in calculating the

administration profit margin at 39 percent?

A. Well, there you're looking at third-party administrative

charges, there's a line item for fixed and variable, as

basically being payments made to the sub-advisor.

Q. If we flip the page of P-151-J, can you please tell the

Court what that chart is?

A. This chart just combines -- just combines the two.

Q. The two prior charts?

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1981

A. Yes.

Q. And then at the very bottom you've got, subject funds,

not bolded this time, but you've got for example for 2012,

$147.2 million; do you see that?

A. Yes.

Q. If the Court applied a 39 percent profit margin to both

the investment management fees and administration fees

collected from plaintiffs' funds, is that the total amount of

damages for that year?

A. Yes.

Q. And again the same process could be applied for

subsequent years; correct?

A. Yes.

MR. SWEETSER: Your Honor, I move P-151-J into

evidence.

THE COURT: Any objections?

MR. MURPHY: No objection.

THE COURT: All right. So P-151-J is admitted.

(Plaintiff's Exhibit 151-J was marked into

evidence.)

BY MR. SWEETSER:

Q. Dr. Pomerantz, I'm now going to show you what's been

marked as P-151-K. Dr. Pomerantz, do you have that?

A. Yes.

Q. Okay. P-151-K is comprised of three pages; did you

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1982

prepare this document?

A. Yes.

Q. Can you please tell the Court generally what it is? And

then I'm going to ask you some specific questions about it.

A. Well, each page corresponds to a different year, 2010,

2011 and 2012. 2012, if we look at that page, there are

columns and the columns just identify different target

margins. What we were talking about on 151-J was assuming a

39 percent profit margin. What I've done on 151-K is the same

calculation, same methodology, only here I don't have a target

margin of 39 percent, I have target margins of 50, 60, 70, 80

and 90 percent.

Q. Why did you use those target margins?

A. Just to give a sense of what the excess fee is, being

paid by the investors at a range of different margins.

Q. Was this just to give the Court options in the event that

the Court determine another profit margin should apply, or did

you take this from some Lipper or Strategic Insight data?

Like how did you come up with these ranges?

A. Primarily to illustrate to the Court what the damages

would be at different margins. As I understand it, it's

ultimately the Court's decision of what is an appropriate

margin.

Q. Okay. And again, at the very bottom next to subject

funds, you've got totals. So at that total for all the funds

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1983

combined is the number that the Court would award if the Court

deemed the profit margin to be applicable to this case; is

that correct?

A. Yes.

Q. Now, is this for both the management and administration

fees, or is it only for the management fees?

A. This is just for the investment management fee.

Q. And again, presumably if the Court wanted a range of

profit margins to apply to a damage calculation, the Court

could do it the same way that you've discussed, you prepared

this and the prior exhibit; correct?

A. Yes.

Q. Now, for 2012, if FMG were paid half the fees that it

received, have you calculated what profit margin that would

fall into?

THE COURT: Could you repeat that question?

MR. SWEETSER: Sure, your Honor, maybe to

crystallize this; Chris, can I have 151-A, please.

THE WITNESS: I have it.

MR. SWEETSER: Does your Honor have it?

THE COURT: I have it.

MR. SWEETSER: Thank you.

BY MR. SWEETSER:

Q. Dr. Pomerantz, my question to you is this, if you look at

the bottom of 151-A which is already in evidence, you've got

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Pomerantz - Direct - Sweetser

United States District Court

Trenton, New Jersey

1984

the total amount of fees paid just for the subject funds in

this case, to be $124.6 million; do you see that?

A. Yes.

Q. Half of that is $62.3 million; right?

A. Yes.

Q. My question to you is if FMG was paid $62.3 million, half

of what it was paid in 2012, what profit margin would that

fall into?

A. Well, you can tell from P-151-K that that would be

approximately 80 percent.

MR. SWEETSER: Your Honor, move P-151-K into

evidence.

THE COURT: Any objections?

MR. MURPHY: No, your Honor.

THE COURT: So, admitted.

MR. SWEETSER: Thank you, your Honor.

(Plaintiff's Exhibit 151-K was marked into

evidence.)

MR. SWEETSER: That concludes plaintiff's direct of

Dr. Pomerantz.

THE COURT: All right. Cross?

MR. MURPHY: Yes, your Honor.

THE COURT: So, Mr. Murphy, if it's going to take a

while to set up, we can break and come back?

MR. MURPHY: It's up you, your Honor, I'm ready, but

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1985

now's a good as time as any but if you want to just go a half

hour or something it's up you, I can go for a half hour if

you'd rather break then, if you want to break now --

THE COURT: Let's go for a half hour and then we'll

break.

MR. MURPHY: Okay.

(CROSS-EXAMINATION OF STEVE POMERANTZ PH.D. BY MR. MURPHY:)

Q. Good afternoon, Mr. Pomerantz. You're a professional

expert; that's correct?

A. Yes.

Q. And about 90 percent of your income is from acting as an

expert witness?

A. Yes.

Q. And you understand this is a Section 36(b) case?

A. Yes.

Q. And how many times have you been retained as an expert in

a 36(b) case against a mutual fund advisor?

A. As a testifying expert? Two dozen.

Q. Okay. All for the plaintiff?

A. Yes.

Q. And you've had your deposition taken in a case against

Harris Associates?

A. Yes.

Q. Waddell & Reed?

A. Yes.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1986

Q. American Century?

A. Yes.

Q. Fiduciary?

A. Yes.

Q. Janus?

A. Yes.

Q. Franklin?

A. Yes.

Q. Federated?

A. Yes.

Q. Artisan?

A. Yes.

Q. Hartford?

A. Yes.

Q. Russell?

A. Yes.

Q. Principle --

A. No, not in Russell.

Q. Fair enough; I think we're meeting in a week or two.

Principal?

A. That's happening during this trial in my mind.

Q. Principal?

A. Yes.

Q. And where you were deposed those were all under oath;

correct?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1987

A. Yes.

Q. So let's talk about your opinions in this case. Your

opinion is that FMG's really not doing anything; correct?

A. I think my opinion is that the bulk of the services are

being performed by the sub-advisor, and that FMG's

compensation is not commensurate with the services that it

provides.

Q. But when you testified at your deposition I asked you

what is your understanding of the split of services, you said

FMG is not really doing anything; is that correct?

A. If those were my words that's accurate.

Q. And you believe that FMG is just hiring managers,

monitoring them and then acting as a conduit to the Board;

correct?

A. I'm sorry; hiring managers?

Q. Hiring managers, monitoring managers and being a conduit

to the Board; that was what you said at your deposition?

A. And a couple of other services that I could identify.

Q. So the only other services that you could identify were

they probably provide some office space and some coffee cups

to sub-advisors when they come to visit FMG's office; is that

the only other thing you could identify?

A. I mean they're responsible for printing a prospectus.

Q. You didn't list that in your deposition, did you?

A. You know, Sean, I can probably if I thought about it give

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1988

you a long list --

THE COURT: Wait; you have to answer the question.

The question was, Mr. Murphy?

MR. MURPHY: Why don't we just play clip 140.

(Portion of videotaped deposition played of Steve

Pomerantz.)

Q: Other than the hiring --

(Portion of videotaped deposition stopped.)

MR. SWEETSER: Your Honor, I object. I don't know

what the question is that presumably this is intended to test

his credibility --

THE COURT: Frank, can you repeat the question that

was asked by Mr. Murphy?

(Question read back by the reporter.)

MR. MURPHY: So, your Honor, he's now saying I could

provide a whole bunch of services; I asked him at his

deposition -- I can impeach him with a prior inconsistent

statement from his deposition under 801(d)(1)(A).

THE COURT: You may.

MR. MURPHY: Can I play clip 140, which is AXA

transcript page 9.

(Portion of videotaped deposition played of Steve

Pomerantz.)

Q: Other than hiring, firing and monitoring of

managers, and being a conduit to the Board, are they

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1989

responsible for any other services?

A: There might be some ancillary de minimus

services that they perform.

Q: And what ancillary de minimus services are you

aware of?

A: They will make presentations to the Board.

Q: Anything else you can think of?

A: Nothing significant.

Q: Anything insignificant?

A: They probably provide some office space and

coffee cubs to sub-advisors who come in to visit

their office.

Q: Anything other than office space and coffee cups

to sub-advisors?

A: Nothing significant that I can think of.

Q: Anything insignificant that you can think of?

A: No.

(Portion of videotaped deposition concluded.)

BY MR. MURPHY:

Q. Were you asked those questions and gave those answers,

Mr. Pomerantz?

A. I think you should play the seven and a half hours of

other deposition testimony.

Q. Answer the question --

A. It contains other things that I discussed --

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1990

THE COURT: Mr. Pomerantz, you have to answer the

question, sir. Okay? Do you understand that?

THE WITNESS: Yes.

THE COURT: All right. Thank you.

BY MR. MURPHY:

Q. Were you asked those questions and gave those answers at

your deposition, Mr. Pomerantz?

A. The tape speaks for itself.

Q. Is that a yes?

A. If the tape is accurate, then yes.

Q. In terms of FMG's research of hiring new managers, you

believe that FMG uses the Sunday business section of the New

York Times; correct?

MR. SWEETSER: Your Honor, I object. This is

outside the scope of any opinion he was permitted to testify

to. I wasn't permitted to probe with him hiring of

sub-advisors, and there have been no sub-advisors hired for

the plaintiffs' funds in the years in question. But this

wasn't an opinion that he gave.

THE COURT: All right, overruled.

You may answer the question.

BY MR. MURPHY:

Q. I'll repeat the question, Mr. Pomerantz. In terms of

FMG's research to identify new sub-advisors, you believe they

use the Sunday business section of the New York Times and just

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1991

identify well-known managers; is that correct?

A. I believe FMG performs due diligence, there's been

evidence of other due diligence that they performed. I don't

doubt they read the Sunday paper, but I would say that there

are plenty of other things that they do as part of their due

diligence.

MR. MURPHY: If you could play clip 61, which is AXA

transcript 194, starting at line 12.

(Portion of videotaped deposition played of Steve

Pomerantz.)

Q: Do you know FMG does when it researches new

managers?

A: I could not give you an exhaustive list of the

things that they do. It seems like they just open

up the Sunday business section of the New York Times

basically and identify well-known managers.

(Portion of videotaped deposition concluded.)

BY MR. MURPHY:

Q. Were you asked those questions and gave those answers,

Mr. Pomerantz?

A. Yes.

Q. And you understand that FMG does a volatility overlay

over some of the funds?

A. They do something that they call a volatility overlay,

but I mean -- you're going to have to define that if you want

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1992

me to agree that that's what they do.

Q. So you don't know if there's -- if FMG offers a

volatility overlay over two of the funds?

A. They -- they -- as I testified yesterday, I believe that

they meddle with the funds, and exercise something that they

call an ATM strategy.

Q. Okay. And you believe a secretary could do that work;

correct?

A. I -- to the extent that anything's being done I think a

computer could probably do it very very easily.

Q. And you said a computer and a secretary is all that's

needed; correct?

A. In point of fact, when I was at Weiss, Peck and Greer we

had clients for whom we had overlay strategies similar to what

you're discussing, and in point of fact my secretary was

responsible for running a report at the end of every day that

would basically instruct me, and other members of the firm

about what was needed to be done as part of that "overlay

strategy."

MR. MURPHY: Can you play clip 67, which is AXA page

216, line 13.

(Portion of videotaped deposition played of Steve

Pomerantz.)

Q: Do you recall reviewing testimony that it was in

fact a manual process by FMG to measure volatility?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1993

A: Okay, any process that could be done manually is

absolutely meaningless. The calculations that are

being discussed here are incredibly complicated,

incredibly complicated, and have to be done by a

computer. Anything, anything that could be done

manually is either something that can be done by a

secretary, or something that does not need to be

done and most likely shouldn't be done. And as I

said, this testimony is incredibly vague in terms of

what it is that's really happening. So, my opinions

are based upon looking at the annual reports, seeing

what's actually happening; I have seen communication

between AXA and the sub-advisors about what it is

they want people to do. You know, when he says it

is a manual process, I don't think anybody at this

table knows what it is referring to.

(Portion of videotaped deposition concluded.)

BY MR. MURPHY:

Q. Were you asked those questions and gave that answer at

your deposition, Mr. Pomerantz?

A. Yes.

Q. And your opinion is that FMG doesn't play any role in the

pricing of securities; is that correct?

A. Well, that's primarily an administrative task. I think

if there were conflicts or difficult securities, FMG is

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1994

ultimately responsible. So somebody at FMG would have to

intervene if there were a conflict or something difficult.

MR. MURPHY: If you could play clip 54, which is AXA

transcript 162, line 5.

(Portion of videotaped deposition played of Steve

Pomerantz.)

Q: Does FMG play any role in the pricing of

securities?

A: No, they would delegate that responsibility to

ultimately the sub-administrator/sub-advisor.

(Portion of videotaped deposition concluded.)

BY MR. MURPHY:

Q. Did you give that answer at your deposition?

A. Yes, if I -- the securities held by these funds are all

public bonds, public stocks, I didn't see anything that was

controversial, I didn't see anything that wouldn't be

processed by a sub-administrator or a sub-advisor as just the

normal course of business.

Q. So you went in and looked at -- for example, how many

securities does a Core Bond fund have?

A. The funds hold thousands of securities.

Q. Right. The Core Bond has 3,500 securities?

A. It might.

Q. And is your testimony that you went in and looked at

those 3,500 and you think they're all just pull the number off

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1995

the tape, is that your testimony?

A. I don't think there's anything in that annual report that

is out of the ordinary or complicated.

Q. And your position is that even -- even if AXA hadn't

delegated all the responsibility for pricing securities,

there's no one at AXA that could even price the securities;

right?

A. Well, as I said, it can happen that there arises a

conflict just in terms of the industry. It can -- it can

happen that a conflict arises or uncertainty arises, or

there's a difficulty that's involved; and ultimately FMG is

responsible for resolving that dilemma.

So if something like that happens, and I don't know --

I have no evidence that that has happened, but if it happens,

then FMG would have to be responsible.

Q. But my question was, you believe that nobody at AXA is

even in a position to determine the value of the securities;

correct?

A. I don't think -- I don't think any of the employees --

any of the 50 employees, I don't believe any of them is

capable. They would be responsible for making a decision, but

it's not like any of them are traders in any of the markets

that understand a difficult situation. They'll make the

decision and they'll make it as best as they can, but it's not

like somebody at FMG is going to build a model to evaluate

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1996

some complicated security that befuddles the

sub-administrator.

MR. MURPHY: Can we play clip 172, which is AXA

transcript 180, at line 2, for the record?

(Portion of videotaped deposition played of Steve

Pomerantz.)

Q: I'll read it into the record again: Question,

if there's a security that's difficult to price, who

makes the determination to your knowledge about how

to price it? Answer: AXA does.

Do you believe that testimony is false?

A: I don't know what how means, okay? Is it AXA's

responsibility? Are they the ones who are legally

responsible for the actual value of the security

that's listed? Yes, it's their legal

responsibility. Does AXA price the security? You

know, maybe I'm using a term of art that you're not

familiar with; okay? But to say that someone prices

a security means that they are the ones who put

forth the investigation and the analysis to

determine what is the fair value of the security.

That is not something that AXA is doing.

Q: What don't you understand about the word how in

that sentence?

A: I don't believe that AXA is in the position to

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1997

determine that the value of the security. So, you

know, I guess it depends how you define the word

how. But if AXA -- I mean if the way that AXA does

it is by deferring to the sub-advisor, then yes,

that's how AXA does it, AXA does it by deferring it

to the sub-advisor.

(Portion of videotaped deposition concluded.)

BY MR. MURPHY:

Q. Was that your testimony, that AXA you said "I don't

believe that AXA's in a position to determine the value of the

security", was that your testimony?

A. Yes.

Q. And did you investigate, for example, Ken Kozlowski, the

portfolio manager's funds, did you look at his bio?

A. Yes.

Q. And you think he's not in a position to value securities?

A. The valuation of a security that really requires

valuation requires a team of people, requires computer

systems; no individual is going to make that determination.

There's nobody, there's not a single individual who is going

to make that determination. They're going to rely upon

pricing models and systems and third-party intelligence. I

don't disagree that he might ultimately be responsible, but

he's not the one who's actually going through the process of

determining a valuation.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1998

Q. And in fact, FMG has a valuation committee with five

people that sit on it?

A. Yes.

Q. And they meet every day?

A. I don't know how often they meet.

Q. Well, did you do any investigation into that?

A. I've never been to their offices so I don't know what

they're doing.

Q. Did you read any deposition testimony about it?

A. I know that they have a valuation committee.

Q. And you can't -- you can't tell me whether the five

people in the valuation committee are capable of making

pricing decisions; correct?

A. The pricing decisions that would need to be made by AXA

as I just testified require significant allocation to systems,

pricing models, computer models; I haven't seen those

resources inside FMG itself to do that. So, I don't deny

there's a pricing committee and five people can sit and make a

decision, and I understand that they make the decision, it's

their responsibility, but they're not people who are actually

designing a model and developing a price for a security.

MR. MURPHY: Could I get clip 58, which is AXA

transcript 186, line 13?

(Portion of videotaped deposition played of Steve

Pomerantz.)

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

1999

Q: My question was, do you have an opinion as to

whether the five people that sit on the valuation

committee, are capable of making pricing decisions?

A: I don't know what you mean by capable, I don't

know what you mean by decisions. In other words,

can they arbitrate between --

Mr. Sweetser: Stop, stop, stop, stop. If you let

Sean know you don't understand the question he'll

rephrase it if he wants to.

Q: Well, what don't you understand about the word

capable?

A: I don't know what capable means. I mean capable

as if -- like if you asked me here's a security,

here's a security, Steve, here's a prospectus, are

you capable of telling me the fair value of that;

right? Is that the question? Well, no, there's --

I will have to defer the someone, I will have to

defer to the sub-advisor to tell me what the price

is.

Q: And what don't you understand about the word

decisions?

A: Have I not answered your question?

Q: No, you said you don't -- let me read it back,

you said I don't know what you mean by capable.

A: Yeah, I don't know what you mean by capable.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2000

Q: Can I just get a question out, Steve? I don't

know what you mean by capable, I don't know what you

mean by decisions; my question is what don't you

understand about the word decisions?

(Portion of videotaped testimony stopped.)

MR. SWEETSER: Your Honor, this is going far afield

of crossing on the question at issue talking about what is his

understanding of decisions is. We're talking about his

understanding of what the valuation committee means, now

there's this colloquy going back and forth; you know, I object

to the use of the deposition to that extent.

MR. MURPHY: Your Honor, it goes to credibility.

I'm asking him questions about what FMG does and he refused to

answer them at his deposition. He said we don't do anything,

I asked him repeatedly do they do this, do they do that, and

he just played word games, he asked me 40 times what I meant

by the word blank and blank; it goes to credibility.

THE COURT: Overruled.

BY MR. MURPHY:

Q. Compliance, Mr. Pomerantz, your opinion is that all of

the compliance for the fund is done by JP Morgan; correct?

A. JP Morgan as the sub-administrator performs a lot of

compliance --

Q. I'm sorry --

A. -- responsibilities. There are other items that fall

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2001

under the rubric of compliance.

Q. I'm sorry; you said a lot. Isn't it -- isn't your

opinion that all compliance for the fund is done by JP Morgan?

A. I -- I think you have to define what you mean by

compliance.

MR. MURPHY: Can you play clip 81, which is AXA

transcript --

MR. SWEETSER: Your Honor, I object. The witness

has said he doesn't know what -- what he means by the word

compliance. We had this issue on direct with regard to

compliance, he wasn't allowed to talk about compliance, and

now we're going to the videotape without even figuring out

what the word compliance means that he hasn't answered the

question to.

Again, I object. This is a canned presentation,

they've got all these things up there, I can't find see what

going on, but this compliance issue's a clear one where again,

let's go to the videotape, he doesn't even understand what

the -- what Sean means by the question with respect to

compliance.

THE COURT: Frank, what was the question?

(Question read back by the reporter.)

MR. MURPHY: And your Honor, so I asked him this

exact same question at his deposition and he said yes, it

was -- JP Morgan did it all. 801(d)(1)(A) on a prior

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2002

inconsistent sworn statement is not limited to yes/no. It's

if he gives an evasive answer and there's a very black and

white one at his deposition you're allowed to impeach him with

it.

MR. SWEETSER: And your Honor, there is no white and

black answer here, he's asking Mr. Murphy what he means by the

word compliance.

MR. MURPHY: Then he can redirect --

THE COURT: Overruled.

MR. MURPHY: Thank you, your Honor.

Clip 81, which is AXA transcript 251?

(Portion of videotaped deposition played of Steve

Pomerantz.)

Q: And your understanding is that JP Morgan is

providing all of the compliance services.

A: Yes.

(Portion of videotaped deposition concluded.)

BY MR. MURPHY:

Q. And for that opinion -- I'm sorry; do you recall being

asked that question and giving that answer?

A. I recall that three second clip of an eight hour

deposition.

Q. Okay. And in terms of your opinion about who's doing all

the compliance, you're not relying on sworn testimony from JP

Morgan and FMG for that; correct?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2003

A. I know how the business operates, I know what JP Morgan

is doing, I know what FMG is doing. And, again, I think we

actually talked about this yesterday, there are lots of things

that fall under the rubric of compliance.

Q. And you understand that FMG has 17 legal and compliance

professionals just at FMG, not including AXA?

A. I don't recall if it was seven or 17. But there was a

seven, yes, I recall something like that.

Q. Do you know what those individuals do?

A. No.

Q. But you're sure they're not doing compliance?

A. As I said Sean, probably for the sixth time, compliance

means lots of things. There are some things that they're

incapable of doing, as part of what I understand compliance to

be. There are probably a lot of things that they're doing

that fall under your definition.

Q. And you're aware that there's a pretty broad set of laws

and regulations that govern mutual funds?

A. Yes.

Q. Do you know if mutual funds are one of the most heavily

regulated securities in the marketplace?

A. I would say not heavily enough, but -- as evidenced by a

lot of failures, but I agree with you that they are regulated.

Q. When you say there's a lot of failures, the compliance is

a pretty important function?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2004

A. Insider trading is a failure; late trading is a failure

of compliance.

Q. In fact, you wrote an article, didn't you, that said "no

issuer of securities is subject to more detailed regulation

than a mutual fund; is that correct?

A. Yes.

Q. I'm sorry?

A. Yes.

MR. MURPHY: Your Honor, I'm going to move to a new

topic, do you --

THE COURT: Let's break here, and we'll come back at

quarter to 2:00.

MR. MURPHY: Thank you, your Honor.

THE COURT: All right, thank you.

(Recess.)

THE COURT: Mr. Pomerantz, you may take the stand.

And Mr. Pomerantz, you're still under oath.

You may proceed, Mr. Murphy.

MR. MURPHY: Thank you, your Honor.

Can I call up P-151-I?

BY MR. MURPHY:

Q. And Mr. Pomerantz, let me know if you need it. I only

just confirm this is your chart. Would you like to see a hard

copy?

A. No, I can --

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2005

Q. I just want to understand, this is -- we spent a lot of

time on this yesterday so I don't want to dwell on it, but --

so the performance versus the benchmark here, you show loss, I

think everyone understands that the loss is kind of a -- not

necessarily a "loss", but it's the difference between how the

benchmark returned and the fund performed; correct?

A. Yes.

Q. And the benchmark -- the performance v. benchmark column,

that's against the funds kind of prospectus benchmark?

A. For the most part it's the benchmark that's identified.

Q. In P-74.

A. Yes, yes.

Q. And so what's the benchmark, for example, for the Large

Cap Value PLUS Fund; do you recall?

A. For the PLUS Funds in most cases I think I used the -- it

would have been an underlying Russell or --

Q. Is it the Russell Growth 1000?

A. It's probably the Russell Value 1000; I think for one of

the PLUS Funds actually on that -- on that exhibit there are

actually two benchmarks that are identified that correspond to

funds for the volatility managed products, there are two

benchmarks and one is the Russell -- the appropriate Russell

category in this case, I guess it's the 1000 value, and there

also would have been kind of a customized index that FMG

created that's kind of a volatility adjustment. And I think

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2006

in one case I think I would have used the volatility adjusted

benchmark they reference, and then in the other cases I was

using the Russell benchmark.

Q. Right. So what you did is there were two benchmarks, and

sometimes you used the prospectus benchmark and sometimes you

used a volatility benchmark; correct?

A. I think in almost all cases I used the prospectus

benchmark. In one example I believe the prospectus benchmark

offered the same exact performance as the Lipper peer group

benchmark, and so there I deferred to whatever the other

benchmark was.

Q. So you didn't necessarily choose the prospectus

benchmark, you chose which of those two you thought might work

better; correct?

A. No, I -- my preference was to choose the prospectus

benchmark, which I did in almost all cases, there were a

couple where the prospectus benchmark was the same as -- the

performance versus the prospectus was the same as the

performance versus the peer group, so I chose the other

benchmark to get more information about performance.

Q. If it performed not as well. You wouldn't use the

performance versus the prospectus benchmark if it was the same

as Lipper, to get more information you'd choose a much lower

benchmark; is that fair?

A. No, it's not. My selection criteria was to use the

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2007

Russell benchmark except in cases where the Russell return was

the same as the peer group, and then I would defer to the

other one and sometimes it would be higher and sometimes it

would be lower.

Q. Okay. So -- why don't we take an example. So if we can

call up P-74, which is your source document.

So this is the -- this is the Lipper Large Cap Value,

so on this one, you see the funds' benchmark was the Russell

1000 Value; do you see that?

A. Yes.

Q. And the five year return was negative 3.59.

A. Yes.

Q. And that's the number you would use to calculate the

performance return versus the benchmark?

A. In all cases -- or in most cases, I would use the

Russell; in this case I believe I used the alternative index

only because it was substantially different from the Russell,

which is virtually the same as the Lipper.

Q. So, to just get some variety you thought you'd choose a

benchmark that had a much better return to compare the funds

to; is that fair?

A. No, it's not, as I said a minute ago, I wasn't motivated

by the fact that the other index was better or worse, I just

thought it was different.

Q. So -- and we can go through every one, but for every

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2008

single one you used the prospectus benchmark, except for this

one (indicating) where if you'd used the prospectus benchmark,

it would have eliminated about half the losses; correct? If

you used the prospectus benchmark, half the losses that you

show on your chart of losses would be eliminated if you used

the prospectus benchmark like you did for every fund; correct?

A. For that particular fund, yes.

Q. Okay. Let's go back to P --

A. In fact you can interpret exactly what it would be by

just looking at the Lipper column for the Large Cap Value,

because the return of the benchmark used in that calculation

would be the same as the performance for the Russell

calculation.

Q. Right. So let's look at that. Let's go back to P-151-J.

MR. MURPHY: If you can blow up the -- sorry; that's

somehow damages. I'm looking for I; sorry.

Pull up that again on the left.

BY MR. MURPHY:

Q. So on this one, Large Cap Value PLUS, if you used Lipper

you show 551 million; correct?

A. Yes.

Q. And so if you used -- roughly that same number you would

have used the same number on the right; correct?

A. Yes.

Q. And on the right with this other benchmark, the only time

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2009

you used this other non-prospectus benchmark you're able to

show 1.4 billion; right? And if you had used the funds'

prospectus, it would have been about 591; correct?

A. Around that, yes.

Q. About 800,000?

A. Yes.

Q. About 25 percent of the total losses on the chart?

A. Well, then the benchmark damages would be comparable to

the Lipper damages of about $2 billion.

Q. And you're saying you intentionally on that one fund,

which is half of your losses, the 1.4 billion on 2.6, more

than half your losses, you just decided to get some variety

you wouldn't use the funds' benchmark.

A. No, as I said, for that particular fund because the

Lipper number was the same as the benchmark, I wanted to see

what the performance was against another benchmark that FMG

had offered. I didn't hide that information from you, it was

clear in my documents what I was doing.

Q. Did you mention that yesterday when you said it compared

the fund versus the prospectus benchmark in your testimony?

A. I don't think we spoke about at this at length yesterday.

Q. Okay. You didn't tell the Court yesterday that this was

a comparison of the fund's performance versus the prospectus

benchmark that FMG had chosen, you didn't say that yesterday?

A. You know, I don't recall, and I think the testimony was

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2010

that I looked at a peer group and I looked at a benchmark, and

those benchmarks are what FMG defines on this report.

Q. Mr. Pomerantz, you were here yesterday when I said some

of your prospectus benchmarks were wrong; did you do any

investigation last night to go back and look at the benchmarks

of these numbers?

A. No.

Q. If you -- if we can hand up what I believe are your work

papers for that chart, which are Defendant's Exhibit 1886 and

1886.1 --

MR. MURPHY: If we can hand them out to everyone.

Your Honor, it's very small print, I apologize, but

these were the way they were produced. We blew them up the

best we could.

BY MR. MURPHY:

Q. Mr. Pomerantz, do these appear to be your work papers

that you used to calculate the "losses" on Exhibit P-151-I?

A. Yes.

MR. MURPHY: And your Honor, I would offer

Defendant's Exhibits 1886 and 1886.1 into evidence as the

backup for his chart.

THE COURT: Any objection?

MR. SWEETSER: No objection.

THE COURT: So, Defendant's Exhibits 1886 and

1886.1 --

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2011

MR. MURPHY: Thank you, your Honor.

THE COURT: -- are admitted.

(Defendant's Exhibits 1886 and 1886.1 were marked

into evidence.)

BY MR. MURPHY:

Q. So, Mr. Pomerantz, looking at 1886 -- do you have that in

front of you?

A. Yes.

Q. I don't know if Marco can blow it up, but if you can read

the small print, the first one is the PIMCO Ultra Short Bond

Fund?

A. Yes.

Q. And to do the analysis of your benchmark returns from

May -- May 2012 backwards, you would get assets from May 2007

as a starting point?

A. What I -- what I was doing was -- was recreating the

analysis that I mentioned yesterday in the annual reports that

talk about the growth of $10,000, and they produce like a line

graph that shows what the growth of $10,000 would be at the

funds returned, and also at the benchmark returns, or the

comparators' returns.

And on that graph that's in the annual report it

identifies two terminal values, and the values that I'm trying

to calculate here are the difference between those two

terminal values --

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2012

Q. I don't mean to interrupt you, Mr. Pomerantz; my question

-- and please feel free if you need to keep with your answer,

but I just want to know if you were to do an analysis of how

the funds performed going back five years from May 2012, would

you want the starting assets -- I don't -- I think you were

answering what you're trying to do; I'm just saying if you

were trying to do it right, would you start with the assets

five years back on May 2007 and say that's the beginning

assets?

MR. SWEETSER: Objection.

THE COURT: Wait, I'm sorry; what's the objection?

MR. SWEETSER: Form. I just don't understand what

that question is.

THE COURT: You don't understand it? So you have to

rephrase it.

BY MR. MURPHY:

Q. If you were to calculate the losses going back five years

from May 2007 doing the analysis you did in 151-I, would you

want to get the starting assets going back five years so you

could start with the amount of money in the fund?

A. That's one way to do it. I was restricted to doing the

calculations based upon the information that was being

provided to the Board as I knew it. And I can actually walk

you through my analysis.

Q. Well, why don't you just tell me, what's the starting

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2013

assets that you use for the PIMCO Ultra Short Fund? Can you

tell like for the first -- I guess it would be the period

May -- May 2007 what the starting assets would be?

A. Well, it makes an assumption that the starting value is

the 2.5 million that you have in bold.

Q. So 2.5 billion, not million.

A. Sorry, billion.

Q. So you assumed the starting assets were 2.5 billion

around May 2007.

A. Implicitly I make that assumption.

Q. Okay.

MR. MURPHY: And can we hand out Defendant's Exhibit

467.1.

Q. So, do you have it, Mr. Pomerantz?

A. Yes.

Q. And this appear to be a prospectus for the EQAT Trust

date May 2010? There's just some pages of it not the whole

500 pages, but do you recognize it?

A. This might be the first time I'm seeing this document,

so --

Q. I'm sorry. You could go on -- you could go on the

Internet and download --

A. Yeah, I agree, I mean if you represent this is the

prospectus, I mean -- is it from the prospectus or the annual

report?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2014

Q. It says prospectus on the first page. Any reason to

think it's not what it purports to be?

A. No.

Q. And if you turn to the third page which has the Bates

number 5286, it has the PIMCO Ultra Short Bond Fund.

A. Yes.

MR. MURPHY: And can we highlight that, Marco, the

2007 number?

Q. So this has -- you're looking for the assets for May

2007; correct? To do your analysis, you started with 2.5

billion; is that correct? Mr. Pomerantz?

A. Yes.

Q. And do you see the assets in that time period were around

700 million, 705.347?

A. The 705, yeah, for Class I-A.

Q. Okay. So you used as a starting asset value 2.5 billion

for 2007 for this fund, but the prospectus says that the

assets under management were about a quarter of that.

MR. SWEETSER: Your Honor, objection. There's

multiple share classes which counsel is limiting his only

answer on to only one share class. There's multiple share

classes with different values in the different share classes.

MR. MURPHY: I'll rephrase.

THE COURT: Rephrase, please.

BY MR. MURPHY:

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2015

Q. Mr. Pomerantz, do you see any multiple share classes in

here, or does this just say net assets?

A. Well, this prospectus identifies -- this prospectus

identifies net assets for Class I-A and Class-I-B.

Q. Right. So let's just break that down. The 705 is -- you

think it's Class A and you think Class B is what, 564 -- 584?

A. I'm sorry; just one moment.

So, I'm sorry, this document identifies the assets

at -- for Class I-A and Class-I-B to be 1.2 billion.

Q. Okay, let's accept that as true. The assets around March

31 to December 31, 2007 were around -- call it even 1.3,

right, it's closer to 1.3 than 1.2?

A. For these two classes.

Q. And you use basically twice that amount for your starting

assets; correct?

A. Well, first of all, I don't know that there aren't other

classes that would have a different prospectus that would have

different asset values, number one.

