explaining that a tax assessment is presumptively correct and that “plaintiffs bear the burden to prove, by a preponderance of the evidence, that they are entitled to the tax [credits] at issue”
How later courts described this case
- explaining that a tax assessment is presumptively correct and that “plaintiffs bear the burden to prove, by a preponderance of the evidence, that they are entitled to the tax [credits] at issue”
- “[P]laintiffs bear the burden to prove, by a preponderance of the evidence, that they are entitled to the tax deductions at issue in this case and the correct amount of the tax refund due.”
- " Claims Court Decision "
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 08-321T
Filed February 21, 2017
)
WASHINGTON MUTUAL, INC., as )
successor in interest to H. F. )
AHMANSON & CO. and ) Tax Refund Claim; Cost Basis;
SUBSIDIARIES, et al., ) Fair Market Valuation;
) Abandonment Loss Deduction;
Plaintiffs, ) Amortization Deduction; Trial.
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
Maria O’Toole Jones, Washington, DC, for Washington Mutual, Inc., as Successor in
Interest to H. F. Ahmanson & Co. and Subsidiaries.
Tamara Shepard, Washington, DC, for Washington Mutual Bank, a Federal Association,
as Successor in Interest to Home Savings of America.
Thomas David Johnston, Washington, DC, for Savings of America, Inc., as Substitute
Agent for H. F. Ahmanson & Co. and Subsidiaries.
Jennifer Dover Spriggs, Attorney of Record, Caroline D. Ciraolo, Acting Assistant
Attorney General, David I. Pincus, Chief, G. Robson Stewart, Assistant Chief, Benjamin C.
King, Of Counsel, Courtney M. Hutson, Of Counsel, Brian J. Sullivan, Of Counsel, Tax
Division, Court of Federal Claims Section, United States Department of Justice, Washington,
DC, for defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
Plaintiffs, Washington Mutual, Inc., Washington Mutual Bank, and Savings of
America, Inc., seek a refund of certain federal taxes paid by H.F. Ahmanson & Co.
(“Ahmanson”) as the parent company of an affiliated group of corporations including Home
Savings of America (“Home”), during tax years 1991, 1994, 1995 and 1998, based upon the
abandonment loss and amortization deductions under the Internal Revenue Code. During the
1980s, Home acquired several savings and loan institutions with the assistance of the Federal
Savings and Loan Insurance Corporation (“FSLIC”). In addition, in 1988, Home acquired the
Bowery Savings Bank in a merger with the assistance of the Federal Deposit Insurance
Corporation (“FDIC”). At issue in this case is whether plaintiffs can establish Home’s cost
basis in the intangible assets that were included in the government assistance provided in
these transactions and, thereby, establish the amount of the tax refunds to which they are
allegedly entitled.
The Court held a trial on these issues, after which the parties submitted post-trial
briefs. For the reasons set forth below, the Court concludes that plaintiffs have not
established Home’s cost basis in the relevant assets to a reasonable degree of certainty.
Consequently, plaintiffs have not established the amount of the tax refund to which they are
entitled. And so, the Court DISMISSES plaintiffs’ tax refund claims.
II. FINDINGS OF FACT
This section contains the Court’s findings of fact as required by Rule 52(a)(1) of the
Rules of the United States Court of Federal Claims.1
A. Overview
Plaintiff Washington Mutual Inc. is a successor in interest to H.F. Ahmanson & Co. Am.
Compl. at ¶ 3; 2d Am. Compl. at ¶ 3.2 Home was a California-chartered savings and loan
1
The Court derives some of these facts from the parties’ Amended Joint Stipulation of Facts (“Jt. Stip.”),
allegations admitted by defendant (from case no. 08-211, “2d Am. Compl.”; and from case no. 08-321,
“Am. Compl.”), and pertinent statutes and regulations. The remaining facts are derived from the
transcript of testimony elicited at trial (“Tr.”) and the exhibits admitted into evidence during trial (“PX,”
“DX,” or “JX”). Citations to the trial transcript will be to the page and line numbers of the transcript and
the last name of the testifying witness.
2
During the period relevant to this litigation, Ahmanson owned 100 percent of Home. Deihl Tr. vol. 1,
83:22-23. The other plaintiffs in this matter, Washington Mutual, Inc. and Savings of America, Inc., are
the successor in interest to Ahmanson and its subsidiaries, and the substitute agent for Ahmanson and its
subsidiaries, respectively. Am. Compl. at ¶ 3; 2d Am. Compl. at ¶ 3. At the time plaintiffs commenced
this action, Washington Mutual Bank was a wholly owned subsidiary of Washington Mutual, Inc. Am.
Compl. at ¶ 5. On October 1, 1998, Washington Mutual, Inc. acquired Ahmanson, and Home merged
into Washington Mutual Bank. Id. at ¶ 3. In 2008, the FDIC seized Washington Mutual Bank, and
Washington Mutual, Inc. subsequently went into bankruptcy. Brouwer Tr. vol. 7, 1357: 5-10.
Washington Mutual, Inc. emerged from bankruptcy in 2012, and a liquidating trust known as WMI
Liquidating Trust was formed for the unresolved items. Id. at 1357:11-14. Washington Mutual, Inc.,
2
institution, or thrift, based in Los Angeles, California, that became a federally-chartered thrift in
1981. Jt. Stip. at ¶ 3; Antoci Tr. vol. 2, 291:11; Deihl Tr. vol. 1, 110:6-9. During the 1970s and
1980s, Home was one of the largest thrifts in the United States. Deihl Tr. vol. 1, 84:8-10.
During the period 1981 to 1985, Home engaged in four mergers to acquire several failing
thrifts with the assistance of the FSLIC (the “FSLIC Mergers”). Am. Compl. at ¶¶ 26, 37, 54; 2d
Am. Compl. at ¶¶ 25, 41, 58, 71. In 1988, Home also acquired the Bowery Savings Bank through
a merger with the assistance of the FDIC (the “Bowery Merger”) (the FSLIC Mergers and the
Bowery Merger are collectively referred to herein as the “Supervisory Mergers”). Am. Compl. at
¶ 75; 2d Am. Compl. at ¶ 88. In the amended complaints, plaintiffs allege that Home acquired
several intangible assets through the government assistance provided in these Supervisory
Mergers, to include the right to open deposit-taking branches in certain states other than
California (the “Branching Rights”) and the contractual approval to treat goodwill created by the
transactions as an asset for regulatory accounting purposes (the “RAP Right”). Am. Compl. at
¶¶ 29-30, 39-40, 56-57, 71; 2d Am. Compl. at ¶¶ 28-29, 44-45, 60-61, 73-74, 84, 88.
In this tax refund action, plaintiffs allege that Home obtained a cost basis in the assets
acquired through the Supervisory Mergers−including the Branching Rights and the RAP
Rights−pursuant to section 1012 of the Internal Revenue Code. I.R.C. § 1012; Am. Compl. at
¶¶ 35, 44, 61, 74; 2d Am. Compl. at ¶¶ 34, 50-52, 65, 78, 87. Plaintiffs also allege that Home
later abandoned the New York, Florida, Ohio and Illinois Branching Rights that it acquired in the
FSLIC Mergers and, as a result, Home was entitled to take an abandonment loss deduction in the
amount of Home’s cost basis in these rights under section 165 of the Internal Revenue Code.
I.R.C. § 165; Am. Compl. at ¶¶ 84-85, 87, 99, 101, 128; 2d Am. Compl. at ¶ 101. In addition,
plaintiffs allege that Home was also entitled to take certain amortization deductions for a portion
of Home’s cost basis in the RAP Right acquired in each of the Supervisory Mergers and in
certain other intangible assets, pursuant to section 167(a) of the Internal Revenue Code.3 2d Am.
Compl. at ¶¶ 90, 96, 107-08, 118-19, 121-22, 124-25, 127-28, 130-31.
Washington Mutual Bank and WMI Liquidating Trust are collectively referred to herein as “Washington
Mutual.”
3
Plaintiffs seek: (1) an amortization deduction for the Florida-Missouri RAP Right in the amount of
$6,148,038 for tax years 1991 and 1994; (2) an amortization deduction for the Illinois-Texas RAP Right
in the amount of $4,833,675 for tax year 1994; (3) an amortization deduction for the Century RAP Right
3
B. The Savings And Loan Industry And Interest Rate Crisis
Historically, the savings and loan industry had two primary functions. First, savings and
loan institutions collected customer deposits, which were maintained in interest bearing savings
accounts. Deihl Tr. vol. 1, 84:14-16; Antoci Tr. vol. 2, 267:25-268:9. Second, these thrifts
originated and serviced mortgage loans funded by the customer deposits. Deihl Tr. vol. 1, 84:14-
16; Antoci Tr. vol. 2, 267:25-268:9.
During the late 1970s and early 1980s, interest rates reached historic highs due to an
attempt by the Federal Reserve to control inflation. Beesley Tr. vol. 3, 455:8-17; Grabowski Tr.
vol. 3, 573:1-24, 578:4-25; PX001 at I-3. Interest rates peaked in 1981. PX594 at 189;
Grabowski Tr. vol. 3, 581:3-8. The high interest rates had a devastating effect on the savings
and loan industry. Beesley Tr. vol. 3, 455:14-22; Deihl Tr. vol. 1, 90:6-15; Antoci Tr. vol. 2,
271:6-272:13. At the time, most savings and loan institutions held primarily 30-year fixed-rate
mortgage loans that had been originated when interest rates were low. Beesley Tr. vol. 3,
455:22-24. Thrifts were unable to raise the interest rates on these mortgage loans due to the
loans’ fixed-rate nature. Id. But, rising interest rates required thrifts to raise the rates that thrifts
paid on deposit accounts in order to maintain their customers. Grabowski Tr. vol. 3, 574:5-21,
579:15-23; cf. Depository Institutions Deregulation and Monetary Control Act of 1980, Pub. L.
96-221, 94 Stat 132 (phasing out, from 1981 to 1986, requirements under 12 C.F.R. § 217, also
known as Regulation Q, which imposed interest rate ceilings on deposits).
The resulting spread between the interest that thrifts collected on outstanding mortgage
loans and the amount of interest that thrifts paid on customer deposits became negative.4
in the amount of $3,862,146 for tax year 1994; (4) an amortization deduction for the Ohio RAP Right in
the amount of $580,500 for tax year 1994; (5) an amortization deduction for the Bowery RAP Right in the
amount of $50,677,519 for tax year 1994; (6) an amortization deduction for the Bowery Credit Protection
in the amount of $1,000,000, and for the Bowery Favorable Financing in the amount of $133,333 for tax
years 1994 and 1995; (7) an abandonment deduction for the Illinois Branching Right in the amount of
$56,432,000 for tax year 1994; (8) an abandonment deduction for the Ohio Branching Right in the
amount of $19,996,000 for tax year 1995; (9) an abandonment deduction for the New York Branching
Right in the amount of $101,966,000 for tax year 1995; and (10) an abandonment deduction for the
Florida Branching Right in the amount of $142,886,000 for tax year 1998. Pl. Post-Trial Br. at 151.
4
Spread is the difference between the interest rates on new mortgages and new deposit accounts.
Grabowski Tr. vol. 3, 585:14-586:10. Margin is the difference between the interest rates on mortgages
and deposit accounts for a thrift’s entire portfolio. Id.
4
Beesley Tr. vol. 3, 455:25-456:1, 456:17-22; Antoci Tr. vol. 2, 271:17-272:4, 272:23-273:9.
Along with the so-called “negative spread” caused by high interest rates, the savings and loan
industry also suffered during this period from disintermediation−whereby savings and loan
customers removed their deposits from savings and loans in favor of alternative investment
opportunities paying a higher interest rate. Beesley Tr. vol. 3, 456:6-10; Antoci Tr. vol. 2,
312:8-10, 333:17-19, 338:19-339:19; Deihl Tr. vol. 2, 149:7-14, 162:6-15. As a consequence of
high interest rates and disintermediation, many thrifts became insolvent. Beesley Tr. vol. 3,
456:15-457:2.
In an attempt to ease the negative effects of the high interest rate environment on state
thrifts, regulators in California allowed its state-chartered thrifts, including Home, to issue
variable-rate mortgages (“VRMs”) in the late 1970s. Antoci Tr. vol. 2, 272:5-18, 273:18-19;
Deihl Tr. vol. 1, 98:10-19. The interest rates for these VRMs were tied to the average cost of
funds index reported by the Eleventh Federal Home Loan Bank District cost of funds index
(“Eleventh District COFI”) and the interest rates were adjusted semi-annually. Antoci. Tr. vol.
2, 274:4-275:5; Deihl Tr. vol. 1, 100:1-8. In the late 1970s, Home began making primarily VRM
loans. Antoci. Tr. vol. 2, 273:12-15; Deihl Tr. vol. 1, 97:3-98:9, 99:8-11.
By 1981, the federal government began allowing federally-chartered thrifts to issue
adjustable rate mortgages (“ARMs”), which were similar to VRMs. Antoci Tr. vol. 2, 276:8-
277:2, 278:11-18; Deihl Tr. vol. 1, 102:23-104:4. The federal government’s decision to allow
thrifts to issue ARMs prompted Home to become a federally-chartered thrift in December of
1981. Jt. Stip. at ¶ 3; Antoci Tr. vol. 2, 276:22-277:2; see Deihl Tr. vol. 1, 103:24-104:1; Am.
Compl. at ¶ 16; 2d Am. Compl. at ¶¶ 15, 26. And so, by late 1981, Home’s loan originations
were almost exclusively ARMs. Antoci Tr. vol. 2, 281:24-282:14; JX039 at KS-009473l; JX041
at KS-009655.5
By late 1982, interest rates had dropped by approximately two percent, from 16% to
14%, and loan originations increased industry-wide from approximately $40,000,000,000 in
1982 to approximately $90,000,000,000 in 1983. PX594 at 216, 234; Deihl Tr. vol. 1, 105:25-
5
Home typically priced ARMs at a 2.5% contractual spread over the Eleventh District COFI. Antoci Tr.
279:9-18, 314:16-3125:1; PX592 at SCC0045; PX124 at KS-014987. In markets outside of California,
Home offered a small premium on deposits while still obtaining funds at below the Eleventh District
COFI. PX594 at 123; Kline Tr. vol. 7, 1325:14-20.
5
106:3; cf. DX204 at 117-18; PX124 at KS-014987. Disintermediation also slowed during this
period, but it continued to impact the savings and loan industry. Grabowski Tr. vol. 4, 697:13-
698:7; Hargett Tr. vol. 9, 1983:25-1984:3.
In 1983 interest rates dropped to approximately 13%, then rose to almost 14% in 1984.
PX594 at 234. Interest rates then decreased to just above 10% at the beginning of 1986. Id.
Industry-wide loan originations increased during the period 1983 to 1986. Id. at 216. In 1982,
mortgage originations bottomed out at less than $40,000,000,000, but after 1982, mortgage
originations steadily rose. Id. Industry-wide loan originations reached nearly $180,000,000,000
in 1986. Id.
C. The Government’s Response To The Savings And Loan Interest Rate Crisis
Many savings and loan institutions became insolvent during the savings and loan interest
rate crisis. PX594 at 36; Deihl Tr. vol. 1, 109:10-13; Antoci Tr. vol. 2, 342:16-343:4; Beesley
Tr. vol. 3, 469:19-22. The FSLIC, which was overseen by the Federal Home Loan Bank Board
(“FHLBB”), regulated the savings and loan industry until 1989. See Federal Home Loan Bank
Act, 12 U.S.C. §§ 1421-1449; Glassett Tr. vol. 6, 1240:11-14; FIRREA, Pub. L. 101-73 § 401,
103 Stat. 183 (1989).6 As many thrifts began to fail in the 1980s, the FSLIC determined that it
did not have sufficient financial resources to aide or take over many of these thrifts. Beesley Tr.
vol. 3, 454, 469:5-470-:10; Deihl Tr. vol. 1, 109:10-13.
To address this problem, the FSLIC developed several alternatives to having the
government take over insolvent thrifts, including brokering agreements whereby a healthy
savings and loan institution would acquire one or more failing thrifts in exchange for certain
assistance from the FSLIC. Beesley Tr. vol. 3, 463:1-4, 474:19-21, 488:19-489:3; PX570;
Antoci Tr. vol. 2, 284:8-17. These transactions relieved the FSLIC of its deposit insurance
liability for the insolvent thrift. Beesley Tr. vol. 3, 469:23-470:1. In exchange, the FSLIC
provided a package of incentives to the acquiring healthy thrift. PX570; Beesley Tr. vol. 3,
474:1-478:16.
6
In 1989, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act
(“FIRREA”), which abolished the FSLIC and the FHLBB and transferred the responsibility of insuring
savings and loan deposits to the FDIC. Pub. L. 101-73. In addition, the Office of Thrift Supervision
replaced the FHLBB as regulator of savings and loan institutions. Glassett Tr. vol. 6, 1240:11-14.
6
During the period 1981 to 1985, the FSLIC entered into four such transactions with
Home. Jt. Stip. at ¶¶ 10-22; Deihl Tr. vol. 2, 243:22-244:1; JX070 at KS-026943; Glassett Tr.
vol. 6, 1227:21-25; JX045 at KS-010084, KS010144. A summary of the key assistance provided
by the FSLIC to Home in these transactions follows.
D. Key Assistance In The FSLIC Mergers
1. The RAP Right
Plaintiffs allege that a key component of the government assistance provided in the
FSLIC Mergers at issue in this case involves the method of accounting that Home would use to
account for the intangible assets acquired in the transactions under applicable accounting
principles. JX086 at KS-050393; Antoci Tr. vol. 2, 305:10-16. Each of the mergers at issue in
this case created goodwill–an intangible asset that is created when the assets acquired in a
supervisory merger are less than the liabilities acquired. Grabowski Tr. vol. 4, 805; see JX102 at
¶ 11; Antoci Tr. vol. 2, 298:7-20; PX001 at I-6 (defining goodwill as “[t]he excess of the fair
value of liabilities over the fair value of assets”).
In this regard, plaintiffs allege that Home received “the regulatory approval and promise”
to treat goodwill acquired in the FSLIC Mergers as an asset for purposes of meeting its
regulatory capital requirements until such goodwill was completely amortized. Pl. Post-Trial Br.
at 100-01; cf. Antoci Tr. vol. 2, 298:7-20 (defining purchase method of accounting). Plaintiffs
refer to this promise as the RAP Right. Pl. Post-Trial Br. at 99-101; Pl. Post-Trial Reply at 68-
73.
