SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
(Mark One)
(x) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 2000
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________________ to __________________
Commission file number 333-44155
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COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 13-7140975
- ---------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre Road,
Wilmington, Delaware 19805-1266
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(Address of principal executive offices) (Zip Code)
(302) 636-3300
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(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes (X) No ( )
As of November 6, 2000 the registrant had 20,703,817 Contingent Payment Rights
Certificates, no par value, outstanding.
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Unaudited Statement of Financial Condition
September 30, December 31,
ASSETS 2000 1999
----------------- ----------------
Cash in bank $ 8,600,241 $ 11,726,923
Other assets 489,088 639,477
----------------- ----------------
Total Assets $ 9,089,329 $ 12,366,400
================= ================
LIABILITIES AND CERTIFICATEHOLDERS' EQUITY
Expense fund $ 19,884,294 $ 19,884,294
Deferred litigation trustee fees 1,600,000 1,300,000
Other liabilities 2,790,974 1,506,117
----------------- ----------------
Total Liabilities 24,275,268 22,690,411
----------------- ----------------
Certificateholders' Equity
Certificates, no par value, 20,703,817 authorized,
issued and outstanding - -
Accumulated deficit (15,185,939) (10,324,011)
Total Certificateholders' Equity (15,185,939) (10,324,011)
$ 9,089,329 $ 12,366,400
================= ================
See accompanying Notes to Unaudited Financial Statements.
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COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Unaudited Statement of Operations
Three Months Ended September 30, Nine Months Ended September 30,
------------------------------------------- ------------------------------------------
2000 1999 2000 1999
--------------------- --------------------- ----------------------- ------------------
REVENUE $ - $ - $ - $ -
--------------------- --------------------- ----------------------- ------------------
EXPENSES
Litigation trustee fees (400,000) (400,000) (1,200,000) (1,200,000)
Legal fees (437,088) (742,280) (1,175,648) (2,452,921)
Litigation consulting - expert witnesses (319,000) (703,113) (860,029) (1,136,357)
Litigation and trust administration (65,000) (65,000) (195,000) (195,000)
Interest expense (425,337) (199,935) (1,132,179) (440,989)
Premises and equipment (12,900) (13,048) (38,700) (38,848)
Insurance (50,129) (50,129) (150,985) (151,047)
Other (12,452) (61,104) (109,387) (162,071)
--------------------- --------------------- ----------------------- ------------------
Total Expenses (1,721,906) (2,234,609) (4,861,928) (5,777,233)
--------------------- --------------------- ----------------------- ------------------
Net Loss $ (1,721,906) $ (2,234,609) $ (4,861,928) $ (5,777,233)
===================== ===================== ======================= ==================
Net Loss Per Certificate $ (0.08) $ (0.11) $ (0.23) $ (0.28)
===================== ===================== ======================= ==================
See accompanying Notes to Unaudited Financial Statements.
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COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Unaudited Statement of Cash Flows
Nine Months Ended September 30,
---------------------------------
2000 1999
---------------- ----------------
Cash flows from operating activities:
Net loss $ (4,861,928) $ (5,777,233)
---------------- ----------------
Adjustments to reconcile net loss to cash used in
operating activities:
Decrease in other assets 150,389 150,389
Increase in deferred litigation trustee fees 300,000 450,000
Increase in other liabilities 1,284,857 782,856
---------------- ----------------
Total adjustments 1,735,246 1,383,245
---------------- ----------------
Net cash used in operating activities (3,126,682) (4,393,988)
---------------- ----------------
Net decrease in cash (3,126,682) (4,393,988)
Cash at beginning of period 11,726,923 17,126,219
---------------- -----------------
Cash at end of period $ 8,600,241 $ 12,732,231
================ =================
Supplemental disclosure of cash flow information:
Cash paid during the period for interest $ - $ -
================ =================
See accompanying Notes to Unaudited Financial Statements.
4
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Notes to Unaudited Financial Statements
September 30, 2000
The Coast Federal Litigation Contingent Payment Rights Trust (the "CPR Trust")
is a statutory business trust created under Delaware law on January 8, 1998.
The CPR Trust was created by Coast Savings Financial, Inc. ("Coast") in
connection with its merger, effected on February 13, 1998, with and into H. F.
Ahmanson & Co. For a further description of the CPR Trust, see Item 2 herein,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - General."