Q. Well, let's assume these are the only two share

classes --

MR. SWEETSER: Your Honor, let's not and say we did.

I mean he should be permitted to answer that question.

There's other share classes; it's pretty significant to this

line of questioning.

MR. MURPHY: If there were other --

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2016

THE COURT: Can you rephrase your question?

BY MR. MURPHY:

Q. If there were other share classes would those be listed

in the prospectus?

A. It's a quite common for there to be multiple prospectuses

for a mutual fund. And some share classes are in some and

some share classes are in another.

Q. Do you have any reason to believe that the assets of this

fund were greater than 1.3 billion as you sit here today in

2007?

A. Yeah, I have several reasons. I mean first of all, as I

said, this is a prospectus, I don't know that there aren't

other prospectuses; also, the numbers that are in my

spreadsheet are not coming from this document, they're coming

from the profitability reports that identify the average

assets per year.

Q. And you're aware that the only share classes that are at

issue in this lawsuit are the I-A and I-B shares?

A. The analysis that I did is based on the assets -- the

average assets that are reported on the profitability reports.

Q. So in fact those might have other share classes beyond

I-A and I-B that are not at issue in this lawsuit?

A. They might.

Q. Do you recall testifying about an average for equity and

bond index funds yesterday, Mr. Pomerantz?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2017

A. Yes.

Q. And I think you said that they were 12 and 13 basis

points for -- 12 for bond and 13 for equity; is that correct?

A. It was either 11 and 12 or 12 and 13, it's the chart

that's in my report.

Q. And why don't I just show you the chart that's in your

report that you were shown yesterday.

MR. MURPHY: It's P-152 at page 48.

If you could blow up that chart.

Q. So these are the numbers you're talking about, 12 basis

points for equity, and 11 basis points for bond?

A. Yes.

Q. And you reported it as an average fee; correct?

A. Yes.

Q. And I think you said you got that from the ICI Fact Book

dated 2013?

A. Yes.

MR. MURPHY: Can we hand the witness P-117, which is

the 2013 ICI Fact Book? Give one to the judge and plaintiff

as well.

It's already in evidence, your Honor.

BY MR. MURPHY:

Q. Do you have it, Mr. Pomerantz?

A. Yes.

Q. And if you go to page 79.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2018

A. Yes.

Q. Page 79 has the numbers that you're talking about, the 12

-- this one's 12 and 13, I think you report them as 11 and 12?

A. Is this the chart that's in my report?

Q. No, you pulled the numbers out of this, you cite this

report, you cite this in your report, the 2013 Fact Book, and

I think you cite page 79; I'm assuming it's the 12 and 13

right there.

A. Yes.

Q. Index equity funds, and bond funds are right below it.

A. Yes.

Q. Okay.

MR. MURPHY: And if you could blow up that footnote,

Marco.

Q. It says: Expense ratios are measured as asset weighted

averages, figure excludes mutual funds available as investment

choices in variable annuities, and mutual funds that invest

primarily in other mutual funds.

Do you see that?

A. Yes.

Q. So this -- this number excludes mutual funds like the

funds at issue here that are used in variable annuities;

correct?

A. The data behind this, yes, as Morningstar says -- I'm

sorry; Lipper.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2019

Q. And you reported these as just an average, but it

actually says they're asset weighted average?

A. I think that's an issue of semantics. If you look at the

text right below the graph, the text says: Similarly the

average expense ratio for index and actively managed bond

funds have fallen --

Q. What's ambiguous about the note, expense ratios are

measured at an asset weighted average --

A. I agree with that.

Q. So it's an asset weighted average. What is an asset

weighted average?

A. Well, it would be an average of fees for some set of

mutual funds where funds that are larger would be given a

greater weight than funds that are smaller.

MR. MURPHY: Can I get the ELMO, Marco?

Q. So let's assume that we have these -- these are seven I

guess we'll call them funds. And let's assume that these are

fees, one basis point, two basis points, so there's seven

funds, 1 charges one basis point, 2 charges two basis points,

3 charges basis points and so on; do you follow me?

A. Yes.

Q. So how would you calculate the asset weighted average

from these numbers?

A. You couldn't.

Q. Right. You need to know the assets; correct?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2020

A. Yes.

Q. And just explain to the judge, if most of the assets were

in the fund with a 1, and the funds with the 2 and 3 and 4 and

7, 8 and 10 basis points fee, if almost all the funds were in

the 1 what would be the asset weighted average?

A. If all the assets -- yeah, if 99 percent of the assets

are in the 1 then you're going to get a one.

Q. Even if 80 percent of the assets were in the 1 it might

be like 1.4 or something.

A. Sure.

Q. So if the fees are disproportionately concentrated in the

lowest cost funds, you'd have an asset weighted number that

wouldn't necessarily be representative of how many funds are

charging that; correct?

A. Yeah, an asset weighted average will pay more attention

to big funds and will pay less attention to the mutual funds

that may have 2 or $3 million in them or a mutual fund with

$50 million, or a mutual fund with less than a million

dollars. The fee being charged by a mutual fund with a

hundred million dollars in it would play virtually no role in

the analysis as opposed to it being treated the same as an FMG

fund.

Q. Thank you. And if we can go back to page 79 of P-117.

And down below it says: Investor demand for index funds is

disproportionately concentrated in the very lowest cost funds.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2021

What do you understand that statement to mean?

A. I would really have to ask ICI what that means. To say

investor demand, I think what's -- what's true is that larger

funds have lower fees and smaller funds have higher fees; as

to whether or not the fees are lower in response to demand or

whether it's a function of the breakpoints, that's -- that's,

you know, that's debate.

Q. I think I got you. You're talking about competition

which is not where I'm going; right? We've debated that in

the past. What I'm asking is just are there some really large

low fee funds in the marketplace is what I was asking.

A. There are many many funds which fees below 10 basis

points, not just Vanguard and Fidelity, there are dozens of

funds that have less than 10 basis points fees.

Q. But Vanguard -- you've testified Vanguard has about a

trillion dollars in assets and index funds that have very very

low fees; do you recall that?

A. Fiduciary has more and they're cheaper.

Q. Right. So there's some really low cost big assets;

right?

A. Yeah, as I said there are probably a dozen large funds

that have less than a 10 basis point charge.

Q. Can you turn to the next page of this chart that you

relied on, page 80 in P-117. Can we blow up that chart?

So this is the expense ratios, not just of index funds,

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2022

but it includes index funds and all other funds; is that

correct?

A. Yeah, this is the whole universe they have.

Q. Right. So let's take equity funds; a bunch of the funds

here are equity funds; correct?

MR. SWEETSER: Your Honor, I object. Dr. Pomerantz

didn't give any opinion on expense ratios. He spoke about the

investment management fee; expense ratios includes other fees

as well which he didn't opine on. This is outside the scope

of his opinion in this case.

THE COURT: All right. Overruled. I think it goes

to credibility.

MR. MURPHY: And your Honor, just for clarity, the

11 and 12 basis points in the previous page are expense ratios

as well.

BY MR. MURPHY:

Q. So, Mr. Pomerantz, a bunch of funds here are equity

funds; correct?

A. On the chart?

Q. No, I'm sorry; at issue in the case.

A. At issue in the case? I think three -- two of the funds

are actively managed equity funds, yes.

Q. Sorry. My question was, are a bunch of the funds here

equity funds.

A. Yes.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2023

Q. Okay. And so let's just take this first one. What is

the 10th percentile mean, the 77, what would that reflect?

A. That would mean that 10 percent of the mutual funds in

that category have a fee below 77 basis points.

Q. So the lowest -- the lowest 10 percent of -- the cheapest

10 percent of funds in the industry equity funds, they have a

fee of 77 basis points or less.

A. Yeah, if you look -- if you're looking at their total

expense ratio.

Q. Right. And that would be .77 percent.

A. Again those numbers include -- it's a total expense ratio

and it also includes 12(b)(1) fees, it includes every fee that

is going to be disclosed.

Q. Correct. Just as -- just as FMG's total expense ratio

includes all those fees as well; correct?

A. Yes.

Q. And what's the median, the 133?

A. That means that half of the funds in that category exceed

that number, and half are below that number.

Q. So if there was 5,000 funds, the 2,500th fund, whatever

that fee is that would be what the median would be; correct?

A. Technically no, but yes.

Q. You're the Ph.D., tell me where I go wrong. I'm just

trying to figure out what the numbers are. Is it right or

wrong?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2024

A. For an even number it's not right, but in essence you're

right.

Q. Okay. So fair enough. If it was 5,001, it would be the

2,500 or 2,501 --

A. I don't know. But yes.

Q. And then what's -- what's the 90th percentile?

A. That similarly means -- let's say 10 percent of the funds

in that category have a total expense ratio that exceeds that

value.

Q. Okay. And then what about -- there's your asset weighted

average, we know what that is; correct?

A. Yes.

Q. And what's the simple average?

A. If there are 5,000 funds in that category, then we're

going just add up 5,000 numbers and divide by 5,000, and weigh

each fund equally.

Q. And that number is 141 basis points or 1.41 percent;

correct?

A. Yes.

Q. So using a simple average, the total expense ratio -- I

mean none of the funds here have an expense ratio over 100; is

that correct?

A. I don't know, but that's not a relevant comparison,

that's -- that's looking at the total fee. My understanding

is that that's not what this case is about, it's not what my

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2025

analysis is about, my analysis is about the management fee.

That number is -- is altered by what the 12(b)(1) fee is, it's

altered by what the actual administrative fees are, what the

sub-advisory fees are; there's lots of components that go into

that number.

Q. So you don't think it's appropriate to do an expense

ratio comparison.

A. Well, that's another question; no, I don't think -- I

don't think fee comparisons are relevant at all.

Q. Well, that's a different question. Why don't we go back

to P-152 at page 48.

So you understand that this is a total expense ratio;

right? That's where these numbers come from?

A. Yes.

Q. And these are a total expense ratio; correct?

A. No, those are not the total expense ratios. All right,

let's be clear. I mean the middle column are index funds,

that's a total; the column on the right, the fee of the

subject fund -- the subject funds, have administrative fees,

12(b)(1)s, all of that. So it's not the total right, that's

-- that's just the management fee is what I believe James was

referring to.

MR. MURPHY: Can we go back to P-117, page 79?

Q. And these are -- these are total expense ratios, too;

right? They're not management fee or admin fee, you were

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2026

comparing the total expense ratio; correct?

A. I'm sorry; what is your question?

Q. These reflect the total expense ratios that you just said

you don't think the comparisons are appropriate to look at

total expense ratios, these are total expense ratios; correct?

It's not just management fee.

A. The numbers on that chart are total expense ratios.

Q. Okay. And you're aware the Board was given information

from Lipper on management fees?

A. Yes.

Q. And on comparative fees; correct?

A. I don't recall the detail, but yes, probably.

Q. Is Lipper widely used by mutual fund boards for

comparative fee analysis?

A. Yes.

Q. And you would consider Lipper authoritative; correct?

A. I mean I guess it depends like what -- what aspect of

Lipper you're asking about.

Q. Well, did you testify in the Hartford case that you said,

I consider Lipper to be authoritative?

A. Well, they are an authoritative source of data.

Q. Okay. Is Lipper considered to be independent?

MR. SWEETSER: Objection, your Honor.

A. I don't know that --

THE COURT: Overruled.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2027

A. I don't know that I have an opinion on that.

Q. Did you testify in the American Century case that

Lipper's considered to be independent?

A. They're considered to be.

MR. MURPHY: Can we hand out 151-A? I think they

were shown probably today -- maybe I should ask; does anyone

need another copy, your Honor, of 151-A?

THE COURT: I think I have it. I don't know about

Mr. Pomerantz.

Do you have 151?

THE WITNESS: I can read the screen, your Honor.

THE COURT: Okay.

THE WITNESS: So far.

BY MR. MURPHY:

Q. And I believe you testified, Mr. Pomerantz, that these

numbers come from P-52-B; is that correct? The landscape

chart?

A. Yes.

Q. And what you did -- again, I don't want to belabor this

because you talked about it, but you basically just took for

Common Stock, the total management fee and subtracted out the

sub-advisory fee to get the amount paid to FMG; correct?

A. Yes.

Q. So that's just the total management fee less the

sub-advisory fee.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2028

A. Yes.

Q. And you did the same thing for the administrative fee,

you took the total administrative fee and deducted the

sub-administration fee, and the column to left would be the

retained fee.

A. Yes.

Q. If we can look at P-52-B -- do you need a copy of that,

Mr. Pomerantz?

A. I can read the screen.

Q. If you can read that that's even easier because that's

what I'm using. So Common Stock, the management fees were 16

million, and the sub-advisory fees were 2390?

A. Yes.

Q. And you deducted 16.6 minus 23 to get 14.261; correct?

A. Yes.

Q. And that's the amount paid to FMG.

A. Yes.

Q. And then what did you do with the $6 million of product

cap reimbursements?

A. For this chart I ignored everything but the sub-advisory

fee.

Q. And what are product cap reimbursements?

A. They might be reimbursements, I don't know.

Q. Well, let's assume AXA had to return $6 million under a

product cap reimbursement, return the fee paid, you'd want to

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2029

reflect that in the amount paid to FMG; right?

A. You know, I just was being consistent across all of the

funds, and I just take the management fee and I subtract the

sub-advisory fee.

Q. Right. You don't have much accounting experience;

correct?

A. I -- as far as understanding these reports I do.

Q. So, what's offset to revenue?

A. It's what it says.

Q. It's a deduction from revenue.

A. That -- that's what it says, I don't know necessarily

where that money's going.

Q. Well, how do you know from your experience reading these

charts if that's not some money that actually FMG isn't

keeping, if it's an offset to revenue?

A. I think that you could -- if you wanted you could make

adjustments to this report based on -- I think the product cap

reimbursement that you're pointing to, I don't know that there

were any or many other funds that had a line item like that,

and you can certainly make adjustments based on that, but in

almost all of the funds that value is zero. And I'm just as I

said taking the management fee and subtracting the

sub-advisory fee.

MR. MURPHY: If you could -- can you move those

boxes out of the way, Marco?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2030

Q. The next one is the Core Bond, like what is it, like a

million 7 in that one, too? Do you have it? Sorry; 728,000?

Do you see that? Another offset -- sorry; reimbursement.

A. I don't know what those are reimbursements to. I don't

know that those are coming out of -- it's not clear to me

where that money's coming from or where it's going or that it

has anything to do with the spread between the management fee

and the sub-advisory fee.

And in fact, the numbers that I have here are

reasonably close to what you would expect just coming off of

the fee schedules. So -- if there's a permanent reimbursement

or adjustment then it should be reflected in the fee schedules

which are the items that are actually being negotiated.

Q. If you could go to 203 of 52-B.

MR. MURPHY: Do we have that, Marco?

Q. So this is -- this is the T.Rowe Growth Fund, if you look

at page 203 of 52 -- P-52-B, here there's a column for fee

waivers, 116,000. You didn't the account of the fee waivers

either when you did the math; correct?

A. No, my analysis is looking at the management fee minus

the sub-advisory fee.

Q. Well, if let's say -- let's say FMG's paid $3 million,

$3.1 million, and it gave a hundred -- never really collected

a hundred thousand of that because it waived its fee, don't

you think that would be a fair thing to reflect in the chart

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2031

in terms of the fee retained by FMG?

A. I don't know the history of that 116,000, for all I know

it's a reimbursement back to the fund for an overcharge that

was deemed -- being done in a prior year. So, I don't -- I

don't know the source of -- or the reasons behind that number.

And so I just look at the difference.

Q. Okay. P-151-J. Do you recall this is the damage chart

you talked about earlier today?

A. Yes.

Q. And just to be clear, the 39 percent profit margin, that

excludes sub-advisory fees as an expense; correct?

A. Yes.

Q. And it excludes what we would call the AXA $49 million of

allocated costs; correct?

A. Yes.

Q. If you look at the bottom chart that's the damage

calculation for administrative fees. So, this one, Mr.

Pomerantz, you calculated for the admin fees in 2012 that if

you allow FMG to calculate -- to capture some profit, 39

percent of profit after they pay all their costs, they get a

39 percent profit, if the funds -- if they return to the fund

$4.8 million; is that correct?

A. Yes.

Q. That would still allow them to cover their costs and earn

a little bit of extra money; correct?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2032

A. Yes.

Q. Okay. And if you go to 152-E, which we can put up on the

screen for ease, these are the charts we just looked at for

the amount of the admin fee retained -- I believe it's 152-E.

MR. MURPHY: Yeah, 152-E -- P-151-E. Can we

highlight the first one, Common Stock?

BY MR. MURPHY:

Q. 4.478; is that correct?

A. Yes.

Q. So that's -- that's the total fee that FMG got, 4.478;

right? After they paid the sub-administrator fee, they --

they kept 4.478; right?

A. Yes.

Q. So -- let's write that down; 4.478. And go back to the

damage chart to see how much are the damages. So, the

damages, you think they should return 4.85 million of the fee,

and they'll still have a little bit of profit, but they only

received 4.478. How can they return more than they kept by

400,000 and still earn a profit?

A. I would have to check the calculations that I did, it

would appear that there's something wrong.

Q. There would be an error in there somewhere; correct?

A. Yes.

Q. In fact, didn't we point out an error very similar to

this, a 12 percent margin in your expert report, and you

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2033

corrected it in your rebuttal report; correct?

A. Yes.

Q. And then you showed up with the incorrect chart again at

trial; correct?

A. I mean I may have accidently pulled the original chart

rather than the corrected one.

MR. MURPHY: If we can go to 151-K.

Q. This was shown to you today. So, on this one, this is

the same flavor of analysis; right? This purports to be some

damages that would allow FMG to capture some margins?

A. Yes.

Q. And these are the same thing, you excluded FMG's -- or

sorry; AXA's allocated costs and sub-advisory fees?

A. Yes.

Q. And on these, so just help me read the chart; the 50

percent, they would get 18 -- they would return $18 million to

the funds on a 50 percent margin?

A. Yes.

Q. And then 60 it goes down a little bit, 70 it goes down a

little bit, 80 goes down a little bit; and then how does it

get to 90, how does it go in half when you just move the

margin 10 percent?

A. Yeah, actually that's interesting, I asked myself the

same question when I did this and it's -- it's just in the

math basically. It just the -- there's a big dollar movement

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2034

as margins move from the break-even, down to the 90, 80, 70

range and then it levels out very quickly.

Q. And then how do you get to a negative number in Common

Stock of negative 53, that they earn -- they earned a 90

percent margin but it's a negative number?

A. Well, in this case what that would mean is -- and if you

look at that you'll see that on that row, the zero would be

somewhere around 55 percent. Right? Because 50 percent is

1.3 million, 60 percent is minus 1.9 million, so zero is

somewhere around 55; so that particular fund actually has a 55

percent margin.

Q. So your damages would be FMG is owed some money.

A. Well --

Q. Is that correct?

A. Well, we would owe you money.

Q. Correct. Well, you're not the plaintiff, but someone

would owe FMG some money for the Common Stock Index Portfolio.

A. Well, because this chart is calculating what the damages

would be at all of these different margin levels, and what

that row represents is that that particular fund is not

operating at a 90 or a 95 percent margin.

Q. Are you the director of risk management at Gordon Asset

Management?

A. Not anymore.

Q. When were you -- when did you lose your -- well, how did

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2035

you -- when did you stop being the director of risk management

at Gordon Asset Management?

A. Around 2007.

Q. Okay. Gordon Asset Management, they managed funds of

funds; is that correct?

A. Funds of hedge funds.

Q. And they manage a fund called Ageis; is that correct?

A. It's Aijed with a D.

Q. And can you spell that for Mr. Gable?

A. A-i-j-e-d.

Q. And they have two or three other funds; is that correct?

A. Well, we're talking about 2007? I don't know anything

about the current, but 2007 I -- I believe there were two, I

believe there were two other funds.

Q. And what were the names of those funds?

A. There was a Gordon Associates and a Gordon Strategic.

Q. And Gordon oversaw and monitored the underlying advisors

for that funds; is that fair?

A. Gordon's responsibility is -- yes, that's one of -- one

of the things that Gordon has to do, right.

Q. And all of the funds are managed by sub-advisors;

correct? All of the assets I mean?

A. Yes.

Q. And Gordon does due diligence on those sub-advisors?

A. Yes.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2036

Q. And the underlying sub-advisors for Gordon, they have

day-to-day investment management responsibility; correct?

A. Yes.

Q. And Gordon didn't retain any other day-to-day investment

management responsibilities; correct?

A. Other than re-allocation and cash flow, I mean that's a

responsibility of Gordon's.

Q. And they did due diligence on sub-advisors?

A. Yes.

Q. And what does Gordon charge for overseeing and monitoring

this collection of sub-advisors?

A. The fee structure was different for the fund, but there

was a base fee of maybe a half to one percent depending on the

fund, and then there's a performance -- a performance fee as

well.

Q. And one of the funds was a one percent; is that correct?

A. There were three funds, I couldn't tell you the fee of

each one, but that's sounds about right.

MR. MURPHY: Why don't we play clip 33, AXA

transcript 107.

MR. SWEETSER: Your Honor, before we play any clips,

it's my understanding, and I may be wrong, but it's my

recollection in this case that the funds we're referring to

are hedge funds, which are not controlled by law which do not

have this fiduciary doesn't exist. I would just like counsel

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2037

to clarify that, because if we're talking about apples and

oranges it may be misleading. I may be go mistaken but I'd

like some clarification on this.

MR. MURPHY: I think he testified it was exactly

what the responsibilities were. He's overseeing sub-advisors

and he's charging a fee, that's exactly at issue in this case.

MR. SWEETSER: Again, your Honor --

THE COURT: You'll have to a chance to redirect, Mr.

Sweetser, so you may play the clip.

THE WITNESS: Technically they're not called

sub-advisors, they're partnerships.

BY MR. MURPHY:

Q. Well, you say that, Mr. Pomerantz, but you used the term

sub-advisor in your deposition; correct?

A. That's because I'm using the language of the mutual fund

industry.

Q. Okay. So you called them sub-advisors, not me.

A. I'm calling them that because that's the language that's

being used in this case; legally they are not sub-advisors,

they are partnerships.

Q. And then just so I'm clear, is the fee on some of these

funds that you're overseeing sub-advisors for, where Gordon is

overseeing them, you charge one percent for some of them;

correct?

A. Yes.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2038

Q. And then on top of that you charge 20 percent of the

returns if they're above some threshold?

A. That sounds about right. I don't know the exact numbers,

but that sounds about right.

Q. So one percent is a hundred basis points; correct?

A. Yes.

Q. And that's higher than any of the funds that FMG charges

here for both FMG's fees and the sub-advisors; correct?

A. It's a completely different business.

Q. Is it correct?

A. It's apples and oranges, but I mean yeah, I don't

disagree that the fee is one percent.

Q. Do you recall talking about yesterday that you saw a

document that said FMG had delegated day-to-day investment

management functions; do you recall that?

A. I'm sorry; this was a document in evidence, or that you

indicated?

Q. I think -- you tell me, Mr. Pomerantz. So you said

yesterday that you saw some documents that you helped inform

for your opinion that FMG had delegated day-to-day investment

management responsibility; do you recall that?

A. Yes, I said that I had seen documents and I was referring

to the SAI.

Q. And could investment management mean just the decisions

of what to buy and sell within the objectives of the fund? Is

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2039

that a reasonable definition?

A. I'm sorry; what is the question?

Q. Investment management, you saw those words in the

document you relied on; correct?

A. Yes.

Q. And I want to know is a reasonable definition of

investment management there just the decisions of what to buy

and sell within the objectives of the fund.

MR. SWEETSER: Your Honor, I object to what's in the

mind of the drafter that wrote it, I mean it says what it

says. And as I understand counsel's question it has to do

with can he interpret what was in the mind of the person that

wrote it.

THE COURT: Frank, can you just repeat the question,

please?

(Question read back by the reporter.)

THE COURT: Overruled. You may answer that

question.

THE WITNESS: Are you asking me what the phrase --

THE COURT: You don't understand it?

THE WITNESS: I don't. That's why I'm seeking

clarification.

THE COURT: Can you rephrase, please? What happened

to Mr. Murphy.

MR. MURPHY: I'm just kneeling down.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2040

THE COURT: I thought I lost you.

MR. MURPHY: I fainted.

THE COURT: Exactly. Could you rephrase your

question? Dr. Pomerantz doesn't seem to understand it.

BY MR. MURPHY:

Q. So, my question was, could investment management as that

term is used, could that refer to the decisions of what to buy

and sell within the objectives of the fund?

A. When you say as that term is used, I'm just seeking

clarification of in what context; in the context of the

sentence in that document or in a conversation, or in using

that phrase somewhere else? I just want clarification or do

you want to ask me the intent of the author of the SAI?

Q. Why don't I show you -- if we can hand out a deposition

from -- a page from a deposition in the Bennett case; you

testified in that case under oath?

A. Is that Fidelity?

Q. Yes.

A. Yes.

MR. MURPHY: Defendant's Exhibit 1894.1, if we can

get Mr. Sweetser one as well.

THE COURT: What was the exhibit?

MR. MURPHY: Sorry; 1894.1.

BY MR. MURPHY:

Q. Do you recall testifying in this case, Mr. Pomerantz?

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2041

A. Yes.

Q. And if you look at page 97, in your expert report you use

the term "investment management services"; do you recall that?

So, in your expert report you use those terms in that case;

correct?

MR. SWEETSER: Your Honor, I object. Counsel is

asking about a document that I understand his client prepared,

now he's asking about another case and a phrase that was used

in an expert report by Mr. Pomerantz has nothing to do with

FMG's meaning when it included that in the document that

counsel was asking about at the start of this line of

questioning. It's completely inappropriate question and this

deposition has nothing to do with his answer with regard to

the content of what was in the document that counsel is asking

about.

MR. MURPHY: Your Honor, may be heard on that?

THE COURT: You may.

MR. MURPHY: So, we drafted the document; Mr.

Sweetser doesn't want to hear about what my witnesses think

that mean. He offers Mr. Pomerantz to interpret what he means

-- he thinks it means and he offered an opinion on it

yesterday. Now, in another case he used these exact same

words in his report to mean something that -- we agree with

his definition, it means stock selection; I should be entitled

to impeach him on that. This is exactly the statement he

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2042

testified about yesterday.

THE COURT: All right. Overruled.

BY MR. MURPHY:

Q. So, can you define that phrase for me, meaning investment

management services; correct?

A. I stick by that definition; right? If I say ultimately

the decisions of what to buy and what to sell subject to

constraints and objectives, that is investment management.

Q. Okay, thank you. And then you also talked about

proprietary funds; do you recall that?

A. Yes.

Q. And you said some of the sub-advisors have proprietary

funds?

A. All but one.

Q. And you actually pointed to some of those in your expert

report; correct?

A. Yes.

Q. Do you have P-151 there? Your expert report?

A. Yes.

Q. It's page 66.

You'll be glad to know, Mr. Pomerantz, I don't have an

outline at this point so I must be almost done; if you can

just bear with me for five minutes. Do you need it? I can

hand it up.

A. I'm successfully able to read up here.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2043

Q. Okay, fair enough. The one problem is it goes over two

pages, I want to do the Large Cap Value PLUS, then you have to

go to the next page to see the comparable fund, I think they

are kind of listed down below; right?

A. Yes.

MR. MURPHY: Do you have the next page, Marco?

Q. So the next page would be -- so Large Cap Value PLUS, you

have the proprietary fund of Alliance Bernstein APGAX;

correct?

A. Yes.

Q. Which would make sense because Alliance Bernstein's a

sub-advisor to the Large Cap Value PLUS Fund?

A. An affiliated sub-advisor.

MR. MURPHY: And so can we hand Mr. Pomerantz

DX-1918, and hand that up to the Court and Mr. Sweetser

please?

Q. So this is the prospectus for that fund; right? You see

the ticker up in the left, APGAX, the same one that appeared

in your report?

A. Yes.

MR. MURPHY: And if you can go down, Marco, to the

fees and expenses part.

Q. What's the management fee for the fund there?

THE COURT: What page are you on?

MR. MURPHY: Sorry; in the document it should be the

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2044

very first page, the kind of boxes down at the bottom.

Q. What's the management fee on that proprietary fund?

A. 75.

Q. And that -- that exceeds what the -- what FMG charges on

the fund that it oversees; correct?

A. I mean I don't -- I don't know if we're comparing apples

to apples here, I mean I'm not sure --

Q. You tell me, Mr. Pomerantz. You said this is a

proprietary fund --

MR. SWEETSER: Your Honor, may the witness tell him

before he interrupts him and asks him to tell him? He was

answering the question and he interrupted and said you tell

me. I'd appreciate if he can answer the question.

MR. MURPHY: I apologize. Go ahead, Mr. Pomerantz.

THE COURT: You may answer. I said he can answer.

MR. SWEETSER: I appreciate that, your Honor. With

respect to this document. I see that it's dated October --

THE COURT: Do you have another objection?

MR. SWEETSER: I do, your Honor. With respect to

the document I see that it's dated October 30, 2015; Dr.

Pomerantz wrote his report two years ago. I don't know how

this document and what's going on a couple of months ago have

anything to do with an opinion that he rendered that was based

upon a report that he prepared two years ago.

THE COURT: Well, we'll listen to the questions and

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2045

then you can object.

BY MR. MURPHY:

Q. Why don't I rephrase the question, Mr. Pomerantz. You

testified that each of the sub-advisors, save one, has

proprietary funds; correct?

A. Yes.

Q. And you said the Board could just go out and hire the

sub-advisor directly and get the proprietary product; correct?

A. They could.

Q. That was your point, wasn't it?

A. Yes.

Q. And in fact, here's one of the funds, and it charges 75

basis points for a management fee; correct?

A. Yeah, but this -- this is completely different.

Q. Is that correct; Mr. Pomerantz?

A. They charge 75 basis points, but I don't know what that

management fee is, I don't know what's being provided for

that, I don't know what were the result -- what were the

negotiations between the -- is this an Alliance Bernstein

fund? If I could see -- yeah. So I don't know what happened

between Alliance Bernstein the advisor and Alliance

Bernstein's board; I don't know what this fund is doing; I

don't know what the management fee is paying for; it's a

completely kind of business structure. Alliance Bernstein --

the board of Alliance Bernstein has not gone out and hired a

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2046

sub-advisor, whereas FMG's Board has gone out and hired a

sub-advisor; these are two different business models.

Q. Right, but I thought you said --

A. So why would I compare the fee of two businesses that

have very different structures.

Q. I thought your point was that this Board, the EQAT Board,

why should they hire FMG and then a sub-advisor when they

could go get the product directly from the proprietary

manager.

A. But this is not the same product that -- that FMG offers

under this name. I mean the Board of FMG could go to Alliance

Bernstein and omit FMG, they could go to Alliance Bernstein

and they could have an negotiation with them and they can buy

some product from them; I don't know if -- if this is the

product and if this is the product that they want to buy, that

conversation never happened. So I don't know what fee would

be negotiated between the Board of FMG and Alliance Bernstein.

That number is a result of a negotiation between Alliance

Bernstein the advisor, and Alliance Bernstein the board.

Q. But this is the fund you selected as a proprietary fund;

correct?

A. I actually -- well, the purpose in my report was to

illustrate that the sub-advisors in question, actually have

funds that have delivered better returns than a corresponding

FMG fund.

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Pomerantz - Cross - Murphy

United States District Court

Trenton, New Jersey

2047

Q. If you could go to P-509, it might be easier, Mr.

Pomerantz -- probably last question; just to call it up.

P-509 and it's page 5.

MR. MURPHY: Just highlight that box Large Cap Value

PLUS on the right. On the right; sorry.

Q. So we just saw that the proprietary fund that you thought

was similar to this charges 75 basis points; FMG to oversee

Alliance Bernstein in its product, charges 50 basis points,

break points down to 35, about half of what -- 37 is the final

breakpoint is half of what Alliance Bernstein charges in their

proprietary product?

A. I'm sorry, Sean -- Mr. Murphy, what is this that I'm

looking at?

Q. It's a joint stipulated exhibit that both sides says

reflects the fee schedules of the funds at issue.

A. And which fee schedule is this?

Q. This is the Large Cap Value PLUS Fund; right?

A. So that's the management fee.

Q. Correct. Which we just looked at was 75 for the

proprietary product.

A. So it's a completely different product.

Q. You said it was the proprietary fund and compared it to

this fund though.

A. The point I made in my report was that there are other

products out there that are offering better performance.

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Redirect - Pomerantz - Sweetser

United States District Court

Trenton, New Jersey

2048

If -- if you want to go down your road and argue that the

Alliance Bernstein fund is more expensive, then I would

question why is the Board at FMG satisfied with a worse return

than what Alliance Bernstein is generating for their own

proprietary funds.

MR. MURPHY: No more questions, your Honor.

THE COURT: All right, thank you.

Redirect.

(REDIRECT EXAMINATION OF STEVE POMERANTZ, PH.D., BY MR.

SWEETSER:)

Q. Mr. Pomerantz, counsel pointed out that you made an error

in 151-J; you acknowledge you made an error when you were

calculating the 39 percent profit margin?

A. On the administrative section, yes.

Q. Just in the administrative section, that's the only

section he was asking you about; right?

A. Yes.

Q. Now, the source for that was 151-E; right? Can you get

that document please?

THE COURT: What exhibit are you looking at?

MR. SWEETSER: 151-E, your Honor.

THE COURT: Thank you.

A. I'm sorry, Counselor, I have a stack of papers; can you

just tell me what that document is?

Q. 151-E, it's the comparison of FMG's administration fees

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Redirect - Pomerantz - Sweetser

United States District Court

Trenton, New Jersey

2049

to sub-administration fees.

THE COURT: Here you go.

THE WITNESS: Thank you, your Honor. Sorry.

THE COURT: I didn't write on that, did I?

THE WITNESS: Oh, no, there's a circle.

THE COURT: Okay.