A brief background on the accounting standards and regulations that applied to the
savings and loan industry during the 1970s and 1980s is helpful in understanding the RAP Right.
In 1970, the Accounting Principles Board (“APB”), the precursor to the Financing Accounting
Standards Board (“FASB”), issued two opinions regarding the accounting treatment of intangible
assets, including goodwill. DX204 at 8; JX102 (APB Opinion No. 16, “Business
Combinations”); DX192 (APB Opinion No. 17, “Intangible Assets”). In the opinions, the APB
stated that intangible assets with an indefinite useful life could generally be amortized over a
period not to exceed forty years. JX102; DX192. In addition, the APB authorized acquirers in a
business combination to use the purchase method of accounting to account for transactions such
as the mergers at issue here. JX102 at ¶ 15 (“Applying the purchase method of accounting to
7
business combinations effected by paying cash, distributing other assets, or incurring liabilities is
not challenged.”); JX035 at KS-008256; DX192.
During the 1970s and 1980s, the FHLBB also issued several memoranda providing
guidance on the appropriate regulatory accounting treatment for goodwill. See JX102; Antoci
Tr. vol. 2, 298:7-20; Vandenberg Tr. vol. 7, 1491-93. In March 1974, the FHLBB issued
Memorandum R-31a, which required acquirers to amortize the goodwill resulting from the
combination of thrifts over a period not to exceed ten years for regulatory accounting purposes,
also known as “RAP.” Vandenberg Tr. vol. 7, 1491:7-14; Beesley Tr. vol. 3, 518:16-18.
The FHLBB rescinded this memorandum and issued Memorandum R-31b in September
1981, which provided that a thrift’s proposed amortization plan for goodwill and other intangible
assets was acceptable if the accounting plan complied with Generally Accepted Accounting
Principles (“GAAP”). JX035 at KS-008256; JX100 at CV000209. GAAP permitted thrifts to
use the purchase method of accounting when accounting for business combinations, and, as a result,
RAP allowed the acquiring thrift to treat the goodwill resulting from the business combination as
an asset upon a diminishing basis over forty years. JX035 at KS-008256; DX204 at 8; Beesley
Tr. vol. 3, 515:22-25, 516:1, 536:4-8; Vandenberg Tr. vol. 7, 1491:15-19; JX100 at CV00210
(“Detailed rules exist specifying conditions which, if met, indicate that the pooling of interest
method must be used. When those conditions do not exist, the purchase method is appropriate.
The nature of the business combination dictates the appropriate accounting for it. Therefore, the
selection of the accounting technique is not a management option.”). And so, Memorandum R-
31b extended the time period that a thrift could count goodwill as an asset on its books. Beesley
Tr. vol. 3, 515:22-516:1.
Memorandum R-31b provided that “[a]n application from an association requesting
approval for a business combination to be accounted for by the purchase method of
accounting, from which intangible assets will result, should include a description of any
resulting intangible assets and the plan for their amortization.” JX035 at KS-008258. And so,
Memorandum R-31b required all business combinations to obtain regulatory approval for the
combination, regardless of whether the entity intended to use the purchase method of
accounting or a different method of accounting. Cf. Anderson v. United States, 344 F.3d
1343, 1356-57 (Fed. Cir. 2003) (providing that, pursuant to Memorandum R-31b, an
8
acquiring thrift need only submit a stipulation to the FHLBB of its intent to “use the
procedures of purchase accounting and supervisory goodwill” in order to do so) (quotation
omitted).
After the Securities and Exchange Commission (“SEC”) issued new guidance on the
appropriate accounting for goodwill created by the merger of financial institutions in late 1981,
the FHLBB issued SP-24 on December 29, 1981. JX100; Vandenberg Tr. vol. 7, 1492:8-10.
SP-24 provided that “mergers of savings and loan associations are to be accounted for in
accordance with generally accepted accounting principles.” JX100 at CV-00209. This guidance
also required that applicants seeking to acquire a thrift through a merger submit to the FHLBB
specific numerical data and an opinion from an independent accountant stating that “GAAP has
been adhered to in their determination” to receive forty-year amortization treatment. Id. at CV-
00214.
Thereafter, in February 1983, the FASB issued Statement of Financial Accounting
Standards (“SFAS”) No. 72, which amended APB Opinion Nos. 16 and 17 and required that a
portion of the goodwill resulting from acquisitions of troubled thrifts be amortized over the lives
of the interest-bearing assets on an accelerated basis, instead of on a straight-line basis under
GAAP.7 JX106; Vandenberg Tr. vol. 7, 1492:21-1493:1l; DX204 at 10. And so, SFAS No. 72
reduced the amortization period under GAAP for any goodwill created by the combination of
thrifts to, at most, twenty-five years. JX106; DX204 at 16; Hargett Tr. vol. 11, 2327:3-19.
Home accounted for the FSLIC Mergers at issue in this case using the purchase method
of accounting. JX035 at KS-008256; JX100; see JX102 at ¶ 15; JX106. And so, under the
purchase method of accounting, Home could treat the goodwill created by each of the FSLIC
Mergers as an asset for purposes of meeting regulatory capital requirements. JX102 at ¶ 15;
JX035 at KS-008256.
7
Specifically, FASB No. 72 amended GAAP to require supervisory goodwill to be amortized over “a
combination of (1) the weighted-average lives of the interest-bearing assets acquired for a defined portion
of the goodwill recorded, and (2) a straight-line basis over 25 years for the balance of the goodwill.” Def.
Post-Trial Br. at 14; see also Pl. Post-Trial Reply at 73; Hargett Tr. vol. 11, 2327:3-19.
9
2. The Branching Rights
Plaintiffs allege that another key component of the government assistance that Home
received from the FSLIC is the right to open new savings and loan branches in Florida, Illinois,
Missouri, New York, Ohio and Texas, after Home acquired thrifts in those states. See PX001 at
I-1; see also Pl. Post-Trial Reply at 17, 20, 25, 28. Plaintiffs refer to the right to open, acquire,
and operate branches in other states as the Branching Rights. PX001 at I-1.
A background on the history of the regulation of the savings and loan industry is also
helpful in understanding the Branching Rights. Prior to 1981, federal regulations prohibited
Home and other thrifts from establishing branch offices in more than one state. 12 C.F.R.
§ 556.5(a)(3)(i); Deihl Tr. vol. 1, 107:24-110:16; Rinehart Tr. vol. 7, 1387:19-1388:10. But, in
September 1981, the FHLBB promulgated regulations to permit federally-chartered thrifts to
open deposit-taking branches in states outside of their home state if, among other things, the
thrift acquired one or more insolvent thrifts in the new state pursuant to a FSLIC supervisory
merger. 12 C.F.R. § 556.5(a)(3)(ii)(a); Antoci Tr. vol. 2, 283:13-284:5.
The FHLBB provided Home with Branching Rights in the states where Home acquired
insolvent thrifts, which permitted Home to open new branches in the states in which it acquired
thrifts through a merger. JX015; PX232; PX083 at KS-007965-66; PX078 at KS-007842-43.
And so, plaintiffs allege that Home received the ability to acquire and operate existing branches
located in these states and to open new, or de novo, branches in these states. Deihl Tr. vol. 1,
124:8-18; Antoci Tr. vol. 2, 326:21-327:23; PX124 at KS-014985-86.
E. The FSLIC Mergers
With the aforementioned assistance from the FSLIC, Home entered into four mergers
involving the acquisition of failing thrifts from 1981 to 1985. Jt. Stip. at ¶¶ 10-22. In each of
these transactions, Home obtained, among other things, a RAP Right and at least one Branching
Right. Am. Compl. at ¶¶ 29-30, 39-40, 56-57, 71; 2d Am. Compl. at ¶¶ 28-29, 44-45, 60-61, 73-
74, 84, 88. It is undisputed in this matter that the cost to Home for this assistance is the excess of
the fair market value of the liabilities of the acquired thrifts over the fair market value of these
thrifts’ assets. See Jt. Stip. at ¶¶ 12, 15. A summary of the four FSLIC Mergers follows.
10
1. The Florida-Missouri Merger
In 1981, Home acquired two failing Missouri thrifts–Hamiltonian Federal Savings and
Loan (“Hamiltonian”) and Security Federal Savings and Loan Association (“Security”)−and one
failing Florida thrift–Southern Federal Savings and Loan Association (“Southern”). Jt. Stip. at
¶ 11. In connection with this transaction, Home and the FSLIC entered into an assistance
agreement, wherein Home received Branching Rights for the states of Florida and Missouri and a
RAP Right regarding the accounting treatment for the goodwill created by this transaction. Id. at
¶¶ 10-11; JX085. It is undisputed that Home’s purchase price−or cost basis−for the Florida-
Missouri Merger was $216,759,000.8 PX004; PX594 at 190; Grabowski Tr. vol. 4, 820:15-17.
Plaintiffs maintain that Home’s cost basis in the RAP Right for this transaction is $44,713,000.
Pl. Post-Trial Br. at 17, 150. Plaintiffs further maintain that Home’s cost basis in the Missouri
Branching Right is $29,160,000 and that Home’s cost basis in the Florida Branching Right is
$142,886,000. Id. at 17, 150.
a. The Florida-Missouri RAP Right
At the time of the Florida-Missouri Merger, the applicable federal accounting
regulations permitted goodwill to be amortized for a period of up to forty years. DX192;
JX102. In addition to the assistance agreement for this transaction, the FHLBB issued a
resolution regarding, among other things, the accounting of goodwill for the Florida-
Missouri Merger. JX085; JX059 at KS-014320. These documents are both relevant to
understanding the Florida-Missouri RAP Right.
Specifically, section 13 of the Florida-Missouri Assistance Agreement provides that:
Except as otherwise provided herein, any computations made for the purposes of
this Agreement shall be governed by generally accepted accounting principles as
applied in the savings and loan industry, except that where such principles conflict
with the terms of this Agreement or with the applicable Federal Regulations, the
Agreement or said Regulations shall govern. For purposes of this section, the
accounting principles and the governing regulations shall be those in effect on the
8
The parties agree that the “cost to Home for the FSLIC Assistance was the excess of the aggregate
liabilities of Hamiltonian, Security, and Southern over the fair market value of their assets.” Jt. Stip. at
¶ 12. In this regard, Home assumed $927,738,000 of liabilities from these three failing thrifts. PX004;
JX039; PX594; Grabowski Tr. vol. 4, 819:19-25. Home also received $710,979,000 of assets from the
failing thrifts. PX594; PX002; PX004; Grabowski Tr. vol. 4, 633:16-638:6, 640:21-641:25; 820:1-17.
11
Effective Date or as subsequently clarified or interpreted by the Bank Board or the
Financial Accounting Standards Board or any successor organization of the
American Institute of Certified Public Accountants respectively.
JX085 at KS-044901-02. Section 16 of the Florida-Missouri Assistance Agreement integrated
“any resolutions or letters issued contemporaneously herewith by the Federal Home Loan Bank
Board. . . .” Id. at KS-044903. And so, this provision integrated FHLBB Resolution 81-803,
which provides:
That the Bank Board hereby finds that the submission of Home concerning the
accounting treatment to be afforded its acquisition of Southern . . . appropriately
supports the application of the purchase method of accounting for the acquisition;
and that based upon such submission, and the circumstances described therein, the
Bank Board hereby determines that it does not object to (1) the amount of any
resulting intangible assets being first assigned to the acquired savings deposit base
in the amount of .5 percent of the acquired savings balances and .05 percent of the
acquired certificate balances, which will have a life of ten (10) years, and (2) any
excess being assigned to goodwill and initially amortized, in accordance with
generally accepted accounting principles, over forty (40) years, provided that Home
shall furnish an analysis, accompanied by a concurring opinion from its
independent accountant satisfactory to the Supervisory Agent and to the Office of
Examinations and Supervision which (a) specifically describes, as of the effective
date of the Southern Merger, any premiums or discounts on assets or liabilities, or
intangible assets to be recorded as a result of the Southern Merger and (b)
substantiates the reasonableness of amounts assigned to any tangible or intangible
assets or liabilities and the related amortization periods and methods assigned to
such amounts[.]
JX059 at KS-014320. Home subsequently provided the analysis required by the FHLBB’s
Resolution. PX226.
b. The Florida And Missouri Branching Rights
Home also received Branching Rights in Florida and Missouri as part of the Florida-
Missouri Merger. Specifically, a FHLBB letter to Home dated January 20, 1982, provides, in
relevant part, that:
[F]uture applications of Home for approval of mergers or purchases of assets or for
permission to establish or maintain branch offices in the State [sic] of Florida and
Missouri shall be processed, for the purposes of a particular application, through
the Supervisory Agents of the Federal Home Loan Bank Board and the Office of
Industry Development as if the home office of Home were located in Florida or
Missouri, respectfully.
12
The Office of Industry Development will not recommend denial of an application
of Home (1) to establish or maintain a branch office in Florida or Missouri, or (2)
to merge with another FSLIC insured institution having its home office in Florida
or Missouri through merger, consolidation, or purchase of bulk assets, solely
because such application is to establish a branch office, or merge with an institution
having its home or other office, in a state other than that in which the home office
of Home is located, provided that Home has established branch offices in Florida
and Missouri pursuant to . . . the Federal Regulations. Home has met this
requirement through the [Florida and Missouri] mergers. . . .
PX232.
Home acquired thirteen branches in Florida. PX594 at 220. Home also opened nine
additional branches in Florida in 1983, seven additional branches in Florida in 1984, and two
additional branches in Florida in 1985. Id. And so, by the end of 1985, Home had thirty one
branches in Florida. Id. Home also acquired seventeen existing branches in Missouri. Id. In
Missouri, Home opened two additional branches in 1983, closed one branch in 1984, and opened
three additional branches in 1985. Id. And so, Home operated twenty one branches in Missouri
by the end of 1985. Id. In the early 1990s, Home implemented a new strategy to concentrate on
the thrift industry in California. Rinehart Tr. vol. 7, 1389:21-1390:20, 1390:24-1391:11; Kline
Tr. vol. 6, 1278:12-1279:10. As a result, Home sold all of its Florida branches by entering into
branch sales agreements during 1997 and 1998. Rinehart Tr. vol. 7, 1406:4-7, 1449:10-23;
JX088; PX103 at KS-011290.
2. The Illinois-Texas Merger
In 1982, Home acquired several failing thrifts located in Illinois and Texas in another
FSLIC Merger. Jt. Stip. at ¶¶ 13-14. In the Illinois-Texas Merger, three Texas savings and loan
associations merged into a fourth savings and loan known as El Centro Federal Savings and
Loan Association of Dallas, Texas (“El Centro”). Id. at ¶ 14. Thereafter, on January 15, 1982,
El Centro, Royal Federal Savings and Loan Association of Dallas, Texas, and Hyde Park
Savings and Loan Association of Chicago, Illinois merged into Home. Id. at ¶¶ 13-14.
In connection with this transaction, Home entered into an assistance agreement with the
FSLIC, and the FHLBB also issued a resolution and two letters, providing Home with a RAP
13
Right, Branching Rights, cash and other cash-equivalent assets and certain regulatory
forbearances.9 JX005; JX015; JX030; JX084; Jt. Stip. at ¶ 15; PX001 at II-21; PX594 at 185.
It is undisputed that Home’s purchase price−or cost basis−for the Illinois-Texas Merger
was $285,353,000.10 PX004 at Ex. 2.1; Pl. Post-Trial Br. at 20. Plaintiffs maintain that Home’s
cost basis in the RAP Right for this transaction is $35,154,000. Pl. Post-Trial Br. at 21, 150.
Plaintiffs further maintain that Home’s cost basis in the Illinois Branching Right is $56,432,000
and that Home’s cost basis in the Texas Branching Rights is $100,838,000. Id.
a. The Illinois-Texas RAP Right
At the time of the Illinois-Texas Merger, the applicable federal accounting regulations
permitted goodwill to be amortized for a period of up to forty years. JX035; JX102. Home
also entered into an assistance agreement with the FSLIC, and the FHLBB issued a
resolution regarding, among other things, the accounting of goodwill for the Illinois-Texas
Merger. JX005; JX030. These documents are both relevant to understanding the Illinois-
Texas RAP Right. Specifically, section 13 of the Illinois-Texas Assistance Agreement
provides that:
Except as otherwise provided herein, any computations made for the purposes of
this Agreement shall be governed by generally accepted accounting principles as
applied in the savings and loan industry, except that where such principles conflict
with the terms of this Agreement or with the applicable Federal Regulations, the
Agreement or said Regulations shall govern. For purposes of this section, the
accounting principles and the governing regulations shall be those in effect on the
Effective Date or as subsequently clarified or interpreted by the Bank Board or the
Financial Accounting Standards Board or any successor organization of the
American Institute of Certified Public Accountants respectively. In case of any
ambiguity in the interpretation or construction of any provision of this Agreement,
such ambiguity shall be resolved in a manner consistent with said Regulations.
9
The cash-equivalent assets included cash to cover: the negative net worth of acquired thrifts, a foregone
spread guarantee relating to Hyde Park, and prepayment penalties relating to certain FHLBB advances.
PX001 at II-21; see PX594 at 185. Home also received “indemnification for losses on loans, real estate
owned, and service corporations.” PX001 at II-21. The fair market value of the cash, cash-equivalent
assets and indemnifications, as estimated by FSLIC, is $92,929,000. PX001 at II-21; PX004; PX594.
10
Home assumed $953,651,000 of liabilities from the acquired failing thrifts. Jt. Stip. at ¶ 16. Home
also received $668,298,000 of assets from the six failing thrifts. PX594 at 65; PX004 at Ex. 2.1;
Grabowski Tr. vol. 4, 665:21-666:23.
