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, 2001
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
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(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 1, 2001 the registrant had 20,703,817 Contingent Payment Rights
Certificates, no par value, outstanding.
PART I FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Unaudited Statement of Financial Condition
September 30, December 31,
ASSETS 2001 2000
------------------ ----------------
Cash in bank $ 5,250,780 $ 6,951,030
Other assets 288,569 438,958
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Total Assets $ 5,539,349 $ 7,389,988
================== ================
LIABILITIES AND CERTIFICATEHOLDERS' EQUITY
Expense fund $ 19,884,294 $ 19,884,294
Deferred litigation trustee fees 2,150,000 1,700,000
Other liabilities 4,469,586 3,087,397
------------------ ----------------
Total Liabilities 26,503,880 24,671,691
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Certificateholders' Equity
Certificates, no par value, 20,703,817 authorized,
issued and outstanding - -
Accumulated deficit (20,964,531) (17,281,703)
------------------- ----------------
Total Certificateholders' Equity (20,964,531) (17,281,703)
------------------- ----------------
$ 5,539,349 $ 7,389,988
=================== ================
See accompanying Notes to Unaudited Financial Statements.
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Unaudited Statement of Operations
Three Months Ended September 30, Six Months Ended June 30,
------------------------------- -----------------------------
2001 2000 2001 2000
----------- ----------- ----------- -----------
REVENUE $ -- $ -- $ -- $ --
----------- ----------- ----------- -----------
EXPENSES
Litigation trustee fees (400,000) (400,000) (1,200,000) (1,200,000)
Legal fees (165,088) (437,088) (433,725) (1,175,648)
Litigation consulting - expert witnesses (79,933) (319,000) (212,608) (860,029)
Litigation and trust administration (65,000) (65,000) (195,000) (195,000)
Interest expense (444,583) (425,337) (1,381,504) (1,132,179)
Premises and equipment (14,009) (12,900) (39,809) (38,700)
Insurance (50,129) (50,129) (150,924) (150,985)
Other (7,059) (12,452) (69,258) (109,387)
----------- ----------- ----------- -----------
Total Expenses (1,225,801) (1,721,906) (3,682,828) (4,861,928)
----------- ----------- ----------- -----------
Net Loss $(1,225,801) $(1,721,906) $(3,682,828) $(4,861,928)
=========== =========== =========== ===========
Net Loss Per Certificate $ (0.06) $ (0.08) $ (0.18) $ (0.23)
=========== =========== =========== ===========
See accompanying Notes to Unaudited Financial Statements
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Unaudited Statement of Cash Flows
Nine Months Ended September 30,
------------------------------------
2001 2000
----------------- ----------------
Cash flows from operating activities:
Net loss $ (3,682,828) $ (4,861,928)
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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 450,000 300,000
Increase in other liabilities 1,382,189 1,284,857
------------ ------------
Total adjustments 1,982,578 1,735,246
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Net cash used in operating activities (1,700,250) (3,126,682)
------------ ------------
Net decrease in cash (1,700,250) (3,126,682)
Cash at beginning of period 6,951,030 11,726,923
------------ ------------
Cash at end of period $ 5,250,780 $ 8,600,241
============ ============
Supplemental disclosure of cash flow information:
Cash paid during the period for interest $ -- $ --
============ ============
See accompanying Notes to Unaudited Financial Statements
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Notes to Unaudited Financial Statements
September 30, 2001
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 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, 2001, 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, 2000.
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.
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-
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 or distressed_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 party 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.
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 fact discovery for the First Group of Thirty Cases, including the
Litigation, was substantially completed by 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 with the Claims Court a motion seeking
summary judgment denying the damage claims asserted by Coast Federal. The
government sought 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 judgment 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.
In an order dated December 28, 2000 (the "Order"), Judge Hewitt issued a ruling
on the government's motion and Coast Federal's cross-motion for summary
judgment. The Order held in part for the government, ruling that (i) Coast
Federal's capital credit in the amount of $299 million was not a permanent
addition to Coast Federal's regulatory capital and was to have been amortized
over a period of 12.7 years, and (ii) Coast Federal may not claim increased
deposit costs as "wounded bank" damages. The Order also held in part for Coast
Federal, ruling that (i) Coast Federal's expectancy damages were not
unforeseeable, and (ii) Coast Federal is not barred from recovering expectancy
damages because of a failure to mitigate.
On January 16, 2001, the government filed a motion for reconsideration and
clarification of the Order. The government requested (i) a final ruling from
Judge Hewitt that the "level yield" method of amortization governed the
amortization of Coast Federal's capital credit, (ii) reconsideration of Judge
Hewitt's denial of summary judgment concerning Coast Federal's lost profits
claims in light of the Judge's other rulings and analysis, and (iii)
reconsideration of the Order's forseeability holding because it was based upon
alleged mistakes of fact and errors of law. By a ruling dated February 5, 2001,
Judge Hewitt denied the government's motion for reconsideration.