BY MR. SWEETSER:

Q. Do you have that?

A. Yes.

Q. Just to confirm, there is no error in this document that

was pointed on; correct?

A. Correct.

Q. And at the end of the day in 2012, FMG was paid $39.3

million in administration fees; correct?

A. Yes.

Q. And at the same time JP Morgan, the sub-administration --

the sub-administrator was paid $3.4 million; right?

A. Yes.

Q. And that difference, those numbers are accurate; correct?

A. Yes.

Q. Counsel was asking you about the Lipper average index

fee, do you remember it was in the 12 or 13 percent range?

MR. MURPHY: Objection, your Honor; there wasn't a

Lipper average, it was an ICI reported number.

MR. SWEETSER: I'm sorry.

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Redirect - Pomerantz - Sweetser

United States District Court

Trenton, New Jersey

2050

THE WITNESS: The ICI report but they cite Lipper as

the source.

BY MR. SWEETSER:

Q. Regardless, with respect to counsel's questioning, I

understand that it's an asset weighted calculation; correct?

A. Yes.

Q. So, the smaller funds might be more, they may not be more

than what was reflected in that average; correct?

A. Well, I mean we know that smaller funds have higher fees

then the average, and larger funds are smaller than the

average.

Q. Well, your Honor may not know and I certainly don't

necessarily know, but it could be that -- I think counsel's

point was, for funds with lower -- with funds with lower

assets under management it could be a higher feet because it's

an asset weighted average; correct?

A. Yes.

Q. Let's tell the Court about what -- in the four index

funds in this case what the average assets under management

are. So if you can go to 52-B, which you referred to

throughout the case. For each of the four index funds, will

you tell the Court what the average assets under management

are in each of those four funds.

A. This is as of 2012 --

Q. So this is a few years -- a few years ago.

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Redirect - Pomerantz - Sweetser

United States District Court

Trenton, New Jersey

2051

A. Yes.

Q. So for 2012 just if you would just tell the Court the

funds and the assets under management in each of those four

funds.

A. Common Stock is 4.8 billion.

Q. And again, that's the Common Stock Index Fund?

A. Yes.

Q. And that's 4.8 billion?

A. Yes.

Q. Okay.

A. The Core Bond Index Fund is 6.4 billion.

Q. Core Bond Index Fund 6.4; is that correct?

A. Yes.

Q. Okay.

A. The Equity 500 Index Fund is 3.0 billion.

Q. Three billion. And the Intermediate Government Bond

Index Fund?

A. Is 7.4 billion.

Q. And that was back in 2012.

A. Yes.

Q. So the plaintiffs' four index funds are all multi-billion

dollar index funds; correct?

A. Yes.

Q. Counsel also pointed out to you that the ICI average did

not include variable annuities like variable annuities

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Redirect - Pomerantz - Sweetser

United States District Court

Trenton, New Jersey

2052

involved in this case; right?

A. Yes.

Q. And you acknowledged that fact.

A. Yes.

Q. Is there any difference in the investment management

services required to manage a variable annuity mutual fund as

opposed to a non-variable annuity mutual fund?

A. No.

Q. It's the exact same thing; right?

A. Yes.

Q. When counsel was asking about the fees involved in a

variable annuity mutual fund, I think at one point he started

asking about expense ratios and whether that included all the

fees and I think you said it includes all the fees; do you

remember that testimony?

A. Vaguely.

Q. Expense ratios generally include all of the fees that go

into what's charged to a mutual fund; is that correct?

A. A total expense ratio includes everything, is three

components, there's investment, administration and

distribution.

Q. Okay. Now, that's not everything with a variable

annuity, is it.

A. No.

Q. Because with variable annuities you're aware there are

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contract level fees, insurance fees, what's been called as the

product wrapper; right?

A. M & E?

Q. I'm sorry?

A. Typically called M & E.

Q. Well, M & E but there's other ones that have been

discussed in the case which I don't want to get into, but I

just want to be clear and I want you to be clear with the

Court; when we talk about a expense ratio, it's those three

fees that are being referred to, it's not the -- you know, as

Mr. Mr. Barrett had testified, it's not the billion dollar in

contract level insurance fees that are included in that, it's

just the investment management, the investment administration

and the distribution fees. Correct?

A. Yes.

Q. The contract level insurance fees are a whole another

ball game it's a whole another set of fees that FMG charges to

the contract holders; right?

A. Yes.

Q. Counsel was asking you about pricing and compliance and

your knowledge of that. Can I have you look at Plaintiff's 46

in evidence.

Do you have Plaintiff's 46? Can I direct your

attention to page 8 of this document. Do you have that

section?

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A. Yes.

Q. Do you see the section called Pricing?

A. Yes.

Q. Will you explain to the Court what that document says

about who does the pricing for the plaintiffs' mutual funds

and the other funds in the EQAT complex?

A. It says that: Information should be provided to JP

Morgan no later than 4:00 p.m. every day; for securities in

which JP Morgan cannot obtain prices from an automated pricing

service, pre-approved by AXA Equitable, the sub-advisor is

responsible for arranging the provision of a daily current

price from an independent entity; JP Morgan will contact the

independent party identified on a daily basis.

Q. Does that comport with your recollection and your

testimony that JP Morgan and/or the sub-advisors provide the

pricing information for the vast majority of the securities

involved in this case?

A. Yes.

Q. Counsel also was asking about compliance and the basis

for your understanding of that the compliance is delegated to

JP Morgan and the sub-advisors; can you please turn to page 10

of that very same document.

A. Yes.

Q. Would you please read that and tell the Court what that

document says about whether or not compliance services are

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delegated by FMG to others.

A. There's a section for daily compliance that states: That

JP Morgan fund administration will monitor holdings and

activity; JP Morgan will add an issue to a compliance log when

there are issues; JP Morgan will provide the compliance log to

the sub-advisors only when issues exist; a log will not be

sent when there are no issues; if JP Morgan detects a

violation a memo outlining the problem will be provided to the

sub-advisor.

Q. First of all, that section's entitled Compliance;

correct?

A. Yes.

Q. And that section talks about daily, monthly and quarterly

compliance obligations by JP Morgan; correct?

A. Yes.

MR. SWEETSER: Nothing further.

THE COURT: All right. You may step down, Mr.

Pomerantz. Thank you for coming today. And yesterday.

(Witness excused. )

THE COURT: Next witness?

MR. SWEETSER: I'm sorry, your Honor, the next

witness is plaintiffs' expert Phil Goldstein who we scheduled

for Tuesday.

THE COURT: So you're finished for today.

MR. SWEETSER: Finished for today.

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THE COURT: All right. Is there any other

information that you can could today?

MR. SWEETSER: Yeah, I think, your Honor, we can

probably confirm the exhibits submitted into evidence; we have

the issue of the subpoena that we served on both FMG and the

Milbank firm which perhaps we can address today.

THE COURT: All right. So let's go over exhibits.

We didn't do yesterday either; right? Are you ready?

MR. MURPHY: Yes, your Honor.

THE COURT: I don't think I went over the exhibits

yesterday; is that right? So I'll start with 128 forward.

Are we already with that, Mr. Korn? Mr. Murphy?

MR. MURPHY: Yes, your Honor.

THE COURT: I have 151-A; 151-E; did I say one?

MR. SWEETSER: You were correct, your Honor.

THE COURT: I have P-151-E; P-67; P-167; Defendant

2059. I'm not sure about that actually.

MR. SWEETSER: Your Honor, I didn't move that into

evidence, that was just for identification.

THE COURT: All right. Admitted P-151-J; admitted

P-151-K; admitted Defendant's Exhibits 1886 and 1886.1.

That's what I have.

MR. SWEETSER: Your Honor, the only one I got as

missing is P-151-I.

THE COURT: I know. No one asked me to admit it, we

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went right by it.

MR. SWEETSER: Your Honor, I looked at the

transcript about this because there was an issue today, and my

understanding from the transcript is that I did request that

it be admitted and that you did admit it. I can show it to

your Honor.

THE COURT: I don't think I admitted it.

MR. MURPHY: I don't think you admitted it. You

said -- you asked me, your Honor, why wouldn't it be within my

discretion to admit it, and I reluctantly admitted it was

within your wide discretion, but I don't think you ever

admitted it, and we do have quite a number of objections to

that exhibit.

I would add to that, your Honor, that you recall

that the plaintiffs had -- you had requested -- we had

requested and you had ordered the plaintiffs to give us the

source documents for that chart. They told us that the

documents Dr. Pomerantz relied on were really from one

document in 2008, two documents from 2009 and '10; and then

P-51 through P-54, two of those six documents, your Honor,

were -- were July 2014 and July 2015 Board materials that

didn't even exist until after Mr. Pomerantz created his

report. They couldn't possibly have been the source data.

Mr. Pomerantz said that he used annual reports, none of these

documents are annual reports. And we've been unable to match

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up any of the asset data in his work papers to any of the

numbers that appear in these various source documents.

I would also note that we talked about his analysis

starting in 2007; the earliest document they produce is

documents that shows assets for 2008, so we still don't have a

source document for the beginning assets. The document is not

reliable at all at this point. I believe there are several

errors with it; it's labeled October 12th, not May 12th which

Mr. Pomerantz admitted was the case. And if it does go back

May 12th, 2012 for five years, I would note that it goes backs

to May 2007; the relevant time period here is, you know, mid

2010 to 2014 and they're trying to put in these "losses" based

on faulty data with no source documentation for the bulk of

that period is not even an issue in the case.

MR. SWEETSER: Your Honor, if I may, what counsel

forget to mention is he asked me this after the deposition,

and a year or so ago I gave him exactly what I gave him again

yesterday. He's had the information, the documents go back to

the time period, the Court can obviously attach whatever

weight the Court wants to attach to it.

And your Honor, yesterday after I moved it in and

counsel objected and your Honor said, and I've got it right

here, it's page 1895 of the record, and you were telling Mr.

Murphy: Let's just stick with the one issue for now Mr.

Murphy and we'll get to the others; so Mr. Murphy, with regard

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to this chart I understand all of your criticisms of it, but I

can admit it into evidence and what weight I give to the chart

would be a little different nature.

So I interpreted that to mean that you admitted the

document.

THE COURT: Well, I clearly have in my notes -- I

know I said that to Mr. Murphy, but I clearly have in my notes

that I didn't submit it into evidence, because you went on to

your next question. So I just let it go.

MR. SWEETSER: Well, your Honor --

THE COURT: But at any rate, you're making that

motion at the present time.

MR. SWEETSER: Correct, your Honor.

THE COURT: So, my view is that I understand all of

Mr. Murphy's reasons, and quite frankly the chart itself, just

from my review of it, the dollar loss was really a comparison

of returns between a couple of different funds or against a

couple different benchmarks and a Lipper whatever it is; it's

a much different than the caption of it portrays.

At any rate -- and as I had indicated to Mr. Murphy,

I'll give it whatever weight I believe it really deserves, so

I'll admit 151-I. And the reason I'm doing it, it represents

the work of Mr. -- Dr. Pomerantz, which we'll see how the

Court assesses that in terms of credibility and things of that

nature as we go through our determination.

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MR. MURPHY: Thank you, your Honor.

(Plaintiff's Exhibit 151-I was marked into

evidence.)

MR. SWEETSER: Thank you, your Honor.

THE COURT: All right. Any other issues?

MR. SWEETSER: Your Honor, and then the one other

order of business was again the Court's handling of the

subpoenas that were issued on the Milbank firm and FMG. Just

to refresh the Court's recollection, subpoenas were issued

with respect to the creation of the summary charts that the

defendants include in the Board materials. Ms. Louie at a

minimum during her testimony admitted that she still has an

e-mail from Mr. Benedict with changes to one of the three

charts; one of those changes -- the only one she could recall

as your Honor may recall would be a sentence was we do X, Y,

Z, and other things, and Mr. Benedict had suggested that

putting in something that embellished that description of the

services. She didn't recall anything else that was in that

document.

Because it's a document that the Court has admitted

into evidence and because the documents that we are seeking go

to the creation of those documents, you know, we would request

that the Court at a minimum order the defendant and defense

counsel to at least provide to the Court for an in camera

inspection any documents that were exchanged between the

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parties, any interoffice e-mails between the Milbank firm

going into the creation of these summary charts that again,

your Honor, are in evidence and were provided to the Board.

THE COURT: Mr. Korn?

MR. KORN: Your Honor, I just want to clarify one

thing; is that -- is that all that plaintiffs are seeking

right now, is that document -- those documents? Are they

withdrawing their efforts to -- to call as witnesses Milbank

witnesses, and FMG witnesses on this issue?

MR. SWEETSER: Your Honor, so first of all, it's not

one document, I don't know what other documents there are; it

would be whatever Milbank exchanged amongst themselves, you

know, with respect to input for the creation of the summary

charts. However, we certainly don't want to burden the

Milbank firm by taking any depositions unless we deem it

necessary.

So again, I think the first thing to do is we'd like

to see the documents, or again at a minimum if your Honor's

not inclined to do that, have your Honor do an in camera

inspection. If your Honor believes the plaintiffs are

entitled to the documents we'd like to see whatever there is,

and we certainly don't want to create anymore work for anyone

in this case, and if it's not necessary to take a deposition

then we don't do so. But until we see the documents we can't

make a determination as to whether or not we want to take a

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deposition.

MR. KORN: Well, your Honor, the subpoenas that were

issued asked for more than a deposition, they asked for trial

testimony and they asked for documents. We filed timely

objections to both of those subpoenas. Frankly after the

testimony of both Mr. Joenk and Ms. Louie, I thought this

issue would have disappeared, because Mr. Joenk testified

explicitly with regard to the provision of the side-by-side

charts to the Board at the Board's request; Ms. Louie

testified in detail with regard to the fact that she created

the charts, she received some input from Milbank -- and that's

frankly a fact that plaintiffs have known about for a long

time. They sent a request for admission, they were well aware

that Milbank was involved in reviewing these charts.

These are three documents out of thousands --

frankly hundreds of thousands of documents; are we going to

have this analysis with regard to every document that was

provided to the Board? Just by the fact that litigation had

been filed doesn't mean that plaintiffs are entitled to an

inquiry with every document that Milbank reviewed that

eventually went to the Board. I mean it's frankly to be

expected that if litigation has been filed putting an issue --

what the Board does that Milbank would be involved in the

process, and at least review the materials that it provided to

the Board.

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This is nothing but a fishing expedition, it's a

waste of the Court's time and energy, and frankly we don't

believe there's -- it is appropriate in any regard that they

should be able to have discovery with respect to the creation

of these documents, because this document is no different than

thousands of documents that would have been --

THE COURT: When you say the creation of the

document, what document -- can you just give me a reference as

to what document you're talking about?

MR. SWEETSER: Certainly, your Honor. After this

case was initiated, FMG's in-house counsel, with the admitted

input of the Milbank firm, including comments, created a

side-by-side chart. It was called -- I'll call that one the

management side-by-side chart, because after we amended the

complaint they then created two other similar type documents.

It's a chart that has on one side FMG does X, and

then on the other side the sub-advisors, you know, do Y. And

obviously in our view it is very self-serving document that

plays up what FMG does as opposed to the delegation of the

services to the sub-advisor.

A year later we amend the complaint to add our

administration claim, shortly thereafter there is an

administration chart, side-by-side chart created, again by the

in-house legal department. Now, I heard what Ms. Louie said,

Ms. Louie said that that one, she doesn't recall Mr. Benedict

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or anyone else in the Milbank firm having any input to. But

that's contrary to requests for admissions that they responded

to saying that input and comment was made by the Milbank firm

with regard to all three charts. And when I say three charts,

after they did the administration side-by-side chart they then

did another side-by-side chart which included the

administration services and the management service on one

chart.

So these are three separate side-by-side charts that

plaintiffs believe -- plaintiffs believe deliberately

understate the services delegated to FM -- to sub-advisors and

JP Morgan; that they admit in requests for admission they were

involved in the review and comment on. We heard one comment,

the only comment that I know about is -- is exactly what we're

talking about. I don't know if your Honor recalls Ms. Louie's

testimony and I don't recall specifically, but I do recall she

said was there was a description that was sent over to the

Milbank firm about a level of services, and Mr. Benedict

specifically said to add a word in to, you know, embellish and

increase the number of services.

And your Honor, given that these charts are provided

to the Board, given the involvement here, we're not asking for

every single document; I'm not exactly sure what Mr. Korn's

argument pertains to. All we're asking about are documents

relating to the exchange of information between the FMG and

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the Milbank firm, any internal e-mails by the Milbank firm

that go into the creation of these three documents to -- that

were given to the Board and we believe were relied on by the

Board, experts relied on them. And again, we believe we're

entitled to know what input Milbank had in saying that the

services should be more -- you know, should be depicted as

being more than what they are.

MR. KORN: Your Honor, the one thing I want to

continue to emphasize is that this was a document that was

created at the request of the Board. It was not a document

created for the purposes of litigation. There's nothing

unique or different about these side-by-side charts.

And I do want to clarify one thing also; with regard

to the request for admissions that indicated that Milbank was

involved in the creation of all three charts or reviewed all

three charts, we have confirmed that we were only asked to

comment or did comment only on that one chart. So to the

extent that the request -- the response to the request for

admission was inaccurate with regard to the other two charts,

that was the case, we were only involved with regard to that

one chart.

THE COURT: Was that the management chart?

MR. KORN: That was the management charge. And we

did provide comments and Ms. Louie testified to that fact

already. And frankly --

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THE COURT: So that was her conversation with Mr.

Benedict I believe it was?

MR. SWEETSER: Your Honor, I believe it was an

e-mail communication and she could recall one of -- I don't

remember; I think she said that there were multiple comments

that he said, she could remember the one.

MR. KORN: Your Honor, the other point that I would

make here are these charts were exchanged in discovery, they

were exchanged prior to the depositions of the independent

trustees, questions could have been asked with regard to this.

This is -- you know, they tried to do this with regard to JP

Morgan earlier in the case, they're trying again to do with

regard to Milbank and FMG with regard to these documents.

THE COURT: So if they were disclosed to the Board

and to others, what's the problem with the document itself?

Are they e-mails? I don't understand the nature of it.

MR. KORN: My understanding of what Mr. Sweetser is

looking for is that consistent with Ms. Louie's testimony

where she said that she had sent the side-by-side chart for

Mr. Benedict's review --

THE COURT: We went through that.

MR. KORN: Right. What they're looking for is Mr.

Benedict's response with his suggested revisions to the chart;

that's what they're looking for which we believe that they're

not entitled to.

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THE COURT: All right. And why don't you think

they're entitled to that?

MR. KORN: Your Honor, they're not entitled to it

because number one, it's something that could have been asked

for during the course of discovery; discovery is over. This

is a discovery request, that's all it is.

THE COURT: Oh, I see.

MR. KORN: And there's nothing here that frankly is

relevant to the issues in this case. As I said at the

beginning of my argument, you know, if we start going down the

path that they're entitled to look at the creation of every

document that was presented to the Board, then we're never

going to end this case.

MR. SWEETSER: Your Honor --

THE COURT: Don't threaten that.

(Laughter.)

MR. SWEETSER: Your Honor, as I understand counsel's

comments to the Board, we're talking about one document. So I

don't know what's being suggested about this taking up too

much of the Court's time or this being an never ending fishing

expedition. We're talking about one document, if Mr. Korn's

comments are correct; number one.

Number two, this goes to the heart of the matter; it

goes to the misinformation that's provided to the Board of

Directors by the defendants in this case. It goes to

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counsel's suggestion that embellishing comments are included

in a description of their services. We believe that the

evidence is going to show at the end of the day that again,

the vast majority of the substantive investment management and

administration services are delegated to others.

Your Honor's already heard plenty of evidence about

the disproportionate fees that they receive, and this is just

part of it. You know, lawyers, what do you think about this;

oh, you know what, let's put in some good stuff here and

there. I believe Ms. Louie's testimony was also -- I know

with regard to the one comment that I could recall that she

could recall that was included in the charts.

So these aren't comments that were not incorporated

into the charts, they were incorporated into the charts, and

we are entitled to know how these charts that are given to the

Board were created. There's no citations in these charts,

none whatsoever, they're given to the Board, and again, you're

going to hear experts come in and testify -- that's how we

found out; we didn't even know during fact discovery, nor did

we have any reason to suspect that the Milbank firm is

consulted on telling FMG what it does, and consulting FMG on

what it should tell the Board about what it does. We had no

reason to suspect that.

The second we found out we didn't want to jump to

any conclusions after the expert revealed that fact; we did a

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request for admissions which we believe was the proper

procedure to follow; they admitted, we then made a request to

the Court to get that information; the request was denied as

being after discovery and we subpoenaed for here -- and as you

know, Judge Arpert did allow us to issue those subpoenas and

that's the subpoena that is before the Court right now.

MR. KORN: Your Honor, I would also emphasize that

we have briefed this issue in the past, and these are

communications that are subject to the attorney/client

privilege. You know, I don't want to create this -- you know,

something into a federal case here more than it already is.

And there is a willing to our part with regard to making sure

we don't waive the attorney/client privilege to produce the

communications that Ms. Louie talked about to Mr. Sweetser,

limited to those communications.

With the understanding, your Honor, that that's the

end of the inquiry. I mean there is no basis here to, you

know, call as a trial witness, you know, Mr. Benedict or

anybody from the Milbank firm or anything arising out of that.

But with regard to that limited waiver of the attorney/client

privilege we are willing to, you know, end this issue and

produce those limited documents.

THE COURT: So, I don't know what question you want

me to answer now.

MR. KORN: Well, I think that -- I would think that

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7

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10

11

12

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15

16

17

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20

21

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03:31

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United States District Court

Trenton, New Jersey

2070

would resolve the issue, is that, you know, Mr. Sweetser wants

the documents that Ms. Louie testified to, we are willing to

provide those subject to, you know, making sure that the

attorney/client privilege would not be waived in that

instance.

THE COURT: Oh, I see. So with regard to if you

request Mr. Benedict to testify?

MR. KORN: Well, right. And frankly, you know,

there's a lot of case law out there, I don't need to go into

it right now, that information that you can get through fact

witnesses, you know, and you don't have to get to a law firm

that's the way you should go. And so there's no reason why

Ms. Louie's testimony is not sufficient to educate plaintiff

on this issue.

THE COURT: To me it seems that there's been more

than sufficient discovery, there's a ton of documents. And I

actually kind of agreed with your point, Mr. Korn, that this

is, you know, an 11th hour discovery request by subpoena. I

don't see why we would go through that. And I don't see

where having any attorneys from Milbank testify would clear up

any of the issues that are before the Court. So, my view is

if you wish to disclose the details of that one document or

two documents, whatever it is, from Milbank, and preserve your

right on lawyer/client privilege issues, I can understand

that. So, Mr. Sweetser would have to come in with a

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 119 of 143 PageID: 17419
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3

4

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8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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United States District Court

Trenton, New Jersey

2071

significant application for me to change that up. So, if

that's a little bit of direction for you --

MR. KORN: That's fine, your Honor, we'll proceed in

that direction, and we'll be able to get that to Mr. Sweetser

over the weekend.

THE COURT: All right. Thank you.

All right. So have a good weekend.

(Counsel say thank you.)

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 120 of 143 PageID: 17420
$

$10,000 [2] - 2011:18,

2011:19

$18 [1] - 2033:16

$49 [1] - 2031:13

$50 [1] - 2020:18

$864,000 [1] - 1978:8

'

'10 [1] - 2057:19

/

/S [1] - 1952:24

0

08608 [1] - 1952:15

1

1 [5] - 2019:19,

2020:3, 2020:5,

2020:7, 2020:8

1.06 [3] - 1977:3,

1977:17, 1977:25

1.2 [2] - 2015:9,

2015:12

1.3 [4] - 2015:11,

2015:12, 2016:9,

2034:9

1.4 [3] - 2009:2,

2009:11, 2020:9

1.41 [1] - 2024:17

1.9 [1] - 2034:9

10 [13] - 1975:1,

1975:2, 2020:4,

2021:12, 2021:14,

2021:22, 2023:3,

2023:5, 2023:6,

2024:7, 2033:22,

2054:21

100 [1] - 2024:21

1000 [4] - 2005:17,

2005:18, 2005:23,

2007:9

107 [1] - 2036:20

10:30 [1] - 1955:16

10th [2] - 1955:6,

2023:2

11 [4] - 2017:4,

2017:11, 2018:3,

2022:14

11-4194 [1] - 1952:5

116,000 [2] - 2030:18,

2031:2

11th [2] - 1955:6,

2070:18

12 [15] - 1952:20,

1960:16, 1991:8,

2017:2, 2017:3,

2017:4, 2017:10,

2018:2, 2018:3,

2018:7, 2022:14,

2032:25, 2049:22

12(b)(1 [2] - 2023:12,

2025:2

12(b)(1)s [1] - 2025:20

124.6 [1] - 1984:2

128 [1] - 2056:11

12:00 [2] - 1955:4,

1955:17

12th [3] - 2058:8,

2058:10

13 [8] - 1992:21,

1998:23, 2017:2,

2017:3, 2017:4,

2018:3, 2018:7,

2049:22

13-312 [1] - 1952:10

133 [1] - 2023:17

14.261 [1] - 2028:14

140 [2] - 1988:4,

1988:20

141 [1] - 2024:17

147.2 [1] - 1981:4

151 [1] - 2027:10

151-A [5] - 1983:18,

1983:25, 2027:5,

2027:7, 2056:14

151-E [4] - 2048:18,

2048:21, 2048:25,

2056:14

151-I [4] - 1954:13,

2012:18, 2059:22,

2060:2

151-J [10] - 1954:10,

1968:20, 1971:12,

1971:14, 1971:15,

1975:4, 1978:20,

1981:19, 1982:8,

2048:12

151-K [4] - 1954:11,

1982:9, 1984:17,

2033:7

151-L [1] - 1960:23

152-E [3] - 2032:2,

2032:4, 2032:5

16 [1] - 2028:11

16.6 [1] - 2028:14

162 [1] - 1994:4

164 [1] - 1971:10

17 [2] - 2003:5, 2003:7

172 [1] - 1996:3

18 [1] - 2033:16

180 [1] - 1996:4

186 [1] - 1998:23

1886 [7] - 1954:12,

2010:9, 2010:20,

2010:24, 2011:3,

2011:6, 2056:21

1886.1 [6] - 1954:12,

2010:10, 2010:20,

2010:25, 2011:3,

2056:21

1894.1 [2] - 2040:20,

2040:23

1895 [1] - 2058:23

18th [1] - 1955:6

194 [1] - 1991:8

1955 [1] - 1954:2

1956 [1] - 1954:3

197-A [2] - 1959:16,

1962:7

1981 [1] - 1954:10

1984 [1] - 1954:11

1985 [1] - 1954:4

19th [1] - 1955:7

2

2 [5] - 1996:4, 2009:9,

2019:19, 2020:3,

2020:17

2,500 [1] - 2024:4

2,500th [1] - 2023:20

2,501 [1] - 2024:4

2.5 [5] - 2013:5,

2013:6, 2013:8,

2014:10, 2014:16

2.6 [1] - 2009:11

20 [1] - 2038:1

2000 [1] - 1957:23

2005 [1] - 1958:21

2005/2006 [1] - 1964:4

2006 [2] - 1958:21,

1960:4

2007 [15] - 2011:14,

2012:8, 2012:18,

2013:3, 2013:9,

2014:8, 2014:10,

2014:17, 2015:11,

2016:10, 2035:3,

2035:12, 2035:13,

2058:4, 2058:11

2008 [2] - 2057:19,

2058:5

2009 [1] - 2057:19

2010 [4] - 1969:1,

1982:5, 2013:17,

2058:12

2011 [2] - 1954:12,

1982:6

2012 [18] - 1957:23,

1969:2, 1970:11,

1970:16, 1979:13,

1981:3, 1982:6,

1983:13, 1984:7,

2011:14, 2012:4,

2031:18, 2049:13,

2050:24, 2051:2,

2051:19, 2058:10

2013 [3] - 2017:16,

2017:19, 2018:6

2014 [2] - 2057:21,

2058:12

2015 [2] - 2044:20,

2057:21

2016 [1] - 1952:13

203 [2] - 2030:14,

2030:17

2048 [1] - 1954:5

2059 [1] - 2056:17

2060 [1] - 1954:13

21 [3] - 1977:11,

1978:11, 1978:19

216 [1] - 1992:21

22.1 [3] - 1977:2,

1977:12, 1977:24

22nd [1] - 1955:7

23 [1] - 2028:14

2390 [1] - 2028:12

23rd [1] - 1955:7

25 [1] - 2009:7

251 [1] - 2002:11

28 [1] - 1952:23

29 [1] - 1952:13

2:00 [1] - 2004:12

2nd [1] - 1955:15

3

3 [6] - 1975:2,

2019:20, 2020:3,

2020:17, 2030:22

3,500 [2] - 1994:22,

1994:25

3.0 [1] - 2051:15

3.1 [1] - 2030:23

3.4 [1] - 2049:17

3.59 [1] - 2007:11

30 [1] - 2044:20

31 [2] - 2015:11

33 [1] - 2036:19

35 [1] - 2047:9

36(b [2] - 1985:14,

1985:17

37 [1] - 2047:9

39 [25] - 1969:3,

1969:6, 1969:11,

1970:17, 1971:3,

1971:16, 1971:19,

United States District Court

Trenton, New Jersey

2072

1972:2, 1975:10,

1975:12, 1975:16,

1976:16, 1978:13,

1978:15, 1978:23,

1979:23, 1980:18,

1981:6, 1982:9,

1982:11, 2031:10,

2031:19, 2031:21,

2048:13

39.3 [1] - 2049:13

4

4 [1] - 2020:3

4.478 [5] - 2032:8,

2032:10, 2032:12,

2032:14, 2032:18

4.8 [3] - 2031:22,

2051:5, 2051:8

4.85 [1] - 2032:16

40 [2] - 1970:18,

2000:16

400,000 [1] - 2032:19

402 [1] - 1952:14

4211 [2] - 1976:18,

1976:21

441 [1] - 1970:2

46 [2] - 2053:21,

2053:23

467.1 [1] - 2013:13

48 [2] - 2017:8,

2025:11

4:00 [1] - 2054:8

4th [2] - 1955:4,

1955:17

5

5 [2] - 1994:4, 2047:3

5,000 [4] - 2023:20,

2024:14, 2024:15

5,001 [1] - 2024:3

50 [7] - 1976:2,

1982:11, 1995:20,

2033:15, 2033:17,

2034:8, 2047:8

500 [2] - 2013:18,

2051:15

52 [1] - 2030:17

52-B [5] - 1974:13,

1974:16, 1976:11,

2030:14, 2050:20

5286 [1] - 2014:5

53 [1] - 2034:4

54 [1] - 1994:3

55 [3] - 2034:8,

2034:10

551 [1] - 2008:20

564 [1] - 2015:6

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 121 of 143 PageID: 17421
58 [1] - 1998:22

584 [1] - 2015:6

591 [1] - 2009:3

5th [3] - 1955:4,

1955:5, 1955:17

6

6 [2] - 2028:18,

2028:24

6.4 [2] - 2051:11,

2051:12

60 [3] - 1982:11,

2033:19, 2034:9

61 [1] - 1991:7

62.3 [2] - 1984:4,

1984:6

66 [1] - 2042:20

67 [1] - 1992:20

7

7 [3] - 1975:2, 2020:4,

2030:2

7.4 [1] - 2051:18

70 [4] - 1975:2,

1982:11, 2033:19,

2034:1

700 [1] - 2014:14

705 [2] - 2014:15,

2015:5

705.347 [1] - 2014:14

728,000 [1] - 2030:2

75 [5] - 2044:3,

2045:12, 2045:16,

2047:7, 2047:19

753 [1] - 1952:23

77 [4] - 2023:2,

2023:4, 2023:7,

2023:10

79 [5] - 2017:25,

2018:2, 2018:7,

2020:23, 2025:23

8

8 [2] - 2020:4, 2053:24

80 [6] - 1982:11,

1984:10, 2020:8,

2021:24, 2033:20,

2034:1

800,000 [2] - 1960:5,

2009:5

801(d)(1)(A [1] -

2001:25

801(d)(1)(A) [1] -

1988:18

81 [2] - 2001:6,

2002:11

856 [1] - 1952:25

889-4761 [1] - 1952:25

8th [1] - 1955:6

9

9 [1] - 1988:21

90 [6] - 1982:12,

1985:11, 2033:21,

2034:1, 2034:4,

2034:21

9079 [1] - 1970:3

90th [1] - 2024:6

95 [1] - 2034:21

97 [1] - 2041:2

99 [1] - 2020:6

9th [1] - 1955:6

A

A-i-j-e-d [1] - 2035:10

able [4] - 2009:1,

2042:25, 2063:4,

2071:4

absolutely [3] -

1962:23, 1967:9,

1993:2

accept [2] - 1961:17,

2015:10

accidently [1] - 2033:5

account [7] - 1959:25,

1961:4, 1961:25,

1962:14, 1962:23,

1963:25, 2030:18

accountant [3] -

1972:8, 1973:4,

1973:25

accountants [1] -

1973:8

accounting [6] -

1971:24, 1972:5,

1972:6, 1973:7,

2029:5

accurate [3] -

1987:11, 1990:10,

2049:19

acknowledge [2] -

1967:17, 2048:12

acknowledged [1] -

2052:3

acting [2] - 1985:11,

1987:13

actively [2] - 2019:5,

2022:22

activity [1] - 2055:4

actual [5] - 1975:13,

1978:13, 1978:19,

1996:14, 2025:3

add [6] - 1955:8,

2024:15, 2055:4,

2057:14, 2063:21,

2064:19

addition [1] - 1966:23

address [3] - 1961:20,

1972:23, 2056:6

adjusted [1] - 2006:1

adjustment [2] -

2005:25, 2030:12

adjustments [4] -

1971:23, 1971:24,

2029:17, 2029:20

admin [3] - 2025:25,

2031:18, 2032:4

administration [17] -

1979:3, 1980:18,

1981:7, 1983:5,

2028:4, 2048:25,

2049:1, 2049:14,

2049:16, 2052:20,

2053:13, 2055:3,

2063:22, 2063:23,

2064:5, 2064:7,

2068:5

administrative [10] -

1980:4, 1980:19,

1993:24, 2025:3,

2025:19, 2028:2,

2028:3, 2031:17,

2048:14, 2048:15

administrator [7] -

1980:5, 1980:6,

1994:17, 1996:2,

2000:22, 2032:11,

2049:17

administrator/sub [1]