The unaudited financial statements of the CPR Trust included herein reflect all
adjustments, consisting only of normal recurring adjustments, which are, in the
opinion of the Litigation Trustees, necessary to present a fair statement of the
results for the interim periods indicated. The Litigation Trustees are the four
senior executives of Coast with knowledge of the facts underlying the
Litigation, which executives were retained by the CPR Trust as "Litigation
Trustees." Certain information and note disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to the rules and regulations
of the Securities and Exchange Commission. The results of operations for the
three and nine months ended September 30, 2000, are not necessarily indicative
of the results of operations to be expected for the remainder of the year.
These financial statements should be read in conjunction with the financial
statements and notes thereto included in the CPR Trust's annual report on Form
10-K for the year ended December 31, 1999.
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Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Registration
Statement on Form S-1 with respect to the CPR Certificates referred to herein
filed by Coast Savings Financial, Inc. ("Coast") with, and declared effective
by, the Securities and Exchange Commission (the "SEC") on January 13, 1998 (SEC
File Number 333-44155).
GENERAL
The Coast Federal Litigation Contingent Payment Rights Trust (the "CPR Trust")
is a statutory business trust created under Delaware law on January 8, 1998. The
CPR Trust was created by Coast in connection with its merger, effected on
February 13, 1998 (the "Merger"), with and into H. F. Ahmanson & Co.
("Ahmanson"), for the purpose of holding the Commitment Agreement entered into
by Ahmanson and the CPR Trust, dated as of February 13, 1998 (the Commitment").
The Commitment represents Ahmanson's obligation to pay to the CPR Trust an
amount equal to any net after-tax proceeds, as more particularly defined in the
CPR Trust Agreement referred to below (the "Commitment Amount"), that may be
received by Coast's wholly-owned subsidiary, Coast Federal Bank, FSB ("Coast
Federal") (or its successor), from Coast Federal's regulatory capital litigation
claims against the United States government in the case entitled Coast Federal
Bank, FSB v. United States, No. 92-466C (Cl. Ct. filed July 9, 1992) (the
"Litigation"). Subsequent to the merger, Ahmanson merged Coast Federal with and
into Ahmanson's wholly-owned subsidiary, Home Savings of America, FSB ("Home
Savings"), with Home Savings being the successor institution. Ahmanson merged
into Washington Mutual, Inc. ("WAMU") on October 3, 1998, and Home Savings was
thereafter merged into WAMU's wholly-owned subsidiary, Washington Mutual Bank,
F.A. ("Washington Mutual").
The governing instrument of the CPR Trust is the Amended and Restated
Declaration of Trust, dated as of February 13, 1998 (the "CPR Trust Agreement"),
entered into among Coast, the Litigation Trustees, Bankers Trust Company (the
"Institutional Trustee") and Bankers Trust (Delaware) (the "Delaware Trustee").
Pursuant to the CPR Trust Agreement, the four senior executives of Coast with
knowledge of the facts underlying the Litigation were appointed as "Litigation
Trustees" of the CPR Trust, and were given full authority to make all decisions
on behalf of Coast Federal (and its successors) with respect to the prosecution
and resolution of the Litigation.
The assets of the CPR Trust consist solely of the Commitment and the right to
draw on amounts in the Expense Fund for purposes of funding expenses of the CPR
Trust, including expenses of the Litigation, fees and expenses of the Litigation
Trustees and all administrative expenses. Under the CPR Trust Agreement,
Ahmanson agreed to provide the sum of $19,884,294 (which is equal to $20 million
less expenses related to the Litigation incurred by Coast Federal between
September 1, 1997 and February 13, 1998) (the "Expense Fund") to fund the
Litigation and other expenses of the CPR Trust, which amount is to be reimbursed
to Ahmanson from any proceeds of the Litigation, including any amounts received
in settlement of the Litigation, prior to the payment of any amounts to holders
of the Contingent Payment Rights Certificates (the "CPR Certificates"). The
Expense Fund is on deposit in a non-interest bearing demand deposit account in
the name of the CPR Trust at Washington Mutual.
6
Within 60 days of the receipt of any Commitment Amount, the CPR Trust is
required under the CPR Trust Agreement to pay such amounts (other than $10
million or such greater amount as the Litigation Trustees reasonably determine
may be reasonably likely to be required to pay additional expenses or to satisfy
the CPR Trust's indemnification obligations (the "Retained Amount")) less the
amount of any accrued but unpaid expenses payable by the CPR Trust but not
covered by the Expense Fund, to the holders of the CPR Certificates as of a
record date to be set by the Litigation Trustees. The Retained Amount will be
retained for a period of two years, or such longer period as the Litigation
Trustees reasonably determine may be required.