14
JX005 at KS-002846. Section 16 of the Illinois-Texas Assistance Agreement also integrates
“any resolutions or letters issued contemporaneously herewith by the Federal Home Loan Bank
Board . . . .” JX005 at KS-002847-48. The FHLBB Resolution for the Illinois-Texas Merger
provides in relevant part that:
[T]he Bank Board hereby finds that the submission of Home concerning the
accounting treatment to be afforded its acquisition of Hyde Park, El Centro, and
Royal. . . appropriately supports the application of the purchase method of
accounting for the acquisition; and that based upon such submission, and the
circumstances described therein, the Bank Board hereby determines that it does not
object to (1) the amount of any resulting intangible assets being first assigned to the
acquired savings deposit base in the amount of .5 percent of the acquired savings
balances and .05 percent of the acquired certificate balances, which will have a life
of ten (10) years, and (2) any excess being assigned to goodwill and initially
amortized, in accordance with generally accepted accounting principles, over forty
(40) years, provided that Home shall furnish an analysis, accompanied by a
concurring opinion from its independent accountant satisfactory to the Supervisory
Agent and to the Office of Examinations and Supervision which (a) specifically
describes, as of the effective date of the Hyde Park, El Centro, and Royal Mergers,
any premiums or discounts on assets or liabilities, or intangible assets to be
recorded as a result of the Hyde Park, El Centro, and Royal Mergers and (b)
substantiates the reasonableness of amounts assigned to any tangible or intangible
assets or liabilities and the related amortization periods and methods assigned to
such amounts[.]
JX030 at KS-007694. Home provided the analysis required by the aforementioned FHLBB
Resolution. PX075.
b. The Illinois And Texas Branching Rights
Home also received Branching Rights in Illinois and Texas as part of the Illinois-Texas
Merger. Specifically, in a FHLBB letter to Home dated January 20, 1982, FHLBB states that:
Future applications of Home for approval of mergers or purchases of assets or for
permission to establish or maintain branch offices in the State [sic] of Illinois and
Texas shall be processed, for the purposes of a particular application, through the
Supervisory Agents of the Federal Home Loan Bank Board and the Office of
Industry Development as if the home office of Home were located in Illinois or
Texas.
The Office of Industry Development will not recommend denial of an application
of Home (1) to establish or maintain a branch office in Illinois or Texas, or (2) to
merge with another FSLIC insured institution having its home office in Illinois or
Texas through merger, consolidation, or purchase of bulk assets, solely because
such application is to establish a branch office, or merge with an institution having
15
its home or other office, in a state other than that in which the home office of Home
is located, provided that Home has established branch offices in Illinois and Texas
pursuant to . . . the Federal Regulations. Home has met this requirement through
the [Illinois and Texas] mergers. . . .
JX015.
With this assistance, Home acquired eight branches in Illinois. PX594 at 115. Home
opened one additional branch in Illinois in 1983 and in 1984 and no branches in 1985. Id. at
220; see also PX001 at III-19. Home also acquired thirty-six branches in Texas. PX594 at 220.
Home closed three branches in Texas in 1983 and 1984 and closed one branch in Texas in 1985.
Id. And so, Home operated twenty nine branches in Texas by the close of 1985. Id. In the early
1990s, Home implemented a new strategy to concentrate on the thrift industry in California.
Rinehart Tr. vol. 7, 1389:21-1391:11; Kline Tr. vol. 6, 1278:12-1279:5. As a result, Home sold
all of its Illinois branches in a single sale in 1994. Jt. Stip. at ¶ 24; JX082; Rinehart Tr. vol. 7,
1406:4-7, 1449:10-23; PX103 at KS-011290.
3. Home’s Discussions With Regulators
At the time of the Florida-Missouri Merger, Home also took steps to confirm the
accounting treatment for the goodwill to be created by this transaction with the FHLBB and the
SEC. Specifically, in 1981, Home and its parent company, Ahmanson, sought assurance from the
SEC that Home would be able to amortize goodwill created by the Florida-Missouri Merger over
forty years. JX107; Antoci Tr. vol. 2, 303:10-304:11; JX086; PX592. The SEC agreed that Home
could use the purchase method of accounting and amortize the goodwill resulting from the Florida-
Missouri Merger, and the subsequent Illinois-Texas Merger, over forty years.11 JX107; Antoci Tr.
vol. 2, 367:16-22. The SEC approved Home’s proposed accounting treatment for supervisory
goodwill in October 1981. JX107; Antoci Tr. vol. 2, 303:18-305:16, 373:21-24.
Home also submitted an amortization plan for the goodwill to be created by the Florida-
Missouri Merger to the FHLBB, along with a letter from Home’s accountant, Peat Marwick.
PX075; PX163; Antoci Tr. vol. 2, 323:9-18. Peat Marwick reviewed the accounting treatment
that Home utilized to account for the goodwill resulting from the Florida-Missouri Merger and
11
In 1982, Ahmanson recorded the amount of goodwill resulting from the Florida-Missouri Merger as
$226,446,000 in its Form 10-K. JX039 at KS-009507
16
determined that Home’s potential profits in Missouri and Florida supported the amount of
goodwill that Home reported for the Florida-Missouri Merger. PX075; PX163.
Home also attempted to project the savings growth and market share expected in Florida,
Illinois, Missouri and Texas over a five-year period. JX086 at KS-050398-99. In this regard, on
December 14, 1981, Home sent a letter to the SEC which states that Home estimated its cost for
the Florida, Illinois, Missouri and Texas Branching Rights to be $320,000,000. Id. at KS-
050392. Grabowski Tr. vol. 4, 685-88; JX086 at KS-050392. Home also provided a series of
projections of its expected growth and capture of the market share in these states in a letter to the
SEC. JX086 at KS-050398-99; Antoci Tr. vol. 2, 354:12-25, 355:1-21. These projections were
based primarily upon Home’s experience in expanding into Northern California during the 1970s.
Antoci Tr. vol. 2, 356:2-4; see generally JX086.
Home’s “best case scenario” projection in this letter predicted that Home’s market share
in Florida, Illinois, Missouri and Texas as of December 31, 1986, would equal the increase in
market share that Home achieved in Northern California over five years, plus the existing market
share in the applicable state.12 JX086 at KS-050400; Antoci Tr. vol. 2, 365:19-24. And so,
Home predicted that it would capture 4.4%, 4.9%, 5.5% and 5.9% of the total market in Illinois,
Florida, Texas and Missouri, respectively. JX086 at KS-050398. In addition, Home’s “most
probable case scenario” projection in this letter predicted that Home’s market share would be
2.5%, 3%, 3.6% and 4.1% in Illinois, Florida, Texas and Missouri, respectively. JX086 at KS-
050398. Lastly, Home’s “worst case scenario” projection predicted that Home’s market share
would be 1.6%, 2.2%, 2.7% and 3.2% in Illinois, Florida, Texas and Missouri, respectively.
JX086 at KS-050399.
4. The Century Merger
On August 10, 1984, Home acquired a failing New York thrift−Century Federal Savings
and Loan Association. Jt. Stip. at ¶ 17. In connection with this transaction, Home entered into
an assistance agreement with the FSLIC, and the FHLBB also issued a resolution providing
Home with a RAP Right and a Branching Right in the State of New York. Id. at ¶¶ 17-18;
12
In the 1970s, California relaxed its branching regulations to allow limited expansion within the state.
JX086 at KS050392; Antoci Tr. vol. 2, 291:15-20. Home took advantage of this opportunity and opened
branches in Northern California. Antoci Tr. vol. 2, 291:21-22.
17
JX009; PX078. Home also received a $700,000,000 loan at a below market rate (“Century
Favorable Financing”). JX009 at KS-003179-81, KS-003193-97.
It is undisputed that Home’s purchase price−or cost basis−for the Century Merger was
$205,215,000.13 Pl. Post-Trial Br. at 45. Plaintiffs maintain that Home’s cost basis in the
Century RAP Right is $25,249,000. Id. at 25, 150. Plaintiffs further maintain that Home’s cost
basis in the New York Branching Right is $101,966,000. Id.
a. The Century RAP Right
At the time of the Century Merger, the applicable federal accounting regulations permitted the
goodwill created by the Century Merger to be amortized over a period not to exceed twenty-five
years. JX106 (reducing the amortization period under GAAP for any goodwill created by the
combination of thrifts); Hargett Tr. vol. 11, 2327:3-23; DX204 at 25-26. Home also entered into
an Assistance Agreement with the FSLIC, and the FHLBB issued a resolution regarding, among
other things, the accounting of the goodwill created by the Century Merger. JX009; PX078. A
separate FHLBB Resolution attached to the Century Assistance Agreement also provided Home
with, among other things, Branching Rights. PX078 at KS-007842-43. And so, Home received,
among other things, a RAP Right and a New York Branching Right in connection with the
Century Merger. See JX009; PX078 at KS-007837, KS-007842-43.
The Century Assistance Agreement and the FHLBB Resolution are relevant to
understanding the Century RAP Right.
Specifically, section 13 of the Assistance Agreement provides that:
Except as otherwise provided, any computations made for the purposes of this
Agreement shall be governed by generally accepted accounting principles as
applied in the savings and loan industry; except that where such principles conflict
with the terms of this Agreement, applicable regulations of the Bank Board or the
CORPORATION, or any resolution or action of the Bank Board approving, or
adopted concurrently with, this Agreement, then this Agreement, such regulations,
or such resolution or action shall govern. In the case of any ambiguity in the
interpretation or construction of any provision of this Agreement, such ambiguity
shall be resolved in a manner consistent with such regulations and the Bank Board's
resolution or action. If there is a conflict between such regulations and the Bank
13
The parties agree that Home assumed $743,125,000 of liabilities from Century. Jt. Stip. at ¶ 19. Home
also received $537,910,000 of assets from Century. PX594 at 217; PX004 at Ex. 3.1; Grabowski Tr. vol.
4, 837:24-839:22.
18
Board's resolution or action, the Bank Board's resolution or action shall govern.
For the purposes of this section, the governing regulations and the accounting
principles shall be those in effect on the Effective Date or as subsequently clarified,
interpreted, or amended by the Bank Board or the Financial Accounting Standards
Board (“FASB”), respectively, or any successor organization to either. If there is a
conflict between what is required by the FASB and what is required by the Bank
Board, the Bank Board's interpretation shall govern.
JX009 at KS-003185-86. In addition, the FHLBB Resolution provides in relevant part that:
[I]n accounting for the Merger and the acquisition of assets and liabilities of
Century by Home Savings, Home Savings shall use generally accepted accounting
principles prevailing in the savings and loan industry, as accepted, modified,
clarified and interpreted by applicable regulations of the Bank Board and the
FSLIC; and
RESOLVED FURTHER, That Home Savings shall furnish an analysis
accompanied by a concurring opinion from its independent public accountants,
satisfactory to the Supervisory Agent and to the Office of Examinations and
Supervision, which (i) specifically describes as of the closing date, any intangible
assets, including goodwill or the discounts and premiums arising from the
acquisition to be recorded on Home Savings' consolidated books; and (ii)
substantiates the reasonableness and conformity with regulatory requirements of
the amounts attributed to intangible assets, including goodwill, and the discounts
and premiums and the related amortization periods and methods[.]
PX078 at KS-007837. As it did with the Florida-Missouri and Illinois-Texas Mergers,
Home sought approval from the SEC of its accounting treatment for the Century Merger.
PX592.
b. The New York Branching Right
Home also received a Branching Right in New York as part of the Century Merger.
Specifically, the FHLBB Resolution dated August 10, 1984, FHLBB provided that:
Branching and Branch Offices
RESOLVED FURTHER, That the Bank Board hereby determines that:
(1) The establishment of the offices of Century as branch offices of Home Savings
will be achieved as part of a transaction in which the assets and liabilities of
Century are acquired by Home Savings pursuant to an action by the FSLIC to
prevent the failure of Century;
(2) The FSLIC’s insurance liability or risk, including cost or potential cost to the
FSLIC, will be reduced as a result of maintaining offices of Century as branches
offices of Home Savings; and
19
(3) The FSLIC’s insurance liability and risk, including cost or potential cost to the
FSLIC, resulting from the acquisition of Century’s assets and liabilities by
Home Savings by reason of the Merger, is substantially less than the liability or
risk that would result from any other acquisition alternatives;
RESOLVED FURTHER, That the maintenance of the home and branch offices of
Century as branch offices of Home Savings subsequent to the Merger is hereby
approved and
RESOLVED Further, That Home Savings may designate the home and branch
offices of Century located in New York under the name of “Century Federal
Savings and Loan, a Division of Home Savings of America, F.A.A” . . . .
PX078 at KS-007842-43. After entering into the Century Merger, Home began expanding its
branch networks in New York. Antoci Tr. vol. 2, 327:21-23. In the early 1990s, Home
implemented a new strategy to concentrate on the thrift industry in California. Rinehart Tr. vol.
7, 1389:21-1391:11; Kline Tr. vol. 6, 1278:12-1279:10. As a result, Home sold all of its New
York branches by entering into branch sales agreements in September 1995. Jt. Stip. at ¶ 26;
JX025; Twomey Tr. vol. 4, 711:11-17.
5. The Ohio Merger
Lastly, in 1985, Home acquired five failing thrifts in Ohio in a supervisory merger. Jt.
Stip. at ¶¶ 21-22. Only one of these five failing savings and loan institutions was insured by the
FSLIC. Id. at ¶ 23.
In connection with this transaction, Home entered into an assistance agreement with the
FSLIC, and the FHLBB issued a resolution regarding, among other things, the accounting of
goodwill created by the Ohio Merger and providing Home with a Branching Right in the State of
Ohio. PX083 at KS-007965-66. Home received a RAP Right, a Branching Right, a
$200,000,000 loan with a favorable financing rate (“Ohio Favorable Financing”) and certain
regulatory forbearances in connection with the Ohio Merger. Jt. Stip. at ¶ 21; PX001 at IV-17.
It is undisputed that Home’s purchase price−or cost basis−for the Ohio Merger was
$50,800,000.14 PX004 at 137; PX594 at 236; Grabowski Tr. vol. 5, 873:8-10; Pl. Post-Trial Br.
14
Home assumed $461,530,000 in liabilities from the five failing Ohio thrifts. Jt. Stip. at ¶ 22. Home
also received $410,664,000 in assets from the five failing thrifts. PX594 at 236; PX004 at 134;
Grabowski Tr. vol. 5, 872:-873:7. The fair market value of the Favorable Financing for the Ohio Merger
was $27,000,000. Grabowski Tr. vol. 5, 889:18-890:5; PX594 at 248; PX004 at 137.
20
at 27. Plaintiffs maintain that Home’s cost basis in the RAP Right for this transaction is
$3,870,000. Pl. Post-Trial Br. at 28. Plaintiffs further maintain that Home’s cost basis in the
Ohio Branching Right is $19,996,000. Id.
a. The Ohio RAP Right
The Ohio Assistance Agreement and the FHLBB Resolution for this transaction are
relevant in understanding the Ohio RAP Right. Section 12 of the Assistance Agreement
provides that:
Except as otherwise provided, any computation made for the purposes of this
Agreement shall be governed by generally accepted accounting principles as
applied in the savings and loan industry, except that where such principles conflict
with the terms of this Agreement, applicable regulations of the Bank Board or the
CORPORATION, or any resolution or action of the Bank Board approving, or
adopted concurrently with, this Agreement, then this Agreement, such regulations
or such resolution or action shall govern.
JX013 at KS-003493. In addition, the FHLBB Resolution provides, in relevant part, that:
RESOLVED FURTHER, That in accounting for the Acquisition and the Savings
One Acquisition, Home Savings shall use generally accepted accounting principles
prevailing in the savings and loan industry, as accepted, modified, clarified and
interpreted by applicable regulations of the Bank Board and the FSLIC; and
RESOLVED FURTHER, That Home Savings shall furnish an analysis,
accompanied by a concurring opinion from its independent public accountants,
satisfactory to the Principal or other Supervisory Agent of the Bank Board, San
Francisco, California (“California Supervisory Agent”) and to the Office of
Examinations and Supervision, which (i) specifically describes as of the closing
date, any intangible assets, including goodwill or the discounts and premiums
arising from the Acquisition and the Savings One Acquisition to be recorded on
Home Savings' consolidated books; and (ii) substantiates the reasonableness and
conformity with regulatory requirements of the amounts attributed to intangible
assets, including goodwill, and the discounts and premiums and the related
amortization periods and methods[.]
PX083 at KS-007959-60.
b. The Ohio Branching Right
Home also received the right to open new branches in the State of Ohio in the Ohio
Merger. PX083 at KS-007965. Specifically, the FHLBB Resolution for the Ohio Merger
provides that:
21
Branching and Branch Offices
RESOLVED FURTHER, That the Bank Board hereby determines that:
(1) The establishment of the offices of Home Federal as branch offices of Home
Savings will be achieved as part of a transaction in which the assets and
liabilities of Home Federal are acquired by Home Savings pursuant to an action
by the FSLIC to prevent the failure of Home Federal;
(2) The FSLIC’s insurance liability or risk, including cost or potential cost to the
FSLIC, will be reduced as a result of maintaining offices of Home Federal as
branches offices of Home Savings; and
(3) No otherwise equally desirable alternative has been submitted that could be
approved in accordance with § 556.5(a)(3)(ii) or (iii) of the Federal Regulations,
12 C.F.R. § 556.5(a)(ii) or (iii); and;
RESOLVED FURTHER, That the maintenance of the home and branch offices of
Home Federal and the Ohio Thrifts as branch offices of Home Savings subsequent
to the Acquisition and the Savings One Acquisition is hereby approved; and
RESOLVED Further, That Home Savings may designate the home and branch
offices of Home federal and the Ohio Thrifts under the name of “Savings of
America, a Division of Home Savings of America, F.A.”; and . . . .
PX083 at KS-007965-66.
In the early 1990s, Home implemented a new strategy to concentrate on the thrift
industry in California. Rinehart Tr. vol. 7, 1389:21-1391:11; Kline Tr. vol. 6, 1278:12-1279:10.
As a result, Home sold all of its Ohio branches by entering into branch sales agreements during
the period 1991-1995. Jt. Stip. at ¶ 25; JX017; JX018; JX019; JX021; JX022; JX023; JX024;
JX090; JX091; JX092; PX052; PX060; PX065; PX082.
F. The Bowery Merger
1. The 1985 Bowery Assistance Agreement
The Bowery Savings Bank (“Bowery”) was a federally-chartered mutual savings bank
headquartered in New York. Rice Tr. vol. 6, 1157:7-20; Grabowski Tr. vol. 8, 1561:25-1562:2.