- 1994:10

admission [3] -

2062:13, 2064:12,

2065:19

admissions [3] -

2064:2, 2065:14,

2069:1

admit [6] - 2056:25,

2057:5, 2057:10,

2059:2, 2059:22,

2064:12

admitted [16] -

1981:18, 1984:15,

2011:2, 2056:20,

2056:21, 2057:5,

2057:7, 2057:8,

2057:10, 2057:12,

2058:9, 2059:4,

2060:12, 2060:20,

2063:11, 2069:2

Admitted [1] - 2056:20

advisor[24] - 1975:21,

1976:4, 1976:5,

1977:22, 1980:21,

1985:17, 1987:5,

1994:10, 1994:17,

1997:4, 1997:6,

1999:18, 2037:14,

2043:12, 2043:13,

2045:8, 2045:21,

2046:1, 2046:2,

2046:7, 2046:19,

2054:10, 2055:9,

2063:20

advisors [32] -

1973:20, 1974:2,

1975:25, 1987:21,

1989:11, 1989:14,

1990:17, 1990:24,

1993:13, 2035:17,

2035:21, 2035:24,

2036:1, 2036:8,

2036:11, 2037:5,

2037:11, 2037:17,

2037:19, 2037:22,

2038:8, 2042:12,

2045:4, 2046:23,

2054:15, 2054:21,

2055:6, 2063:17,

2064:11

advisory [18] -

1971:21, 1971:23,

1975:17, 1977:17,

1977:25, 1979:7,

1979:8, 2025:4,

2027:22, 2027:25,

2028:12, 2028:20,

2029:4, 2029:23,

2030:8, 2030:21,

2031:11, 2033:13

affiliated [1] - 2043:13

afield [1] - 2000:6

afternoon [3] -

1955:1, 1955:10,

1985:8

Ageis [1] - 2035:7

aggregate [2] -

1969:8, 1969:20

ago [6] - 2007:22,

2044:21, 2044:22,

2044:24, 2050:25,

2058:17

agree [5] - 1992:1,

2003:23, 2013:23,

2019:9, 2041:23

agreed [1] - 2070:17

ahead [2] - 1958:11,

2044:14

Aijed [1] - 2035:8

al [3] - 1952:3, 1952:6,

1952:8

Alliance [16] - 2043:8,

2043:11, 2045:19,

United States District Court

Trenton, New Jersey

2073

2045:21, 2045:24,

2045:25, 2046:11,

2046:12, 2046:17,

2046:18, 2046:19,

2047:8, 2047:10,

2048:2, 2048:4

allocate [1] - 1962:16

allocated [3] -

1960:13, 2031:14,

2033:13

allocates [1] - 1956:13

allocating [4] -

1956:6, 1956:22,

1956:25, 1968:4

allocation [7] -

1956:5, 1956:20,

1962:17, 1964:17,

1967:25, 1998:15,

2036:6

Allow [1] - 1964:11

allow [8] - 1957:8,

1961:5, 1965:5,

1974:4, 2031:19,

2031:24, 2033:10,

2069:5

allowed [3] - 1973:18,

2001:11, 2002:3

almost [5] - 2006:7,

2006:16, 2020:4,

2029:21, 2042:22

ALSO [1] - 1953:15

altered [2] - 2025:2,

2025:3

alternative [1] -

2007:16

ambiguous [1] -

2019:7

amend [1] - 2063:21

amended [1] -

2063:14

American [2] - 1986:1,

2027:2

amount [10] - 1973:15,

1978:22, 1981:8,

1984:1, 2012:20,

2015:14, 2027:22,

2028:16, 2029:1,

2032:4

analysis [20] - 1958:3,

1958:21, 1960:24,

1968:21, 1996:20,

2011:13, 2011:17,

2012:3, 2012:18,

2012:24, 2014:10,

2016:19, 2020:21,

2025:1, 2026:14,

2030:20, 2033:9,

2058:3, 2062:17

analyze [1] - 1968:5

ancillary [2] - 1989:2,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 122 of 143 PageID: 17422
1989:4

ANN [1] - 1952:3

annual [7] - 1993:11,

1995:2, 2011:17,

2011:22, 2013:24,

2057:24, 2057:25

annuities [5] -

2018:17, 2018:22,

2051:25, 2052:25

annuity [4] - 2052:6,

2052:7, 2052:12,

2052:23

answer[18] - 1988:2,

1990:1, 1990:21,

1993:19, 1994:13,

2000:14, 2002:2,

2002:6, 2002:20,

2012:2, 2014:21,

2015:22, 2039:17,

2041:13, 2044:13,

2044:15, 2069:24

Answer [2] - 1989:24,

1996:10

answered [2] -

1999:22, 2001:13

answering [2] -

2012:6, 2044:12

answers [3] - 1989:20,

1990:6, 1991:19

APGAX [2] - 2043:8,

2043:18

apologize [2] -

2010:12, 2044:14

appear[4] - 2010:16,

2013:16, 2032:21,

2058:2

appeared [1] -

2043:18

apples [4] - 2037:1,

2038:11, 2044:6,

2044:7

applicable [1] -

1983:2

application [6] -

1957:7, 1964:21,

1965:13, 1968:17,

1975:9, 2071:1

applied [4] - 1978:23,

1979:23, 1981:6,

1981:11

applies [1] - 1970:22

apply [4] - 1970:21,

1979:12, 1982:17,

1983:9

applying [1] - 1978:23

appreciate [2] -

2044:13, 2044:16

appropriate [6] -

1973:23, 1982:22,

2005:22, 2025:6,

2026:4, 2063:3

approved [1] -

2054:10

arbitrate [1] - 1999:6

area [1] - 1968:17

argue [1] - 2048:1

argument [2] -

2064:24, 2067:10

arises [3] - 1995:8,

1995:10

arising [1] - 2069:19

ARNOLD [1] - 1953:4

Arpert [1] - 2069:5

arranging [1] -

2054:11

art [1] - 1996:17

article [1] - 2004:3

articles [1] - 1972:6

artificially [2] -

1976:6, 1980:15

Artisan [1] - 1986:11

aside [1] - 1967:13

aspect [2] - 1979:5,

2026:17

assesses [1] -

2059:24

asset [15] - 2014:16,

2015:18, 2018:15,

2019:2, 2019:8,

2019:10, 2019:22,

2020:5, 2020:12,

2020:15, 2024:10,

2050:5, 2050:16,

2058:1

Asset [3] - 2034:22,

2035:2, 2035:4

assets [34] - 2011:14,

2012:5, 2012:7,

2012:9, 2012:19,

2013:1, 2013:3,

2013:8, 2014:9,

2014:13, 2014:18,

2015:2, 2015:4,

2015:8, 2015:10,

2015:15, 2016:8,

2016:16, 2016:19,

2016:20, 2019:25,

2020:2, 2020:6,

2020:8, 2021:16,

2021:19, 2035:22,

2050:15, 2050:19,

2050:22, 2051:3,

2058:5, 2058:6

assigned [1] -

1975:16

assimilate [1] - 1960:1

assist [1] - 1962:11

assistance [2] -

1958:8, 1968:6

ASSOCIATE [1] -

1953:15

associated [1] -

1976:2

Associates [2] -

1985:22, 2035:16

assume [4] - 2015:19,

2019:16, 2019:17,

2028:24

assumed [1] - 2013:8

assuming [2] -

1982:8, 2018:7

assumption [2] -

2013:4, 2013:10

ATM [1] - 1992:6

attach [2] - 2058:19,

2058:20

attached [2] -

1960:25, 1962:1

attention [4] - 1970:2,

2020:15, 2020:16,

2053:24

attorney/client [4] -

2069:9, 2069:13,

2069:20, 2070:4

attorneys [1] -

2070:20

attributable [2] -

1959:11, 1976:17

attributed [1] -

1964:16

augment [1] - 1965:10

author [1] - 2040:13

authoritative [3] -

2026:16, 2026:20,

2026:21

automated [1] -

2054:9

available [4] - 1964:8,

1969:9, 1970:23,

2018:16

average [28] -

1969:12, 1970:16,

2016:15, 2016:20,

2016:24, 2017:13,

2019:1, 2019:2,

2019:5, 2019:8,

2019:10, 2019:11,

2019:12, 2019:22,

2020:5, 2020:15,

2024:11, 2024:13,

2024:20, 2049:21,

2049:24, 2050:8,

2050:10, 2050:11,

2050:16, 2050:19,

2050:22, 2051:24

averages [1] - 2018:16

avoid [1] - 1961:10

award [1] - 1983:1

aware [6] - 1989:5,

2003:17, 2016:17,

2026:8, 2052:25,

2062:13

AXA [30] - 1952:6,

1952:10, 1953:16,

1988:20, 1991:7,

1992:20, 1993:13,

1994:3, 1995:4,

1995:6, 1995:16,

1996:3, 1996:10,

1996:16, 1996:22,

1996:25, 1997:3,

1997:5, 1997:9,

1998:14, 1998:22,

2001:6, 2002:11,

2003:6, 2028:24,

2031:13, 2036:19,

2054:10

AXA's [3] - 1996:12,

1997:10, 2033:13

B

backs [1] - 2058:10

backup [1] - 2010:21

backwards [1] -

2011:14

ball [1] - 2053:17

Barrett [14] - 1956:6,

1957:22, 1958:9,

1958:14, 1960:15,

1961:3, 1964:23,

1965:5, 1965:10,

1966:9, 1968:1,

1972:9, 1973:9,

2053:11

Barrett's [7] - 1959:24,

1962:7, 1962:16,

1963:6, 1964:2,

1964:15, 1972:3

base [1] - 2036:13

based [19] - 1964:17,

1965:10, 1967:21,

1969:3, 1971:16,

1973:1, 1973:14,

1973:19, 1974:1,

1974:10, 1974:20,

1975:16, 1993:11,

2012:22, 2016:19,

2029:17, 2029:20,

2044:23, 2058:12

basic [1] - 1975:3

basis [27] - 1964:8,

1971:2, 1972:7,

2017:2, 2017:10,

2017:11, 2019:18,

2019:19, 2019:20,

2020:4, 2021:12,

2021:14, 2021:22,

2022:14, 2023:4,

2023:7, 2024:17,

United States District Court

Trenton, New Jersey

2074

2038:5, 2045:13,

2045:16, 2047:7,

2047:8, 2054:13,

2054:19, 2069:17

Bates [4] - 1970:3,

1976:18, 1976:21,

2014:4

bear [1] - 2042:23

befuddles [1] - 1996:1

beginning [3] -

2012:8, 2058:6,

2067:10

behind [2] - 2018:24,

2031:5

belabor [1] - 2027:19

believes [2] - 1958:21,

2061:20

belong [1] - 1980:13

below [7] - 2018:10,

2019:4, 2020:24,

2021:12, 2023:4,

2023:19, 2043:4

benchmark [41] -

2005:3, 2005:6,

2005:8, 2005:9,

2005:10, 2005:13,

2006:2, 2006:3,

2006:5, 2006:6,

2006:8, 2006:10,

2006:11, 2006:13,

2006:16, 2006:17,

2006:20, 2006:22,

2006:24, 2007:1,

2007:8, 2007:14,

2007:20, 2008:1,

2008:2, 2008:4,

2008:6, 2008:11,

2008:25, 2009:1,

2009:8, 2009:13,

2009:15, 2009:16,

2009:20, 2009:24,

2010:1, 2011:13,

2011:20

benchmarks [7] -

2005:20, 2005:22,

2006:4, 2010:2,

2010:4, 2010:5,

2059:18

BENEDICT [1] -

1953:13

Benedict [8] - 1955:7,

2060:13, 2060:16,

2063:25, 2064:18,

2066:2, 2069:18,

2070:7

Benedict's [2] -

2066:20, 2066:23

benefit [23] - 1956:14,

1958:23, 1959:3,

1959:6, 1959:9,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 123 of 143 PageID: 17423
1959:10, 1960:24,

1960:25, 1961:8,

1961:14, 1962:1,

1962:4, 1963:20,

1963:21, 1963:23,

1964:25, 1965:12,

1966:15, 1966:16,

1968:10, 1968:11,

1968:13

benefited [1] -

1963:13

benefits [42] - 1956:5,

1956:19, 1957:6,

1957:9, 1957:11,

1957:23, 1958:5,

1958:7, 1958:15,

1958:17, 1958:18,

1958:19, 1959:1,

1959:7, 1960:12,

1961:15, 1961:18,

1961:21, 1962:15,

1962:20, 1962:22,

1962:25, 1963:16,

1963:17, 1964:1,

1965:4, 1965:7,

1965:22, 1966:4,

1966:8, 1966:14,

1966:19, 1967:9,

1967:10, 1967:17,

1967:18, 1967:19,

1967:21, 1968:2,

1968:6, 1968:15

Bennett [1] - 2040:15

Berkley [1] - 1972:18

Bernstein [14] -

2043:8, 2045:19,

2045:21, 2045:24,

2045:25, 2046:12,

2046:17, 2046:19,

2047:8, 2047:10,

2048:2, 2048:4

Bernstein's [2] -

2043:11, 2045:22

best [3] - 1955:13,

1995:24, 2010:14

better [5] - 2006:14,

2007:20, 2007:23,

2046:24, 2047:25

between [14] -

1974:21, 1993:13,

1999:6, 2005:5,

2011:24, 2030:7,

2045:19, 2045:21,

2046:17, 2046:18,

2059:17, 2060:25,

2061:1, 2064:25

beyond [3] - 1961:1,

1967:7, 2016:21

big [4] - 1958:8,

2020:16, 2021:19,

2033:25

biggest [1] - 1968:2

billion [23] - 1960:6,

1961:2, 1963:7,

1967:10, 2009:2,

2009:9, 2009:11,

2013:6, 2013:7,

2013:8, 2014:11,

2014:16, 2015:9,

2016:9, 2051:5,

2051:8, 2051:11,

2051:15, 2051:16,

2051:18, 2051:21,

2053:11

bio [1] - 1997:14

bit [7] - 1977:19,

2031:25, 2032:17,

2033:19, 2033:20,

2071:2

black [2] - 2002:2,

2002:6

BLADER [1] - 1953:3

blank [2] - 2000:17

BLANK [1] - 1953:8

blew [1] - 2010:13

blow [5] - 2008:15,

2011:9, 2017:9,

2018:13, 2021:24

BLUMSTEIN [1] -

1953:3

Board [37] - 1960:2,

1961:24, 1962:5,

1966:5, 1969:25,

1987:13, 1987:17,

1988:25, 1989:6,

2012:23, 2026:8,

2045:7, 2046:1,

2046:6, 2046:11,

2046:17, 2048:3,

2057:21, 2060:11,

2061:3, 2062:9,

2062:18, 2062:21,

2062:23, 2062:25,

2064:22, 2065:3,

2065:4, 2065:10,

2066:14, 2067:12,

2067:18, 2067:24,

2068:16, 2068:17,

2068:22

board [4] - 1966:3,

2045:22, 2045:25,

2046:19

Board's [1] - 2062:9

boards [1] - 2026:13

bold [1] - 2013:5

bolded [7] - 1970:14,

1977:7, 1977:20,

1979:16, 1979:18,

1979:20, 1981:3

Bond [11] - 1976:15,

1976:22, 1978:7,

1994:20, 1994:22,

2011:10, 2014:5,

2030:1, 2051:11,

2051:12, 2051:16

bond [5] - 2016:25,

2017:3, 2017:11,

2018:10, 2019:5

bonds [1] - 1994:15

Book [3] - 2017:15,

2017:19, 2018:6

bottom [10] - 1970:11,

1979:16, 1979:18,

1980:1, 1980:3,

1981:2, 1982:24,

1983:25, 2031:16,

2044:1

box [1] - 2047:4

boxes [2] - 2029:25,

2044:1

break [9] - 1960:9,

1984:24, 1985:3,

1985:5, 2004:11,

2015:5, 2034:1,

2047:9

break-even [1] -

2034:1

breakdown [1] -

1960:16

breakpoint [1] -

2047:10

breakpoints [1] -

2021:6

briefed [1] - 2069:8

broad [1] - 2003:17

build [1] - 1995:25

building [1] - 1959:11

bulk [2] - 1987:4,

2058:13

bunch [4] - 1988:16,

2022:4, 2022:17,

2022:23

burden [5] - 1966:20,

1967:1, 1967:14,

1968:9, 2061:14

business [16] -

1969:23, 1975:20,

1975:24, 1976:4,

1980:14, 1980:15,

1990:12, 1990:25,

1991:15, 1994:18,

2003:1, 2038:9,

2045:24, 2046:2,

2060:7

businesses [2] -

1969:21, 2046:4

buy [6] - 2038:25,

2039:7, 2040:7,

2042:7, 2046:13,

2046:15

BY [42] - 1953:4,

1953:9, 1953:12,

1954:3, 1954:4,

1954:5, 1956:2,

1957:17, 1968:19,

1974:6, 1974:19,

1981:21, 1983:23,

1985:7, 1989:19,

1990:5, 1990:22,

1991:18, 1993:18,

1994:12, 1997:8,

2000:19, 2002:18,

2004:21, 2008:18,

2010:15, 2011:5,

2012:16, 2014:25,

2016:2, 2017:22,

2022:16, 2027:14,

2032:7, 2037:12,

2040:5, 2040:24,

2042:3, 2045:2,

2048:9, 2049:7,

2050:3

C

C.S.R [1] - 1952:24

calculate [18] -

1957:10, 1971:6,

1972:18, 1972:25,

1973:11, 1974:9,

1975:3, 1975:10,

1975:15, 1976:16,

1978:10, 1979:6,

2007:13, 2010:17,

2011:24, 2012:17,

2019:22, 2031:19

calculated [11] -

1956:6, 1958:8,

1958:17, 1961:3,

1966:9, 1971:17,

1972:1, 1972:22,

1983:14, 2031:18

calculating [5] -

1971:17, 1973:7,

1980:17, 2034:18,

2048:13

calculation [27] -

1957:1, 1957:24,

1958:4, 1958:6,

1958:9, 1960:14,

1962:7, 1962:16,

1964:3, 1964:4,

1968:1, 1968:3,

1968:25, 1971:16,

1972:20, 1973:25,

1977:1, 1977:16,

1979:7, 1979:13,

1980:3, 1982:10,

1983:9, 2008:11,

2008:13, 2031:17,

United States District Court

Trenton, New Jersey

2075

2050:5

calculations [5] -

1959:25, 1963:3,

1993:2, 2012:22,

2032:20

camera [2] - 2060:24,

2061:19

canned [1] - 2001:15

cannot [2] - 1971:25,

2054:9

Cap [9] - 2005:14,

2007:7, 2008:10,

2008:19, 2043:2,

2043:7, 2043:12,

2047:4, 2047:17

cap [4] - 2028:19,

2028:22, 2028:25,

2029:17

capable [11] -

1995:21, 1998:12,

1999:3, 1999:4,

1999:11, 1999:12,

1999:15, 1999:24,

1999:25, 2000:2

caption [1] - 2059:19

capture [2] - 2031:19,

2033:10

care [1] - 1967:6

case [48] - 1956:5,

1960:17, 1966:20,

1967:14, 1967:15,

1968:11, 1968:22,

1983:2, 1984:2,

1985:14, 1985:17,

1985:21, 1987:2,

2005:23, 2006:1,

2007:16, 2022:10,

2022:20, 2022:21,

2024:25, 2026:19,

2027:2, 2034:6,

2036:23, 2037:6,

2037:19, 2040:15,

2040:16, 2040:25,

2041:4, 2041:8,

2041:22, 2050:19,

2050:21, 2052:1,

2053:7, 2054:17,

2058:9, 2058:14,

2061:23, 2063:11,

2065:20, 2066:12,

2067:9, 2067:13,

2067:25, 2069:11,

2070:9

cases [7] - 2005:15,

2006:2, 2006:7,

2006:16, 2007:1,

2007:15

cash [1] - 2036:6

categories [1] -

1971:21

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 124 of 143 PageID: 17424
category [5] -

2005:23, 2023:4,

2023:18, 2024:8,

2024:14

Century [2] - 1986:1,

2027:2

certainly [9] - 1961:8,

1967:8, 1972:18,

1972:23, 1972:24,

2029:20, 2050:12,

2061:14, 2061:22

Certainly [1] - 2063:10

Certified [1] - 1952:23

chance [2] - 1963:14,

2037:8

change [1] - 2071:1

changed [1] - 1963:20

changes [2] -

2060:13, 2060:14

charge [6] - 2021:22,

2036:10, 2037:23,

2038:1, 2045:16,

2065:23

charged [2] - 2020:19,

2052:18

charges [11] -

1980:20, 2019:19,

2019:20, 2038:7,

2044:4, 2045:12,

2047:7, 2047:8,

2047:10, 2053:17

charging [2] -

2020:14, 2037:6

chart [51] - 1956:13,

1958:17, 1971:4,

1971:7, 1977:7,

1979:10, 1979:19,

1980:1, 1980:3,

1980:23, 1980:24,

2004:23, 2008:5,

2009:7, 2010:9,

2010:21, 2017:4,

2017:6, 2017:9,

2018:4, 2021:23,

2021:24, 2022:19,

2026:7, 2027:17,

2028:20, 2030:25,

2031:7, 2031:16,

2032:15, 2033:3,

2033:5, 2033:15,

2034:18, 2057:17,

2059:1, 2059:2,

2059:15, 2063:13,

2063:14, 2063:16,

2063:23, 2064:5,

2064:6, 2064:8,

2065:17, 2065:21,

2065:22, 2066:19,

2066:23

charts [24] - 1980:25,

2029:14, 2032:3,

2060:10, 2060:14,

2061:2, 2061:14,

2062:9, 2062:11,

2062:14, 2064:4,

2064:9, 2064:21,

2065:12, 2065:15,

2065:16, 2065:19,

2066:8, 2068:12,

2068:14, 2068:15,

2068:16

cheaper [1] - 2021:18

cheapest [1] - 2023:5

check [1] - 2032:20

choices [1] - 2018:17

choose [4] - 2006:12,

2006:15, 2006:23,

2007:19

chose [3] - 1972:9,

2006:13, 2006:19

chosen [1] - 2009:24

Chris [2] - 1976:10,

1983:18

CHRISTOPHER [2] -

1953:5, 1953:6

circle [1] - 2049:5

citations [1] - 2068:16

cite [4] - 2018:5,

2018:6, 2018:7,

2050:1

CIVIL [2] - 1952:5,

1952:9

claim [1] - 2063:22

clarification [4] -

2037:3, 2039:22,

2040:10, 2040:12

clarify [3] - 2037:1,

2061:5, 2065:13

clarity [1] - 2022:13

CLARKSON [1] -

1952:14

Class [7] - 2014:15,

2015:4, 2015:6,

2015:9

class [1] - 2014:21

Class-I-B [2] - 2015:4,

2015:9

classes [13] - 2014:20,

2014:22, 2015:1,

2015:13, 2015:17,

2015:20, 2015:23,

2016:3, 2016:6,

2016:7, 2016:17,

2016:21

classified [1] - 1962:3

clear [13] - 1971:20,

1974:12, 1976:12,

2001:17, 2009:18,

2025:17, 2030:5,

2031:10, 2037:21,

2053:8, 2070:20

clearing [1] - 1969:22

clearly [3] - 1959:5,

2059:6, 2059:7

client [1] - 2041:7

client's [1] - 1971:18

clients [1] - 1992:14

clip [11] - 1988:4,

1988:20, 1991:7,

1992:20, 1994:3,

1996:3, 1998:22,

2001:6, 2002:21,

2036:19, 2037:9

Clip [1] - 2002:11

clips [1] - 2036:21

close [1] - 2030:10

closer[1] - 2015:12

CO [2] - 1952:6,

1953:16

coffee [3] - 1987:20,

1989:11, 1989:13

collected [2] - 1981:8,

2030:23

collection [1] -

2036:11

collects [1] - 1969:19

colloquy [1] - 2000:10

column [8] - 1970:6,

1977:24, 2005:8,

2008:10, 2025:17,

2025:18, 2028:4,

2030:17

columns [2] - 1982:7

combined [1] - 1983:1

combines [2] -

1980:24

coming [6] - 2016:14,

2030:5, 2030:6,

2030:10, 2055:18

commensurate [1] -

1987:6

comment [7] - 2064:3,

2064:13, 2064:14,

2065:17, 2068:11

comments [7] -

2063:12, 2065:24,

2066:5, 2067:18,

2067:22, 2068:1,

2068:13

committee [6] -

1998:1, 1998:10,

1998:12, 1998:18,

1999:3, 2000:9

Common [7] -

2027:21, 2028:11,

2032:6, 2034:3,

2034:17, 2051:5,

2051:6

common [1] - 2016:5

communication [2] -

1993:12, 2066:4

communications [3] -

2069:9, 2069:14,

2069:15

companies [8] -

1969:9, 1969:20,

1970:17, 1970:20,

1970:21, 1970:23,

1973:20, 1974:3

comparable [2] -

2009:8, 2043:3

comparative [2] -

2026:11, 2026:14

comparators' [1] -

2011:21

compare [2] -

2007:20, 2046:4

compared [2] -

2009:19, 2047:22

comparing [2] -

2026:1, 2044:6

comparison [5] -

2009:23, 2024:23,

2025:7, 2048:25,

2059:16

comparisons [2] -

2025:9, 2026:4

compensation [1] -

1987:6

competition [1] -

2021:8

complaint [2] -

2063:15, 2063:21

completely [5] -

2038:9, 2041:12,

2045:14, 2045:24,

2047:21

complex [2] -

1969:11, 2054:6

Compliance [2] -

2000:20, 2055:10

compliance [30] -

1979:3, 2000:21,

2000:23, 2001:1,

2001:3, 2001:5,

2001:10, 2001:11,

2001:13, 2001:17,

2001:20, 2002:7,

2002:15, 2002:24,

2003:4, 2003:5,

2003:11, 2003:12,

2003:14, 2003:24,

2004:2, 2053:20,

2054:19, 2054:20,

2054:25, 2055:2,

2055:4, 2055:5,

2055:14

complicated [4] -

1993:3, 1993:4,

1995:3, 1996:1

United States District Court

Trenton, New Jersey

2076

components [2] -

2025:4, 2052:20

comport [1] - 2054:14

comprised [1] -

1981:25

compromise [2] -

1960:21, 1964:20

computer [5] -

1992:10, 1992:11,

1993:5, 1997:18,

1998:16

concentrated [2] -

2020:11, 2020:25

concern [3] - 1961:7,

1961:20, 1962:3

concerned [2] -

1977:2, 1977:6

concluded [6] -

1989:18, 1991:17,

1993:17, 1994:11,

1997:7, 2002:17

concludes [1] -

1984:19

conclusions [1] -

2068:25

conducted [2] -

1969:7, 1969:8

conduit [3] - 1987:13,

1987:16, 1988:25

confirm [4] - 1955:15,

2004:23, 2049:10,

2056:4

confirmed [1] -

2065:16

conflict [4] - 1961:10,

1994:2, 1995:9,

1995:10

conflicts [1] - 1993:25

connect [1] - 1965:25

connected [1] -

1965:6

consider [2] -

2026:16, 2026:20

considered [3] -

2026:22, 2027:3,

2027:4

consistent [2] -

2029:2, 2066:18

constraints [1] -

2042:8

consulted [1] -

2068:21

consulting [1] -

2068:21

consume [2] - 1963:9,

1973:11

contact [2] - 1972:8,

2054:12

contains [1] - 1989:25

contemplated [1] -

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 125 of 143 PageID: 17425
1955:12

content [1] - 2041:14

context [2] - 2040:10

continue [2] - 1975:7,

2065:9

CONTINUED [2] -

1954:3, 1956:2

continuously [1] -

1963:17

contract [4] - 2053:1,

2053:12, 2053:16,

2053:18

contrary [1] - 2064:2

controlled [1] -

2036:24

controversial [1] -

1994:16

conversation [3] -

2040:11, 2046:16,

2066:1

copy [4] - 1974:15,

2004:24, 2027:7,

2028:7

core [1] - 1973:8

Core [8] - 1976:14,

1976:22, 1978:7,

1994:20, 1994:22,

2030:1, 2051:11,

2051:12

Correct [7] - 1969:6,

2023:14, 2034:16,

2047:19, 2049:12,

2053:14, 2059:13

correct [104] -

1952:23, 1970:8,

1970:18, 1971:13,

1977:25, 1978:24,

1979:24, 1981:12,

1983:3, 1983:11,

1985:9, 1986:25,

1987:3, 1987:10,

1987:14, 1990:13,

1991:1, 1992:8,

1992:12, 1993:23,

1995:18, 1998:13,

2000:21, 2002:25,

2004:5, 2005:6,

2006:6, 2006:14,

2008:3, 2008:6,

2008:20, 2008:23,

2009:3, 2014:10,

2014:11, 2015:15,

2017:3, 2017:13,

2018:23, 2019:25,

2020:14, 2022:2,

2022:5, 2022:18,

2023:15, 2023:21,

2024:11, 2024:18,

2024:22, 2025:15,

2026:1, 2026:5,

2026:11, 2026:16,

2027:16, 2027:22,

2028:14, 2029:6,

2030:19, 2031:11,

2031:14, 2031:22,

2031:25, 2032:8,

2032:22, 2033:1,

2033:4, 2034:14,

2035:5, 2035:7,

2035:11, 2035:22,

2036:2, 2036:5,

2036:16, 2037:14,

2037:24, 2038:5,

2038:8, 2038:10,

2039:4, 2041:5,

2042:5, 2042:16,

2043:9, 2044:5,

2045:5, 2045:8,

2045:13, 2045:15,

2046:21, 2049:11,

2049:14, 2049:19,

2050:5, 2050:8,

2050:16, 2051:12,

2051:22, 2052:18,

2055:11, 2055:14,

2056:15, 2067:22

corrected [2] - 2033:1,

2033:6

correspond [1] -

2005:20

corresponding [1] -

2046:24

corresponds [1] -

1982:5

cost [12] - 1974:25,

1975:1, 1975:16,

1975:17, 1975:22,

1976:3, 1976:5,

1978:4, 1980:11,

2020:12, 2020:25,

2021:19

costs [7] - 1976:1,

1976:13, 1978:3,

2031:14, 2031:20,

2031:24, 2033:13

Counsel [8] - 1972:14,

1972:15, 2041:6,

2049:21, 2051:24,

2053:20, 2054:19,

2071:8

COUNSEL [1] -

1953:15

counsel [13] -

1956:21, 1961:8,

1965:2, 2014:20,

2036:25, 2041:11,

2041:14, 2048:11,

2052:11, 2058:15,

2058:22, 2060:24,

2063:11

counsel's [6] - 1961:7,

2039:11, 2050:4,

2050:13, 2067:17,

2068:1

Counselor[1] -

2048:23

couple [5] - 1987:18,

2006:17, 2044:22,

2059:17, 2059:18

course [2] - 1994:18,

2067:5

COURT [108] - 1952:1,

1952:17, 1955:1,

1955:11, 1955:17,

1955:24, 1956:18,

1957:2, 1957:5,

1957:15, 1958:11,

1958:13, 1958:25,

1959:18, 1959:22,

1961:12, 1964:10,

1964:21, 1965:20,

1966:6, 1966:12,

1966:17, 1967:24,

1968:8, 1971:10,

1972:11, 1973:13,

1976:20, 1981:16,

1981:18, 1983:16,

1983:21, 1984:13,

1984:15, 1984:21,

1984:23, 1985:4,

1988:2, 1988:12,

1988:19, 1990:1,

1990:4, 1990:20,

2000:18, 2001:21,

2002:9, 2004:11,

2004:14, 2004:16,

2010:22, 2010:24,

2011:2, 2012:11,

2012:14, 2014:24,

2016:1, 2022:11,

2026:25, 2027:8,

2027:12, 2037:8,

2039:14, 2039:17,

2039:20, 2039:23,

2040:1, 2040:3,

2040:22, 2041:17,

2042:2, 2043:24,

2044:15, 2044:18,

2044:25, 2048:7,

2048:20, 2048:22,

2049:2, 2049:4,

2049:6, 2055:17,

2055:20, 2055:24,

2056:1, 2056:7,

2056:10, 2056:14,

2056:16, 2056:20,

2056:25, 2057:7,

2059:6, 2059:11,

2059:14, 2060:5,

2061:4, 2063:7,

2065:22, 2066:1,

2066:14, 2066:21,

2067:1, 2067:7,

2067:15, 2069:23,

2070:6, 2070:15,

2071:6

Court [66] - 1956:12,

1956:24, 1957:21,

1960:10, 1960:11,

1960:12, 1962:8,

1962:9, 1962:11,

1962:12, 1963:14,

1963:18, 1964:2,

1964:14, 1964:15,

1964:18, 1965:2,

1966:2, 1966:3,

1967:12, 1967:23,

1968:5, 1968:6,

1968:24, 1971:3,

1971:5, 1974:8,

1974:23, 1975:7,

1975:23, 1976:15,

1976:25, 1977:14,

1978:23, 1979:18,

1979:23, 1980:1,

1980:23, 1981:6,

1982:3, 1982:16,

1982:17, 1982:20,

1983:1, 1983:8,

1983:9, 2009:22,

2043:15, 2050:18,

2050:22, 2051:2,

2053:9, 2054:4,

2054:24, 2058:19,

2058:20, 2059:24,

2060:20, 2060:23,

2060:24, 2069:3,

2069:6, 2070:21

Court's [9] - 1958:7,

1959:12, 1965:19,

1974:12, 1982:22,

2060:7, 2060:9,

2063:2, 2067:20

COURTHOUSE [1] -

1952:14

cover[1] - 2031:24

create [4] - 1973:12,

1974:10, 2061:22,

2069:10

created [9] - 2005:25,

2057:22, 2062:10,

2063:12, 2063:15,

2063:23, 2065:10,

2065:11, 2068:16

creation [10] - 1976:1,

2060:10, 2060:22,

2061:2, 2061:13,

2063:4, 2063:7,

2065:2, 2065:15,

2067:11

United States District Court

Trenton, New Jersey

2077

credibility [5] -

1988:11, 2000:12,

2000:17, 2022:12,

2059:24

criteria [1] - 2006:25

criticisms [1] - 2059:1

CROSS [2] - 1954:4,

1985:7

Cross [1] - 1984:21

cross [1] - 1972:24

CROSSEXAMINATION [2] -

1954:4, 1985:7

cross-examination [1]