THE LITIGATION
The following description of the Litigation does not purport to be a complete
description of the legal and factual issues presented, the court opinions
rendered or the relevant law, and the description is in all respects qualified
by reference to the documents filed in the Litigation, such opinions and the
relevant law.
On July 9, 1992, Coast Federal commenced litigation entitled Coast Federal Bank,
Federal Savings Bank v. United States, Civil Action Number 92-466C, against the
United States in the U.S. Claims Court (now the U.S. Court of Federal Claims,
hereinafter, the "Claims Court") alleging that the United States is in breach of
a contract with Coast Federal and has unlawfully taken Coast Federal's property
without just compensation or due process of law in violation of the U.S.
Constitution.
As further described below, Coast Federal's claims arose from changes with
respect to the rules for computing Coast Federal's regulatory capital that were
mandated by the Financial Institutions Reform, Recovery and Enforcement Act of
1989 ("FIRREA") and certain regulations promulgated thereunder.
On April 10, 1987, Coast Federal acquired substantially all of the assets and
liabilities of Central Savings and Loan Association ("Central") from the Federal
Savings and Loan Insurance Corporation (the "FSLIC") in a supervisory
transaction (the "Acquisition") that Coast Federal alleges was induced and
arranged by the FSLIC and the Federal Home Loan Bank Board ("FHLBB"). As part of
the Acquisition, Coast Federal entered into a contract with the FSLIC (the
"Assistance Agreement") under which the FSLIC made a cash contribution to Coast
Federal in the amount of $298.3 million (the "Capital Credit"). In the
Litigation, Coast Federal alleges that the Assistance Agreement and certain
resolutions and a forbearance letter issued by the FHLBB in connection with the
Assistance Agreement each expressly provided that the Capital Credit was to be
treated as a permanent addition to Coast Federal's regulatory capital. Coast
Federal further alleges that such treatment of the Capital Credit for regulatory
capital purposes was essential to inducing Coast Federal to consummate the
Acquisition.
Pursuant to FIRREA, which became effective on August 9, 1989, the FSLIC and the
FHLBB were eliminated and were replaced as the regulators of federally insured
savings institutions by the Office of Thrift Supervision (the "OTS"). In
regulations implementing FIRREA (the "Capital Regulations") and subsequent
actions, the OTS took the position that the Capital Credit should be classified
as supervisory goodwill, as defined in the Capital Regulations, which action
resulted in an immediate exclusion of the Capital Credit from one of the three
measures of Coast Federal's regulatory capital, and effected a five-year phase-
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out of the Capital Credit from such inclusion in the other two measures.
Coast Federal alleges that FIRREA and the Capital Regulations constituted a
breach by the United States of its contractual commitment regarding the
regulatory capital treatment of the Capital Credit and an unlawful taking of
Coast Federal's property rights in the Capital Credit. Coast Federal seeks
damages for this breach of the contract by the United States.
SIMILAR LITIGATION
The Litigation is one of a number of cases filed against the federal government
in the Claims Court involving acquisitions of failed savings institutions and
alleging that the changes in regulatory capital calculations brought about by
FIRREA and the Capital Regulations constitute a breach of the contract between
the acquiring institution and the federal government. For purposes of the
administration of such claims, the Claims Court bifurcated the trial proceedings
in the first three of such cases to be heard by it (Winstar Corporation, et al.
v. United States, Docket No. 90-8C; Statesman Savings Holding Corp., et al. v.
United States, Docket No. 90-773C (the "Statesman Case"); and Glendale Federal
Bank v. United States, Docket No. 90-772C (the "Glendale Case")(which cases are
collectively referred to herein as the "Related Cases"). In July 1992, the
Claims Court ruled in favor of the plaintiffs in the Related Cases on the
initial question of liability, finding in each case that the plaintiff had a
contract as alleged with the federal government and that the federal government
is in breach of that contract as a result of the enactment of FIRREA and the
issuance of the Capital Regulations thereunder. The decision of the Claims Court
on liability was appealed by the federal government. After extended appellate
proceedings, culminating in an appeal to the Supreme Court, the Supreme Court
ruled in favor of the plaintiffs in the Related Cases in United States v.
Winstar Corp., et al., 518 U.S. 839 (1996) (the "Winstar Case").