The Bowery’s asset portfolio consisted mainly of fixed-rate home mortgages and its liabilities
consisted primarily of deposits from customers. Rice Tr. vol. 6, 1157:2-12. And so, the high
interest rate environment in the late 1970s and early 1980s caused the Bowery to experience
extensive losses and capital erosion like many savings and loan institutions. Rice Tr. vol. 6,
1157:7-20; Grabowski Tr. vol. 8, 1561:25-1562:2; PX369 at US43747.
22
On August 7, 1985, a group of investors organized by New York businessman Richard
Ravitch (“Ravitch Group”) entered into an assistance agreement with the Federal Deposit
Insurance Company to acquire the Bowery through a government-assisted merger. Pursuant to
that merger, the Ravitch Group−operating through an entity known as New Bank−assumed the
Bowery’s liabilities in exchange for certain assistance from the FDIC. JX034; Rice Tr. vol. 6,
1161:7-19, 1163:18-20. New Bank subsequently reorganized as New Bowery and later changed
its name to the Bowery Savings Bank. PX377 at DR-000005, DR-000017; Rice Tr. vol. 6,
1185:17-1186:16.
Similar to the FSLIC Mergers, the FDIC entered into an agreement with New Bank to
provide certain assistance to facilitate New Bank’s merger with the Bowery (the “1985 Bowery
Assistance Agreement”). JX034. Under the 1985 Bowery Assistance Agreement, New Bank
received: (1) a $100,000,000 loan from the FDIC with a favorable interest rate (the “Bowery
Favorable Financing”); (2) credit protection on certain loans and investments (the “Bowery
Credit Protection”); (3) the FDIC’s approval to reverse purchase accounting adjustments for
purposes of calculating capital for regulatory purposes (the “1985 Bowery RAP Right”); (4) an
income maintenance agreement (the “IMA”), which was intended to reduce the Bowery Savings
Bank’s interest rate risk for a defined asset base for up to fifteen years, (5) capital forbearance, or
forbearance from exercising regulatory authority if Bowery’s net worth fell below regulatory
minimums, (6) net worth certificates, or the contractual right to include certain net worth
certificates when computing regulatory capital, and (7) an FDIC contribution for net worth, or a
contribution of cash and Treasury securities that amounted to the negative net worth of Bowery
prior to the 1985 Bowery Merger. PX001 at V-7-8, V-35; JX034; JX066; Rice Tr. vol. 6,
1172:3-24, 1174:10-1177:21; JX066 at KS-022693. In exchange, the Ravitch Group infused
$100,000,000 in capital into the bank, which was insolvent at the time of the transaction.
Grabowski Tr. vol. 8, 1561:19-1562:14.
The 1985 Bowery RAP Right allowed the Bowery to reverse its purchase accounting
adjustments for the purpose of calculating capital for regulatory purposes. JX034 at KS-008033-
34; Rice Tr. vol. 6, 1174:10-1177:2. In this regard, the Bowery Assistance Agreement provides
that:
10.1 Minimum Capital Requirements. This Agreement shall constitute the
commitment of Resulting Bank to adhere to a reasonable plan to meet the FDIC’s
23
minimum capital requirements for the purposes of 12 C.F.R. 325.3, or any
regulation promulgated by the FDIC in replacement thereof (“Minimum Capital
Requirements”), for the duration of this Agreement. The FDIC agrees that for the
term of this Agreement, so long as Resulting Bank is in compliance with this Article
10, it shall be deemed for purposes of all rules, regulations, and policies of the FDIC
to have at least the minimum required primary capital ratio and total capital ratio,
or satisfied any other Minimum Capital Requirements, as may be required by the
FDIC from time to time for well managed banks.
10.2 Definitions.
(a) Purchase Accounting Amounts. For the purpose of computing Primary Capital
and Total Assets, as defined in Section 10.2(b) and (d) hereof, respectively,
Purchase Accounting Amounts on any date of determination shall mean the then
unamortized debit or credit balance of any amounts which were recorded on the
books of Resulting Bank as of the Commencement Date as a result of the
application of purchase method accounting to the Merger, provided, however, that
such amounts shall not include (a) amount attributable to estimated credit losses
with respect to acquired assets or (b) any amounts attributable to intangible assets
excluded from the definition of Primary Capital under 12 C.F.R. Section 325.2.
JX034 at KS-008033–KS-008034; Rice Tr. vol. 6, 1174:10-1177:2.
The Bowery also received an IMA, which was intended to reduce the Bowery’s interest
rate risk for a defined asset base for up to fifteen years. JX034; JX066; Rice Tr. vol. 6, 1172:3-
24, 1174:10-1177:22; JX066 at KS-022693. Under the terms of the IMA, the Bowery could
expect to “receive from or pay to the FDIC on a quarterly basis, income maintenance payments
equal to (a) the average cost of funds of a peer group of New York savings bank [sic] less (b) a
fixed rate specified in the Assistance Agreement, times the Defined Asset Base [of acquired
fixed rate mortgages].” JX066 at KS-022694. And so, the IMA served to neutralize Bowery’s
interest-rate risk from long-term, fixed-rate mortgages.
In addition, the Bowery Favorable Financing consisted of a fifteen-year, $100,000,000
loan from the FDIC with a favorable interest rate. JX034 at KS-008002-04, KS-008061; PX377
at DR-000018; Rice Tr. vol. 6, 1167:16-1168:17. Lastly, the 1985 Bowery Assistance
Agreement also provided the Bowery with credit protection on certain categories of loans and
investments. PX377 at DR000020.
The purchase price for the 1985 Bowery Merger is $644,000,000. Grabowski Tr. vol. 8,
1570:19-21. Plaintiffs make some adjustments to this purchase price and maintain that the
adjusted purchase price for this transaction is $486,366,000. PX596 at 36. Plaintiffs maintain
24
that Home took a cost basis in the government assistance provided to the Bowery in 1985 and
that Home’s cost basis in the 1985 Bowery RAP Right is $189,466,000. Pl. Post-Trial Br. at
150. Plaintiffs further maintain that Home’s cost basis in the Bowery Credit Protection is
$14,573,000, and that Home’s cost basis in the Bowery Favorable Financing is $4,500,000. Id.;
see also PX596 at 36.
2. The 1988 Bowery Assistance Agreement
On October 5, 1987, Ahmanson entered into an agreement with the Bowery and the
Bowery’s stockholders to purchase all of the Bowery’s stock. See JX065; Glassett Tr. vol. 6,
1226. Concurrent with the negotiations for this transaction, Ahmanson and the FDIC began
discussions to modify the 1985 Bowery Assistance Agreement. JX065 at KS-021348.
On January 29, 1988, the FDIC and the Bowery Savings Bank executed an agreement
entitled “Amendment No. 3 to Assistance Agreement” (“1988 Bowery Assistance Agreement”).
JX070. On the same date, Home acquired the outstanding stock of the Bowery in exchange for
$219,000,000. Glassett Tr. vol. 6, 1246:16-20; JX045 at KS-010084, KS-010144.
The 1988 Bowery Assistance Agreement made several changes to the assistance package
that the FDIC provided to the Bowery in 1985. First, the 1988 Bowery Assistance Agreement
eliminated the IMA. Glassett Tr. vol. 6, 1229:7-17, 1233:21-1234:17, 1237:18-24; JX045 at KS-
010110; JX070 at KS-026950-51. Second, the 1988 Bowery Assistance Agreement eliminated
the 1985 Bowery RAP Right and provided Home with a new RAP Right (“1988 Bowery RAP
Right”). JX070 at KS-026951-52. In this regard, the 1988 Bowery RAP Right kept the purchase
accounting adjustments under the 1985 Bowery Assistance Agreement in place, but allowed the
Bowery to count the goodwill created by these adjustments toward computing regulatory capital.
Glassett Tr. vol. 6, 1229:7-17, 1233:21-1234:17, 1237:18-24; JX070 at KS-026951-53; JX045 at
KS-010110. Lastly, the 1988 Bowery Assistance Agreement decreased the amount of assets
covered by the Bowery Credit Protection by $1,500,000,000. Glassett Tr. vol. 6, 1229:15-17;
JX070 at KS-026951.
G. Western District Of Washington And Ninth Circuit Litigation
In 2008, Washington Mutual, Inc. filed a tax refund case involving the Florida-Missouri
Merger at issue in this matter before the United States District Court for the Western District of
25
Washington. Washington Mut., Inc. v. United States, No. C06–1550, 2008 WL 8422136, at *3
(W.D. Wa. Aug. 12, 2008). In that matter, Washington Mutual sought amortization and
abandonment loss deductions for tax years 1990, 1992, and 1993 in relation to the Florida-
Missouri Merger. Id. at *1. After the district court held that the Home did not acquire a tax
basis in the Florida and Missouri Branching Rights or the Florida-Missouri RAP Right, plaintiff
appealed the district court’s decision to the United States Court of Appeals for the Ninth Circuit.
Id.; see Washington Mut., Inc. v. United States, 636 F.3d 1207, 1209 (9th Cir. 2011)
(“Washington Mut. I”).
On March 3, 2011, the Ninth Circuit reversed the district court, holding that Home had a
cost basis in the Florida-Missouri RAP Right and Florida and Missouri Branching Rights “equal
to some part of the excess of the [ ] acquired thrifts’ liabilities over the value of their assets.” Id.
at 1209. In addition, the Ninth Circuit remanded the case to the district court for a determination
on whether Washington Mutual had met its burden to establish Home’s cost basis in the Florida-
Missouri RAP Right and Florida and Missouri Branching Rights. Id. at 1221.
In an opinion dated February 10, 2014, the district court held that:
In order to determine how much Home paid for the incentive package it received
from FSLIC as part of the supervisory merger, Plaintiff must establish: (1) the total
value of the free failing thrifts’ liabilities, and (2) the total value of their assets. The
difference between these two asset values represents the “excess liability” or the
“Purchase Price” that Home paid for the incentive package.
Washington Mut., Inc. v. United States, 996 F. Supp. 2d 1095, 1104 (W.D. Wa. 2014)
(“Washington Mut. II”). The district court further held that, “[i]n transactions where one lump-
sum purchase price is paid for a conglomeration of assets–as is the case here–the cost of each
asset must be determined by apportioning the purchase price among the assets according to each
asset’s relative fair market value at the time of the acquisition.” Id. Using this framework, the
district court determined that Washington Mutual had failed to prove the fair market value of the
Missouri Branching Right to a reasonable degree of certainty and that Home had not abandoned
the Missouri Branching Right. Id. at 1106-20. And so, the district court concluded it was unable
to allocate Home’s purchase price and obtain Home’s cost basis in the Florida-Missouri RAP
Right and the Florida and Missouri Branching Rights. Id. at 1097.
26
Washington Mutual appealed the district court’s decision and that matter is currently
pending before the Ninth Circuit. Washington Mut., Inc. v. United States, No. 14-35289, 2014
WL 4206762 (9th Cir. Apr. 18, 2014).
H. Fact Witnesses
At trial, the Court heard testimony from the following fact witnesses: Mario Antoci,
Brent H. Beesley, Curt Brouwer, Richard Deihl, Tim Glassett, Verne Kline, Donald Rice,
Charles Rinehart and Kevin Twomey. A summary of the witness testimony follows.
1. Testimony Of Richard Deihl
Richard Deihl was a fact witness for plaintiffs and for the government. See Pl. Witness
List; Def. Witness List. Mr. Deihl testified that he began working for Home as a loan agent in
1959. Deihl Tr. vol. 1, 84-85. At the time of his retirement, Mr. Deihl was the Chief Executive
Officer (“CEO”) and chairman of the board at Ahmanson. Id. at 84. Mr. Deihl was involved in
all of the transactions at issue in this case. Id. at 118-22.
During the trial, Mr. Deihl testified about Home’s operations during the 1970s and
1980s, the FSLIC Mergers and the Bowery Merger. Deihl Tr. vol. 1-2. Specifically, Mr. Deihl
testified that Home was the largest thrift in the country during the 1970s and 1980s. Deihl Tr.
vol. 1, 84:8-10. He also testified that during the late 1970s and early 1980s, interest rates rose
significantly. Id. at 89:9-13. In an attempt to combat the high interest rates during this period,
Mr. Deihl testified that Home began offering VRMs, which were available exclusively in
California. See id. at 97-99. He also testified that Home’s VRMs followed the Eleventh District
COFI. Id. at 100:1-8. After the federal government began allowing federally-chartered thrifts to
offer ARMs, Mr. Deihl also testified that Home became a federally-chartered thrift and began to
offer ARMs. Id. at 103:2-104:1.
With respect to loan demand, Mr. Deihl noted that the demand for mortgage loans
dropped “dramatically” in the early 1980s. Id. at 104:13-24. Nonetheless, he testified that
Home’s management did not believe that the public would permanently stop buying homes. Id.
at 105:11-24. And so, he also testified that Home expected to issue mortgage loans during the
savings and loan crisis using newly obtained out-of-state deposits as a funding source. Id. at
114:14-24.
27
With regard to the Branching Rights, Mr. Deihl testified that Home targeted the savings
and loan markets in Texas, Florida, New York and Ohio during its negotiations with the FSLIC.
Id. at 115:17-24. Mr. Deihl further testified that, after Home acquired these thrifts, Home would
rename the existing branches and retrain the existing employees. Id. at 122:12-126:12. Lastly,
with respect to the Bowery Merger, Mr. Deihl testified that the Bowery Merger was different
than the other transactions, because, among other things, Home did not gain a Branching Right.
Id. at 126:13-127:23.
2. Testimony Of Mario Antoci
Mario Antoci was a fact witness for plaintiffs and for the government. See Pl. Witness
List; Def. Witness List. Mr. Antoci served as the executive vice president and later the president
of Home in the 1980s. Antoci Tr. vol. 2, 264:14-16.
During the trial, Mr. Antoci testified about Home’s acquisition of savings and loan
associations located in Florida, Illinois, Missouri, New York, Ohio and Texas and the intangible
assets acquired by Home in connection with those transactions. See generally id. at 286-327.
Specifically, Mr. Antoci testified that the rapid increase of interest rates caused the savings and
loan industry to experience a significant loss in profits during the 1970s and early 1980s. Id. at
271:4-273:9. He also testified that this interest rate crisis had a negative impact on Home during
the 1980s and resulted in Home paying higher interest rates on its deposit accounts than Home
received on mortgage loan payments. Id. at 272:5-273:9. In this regard, Mr. Antoci testified
that, by 1981, Home was probably losing money. Id. at 284:6-7. But, he further testified that
Home, nonetheless, fared better than many other thrifts during the interest rate crisis because
Home could conduct variable-rate mortgage lending in California. Id. at 273:10-23.
With respect to the Branching Rights that Home received in connection with the FSLIC
Mergers, Mr. Antoci testified that Home was interested in the opportunity to acquire thrifts in
states other than California primarily to grow deposits. Id. at 283:8-16. Mr. Antoci also testified
that Home’s growth projections regarding the thrift’s expansion into out-of-state markets was
reasonable and properly based upon Home’s prior growth experience in Northern California,
because Home’s growth in Northern California included additional acquisitions as well as
savings growth. Id. at 313:6-16. Lastly, with respect to the RAP Right, Mr. Antoci testified that
Home applied the purchase method of accounting and that Home amortized the goodwill on its
28
books as a result of these transactions over a period of forty years. Id. at 298:7-25, 304:2-305:9.
In this regard, Mr. Antoci further testified that Home would not have entered into the FSLIC
Mergers if Home had not received regulatory approval for this method of accounting for
goodwill. Id. at 305:10-20.
3. Testimony Of Brent Beesley
Brent H. Beesley was a fact witness for plaintiffs and for the government. See Pl.
Witness List; Def. Witness List. Mr. Beesley served as the director of the FSLIC from April
1981 to May 1983. Beesley Tr. vol. 3, 453:1-5. Mr. Beesley was involved in the Florida-
Missouri and Illinois-Texas Mergers on behalf of the FSLIC. Id. at 495:20-23.
During the trial, Mr. Beesley testified about the FSLIC’s response to the interest rate
crisis. See, e.g., id. at 453-56. Specifically, Mr. Beesley testified that, in October 1979, the
Federal Reserve began increasing interest rates to combat high inflation. Id. at 455:8-13. He
also testified that this high interest rate environment, combined with the effects of
disintermediation, were devastating for the savings and loan industry, because most thrifts at the
time were making long-term fixed-rate home loans. Id. at 455:21-456:14. As a result, Mr.
Beesley testified that the thrifts insured by the FSLIC were, in general, headed toward
insolvency. Id. at 456:15-457:5.
Mr. Beesley also testified that the high interest rate environment negatively impacted the
FSLIC, because the FSLIC’s assets were worth less than their book value due to the FSLIC’s
investment in long-term fixed-rated government bonds. Id. at 457:6-13. Mr. Beesley testified
that the FSLIC undertook a multi-tiered approach to address this problem, to include: (1)
providing a failing thrift with new capital, (2) brokering an unassisted merger with an in-state
thrift, (3) facilitating an involuntary, unassisted merger, or (4) setting up a marginally assisted in-
state merger. Id. at 461, 463, 473, 475-76; PX570.
In this regard, Mr. Beesley testified that, if the FSLIC could not arrange an unassisted
interstate merger, it would attempt an assisted interstate acquisition, known as a supervisory
merger. Beesley Tr. vol. 3, 464-65, 469-70, 481; PX570. He also testified that, in a supervisory
merger, a healthy thrift in a different state would take on the insolvent thrift’s liabilities and, in
return, receive certain incentives from the FSLIC. Beesley Tr. vol. 3, 464:20-465:13, 469:1-
470:21. He also noted that, in such supervisory mergers, the FSLIC would often package thrifts
29
in less desirable states with thrifts in more desirable states to ensure the former found merger
partners. Id. at 490:4-10.
Lastly, with respect to the RAP Right, Mr. Beesley had the following exchange with
counsel for the government regarding the accounting for supervisory mergers:
Q. This wasn’t special treatment that FSLIC was selling to individual thrifts,
correct?
A. We weren’t selling it. It was - - it was the interpretation that the SEC and the
FASB and everybody else said was applicable in these situations, and it was helpful
to us. . . . It was a very positive tool that was being applied in these situations which
helped us solve problems at lower cost.
Q. So, if there was a supervisory merger, a thrift didn’t have to bargain for this
treatment; they got it either way.
A. I think that’s right, or a voluntary treatment. I mean, it didn’t have to be
supervisory to get this treatment.