- 1972:24

crossing [1] - 2000:7

crystal [1] - 1976:12

crystallize [1] -

1983:18

cubs [1] - 1989:11

cups [2] - 1987:20,

1989:13

current [2] - 2035:13,

2054:11

customized [1] -

2005:24

D

daily [4] - 2054:11,

2054:13, 2055:2,

2055:13

damage [7] - 1968:25,

1971:15, 1978:20,

1983:9, 2031:7,

2031:16, 2032:15

damages [13] -

1968:21, 1974:4,

1976:17, 1981:9,

1982:20, 2008:16,

2009:8, 2009:9,

2032:15, 2032:16,

2033:10, 2034:12,

2034:18

DANIEL [1] - 1953:4

data [7] - 1974:10,

1982:18, 2018:24,

2026:21, 2057:23,

2058:1, 2058:13

databases [1] -

1969:20

date [3] - 1962:25,

1968:10, 2013:17

dated [3] - 2017:16,

2044:17, 2044:20

DAY [1] - 1952:20

day-to-day [4] -

2036:2, 2036:4,

2038:14, 2038:20

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 126 of 143 PageID: 17426
days [3] - 1955:7,

1955:8, 1963:4

de [2] - 1989:2, 1989:4

dealt [1] - 1965:20

debate [1] - 2021:7

debated [1] - 2021:9

December [1] -

2015:11

decide [2] - 1963:22,

1963:24

decided [1] - 2009:12

decision [5] -

1982:22, 1995:21,

1995:24, 1998:19

decisions [12] -

1998:13, 1998:14,

1999:3, 1999:5,

1999:21, 2000:3,

2000:4, 2000:8,

2038:24, 2039:7,

2040:7, 2042:7

deducted [2] - 2028:3,

2028:14

deduction [1] -

2029:10

deem [1] - 2061:15

deemed [2] - 1983:2,

2031:4

DEFENDANT [1] -

1952:11

Defendant [1] -

2056:16

defendant [4] -

1960:1, 1963:13,

1972:21, 2060:23

Defendant's [8] -

1954:12, 2010:9,

2010:20, 2010:24,

2011:3, 2013:12,

2040:20, 2056:21

DEFENDANTS [3] -

1952:7, 1953:9,

1953:13

defendants [4] -

1955:6, 1966:10,

2060:11, 2067:25

defense [2] - 1967:15,

2060:23

defer [3] - 1999:17,

1999:18, 2007:2

deferred [1] - 2006:10

deferring [2] - 1997:4,

1997:5

define [4] - 1991:25,

1997:2, 2001:4,

2042:4

defined [1] - 1956:13

defines [1] - 2010:2

definitely [1] -

1962:24

definition [5] -

2003:16, 2039:1,

2039:6, 2041:24,

2042:6

degrees [1] - 1972:5

delegate [1] - 1994:9

delegated [7] -

1995:5, 2038:14,

2038:20, 2054:20,

2055:1, 2064:11,

2068:5

delegation [1] -

2063:19

deliberately [1] -

2064:10

delivered [1] -

2046:24

demand [3] - 2020:24,

2021:3, 2021:5

demonstrate [1] -

1968:13

denial [1] - 1958:2

Denied [2] - 1957:2,

1957:3

denied [3] - 1957:15,

1965:8, 2069:3

deny [1] - 1998:17

denying [3] - 1964:21,

1965:13, 1968:16

department [1] -

2063:24

depicted [1] - 2065:6

depose [2] - 1972:17,

1973:3

deposed [2] -

1972:16, 1986:24

deposition [39] -

1985:21, 1987:8,

1987:17, 1987:24,

1988:5, 1988:8,

1988:17, 1988:18,

1988:22, 1989:18,

1989:23, 1990:7,

1991:9, 1991:17,

1992:22, 1993:17,

1993:20, 1994:5,

1994:11, 1994:13,

1996:5, 1997:7,

1998:9, 1998:24,

2000:11, 2000:14,

2001:24, 2002:3,

2002:12, 2002:17,

2002:22, 2037:14,

2040:14, 2040:15,

2041:13, 2058:16,

2061:23, 2062:1,

2062:3

depositions [2] -

2061:15, 2066:9

description [3] -

2060:17, 2064:17,

2068:2

deserves [1] - 2059:21

designing [1] -

1998:21

detail [2] - 2026:12,

2062:10

detailed [1] - 2004:4

details [1] - 2070:22

detects [1] - 2055:7

determination [5] -

1996:9, 1997:19,

1997:21, 2059:25,

2061:25

determine [7] -

1971:19, 1973:24,

1982:17, 1995:17,

1996:21, 1997:1,

1997:10

determines [1] -

1968:5

determining [1] -

1997:25

developing [1] -

1998:21

difference [5] -

2005:5, 2011:24,

2031:6, 2049:19,

2052:5

different [24] - 1982:5,

1982:7, 1982:15,

1982:21, 2007:17,

2007:24, 2014:22,

2015:17, 2015:18,

2025:10, 2034:19,

2036:12, 2038:9,

2045:14, 2046:2,

2046:5, 2047:21,

2059:3, 2059:17,

2059:18, 2059:19,

2063:5, 2065:12

difficult [6] - 1967:14,

1967:15, 1993:25,

1994:2, 1995:23,

1996:8

difficulty [1] - 1995:11

dilemma [1] - 1995:12

diligence [5] - 1991:2,

1991:3, 1991:6,

2035:24, 2036:8

DIRECT [2] - 1954:3,

1956:2

direct [9] - 1970:2,

1978:5, 1978:11,

1979:1, 1979:4,

1979:5, 1984:19,

2001:10, 2053:23

direction [2] - 2071:2,

2071:4

directly [2] - 2045:8,

2046:8

director [2] - 2034:22,

2035:1

DIRECTOR [1] -

1953:15

Directors [1] -

2067:25

disagree [2] -

1997:23, 2038:12

disappeared [1] -

2062:7

disclose [1] - 2070:22

disclosed [2] -

2023:13, 2066:14

discovery [9] -

2063:4, 2066:8,

2067:5, 2067:6,

2068:19, 2069:4,

2070:16, 2070:18

discretion [2] -

2057:10, 2057:11

discuss [3] - 1957:9,

1964:11, 1964:17

discussed [9] -

1956:16, 1972:14,

1975:25, 1977:7,

1979:3, 1983:10,

1989:25, 1993:3,

2053:7

discussing [4] -

1965:17, 1965:18,

1974:13, 1992:15

discussions [2] -

1965:1, 1973:5

disproportionate [1] -

2068:7

disproportionately [2]

- 2020:11, 2020:25

distribution [2] -

2052:21, 2053:14

DISTRICT [4] - 1952:1,

1952:1, 1952:17,

1952:18

divide [1] - 2024:15

divided [2] - 1974:25,

1975:2

dividing [1] - 1978:12

document [59] -

1956:10, 1956:23,

1957:19, 1961:7,

1962:15, 1964:1,

1968:7, 1969:3,

1970:3, 1971:9,

1972:14, 1982:1,

2007:6, 2013:19,

2015:8, 2016:14,

2038:14, 2038:16,

2039:4, 2040:11,

2041:7, 2041:10,

2041:14, 2041:18,

United States District Court

Trenton, New Jersey

2078

2043:25, 2044:17,

2044:20, 2044:22,

2048:19, 2048:24,

2049:10, 2053:24,

2054:4, 2054:22,

2054:25, 2057:19,

2058:4, 2058:6,

2059:5, 2060:19,

2060:20, 2061:7,

2061:11, 2062:17,

2062:20, 2063:5,

2063:8, 2063:9,

2063:18, 2064:23,

2065:9, 2065:10,

2066:15, 2067:12,

2067:18, 2067:21,

2070:22

document's [1] -

1964:5

documentation [1] -

2058:13

documents [36] -

1966:14, 1967:16,

1967:17, 2009:18,

2038:19, 2038:22,

2057:17, 2057:18,

2057:19, 2057:20,

2057:25, 2058:2,

2058:5, 2058:18,

2060:21, 2060:22,

2060:25, 2061:7,

2061:11, 2061:18,

2061:21, 2061:24,

2062:4, 2062:15,

2062:16, 2063:5,

2063:6, 2063:15,

2064:24, 2065:2,

2066:13, 2069:22,

2070:2, 2070:16,

2070:23

dollar[6] - 1962:1,

1963:18, 2033:25,

2051:22, 2053:11,

2059:16

dollars [5] - 1961:2,

1967:10, 2020:19,

2020:20, 2021:16

done [17] - 1958:10,

1958:21, 1968:1,

1973:10, 1982:9,

1992:9, 1992:18,

1993:1, 1993:4,

1993:5, 1993:6,

1993:8, 2000:21,

2001:3, 2031:4,

2042:22

doubt [1] - 1991:4

down [25] - 1960:9,

1963:13, 1963:14,

1964:16, 1970:5,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 127 of 143 PageID: 17427
1970:6, 1970:11,

1977:19, 1978:6,

1978:7, 2015:5,

2020:24, 2032:14,

2033:19, 2033:20,

2034:1, 2039:25,

2043:4, 2043:21,

2044:1, 2047:9,

2048:1, 2055:17,

2067:10

download [1] -

2013:22

dozen [2] - 1985:18,

2021:21

dozens [1] - 2021:13

Dr[27] - 1955:20,

1956:4, 1959:14,

1960:8, 1962:8,

1962:15, 1964:11,

1965:8, 1965:17,

1965:20, 1968:3,

1968:20, 1972:15,

1972:16, 1972:17,

1974:7, 1976:14,

1976:23, 1981:22,

1981:23, 1983:24,

1984:20, 2022:6,

2040:4, 2044:20,

2057:18, 2059:23

drafted [1] - 2041:18

drafter[1] - 2039:10

due [5] - 1991:2,

1991:3, 1991:5,

2035:24, 2036:8

during [4] - 1986:21,

2060:12, 2067:5,

2068:19

dwell [1] - 2005:2

DX-1918 [1] - 2043:15

E

e-mail [2] - 2060:13,

2066:4

e-mails [3] - 2061:1,

2065:1, 2066:16

earliest [1] - 2058:4

earn [3] - 2031:24,

2032:19, 2034:4

earned [2] - 1976:7,

2034:4

ease [1] - 2032:3

easier[2] - 2028:10,

2047:1

easily [1] - 1992:10

EAST [1] - 1952:14

educate [1] - 2070:13

efforts [1] - 2061:8

eight [3] - 1955:7,

1963:4, 2002:21

either [4] - 1993:6,

2017:4, 2030:19,

2056:8

eliminate [1] -

1980:10

eliminated [3] -

1980:6, 2008:3,

2008:5

eliminates [1] -

1980:4

ELMO [1] - 2019:15

embellish [1] -

2064:19

embellished [1] -

2060:17

embellishing [1] -

2068:1

emphasize [2] -

2065:9, 2069:7

employ [1] - 1979:9

employees [3] -

1976:2, 1995:19,

1995:20

end [7] - 1958:2,

1992:16, 2049:13,

2067:13, 2068:3,

2069:17, 2069:21

end-running [1] -

1958:2

ending [4] - 1970:3,

1976:18, 1976:21,

2067:20

energy [1] - 2063:2

enormous [1] - 1966:2

entire [1] - 1979:4

entitled [10] - 2041:24,

2055:10, 2061:21,

2062:19, 2065:5,

2066:25, 2067:2,

2067:3, 2067:11,

2068:15

entity [1] - 2054:12

EQAT [3] - 2013:16,

2046:6, 2054:6

equal [1] - 1974:24

equally [1] - 2024:16

EQUITABLE [3] -

1952:6, 1952:10,

1953:16

Equitable [1] -

2054:10

Equity [1] - 2051:15

equity [10] - 2016:24,

2017:3, 2017:11,

2018:10, 2022:4,

2022:5, 2022:17,

2022:22, 2022:24,

2023:6

error [5] - 2032:22,

2032:24, 2048:11,

2048:12, 2049:10

errors [1] - 2058:8

ESQUIRE [10] -

1953:4, 1953:4,

1953:5, 1953:5,

1953:6, 1953:9,

1953:12, 1953:12,

1953:13, 1953:15

essence [1] - 2024:1

essentially [2] -

1960:5, 1964:14

Essentially [1] -

1972:1

established [1] -

1962:12

et [3] - 1952:3, 1952:6,

1952:8

evaluate [1] - 1995:25

evasive [1] - 2002:2

event [4] - 1962:11,

1963:24, 1979:23,

1982:16

eventually [1] -

2062:21

evidence [44] -

1954:10, 1954:11,

1954:12, 1954:13,

1956:24, 1957:3,

1957:18, 1958:7,

1958:17, 1959:16,

1960:15, 1960:22,

1960:23, 1963:19,

1963:22, 1964:5,

1965:4, 1965:5,

1965:20, 1965:22,

1966:21, 1968:3,

1969:13, 1981:15,

1981:20, 1983:25,

1984:12, 1984:18,

1991:3, 1995:14,

2010:20, 2011:4,

2017:21, 2038:16,

2053:22, 2056:4,

2056:19, 2059:2,

2059:8, 2060:3,

2060:21, 2061:3,

2068:3, 2068:6

evidenced [1] -

2003:22

exact [7] - 1963:8,

1964:4, 2001:24,

2006:9, 2038:3,

2041:22, 2052:9

exactly [8] - 1972:12,

2008:9, 2037:4,

2037:6, 2041:25,

2058:17, 2064:14,

2064:23

Exactly [2] - 1955:11,

2040:3

EXAMINATION [6] -

1954:3, 1954:4,

1954:5, 1956:2,

1985:7, 2048:9

examination [1] -

1972:24

example [7] - 1975:1,

1981:3, 1994:19,

1997:13, 2005:13,

2006:8, 2007:5

exceed [1] - 2023:18

exceeds [2] - 2024:8,

2044:4

except [2] - 2007:1,

2008:1

excess [1] - 1982:14

exchange [1] -

2064:25

exchanged [4] -

2060:25, 2061:12,

2066:8, 2066:9

exclude [1] - 1975:17

excluded [2] - 1978:2,

2033:12

excludes [4] -

2018:16, 2018:21,

2031:11, 2031:13

excluding [1] -

1971:22

excused [1] - 2055:19

exercise [1] - 1992:5

exhaustive [1] -

1991:13

Exhibit [10] - 1954:10,

1954:11, 1954:13,

1981:19, 1984:17,

2010:9, 2010:17,

2013:12, 2040:20,

2060:2

exhibit [10] - 1957:22,

1958:10, 1960:8,

1960:15, 1983:11,

2005:19, 2040:22,

2047:14, 2048:20,

2057:13

Exhibits [5] - 1954:12,

2010:20, 2010:24,

2011:3, 2056:21

exhibits [3] - 2056:4,

2056:7, 2056:10

exist [3] - 2036:25,

2055:6, 2057:22

expect [1] - 2030:10

expected [1] - 2062:22

expedition [2] -

2063:1, 2067:21

expense [31] -

1975:18, 1977:14,

1978:5, 1978:11,

United States District Court

Trenton, New Jersey

2079

1979:4, 2019:5,

2019:7, 2021:25,

2022:7, 2022:8,

2022:14, 2023:9,

2023:11, 2023:14,

2024:8, 2024:20,

2024:21, 2025:6,

2025:12, 2025:15,

2025:16, 2025:24,

2026:1, 2026:3,

2026:5, 2026:7,

2031:11, 2052:13,

2052:19, 2053:9

Expense [2] -

2018:15, 2052:17

expenses [8] -

1971:21, 1971:22,

1977:20, 1979:1,

1979:5, 1980:17,

2043:22

expensive [1] - 2048:2

experience [6] -

1973:7, 1973:19,

1973:21, 1974:1,

2029:5, 2029:13

expert [13] - 1959:6,

1985:9, 1985:12,

1985:16, 1985:18,

2032:25, 2041:2,

2041:4, 2041:9,

2042:15, 2042:18,

2055:22, 2068:25

expertise [8] -

1959:13, 1961:16,

1965:9, 1972:4,

1972:5, 1972:25,

1973:4, 1973:10

experts [2] - 2065:4,

2068:18

explain [9] - 1960:10,

1964:13, 1964:14,

1971:3, 1972:19,

1975:23, 1976:25,

2020:2, 2054:4

explained [3] -

1962:23, 1962:24,

1964:15

explicitly [1] - 2062:8

expressly [1] -

1956:21

extensively [1] -

1961:22

extent [4] - 1972:21,

1992:9, 2000:11,

2065:18

extra [1] - 2031:25

F

facilitate [1] - 1964:20

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 128 of 143 PageID: 17428
fact [20] - 1967:7,

1992:13, 1992:15,

1992:25, 1998:1,

2004:3, 2007:23,

2008:9, 2016:21,

2030:9, 2032:24,

2045:12, 2052:3,

2062:10, 2062:12,

2062:18, 2065:24,

2068:19, 2068:25,

2070:10

Fact [3] - 2017:15,

2017:19, 2018:6

factors [1] - 1961:21

failure [2] - 2004:1

failures [2] - 2003:23,

2003:24

fainted [1] - 2040:2

fair[8] - 1996:21,

1999:15, 2006:24,

2007:21, 2024:3,

2030:25, 2035:18,

2043:1

Fair [1] - 1986:19

fall [5] - 1983:15,

1984:8, 2000:25,

2003:4, 2003:16

fallen [1] - 2019:6

fallout [65] - 1956:5,

1956:14, 1956:19,

1957:6, 1957:9,

1957:11, 1957:23,

1958:4, 1958:6,

1958:15, 1958:17,

1958:18, 1958:19,

1958:23, 1959:1,

1959:3, 1959:6,

1959:7, 1959:9,

1959:10, 1960:12,

1960:24, 1960:25,

1961:8, 1961:14,

1961:15, 1961:18,

1961:21, 1962:1,

1962:4, 1962:14,

1962:20, 1962:22,

1962:25, 1963:16,

1963:17, 1963:20,

1963:21, 1963:23,

1964:1, 1964:12,

1964:25, 1965:3,

1965:6, 1965:12,

1965:22, 1966:4,

1966:8, 1966:15,

1966:16, 1966:19,

1967:9, 1967:10,

1967:17, 1967:18,

1967:19, 1967:21,

1968:2, 1968:6,

1968:10, 1968:11,

1968:13, 1968:15

false [1] - 1996:11

familiar [1] - 1996:18

far [6] - 1961:1,

1961:12, 1965:15,

2000:6, 2027:13,

2029:7

faulty [1] - 2058:13

federal [1] - 2069:11

Federated [1] - 1986:9

fee [75] - 1971:24,

1977:6, 1977:17,

1977:25, 1979:7,

1979:8, 1980:4,

1982:14, 1983:7,

2017:13, 2020:4,

2020:19, 2021:11,

2022:8, 2023:4,

2023:7, 2023:12,

2023:21, 2024:24,

2025:1, 2025:2,

2025:9, 2025:18,

2025:21, 2025:25,

2026:6, 2026:14,

2027:21, 2027:22,

2027:24, 2027:25,

2028:2, 2028:3,

2028:4, 2028:5,

2028:21, 2028:25,

2029:3, 2029:4,

2029:22, 2029:23,

2030:7, 2030:8,

2030:11, 2030:12,

2030:17, 2030:18,

2030:20, 2030:21,

2030:24, 2031:1,

2032:4, 2032:10,

2032:11, 2032:16,

2036:12, 2036:13,

2036:14, 2036:17,

2037:6, 2037:21,

2038:12, 2043:23,

2044:2, 2045:13,

2045:17, 2045:23,

2046:4, 2046:16,

2047:15, 2047:16,

2047:18, 2049:22

fees [56] - 1961:25,

1962:14, 1963:25,

1964:12, 1971:21,

1971:23, 1977:8,

1977:23, 1977:24,

1981:7, 1983:6,

1983:13, 1984:1,

2019:12, 2019:18,

2020:11, 2021:4,

2021:5, 2021:12,

2021:14, 2021:17,

2022:8, 2023:12,

2023:15, 2025:3,

2025:4, 2025:19,

2026:9, 2026:11,

2028:11, 2028:12,

2031:11, 2031:17,

2031:18, 2033:13,

2038:8, 2043:22,

2048:25, 2049:1,

2049:14, 2050:9,

2052:11, 2052:14,

2052:17, 2053:1,

2053:10, 2053:12,

2053:14, 2053:16,

2053:17, 2068:7

feet [1] - 2050:15

few [2] - 2050:25

Fidelity [2] - 2021:13,

2040:17

fiduciary [1] - 2036:25

Fiduciary [2] - 1986:3,

2021:18

field [1] - 1961:16

figure [4] - 1971:25,

1972:21, 2018:16,

2023:24

figures [1] - 1974:9

figuring [1] - 2001:12

filed [3] - 2062:4,

2062:19, 2062:22

final [1] - 2047:9

financial [1] - 1972:7

fine [1] - 2071:3

finished [1] - 2055:24

Finished [1] - 2055:25

firing [1] - 1988:24

firm [14] - 1992:17,

2056:6, 2060:8,

2061:1, 2061:15,

2063:12, 2064:1,

2064:3, 2064:18,

2065:1, 2068:20,

2069:19, 2070:11

first [20] - 1963:12,

1966:14, 1968:1,

1968:2, 1969:17,

1974:8, 1975:15,

1977:8, 1977:22,

2011:10, 2013:2,

2013:19, 2014:1,

2015:16, 2016:11,

2023:1, 2032:6,

2044:1, 2061:10,

2061:17

First [1] - 2055:10

FISHER [1] - 1952:14

fishing [2] - 2063:1,

2067:20

five [11] - 1998:1,

1998:11, 1998:18,

1999:2, 2007:11,

2012:4, 2012:8,

2012:17, 2012:19,

2042:23, 2058:10

fixed [1] - 1980:20

flavor [1] - 2033:9

flip [1] - 1980:22

flow [1] - 2036:6

FM [1] - 2064:11

FMG [70] - 1961:24,

1966:14, 1969:24,

1973:20, 1974:3,

1974:20, 1976:3,

1983:13, 1984:6,

1987:10, 1987:12,

1990:12, 1991:2,

1991:11, 1991:22,

1992:2, 1992:25,

1993:22, 1993:25,

1994:1, 1994:7,

1995:11, 1995:15,

1995:25, 1998:1,

1998:17, 2000:13,

2002:25, 2003:2,

2003:5, 2003:6,

2005:24, 2009:16,

2009:24, 2010:2,

2020:21, 2027:22,

2028:16, 2029:1,

2029:14, 2031:1,

2031:19, 2032:10,

2033:10, 2034:12,

2034:17, 2038:7,

2038:14, 2038:20,

2044:4, 2046:7,

2046:10, 2046:11,

2046:12, 2046:17,

2046:25, 2047:7,

2048:3, 2049:13,

2053:17, 2055:1,

2056:5, 2060:8,

2061:9, 2063:16,

2063:19, 2064:25,

2066:13, 2068:21

FMG's [21] - 1967:17,

1975:20, 1975:24,

1976:7, 1977:4,

1980:15, 1987:3,

1987:5, 1987:21,

1990:11, 1990:24,

2023:14, 2030:22,

2033:12, 2038:8,

2041:10, 2046:1,

2048:25, 2063:11

follow [2] - 2019:20,

2069:2

following [1] -

1978:17

follows [1] - 1968:8

footnote [1] - 2018:13

FOR [3] - 1953:6,

1953:9, 1953:13

forget [1] - 2058:16

United States District Court

Trenton, New Jersey

2080

Form [1] - 2012:12

formula [12] -

1973:23, 1974:22,

1974:23, 1974:24,

1975:3, 1975:6,

1975:8, 1975:9,

1975:11, 1978:15,

1978:18, 1978:22

forth [5] - 1962:7,

1971:6, 1975:4,

1996:20, 2000:10

forthcoming [1] -

1965:23

forward [1] - 2056:11

foundation [2] -

1963:10, 1967:1

four[6] - 1955:8,

2050:18, 2050:21,

2050:23, 2051:3,

2051:21

Francis [1] - 1952:24

FRANCIS [1] -

1952:24

Frank [3] - 1988:12,

2001:21, 2039:14

Franklin [1] - 1986:7

frankly [8] - 2059:15,

2062:12, 2062:16,

2062:21, 2063:2,

2065:25, 2067:8,

2070:8

Frankly [1] - 2062:5

free [1] - 2012:2

Friday [1] - 1955:5

front [1] - 2011:7

full [1] - 1972:14

function [2] - 2003:25,

2021:6

functions [2] - 1976:3,

2038:15

fund [64] - 1959:11,

1962:10, 1968:16,

1969:9, 1969:19,

1969:23, 1971:1,

1978:4, 1985:17,

1994:20, 2000:21,

2001:3, 2004:5,

2005:6, 2008:6,

2008:7, 2009:10,

2009:14, 2009:20,

2012:20, 2014:17,

2016:6, 2016:9,

2020:3, 2020:17,

2020:18, 2020:19,

2020:22, 2023:20,

2024:16, 2025:19,

2026:13, 2031:3,

2031:21, 2034:10,

2034:20, 2035:7,

2036:12, 2036:14,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 129 of 143 PageID: 17429
2037:15, 2038:25,

2039:8, 2040:8,

2043:3, 2043:8,

2043:17, 2043:23,

2044:2, 2044:5,

2044:9, 2045:20,

2045:22, 2046:20,

2046:25, 2047:6,

2047:22, 2047:23,

2048:2, 2052:6,

2052:7, 2052:12,

2052:18, 2055:3

Fund [13] - 1976:15,

2005:14, 2011:11,

2013:1, 2014:5,

2030:16, 2043:12,

2047:17, 2051:6,

2051:11, 2051:12,

2051:15, 2051:17

fund's [1] - 2009:23

funds [131] - 1956:7,

1956:14, 1956:22,

1956:25, 1957:25,

1958:10, 1960:10,

1960:13, 1960:16,

1960:24, 1962:17,

1962:18, 1964:6,

1964:7, 1964:17,

1968:4, 1969:1,

1978:23, 1979:16,

1979:22, 1981:2,

1981:8, 1982:25,

1984:1, 1990:18,

1991:23, 1992:3,

1992:5, 1994:14,

1994:21, 1997:14,

2003:18, 2003:20,

2005:9, 2005:21,

2007:20, 2011:20,

2012:4, 2016:25,

2018:10, 2018:16,

2018:17, 2018:18,

2018:21, 2018:22,

2019:6, 2019:13,

2019:14, 2019:17,

2019:19, 2020:3,

2020:4, 2020:12,

2020:13, 2020:16,

2020:24, 2020:25,

2021:4, 2021:11,

2021:12, 2021:14,

2021:16, 2021:21,

2021:25, 2022:1,

2022:4, 2022:5,

2022:17, 2022:18,

2022:21, 2022:22,

2022:23, 2022:24,

2023:3, 2023:6,

2023:18, 2023:20,

2024:7, 2024:14,

2024:21, 2025:17,

2025:19, 2029:3,

2029:19, 2029:21,

2031:21, 2033:17,

2035:4, 2035:5,

2035:6, 2035:11,

2035:14, 2035:15,

2035:18, 2035:21,

2036:16, 2036:17,

2036:23, 2036:24,

2037:22, 2038:7,

2042:10, 2042:13,

2045:5, 2045:12,

2046:24, 2047:15,

2048:5, 2050:7,

2050:9, 2050:10,

2050:14, 2050:19,

2050:21, 2050:23,

2051:3, 2051:4,

2051:21, 2051:22,

2054:5, 2054:6,

2059:17

Funds [3] - 2005:15,

2005:19, 2035:6

FUNDS [1] - 1952:10

funds' [3] - 2007:8,

2009:2, 2009:13

future [4] - 1965:3,

1965:11, 1965:16,

1965:24

G

GABLE [1] - 1952:24

Gable [2] - 1952:24,

2035:9

game [1] - 2053:17

games [1] - 2000:16

Gartenberg [1] -

1961:21

GENERAL [1] -

1953:15

general [6] - 1959:25,

1961:3, 1961:25,

1962:14, 1962:23,

1963:25

generally [3] -

1973:17, 1982:3,

2052:17

generating [1] -

2048:4

given [7] - 2019:13,

2026:8, 2064:21,

2064:22, 2065:3,

2068:15, 2068:17

glad [1] - 2042:21

GLENN [1] - 1952:8

Goldstein [1] -

2055:22

Gordon [12] - 2034:22,

2035:2, 2035:4,

2035:16, 2035:17,

2035:20, 2035:24,

2036:1, 2036:4,

2036:10, 2037:22

Gordon's [2] -

2035:19, 2036:7

govern [1] - 2003:18

Government [1] -

2051:16

graph [3] - 2011:19,

2011:22, 2019:4

greater [2] - 2016:9,

2019:14

Greer [1] - 1992:13

GROUP [1] - 1952:11

group [6] - 1969:11,

1969:12, 2006:9,

2006:19, 2007:2,

2010:1

growth [2] - 2011:18,

2011:19

Growth [2] - 2005:17,

2030:16

guess [6] - 1969:22,

1997:2, 2005:23,

2013:2, 2019:17,

2026:17

H

HADLEY [1] - 1953:11

half [16] - 1983:13,

1984:6, 1985:1,

1985:2, 1985:4,

1989:22, 2008:3,

2008:4, 2009:11,

2009:12, 2023:18,

2023:19, 2033:21,

2036:13, 2047:9,

2047:10

Half [1] - 1984:4

halfway [2] - 1978:6,

1978:7

hand [10] - 1970:5,

2010:8, 2010:11,

2013:12, 2017:18,

2027:5, 2040:14,

2042:24, 2043:14,

2043:15

handling [1] - 2060:7

hard [1] - 2004:23

Harris [1] - 1985:22

Hartford [2] - 1986:13,

2026:19

head [1] - 1955:9

hear [2] - 2041:19,

2068:18

heard [6] - 1957:6,

1957:7, 2041:16,

2063:24, 2064:13,

2068:6

hearsay [1] - 1959:11

heart [1] - 2067:23

heavily [2] - 2003:20,

2003:22

hedge [2] - 2035:6,

2036:24

held [1] - 1994:14

help [2] - 1958:13,

2033:15

helped [1] - 2038:19

helpful [2] - 1964:2,

1967:23

hide [1] - 2009:17

higher[5] - 2007:3,

2021:4, 2038:7,

2050:9, 2050:15

highlight [3] - 2014:7,

2032:6, 2047:4

hire [2] - 2045:7,

2046:7

hired [3] - 1990:17,

2045:25, 2046:1

hiring [6] - 1987:12,

1987:15, 1988:7,

1988:24, 1990:11,

1990:16

Hiring [1] - 1987:16

history [1] - 2031:2

hold [1] - 1994:21

holders [1] - 2053:18

holdings [1] - 2055:3

Honor [117] - 1955:16,

1955:20, 1956:15,

1956:20, 1957:14,

1958:1, 1958:6,

1958:12, 1959:5,

1959:14, 1960:3,

1960:18, 1961:22,

1962:17, 1962:19,

1962:21, 1963:12,

1963:22, 1963:24,

1964:18, 1965:14,

1966:1, 1966:7,

1966:13, 1966:23,

1967:5, 1967:7,

1967:22, 1971:8,

1972:12, 1973:2,

1974:5, 1974:15,

1976:21, 1981:14,

1983:17, 1983:20,

1984:11, 1984:14,

1984:16, 1984:22,

1984:25, 1988:9,

1988:15, 1990:14,

2000:6, 2000:12,

2001:8, 2001:23,

2002:5, 2002:10,

United States District Court

Trenton, New Jersey

2081

2004:9, 2004:13,

2004:19, 2010:12,

2010:19, 2011:1,

2014:19, 2015:21,

2017:21, 2022:6,

2022:13, 2026:23,

2027:7, 2027:11,

2036:21, 2037:7,

2039:9, 2041:6,

2041:16, 2044:10,

2044:16, 2044:19,

2048:6, 2048:21,

2049:3, 2049:23,

2050:12, 2055:21,

2056:3, 2056:9,

2056:13, 2056:15,

2056:18, 2056:23,

2057:2, 2057:6,

2057:9, 2057:14,

2057:20, 2058:15,

2058:21, 2058:22,

2059:10, 2059:13,

2060:1, 2060:4,

2060:6, 2060:15,

2061:3, 2061:5,

2061:10, 2061:19,

2061:20, 2062:2,

2063:10, 2064:15,

2064:21, 2065:8,

2066:3, 2066:7,

2067:3, 2067:14,

2067:17, 2069:7,

2069:16, 2071:3

Honor's [6] - 1961:20,

1964:7, 1964:19,

1965:16, 2061:18,

2068:6

HONORABLE [1] -

1952:17

hooking [1] - 1965:24

HORA [1] - 1953:12

hour [5] - 1985:2,

1985:4, 2002:21,

2070:18

hours [2] - 1972:16,

1989:22

house [3] - 1969:22,

2063:11, 2063:24

hundred [4] - 2020:20,

2030:23, 2030:24,

2038:5

hundreds [1] -

2062:16

hypothetical [1] -

1972:2

I

I-A [1] - 2014:15

IA [4] - 2015:4, 2015:9,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 130 of 143 PageID: 17430
2016:18, 2016:22