LIABILITY
The Claims Court stayed proceedings in each of the other cases against the
federal government, including the Litigation, pending the outcome of the
liability phase of the Related Cases. After the Supreme Court's decision in the
Winstar Case in July of 1996, the stay was lifted and Coast reinstated its
motion for partial summary judgment as to the federal government's liability,
which motion had been pending since March of 1993. On February 20, 1998, the
United States filed its response to Coast Federal's motion. In its response, the
Government stated that "at this point, entry of an order regarding the
Government's liability would be appropriate. We believe that such an order
should reflect the Government's concession that a contract existed with respect
to Coast's claim for a capital credit to its net worth, and that the Government
acted inconsistently with the contract." On March 23, 1998, Judge Smith
entered an order in the Litigation granting Coast Federal's motion for
partial summary judgment as to liability with respect to Coast Federal's claim
for a capital credit to its net worth.
ALTERNATIVE DISPUTE RESOLUTION PROCESS
In response to the federal government's request, Coast Federal agreed to
participate in the alternative dispute resolution process (the "ADR Process")
established by Chief Judge Smith in his order dated March 3, 1998, with respect
to the Regulatory Capital Cases. However, by Order dated October 22, 1998, Judge
Margolis, the Claims Court Judge appointed to implement the ADR Process,
8
released the parties to the Litigation from further participation in the ADR
Process following the communication by the parties to Judge Margolis of their
mutual agreement that such participation was not likely to be fruitful.
PROCEEDINGS LEADING TO TRIAL
To manage the numerous cases against the federal government involving the
calculation of regulatory capital as a result of the adoption of FIRREA (all
such cases being referred to herein as the "Regulatory Capital Cases"), twelve
of such cases were designated as priority cases (the "Priority Cases") that
would be the first cases to go to trial following the trial on damages in the
Glendale Case. The Litigation was included among the first group of thirty cases
(the "First Group of Thirty Cases") scheduled to go to trial following the
completion of trial in the Priority Cases.
Case specific discovery for the First Group of Thirty Cases, including the
Litigation, was completed on July 31, 1999. As of May 1, 2000, expert witness
discovery had been completed by Coast and the government, concluding the
discovery phase of the Litigation.
Pursuant to an Order dated July 31, 2000, the Litigation was reassigned from now
Senior Judge Smith to Judge Emily C. Hewitt.
On August 23, 2000, the government filed a motion seeking summary judgment
denying the damage claims asserted by Coast Federal with the Claims Court. The
government is seeking a summary judgment holding that (i) Coast Federal's
expectancy damages claims are too remote, speculative, uncertain, and
unforeseeable as a matter of law, (ii) Coast Federal is barred from recovering
expectancy damages in any event because it failed to mitigate its damages and
(iii) Coast Federal has overstated the amount of contractual regulatory capital
taken from it as a result of FIRREA because such capital was effectively
required under generally accepted accounting principles to be amortized over a
period no greater than 12.7 years and was not a permanent addition to Coast
Federal's regulatory capital. On September 13, 2000, Coast Federal filed an
opposition and cross-motion for partial summary judgment with the Claims Court
that asked the Claims Court to reject the government's motion for summary
judgment and requested that the Claims Court enter partial summary judgement for
Coast Federal that (i) the capital credit received by Coast Federal was a
permanent addition to Coast Federal's regulatory capital and (ii) the damages
suffered by Coast Federal from the government's breach of contract were
foreseeable. On September 27, 2000, the government filed a replay memorandum in
support of its motion for summary judgment with the Claims Court. On October 6,
2000, Coast Federal filed its reply in support of its cross-motion for partial
summary judgment with the Claims Court.
On October 20, 2000, Judge Hewitt heard oral argument on the government's motion
for summary judgment and Coast Federal's opposition and cross-motion for partial
summary judgment. On October 27, 2000, the government filed a surreply
memorandum in opposition to Coast Federal's cross-motion for partial summary
judgment and in support of the government's motion for summary judgment on
damages. Judge Hewitt granted Coast Federal until November 13, 2000 to file a
reply to the government's surreply.
The Trust is unable to predict the date by which Judge Hewitt will rule on the
government's motion for summary judgment on damages or on Coast Federal's cross-
motions for partial summary judgment or the substantive outcome of such rulings.
Judge Hewitt has yet to set a date for trial of the Litigation.