A. A Federal Home Loan Bank policy? I think they approved the accounting of
the transaction when they approved the deal, but I don’t think it was a special policy
for Home. They just said this – I believe that in all of these mergers, to avoid any
confusion, that there was a provision that purchase accounting would apply.”
Id. at 524:16-525:15.
4. Testimony Of Tim Glassett
Tim Glassett was a fact witness for plaintiffs and for the government. See Pl. Witness
List; Def. Witness List. Mr. Glassett worked at Ahmanson from 1985 to 1998, serving as the
vice president and corporate counsel, and later as the first vice president and assistant general
counsel of Ahmanson. Glassett Tr. vol. 6, 1225:7-19. In 1990, Mr. Glassett also served as the
corporate secretary to the board of directors for Home, and from 1992 to 1993, he served on the
board of directors of the Bowery Savings Bank. Id. at 1225:7-1226:3.
Mr. Glassett testified about the Bowery Merger. In this regard, Mr. Glassett testified that
Ahmanson’s purchase of Bowery was contingent upon amendments being made to the 1985
Bowery Assistance Agreement. Id. at 1227:10-12. He also testified that, among other changes,
the 1988 Bowery Assistance Agreement reduced the Bowery Credit Protection by
$1,500,000,000, and modified the Bowery RAP Right to allow Bowery to treat goodwill as
capital. Id. at 1229:7-17; 1231:2-1237:1. He also noted that, after entering into the 1988
Bowery Assistance Agreement, the Bowery included goodwill as an asset in capital, consistent
30
with the 1988 RAP Right, and that the Bowery amortized goodwill over twenty years. Id. at
1238:13-23. Lastly, with respect to the Bowery IMA, Mr. Glassett testified that the 1988
Bowery Assistance Agreement eliminated the IMA based upon the advice of Salomon Brothers.
Id. at 1237:18-1238:5.
5. Testimony Of Verne Kline
Verne Kline was a fact witness for plaintiffs and for the government. See Pl. Witness
List; Def. Witness List. Mr. Kline worked for Home most recently from 1985 to 1997. Kline
Tr. vol. 6, 1274:18-19.
Mr. Kline testified about Home’s decision in the early 1990s to sell the thrifts that Home
had acquired outside of California. Specifically, Mr. Kline testified that Home’s strategy
changed “180 degrees,” from acquiring thrifts in new markets to withdrawing from all markets
except California. Id. at 1278:12-18. He also testified that this change in strategy was a
business decision for Home, and that Home did not intend to ever re-enter the markets that it
exited. Kline Tr. vol. 7, 1318:13-1319:19, 1330:2-18.
With respect to the covenants not to compete in Home’s branch sale agreements, Mr.
Kline also testified that the covenants not to compete were a typical feature of the branch sale
agreements, and that Home did not feel strongly about the terms of the covenants not to
compete. Kline Tr. vol. 6, 1284:17-1285:4. Mr. Kline also testified that most of Home’s
covenants not to compete allowed Home to continue its lending business in the specified area.
Id. at 1289:1-1290:17.
6. Testimony of Curt Brouwer
Curt Brouwer was a fact witness for plaintiffs and for the government. See Pl. Witness
List; Def. Witness List. Mr. Brouwer is the Director of Tax for the WMI Liquidating Trust, the
holding company for Washington Mutual Bank. Brouwer Tr. vol. 7, 1356:23-1257:14. From
2005 to 2008, he served as the director of corporate tax for Washington Mutual Bank. Id. at
1357:15-23. In that position, Mr. Brouwer was responsible for the tax operations of Washington
Mutual Bank, including preparing tax returns. Id. at 1358:4-7.
During the trial, Mr. Brouwer testified about Home’s Internal Revenue Service (“IRS”)
tax refund claim. See id. at 1369-73. In this regard, Mr. Brouwer testified that, in 1993,
31
Ahmanson filed an informal claim with the IRS exam team to take a deduction for the
abandonment of branches in Missouri. Id. at 1369:5-22. He also testified that the IRS denied
that claim and, thereafter, Ahmanson requested early consideration of the denial of its claim. Id.
at 1371-72; DX069. Mr. Brouwer further testified that Ahmanson submitted similar tax refund
claims to the IRS when it sold Home’s other out-of-state branches. Brouwer Tr. vol. 7, 1372:1-
1373:10.
With respect to the Branching Rights at issue in this litigation, Mr. Brouwer testified that
Home did not take a tax deduction for the cost of the Branching Right during the 1980s. Id. at
1376:12-14. In this regard, he testified that “[b]ranching rights, under the tax law in existence at
the time, would have been considered an asset with an indeterminate life, and the tax law would
not allow you to take an amortization deduction.” Id. at 1376:15-18. And so, he testified that
Home claimed the amortization deduction in the years that they sold the last branch in each state.
Id. at 1377:11-13. Lastly, with respect to the RAP Right, Mr. Brouwer testified that Home first
claimed a deduction for the RAP Right in the early 1990s. Id. at 1378:5-11. With respect to the
1988 Bowery RAP Right, Mr. Brouwer testified that Home assumed a fourteen-year
amortization period for the Bowery RAP Right from 1985 to 1988 and that the 1988 Bowery
Assistance Agreement allowed the Bowery to count goodwill toward capital over a twenty-year
period. Id. at 1383.
7. Testimony of Charles Rinehart
Charles Rinehart was a fact witness for plaintiffs and for the government. See Pl.
Witness List; Def. Witness List. Mr. Rinehart worked at Ahmanson and Home from 1989 until
the late 1990s. Rinehart Tr. vol. 7, 1386:11-16. Mr. Rinehart began as president of both
companies and, in the mid-1990s, he became chairman and CEO of both companies. Id. at
1386:17-22.
During the trial, Mr. Rinehart testified about Home’s business strategy during the 1990s.
In this regard, Mr. Rinehart testified that, in the 1990s, Home’s management decided to
concentrate it branches in certain areas, so Home subsequently exited many states. Id. at
1389:21-1394:2. He also testified that, in so doing, Home sold deposits for which it was paying
higher deposit rates and then Home bought branches in California, where it paid lower deposit
rates. Id. at 1394:3-24. In addition, Mr. Rinehart testified that Home did not intend to reopen
32
any deposit-taking branches in any of the states it exited. Id. at 1397:12-1401:22. Lastly, with
respect to the covenants not to compete contained in Home’s branch sale agreements, Mr.
Rinehart testified that covenants not to compete are common, and that Home did not plan to
return to any of the states it exited. Id. at 1407:4-1408:19.
8. Testimony of Donald Rice
Donald Rice was a fact witness for plaintiffs and for the government. See Pl. Witness
List; Def. Witness List. Mr. Rice served as vice chairman of Bowery Savings Bank from 1985
to 1988. Rice Tr. vol. 6, 1185:13-16.
Mr. Rice testified about the Bowery Merger. In this regard, Mr. Rice testified that under
the 1985 Bowery Assistance Agreement, the FDIC provided the Ravitch Group with, among
other items: (1) a loan of $100,000,000 in cash at a favorable rate, (2) the IMA, and (3) the
Bowery RAP Right, wherein Bowery was able to ignore the purchase accounting adjustment and
count goodwill toward total capital and primary capital when relevant. Id. at 1167:16-1177:2.
He further testified that the Ravitch Group became interested in selling Bowery in or around
1987, and that Home emerged as a potential buyer. Id. at 1188. With respect to the Bowery
Merger, Mr. Rice testified that the 1985 Bowery Assistance Agreement required that the FDIC
approve the sale of the Bowery to Home. Id. at 1189:11-14. He also testified that the Ravitch
Group was not involved in the negotiations between the FDIC and Home. Id. at 1190:16-22.
9. Testimony of Kevin Twomey
Kevin Twomey was a fact witness for plaintiffs and the government. See Pl. Witness
List; Def. Witness List. Mr. Twomey served as the executive vice president and chief financial
officer for Ahmanson from June 1993 to October 1998. Twomey Tr. vol. 4, 703:23-704:21.
During the trial, Mr. Twomey testified about Home’s decision to sell its thrifts located in
Illinois, Texas, New York and Florida during the 1990s. See id. at 710:20-717:8. In this regard,
Mr. Twomey testified that during the 1990s, credit problems had driven down the value of
California thrifts to the point that “nobody wanted to be there.” Id. at 706:5-9. And so, he
testified that Home took advantage of this by selling thrifts located outside of California while
inexpensively acquiring new thrifts within California. Id. at 706:10-14.
33
With respect to the Branching Rights, Mr. Twomey also testified that Home viewed the
sales of its branches as an “an irrevocable move.” Id. at 714:16-20. In this regard, he testified
that:
[T]he reason [Home] pursued the sales in the first place was to sell [the thrifts] for
good premiums in states where [Home] didn’t have the ability to compete very
effectively . . . The idea of coming back in, I mean, just would have been, in my
view, crazy.
Id. at 714:22-715:2. In addition, Mr. Twomey testified that Home had no reason to retain
Branching Rights after it sold its branches in these states. Id. at 717:20-23.
I. Expert Witnesses
The Court also heard testimony from the following expert witnesses: Roger Grabowski,
Joe A. Hargett, Curtis R. Kimball and Catherine Vandenberg.
1. Expert Testimony Of Roger Grabowski
During the trial, plaintiffs offered Roger Grabowski as their valuation expert. Pre-Trial
Conference Tr. at 25, Feb. 9, 2016; see also Grabowski Tr. vol. 3, 543. Mr. Grabowski currently
serves as a Managing Director at Duff & Phelps, LLC, and he is an Accredited Senior Appraiser
and Fellow of the American Society of Appraisers. PX001 at App. D. He has previously served
in senior positions in Standard and Poor’s Corporate Value Consulting practice and at
PricewaterhouseCoopers, LLP, Price Waterhouse, Valtec Associates and American Valuation
Consultants. Id.; Grabowski Tr. vol. 3, 545. The Court determined that Mr. Grabowski was
qualified to testify as an expert with respect to valuation, pursuant to Federal Rule of Evidence
702. Final Pre-Trial Order at 4, Feb. 10, 2016.
During his trial testimony, Mr. Grabowski analyzed the Supervisory Mergers at issue in
this case and he expressed an opinion about the fair market value of the items of government
assistance provided to Home in each of those transactions. See generally Grabowski Tr. vol. 4,
5, 6, 8, 13. To accomplish this, Mr. Grabowski developed a valuation model (the “Grabowski
Model”) to determine the value of these assets. See Grabowski Tr. vol. 3, 615.
a. Overview Of The Valuation Methodology
To determine Home’s cost basis in the government assistance that Home received in the
Supervisory Mergers, the Grabowski Model first determined the fair market value of each item
34
of assistance. PX594 at 44. The Grabowski Model defines fair market value as “[t]he price at
which property would exchange hands between a hypothetical willing buyer and a willing
seller.” PX594 at 44. The Grabowski Model also characterizes a hypothetical willing buyer
from the Supervisory Mergers at issue in this case to be a thrift that is large, sophisticated and
well-capitalized and, therefore, able to utilize interstate branching rights. Grabowski Tr. vol. 3,
616:8-619:10; PX594 at 44-46. To that end, the Grabowski Model identifies guideline thrifts
that met the criteria for a hypothetical willing buyer.15 Grabowski Tr. vol. 3, 620:9-621:7;
PX594 at 46-47.
To determine the fair market value of the Branching Rights and RAP Rights that Home
received in each of the Supervisory Mergers, the Grabowski Model uses an income approach,
whereby value is estimated based upon the “present value of expected economic benefits
(income) that the subject asset can be expected to generate over its remaining useful life.”
PX001 at I-12. Mr. Grabowski testified that to value the Branching Rights at issue in this case,
the Grabowski Model projects cash flow until cash flow reaches a steady state–namely, “a period
of normalized growth and profitability that is expected to persist in the future”–and then
discounts the cash flow to present value. Id.; Grabowski Tr. vol. 3, 555:2-6, 557:1-560:8; PX594
at 13-14. Mr. Grabowski acknowledged during his testimony that loan demand “declined
significantly” during 1980 and 1981 from loan demand during the 1970s. Grabowski Tr. vol. 5,
949:3-18; PX001 at II-30, VI-20; see also PX594 at 216. Nonetheless, the Grabowski Model
assumes that loan demand would keep pace with any amount of deposit growth. PX001 at II-30.
To value the RAP Rights, Mr. Grabowski also testified that the Grabowski Model
estimates the present value of the costs avoided by owning the RAP Rights. PX001 at I-37.
Specifically, Mr. Grabowski testified that he estimated the cost associated with raising and
maintaining replacement capital to maintain the hypothetical willing buyer’s pre-merger capital
level. Id.
15
The guideline thrifts for the Florida-Missouri and Illinois-Texas Mergers are H.F. Ahmanson, Financial
Federation, First Charter Financial, Gibraltar Financial, Golden West Financial, Great Western Financial,
and Imperial. Grabowski Tr. vol. 3, 621:3-7; PX594 at 47. Mr. Grabowski testified that the list of
guideline companies changed for the Century and Ohio Mergers. Grabowski Tr. vol. 3, 621:12-14.
35
Lastly, the Grabowski Model uses a discount rate “to determine what future cash flow is
worth today.” PX594 at 15; Grabowski Tr. vol. 3, 561:3-562:4. To that end, Mr. Grabowski
testified that he accounts for real interest rates, the expected inflation, and risk when calculating
the discount rates for each transaction. Grabowski Tr. vol. 3, 566-67, 569:7-22; PX594 at 19-21.
To do so, the Grabowski Model uses a risk-free rate–the yield on twenty-year U.S. Treasury
securities as of the valuation date–as an interest rate. See, e.g., PX001 at A-2, Exs. 2.10, 3.8, 4.8,
5.13. In addition, Mr. Grabowski projected inflation by evaluating the yield curve. And so he
assumed that the market expected inflation rates stay between 7% and 11% for the foreseeable
future. PX001 at I-5, I-29; PX594 at 28; Grabowski Tr. vol. 3, 581-82, 609-12.
b. The Illinois-Texas Merger
Because the FSLIC Mergers are fundamentally similar in nature, Mr. Grabowski’s
testimony at trial focused upon his valuation of the assistance that Home received in the Illinois-
Texas Merger. Grabowski Tr. vol. 3, 596:22-597:1. In this regard, Mr. Grabowski testified that
he valued the purchase price for the government assistance provided in the Illinois-Texas Merger
to be $285,353,000.16 PX594 at 65; Grabowski Tr. vol. 4, 666:23-25. He also testified that he
allocated this purchase price, based upon the determined fair market value of each item of
government assistance, to determine Home’s cost basis in each item of assistance. Grabowski
Tr. vol. 4, 815:12-22.
i. The Illinois-Texas RAP Right
The Grabowski Model describes the Illinois-Texas RAP Right as “the contractual right
that allowed Home to record accounting goodwill created in [each] transaction.” Grabowski Tr.
vol. 4, 805:11-13; see also PX594 at 169-70. Mr. Grabowski testified that he determined that the
fair market value of the Illinois-Texas RAP Right to be $38,000,000. PX594 at 185. Mr.
Grabowski further testified that he determined Home’s cost basis in the Illinois-Texas RAP
Right to be $35,154,000. Id.
16
To determine this purchase price, Mr. Grabowski primarily used the stated values of the liabilities and
assets for the thrifts acquired in this transaction, as reported in Home’s SEC 10-K filings. Grabowski Tr.
vol. 3, 615:1-6, 627:22-642:8; PX594 at 64-65.
36
In this regard, Mr. Grabowski testified that he based his valuation of the RAP Right upon
the premise that Home needed a contract with the government in order to count the goodwill
created by the FSLIC Mergers for regulatory capital purposes and for Home to use a forty-year
amortization period to amortize such goodwill. Grabowski Tr. vol. 4, 805:1-807:22. And so,
Mr. Grabowski testified that he determined the value of the RAP Right for all of the Supervisory
Mergers to be the equivalent of the cost that a hypothetical willing buyer would avoid by
receiving a RAP Right instead of having to raise and preserve capital to meet the regulatory
capital requirement. Id.; PX594 at 174; PX001 at I-37.
Mr. Grabowski also testified that, to determine the value of the Illinois-Texas RAP Right
in particular, he first calculated the value of the projected balance of the goodwill created by the
Illinois-Texas Merger over forty years and then calculated the after-tax cost of selling preferred
stock to investors to raise capital. Grabowski Tr. vol. 4, 808:1-809:19; PX594 at 174-76; PX001
at I-37-38. PX594 at 180; Grabowski Tr. vol. 4, 812:8-9. Lastly, Mr. Grabowski testified that he
reduced this amount by the after-tax yield on assets in which such capital would be invested and
then discounted such costs. PX594 at 175.
ii. The Illinois And Texas Branching Rights
With respect to the Branching Rights, Mr. Grabowski also testified that he determined the
fair market value of the Illinois and Texas Branching Rights to be $61,000,000 and
$109,000,000, respectively. Grabowski Tr. vol. 4, 824; PX594 at 185. In this regard, Mr.
Grabowski testified that he determined Home’s cost basis to be $56,432,000 for the Illinois
Branching Right and $100,838,000 for the Texas Branching Right. PX594 at 147-49, 185.
To value the Branching Rights, Mr. Grabowski testified that he projected how much
deposit growth a hypothetical willing buyer could have expected to achieve after acquiring
branching rights. Grabowski Tr. vol. 4, 697:7-10.17 In this regard, he also testified that he
projected three items: (1) the number of branches that a hypothetical willing buyer would have
opened after receiving branching rights; (2) the amount of deposits per branch that a hypothetical
17
In this regard, Mr. Grabowski testified that the value of these Branching Rights derives from Home’s
ability to acquire new deposits and depositors in the new market. Grabowski Tr. vol. 4, 670:25-671:2.
Mr. Grabowski also testified that Home could use the customer deposits from such a new market to issue
loans in states where it had a pre-existing foothold. Id. at 673:9-23.
37
willing buyer would expect to achieve; and (3) the timing that would be required for a
hypothetical willing buyer to obtain its projected share of the overall market in the relevant state.
PX594 at 96. Mr. Grabowski also testified that he then applied a discount rate to determine the
present value for the Branching Rights. See, e.g., Grabowski Tr. vol. 3, 555:2-6, 557:13-15.