IB [2] - 2016:18,

2016:22

ICI [6] - 2017:15,

2017:19, 2021:2,

2049:24, 2050:1,

2051:24

idea [1] - 1973:14

identification [1] -

2056:19

identified [4] - 1969:1,

2005:10, 2005:20,

2054:13

identifies [5] -

1957:23, 2011:23,

2015:3, 2015:4,

2015:8

identify [8] - 1982:7,

1987:18, 1987:19,

1987:22, 1990:24,

1991:1, 1991:16,

2016:15

iffy [1] - 1965:10

ignored [1] - 2028:20

illustrate [2] -

1982:20, 2046:23

immediately [1] -

1973:3

impeach [3] -

1988:17, 2002:3,

2041:25

Implicitly [1] - 2013:10

important [1] -

2003:25

in-house [2] -

2063:11, 2063:24

inaccurate [1] -

2065:19

inappropriate [1] -

2041:12

incapable [1] -

2003:14

inclined [1] - 2061:19

include [6] - 1980:16,

1980:17, 2023:11,

2051:25, 2052:17,

2060:11

included [6] -

2041:10, 2052:13,

2053:12, 2064:6,

2068:1, 2068:12

includes [7] - 2022:1,

2022:8, 2023:12,

2023:15, 2052:14,

2052:19

including [4] -

1971:20, 1976:5,

2003:6, 2063:12

income [1] - 1985:11

inconsistent [2] -

1988:17, 2002:1

incorporated [2] -

2068:13, 2068:14

incorrect [1] - 2033:3

increase [1] - 2064:20

incredibly [3] -

1993:3, 1993:4,

1993:9

independent [5] -

2026:22, 2027:3,

2054:12, 2054:13,

2066:9

Index [10] - 1976:15,

1976:22, 1978:7,

2018:10, 2034:17,

2051:6, 2051:11,

2051:12, 2051:15,

2051:17

index [15] - 2005:24,

2007:16, 2007:23,

2016:25, 2019:5,

2020:24, 2021:16,

2021:25, 2022:1,

2025:17, 2049:21,

2050:18, 2050:21,

2051:21, 2051:22

indicated [3] -

2038:17, 2059:20,

2065:14

indicating [1] - 2008:2

individual [7] -

1956:7, 1956:22,

1964:8, 1968:4,

1969:10, 1997:19,

1997:20

individually [1] -

1962:11

individuals [1] -

2003:9

industry [9] - 1970:22,

1970:24, 1971:1,

1973:19, 1974:2,

1995:9, 2023:6,

2037:16

inform [1] - 2038:19

Information [1] -

2054:7

information [23] -

1957:25, 1959:15,

1960:11, 1964:8,

1965:6, 1969:8,

1969:19, 1969:20,

1969:23, 1969:24,

1970:7, 1970:23,

2006:20, 2006:23,

2009:17, 2012:22,

2026:8, 2054:16,

2056:2, 2058:18,

2064:25, 2069:3,

2070:10

informing [1] -

1956:24

initiated [1] - 2063:11

input [6] - 2061:13,

2062:11, 2063:12,

2064:1, 2064:3,

2065:5

inquiring [1] - 1961:23

inquiry [2] - 2062:20,

2069:17

INS [1] - 1952:6

inside [1] - 1998:17

Insider [1] - 2004:1

Insight [6] - 1969:8,

1969:18, 1969:24,

1970:8, 1970:10,

1982:18

Insights [1] - 1969:17

insignificant [2] -

1989:9, 1989:16

inspection [2] -

2060:25, 2061:20

instance [1] - 2070:5

instruct [1] - 1992:17

INSURANCE [1] -

1953:16

insurance [3] -

2053:1, 2053:12,

2053:16

intelligence [1] -

1997:22

intended [1] - 1988:10

intent [1] - 2040:13

intentionally [2] -

1967:11, 2009:10

interesting [1] -

2033:23

Intermediate [1] -

2051:16

internal [1] - 2065:1

Internet [1] - 2013:22

interoffice [1] - 2061:1

interpret [3] - 2008:9,

2039:12, 2041:20

interpreted [1] -

2059:4

interrupt [1] - 2012:1

interrupted [2] -

1972:20, 2044:12

interrupts [1] -

2044:11

intervene [1] - 1994:2

invest [1] - 2018:17

investigate [1] -

1997:13

investigation [3] -

1996:20, 1998:6,

2010:5

investment [21] -

1977:6, 1977:24,

1981:7, 1983:7,

2018:16, 2022:8,

2036:2, 2036:4,

2038:14, 2038:20,

2038:24, 2039:7,

2040:6, 2041:3,

2042:4, 2042:8,

2052:5, 2052:20,

2053:13, 2068:4

Investment [1] -

2039:3

investments [1] -

1969:21

Investor[1] - 2020:24

investor[1] - 2021:3

investors [1] -

1982:15

involved [9] - 1995:11,

2052:1, 2052:11,

2054:17, 2062:14,

2062:23, 2064:13,

2065:15, 2065:20

involvement [1] -

2064:22

issue [29] - 1960:17,

1961:23, 1962:18,

1964:20, 1968:4,

1979:10, 2000:7,

2001:10, 2016:18,

2016:22, 2018:22,

2019:3, 2022:20,

2022:21, 2037:6,

2047:15, 2055:4,

2056:5, 2057:3,

2058:14, 2058:24,

2061:9, 2062:7,

2062:22, 2069:5,

2069:8, 2069:21,

2070:1, 2070:14

issue's [1] - 2001:17

issued [3] - 2060:8,

2060:9, 2062:3

issuer[1] - 2004:4

issues [8] - 1972:22,

2055:5, 2055:6,

2055:7, 2060:5,

2067:9, 2070:21,

2070:24

item [5] - 1977:8,

1977:22, 1980:10,

1980:20, 2029:19

items [4] - 1962:6,

1962:13, 2000:25,

2030:13

itself [5] - 1974:20,

1990:8, 1998:17,

2059:15, 2066:15

United States District Court

Trenton, New Jersey

2082

J

James [1] - 2025:21

JAMES [1] - 1953:13

JANUARY [1] -

1952:13

Janus [1] - 1986:5

JERSEY [3] - 1952:1,

1952:15, 1952:18

Joenk [10] - 1961:22,

1962:20, 1962:21,

1966:18, 1966:24,

1967:2, 1967:6,

1967:8, 2062:6,

2062:7

Joenk's [1] - 1963:15

joint [1] - 2047:14

JONATHAN [1] -

1953:9

JP [23] - 1980:6,

1980:9, 1980:13,

2000:21, 2000:22,

2001:3, 2001:25,

2002:14, 2002:24,

2003:1, 2049:16,

2054:7, 2054:9,

2054:12, 2054:15,

2054:21, 2055:3,

2055:4, 2055:5,

2055:7, 2055:14,

2064:12, 2066:11

Judge [1] - 2069:5

JUDGE [1] - 1952:17

judge [2] - 2017:19,

2020:2

July [2] - 2057:21

jump [1] - 2068:24

K

keep [1] - 2012:2

keeping [1] - 2029:15

Ken [1] - 1997:13

kept [2] - 2032:12,

2032:18

kind [9] - 1958:20,

2005:4, 2005:9,

2005:24, 2005:25,

2043:4, 2044:1,

2045:24, 2070:17

kinds [1] - 1971:23

kneeling [1] - 2039:25

knowledge [2] -

1996:9, 2053:21

known [3] - 1991:1,

1991:16, 2062:12

knows [1] - 1993:16

Korn [3] - 2056:12,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 131 of 143 PageID: 17431
2061:4, 2070:17

KORN [15] - 1953:9,

1955:15, 2061:5,

2062:2, 2065:8,

2065:23, 2066:7,

2066:17, 2066:22,

2067:3, 2067:8,

2069:7, 2069:25,

2070:8, 2071:3

Korn's [2] - 2064:23,

2067:21

Kozlowski [1] -

1997:13

KWELTY [1] - 1953:5

L

labeled [1] - 2058:8

labeling [1] - 1961:7

labels [1] - 1960:24

lack [1] - 1973:6

LAKIND [3] - 1953:3,

1953:4, 1953:5

landscape [1] -

2027:16

landscapes [2] -

1974:13, 1974:20

language [2] -

2037:15, 2037:18

Large [9] - 2005:13,

2007:7, 2008:10,

2008:19, 2043:2,

2043:7, 2043:12,

2047:4, 2047:17

large [2] - 2021:10,

2021:21

larger [3] - 2019:13,

2021:3, 2050:10

last [4] - 1955:5,

1959:5, 2010:5,

2047:2

late [1] - 2004:1

Laughter [1] - 2067:16

law [5] - 1962:10,

1962:13, 2036:24,

2070:9, 2070:11

laws [1] - 2003:17

lawsuit [2] - 2016:18,

2016:22

lawyer/client [1] -

2070:24

lawyers [1] - 2068:8

lay [1] - 1967:1

least [3] - 1970:7,

2060:24, 2062:24

left [4] - 1970:5,

2008:17, 2028:4,

2043:18

left-hand [1] - 1970:5

legal [3] - 1996:15,

2003:5, 2063:24

legally [2] - 1996:13,

2037:19

length [1] - 2009:21

less [6] - 2020:16,

2020:18, 2021:14,

2021:22, 2023:7,

2027:24

level [4] - 2053:1,

2053:12, 2053:16,

2064:18

levels [2] - 2034:2,

2034:19

LIFE [2] - 1952:6,

1953:16

likely [1] - 1993:8

limited [4] - 2002:1,

2069:15, 2069:20,

2069:22

limiting [1] - 2014:20

line [10] - 1980:20,

1991:8, 1992:21,

1994:4, 1996:4,

1998:23, 2011:18,

2015:24, 2029:19,

2041:11

Lipper[23] - 1969:7,

1970:8, 1970:9,

1982:18, 2006:9,

2006:23, 2007:7,

2007:18, 2008:10,

2008:19, 2009:9,

2009:15, 2018:25,

2026:9, 2026:13,

2026:16, 2026:18,

2026:20, 2026:22,

2049:21, 2049:24,

2050:1, 2059:18

Lipper's [1] - 2027:3

list [3] - 1987:24,

1988:1, 1991:13

listed [5] - 1978:21,

1979:17, 1996:15,

2016:3, 2043:4

listen [1] - 2044:25

litigation [3] -

2062:18, 2062:22,

2065:11

LLP [2] - 1953:8,

1953:11

log [3] - 2055:4,

2055:5, 2055:6

look [19] - 1970:5,

1972:25, 1975:13,

1982:6, 1983:24,

1997:14, 2008:14,

2010:5, 2019:3,

2023:8, 2026:4,

2028:7, 2030:16,

2031:6, 2031:16,

2034:7, 2041:2,

2053:21, 2067:11

looked [7] - 1994:19,

1994:24, 2010:1,

2032:3, 2047:19,

2057:2

looking [20] - 1971:10,

1975:20, 1975:21,

1976:4, 1976:5,

1979:7, 1980:19,

1993:11, 2008:10,

2008:16, 2011:6,

2014:9, 2023:8,

2024:24, 2030:20,

2047:13, 2048:20,

2066:18, 2066:22,

2066:24

lose [1] - 2034:25

loss [4] - 2005:3,

2005:4, 2005:5,

2059:16

losses [9] - 2008:3,

2008:4, 2008:5,

2009:7, 2009:11,

2009:12, 2010:17,

2012:17, 2058:12

lost [1] - 2040:1

Louie [8] - 2060:11,

2062:6, 2062:9,

2063:24, 2063:25,

2065:24, 2069:14,

2070:2

LOUIE [1] - 1953:15

Louie's [4] - 2064:15,

2066:18, 2068:10,

2070:13

low [3] - 2021:11,

2021:17, 2021:19

lower [8] - 1970:17,

1976:6, 2006:23,

2007:4, 2021:4,

2021:5, 2050:14

lowers [1] - 1980:15

lowest [4] - 2020:12,

2020:25, 2023:5

M

mail [2] - 2060:13,

2066:4

mails [3] - 2061:1,

2065:1, 2066:16

maintains [1] -

1969:20

major [1] - 1971:20

majority [2] - 2054:16,

2068:4

manage [2] - 2035:7,

2052:6

managed [5] -

2005:21, 2019:5,

2022:22, 2035:4,

2035:21

MANAGEMENT [1] -

1952:11

Management [3] -

2034:23, 2035:2,

2035:4

management [54] -

1977:6, 1977:8,

1977:24, 1979:5,

1979:6, 1979:8,

1981:7, 1983:5,

1983:6, 1983:7,

2014:18, 2022:8,

2025:1, 2025:21,

2025:25, 2026:6,

2026:9, 2027:21,

2027:24, 2028:11,

2029:3, 2029:22,

2030:7, 2030:20,

2034:22, 2035:1,

2036:2, 2036:5,

2038:15, 2038:21,

2038:24, 2039:3,

2039:7, 2040:6,

2041:3, 2042:5,

2042:8, 2043:23,

2044:2, 2045:13,

2045:17, 2045:23,

2047:18, 2050:15,

2050:19, 2050:22,

2051:3, 2052:5,

2053:13, 2063:14,

2064:7, 2065:22,

2065:23, 2068:4

manager [2] -

1971:18, 2046:9

manager's [1] -

1997:14

managers [9] -

1987:12, 1987:15,

1987:16, 1988:25,

1990:11, 1991:1,

1991:12, 1991:16

MANAGING [1] -

1953:15

manual [2] - 1992:25,

1993:15

manually [2] - 1993:1,

1993:6

March [1] - 2015:10

Marco [8] - 2011:9,

2014:7, 2018:14,

2019:15, 2029:25,

2030:15, 2043:6,

2043:21

margin [45] - 1969:4,

United States District Court

Trenton, New Jersey

2083

1969:6, 1969:10,

1969:12, 1970:16,

1971:3, 1971:16,

1971:20, 1972:3,

1972:8, 1972:19,

1972:23, 1973:1,

1973:11, 1974:21,

1974:24, 1975:8,

1975:10, 1975:12,

1976:7, 1976:16,

1977:16, 1978:10,

1978:13, 1978:23,

1979:23, 1980:15,

1980:18, 1981:6,

1982:9, 1982:11,

1982:17, 1982:23,

1983:2, 1983:14,

1984:7, 2031:10,

2032:25, 2033:17,

2033:22, 2034:5,

2034:11, 2034:19,

2034:21, 2048:13

margins [9] - 1973:24,

1982:8, 1982:11,

1982:13, 1982:15,

1982:21, 1983:9,

2033:10, 2034:1

marked [13] - 1954:10,

1954:11, 1954:12,

1954:13, 1956:9,

1957:18, 1968:20,

1969:13, 1981:19,

1981:23, 1984:17,

2011:3, 2060:2

marketplace [2] -

2003:21, 2021:11

markets [1] - 1995:22

MARY [1] - 1952:3

match [2] - 1965:4,

2057:25

material [1] - 1965:10

materials [4] - 1966:4,

2057:21, 2060:11,

2062:24

math [8] - 1958:22,

1958:24, 1960:20,

1960:21, 1961:4,

1973:22, 2030:19,

2033:25

mathematic [1] -

1968:3

mathematical [4] -

1957:1, 1958:9,

1960:14, 1968:14

mathematician [1] -

1973:22

mathematics [1] -

1972:18

matter [3] - 1962:13,

1972:17, 2067:23

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 132 of 143 PageID: 17432
McCLOY [1] - 1953:11

mean [43] - 1960:25,

1967:8, 1970:22,

1979:14, 1987:23,

1991:25, 1997:3,

1999:4, 1999:5,

1999:12, 1999:24,

1999:25, 2000:2,

2000:3, 2001:4,

2012:1, 2013:23,

2013:24, 2015:22,

2016:11, 2021:1,

2023:2, 2023:3,

2024:21, 2025:17,

2026:17, 2033:5,

2034:6, 2035:22,

2036:6, 2038:11,

2038:24, 2039:10,

2041:20, 2041:23,

2044:6, 2044:7,

2046:11, 2050:9,

2059:4, 2062:19,

2062:21, 2069:17

meaning [2] -

2041:10, 2042:4

meaningless [1] -

1993:2

means [16] - 1972:2,

1996:12, 1996:19,

1999:12, 2000:9,

2001:9, 2001:13,

2001:19, 2002:6,

2003:13, 2021:2,

2023:18, 2024:7,

2041:20, 2041:21,

2041:24

meant [1] - 2000:16

measure [1] - 1992:25

measured [2] -

2018:15, 2019:8

meddle [1] - 1992:5

median [2] - 2023:17,

2023:21

meet [3] - 1955:4,

1998:4, 1998:5

meeting [1] - 1986:19

members [1] -

1992:17

memo [1] - 2055:8

mention [2] - 2009:19,

2058:16

mentioned [2] -

1963:20, 2011:17

mentioning [1] -

1979:2

methodology [6] -

1958:20, 1978:24,

1979:9, 1979:12,

1979:14, 1982:10

mid [1] - 2058:11

middle [1] - 2025:17

might [15] - 1955:2,

1959:2, 1961:17,

1963:15, 1989:2,

1994:23, 1997:23,

2006:13, 2013:19,

2016:21, 2016:23,

2020:8, 2028:23,

2047:1, 2050:7

Milbank [23] - 2056:6,

2060:8, 2061:1,

2061:8, 2061:12,

2061:15, 2062:11,

2062:14, 2062:20,

2062:23, 2063:12,

2064:1, 2064:3,

2064:18, 2065:1,

2065:5, 2065:14,

2066:13, 2068:20,

2069:19, 2070:20,

2070:23

MILBANK [1] -

1953:11

million [35] - 1960:6,

1977:3, 1977:12,

1977:18, 1977:24,

1977:25, 1978:11,

1978:19, 1981:4,

1984:2, 1984:4,

1984:6, 2008:20,

2013:5, 2013:6,

2014:14, 2020:17,

2020:18, 2020:20,

2028:12, 2028:18,

2028:24, 2030:2,

2030:22, 2030:23,

2031:13, 2031:22,

2032:16, 2033:16,

2034:9, 2049:14,

2049:17

mind [4] - 1964:24,

1986:21, 2039:10,

2039:12

minimum [3] -

2060:12, 2060:23,

2061:18

minimus [2] - 1989:2,

1989:4

minus [5] - 1974:25,

1975:2, 2028:14,

2030:20, 2034:9

minute [2] - 1960:21,

2007:22

minutes [1] - 2042:23

misinformation [1] -

2067:24

misleading [1] -

2037:2

missing [1] - 2056:24

mistaken [1] - 2037:2

model [2] - 1995:25,

1998:21

models [4] - 1997:22,

1998:16, 2046:2

moment [2] - 1956:25,

2015:7

money [7] - 1978:22,

2012:20, 2029:14,

2031:25, 2034:12,

2034:15, 2034:17

money's [2] - 2029:12,

2030:6

monitor[1] - 2055:3

monitored [1] -

2035:17

monitoring [4] -

1987:13, 1987:16,

1988:24, 2036:10

monthly [1] - 2055:13

months [1] - 2044:22

Morgan [23] - 1980:6,

1980:9, 1980:14,

2000:21, 2000:22,

2001:3, 2001:25,

2002:14, 2002:25,

2003:1, 2049:16,

2054:8, 2054:9,

2054:12, 2054:15,

2054:21, 2055:3,

2055:4, 2055:5,

2055:7, 2055:14,

2064:12, 2066:12

morning [1] - 1955:24

Morningstar[1] -

2018:24

most [6] - 1993:8,

2003:20, 2005:10,

2005:15, 2007:15,

2020:2

motion [1] - 2059:12

motivated [1] -

2007:22

move [7] - 1981:14,

1984:11, 2004:9,

2029:24, 2033:21,

2034:1, 2056:18

moved [2] - 1973:3,

2058:21

movement [1] -

2033:25

Mr [135] - 1955:7,

1955:19, 1955:24,

1956:6, 1956:16,

1957:8, 1957:22,

1958:8, 1958:11,

1958:14, 1959:8,

1959:24, 1960:15,

1960:18, 1961:3,

1961:14, 1961:22,

1962:7, 1962:16,

1962:20, 1962:21,

1963:2, 1963:5,

1963:15, 1964:2,

1964:15, 1964:23,

1965:5, 1965:10,

1966:9, 1966:17,

1966:18, 1966:24,

1966:25, 1967:2,

1967:6, 1967:8,

1968:1, 1971:13,

1971:17, 1972:3,

1972:4, 1972:9,

1972:11, 1973:6,

1973:9, 1973:10,

1973:18, 1974:1,

1984:23, 1985:8,

1988:3, 1988:13,

1989:21, 1990:1,

1990:7, 1990:23,

1991:20, 1993:20,

1999:7, 2000:20,

2002:6, 2004:16,

2004:17, 2004:18,

2004:22, 2010:3,

2010:16, 2011:6,

2012:1, 2013:14,

2014:11, 2015:1,

2016:25, 2017:23,

2022:17, 2027:9,

2027:15, 2028:8,

2031:17, 2035:9,

2037:8, 2037:13,

2038:18, 2039:24,

2040:21, 2040:25,

2041:9, 2041:18,

2041:20, 2042:21,

2043:14, 2043:15,

2044:8, 2044:14,

2045:3, 2045:15,

2047:1, 2047:12,

2048:11, 2053:11,

2055:17, 2056:12,

2057:22, 2057:24,

2058:9, 2058:23,

2058:24, 2058:25,

2059:7, 2059:15,

2059:20, 2059:23,

2060:13, 2060:16,

2061:4, 2062:6,

2062:7, 2063:25,

2064:18, 2064:23,

2066:1, 2066:17,

2066:20, 2066:22,

2067:21, 2069:14,

2069:18, 2070:1,

2070:7, 2070:17,

2070:25, 2071:4

MR [201] - 1954:3,

1954:4, 1954:5,

1955:9, 1955:15,

1955:20, 1956:3,

United States District Court

Trenton, New Jersey

2084

1956:15, 1956:20,

1957:3, 1957:13,

1957:16, 1957:17,

1958:1, 1958:6,

1958:12, 1958:16,

1959:4, 1959:14,

1959:20, 1959:24,

1960:18, 1961:6,

1961:11, 1961:20,

1962:19, 1963:12,

1964:13, 1964:19,

1965:14, 1966:1,

1966:7, 1966:13,

1966:23, 1967:5,

1967:25, 1968:18,

1968:19, 1971:8,

1971:11, 1971:14,

1971:15, 1972:12,

1973:2, 1974:5,

1974:6, 1974:15,

1974:18, 1974:19,

1976:10, 1976:21,

1981:14, 1981:17,

1981:21, 1983:17,

1983:20, 1983:22,

1983:23, 1984:11,

1984:14, 1984:16,

1984:19, 1984:22,

1984:25, 1985:6,

1985:7, 1988:4,

1988:9, 1988:15,

1988:20, 1989:19,

1990:5, 1990:14,

1990:22, 1991:7,

1991:18, 1992:20,

1993:18, 1994:3,

1994:12, 1996:3,

1997:8, 1998:22,

2000:6, 2000:12,

2000:19, 2001:6,

2001:8, 2001:23,

2002:5, 2002:8,

2002:10, 2002:18,

2004:9, 2004:13,

2004:19, 2004:21,

2008:15, 2008:18,

2010:11, 2010:15,

2010:19, 2010:23,

2011:1, 2011:5,

2012:10, 2012:12,

2012:16, 2013:12,

2014:7, 2014:19,

2014:23, 2014:25,

2015:21, 2015:25,

2016:2, 2017:8,

2017:18, 2017:22,

2018:13, 2019:15,

2022:6, 2022:13,

2022:16, 2025:23,

2026:23, 2027:5,

2027:14, 2029:24,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 133 of 143 PageID: 17433
2030:15, 2032:5,

2032:7, 2033:7,

2036:19, 2036:21,

2037:4, 2037:7,

2037:12, 2039:9,

2039:25, 2040:2,

2040:5, 2040:20,

2040:23, 2040:24,

2041:6, 2041:16,

2041:18, 2042:3,

2043:6, 2043:14,

2043:21, 2043:25,

2044:10, 2044:14,

2044:16, 2044:19,

2045:2, 2047:4,

2048:6, 2048:9,

2048:21, 2049:7,

2049:23, 2049:25,

2050:3, 2055:16,

2055:21, 2055:25,

2056:3, 2056:9,

2056:13, 2056:15,

2056:18, 2056:23,

2057:2, 2057:8,

2058:15, 2059:10,

2059:13, 2060:1,

2060:4, 2060:6,

2061:5, 2061:10,

2062:2, 2063:10,

2065:8, 2065:23,

2066:3, 2066:7,

2066:17, 2066:22,

2067:3, 2067:8,

2067:14, 2067:17,

2069:7, 2069:25,

2070:8, 2071:3

multi [1] - 2051:21

multi-billion [1] -

2051:21

multiple [5] - 2014:20,

2014:21, 2015:1,

2016:5, 2066:5

multitude [1] - 1966:3

MURPHY [103] -

1953:12, 1954:4,

1955:9, 1956:15,

1958:1, 1958:12,

1958:16, 1959:4,

1960:18, 1961:11,

1962:19, 1964:19,

1966:23, 1971:8,

1971:11, 1971:15,

1973:2, 1981:17,

1984:14, 1984:22,

1984:25, 1985:6,

1985:7, 1988:4,

1988:15, 1988:20,

1989:19, 1990:5,

1990:22, 1991:7,

1991:18, 1992:20,

1993:18, 1994:3,

1994:12, 1996:3,

1997:8, 1998:22,

2000:12, 2000:19,

2001:6, 2001:23,

2002:8, 2002:10,

2002:18, 2004:9,

2004:13, 2004:19,

2004:21, 2008:15,

2008:18, 2010:11,

2010:15, 2010:19,

2011:1, 2011:5,

2012:16, 2013:12,

2014:7, 2014:23,

2014:25, 2015:25,

2016:2, 2017:8,

2017:18, 2017:22,

2018:13, 2019:15,

2022:13, 2022:16,

2025:23, 2027:5,

2027:14, 2029:24,

2030:15, 2032:5,

2032:7, 2033:7,

2036:19, 2037:4,

2037:12, 2039:25,

2040:2, 2040:5,

2040:20, 2040:23,

2040:24, 2041:16,

2041:18, 2042:3,

2043:6, 2043:14,

2043:21, 2043:25,

2044:14, 2045:2,

2047:4, 2048:6,

2049:23, 2056:9,

2056:13, 2057:8,

2060:1

Murphy [14] - 1958:11,

1984:23, 1988:3,

1988:13, 2002:6,

2004:18, 2039:24,

2047:12, 2056:12,

2058:24, 2058:25,

2059:7, 2059:20

Murphy's [1] -

2059:15

must [1] - 2042:22

mutual [26] - 1969:9,

1969:19, 1969:23,

1971:1, 1985:17,

2003:18, 2003:20,

2004:5, 2016:6,

2018:16, 2018:17,

2018:18, 2018:21,

2019:13, 2020:16,

2020:17, 2020:18,

2020:19, 2023:3,

2026:13, 2037:15,

2052:6, 2052:7,

2052:12, 2052:18,

2054:5

MYLES [1] - 1953:6

N

name [1] - 2046:11

names [1] - 2035:15

nature [3] - 2059:3,

2059:25, 2066:16

necessarily [5] -

2005:5, 2006:12,

2020:13, 2029:11,

2050:13

necessary [2] -

2061:16, 2061:23

need [12] - 1974:15,

1975:13, 1978:3,

1993:7, 1998:14,

2004:22, 2012:2,

2019:25, 2027:7,

2028:7, 2042:23,

2070:9

needed [2] - 1992:12,

1992:18

needs [1] - 1960:22

negative [4] - 2007:11,

2034:3, 2034:4,

2034:5

negotiated [2] -

2030:13, 2046:17

negotiation [2] -

2046:13, 2046:18

negotiations [1] -

2045:19

net [2] - 2015:2,

2015:4

never[6] - 1972:6,

1998:7, 2030:23,

2046:16, 2067:12,

2067:20

New [3] - 1990:12,

1990:25, 1991:15

NEW [3] - 1952:1,

1952:15, 1952:18

new [5] - 1958:22,

1990:11, 1990:24,

1991:11, 2004:9

next [10] - 1955:3,

1968:17, 1982:24,

2021:23, 2030:1,

2043:3, 2043:6,

2043:7, 2055:21,

2059:9

Next [1] - 2055:20

night [1] - 2010:5

NO [2] - 1952:5,

1952:9

nobody [2] - 1995:16,

1997:20

non [2] - 2009:1,

2052:7

non-prospectus [1] -

2009:1

non-variable [1] -

2052:7

none [4] - 1965:12,

2024:21, 2057:24,

2068:17

noon [1] - 1955:16

normal [1] - 1994:18

note [3] - 2019:7,

2058:3, 2058:10

notes [2] - 2059:6,

2059:7

Nothing [3] - 1989:8,

1989:15, 2055:16

nothing [8] - 1956:22,

1960:14, 1965:24,

2041:9, 2041:13,

2063:1, 2065:11,

2067:8

now's [1] - 1985:1

Number [1] - 2067:23

number[54] -

1956:23, 1957:10,

1957:11, 1958:8,

1958:22, 1959:16,

1959:18, 1959:19,

1959:20, 1959:21,

1959:22, 1960:2,

1960:9, 1960:13,

1960:25, 1963:6,

1963:8, 1963:18,

1964:6, 1964:16,

1966:10, 1971:18,

1975:18, 1975:21,

1975:22, 1978:19,

1978:20, 1983:1,

1994:25, 2007:13,

2008:22, 2008:23,

2009:15, 2014:5,

2014:8, 2015:18,

2018:21, 2020:12,

2023:19, 2024:1,

2024:17, 2025:2,

2025:5, 2031:5,

2034:3, 2034:5,

2046:18, 2049:24,

2057:12, 2064:20,

2067:4, 2067:22

numbers [38] -

1957:9, 1960:5,

1961:4, 1961:17,

1963:3, 1963:5,

1963:6, 1964:3,

1971:6, 1971:25,

1972:25, 1973:1,

1974:10, 1975:4,

1976:6, 1976:15,

1977:1, 1978:21,

United States District Court

Trenton, New Jersey

2085

1979:17, 1979:18,

1979:20, 1980:13,

2010:6, 2016:13,

2017:10, 2018:2,

2018:5, 2019:23,

2023:11, 2023:24,

2024:15, 2025:13,

2026:7, 2027:16,

2030:9, 2038:3,

2049:19, 2058:2

O

oath [4] - 1955:25,

1986:24, 2004:17,

2040:16

object [9] - 1988:9,

1990:14, 2000:10,

2001:8, 2001:15,

2022:6, 2039:9,

2041:6, 2045:1

objected [2] - 1972:4,

2058:22

objecting [2] -

1972:13

Objection [4] -

1958:1, 2012:10,

2026:23, 2049:23

objection [8] -

1956:15, 1961:8,

1981:17, 2010:22,

2010:23, 2012:11,

2014:19, 2044:18

objections [6] -

1955:14, 1973:14,

1981:16, 1984:13,

2057:12, 2062:5

objectives [4] -

2038:25, 2039:8,

2040:8, 2042:8

obligations [1] -

2055:14

obtain [1] - 2054:9

obviously [4] -

1962:3, 1962:9,

2058:19, 2063:18

October [3] - 2044:17,

2044:20, 2058:8

OF [8] - 1952:1,

1952:18, 1954:3,

1954:4, 1954:5,

1956:2, 1985:7,

2048:9

offer[3] - 1958:16,

1969:11, 2010:19

offered [4] - 1974:11,

2006:9, 2009:17,

2041:21

offering [4] - 1958:19,

1959:6, 1960:23,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 134 of 143 PageID: 17434
2047:25