9
DAMAGES
Each savings institution affected by FIRREA's and the Capital Regulations'
limitation on the inclusion in regulatory capital of supervisory goodwill or
FSLIC capital contributions reacted to the resulting reduction in its
regulatory capital in an individual fashion dictated by the unique facts and
circumstances faced by the institution. Accordingly, the extent and amount of
damages awarded to each institution that has brought an action against the
federal government is expected to be dependent on the specific facts in each
case. Even if the plaintiffs in the Related Cases or Priority Cases are
successful in securing damage awards, there can be no assurance that Coast
Federal will obtain a damage award.
Plaintiffs in the Regulatory Capital Cases have tended to pursue recoveries
based on one or more of three alternative theories: (1) expectation damages, (2)
restitution, and (3) reliance damages. It is impractical to provide a full
description of the elements of each of those alternative theories or recovery.
However, the following descriptions are provided for purposes of communicating a
basic understanding of these legal theories.
Expectation damages are generally intended to place the injured party in as good
a position as it would have been in if the contract had been fully performed.
Such damages may include the loss of any monetary benefits that the injured
party would have received in the absence of the breach plus any other losses
caused by the breach, less any costs or losses avoided by the injured party as a
direct result of the breach.
Restitution generally involves restoration to the injured party of any benefits
conferred by it on the breaching party. The injured party's restitution
interest is ordinarily measured by the reasonable value of the benefits
conferred by its performance of the contract on the breaching party, reduced by
any benefits received by the injured party through the breaching party's partial
performance.
Reliance damages are generally intended to restore the injured party to the
position it would have been in if the contract had not been made. Reliance
damages are generally measured by any expenditures made by the injured party in
the course of performance of the contract or as a result of entering into the
contract.
The plaintiff has the burden of proving the amounts of its damages, or the value
of its performance as a basis for restitution, by a preponderance of the
evidence.
On September 29, 1999, Coast Federal filed the reports of its expert witnesses
with the Claims Court. The reports describe the amounts and methods of
calculation of the damages which the experts believe Coast Federal suffered as a
result of the government's breach. Coast Federal's principal expectation damages
analysis as set forth in the experts' reports calculates the damages to be not
less than $1.397 billion. This expectation damages analysis includes
calculations of damages for lost profits, for the cost of replacing the Capital
Credit going forward, for the cost of capital raised by Coast, and for increased
operating costs (such as increased deposit costs, OTS assessments, and deposit
insurance premiums) caused by the government's breach. An alternative
expectation damages analysis set forth in the experts' reports calculates the
damages to be $782.1 million, based solely upon the cost of
10
replacing the Capital Credit in past and future periods. No calculations for
either restitution or reliance damages were included in the reports. The expert
reports are attached as exhibits to a filing made on September 29, 1999, on
behalf of Coast Federal with the Claims Court in Washington, D.C.
In early January 2000, the government completed its depositions of the expert
witnesses who prepared the above reports, and on January 27, 2000, the
government submitted its own experts' reports on damages in response to the
conclusions set forth in the reports of Coast Federal's experts. The
government's experts' reports were filed with the Claims Court on August 23,
2000, as exhibits to the government's motion for summary judgment on damages.
The government's experts' reports in general opine that the damages Coast
Federal seeks from the government are too speculative to permit a recovery. In
addition, the government's experts' reports opine that the capital credit
received by Coast in connection with its acquisition of Central was in essence
required by generally accepted accounting principles to be amortized over a
period of approximately 12.7 years. The government's experts' reports are
relied upon by the government in its pending motion for summary judgment on
damages in arguing that Coast Federal's expectancy damages claims are too
remote, speculative, uncertain and unforeseeable as a matter of law, and that
Coast Federal has overstated the amount of contractual regulatory capital taken
from it because such capital was effectively to be amortized over a period no
greater than 12.7 years and was not a permanent addition to Coast Federal's
regulatory capital.
DAMAGES RULINGS IN OTHER CASES
The United States has argued in the Glendale Case and in the Priority Cases that
have gone to trial that some or all of the damages alleged by the plaintiffs in
those cases are too speculative to permit a recovery. Trial in the damages phase
of the Statesman Case commenced in May 1998, but the government and the
plaintiffs in that case reached a settlement prior to completion of the trial.
Trial of the damages phase of the Glendale case concluded in September 1998. The
plaintiff in the Glendale Case sought damages based on various damage theories
and ranging from approximately $800 million to $2 billion depending upon the
theory used. On April 9, 1999, the judge in the Glendale Case awarded the
plaintiff $909 million in restitution damages and for increased operating costs
(which the judge characterized as reliance damages), based on that judge's
evaluation of the evidence and analysis of the legal arguments presented in the
Glendale Case.