With respect to the Illinois Branching Right, Mr. Grabowski testified that he compared
the population density in Northern California to the population density in Illinois to value the
Illinois Branching Rights. PX594 at 99, 102-03. Based upon this comparison, Mr. Grabowski
also testified that he then projected the number of branches that the hypothetical willing buyer
would have opened in Illinois based upon the number of branches that Home opened in Northern
California, in proportion to the relative population density in Northern California and Illinois.
Id. at 99.
Based upon Home’s Northern California experience, and his comparison of the market
shares of other large thrifts in Illinois, Mr. Grabowski testified that he projected that a
hypothetical willing buyer would increase its market share in Illinois from 0.4% to 2.54% in
1986, and to 5.71% by year fifteen. Id. at 104-09.
With respect to the number of branches projected to be acquired in Illinois, Mr.
Grabowski also testified that he projected that a hypothetical willing buyer would have opened
twenty four additional branches between 1981 and 1992. PX594 at 101. And so, Mr.
Grabowski testified that a hypothetical willing buyer would have operated thirty-two branches in
Illinois by 1993. Id. at 99, 101; Grabowski Tr. vol. 4, 768:14-17.
With respect to the projections for the amount of deposits per branch that a hypothetical
willing buyer would expect to achieve, Mr. Grabowski testified that he reviewed the history of
deposit growth in the savings and loan industry to get a framework for deposit growth in the
state. Grabowski Tr. vol. 4, 768-69; PX594 at 90. In addition, Mr. Grabowski testified that he
also examined the number of branches and the deposits per branch for competitors in the
relevant state to ascertain how much of the market the hypothetical willing buyer could capture.
Id. at 95, 98. With respect to Illinois, Mr. Grabowski projected that a hypothetical willing buyer
would reach deposits per branch of $70,000,000. Id. at 97-98; Grabowski Tr. vol. 4, 768-69. In
discussing his deposits per branch projection, Mr. Grabowski testified that:
38
We used the same ramp-up assumptions, five years for new branches, four years
for the acquired branches, to get up there. . . . [W]e extracted for Northern
California, how long it took and how long Home management said that it should
take to get up there.
Grabowski Tr. vol. 4, 800:21-25.
Mr. Grabowski also acknowledged during his testimony that he relied upon Home’s
Northern California experience to determine when the hypothetical willing buyer’s deposit
growth would reach a steady state. Grabowski Tr. vol. 4, 767:21-769:25 (“used the Northern
California [experience] as a proxy for the ramp-up period”). In this regard, Mr. Grabowski also
acknowledged that Home’s Northern California growth “happened when deposit growth was
really going fast.” Id. at 769:12-13. And so, to account for the changes in economic
environment during the early 1980s, Mr. Grabowski testified that he adjusted Home’s deposit
growth in Northern California to reflect real, as opposed to inflation-adjusted, growth. PX001 at
I-28 n.23.18
Mr. Grabowski testified that he used the same valuation methodology to value the Texas
Branching Right and that he determined the fair market value of the Texas Branching Right to be
$109,000,000. PX594 at 167; Grabowski Tr. vol. 4, 799:1-9. Specifically, with respect to the
projected number of branches that a hypothetical willing buyer would open in Texas, Mr.
Grabowski testified that Home initially acquired thirty-six branches and that he projected that a
hypothetical willing buyer would open another thirty-six branches in Texas between 1983 and
1992. Grabowski Tr. vol. 4, 801:1-15; PX594 at 155-56. Mr. Grabowski also testified that he
projected that a hypothetical willing buyer’s market share in Texas would increase from 1.22%
to 4.05% in five years, and to 6.47% in fifteen years. Grabowski Tr. vol. 4, 801:24-802:2;
PX594 at 157, 160. As was the case in Illinois, Mr. Grabowski testified that he projected that a
18
The Grabowski Model assumes that all deposits would be invested in mortgages–ARMs, specifically–
and that a spread on new loans of 2.5% was appropriate. Grabowski Tr. vol. 4, 776:19-777:12; PX594 at
117-23. In addition, the discount rate for the Illinois-Texas Merger accounts for inflation, the real risk-
free interest rate and a risk premium, which consists of an equity risk premium, an industry risk factor (or
beta), and a size premium. PX594 at 21, 139. In this instance, the Grabowski Model used an equity risk
premium of 5%–similar to the risk premium for investment in the stock market, an industry risk factor of
1.47%, and a size premium of 1.37%. Id. at 139-40; Grabowski Tr. vol. 4, 787:2-791:14. The size
premium, which represents the incremental return not captured by beta that an investor required given the
size of the investment, is 1.37%. PX594 at 145; Grabowski Tr. vol. 4, 794:1-4.
39
hypothetical willing buyer would reach a steady state by year fourteen. PX594 at 158. And so,
Mr. Grabowski testified that he projected that a hypothetical willing buyer would eventually
achieve $27,500,000 in deposits per branch in Texas. Id. at 153; Grabowski Tr. vol. 4, 800:14-
15.19
Mr. Grabowski testified that after determining the fair market values of the Illinois and
Texas Branching Rights and the Illinois-Texas RAP Right, he allocated the purchase price for
the FSLIC assistance in the Illinois-Texas Merger, based upon each asset’s percentage of the
total fair market value of the assets, to determine Home’s cost basis in these assets. Grabowski
Tr. vol. 4, 814:12-815:24; PX594 at 185. And so, Mr. Grabowski testified that he determined
Home’s cost basis in the Illinois Branching Right to be $56,432,000, Home’s cost basis in the
Texas Branching Right to be $100,838,000, and Home’s cost basis in the Illinois-Texas RAP
Right to be $35,154,000. PX594 at 185.
Lastly, Mr. Grabowski testified that he performed two sensitivity analyses for the Illinois-
Texas Merger, to address concerns that loan demand would be lower than he assumed and that
deposit growth would not increase at the rate that he projected. Grabowski Tr. vol. 4, 828:25-
831:10; PX594 at 185-86. These analyses provide alternative calculations of the fair market
values of the Illinois and Texas Branching Rights and Illinois-Texas RAP Right and Home’s cost
basis in the RAP Right and Illinois and Texas Branching Rights.20 PX594 at 185-86.
19
The acquired Texas thrifts had approximately $10,000,000 in deposits per branch, whereas all Texas
thrifts had average deposits per branch of $18,700,000. PX594 at 153. The largest Texas thrift had
$48,000,000 in deposits per branch, and the average thrift had $30,000,000 in deposits per branch. Id. at
153-54. In addition, Texas’s population was 394 people per square mile, a relatively low population
density. Id. at 153. Mr. Grabowski also testified that Home received three other assets from the FSLIC
as part of the Illinois-Texas Merger, namely, cash payments, loan and real estate indemnifications, and
regulatory capital forbearance. PX594 at 183. Mr. Grabowski testified that the Grabowski Model
subtracted the value of these items of assistance from the total purchase price before allocating the
remaining purchase price among the RAP Right and Branching Rights. Grabowski Tr. vol. 4, 813:11-
14:11; PX594 at 185.
20
Under the first sensitivity analysis, Mr. Grabowski testified that he assumed that a hypothetical willing
buyer would only receive 50% of the deposits that he projected during the first two years after the merger.
Id. at 186; Grabowski Tr. vol. 4, 829:2-5. And so, Mr. Grabowski testified that Home’s cost basis in the
Illinois Branching Right would decrease from $56,432,000 to $55,413,000; Home’s cost basis in the
Texas Branching Right would decrease from $100,838,000 to $98,280,000; and Home’s cost basis in the
Illinois-Texas RAP Right would increase from $35,154,000 to $39,730,000 under this scenario. PX594 at
186.
40
c. The Florida-Missouri Merger
Mr. Grabowski testified that the economic conditions during the Florida-Missouri Merger
were similar to the economic conditions during the Illinois-Texas Merger. Grabowski Tr. vol. 4,
819; PX594 at 189. He also testified that the purchase price for the government assistance that
Home received in the Florida-Missouri Merger is $216,759.00. PX594 at 190; Grabowski Tr.
vol. 4, 819:19-820:17. In addition, Mr. Grabowski testified that he determined the fair market
value of the Florida-Missouri RAP Right to be $46,000,000, the fair market value of the Florida
Branching Right to be $147,000,000, and the fair market value of the Missouri Branching Right
to be $30,000,000. Grabowski Tr. vol. 4, 824:6-828:17; PX594 at 199, 204-06. To that end, Mr.
Grabowski determined Home’s cost basis in the Florida-Missouri RAP Right to be $44,713,000,
Home’s cost basis in the Missouri Branching Right to be $29,160,000, and Home’s cost basis in
the Florida Branching Right to be $142,886,000. PX594 at 207; PX004 at Ex. I.
i. The Florida-Missouri RAP Right
With respect to the valuation of the Florida-Missouri RAP Right, Mr. Grabowski testified
that he utilized the same methodology as discussed above for the Illinois-Texas Merger. PX594
at 206; Grabowski Tr. vol. 4, 828:6-24. Mr. Grabowski further testified that he determined that
the Florida-Missouri Merger created $263,000,000 of goodwill, to be amortized over 40 years.
PX594 at 206; Grabowski Tr. vol. 4, 828:6-8.
ii. The Florida And Missouri Branching Rights
To value the Florida and Missouri Branching Rights, Mr. Grabowski testified that he
again utilized the same methodology as discussed above for the Illinois-Texas Merger.
Grabowski Tr. vol. 4, 818:7-8; PX594 at 96. With respect to the Florida Branching Right, Mr.
Grabowski testified that he projected that a hypothetical willing buyer would open thirty de novo
branches in Florida, resulting in the operation of forty-three branches in Florida. PX594 at 199;
Under the second sensitivity analysis, Mr. Grabowski testified that he assumed that a hypothetical willing
buyer would invest half of its deposits in ARMs and the other half in Treasury bills for the first two years
after the Illinois-Texas Merger. Id. at 187; Grabowski Tr. vol. 4, 829:17-19. He testified that Home’s
cost basis in the Illinois Branching Right would decrease from $56,432,000 to $55,701,000; Home’s cost
basis in the Texas Branching Right would decrease from $100,838,000 to $100,072,000 and Home’s cost
basis in the Illinois-Texas RAP Right would increase from $35,154,000 to $39,651,000 under this
scenario. PX594 at 187.
41
Grabowski Tr. vol. 4, 823:7-8. With respect to the Missouri Branching Right, Mr. Grabowski
also projected that a hypothetical willing buyer would add eight de novo branches in Missouri,
resulting in the operation of twenty-five branches in Missouri. Grabowski Tr. vol. 4, 823:4-6;
PX594 at 199.
With respect to the amount of deposits per branch that a hypothetical willing buyer could
have expected in Florida, Mr. Grabowski testified that he projected that a hypothetical willing
buyer would have $60,000,000 in deposits per branch in Florida after approximately four years.
PX594 at 196-97; Grabowski Tr. vol. 4, 822:11-16.
Mr. Grabowski also testified that he reviewed Home’s experience in Northern California
and the experience of other large thrifts in the Florida market to estimate market share. PX594 at
195-99. Specifically, Mr. Grabowski testified that he projected that a hypothetical willing
buyer’s market share in Florida would increase from 1.03% at the time of acquisition to 2.88%
after five years and, ultimately, to 5.61%. Id.
With respect to the amount of deposits per branch the hypothetical willing buyer could
have expected in Missouri, Mr. Grabowski also testified that he projected that a hypothetical
willing buyer’s deposits per branch would increase to $34,000,000 per branch over
approximately four years. Grabowski Tr. vol. 4, 800:21-25, 821:5-9; PX594 at 193. Mr.
Grabowski also testified that he projected that Home’s market share in Missouri would increase
from 1.84% to 5.31% after five years and, ultimately, to 6.5%. PX594 at 193, 199.
After determining the fair market values of the Florida and Missouri Branching Rights
and the Florida-Missouri RAP Right, Mr. Grabowski testified that he allocated the purchase
price for the Illinois-Texas Merger among these assets to determine Home’s cost basis. See
PX594 at 207. And so, Mr. Grabowski testified that he determined Home’s cost basis in the
Missouri Branching Right to be $29,160,000, Home’s cost basis in the Florida Branching Right
to be $142,886,000, and Home’s cost basis in the Florida-Missouri RAP Right to be
$44,713,000.21 Id.
21
Mr. Grabowski testified that he performed the same two sensitivity analyses for the Florida-Missouri
Merger that he performed for the Illinois-Texas Merger. Grabowski Tr. vol. 4, 828:25-830:10; PX594 at
208-09. Home’s cost basis in the Missouri Branching Right decreased from $29,160,000 to $25,399,000;
Home’s cost basis in the Florida Branching Right increased from $142,886,000 to $143,561,000; and
Home’s cost basis in the Florida-Missouri RAP Right increased from $44,713,000 to $50,799,000 under
42
d. The Century Merger
Mr. Grabowski testified that he utilized the same methodology discussed above to value
the government assistance that Home received in the Century Merger. See Grabowski Tr. vol. 4,
840-41. Mr. Grabowski also testified, however, that the economic conditions had changed and
that mortgage originations had increased by the time of the Century Merger. Id. at 834:6-835:23.
In this regard, Mr. Grabowski testified that interest rates peaked in late 1981 and trended
downward after 1982.22 Grabowski Tr. vol. 5, 934:14-22; PX594 at 214.
i. The Century RAP Right
With respect to the valuation of the Century RAP Right, Mr. Grabowski testified that he
determined that the Century Merger created goodwill in the amount of $127,000,000, to be
amortized over forty years. PX594 at 230. Mr. Grabowski also testified that he reduced the
amount of the goodwill by the tax benefit received from the favorable financing for the Century
Merger, which he valued to be $78,000,000. Grabowski Tr. vol. 4, 854:16-21; PX594 at 230-31.
Mr. Grabowski also testified that he then calculated the costs avoided by having the Century
RAP Right–the difference between the cost of replacement capital and the after-tax return on
mortgages–and then discounted such costs. PX594 at 230. And so, Mr. Grabowski testified that
he determined the fair market value of the Century RAP Right to be $26,000,000. Id.;
Grabowski Tr. vol. 4, 854:5.
ii. The New York Branching Right
To value the New York Branching Right, Mr. Grabowski testified that he followed the
same valuation methodology discussed above. See PX001 at I-26 to I-34. In this regard, Mr.
Grabowski testified that he examined data from the Florida-Missouri and Illinois-Texas
Mergers−in addition to data about Home’s Northern California experience in the 1970s−to
project the number of branches that a hypothetical willing buyer would expect to open.
the first sensitivity analysis. Id. Home’s cost basis in the Missouri Branching Right decreased from
$29,160,000 to $26,325,000; Home’s cost basis in the Florida Branching Right increased from
$142,886,000 to $144,785,000; and Home’s cost basis in the Florida-Missouri RAP Right increased from
$44,713,000 to $52,649,000 under the second sensitivity analysis. Id.
22
Specifically, Mr. Grabowski testified that interest rates declined from approximately 16.5% at the time
of the Illinois-Texas Merger, to approximately 14% at the time of the Century Merger on August 10,
1984. PX594 at 215; Grabowski Tr. vol. 5, 870:3-24.
43
Grabowski Tr. vol. 4, 843:4-846:21; PX594 at 220. Mr. Grabowski also testified that his
projections for branch openings in Texas were not as similar to Home’s actual branch openings,
due to an oil crisis that impacted Texas during the early 1980s. Grabowski Tr. vol. 4, 844:6-23.
And so, Mr. Grabowski testified that he projected that a hypothetical willing buyer would open
thirteen additional branches in New York, for a total of twenty-nine branches in New York in
1996. Grabowski Tr. vol. 4, 846:4-847:2; PX594 at 221, 224.
With respect to his projection for the amount of deposits per branch, Mr. Grabowski
testified that he projected that a hypothetical willing buyer would increase its productivity in
acquired and de novo branches to $85,000,000 in deposits per branch in New York in four or five
years. PX594 at 219, 221-22; Grabowski Tr. vol. 4, 841:9-18, 847:4-7.
In addition, Mr. Grabowski testified that he reviewed Home’s experience in Northern
California and the experience in other large thrifts in New York to estimate a hypothetical
willing buyer’s market share. PX594 at 88, 238, 242. Specifically, Mr. Grabowski testified that
he projected that a hypothetical willing buyer’s market share in New York would increase from
0.55% to 1.26% after five years, and to 2.04% by year fifteen. Id.; Grabowski Tr. vol. 4, 847:24-
848:1. And so, after discounting his valuation to present value using a discount rate of 24%, Mr.
Grabowski determined the fair market value of the New York Branching Right to be
$105,000,000. PX594 at 225, 228-29. Mr. Grabowski further testified that he determined
Home’s cost basis for the New York Branching Right to be $101,966,000 and Home’s cost basis
for the Century RAP Right to be $25,249,000. Grabowski Tr. vol. 4, 855:1-12; PX594 at 232.
e. The Ohio Merger
Mr. Grabowski valued the FSLIC assistance provided in the Ohio Merger using the same
valuation methodology discussed above. Grabowski Tr. vol. 5, 871:1-5. Mr. Grabowski
testified that he determined the purchase price for the Ohio Merger to be $50,800,000. PX 594 at
236.23 He also testified that he determined the fair market value of the Ohio Branching Right to
be $31,000,000 and the fair market value of the Ohio RAP Right to be $6,000,000. Id. at 246-
23
Mr. Grabowski further testified that, because the Ohio Merger differed from the other three FSLIC
Mergers, he subtracted $9,500,000 from the net assets of the acquired thrifts when he calculated the
purchase price. Grabowski Tr. vol. 5, 871:6-12; PX594 at 235. After determining Home’s purchase price
for the Ohio Merger to be $50,800,000, Mr. Grabowski reduced this amount by the value of the favorable
financing that Home received in this merger, resulting in a purchase price of $23,866,000. Id. at 249.
44
47; Grabowski Tr. vol. 5, 888:11-889:15. And so, Mr. Grabowski further determined Home’s
cost basis in the Ohio Branching Right to be $19,996,000 and Home’s cost basis in the Ohio
RAP Right to be $3,870,000. PX594 at 249; see Grabowski Tr. vol. 5, 890:22-891:1.
i. The Ohio RAP Right
With respect to the valuation of the Ohio RAP Right, Mr. Grabowski testified that he
determined that the Ohio Merger created goodwill in the amount of $32,700,000, to be amortized
over 40 years. Grabowski Tr. vol. 5, 888:24-889:1. Mr. Grabowski also testified that he reduced
this amount by the tax benefit realized on the favorable financing for the Ohio Merger.