offers [3] - 1992:2,

2041:20, 2046:10

office [5] - 1987:20,

1987:21, 1989:10,

1989:12, 1989:13

offices [1] - 1998:7

OFFICIAL [1] -

1952:25

offset [3] - 2029:8,

2029:15, 2030:3

offsets [1] - 1971:24

often [1] - 1998:5

omit [1] - 2046:12

once [1] - 1978:18

one [84] - 1955:13,

1956:4, 1960:5,

1961:21, 1966:23,

1967:18, 1969:7,

1995:6, 1997:24,

2001:17, 2002:3,

2003:20, 2005:18,

2005:22, 2006:1,

2006:8, 2007:3,

2007:8, 2007:25,

2008:1, 2008:2,

2008:19, 2009:10,

2011:10, 2012:21,

2014:21, 2015:7,

2015:18, 2017:19,

2019:18, 2019:19,

2020:7, 2023:1,

2030:1, 2030:2,

2031:17, 2032:6,

2033:6, 2033:8,

2035:19, 2036:13,

2036:16, 2036:18,

2037:23, 2038:5,

2038:12, 2040:21,

2042:14, 2043:1,

2043:18, 2045:4,

2045:12, 2052:12,

2056:14, 2056:23,

2056:25, 2057:18,

2058:24, 2060:6,

2060:13, 2060:14,

2061:5, 2061:11,

2063:13, 2063:16,

2063:25, 2064:7,

2064:13, 2065:8,

2065:13, 2065:17,

2065:21, 2066:4,

2066:6, 2067:4,

2067:18, 2067:21,

2067:22, 2068:11,

2070:22

one's [1] - 2018:3

ones [3] - 1996:13,

1996:19, 2053:6

open [1] - 1991:14

operates [1] - 2003:1

operating [2] -

1970:16, 2034:21

opine [1] - 2022:9

opinion [20] -

1958:19, 1959:7,

1963:16, 1974:4,

1987:3, 1987:4,

1990:15, 1990:19,

1993:22, 1999:1,

2000:20, 2001:3,

2002:19, 2002:23,

2022:7, 2022:10,

2027:1, 2038:20,

2041:21, 2044:23

opinions [3] - 1956:4,

1987:2, 1993:10

opportunity [1] -

1972:15

opposed [3] -

2020:21, 2052:7,

2063:19

options [1] - 1982:16

oranges [2] - 2037:2,

2038:11

order[5] - 1974:9,

1975:11, 1977:15,

2060:7, 2060:23

ordered [1] - 2057:16

ordinary [1] - 1995:3

organization [1] -

1969:19

original [2] - 1964:10,

2033:5

originally [1] -

1955:12

outline [1] - 2042:22

outlining [1] - 2055:8

outside [2] - 1990:15,

2022:9

overcharge [1] -

2031:3

overlay [5] - 1991:22,

1991:24, 1992:3,

1992:14, 1992:18

Overruled [6] -

2000:18, 2002:9,

2022:11, 2026:25,

2039:17, 2042:2

overruled [1] -

1990:20

oversaw [1] - 2035:17

oversee [1] - 2047:7

overseeing [4] -

2036:10, 2037:5,

2037:22, 2037:23

oversees [1] - 2044:5

oversight [1] -

1975:25

owe [2] - 2034:15,

2034:17

owed [1] - 2034:12

own [1] - 2048:4

P

P-117 [4] - 2017:18,

2020:23, 2021:24,

2025:23

P-151 [1] - 2042:18

P-151-E [2] - 2032:5,

2056:16

P-151-I [3] - 2004:20,

2010:17, 2056:24

P-151-J [12] - 1968:24,

1968:25, 1971:5,

1973:17, 1974:8,

1977:1, 1980:22,

1981:14, 1981:18,

2008:14, 2031:7,

2056:20

P-151-K [5] - 1981:23,

1981:25, 1984:9,

1984:11, 2056:21

P-151-L [3] - 1956:9,

1956:12, 1964:14

P-152 [2] - 2017:8,

2025:11

P-164 [3] - 1969:14,

1969:15, 1970:2

P-167 [1] - 2056:16

P-197-A [3] - 1957:19,

1957:21, 1957:25

P-509 [2] - 2047:1,

2047:3

P-51 [1] - 2057:20

P-52-B [3] - 2027:16,

2028:7, 2030:17

P-54 [1] - 2057:20

P-67 [1] - 2056:16

P-74 [2] - 2005:11,

2007:6

p.m [1] - 2054:8

Page [1] - 2018:2

page [41] - 1957:10,

1970:2, 1970:5,

1970:6, 1974:8,

1976:19, 1976:20,

1976:22, 1977:19,

1978:6, 1978:7,

1980:2, 1980:22,

1982:5, 1982:6,

1988:21, 1992:20,

2014:1, 2014:4,

2017:8, 2017:25,

2018:7, 2020:23,

2021:23, 2021:24,

2022:14, 2025:11,

2025:23, 2030:17,

2040:15, 2041:2,

2042:20, 2043:3,

2043:6, 2043:7,

2043:24, 2044:1,

2047:3, 2053:24,

2054:21, 2058:23

pages [4] - 1981:25,

2013:17, 2013:18,

2043:2

paid [15] - 1978:22,

1979:22, 1982:15,

1983:13, 1984:1,

1984:6, 1984:7,

2027:22, 2028:16,

2028:25, 2029:1,

2030:22, 2032:11,

2049:13, 2049:17

paper [1] - 1991:4

papers [4] - 2010:9,

2010:16, 2048:23,

2058:1

part [8] - 1959:5,

1991:5, 1992:18,

2003:14, 2005:10,

2043:22, 2068:8,

2069:12

particular [4] - 2008:7,

2009:14, 2034:10,

2034:20

particularly [1] -

1967:6

parties [1] - 2061:1

partnerships [2] -

2037:11, 2037:20

party [4] - 1969:18,

1980:19, 1997:22,

2054:13

past [2] - 2021:10,

2069:8

path [1] - 2067:11

PATRICIA [1] -

1953:15

pay [3] - 2020:15,

2020:16, 2031:20

paying [1] - 2045:23

payment [2] - 1980:5,

1980:9

payments [1] -

1980:21

PC [1] - 1953:3

Peck [1] - 1992:13

peer [5] - 1972:6,

2006:9, 2006:19,

2007:2, 2010:1

people [8] - 1968:12,

1993:14, 1997:18,

1998:2, 1998:12,

1998:18, 1998:20,

1999:2

per[2] - 1968:15,

United States District Court

Trenton, New Jersey

2086

2016:16

percent [55] - 1969:3,

1969:6, 1969:12,

1970:17, 1970:18,

1971:3, 1971:16,

1971:19, 1972:2,

1975:2, 1975:10,

1975:12, 1975:16,

1976:16, 1978:13,

1978:15, 1978:23,

1979:23, 1980:18,

1981:6, 1982:9,

1982:11, 1982:12,

1984:10, 1985:11,

2009:7, 2020:6,

2020:8, 2023:3,

2023:5, 2023:6,

2023:10, 2024:7,

2024:17, 2031:10,

2031:20, 2031:21,

2032:25, 2033:16,

2033:17, 2033:22,

2034:5, 2034:8,

2034:9, 2034:11,

2034:21, 2036:13,

2036:16, 2037:23,

2038:1, 2038:5,

2038:12, 2048:13,

2049:22

percentile [2] -

2023:2, 2024:6

perform [1] - 1989:3

performance [14] -

2005:3, 2005:8,

2006:9, 2006:18,

2006:19, 2006:20,

2006:22, 2007:14,

2008:12, 2009:16,

2009:23, 2036:14,

2047:25

performed [6] -

1968:25, 1987:5,

1991:3, 2005:6,

2006:21, 2012:4

performing [1] -

1976:2

performs [2] - 1991:2,

2000:22

perhaps [3] - 1960:20,

1964:20, 2056:6

period [6] - 1962:4,

2013:2, 2014:13,

2058:11, 2058:14,

2058:19

permanent [1] -

2030:11

permits [1] - 1964:18

permitted [4] - 1961:1,

1990:15, 1990:16,

2015:22

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 135 of 143 PageID: 17435
person [1] - 2039:12

pertaining [1] -

1969:21

pertains [1] - 2064:24

PETER [1] - 1952:17

PGS [2] - 1952:5,

1952:10

Ph.D [5] - 1954:3,

1955:22, 1956:2,

1972:17, 2023:23

PH.D [4] - 1954:4,

1954:5, 1985:7,

2048:9

Phil [1] - 2055:22

phrase [4] - 2039:19,

2040:12, 2041:8,

2042:4

PIMCO [3] - 2011:10,

2013:1, 2014:5

plaintiff [5] - 1968:9,

1985:19, 2017:19,

2034:16, 2070:13

Plaintiff's [7] -

1954:11, 1954:13,

1981:19, 1984:17,

2053:21, 2053:23,

2060:2

plaintiff's [3] -

1954:10, 1955:5,

1984:19

PLAINTIFFS [3] -

1952:4, 1952:8,

1953:6

plaintiffs [14] -

1955:20, 1962:2,

1966:20, 1967:13,

1968:10, 1968:11,

2057:15, 2057:16,

2061:6, 2061:20,

2062:12, 2062:19,

2064:10

plaintiffs' [8] -

1957:25, 1960:10,

1962:9, 1981:8,

1990:18, 2051:21,

2054:5, 2055:22

play [14] - 1988:4,

1988:20, 1989:22,

1991:7, 1992:20,

1993:22, 1994:3,

1994:7, 1996:3,

2001:6, 2020:20,

2036:19, 2036:21,

2037:9

played [9] - 1988:5,

1988:22, 1991:9,

1992:22, 1994:5,

1996:5, 1998:24,

2000:16, 2002:12

plays [1] - 2063:19

plenty [2] - 1991:5,

2068:6

PLUS [9] - 2005:14,

2005:15, 2005:19,

2008:19, 2043:2,

2043:7, 2043:12,

2047:5, 2047:17

plus [1] - 1955:4

point [22] - 1958:3,

1963:11, 1965:15,

1967:5, 1967:18,

1992:13, 1992:15,

2011:15, 2019:18,

2019:19, 2021:22,

2032:24, 2042:22,

2045:10, 2046:6,

2047:24, 2050:14,

2052:12, 2058:7,

2066:7, 2070:17

pointed [4] - 2042:15,

2048:11, 2049:11,

2051:24

pointing [1] - 2029:18

points [19] - 2017:3,

2017:11, 2019:18,

2019:19, 2019:20,

2020:4, 2021:13,

2021:14, 2022:14,

2023:4, 2023:7,

2024:17, 2038:5,

2045:13, 2045:16,

2047:7, 2047:8,

2047:9

POMERANTZ [8] -

1954:2, 1954:3,

1954:4, 1954:5,

1955:22, 1956:2,

1985:7, 2048:9

Pomerantz [85] -

1955:21, 1955:24,

1956:4, 1956:16,

1957:8, 1959:8,

1959:14, 1960:8,

1961:14, 1962:8,

1962:15, 1964:11,

1965:8, 1965:17,

1965:21, 1968:21,

1971:17, 1972:4,

1972:16, 1972:17,

1973:6, 1973:10,

1973:18, 1974:7,

1976:14, 1976:23,

1981:22, 1981:23,

1983:24, 1984:20,

1985:8, 1988:6,

1988:23, 1989:21,

1990:1, 1990:7,

1990:23, 1991:10,

1991:20, 1992:23,

1993:20, 1994:6,

1996:6, 1998:25,

2000:20, 2002:13,

2004:16, 2004:17,

2004:22, 2010:3,

2010:16, 2011:6,

2012:1, 2013:14,

2014:11, 2015:1,

2016:25, 2017:23,

2022:6, 2022:17,

2027:9, 2027:15,

2028:8, 2031:18,

2037:13, 2038:18,

2040:4, 2040:25,

2041:9, 2041:20,

2042:21, 2043:14,

2044:8, 2044:14,

2044:21, 2045:3,

2045:15, 2047:2,

2048:11, 2055:18,

2057:18, 2057:22,

2057:24, 2058:9,

2059:23

Pomerantz's [4] -

1963:3, 1968:3,

1972:15, 1974:1

portfolio [1] - 1997:14

Portfolio [1] - 2034:17

Portion [16] - 1988:5,

1988:8, 1988:22,

1989:18, 1991:9,

1991:17, 1992:22,

1993:17, 1994:5,

1994:11, 1996:5,

1997:7, 1998:24,

2000:5, 2002:12,

2002:17

portrays [1] - 2059:19

position [8] - 1960:19,

1962:9, 1967:18,

1995:4, 1995:17,

1996:25, 1997:10,

1997:16

possess [1] - 1961:16

possible [2] -

1966:15, 1968:15

possibly [3] - 1963:21,

1967:19, 2057:23

posted [1] - 1970:18

pre [3] - 1969:10,

1970:16, 2054:10

pre-approved [1] -

2054:10

pre-tax [2] - 1969:10,

1970:16

precise [1] - 1963:6

preclude [1] - 1965:18

precluded [2] -

1959:12, 1963:1

precluding [1] -

1965:17

preference [1] -

2006:15

prepare [1] - 1982:1

prepared [5] -

1956:13, 1957:22,

1983:10, 2041:7,

2044:24

prepares [1] - 1974:20

present [2] - 1973:16,

2059:12

PRESENT [1] -

1953:15

presentation [1] -

2001:15

presentations [1] -

1989:6

presented [2] -

1965:2, 2067:12

preserve [1] - 2070:23

presumably [3] -

1960:11, 1983:8,

1988:10

pretty [5] - 1959:5,

1970:9, 2003:17,

2003:25, 2015:23

previous [1] - 2022:14

previously [1] -

1955:22

price [7] - 1995:6,

1996:8, 1996:10,

1996:16, 1998:21,

1999:18, 2054:12

prices [2] - 1996:18,

2054:9

Pricing [1] - 2054:2

pricing [13] - 1993:23,

1994:7, 1995:5,

1997:22, 1998:13,

1998:14, 1998:16,

1998:18, 1999:3,

2053:20, 2054:5,

2054:9, 2054:16

Primarily [1] - 1982:20

primarily [2] -

1993:24, 2018:18

Principal [2] -

1986:20, 1986:22

Principle [1] - 1986:17

print [2] - 2010:12,

2011:10

printing [1] - 1987:23

privilege [5] -

2069:10, 2069:13,

2069:21, 2070:4,

2070:24

probe [1] - 1990:16

problem [5] - 1956:21,

1975:9, 2043:1,

2055:8, 2066:15

problems [1] - 1963:5

United States District Court

Trenton, New Jersey

2087

procedure [1] - 2069:2

proceed [2] - 2004:18,

2071:3

process [7] - 1974:9,

1981:11, 1992:25,

1993:1, 1993:15,

1997:24, 2062:24

processed [1] -

1994:17

produce [8] - 1975:11,

1975:16, 1978:15,

1978:20, 2011:18,

2058:4, 2069:13,

2069:22

produced [1] -

2010:13

product [23] -

1959:25, 1961:3,

1961:24, 1962:14,

1962:24, 1963:25,

1975:17, 1976:1,

2028:18, 2028:22,

2028:25, 2029:17,

2045:8, 2046:8,

2046:10, 2046:14,

2046:15, 2047:8,

2047:11, 2047:20,

2047:21, 2053:2

products [2] -

2005:21, 2047:25

professional [1] -

1985:8

professionals [1] -

2003:6

proffer[3] - 1965:4,

1965:11, 1965:21

proffering [1] -

1968:12

profit [34] - 1969:3,

1969:6, 1969:12,

1971:3, 1971:16,

1971:17, 1971:20,

1972:2, 1972:8,

1972:19, 1972:22,

1972:25, 1973:7,

1973:11, 1973:24,

1976:16, 1977:16,

1978:13, 1979:23,

1980:18, 1981:6,

1982:9, 1982:17,

1983:2, 1983:9,

1983:14, 1984:7,

2031:10, 2031:19,

2031:20, 2031:21,

2032:17, 2032:19,

2048:13

profitability [3] -

1974:11, 2016:15,

2016:20

project [1] - 1960:3

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 136 of 143 PageID: 17436
projected [1] - 1960:4

proof [3] - 1966:20,

1967:1, 1968:9

proper [1] - 2069:1

proprietary [14] -

2042:10, 2042:12,

2043:8, 2044:2,

2044:9, 2045:5,

2045:8, 2046:8,

2046:20, 2047:6,

2047:11, 2047:20,

2047:22, 2048:5

prospectus [31] -

1987:23, 1999:14,

2005:9, 2006:5,

2006:7, 2006:8,

2006:12, 2006:15,

2006:17, 2006:18,

2006:22, 2008:1,

2008:2, 2008:4,

2008:6, 2009:1,

2009:3, 2009:20,

2009:23, 2010:4,

2013:16, 2013:24,

2014:1, 2014:17,

2015:3, 2015:17,

2016:4, 2016:12,

2043:17

prospectuses [2] -

2016:5, 2016:13

provide [9] - 1968:21,

1987:20, 1988:16,

1989:10, 2054:15,

2055:5, 2060:24,

2065:24, 2070:3

provided [10] -

1956:4, 2012:23,

2045:17, 2054:7,

2055:8, 2061:3,

2062:18, 2062:24,

2064:21, 2067:24

provides [2] -

1969:24, 1987:7

providing [1] -

2002:15

provision [2] -

2054:11, 2062:8

public [6] - 1969:9,

1970:17, 1970:20,

1970:23, 1994:15

publicly [1] - 1970:23

pull [1] - 1994:25

Pull [1] - 2008:17

pulled [2] - 2018:5,

2033:5

purports [3] -

1971:15, 2014:2,

2033:9

purpose [1] - 2046:22

purposely [1] -

1966:25

purposes [1] -

2065:11

pursuant [1] - 1978:21

put [7] - 1955:9,

1957:3, 1967:14,

1996:19, 2032:2,

2058:12, 2068:9

putting [6] - 1957:9,

1961:9, 1967:13,

1968:14, 2060:17,

2062:22

Q

qualifications [2] -

1957:8, 1957:12

qualified [3] -

1956:18, 1957:5,

1974:3

quantity [1] - 1974:25

quarter [2] - 2004:12,

2014:18

quarterly [1] - 2055:13

quarters [1] - 1976:18

questioned [1] -

1961:22

questioning [3] -

2015:24, 2041:12,

2050:4

questions [9] -

1982:4, 1989:20,

1990:6, 1991:19,

1993:19, 2000:13,

2044:25, 2048:6,

2066:10

quickly [1] - 2034:2

quite [3] - 2016:5,

2057:12, 2059:15

R

R.M.R [1] - 1952:24

range [4] - 1982:15,

1983:8, 2034:2,

2049:22

ranges [1] - 1982:19

rate [2] - 2059:11,

2059:20

rather[2] - 1985:3,

2033:6

ratio [13] - 2019:5,

2023:9, 2023:11,

2023:14, 2024:8,

2024:20, 2024:21,

2025:7, 2025:12,

2025:15, 2026:1,

2052:19, 2053:9

ratios [14] - 2018:15,

2019:7, 2021:25,

2022:7, 2022:8,

2022:14, 2025:16,

2025:24, 2026:3,

2026:5, 2026:7,

2052:13, 2052:17

re [1] - 2036:6

re-allocation [1] -

2036:6

read [15] - 1973:2,

1988:14, 1991:4,

1996:7, 1998:9,

1999:23, 2001:22,

2011:9, 2027:11,

2028:9, 2028:10,

2033:15, 2039:16,

2042:25, 2054:24

reading [1] - 2029:13

ready [2] - 1984:25,

2056:8

really [15] - 1961:15,

1965:10, 1967:6,

1973:22, 1987:3,

1987:10, 1993:10,

1997:17, 2021:2,

2021:10, 2021:19,

2030:23, 2057:18,

2059:16, 2059:21

realm [2] - 1972:3,

1972:25

reason [6] - 2014:1,

2016:8, 2059:22,

2068:20, 2068:23,

2070:12

reasonable [2] -

2039:1, 2039:6

reasonably [1] -

2030:10

reasons [4] - 1980:13,

2016:11, 2031:5,

2059:15

rebuttal [1] - 2033:1

receive [1] - 2068:7

received [3] - 1983:14,

2032:18, 2062:11

Recess [1] - 2004:15

recognize [3] -

1956:10, 1957:19,

2013:18

recollection [6] -

1958:14, 1962:20,

1973:18, 2036:23,

2054:14, 2060:9

record [5] - 1966:2,

1966:13, 1996:4,

1996:7, 2058:23

recreating [1] -

2011:16

redirect [2] - 2002:8,

2037:8

REDIRECT [2] -

1954:5, 2048:9

Redirect [1] - 2048:8

Reed [1] - 1985:24

refer [1] - 2040:7

reference [2] - 2006:2,

2063:8

referred [2] - 2050:20,

2053:10

referring [5] -

1970:25, 1993:16,

2025:22, 2036:23,

2038:22

reflect [4] - 2023:2,

2026:3, 2029:1,

2030:25

reflected [2] -

2030:12, 2050:8

reflects [1] - 2047:15

refresh [2] - 1958:13,

2060:9

refused [1] - 2000:13

regard [22] - 1973:17,

1973:21, 1974:2,

2001:10, 2041:13,

2058:25, 2062:8,

2062:10, 2062:17,

2063:3, 2064:4,

2065:13, 2065:19,

2065:20, 2066:10,

2066:11, 2066:13,

2068:11, 2069:12,

2069:20, 2070:6

Regardless [1] -

2050:4

regulated [2] -

2003:21, 2003:23

regulation [1] - 2004:4

regulations [1] -

2003:18

reimbursement [5] -

2028:25, 2029:18,

2030:3, 2030:11,

2031:3

reimbursements [4] -

2028:19, 2028:22,

2028:23, 2030:4

reject [1] - 1963:15

relates [2] - 1957:25,

1975:8

relating [1] - 2064:25

relationship [1] -

1974:21

relevant [6] - 1961:12,

1961:19, 2024:23,

2025:9, 2058:11,

2067:9

reliable [1] - 2058:7

relied [6] - 1970:7,

2021:24, 2039:4,

United States District Court

Trenton, New Jersey

2088

2057:18, 2065:3,

2065:4

reluctantly [1] -

2057:10

rely [1] - 1997:21

relying [1] - 2002:24

remainder [1] - 1955:3

remember[7] -

1958:14, 1958:25,

1964:25, 2049:22,

2052:15, 2066:5,

2066:6

remind [1] - 1967:12

removed [3] -

1966:25, 1967:3,

1967:6

rendered [1] - 2044:23

renew [1] - 1957:7

repeat [4] - 1983:16,

1988:12, 1990:23,

2039:14

repeatedly [1] -

2000:15

Rephrase [1] -

2014:24

rephrase [7] - 1999:9,

2012:15, 2014:23,

2016:1, 2039:23,

2040:3, 2045:3

replicate [1] - 1971:18

replicated [2] -

1958:20, 1958:21

report [32] - 1967:10,

1969:9, 1972:15,

1973:2, 1975:14,

1992:16, 1995:2,

2010:2, 2011:22,

2013:25, 2017:5,

2017:7, 2018:3,

2018:4, 2018:6,

2029:17, 2032:25,

2033:1, 2041:2,

2041:4, 2041:9,

2041:23, 2042:16,

2042:18, 2043:19,

2044:21, 2044:24,

2046:22, 2047:24,

2050:1, 2057:23

reported [9] - 1961:24,

1961:25, 1963:17,

1966:4, 1966:10,

2016:20, 2017:13,

2019:1, 2049:24

reporter[3] - 1988:14,

2001:22, 2039:16

REPORTER [1] -

1952:25

reporting [6] - 1960:2,

1962:5, 1963:18,

1964:3, 1966:10,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 137 of 143 PageID: 17437
1966:14

reports [8] - 1974:11,

1993:11, 2011:17,

2016:15, 2016:20,

2029:7, 2057:24,

2057:25

represent [4] -

1959:22, 1959:23,

1966:19, 2013:23

representative [1] -

2020:13

representing [1] -

1961:18

represents [4] -

1957:11, 1959:24,

2034:20, 2059:22

request [16] - 1964:10,

1964:11, 2057:4,

2060:22, 2062:9,

2062:13, 2065:10,

2065:14, 2065:18,

2067:6, 2069:1,

2069:2, 2069:3,

2070:7, 2070:18

requested [3] -

1968:21, 2057:15,

2057:16

requests [2] - 2064:2,

2064:12

require [1] - 1998:15

required [3] - 1952:23,

1962:10, 2052:6

requires [4] - 1962:10,

1997:17, 1997:18

research [2] -

1990:11, 1990:24

researches [1] -

1991:11

resolution [1] -

1967:20

resolve [1] - 2070:1

resolving [1] -

1995:12

resources [1] -

1998:17

respect [9] - 1957:24,

1962:8, 2001:19,

2044:17, 2044:19,

2050:4, 2060:10,

2061:13, 2063:4

respective [2] -

1956:14, 1979:21

responded [1] -

2064:2

response [3] - 2021:5,

2065:18, 2066:23

responsibilities [3] -

2000:25, 2036:5,

2037:5

responsibility [9] -

1994:9, 1995:5,

1996:13, 1996:16,

1998:20, 2035:19,

2036:2, 2036:7,

2038:21

responsible [10] -

1987:23, 1989:1,

1992:16, 1994:1,

1995:12, 1995:15,

1995:21, 1996:14,

1997:23, 2054:11

restricted [1] -

2012:21

result [2] - 2045:18,

2046:18

results [1] - 1971:19

resumes [1] - 1955:22

retain [1] - 2036:4

retained [4] - 1985:16,

2028:5, 2031:1,

2032:4

return [12] - 2007:1,

2007:11, 2007:14,

2007:20, 2008:11,

2028:24, 2028:25,

2031:21, 2032:16,

2032:18, 2033:16,

2048:3

returned [2] - 2005:6,

2011:20

returns [6] - 2011:13,

2011:20, 2011:21,

2038:2, 2046:24,

2059:17

reveal [1] - 1967:16

revealed [1] - 2068:25

revenue [27] -

1974:21, 1974:25,

1975:1, 1975:8,

1975:11, 1975:13,

1975:15, 1975:19,

1975:21, 1976:4,

1976:7, 1977:2,

1977:4, 1977:5,

1977:6, 1978:10,

1978:12, 1978:14,

1978:17, 1978:20,

1979:8, 1980:10,

2029:8, 2029:10,

2029:15

revenues [2] -

1971:24, 1977:8

review [4] - 2059:16,

2062:24, 2064:13,

2066:20

reviewed [4] -

1962:10, 1972:7,

2062:20, 2065:15

reviewing [3] -

1964:7, 1992:24,

2062:14

revisions [1] -

2066:23

ring [1] - 1973:15

risk [2] - 2034:22,

2035:1

road [1] - 2048:1

ROBERT [2] - 1953:5,

1953:12

role [3] - 1993:22,

1994:7, 2020:20

ROME [1] - 1953:8

roughly [1] - 2008:22

round [1] - 1963:14

rounded [3] - 1963:12,

1963:13, 1964:16

rounds [1] - 1963:5

row [2] - 2034:7,

2034:20

rubric [2] - 2001:1,

2003:4

ruled [1] - 1961:14

ruling [5] - 1956:17,

1959:12, 1965:17,

1965:19, 1968:8

run [1] - 1976:3

running [3] - 1958:2,

1978:4, 1992:16

Russell [14] - 1986:15,

1986:18, 2005:16,

2005:17, 2005:18,

2005:22, 2006:3,

2007:1, 2007:8,

2007:16, 2007:17,

2008:12

S

SAI [2] - 2038:23,

2040:13

SANFORD [1] -

1952:8

satisfied [1] - 2048:3

save [1] - 2045:4

saw [5] - 1978:17,

2038:13, 2038:19,

2039:3, 2047:6

schedule [2] - 1955:3,

2047:16

scheduled [1] -

2055:22

schedules [3] -

2030:11, 2030:12,

2047:15

scope [2] - 1990:15,

2022:9

screen [3] - 2027:11,

2028:9, 2032:3

SEAN [1] - 1953:12

Sean [5] - 1987:25,

1999:8, 2001:19,

2003:12, 2047:12

seated [1] - 1955:1

second [3] - 1975:14,

2002:21, 2068:24

secretary [4] - 1992:7,

1992:11, 1992:15,

1993:7

Section [2] - 1952:23,

1985:14

section [10] - 1990:12,

1990:25, 1991:15,

2048:14, 2048:15,

2048:16, 2053:25,

2054:2, 2055:2,

2055:13

section's [1] - 2055:10

securities [15] -

1993:23, 1993:25,

1994:8, 1994:14,

1994:20, 1994:21,

1994:22, 1995:5,

1995:6, 1995:17,

1997:16, 2003:21,

2004:4, 2054:8,

2054:16

security [12] - 1996:1,

1996:8, 1996:14,

1996:16, 1996:19,

1996:21, 1997:1,

1997:11, 1997:17,

1998:21, 1999:13,

1999:14

see [36] - 1955:12,

1961:12, 1965:12,

1968:14, 1970:12,

1973:10, 1979:2,

1981:4, 1984:2,

1994:15, 1994:16,

2001:16, 2004:23,

2007:8, 2007:9,

2009:15, 2014:13,

2015:1, 2018:19,

2030:3, 2032:15,

2034:7, 2043:3,

2043:17, 2044:17,

2044:20, 2045:20,

2054:2, 2059:23,

2061:18, 2061:21,

2061:24, 2067:7,

2070:6, 2070:19

seeing [2] - 1993:11,

2013:19

seeking [4] - 2039:21,

2040:9, 2060:21,

2061:6

seeks [1] - 1961:6

seem [2] - 1965:16,

2040:4

United States District Court

Trenton, New Jersey

2089

selected [1] - 2046:20

selection [2] -

2006:25, 2041:24

self [2] - 1963:15,

2063:18

self-serving [2] -

1963:15, 2063:18

sell [4] - 2038:25,

2039:8, 2040:8,

2042:7

semantics [1] - 2019:3

sense [3] - 1968:16,

1982:14, 2043:11

sent [4] - 2055:7,

2062:13, 2064:17,

2066:19

sentence [3] -

1996:24, 2040:11,

2060:15

separate [1] - 2064:9

serious [1] - 1962:3

served [1] - 2056:5

serves [2] - 1969:22,

1976:6

service [4] - 1976:8,

1977:4, 2054:10,

2064:7

services [23] - 1987:4,

1987:6, 1987:9,

1987:18, 1987:19,

1988:16, 1989:1,

1989:3, 1989:4,

2002:15, 2041:3,

2042:5, 2052:6,

2054:25, 2060:18,

2063:20, 2064:7,

2064:11, 2064:18,

2064:20, 2065:6,

2068:2, 2068:5

serving [2] - 1963:15,

2063:18

set [7] - 1962:7,

1971:6, 1975:4,

1984:24, 2003:17,

2019:12, 2053:17

seven [5] - 1989:22,

2003:7, 2003:8,

2019:16, 2019:18

several [5] - 1961:24,

1966:8, 1972:16,

2016:11, 2058:7

share [12] - 2014:20,

2014:21, 2014:22,

2015:1, 2015:19,

2015:23, 2016:3,

2016:6, 2016:7,

2016:17, 2016:21

shares [1] - 2016:18

sheet [1] - 1968:15

SHERIDAN [1] -

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 138 of 143 PageID: 17438
1952:17

Short [3] - 2011:10,

2013:1, 2014:5

shortly [1] - 2063:22

show [15] - 1956:9,

1957:18, 1968:9,

1968:20, 1969:13,

1976:10, 1981:22,

2005:3, 2008:5,

2008:20, 2009:2,

2017:6, 2040:14,

2057:5, 2068:3

showed [1] - 2033:3

showing [2] - 1958:3,

1968:15

shown [5] - 1966:21,

1968:11, 2017:7,

2027:6, 2033:8

shows [3] - 1963:19,

2011:19, 2058:5

side [20] - 2062:8,

2063:13, 2063:14,

2063:16, 2063:17,

2063:23, 2064:5,

2064:6, 2064:9,

2065:12, 2066:19

side-by-side [9] -

2062:8, 2063:13,

2063:14, 2063:23,

2064:5, 2064:6,

2064:9, 2065:12,

2066:19

sides [1] - 2047:14

significance [1] -

1962:6

significant [5] -

1989:8, 1989:15,

1998:15, 2015:23,

2071:1

similar [4] - 1992:14,

2032:24, 2047:7,

2063:15

similarly [3] - 1975:18,

1980:4, 2024:7

Similarly [1] - 2019:4

simple [5] - 1956:25,

1968:3, 1974:22,

2024:13, 2024:20

single [4] - 1966:4,

1997:20, 2008:1,

2064:23

sit [4] - 1998:2,

1998:18, 1999:2,

2016:9

situation [1] - 1995:23

SIVOLELLA [1] -

1952:3

six [1] - 2057:20

sixth [1] - 2003:12

slightly [1] - 1970:17

small [2] - 2010:12,

2011:10

smaller [5] - 2019:14,

2021:4, 2050:7,

2050:9, 2050:10

someone [4] -

1957:10, 1996:18,

1999:17, 2034:16

Someone [1] -

1958:13

sometimes [4] -

2006:5, 2007:3

somewhere [4] -

2032:22, 2034:8,

2034:10, 2040:12

sorry [26] - 1960:6,

1971:22, 1987:15,

2000:24, 2001:2,

2002:19, 2004:7,

2008:15, 2008:16,

2012:11, 2013:21,

2015:7, 2015:8,

2018:25, 2022:20,

2026:2, 2030:3,

2033:13, 2038:16,

2039:2, 2047:5,

2047:12, 2048:23,

2049:25, 2053:4,

2055:21

Sorry [7] - 1971:11,

2013:7, 2022:23,

2030:2, 2040:23,

2043:25, 2049:3

sort [1] - 1960:21

sounds [3] - 2036:18,

2038:3, 2038:4

source [10] - 2007:6,

2026:21, 2031:5,

2048:18, 2050:2,

2057:17, 2057:23,

2058:2, 2058:6,

2058:13

space [3] - 1987:20,

1989:10, 1989:13

speaking [1] -

1977:12

speaks [1] - 1990:8

specific [3] - 1959:20,

1960:10, 1982:4

specifically [3] -

1962:1, 2064:16,

2064:19

speculative [1] -

1961:18

spell [1] - 2035:9

spent [1] - 2005:1

split [1] - 1987:9

spread [2] - 1961:25,

2030:7

spreadsheet [1] -

2016:14

squarely [1] - 1972:3

stack [1] - 2048:23

stand [4] - 1955:21,

1955:23, 1967:8,

2004:16

start [6] - 1971:4,

2012:7, 2012:20,

2041:11, 2056:11,

2067:10

started [2] - 2014:10,

2052:12

starting [13] -

1955:16, 1958:3,

1991:8, 2011:15,

2012:5, 2012:19,

2012:25, 2013:3,

2013:4, 2013:8,

2014:16, 2015:14,

2058:4

STATE [1] - 1952:14

state [1] - 1959:1

statement [5] -

1972:7, 1988:18,

2002:1, 2021:1,

2041:25

states [1] - 2055:2

STATES [1] - 1952:1

step [3] - 1975:15,

2055:17

Steve [10] - 1988:5,

1988:22, 1991:9,

1992:22, 1994:5,

1996:5, 1998:24,

1999:14, 2000:1,

2002:12

STEVE [8] - 1954:2,

1954:3, 1954:4,

1954:5, 1955:22,

1956:2, 1985:7,

2048:9

stick [2] - 2042:6,

2058:24

still [7] - 1955:25,

2004:17, 2031:24,

2032:17, 2032:19,

2058:5, 2060:12

stipulated [1] -

2047:14

Stock [7] - 2027:21,

2028:11, 2032:6,

2034:4, 2034:17,

2051:5, 2051:6

stock [1] - 2041:24

stocks [1] - 1994:15

Stop [1] - 1999:7

stop [5] - 1962:5,

1999:7, 2035:1

stopped [8] - 1960:4,

1962:2, 1962:5,

1963:18, 1964:3,

1966:10, 1988:8,

2000:5

story [1] - 1967:16

Strategic [8] - 1969:8,

1969:17, 1969:18,

1969:24, 1970:8,

1970:10, 1982:18,

2035:16

strategies [1] -

1992:14

strategy [2] - 1992:6,

1992:19

STREET [1] - 1952:14

strike [1] - 1973:3

strong [2] - 1966:24,

1967:3

structure [2] -

2036:12, 2045:24

structures [1] - 2046:5

stuff [1] - 2068:9

sub [77] - 1971:21,

1971:23, 1973:20,

1974:2, 1975:17,

1975:21, 1975:25,

1976:4, 1976:5,

1977:17, 1977:22,

1977:25, 1979:8,

1980:5, 1980:6,

1980:21, 1987:5,

1987:21, 1989:11,

1989:14, 1990:17,

1990:24, 1993:13,

1994:10, 1994:17,

1996:2, 1997:4,

1997:6, 1999:18,

2000:22, 2025:4,

2027:22, 2027:25,

2028:4, 2028:12,

2028:20, 2029:4,

2029:23, 2030:8,

2030:21, 2031:11,

2032:11, 2033:13,

2035:21, 2035:24,

2036:1, 2036:8,

2036:11, 2037:5,

2037:11, 2037:14,

2037:17, 2037:19,

2037:22, 2038:8,

2042:12, 2043:12,

2043:13, 2045:4,

2045:8, 2046:1,

2046:2, 2046:7,

2046:23, 2049:1,

2049:16, 2049:17,

2054:10, 2054:15,

2054:21, 2055:6,

2055:9, 2063:17,

2063:20, 2064:11

sub-administration

United States District Court

Trenton, New Jersey

2090

[3] - 2028:4, 2049:1,

2049:16

sub-administrator [7]