The damages phase of the first of the Priority Cases to go to trial on the issue
of damages, California Federal Bank v. the United States, Docket No. 92-138C
(the "CalFed Case"), concluded in February 1999. The plaintiff in the CalFed
Case sought damages of between $725 million and $1.642 billion based on damage
theories similar to those presented by the plaintiff in the Glendale case. On
April 16, 1999, the judge in the CalFed Case awarded the plaintiff approximately
$23 million in transaction costs under a cost of replacement capital theory,
based on that judge's evaluation of the evidence and analysis of the legal
arguments presented in the CalFed Case. A decision in another Priority Case,
LaSalle Talman Bank, F.S.B. v. the United States, Docket No. 92-652C (the
"LaSalle Talman Case"), was filed on September 30, 1999. The plaintiff in the
LaSalle Talman Case sought damages of between $858.8 million and $1.197 billion
based on various damages theories. The judge in the LaSalle Talman Case awarded
plaintiffs approximately $5 million in reliance damages, based on that judge's
evaluation of the evidence and analysis of the legal arguments presented in that
case. A decision in a third Priority Case, Landmark
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Land Company, Inc. v. United States, Docket No. 95-502C (the "Landmark Case"),
was filed on March 3, 2000. The plaintiffs in the Landmark Case sought damages
of between $1.042 billion and $1.432 billion based on various combined damages
theories of both the private plaintiff and the FDIC. The judge in the Landmark
Case, the same judge who had presided in the CalFed Case, awarded the private
plaintiff and the FDIC a total of approximately $39.2 million in restitution and
reliance damages, based on that judge's evaluation of the evidence and analysis
of the legal arguments presented in the Landmark Case. A decision in a fourth
Priority Case, Bluebonnet Savings Bank v. United States, Docket No. 95-532C (the
"Blubonnet Case"), was filed on July 6, 2000. The plaintiffs in the Bluebonnet
Case sought approximately $175.9 million in expectation damages. The judge in
the Bluebonnet Case awarded no damages to the plaintiffs based on that judge's
evaluation of the evidence and analysis of the legal arguments presented in the
Bluebonnet Case. A decision in a fifth Priority Case, Bobby J. Glass, et al. v.
United States, Docket No. 92-428C (the "Glass Case"), was filed on July 21,
2000. The private plaintiffs in the Glass Case sought approximately $8.4 million
and the FDIC as plaintiff sought approximately $2.5 million, both based on a
combination of damages theories. The judge in the Glass Case awarded $3.972
million in damages to the private plaintiffs and $2.1 million to the FDIC based
on that judge's evaluation of the evidence and analysis of the legal arguments
presented in the Glass Case.
The courts in the Glendale Case, the CalFed Case, the LaSalle Talman Case, the
Landmark Case, the Bluebonnet Case and the Glass Case declined to award damages
under some or all of the plaintiffs' damage theories. No judge in any of the
cases has made an award for lost profits damages, which is one of the primary
theories of expectation damages for which Coast is currently seeking a recovery.
In addition, no judge in any of the cases has made an award of damages for the
cost of replacing capital (other than damages related to transaction costs), for
which Coast is also currently seeking a recovery.
It is likely that rulings in other Priority Cases will occur before trial of
Coast Federal's damage claims. Appeals of the judgments in the Glendale Case,
the CalFed Case and the LaSalle Talman Case have been filed with the Court of
Appeals for the Federal Circuit, and appeals of other Priority Cases are likely.
Any decisions reached by the Court of Appeals in those cases could affect Coast
Federal's damages claims. For these and other reasons, there can be no assurance
as to the type or amount, if any, of damages that Coast Federal may recover.
Without limiting the generality of the foregoing, there can be no assurance that
Coast Federal will obtain any monetary or other recovery in the Litigation.
MANAGEMENT OF THE LITIGATION
The Litigation Trustees are Ray Martin, Robert L. Hunt II, Norman H. Raiden and
James F. Barritt, who at the time of the Merger were the four senior Coast
executives with knowledge of the facts underlying the Litigation. Mr. Martin,
Mr. Hunt and Mr. Barritt were officers of Coast and Coast Federal both at the
time of the agreement with the federal government to treat certain amounts as a
permanent addition to Coast Federal's regulatory capital in connection with
Coast Federal's acquisition of Central, and also at the time of the alleged
breach of this agreement by the federal government, which gave rise to the
claims underlying the Litigation. Mr. Martin, Mr. Hunt and Mr. Barritt, together
with Mr. Raiden (who joined Coast soon after the alleged breach of the agreement
by the federal government), had been involved in the prosecution of the
Litigation prior to the Merger.