Grabowski Tr. vol. 5, 889:1-4. In addition, Mr. Grabowski testified that he calculated the costs
avoided by owning the Ohio RAP Right–the difference between the cost of replacement capital
and the after-tax return on mortgages–and then discounted such costs. PX594 at 247. He also
testified that he used a discount rate of 22% to value the Ohio RAP Right. Id.; Grabowski Tr.
vol. 5, 888:7-889:15. And so, Grabowski testified that he determined the fair market value of the
Ohio RAP Right to be $6,000,000. Grabowski Tr. vol. 5, 889:14-15.
ii. The Ohio Branching Right
To value the Ohio Branching Right, Mr. Grabowski testified that, in addition to data
about Home’s Northern California expansion, he also examined data from the Florida-Missouri
and Illinois-Texas Mergers. Id. at 843:4-7, 877:3-8; PX594 at 220. With respect to the number
of branches that a hypothetical willing buyer could expect to open in Ohio, Mr. Grabowski
testified that he projected that a hypothetical willing buyer would open six branches in Ohio,
resulting in twenty nine branches in Ohio by year twelve. Grabowski Tr. vol. 5, 879:13-23.
With respect to the amount of deposits per branch, Mr. Grabowski also testified that he
projected that a hypothetical willing buyer would increase its deposits per branch to $30,000,000
by year five for de novo branches and by year four for acquired branches. PX594 at 238;
Grabowski Tr. vol. 5, 876:1-20. Mr. Grabowski also testified that he projected that a
hypothetical willing buyer’s market share would increase from the 0.98% acquired to 1.78% in
year five, to 2.1% by year twelve. Grabowski Tr. vol. 5, 880:21-24; PX594 at 239-41. And so,
Mr. Grabowski testified that he determined the fair market value of the Ohio Branching Right to
be $31,000,000. PX594 at 242; Grabowski Tr. vol. 5, 881:7-8.
45
Lastly, Mr. Grabowski testified that he allocated the purchase price, as adjusted to
account for the cash-like government assistance that Home also received in the Ohio Merger,
between the Ohio Branching Right and the RAP Right. PX594 at 235, 248-49. And so, Mr.
Grabowski testified that he determined Home’s cost basis in the Ohio Branching Right to be
$19,996,000 and Home’s cost basis in the Ohio RAP Right to be $3,870,000. Id. at 249;
Grabowski Tr. vol. 5, 890:6-891:1.
f. The Bowery Merger
Mr. Grabowski testified that he approached the valuation of the 1985 Bowery Merger in
the same manner as the valuation of the FSLIC Mergers. PX596 at 5. In this regard, Mr.
Grabowski testified that he subtracted Bowery’s assets from its liabilities and, thus, determined
the purchase price for the government assistance that the Ravitch Group received from the FDIC
in 1985 to be $644,371,000. Id. at 5, 8; Grabowski Tr. vol. 8, 1570:19-21. Mr. Grabowski also
testified that he calculated the fair market value of this government assistance and then allocated
the purchase price among the items of government assistance, to determine the Ravitch Group’s
cost basis in each item of assistance. PX596 at 36; Grabowski Tr. vol. 8, 1570:13-21.
i. The 1985 Bowery RAP Right
With respect to the valuation of the Bowery RAP Rights, Mr. Grabowski testified that he
was tasked with valuing the Bowery RAP Right that the Ravitch Group received in 1985.
Grabowski Tr. vol. 8, 1560:3-1561:5. Mr. Grabowski also testified that the 1985 Bowery RAP
Right allowed the Bowery to reverse the purchase accounting adjustments made under GAAP
for purposes of computing regulatory capital. Id. at 1575:2-12. He also testified that the 1985
Bowery RAP Right had a similar effect on regulatory capital as the RAP Rights Home received
in the FSLIC Mergers. PX596 at 11; Grabowski Tr. vol. 8, 1574:15-17.
To value the 1985 Bowery RAP Right, Mr. Grabowski testified that he estimated the cost
savings from having to raise capital by issuing preferred stock. Grabowski Tr. vol. 8, 1574:24-
1575:1; PX596 at 12. In addition, Mr. Grabowski testified that he used a 14-year amortization
period to value the 1985 Bowery RAP Right. Grabowski Tr. vol. 8, 1575:2-12. Mr. Grabowski
also testified that he used a discount rate of 20% to calculate the present value of the 1985
Bowery RAP Right. PX001 at V-23; Grabowski Tr. vol. 8, 1576:22. And so, Mr. Grabowski
46
testified that he determined the fair market value of the 1985 Bowery RAP Right to be
$208,000,000. Grabowski Tr. vol. 8, 1577:7-8; PX596 at 13.
ii. The Income Maintenance Agreement
Mr. Grabowski also testified that he valued the Bowery IMA. In this regard, Mr.
Grabowski testified that the Bowery IMA did not “match anything that was available on the
marketplace.” Grabowski Tr. vol. 8, 1629:6-7; PX596 at 60. Mr. Grabowski also testified that
the IMA was not akin to an interest rate swap. PX596 at 61; Grabowski Tr. vol. 8, 1634:16-
1635:2, 1636:8-1637:14. And so, Mr. Grabowski testified that he determined the fair market
value of the IMA to be $240,000,000. PX596 at 36.
iii. Other Assistance
Mr. Grabowski also testified that he valued the other government assistance that the
Ravitch Group received in 1985. Grabowski Tr. vol. 8, 1598:24-1600:19. In this regard, Mr.
Grabowski testified that he determined the fair market value of the Bowery net worth certificates
to be $39,000,000. PX596 at 36; Grabowski Tr. vol. 8, 1599:1-10. Mr. Grabowski also testified
that he determined the fair market value of the Bowery Favorable Financing, Treasury bills,
certain receivables, capital forbearances, and credit protection to be $4,500,000, $170,255,000,
$40,250,000, $31,000,000, and $16,000,000, respectively. Grabowski Tr. vol. 8, 1574:1-12;
PX596 at 36. To determine the Ravitch Group’s cost basis in the government assistance
provided in the 1985 Bowery Merger, Mr. Grabowski testified that he allocated the adjusted
purchase price of $486,366,000 among the 1985 Bowery RAP Right, the IMA, the capital
forbearance, the net worth certificates and the credit protection. PX596 at 36; Grabowski Tr.
vol. 8, 1600:21-1601:22. And so, Mr. Grabowski testified that he determined Home’s cost basis
in the Bowery RAP Right to be $189,446,000 and Home’s cost basis in the Bowery Credit
Protection to be $14,573,000.24 PX596 at 36.
24
Plaintiffs claim that “the 1985 Bowery Supervisory Merger, not Home’s 1988 acquisition, gave rise to
Bowery’s cost basis in the Bowery RAP Right, the Bowery Credit Protection, and the Bowery Favorable
Financing.” Pl. Post-Trial Br. at 125.
47
2. Expert Testimony Of Joe A. Hargett
During the trial, the government offered Joe A. Hargett as its expert on financial and
regulatory accounting in the savings and loan industry; the accounting standards used in the
savings and loan industry, including GAAP accounting; the regulations applicable to savings and
loan associations, including capital regulations that apply to savings and loan associations; and
the financial analysis of savings and loan associations. Joint Status Report, Feb. 12, 2016;
Hargett Tr. vol. 9, 1759: 1-10, 1772:1-6. Mr. Hargett testified about the following topics during
his expert testimony: (1) deposit projections for the Florida-Missouri and Illinois-Texas Mergers;
(2) actual accounting for the Florida-Missouri and Illinois-Texas Mergers; (3) the Century and
Ohio Mergers; and (4) the Bowery Merger. Hargett Tr. vol. 9, 1774:18-1775:16.
During his testimony, Mr. Hargett testified that Mr. Grabowski’s fair market value
determinations for the Branching Rights in each of the FSLIC Mergers are unreliable.
Specifically, Mr. Hargett testified that: (1) Mr. Grabowski’s deposit growth projections vary
significantly with what actually occurred after the FSLIC Mergers and with Home’s own
contemporaneous projections; (2) Mr. Grabowski improperly relied upon Home’s Northern
California data to value the Branching Rights; and (3) Mr. Grabowski improperly assumed that
loan demand would keep pace with any amount of deposit growth to value the Branching Rights.
See generally Hargett Tr. vol. 9, 10.
With regard to Mr. Grabowski’s deposit growth projections, Mr. Hargett testified that
when comparing the Grabowski Model’s projected deposits in Texas, Illinois, Florida and
Missouri after the first year of each acquisition with Home’s actual deposits, the deposit growth
projections differ by more than $150,000,000. DX228 at 31, Hargett Tr. vol. 9, 1939:4-12. He
also testified that Mr. Grabowski’s reliance upon Home’s Northern California experience to
value the Branching Rights was improper because of the vast differences between the U.S.
economy in the 1970s and the 1980s. Id. at 2007:24-2008:16, 2030:11-20, 2035:13-2036:9;
DX228 at 113.
Mr. Hargett also testified that Mr. Grabowski’s valuation of the Branching Rights is
flawed, because the Grabowski Model improperly assumes that loan demand will keep pace with
any amount of deposit growth. Hargett Tr. vol. 10, 2039:18-2051:24; DX228 at 124-127. In this
regard, Mr. Hargett testified that this flaw is magnified because Mr. Grabowski assumes that
48
interest rates will stay at 1981 and 1982 levels. Hargett Tr. vol. 10, 2052:18-2053:25; see also
Hargett Tr. vol. 9, 1965:1-1966:10. And so, Mr. Hargett opined that Mr. Grabowski should have
either assumed a decline in interest rates after December 1981/January 1982, or used a loan-
driven model to value the Branching Rights. Id. at 2045:2-23, 2052:18-2053:25.
Mr. Hargett also testified that Mr. Grabowski’s valuations of the RAP Rights for the
Supervisory Mergers are unreliable. Hargett Tr. vol. 9, 1903:1-1904:17. In this regard, Mr.
Hargett testified that, at the time of the FSLIC Mergers, thrifts had the right to record goodwill
on their books as an asset. Id.; JX107. And so, Mr. Hargett further testified that the critical
question at the time was not whether goodwill was an asset that could be recorded on a thrift’s
books but, rather, how a company should amortize such goodwill. Hargett Tr. vol. 9, 1903:1-
1904:17; Hargett Tr. vol. 10, 2070:3-2071:25, 2079:4-6.
Specifically, with respect to the Florida-Missouri Merger and the Illinois-Texas Merger,
Mr. Hargett testified that, at the time Home entered into these transactions, the only issue to be
resolved with respect to Home’s accounting of goodwill was the length of time over which
Home could amortize goodwill. Hargett Tr. vol. 10, 2070:18-23, 2079:4-6. Mr. Hargett testified
that RAP accounting followed GAAP and that, under GAAP, goodwill could be amortized over
forty years. Id. at 2097:1-9, 2112; DX192 at 6. And so, Mr. Hargett opined that the FHLBB’s
Resolutions regarding the accounting treatment for goodwill for the FSLIC Mergers are
important only because these resolutions confirmed that Home could amortize the goodwill
created by these mergers over forty years. Hargett Tr. vol. 10, 2097:1-9, 2112; DX192 at 6. Mr.
Hargett further testified that the chance that the accounting treatment for goodwill would
change−thereby requiring Home to amortize goodwill over a period of less than forty years
between 1981 and 1986−was remote. Hargett Tr. vol. 10, 2125-29; DX228 at 182-189. And so,
he opined that the possibility that a regulatory or accounting change would require Home to
amortize goodwill over a period less than forty years was 2% for the Florida-Missouri Merger
and 5% for the Illinois-Texas Merger. Hargett Tr. vol. 10, 2126:19-2127:7; DX228 at 189.25
25
With respect to the Bowery Merger, Mr. Hargett testified that the IMA was an extremely valuable asset
and that the IMA functioned as an interest rate swap with a declining balance. Hargett Tr. vol. 9, 1783:2-
5, 1811:23-24, 1816:5-1817:25; DX228 at 214.
49
3. Expert Testimony of Curtis Kimball
During the trial, the government offered Curtis Kimball as its expert on valuation. Final
Pre-Trial Order, Feb. 10, 2016. Mr. Kimball is the managing director of Willamette
Management Associates. DX226 at 1, 12. Mr. Kimball offered an opinion that the plaintiffs’
valuation of the Branching Rights and RAP Rights are unreliable. See DX201 at 56-57.
a. The FSLIC Mergers
With respect to Mr. Grabowski’s valuation of the Branching Rights, Mr. Kimball offered
several opinions critical of the valuation of this asset. First, Mr. Kimball opined that Mr.
Grabowski’s hypothetical willing buyer is too similar to Home, to be a reliable input for valuing
the Branching Right, because, among other things, the Grabowski Model assumes that a
hypothetical willing buyer will exclusively use ARMs and make loans in California. Kimball Tr.
vol. 11, 2437:8-2438:1.
Second, Mr. Kimball testified that Mr Grabowski’s valuations for the Branching Rights
are also unreliable because the deposit-driven model that Mr. Grabowski uses to value this asset
is inappropriate. Id. at 2439:3-21.
Mr. Kimball further testified that a hypothetical willing buyer would need to capture very
large shares in the new markets to attain the deposit growth that Mr. Grabowski projects. Id. at
2445:1-2446:24.
Mr. Kimball also criticized the Grabowski Model’s use of Home’s Northern California
data to value the Branching Rights. Id. at 2459:13-2461:3; DX226 at 47. In this regard, Mr.
Kimball testified that he disagrees with Mr. Grabowski’s projection for real deposits per branch,
and he testified that the equity risk premium and the size premium that Mr. Grabowski uses for
the discount rate should have been higher. Kimball Tr. vol. 11, 2467:23-2469:13, 2491; DX226
at 48.26
26
Specifically, Mr. Kimball testified that the 5.0% equity risk premium is too low relative to what
hypothetical willing buyers and sellers utilized at the time of the transaction dates. DX226 at 48; Kimball
Tr. vol. 11, 2468:1-2469:13. Mr. Kimball also testified that the Grabowski Model is flawed because the
model fails to include an investment-specific risk premium for the Branching Rights. Kimball Tr. vol. 11,
2469:1-2470:10. In addition, Mr. Kimball testified that Mr. Grabowski should use the “unadjusted equity
risk premium because it takes into account a troubled period of time like the Great Depression.” Id. at
2470:11-2471:2. Lastly, Mr. Kimball testified that the Grabowski Model’s sensitivity analyses for the
50
Mr. Kimball also testified that Mr. Grabowski’s valuation of the RAP Right is unreliable.
Id. at 2485:8-9; DX226 at 61-65. In this regard, Mr. Kimball testified that he considers the
ability to amortize goodwill over forty years to be a nonsupervisory benefit in the Illinois-Texas
and Florida-Missouri Mergers, because Home did not need the RAP Right to use this
amortization period. Kimball Tr. vol. 12, 2530:5-2531:8. And so, Mr. Kimball opined that the
RAP Right for these transactions provides no additional benefit to Home. Kimball Tr. vol. 11,
2486:2-7.
In addition, Mr. Kimball testified that, in the Century and Ohio Mergers, Home received
a supervisory benefit with the RAP Right because GAAP provided for only a twenty-five-year
amortization period. DX226 at 63. And so, he opined that the Century and Ohio RAP Rights
provided a larger benefit to Home. Id.; Kimball Tr. vol. 12, 2531:3-15, 2533:13-2534:6. Given
this, Mr. Kimball opined that the RAP Rights “are essentially an insurance contract to prevent
future or retroactive revisions to the long-term amortization of goodwill for regulatory reserve
purposes.” Kimball Tr. vol. 11, 2486:24-2488:11. For this reason, Mr. Kimball opined that Mr.
Grabowski overestimated the value of the Century and Ohio RAP Rights. Id. at 2501, 2531:3-
15, 2533:13-2534:6; DX201 at 57.
b. The Bowery Merger
Lastly, with regard to the Bowery Merger, Mr. Kimball testified that among other things,
“I don’t see any appraisal rationale . . . to explain why it’s appropriate to use the earlier date
[1985] for the valuation. . . .” Kimball Tr. vol. 11, 2430:5-9. And so, Mr. Kimball concluded
that the Court should not rely on Mr. Grabowski’s analysis.27
4. Expert Testimony of Catherine Vandenberg
Plaintiffs offered Catherine Vandenberg as their expert witness on the banking industry,
including savings and loan associations, and on matters involving financial analysis and
regulation of savings and loan associations. Joint Status Report, Feb. 12, 2016. During her
Branching Rights valuations “indicate how volatile the Grabowski analysis is on branching rights.”
Kimball Tr. vol. 12, 2584:2-3. Mr. Kimball further testified “that the sensitivity erodes the credibility of
the Grabowski analysis.” Id. at 2584:3-5; see DX226 at 170.
27
Mr. Kimball also testified that he found several major problems with Mr. Grabowski’s valuation of the
1985 Bowery RAP Right.
51
testimony, Ms. Vandenberg testified about the relationship between loan demand and deposit
growth and the likelihood of regulatory changes relating to accounting for goodwill.28
Vandenberg Tr. vol. 7, 1483:3-9.
First, with respect to loan demand and how loan demand impacts the valuation of the
Branching Rights, Ms. Vandenberg testified that Mr. Hargett’s opinion that thrifts considered
loan demand first and identified a funding source second is “inconsistent with the essence of
financial intermediation.” Id. at 1483:21-1484:3. Ms. Vandenberg also testified that when there
is a mismatch between inflows and outflows, a depository institution would “develop alternative
funding sources and alternative investment opportunities.” Id. at 1484:4-10. Ms. Vandenberg
also testified that thrifts would want to foster deposit growth even in periods of slow loan
demand for various reasons, including: (1) the opportunity for liability substitution–replacing
higher cost sources of funds with lower cost deposits; (2) increasing the value of a thrift’s
deposit base by expanding its geographic market; or (3) increasing the thrift’s concentration in
its existing market. Id. at 1484:15-1485:24. Lastly, with respect to the valuation of the RAP
Rights for the FSLIC Mergers, Ms. Vandenberg also testified that the likelihood of a regulatory
change with regard to the amortization period for goodwill was much higher than Mr. Hargett
suggested in his testimony. Id. at 1490:23-1491:4.