- 1980:5, 1980:6,

1994:17, 1996:2,

2000:22, 2032:11,

2049:17

sub-administrator/

sub-advisor[1] -

1994:10

sub-advisor[20] -

1975:21, 1976:4,

1976:5, 1977:22,

1980:21, 1987:5,

1994:17, 1997:4,

1997:6, 1999:18,

2037:14, 2043:12,

2043:13, 2045:8,

2046:1, 2046:2,

2046:7, 2054:10,

2055:9, 2063:20

sub-advisors [29] -

1973:20, 1974:2,

1975:25, 1987:21,

1989:11, 1989:14,

1990:17, 1990:24,

1993:13, 2035:21,

2035:24, 2036:1,

2036:8, 2036:11,

2037:5, 2037:11,

2037:17, 2037:19,

2037:22, 2038:8,

2042:12, 2045:4,

2046:23, 2054:15,

2054:21, 2055:6,

2063:17, 2064:11

sub-advisory [17] -

1971:21, 1971:23,

1975:17, 1977:17,

1977:25, 1979:8,

2025:4, 2027:22,

2027:25, 2028:12,

2028:20, 2029:4,

2029:23, 2030:8,

2030:21, 2031:11,

2033:13

subject [13] - 1956:14,

1969:1, 1972:16,

1979:16, 1981:2,

1982:24, 1984:1,

2004:4, 2025:19,

2042:7, 2069:9,

2070:3

submit [1] - 2059:8

submitted [1] - 2056:4

subpoena [3] -

2056:5, 2069:6,

2070:18

subpoenaed [1] -

2069:4

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 139 of 143 PageID: 17439
subpoenas [5] -

2060:8, 2060:9,

2062:2, 2062:5,

2069:5

subsequent [2] -

1960:7, 1981:12

substantial [3] -

1961:13, 1962:4,

1973:21

substantially [1] -

2007:17

substantive [1] -

2068:4

substitute [1] - 1961:9

subtract [5] - 1975:18,

1977:3, 1978:19,

1979:4, 2029:3

subtracted [2] -

1977:15, 2027:21

subtracting [2] -

1978:11, 2029:22

successfully [1] -

2042:25

sufficient [2] -

2070:13, 2070:16

suggested [3] -

2060:16, 2066:23,

2067:19

suggestion [1] -

2068:1

summary [5] -

1959:16, 1959:18,

2060:10, 2061:2,

2061:13

Sunday [4] - 1990:12,

1990:25, 1991:4,

1991:15

support [1] - 1965:22

survey [4] - 1969:10,

1970:9, 1970:21,

1970:22

surveys [1] - 1969:7

suspect [2] - 2068:20,

2068:23

suspicion [2] -

1966:24, 1967:3

SWEETSER [86] -

1953:4, 1954:3,

1954:5, 1955:20,

1956:3, 1956:20,

1957:3, 1957:13,

1957:16, 1957:17,

1958:6, 1959:14,

1959:20, 1959:24,

1961:6, 1961:20,

1963:12, 1964:13,

1965:14, 1966:1,

1966:7, 1966:13,

1967:5, 1967:25,

1968:18, 1968:19,

1971:14, 1972:12,

1974:5, 1974:6,

1974:15, 1974:18,

1974:19, 1976:10,

1976:21, 1981:14,

1981:21, 1983:17,

1983:20, 1983:22,

1983:23, 1984:11,

1984:16, 1984:19,

1988:9, 1990:14,

2000:6, 2001:8,

2002:5, 2010:23,

2012:10, 2012:12,

2014:19, 2015:21,

2022:6, 2026:23,

2036:21, 2037:7,

2039:9, 2041:6,

2044:10, 2044:16,

2044:19, 2048:10,

2048:21, 2049:7,

2049:25, 2050:3,

2055:16, 2055:21,

2055:25, 2056:3,

2056:15, 2056:18,

2056:23, 2057:2,

2058:15, 2059:10,

2059:13, 2060:4,

2060:6, 2061:10,

2063:10, 2066:3,

2067:14, 2067:17

Sweetser[15] -

1955:19, 1966:17,

1966:25, 1971:13,

1972:11, 1999:7,

2037:9, 2040:21,

2041:19, 2043:15,

2066:17, 2069:14,

2070:1, 2070:25,

2071:4

Sweetser's [1] -

1960:19

switched [1] - 1971:11

sworn [3] - 1955:22,

2002:1, 2002:24

sympathetic [1] -

1960:18

systems [3] - 1997:19,

1997:22, 1998:15

SZAFERMAN [1] -

1953:3

T

T.Rowe [1] - 2030:16

table [3] - 1971:4,

1974:7, 1993:16

talks [1] - 2055:13

tape [3] - 1990:8,

1990:10, 1995:1

target [5] - 1975:10,

1982:7, 1982:10,

1982:11, 1982:13

task [1] - 1993:24

tax [2] - 1969:10,

1970:16

Tc [1] - 1974:17

team [2] - 1965:21,

1997:18

Technically [2] -

2023:22, 2037:10

term [5] - 1996:17,

2037:13, 2040:7,

2040:9, 2041:3

terminal [2] - 2011:23,

2011:25

terms [8] - 1990:11,

1990:23, 1993:9,

1995:9, 2002:23,

2031:1, 2041:4,

2059:24

test [1] - 1988:10

testified [15] - 1964:4,

1987:8, 1992:4,

1998:15, 2021:15,

2027:15, 2037:4,

2040:16, 2042:1,

2045:4, 2053:11,

2062:7, 2062:10,

2065:24, 2070:2

testify [11] - 1956:18,

1961:1, 1961:15,

1965:8, 1973:19,

1990:15, 2026:19,

2027:2, 2068:18,

2070:7, 2070:20

testifying [6] -

1958:23, 1963:2,

1964:23, 1985:18,

2016:24, 2040:25

testimony [39] -

1959:8, 1959:24,

1961:13, 1962:25,

1963:9, 1963:15,

1964:18, 1964:23,

1965:3, 1965:12,

1965:16, 1965:23,

1966:17, 1967:8,

1967:13, 1973:6,

1989:23, 1992:24,

1993:9, 1994:24,

1995:1, 1996:11,

1997:9, 1997:11,

1998:9, 2000:5,

2002:24, 2009:20,

2009:25, 2052:15,

2054:15, 2060:12,

2062:4, 2062:6,

2064:16, 2066:18,

2068:10, 2070:13

text [2] - 2019:4

the [1221] - 1955:2,

1955:3, 1955:4,

1955:5, 1955:6,

1955:13, 1955:15,

1955:17, 1955:21,

1956:4, 1956:6,

1956:12, 1956:13,

1956:14, 1956:16,

1956:20, 1956:22,

1956:24, 1956:25,

1957:7, 1957:21,

1957:23, 1957:24,

1957:25, 1958:3,

1958:4, 1958:6,

1958:7, 1958:8,

1958:9, 1958:20,

1958:21, 1959:7,

1959:9, 1959:15,

1959:16, 1959:18,

1959:20, 1959:22,

1959:25, 1960:1,

1960:2, 1960:6,

1960:10, 1960:11,

1960:12, 1960:13,

1960:16, 1960:21,

1960:24, 1960:25,

1961:3, 1961:4,

1961:7, 1961:21,

1961:24, 1961:25,

1962:1, 1962:5,

1962:6, 1962:8,

1962:9, 1962:10,

1962:11, 1962:12,

1962:13, 1962:14,

1962:17, 1962:18,

1962:23, 1962:24,

1963:8, 1963:13,

1963:14, 1963:18,

1963:20, 1963:22,

1963:24, 1963:25,

1964:2, 1964:4,

1964:6, 1964:7,

1964:14, 1964:15,

1964:16, 1964:17,

1964:18, 1964:21,

1964:22, 1965:1,

1965:2, 1965:3,

1965:5, 1965:13,

1965:19, 1965:24,

1965:25, 1966:2,

1966:3, 1966:5,

1966:10, 1966:13,

1966:20, 1966:25,

1967:1, 1967:2,

1967:4, 1967:7,

1967:12, 1967:13,

1967:16, 1967:17,

1967:20, 1967:23,

1967:25, 1968:1,

1968:4, 1968:5,

1968:6, 1968:9,

United States District Court

Trenton, New Jersey

2091

1968:10, 1968:15,

1968:16, 1968:17,

1968:24, 1968:25,

1969:1, 1969:8,

1969:11, 1969:12,

1969:17, 1969:21,

1969:25, 1970:5,

1970:6, 1970:9,

1970:11, 1970:16,

1970:17, 1970:18,

1970:22, 1970:24,

1971:2, 1971:3,

1971:4, 1971:5,

1971:6, 1972:21,

1972:22, 1973:5,

1973:6, 1973:8,

1973:15, 1973:19,

1973:23, 1973:24,

1974:1, 1974:4,

1974:7, 1974:8,

1974:9, 1974:11,

1974:12, 1974:13,

1974:20, 1974:21,

1974:23, 1974:24,

1974:25, 1975:1,

1975:3, 1975:4,

1975:6, 1975:7,

1975:9, 1975:10,

1975:11, 1975:12,

1975:13, 1975:14,

1975:15, 1975:16,

1975:17, 1975:18,

1975:21, 1975:23,

1975:25, 1976:1,

1976:2, 1976:3,

1976:4, 1976:5,

1976:6, 1976:10,

1976:14, 1976:15,

1976:17, 1976:18,

1976:19, 1976:22,

1976:25, 1977:2,

1977:3, 1977:5,

1977:6, 1977:7,

1977:8, 1977:11,

1977:14, 1977:17,

1977:19, 1977:22,

1977:23, 1977:24,

1977:25, 1978:4,

1978:6, 1978:7,

1978:10, 1978:11,

1978:12, 1978:18,

1978:20, 1978:21,

1978:22, 1978:23,

1979:1, 1979:4,

1979:5, 1979:6,

1979:7, 1979:8,

1979:9, 1979:12,

1979:14, 1979:16,

1979:18, 1979:20,

1979:22, 1979:23,

1980:1, 1980:3,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 140 of 143 PageID: 17440
1980:4, 1980:6,

1980:13, 1980:15,

1980:17, 1980:21,

1980:22, 1980:24,

1981:2, 1981:6,

1981:7, 1981:8,

1981:11, 1982:3,

1982:7, 1982:9,

1982:14, 1982:15,

1982:16, 1982:17,

1982:20, 1982:22,

1982:24, 1982:25,

1983:1, 1983:2,

1983:5, 1983:6,

1983:7, 1983:8,

1983:9, 1983:10,

1983:11, 1983:13,

1983:25, 1984:1,

1985:19, 1987:4,

1987:5, 1987:6,

1987:9, 1987:13,

1987:17, 1987:19,

1987:22, 1988:2,

1988:7, 1988:10,

1988:12, 1988:14,

1988:25, 1989:6,

1989:22, 1989:24,

1990:1, 1990:10,

1990:12, 1990:15,

1990:18, 1990:21,

1990:23, 1990:25,

1991:4, 1991:13,

1991:15, 1991:23,

1992:3, 1992:5,

1992:9, 1992:16,

1992:17, 1993:11,

1993:13, 1993:22,

1994:7, 1994:10,

1994:14, 1994:17,

1994:25, 1995:1,

1995:3, 1995:5,

1995:6, 1995:9,

1995:17, 1995:19,

1995:20, 1995:22,

1995:23, 1996:1,

1996:4, 1996:7,

1996:9, 1996:13,

1996:14, 1996:16,

1996:19, 1996:20,

1996:21, 1996:23,

1996:25, 1997:1,

1997:2, 1997:3,

1997:4, 1997:6,

1997:10, 1997:13,

1997:24, 1998:11,

1998:12, 1998:19,

1999:2, 1999:8,

1999:10, 1999:15,

1999:16, 1999:17,

1999:18, 1999:20,

2000:4, 2000:7,

2000:9, 2000:11,

2000:17, 2000:21,

2000:22, 2001:1,

2001:3, 2001:9,

2001:12, 2001:13,

2001:18, 2001:19,

2001:21, 2001:22,

2002:6, 2002:15,

2002:24, 2003:1,

2003:4, 2003:12,

2003:20, 2003:21,

2003:24, 2004:16,

2005:3, 2005:4,

2005:5, 2005:6,

2005:8, 2005:9,

2005:10, 2005:13,

2005:15, 2005:17,

2005:18, 2005:19,

2005:21, 2005:22,

2005:23, 2006:1,

2006:2, 2006:3,

2006:5, 2006:7,

2006:8, 2006:9,

2006:10, 2006:12,

2006:15, 2006:17,

2006:18, 2006:19,

2006:21, 2006:22,

2006:25, 2007:1,

2007:2, 2007:7,

2007:8, 2007:11,

2007:13, 2007:14,

2007:15, 2007:16,

2007:17, 2007:18,

2007:20, 2007:23,

2008:1, 2008:2,

2008:3, 2008:4,

2008:6, 2008:10,

2008:11, 2008:12,

2008:15, 2008:17,

2008:23, 2008:25,

2009:2, 2009:7,

2009:8, 2009:9,

2009:11, 2009:13,

2009:14, 2009:15,

2009:16, 2009:20,

2009:22, 2009:23,

2009:25, 2010:5,

2010:13, 2010:17,

2010:20, 2011:10,

2011:13, 2011:16,

2011:17, 2011:18,

2011:19, 2011:20,

2011:22, 2011:23,

2011:24, 2012:4,

2012:5, 2012:7,

2012:8, 2012:11,

2012:17, 2012:18,

2012:19, 2012:20,

2012:21, 2012:22,

2012:23, 2012:25,

2013:1, 2013:2,

2013:3, 2013:4,

2013:5, 2013:8,

2013:16, 2013:17,

2013:19, 2013:21,

2013:23, 2013:24,

2014:1, 2014:4,

2014:5, 2014:7,

2014:9, 2014:13,

2014:17, 2014:22,

2015:8, 2015:19,

2016:4, 2016:8,

2016:13, 2016:15,

2016:17, 2016:18,

2016:19, 2016:20,

2017:4, 2017:6,

2017:10, 2017:15,

2017:18, 2017:19,

2018:2, 2018:4,

2018:5, 2018:6,

2018:7, 2018:21,

2019:3, 2019:4,

2019:7, 2019:15,

2019:22, 2019:25,

2020:2, 2020:3,

2020:4, 2020:5,

2020:6, 2020:7,

2020:8, 2020:11,

2020:16, 2020:21,

2020:25, 2021:5,

2021:6, 2021:10,

2021:11, 2021:23,

2021:25, 2022:3,

2022:4, 2022:7,

2022:9, 2022:13,

2022:14, 2022:19,

2022:20, 2022:21,

2022:23, 2023:2,

2023:3, 2023:5,

2023:6, 2023:17,

2023:18, 2023:20,

2023:21, 2023:23,

2023:24, 2024:3,

2024:6, 2024:7,

2024:13, 2024:20,

2024:21, 2024:24,

2025:1, 2025:2,

2025:3, 2025:16,

2025:17, 2025:18,

2025:19, 2025:20,

2025:21, 2026:1,

2026:3, 2026:4,

2026:8, 2026:12,

2026:19, 2027:2,

2027:11, 2027:21,

2027:22, 2027:24,

2028:2, 2028:3,

2028:4, 2028:9,

2028:11, 2028:12,

2028:16, 2028:18,

2028:20, 2028:25,

2029:1, 2029:2,

2029:3, 2029:17,

2029:21, 2029:22,

2029:25, 2030:1,

2030:7, 2030:8,

2030:9, 2030:11,

2030:12, 2030:13,

2030:16, 2030:18,

2030:19, 2030:20,

2030:21, 2030:25,

2031:1, 2031:2,

2031:3, 2031:5,

2031:6, 2031:7,

2031:10, 2031:13,

2031:16, 2031:18,

2031:21, 2032:2,

2032:3, 2032:4,

2032:6, 2032:10,

2032:11, 2032:14,

2032:15, 2032:16,

2032:20, 2033:3,

2033:5, 2033:6,

2033:9, 2033:12,

2033:15, 2033:17,

2033:21, 2033:23,

2033:24, 2033:25,

2034:1, 2034:7,

2034:16, 2034:17,

2034:18, 2034:22,

2035:1, 2035:13,

2035:15, 2035:17,

2035:20, 2035:21,

2035:22, 2036:1,

2036:12, 2036:13,

2036:16, 2036:17,

2036:23, 2037:5,

2037:9, 2037:13,

2037:15, 2037:18,

2037:21, 2038:1,

2038:3, 2038:7,

2038:8, 2038:12,

2038:23, 2038:24,

2038:25, 2039:2,

2039:3, 2039:7,

2039:8, 2039:9,

2039:10, 2039:12,

2039:14, 2039:16,

2039:19, 2040:7,

2040:8, 2040:10,

2040:13, 2040:15,

2040:22, 2041:3,

2041:10, 2041:11,

2041:14, 2041:18,

2041:25, 2042:7,

2042:12, 2043:2,

2043:3, 2043:6,

2043:7, 2043:8,

2043:12, 2043:15,

2043:17, 2043:18,

2043:21, 2043:23,

2043:25, 2044:1,

2044:2, 2044:4,

United States District Court

Trenton, New Jersey

2092

2044:5, 2044:10,

2044:12, 2044:13,

2044:20, 2044:25,

2045:3, 2045:4,

2045:7, 2045:8,

2045:12, 2045:18,

2045:19, 2045:21,

2045:23, 2045:25,

2046:4, 2046:6,

2046:8, 2046:10,

2046:11, 2046:14,

2046:15, 2046:17,

2046:19, 2046:20,

2046:22, 2046:23,

2047:5, 2047:6,

2047:9, 2047:15,

2047:17, 2047:18,

2047:19, 2047:22,

2048:1, 2048:3,

2048:13, 2048:14,

2048:15, 2048:18,

2048:25, 2049:13,

2049:16, 2049:17,

2049:21, 2049:22,

2050:2, 2050:7,

2050:10, 2050:18,

2050:19, 2050:21,

2050:22, 2051:2,

2051:3, 2051:6,

2051:16, 2051:21,

2051:24, 2052:5,

2052:9, 2052:11,

2052:13, 2052:14,

2052:17, 2053:1,

2053:7, 2053:8,

2053:10, 2053:11,

2053:13, 2053:14,

2053:18, 2054:2,

2054:4, 2054:5,

2054:6, 2054:10,

2054:11, 2054:12,

2054:15, 2054:16,

2054:19, 2054:20,

2054:21, 2054:24,

2055:5, 2055:6,

2055:8, 2055:21,

2056:4, 2056:5,

2056:10, 2056:23,

2057:2, 2057:4,

2057:15, 2057:16,

2057:17, 2057:23,

2058:1, 2058:4,

2058:6, 2058:9,

2058:11, 2058:13,

2058:14, 2058:16,

2058:18, 2058:19,

2058:20, 2058:23,

2058:24, 2058:25,

2059:2, 2059:4,

2059:12, 2059:15,

2059:16, 2059:19,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 141 of 143 PageID: 17441
2059:22, 2059:23,

2060:6, 2060:7,

2060:8, 2060:9,

2060:10, 2060:11,

2060:13, 2060:14,

2060:17, 2060:20,

2060:21, 2060:22,

2060:23, 2060:24,

2060:25, 2061:1,

2061:2, 2061:3,

2061:13, 2061:14,

2061:17, 2061:18,

2061:20, 2061:21,

2061:24, 2062:2,

2062:5, 2062:8,

2062:9, 2062:10,

2062:11, 2062:18,

2062:21, 2062:23,

2062:24, 2062:25,

2063:2, 2063:4,

2063:7, 2063:11,

2063:12, 2063:13,

2063:14, 2063:17,

2063:19, 2063:20,

2063:21, 2063:23,

2064:1, 2064:3,

2064:5, 2064:6,

2064:7, 2064:11,

2064:13, 2064:14,

2064:17, 2064:20,

2064:22, 2064:25,

2065:1, 2065:2,

2065:3, 2065:5,

2065:8, 2065:10,

2065:11, 2065:14,

2065:15, 2065:17,

2065:18, 2065:19,

2065:20, 2065:22,

2065:23, 2066:6,

2066:7, 2066:9,

2066:12, 2066:14,

2066:15, 2066:16,

2066:19, 2066:23,

2067:5, 2067:9,

2067:10, 2067:11,

2067:12, 2067:18,

2067:20, 2067:23,

2067:24, 2067:25,

2068:2, 2068:3,

2068:4, 2068:7,

2068:11, 2068:12,

2068:14, 2068:15,

2068:17, 2068:20,

2068:22, 2068:25,

2069:1, 2069:3,

2069:6, 2069:8,

2069:9, 2069:13,

2069:16, 2069:17,

2069:19, 2069:20,

2070:1, 2070:2,

2070:3, 2070:12,

2070:21, 2070:22,

2071:5

The [39] - 1959:20,

1964:10, 1965:20,

1966:17, 1968:11,

1971:1, 1974:10,

1975:8, 1976:21,

1979:20, 1980:3,

1980:9, 1980:25,

1988:3, 1990:8,

1993:2, 1994:21,

1994:22, 1997:17,

1998:14, 2001:8,

2014:15, 2015:5,

2015:10, 2016:19,

2018:24, 2020:19,

2026:7, 2027:16,

2030:1, 2036:12,

2043:1, 2047:24,

2050:1, 2051:11,

2051:15, 2053:16,

2058:6, 2068:24

themselves [1] -

2061:12

thereafter [1] -

2063:22

they've [1] - 2001:16

thinking [3] - 1957:11,

1957:13, 1964:24

thinks [1] - 2041:21

third [4] - 1969:18,

1980:19, 1997:22,

2014:4

third-party [3] -

1969:18, 1980:19,

1997:22

thirds [2] - 1970:6,

1976:22

thousand [1] -

2030:24

thousands [4] -

1994:21, 2062:15,

2062:16, 2063:6

threaten [1] - 2067:15

three [18] - 1969:1,

1976:18, 1979:9,

1981:25, 2002:21,

2022:21, 2035:11,

2036:17, 2052:19,

2053:9, 2060:13,

2062:15, 2064:4,

2064:9, 2065:2,

2065:15, 2065:16

Three [1] - 2051:16

three-quarters [1] -

1976:18

threshold [1] - 2038:2

throughout [1] -

2050:21

ticker [1] - 2043:18

timeframe [2] -

1955:13, 1961:19

timely [1] - 2062:4

tiring [1] - 1964:19

Title [1] - 1952:23

today [10] - 2016:9,

2027:6, 2031:8,

2033:8, 2055:18,

2055:24, 2055:25,

2056:2, 2056:6,

2057:3

today's [1] - 1960:4

ton [1] - 2070:16

took [4] - 1961:2,

1964:15, 2027:20,

2028:3

top [5] - 1971:4,

1974:7, 1977:7,

2038:1

topic [1] - 2004:10

total [28] - 1978:5,

1979:4, 1981:8,

1982:25, 1984:1,

2009:7, 2023:8,

2023:11, 2023:14,

2024:8, 2024:20,

2024:24, 2025:12,

2025:15, 2025:16,

2025:18, 2025:20,

2025:24, 2026:1,

2026:3, 2026:5,

2026:7, 2027:21,

2027:24, 2028:3,

2032:10, 2052:19

totally [1] - 1963:10

totals [2] - 1979:20,

1982:25

traders [1] - 1995:22

trading [2] - 2004:1

transcript [10] -

1988:21, 1991:8,

1994:4, 1996:4,

1998:23, 2001:7,

2002:11, 2036:20,

2057:3, 2057:4

translate [1] - 1964:6

translates [1] -

1962:18

translating [1] -

1960:16

treated [1] - 2020:21

TRENTON [1] -

1952:15

trial [9] - 1955:3,

1959:7, 1963:9,

1973:11, 1973:14,

1986:21, 2033:4,

2062:3, 2069:18

TRIAL [1] - 1952:20

tried [3] - 1958:3,

1960:1, 2066:11

trillion [1] - 2021:16

true [3] - 1952:23,

2015:10, 2021:3

Trust [1] - 2013:16

trustees [1] - 2066:10

trying [8] - 1958:4,

1965:10, 2011:23,

2012:6, 2012:7,

2023:24, 2058:12,

2066:12

Tuesday [3] - 1955:4,

1955:15, 2055:23

turn [3] - 2014:4,

2021:23, 2054:21

turned [1] - 1962:22

TWEED [1] - 1953:11

twice [2] - 1967:2,

2015:14

Two [1] - 1985:18

two [37] - 1960:6,

1962:6, 1962:13,

1964:3, 1968:1,

1969:7, 1970:6,

1976:22, 1980:24,

1980:25, 1986:19,

1992:3, 2005:20,

2005:21, 2006:4,

2006:13, 2011:23,

2011:24, 2015:13,

2015:19, 2019:18,

2019:19, 2022:21,

2035:11, 2035:13,

2035:14, 2043:1,

2044:21, 2044:24,

2046:2, 2046:4,

2057:19, 2057:20,

2063:15, 2065:19,

2067:23, 2070:23

two-thirds [2] -

1970:6, 1976:22

type [3] - 1973:25,

1974:3, 2063:15

Typically [1] - 2053:5

U

U.S [2] - 1952:17,

1952:25

U.S.C [1] - 1952:23

ultimate [1] - 1967:20

ultimately [6] -

1982:22, 1994:1,

1994:10, 1995:11,

1997:23, 2042:6

Ultra [3] - 2011:10,

2013:1, 2014:5

unable [2] - 1971:18,

2057:25

United States District Court

Trenton, New Jersey

2093

uncertainty [1] -

1995:10

under [20] - 1955:25,

1959:12, 1977:7,

1977:20, 1977:23,

1979:2, 1986:24,

1988:18, 2001:1,

2003:4, 2003:16,

2004:17, 2014:18,

2028:24, 2040:16,

2046:11, 2050:15,

2050:19, 2050:22,

2051:3

underlying [3] -

2005:16, 2035:17,

2036:1

understate [1] -

2064:11

unique [1] - 2065:12

UNITED [1] - 1952:1

universe [1] - 2022:3

unless [1] - 2061:15

unnecessary [1] -

1963:10

unpack [1] - 1963:4

up [40] - 1958:22,

1960:5, 1963:5,

1963:14, 1963:21,

1964:22, 1965:4,

1965:24, 1965:25,

1967:8, 1967:22,

1982:19, 1984:24,

1984:25, 1985:2,

1991:15, 2001:16,

2004:20, 2007:6,

2008:15, 2008:17,

2010:8, 2010:13,

2011:9, 2017:9,

2018:13, 2021:24,

2024:15, 2032:2,

2033:3, 2042:24,

2042:25, 2043:15,

2043:18, 2047:2,

2058:1, 2063:19,

2067:19, 2070:20,

2071:1

uses [1] - 1990:12

utilize [1] - 1975:10

V

vague [1] - 1993:9

Vaguely [1] - 2052:16

valuation [8] -

1997:17, 1997:18,

1997:25, 1998:1,

1998:10, 1998:12,

1999:2, 2000:9

value [16] - 1962:1,

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 142 of 143 PageID: 17442
1975:12, 1975:16,

1978:14, 1995:17,

1996:14, 1996:21,

1997:1, 1997:10,

1997:16, 1999:15,

2005:23, 2013:4,

2014:16, 2024:9,

2029:21

Value [11] - 2005:14,

2005:18, 2007:7,

2007:9, 2008:10,

2008:19, 2043:2,

2043:7, 2043:12,

2047:4, 2047:17

values [5] - 2011:23,

2011:25, 2014:22,

2015:18

Vanguard [3] -

2021:13, 2021:15

variable [13] -

1971:21, 1971:22,

1977:20, 1980:20,

2018:17, 2018:22,

2051:25, 2052:6,

2052:7, 2052:12,

2052:22, 2052:25

variety [4] - 1969:22,

1976:2, 2007:19,

2009:12

various [1] - 2058:2

vast [2] - 2054:16,

2068:4

versus [7] - 2005:3,

2006:18, 2006:19,

2006:22, 2007:14,

2009:20, 2009:23

vice [1] - 1955:9

videotape [2] -

2001:12, 2001:18

videotaped [16] -

1988:5, 1988:8,

1988:22, 1989:18,

1991:9, 1991:17,

1992:22, 1993:17,

1994:5, 1994:11,

1996:5, 1997:7,

1998:24, 2000:5,

2002:12, 2002:17

view [4] - 1968:9,

2059:14, 2063:18,

2070:21

violation [1] - 2055:8

virtually [2] - 2007:18,

2020:20

visit [2] - 1987:21,

1989:11

volatility [8] - 1991:22,

1991:24, 1992:3,

1992:25, 2005:21,

2005:25, 2006:1,

2006:6

voluminous [1] -

1963:19

Vs [2] - 1952:5, 1952:9

W

Waddell [1] - 1985:24

Wait [2] - 1988:2,

2012:11

waive [1] - 2069:13

waived [2] - 2030:24,

2070:4

waiver [1] - 2069:20

waivers [3] - 1971:25,

2030:18

walk [4] - 1974:8,

1975:7, 1976:15,

2012:23

wants [6] - 1959:8,

1960:19, 1961:2,

1999:9, 2058:20,

2070:1

waste [1] - 2063:2

week [2] - 1955:3,

1986:19

weekend [2] - 2071:5,

2071:7

weigh [1] - 2024:15

weight [4] - 2019:14,

2058:20, 2059:2,

2059:21

weighted [12] -

2018:15, 2019:2,

2019:8, 2019:10,

2019:11, 2019:22,

2020:5, 2020:12,

2020:15, 2024:10,

2050:5, 2050:16

Weiss [1] - 1992:13

welcome [1] - 1972:23

well-known [2] -

1991:1, 1991:16

whatsoever [1] -

2068:17

whereas [1] - 2046:1

white [2] - 2002:3,

2002:5

whole [6] - 1969:11,

1988:16, 2013:17,

2022:3, 2053:16,

2053:17

wide [1] - 2057:11

widely [1] - 2026:13

willing [3] - 2069:12,

2069:21, 2070:2

wish [1] - 2070:22

withdrawing [1] -

2061:8

witness [11] -

1955:23, 1963:1,

1965:18, 1976:11,

1985:12, 2001:8,

2017:18, 2044:10,

2055:20, 2055:22,

2069:18

Witness [1] - 2055:19

WITNESS [11] -

1956:1, 1983:19,

1990:3, 2027:11,

2027:13, 2037:10,

2039:19, 2039:21,

2049:3, 2049:5,

2050:1

witnesses [7] -

1967:15, 1968:12,

2041:19, 2061:8,

2061:9, 2070:11

word [12] - 1961:9,

1996:23, 1997:2,

1999:10, 1999:20,

2000:4, 2000:16,

2000:17, 2001:9,

2001:13, 2002:7,

2064:19

wording [1] - 1963:21

words [4] - 1987:11,

1999:5, 2039:3,

2041:23

worry [1] - 1963:7

worse [2] - 2007:23,

2048:3

wrapper [7] - 1959:25,

1961:3, 1961:24,

1962:14, 1962:24,

1963:25, 2053:2

write [2] - 2032:14,

2049:4

written [1] - 1972:6

wrote [4] - 2004:3,

2039:10, 2039:13,

2044:21

Y

year [12] - 1960:5,

1966:4, 1967:10,

1970:18, 1979:15,

1981:9, 1982:5,

2007:11, 2016:16,

2031:4, 2058:17,

2063:21

years [20] - 1957:23,

1958:23, 1960:7,

1961:24, 1966:8,

1969:1, 1979:10,

1979:12, 1979:21,

1981:12, 1990:18,

2012:4, 2012:8,

United States District Court

Trenton, New Jersey

2094

2012:17, 2012:19,

2044:21, 2044:24,

2050:25, 2058:10

yes/no [1] - 2002:1

yesterday [30] -

1956:16, 1962:13,

1965:17, 1965:18,

1965:19, 1965:20,

1972:4, 1973:6,

1973:18, 1974:13,

1992:4, 2003:3,

2005:2, 2009:19,

2009:21, 2009:22,

2009:24, 2010:3,

2011:17, 2016:25,

2017:7, 2038:13,

2038:19, 2041:22,

2042:1, 2055:18,

2056:8, 2056:11,

2058:18, 2058:21

York [3] - 1990:13,

1990:25, 1991:15

Z

zero [3] - 2029:21,

2034:7, 2034:9

Case 3:11-cv-04194-PGS-DEA Document 260 Filed 03/30/16 Page 143 of 143 PageID: 17443