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Pursuant to the CPR Trust Agreement, the Litigation Trustees have the sole and
exclusive right to instruct Coast Federal and its successors with respect to the
prosecution of the Litigation (including all decisions as to retention,
dismissal and the terms of engagement of existing or new counsel for Coast
Federal, which retention may involve fees that are partly contingent, and other
advisors). The CPR Trust Agreement also provides that the Litigation Trustees
have the right, in their sole discretion, to instruct Coast Federal and its
successors to dismiss, settle or cease prosecution of the Litigation at any time
and on any terms; Ahmanson, including any successor, is required by the CPR
Trust Agreement to cause Coast Federal and its successors to follow such
instructions from the Litigation Trustees other than instructions that are not
reasonable.
The Litigation Trustees have entered into a letter agreement with the law firm
which has prosecuted the Litigation to date, Cooper, Carvin & Rosenthal, PLLC
(the "Firm"), dated February 13, 1998 (the "Letter Agreement"), in which the
Firm agrees that it will not bill Coast Federal or the CPR Trust for any fees
incurred subsequent to September 1, 1997, in excess of $7,650,000 (the "Cap").
In addition, up to $2 million of the Cap, i.e., any amounts over $5,650,000,
will only be payable to the Firm out of the Commitment Amount, if any, when
received by the CPR Trust from Ahmanson. In consideration of such limitations on
the Firm's customary charges for professional services, the Letter Agreement
provides that the CPR Trust will pay to the Firm, in addition to the Cap, a
contingent incentive fee in the amount of one percent (1%) of the Commitment
Amount, provided that no such incentive fee shall be payable in the event (1)
that both Charles J. Cooper and Steven S. Rosenthal shall cease to be partners
of the Firm prior to a final decision, including appeals, or other final
resolution of the Litigation, or (2) that either Mr. Cooper or Mr. Rosenthal
shall cease to be a partner of the Firm prior to a final decision, including any
appeals, or other final resolution of the Litigation, other than by death,
disability, or appointment to federal office.
The CPR Trust Agreement provides that as compensation the CPR Trust will pay
each Litigation Trustee, during the term of his service as a Litigation Trustee,
fees of $400,000 per year for five years (except that if the Litigation is
sooner terminated, the remainder of such fees (but in no event with respect to a
period longer than the remainder of such year plus two additional years) will be
accelerated upon final resolution of the Litigation and receipt by Ahmanson of
the Litigation Proceeds), plus reimbursement of all reasonable out-of-pocket
expenses. If the services of the Litigation Trustees continue to be necessary
after the initial five-year period or such receipt of Litigation Proceeds, the
Litigation Trustees shall be entitled to a fee of $200 per hour until
termination of the CPR Trust. Pursuant to the CPR Trust Agreement, each
Litigation Trustee may, but is not obligated to, defer all or part of his
compensation until 30 days after the earliest to occur of (i) the date on which
he elected to defer such compensation, (ii) the date he ceases to be a
Litigation Trustee, and (iii) the date of the receipt of the Commitment Amount
in full by the CPR Trust. Any Litigation Trustee electing to so defer will
receive the compensation he would have received plus an amount, calculated on a
monthly basis during the period of deferral (and included in the amount
deferred), equal to the product of the monthly balance of the amount deferred
and an annual rate equal to the Reference Rate, as defined in the CPR Trust
Agreement, plus 250 basis points. For the year ending December 31, 2000, Mr.
Barritt and Mr. Hunt made no deferral election and Mr. Martin and Mr. Raiden
elected to defer one-half of their 2000 compensation.
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SUMMARY FINANCIAL INFORMATION
The CPR Trust has no revenues. The Expense Fund is the CPR Trust's only source
of funding for the payment of the expenses of its operations. The amounts in the
Expense Fund will be applied to a variety of expenses, including the costs of
prosecuting the Litigation (including the fees and expenses of counsel, experts,
support staff and consultants), compensation of the Institutional Trustee, the
Delaware Trustee and the Litigation Trustees, the CPR Trust's indemnification
obligations, liability insurance for the CPR Trust's indemnification obligations
and any liabilities of the Litigation Trustees. To the extent that Coast Federal
and its successors must engage in protracted litigation, such fees and expenses
may increase significantly, and there can be no assurance that the Expense Fund
will be sufficient to cover such fees and expenses.