J. Procedural Background
The trial in this matter was held in Washington, DC on February 16, 2016, to March 4,
2016. See generally Tr. vol. 1-14. During trial, the Court heard testimony from Mario Antoci,
Brent Beesley, Curt Brouwer, Richard Deihl, Tim Glassett, Verne Kline, Donald Rice, Charles
Rinehart, Kevin Twomey, Roger Grabowski, Joe Hargett, Curtis Kimball and Catherine
Vandenberg, and received documentary evidence. Id. On March 7, 2016, the Court issued a
Post-Trial Order setting forth the schedule for post-trial briefs and the submission of a redacted
version of the slide deck presentation of Joe A. Hargett. Post-Trial Order, March 7, 2016.
28
In addition, Ms. Vandenberg testified that RAP capital was defined differently in the Bowery Merger
than in the supervisory acquisitions and that goodwill was not deducted from RAP capital. Vandenberg
Tr. vol. 7, at 1496:20-1497:24. However, Ms. Vandenberg testified that when Home acquired Bowery in
1988, the RAP capital was redefined in a way that conformed with the treatment in the other supervisory
mergers. Id.
52
On April 5, 2016, the parties provided the Court with copies of the admitted exhibits. On
April 26, 2016, the government filed a redacted version of Mr. Hargett’s slide deck presentation.
See Notice, April 26, 2016. On May 10, 2016, the Court issued an Order regarding redactions to
the trial transcript with respect to Mr. Hargett’s testimony. See Order, May 10, 2016. On May
13, 2016, redacted versions of volumes 9 and 10 of the trial transcript were filed with the Court.
See Tr. vol. 9; Tr. vol. 10.
The parties have submitted post-trial briefs, and the Court held closing argument on
November 7, 2016.
III. STANDARDS FOR DECISION
A. Jurisdiction And Tax Refund Claims
Under the Tucker Act, the United States Court of Federal Claims has jurisdiction “to
render judgment upon any claim against the United States founded either upon the Constitution,
or any Act of Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort.” 28 U.S.C. § 1491(a) (2006); see also Fisher v. United States, 402 F.3d 1167,
1172 (Fed. Cir. 2005). The Tucker Act does not, however, create a substantive cause of action.
Rather, plaintiffs must identify a separate source of substantive law that creates the right to
money damages to come within the jurisdictional reach and the waiver of that act. Fisher, 402
F.3d at 1172 (citing United States v. Mitchell, 463 U.S. 206, 216 (1983); United States v. Testan,
424 U.S. 392, 398 (1976)). Title 26, United States Code, section 7422(a) provides the money-
mandating source of law for bringing a tax refund claim in this Court. Dumont v. United States,
85 Fed. Cl. 425, 427–28 (2009). And so, a taxpayer may bring an action in this Court to recover
any internal revenue tax erroneously or illegally assessed or collected, provided that the taxpayer
first duly files a claim for a refund with the Internal Revenue Service. I.R.C. § 7422(a); United
States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4 (2008); Dumont, 85 Fed. Cl. at 427–28.
In this de novo tax refund case, plaintiffs bear the burden to prove, by a preponderance of
the evidence, that they are entitled to the tax deductions at issue in this case and the correct amount
of the tax refund due. United States v. Janis, 428 U.S. 433, 440 (1976) (holding that the taxpayer
bears the burden to prove erroneous nature of assessment as well as amount taxpayer is entitled
to recover); Charron v. United States, 200 F.3d 785, 792 (Fed. Cir. 1999) (holding that, in a tax
53
refund suit, taxpayers were required to prove not only excludability of items from taxable
income, but also the amount); Danville Plywood Corp. v. United States, 899 F.2d 3, 7-8 (Fed.
Cir. 1990) (holding that after a taxpayer overcomes presumption of correctness, it must still carry
the ultimate burden of proof); Cook v. United States, 46 Fed. Cl. 110, 114–117 (2000) (same).
“It is well established that a tax assessment is presumptively correct.” Arrington v. United
States, No. 96-5079, 1997 WL 101091, at *4 (Fed. Cir. Mar. 7, 1997). And so, plaintiffs will not
recover in a tax refund case if they cannot prove the amount of the refund due. See Janis, 428
U.S. at 440; Taylor v. Comm’r, 70 F.2d 619, 620 (2d Cir. 1934), aff’d, 293 U.S. 507 (1935)
(explaining that, in a refund suit, if taxpayer fails to prove the amount due, taxpayer may not
recover everything owed to him “even though we know that the tax is too high”); see also Int’l
Paper Co. v. United States, 36 Fed. Cl. 313, 322 (1996) (citing Janis, 428 U.S. at 440) (holding
that the plaintiff, in order to recover, must prove “the precise dollar amount of the refund to
which it is entitled”); Sara Lee Corp. & Subs. v. United States, 29 Fed. Cl. 330, 334 (1993)
(“[P]laintiff then must prove the exact dollar amount of the alleged overpayment to which it
claims a refund.”) (citations omitted).
To establish the amount of refund due in this case, plaintiffs must establish Home’s cost
basis in the intangible assets at issue in this case to a “reasonable degree of certainty.” See
Washington Mut. II, 996 F. Supp. 2d at 1102.29 To do so, plaintiffs must put forward sufficient
evidence for the Court to make a “reasonable or rational approximation” of the value of these
assets. Union Pac. R.R. v. United States, 524 F.2d 1343, 1383 (Ct. Cl. 1975) (“Asset appraisal,
therefore, requires a reasonable or rational approximation . . . to adduce a reasonably accurate
value . . . .”); see also Meredith Broadcasting Co. v. United States, 405 F.2d 1214, 1231 (Ct. Cl.
1968); Kraft, Inc. v. United States, 30 Fed. Cl. 739, 795 (1994). The Court is not, however,
required to make an estimation of the value when evidence is lacking. Rather, plaintiffs must put
forward sufficiently reliable evidence to provide the Court with a basis to determine the
reasonably accurate value. See, e.g., Keiner-Williams Stamping Co. v. United States, 30 F. Supp.
807, 808 (Ct. Cl. 1940) (per curiam) (upholding denial of taxpayer’s refund claim for
29
Pursuant to section 1012 of the Internal Revenue Code, “[t]he basis of property shall be the cost of such
property . . . .” I.R.C. § 1012. The “cost of such property” is the “cost to the taxpayer.” Amergen Energy
v. United States, 779 F.3d 1368, 1372 (Fed. Cir. 2015); Detroit Edison Co. v. Comm'r, 319 U.S. 98, 102
(1943).
54
depreciation deductions where plaintiff failed to put forward sufficient evidence “for the court to
determine with any certainty what the value [of the depreciable assets] really was”); Trigon Ins.
Co. v. United States, 215 F. Supp. 2d 687, 738 (E.D. Va. 2002) (holding that the plaintiff must
put forward sufficient evidence for the Court to determine a “reasonably accurate value”); cf.
Krapf v. United States, 977 F.2d 1454, 1463 (Fed. Cir. 1992) (“While the Claims Court has
discretion in choosing a method of evaluation and some leeway in determining the amount of fair
market value [of the intangible asset], the court correctly held it has no discretion to make a
finding of the value of an asset where there is no evidence to support it.”).
B. The Doctrine Of Collateral Estoppel
Because parties to this action have previously litigated similar tax refund claims in the
United States Court of Appeals for the Ninth Circuit and the United States District Court for the
Western District of Washington, the doctrine of collateral estoppel is also pertinent to this case.
The doctrine of collateral estoppel protects litigants from the burden of relitigating an identical
issue with the same party and promotes judicial economy by preventing needless litigation.
Parklane Hosiery, Inc. v. Shore, 439 U.S. 322, 331 (1979); Blonder-Tongue Labs., Inc. v. Univ.
of Ill. Found., 402 U.S. 313, 328-329 (1971). A party asking the court to apply collateral
estoppel must establish that:
(1) the issue at stake is identical to the one involved in the prior proceeding; (2) the
issue was actually litigated in the prior proceeding; (3) the determination of the
issue in the prior litigation must have been a critical and necessary part of the
judgment in the first action; and (4) the party against whom collateral estoppel is
asserted must have had a full and fair opportunity to litigate the issue in the prior
proceeding.
Dana v. E.S. Originals, Inc., 342 F.3d. 1320, 1323 (Fed. Cir. 2003) (quoting Pleming v.
Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998)); see also Christo v. Padgett, 223
F.3d 1324, 1339 (11th Cir. 2000).
Collateral estoppel may be used defensively or offensively. Parklane Hosiery, 439 U.S.
at 326. Offensive collateral estoppel–when a previous case precludes a defendant from litigating
an issue in its defense–may require “a stronger showing that the prior opportunity to litigate was
adequate . . . .” Id. at 331 n.16 (citation omitted). The United States Supreme Court has held
that courts should refrain from applying offensive collateral estoppel out of fairness to the
55
defendant if: (1) plaintiff could have easily joined the earlier action, or (2) where application of
offensive collateral estoppel would be unfair to the defendant. Id. at 322-23. Application of
offensive collateral estoppel would be unfair to the defendant if: (1) the defendant did not have
an incentive to fully litigate in the previous litigation; (2) the defendant did not have a full
chance to litigate the issues due to procedural disadvantages in the previous litigation; or (3)
there exist inconsistent judgments on record. Id. at 323.
In addition, the United States Court of Appeals for the Federal Circuit has held that
application of offensive collateral estoppel also poses the danger of giving multiple plaintiffs a
“no lose incentive” to wait and take advantage of a ruling against the same defendant. Dana,
342 F.3d. at 1325-26 (citation omitted). Thus, “offensive collateral estoppel must be applied
with circumspection, even when the legal requirements for applying collateral estoppel are
satisfied.” Id. at 1326. And so, where the application of offensive collateral estoppel would be
unfair to a defendant, the Court should not allow the use of offensive collateral estoppel.
Parklane Hosiery, 439 U.S. at 322; see also Dana, 342 F.3d. at 1325-26.
C. Framework For Determining Home’s Cost Basis In The Government Assistance
The United States Court of Appeals for the Ninth Circuit and the United States District
Court for the Western District of Washington have both addressed how to determine Home’s
cost basis in the intangible assets at issue in this case, in prior litigation involving the same
parties and issues. Specifically, the Ninth Circuit held that Home’s “cost basis in the branching
rights and the RAP rights [is] equal to some part of the total amount of” Home’s purchase price,
or the excess of the acquired liabilities minus the acquired assets. Washington Mut. I, 636 F.3d
at 1219 (emphasis existing). During the remand of that case to the United States District Court
for the Western District of Washington, the district court also held that “[i]n transactions where
one lump-sum purchase price is paid for a conglomeration of assets . . . the cost of each asset
must be determined by apportioning the purchase price among the assets according to each
asset’s relative fair market value at the time of the acquisition.” Washington Mut. II., 996 F.
Supp. 2d at 1104 (citing Bixby v. Comm’r, 58 T.C. 757, 785 (1972)).
Under this legal framework, plaintiffs must do three things to establish the amount of
Home’s cost basis in the intangible assets at issue in this case. First, plaintiffs must establish the total
value of the assets of the acquired thrifts for each transaction. Second, plaintiffs must establish the
56
total value of the liabilities of the acquired thrifts for each transaction. And finally, plaintiffs must
establish the fair market value of each intangible asset at issue in this case at the time of the
relevant acquisition. Washington Mut. II, 996 F. Supp. 2d at 1104; see also Washington Mut. I,
636 F.3d at 1219 (stating that the Branching Rights and RAP Rights were “equal to some part of
the total amount of that excess liability”).
IV. LEGAL ANALYSIS
A. Preliminary Matters
1. The Court Adopts The Ninth Circuit’s Framework For
Determining Cost Basis
In this case, the Court must determine whether plaintiffs have met their burden to show
that they are entitled to tax refunds for tax years 1991, 1994, 1995 and 1998. The question of
whether Home took a cost basis in the assets acquired through the Supervisory Mergers has been
previously addressed to a significant extent by the United States Court of Appeals for the Ninth
Circuit in Washington Mutual, Inc. v. United States. 636 F.3d at 1209, 1219. In that case, the
Ninth Circuit considered the Florida-Missouri Merger and held that Home took a cost basis in
the Florida and Missouri Branching Rights and Florida-Missouri RAP Right “equal to some part
of the acquired thrifts’ excess of liabilities over the value of their assets.” Id. at 1221. The Ninth
Circuit also held that Home’s cost basis−or purchase price−for the government assistance
provided in that transaction is the excess of the acquired thrifts’ liabilities over the value of the
acquired thrifts’ assets. Id. at 1219.
Although the present litigation involves several transactions that have not been
specifically addressed by the Ninth Circuit, the many similarities between the transactions at
issue in this case and the transaction at issue in the Ninth Circuit litigation make it appropriate to
apply the doctrine of collateral estoppel with respect to two issues presented in this litigation:
(1) whether Home took a cost basis in the government assistance provide in the Supervisory
Mergers; and (2) if so, how such a cost basis should be determined. Washington Mut. I, 636 F.3d
at 1209; Arkla, Inc. v. United States, 37 F.3d 621, 623 (Fed. Cir. 1994) (holding that the doctrine
57
of collateral estoppel precludes a party from “relitigating any issues that were actually and
necessarily determined by a court of competent jurisdiction in the prior suit”).30
It is well established that for the doctrine of collateral estoppel to apply here, plaintiffs
must establish that: “‘(1) the issue at stake is identical to the one involved in the prior
proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination of
the issue in the prior litigation must have been a critical and necessary part of the judgment in the
first action; and (4) the party against whom collateral estoppel is asserted must have had a full
and fair opportunity to litigate the issue in the prior proceeding.’” Dana, 342 F.3d. at 1323
(quoting Pleming, 142 F.3d at 1359); see also Arkla, Inc., 37 F.3d at 623 (“Affording a litigant
more than one full and fair opportunity for judicial resolution of the same issue results in an
untenable misallocation of resources.”). The evidentiary record demonstrates that plaintiffs have
done so here.
First, the issue of whether Home took a cost basis in the government assistance provided
in the Supervisory Mergers in this case is identical to the issue previously litigated in, and
decided by, the Ninth Circuit. See Pl. Post-Trial Br. at 35; Def. Post-Trial Br. at 24-25;
Washington Mut. I, 636 F.3d at 1209, 1219. Second, there is no dispute that this issue was
actually litigated during the prior proceeding. In addition, the Ninth Circuit’s holding that Home
took a cost basis in these assets was a critical and necessary part of the Ninth Circuit’s decision
in that case. See Washington Mut. I, 636 F.3d at 1209, 1219. Lastly, the government was a party
to that prior litigation and there is no dispute that the government had a full and fair opportunity
to litigate this issue in that prior proceeding. Id.; see Def. Pre-Trial Br. at 36-38; see generally
Def. Post-Trial Br. And so, the prerequisites for applying the doctrine of collateral estoppel have
been met.
It is also appropriate to apply the Ninth Circuit’s prior holding with respect to Home’s
cost basis to all of the Supervisory Mergers at issue in this case. The evidentiary record shows
that the factual differences between the Florida-Missouri Merger, which is also at issue in this
30
Because plaintiffs seek to preclude the government from relitigating issues that the Ninth Circuit
previously resolved in their favor, the Court considers whether it is appropriate to apply the doctrine of
offensive collateral estoppel. Arkla, Inc., 37 F.3d at 623; see also Parklane Hosiery, 439 U.S. at 322-23
(holding that the Court should decline to apply offensive collateral estoppel if its application would be
unfair to a defendant).
58
case, and the Illinois-Texas, Century, Ohio and Bowery Mergers, do not alter the issues relevant
to determining Home’s cost basis in the government assistance acquired in these Supervisory
Mergers. See Washington Mut. I, 636 F.3d at 1219. And so, the Court adopts and follows the
Ninth Circuit’s prior holdings with respect to whether Home took a cost basis in the government
assistance provided in the Supervisory Mergers and how that cost basis should be determined to
resolve plaintiffs’ tax refund claims.
2. The Purchase Price For The FSLIC Mergers Is Undisputed
The evidentiary record also establishes that the purchase price that Home paid for each of
the FSLIC Mergers is not in genuine dispute.31 In this regard, plaintiffs allege that the purchase
price that Home paid−and therefore the cost basis that Home obtained−for the assistance provided
in the Florida-Missouri Merger is $216,759,000.32 Pl. Post-Trial Br. at 43. Plaintiffs further
allege that the purchase price for the Illinois-Texas Merger is $285,353,000, $205,215,000 for
the Century Merger, and $50,800,000 for the Ohio Merger. Id. The government has not disputed
any of these calculations in this litigation. See generally Tr.; cf. Def. Post-Trial Br. at 16 (“The
overall purchase cost of the supervisory merges therefore equals the value of the liabilities of the
thrifts that Home assumed as part of the transactions as set forth in the Merger Agreement and the
related Assistance Agreement”). And so, the Court concludes that plaintiffs have established
Home’s cost basis in the packages of government assistance provided in the Supervisory Mergers.
31
Plaintiffs’ tax refund claim related to the Bowery Merger raises additional legal and factual issues
regarding how to determine Home’s cost basis in assets acquired in that transaction. The Court addresses
those issues in part C of the Legal Analysis section of this Memorandum Opinion and Order.
32
Plaintiffs include the table reproduced below in their post-trial brief, which shows the calculation of the
purchase price for each of the FSLIC Mergers. See Pl. Post-Trial Br. at 43, Table 1-R.
Thrift Liabilities Value of Thrift Purchase Price for FSLIC
Transaction
Assumed Assets Assistance
Florida-Missouri $927.7 million $710.9 million $216.8 million
Illinois-Texas $953.7 million $668.3 million $285.4 million
Century $743.1 million $537.9 million $205.2 million
Ohio $461.5 million $410.7 million $50.8 million
59
Given this, the central issue to be resolved by the Court in this litigation is whether
plaintiffs can establish the amount of the purchase price for each of the FSLIC Mergers that
should be allocated to each specific item of assistance provided to Home−including the RAP
Rights and Branching Rights−to determine Home’s cost basis in these asse
This text is long and has been trimmed here. Open the source document for the complete record.