Following is a statement that details the activity in the Expense Fund (the
balance of which was $8,600,241 as of September 30, 2000) and expenses that have
been accrued but not yet paid for the three and nine months ended September 30,
2000, as well as the balance of the Expense Fund that was available to cover
future expenses as of September 30, 2000.
For the Three For the Nine
Months Ended Months Ended
September 30, 2000 September 30, 2000
------------------- -------------------
Expense Fund balance available for future
expenses as of June 30, 2000 $7,240,044
Expense Fund balance available for future
expenses as of December 31, 1999 $ 9,665,808
Disbursements:
Outside legal counsel and expert witness fees (146,588) (1,897,177)
Litigation Trustee fees (300,000) (883,333)
Litigation and trust administration (65,000) (195,000)
Premises and equipment (12,900) (38,700)
Office and other expenses (22,451) (119,983)
Accrued expenses:
Deferred Litigation Trustee fees (100,000) (300,000)
Accrued Litigation Trustee fees - (16,667)
Accrued outside legal counsel and expert
witness fees (609,500) (138,500)
Accrued interest on deferred Litigation
Trustee fees (54,918) (147,761)
Decrease in accrual for other expenses 10,000 10,000
---------- -----------
Expense Fund balance available
for future expenses as of
September 30, 2000 $5,938,687 $ 5,938,687
========== ===========
In addition, $1,729,421 of expense was accrued through September 30, 2000, for
interest payable to Ahmanson or its successor on disbursements from the Expense
Fund. The CPR Trust's obligation to pay such accrued interest is contingent
upon receipt of sufficient Litigation Proceeds. Expenses for "Litigation and
trust administration" refer to fees paid to three individuals retained by the
CPR Trust to provide litigation and trust administration support services.
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The CPR Trust may issue additional CPR Certificates that represent pro rata
interests in the assets of the CPR Trust in order to pay expenses. However, it
may not be possible to obtain purchasers of the additional CPR Certificates and
there is no assurance that the terms of any such purchases would be reasonable.
In the event additional CPR Certificates are issued and existing CPR Certificate
holders are not given the opportunity to purchase, or do not purchase, a pro
rata amount in such issuance, such CPR Certificate holders' indirect interest in
the Payment Amount will be diluted. The CPR Trust will be authorized to borrow
additional funds for the sole purpose of funding expenses of the CPR Trust, but
only if such borrowings represent debt of the CPR Trust (and not ownership
interests therein) for federal income tax purposes. Furthermore, it may not be
possible for the CPR Trust to borrow funds and, if it is able to borrow funds,
there can be no assurance as to the terms upon which such borrowings may be
available.
Item 3 is not applicable.
PART II OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
For a discussion of Coast Federal Bank, FSB v. The United States, which is the
Litigation to which the Registrant's CPR Certificates relate, see PART 1, Item
2. "Management's Discussion and Analysis of Financial Condition and Results of
Operations - The Litigation."
Items 2 through 5 are not applicable or the answers are negative.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
27. Financial Data Schedule
(b) Reports on Form 8-K
During the quarter for which this report is filed, the following reports on Form
8-K were filed by the registrant:
1. August 24, 2000, Item 5, Other Events. Press Release regarding the
filing by the government of its motion for summary judgment on damages.
2. September 19, 2000, Item 5, Other Events. Press release regarding the
filing by Coast Federal of its opposition and cross-motion for partial
summary judgment on damages.
3. October 3, 2000, Item 5, Other Events. Press release regarding date of
oral argument on government motion for summary judgment on damages and
Coast Federal's opposition and cross-motion for partial summary
judgment.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
COAST FEDERAL LITIGATION
CONTINTENT PAYMENT RIGHTS TRUST
-------------------------------
(Registrant)
/s/ Ray Martin
-------------------------------------
Ray Martin, Litigation Trustee
/s/ Robert L. Hunt II
-------------------------------------
Robert L. Hunt II, Litigation Trustee
/s/ Norman H. Raiden
-------------------------------------
Norman H. Raiden, Litigation Trustee
/s/ James F. Barritt
-------------------------------------
James F. Barritt, Litigation Trustee
Dated: November 7, 2000
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