On January 17, 2001, Coast Federal filed a motion with Judge Hewitt requesting
that Judge Hewitt certify for interlocutory appeal that portion of her Order
that granted partial summary judgment to the government as to the duration of
Coast Federal's capital credit. Coast Federal sought to appeal Judge Hewitt's
conclusion that Coast Federal's capital credit did not constitute a permanent
credit to its regulatory capital as well as Judge Hewitt's subsequent
determination that the capital credit is required to be amortized over 12.7
years rather than 25 years. Coast Federal's motion also requested that all
proceedings in the Litigation be stayed pending resolution of the requested
appeal. By a ruling dated February 6, 2001, Judge Hewitt granted Coast Federal's
motion and also stayed all proceedings in the Litigation in the Claims Court.
On February 16, 2001, Coast Federal filed a petition with the United States
Court of Appeals for the Federal Circuit (the "Court of Appeals") to hear Coast
Federal's appeal of the Order (the "Appeal"), and on February 26, 2001, the
government filed an opposition to the petition. By an order dated April 16,
2001, the Court of Appeals declined to hear the Appeal at that time, and the
Litigation returned to the Claims Court for further proceedings. By order dated
May 4, 2001, Judge Hewitt directed Coast Federal to submit revised expert
reports with the Claims Court by July 1, 2001, that reflect the effects of Judge
Hewitt's December 28, 2000, decision on Coast Federal's damages claims.
On June 19, 2001, Coast Federal filed a Second Expert Report with the Court of
Claims (the "Second Report"). The Second Report calculates the damages suffered
by Coast Federal from the breach of its capital credit contract as $53.2
million, if that capital credit is amortized as required by Judge Hewitt's
December 28, 2000, decision (the "New Damage Claims"). As described in the
Second Report, the New Damage Claims reflect the actual costs to Coast Federal
of two debt issuance transactions in 1992 and 1993 which Coast Federal would not
have undertaken but for the government's breach.
On August 9, 2001, the government filed a Motion for Summary Judgment with
regard to Plaintiff's New Damage Claims disputing the damages set forth in the
Second Report.
On October 2, 2001, Coast Federal filed a motion for reconsideration of the
Claims Court's December 28, 2000, order (the "December Order") holding that
Coast Federal's capital credit in the amount of $299 million was not a permanent
addition to Coast Federal's regulatory capital and was to have been amortized
over a period of 12.7 years. In its motion, Coast Federal stated that it would
not be able to prove damages from the government's breach of Coast Federal's
contractual right to a capital credit if that right was limited as by the Order.
Coast Federal's motion further stated that it understood and contemplated that,
if the Claims Court did not reconsider the Order, the Claims Court would enter a
final judgment awarding no damages to Coast Federal, and that Coast Federal
would appeal that judgment for purposes of seeking appellate review of the
December Order.
By order dated October 18, 2001, the Claims Court entered judgment in favor of
the government. The Claims Court ruled that no further proceedings in the
Claims Court were necessary or appropriate in light of Coast Federal's statement
that Coast Federal could not prove damages under its contract with the
government as interpreted by the Claims Court in the December Order.
Coast Federal intends to appeal the Claims Court's ruling to the Court of
Appeals. Coast Federal's appeal will seek to have the Claims Court's December
Order regarding the permanence of Coast Federal's capital credit reversed. Coast
Federal maintains that the government's breach of Coast Federal's contractual
right to a permanent, nonamortizing $299 million capital credit inflicted
substantial damages that Coast Federal will pursue in full on remand if the
Appeals Court accepts Coast Federal's view of the scope of its contractual
rights.
Coast Federal must submit its appeal brief to the Court of Appeals within 120
days after the date of the Claims Court's entry of judgment in favor of the
government. Within 210 days of the date of the entry of judgment, barring any
extensions, briefing by both Coast Federal and the government of the appeal and
any cross-appeal must be completed. Thereafter, a three member panel of the
Court of Appeals will establish a date to hear oral argument of the appeal.
Following oral argument, the panel will take the appeal under submission pending
its decision. Coast Federal is unable to predict when the panel will issue its
decision.
If the Court of Appeals upholds the Claims Court's December Order and Coast
Federal is unsuccessful in subsequently obtaining certiorari to the United
States Supreme Court, no award of monetary damages will be made to Coast
Federal, and therefore no monetary payment will be possible from the Trust to
certificateholders. If the Court of Appeals reverses the Claims Court's Order,
it is expected that the Litigation will be remanded to the Claims Court for
further proceedings in accordance with the decision reversing the Order.
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.
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 these alternative theories of 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 first reports of its expert
witnesses (the "First Reports") with the Claims Court. The First Reports
describe the amounts and methods of calculation of the damages which the experts
believed Coast Federal suffered as a result of the government's breach. Coast
Federal's principal expectation damages analysis as set forth in the First
Reports calculated the damages to be not less than $1.397 billion. This
expectation damages analysis included 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 First Reports calculated the damages to be $782.1 million, based solely upon
the cost of replacing the Capital Credit in past and future periods. No
calculations for either restitution or reliance damages were included in the
First Reports. The First Reports were attached as exhibits to a filing made on
September 29, 1999, on behalf of Coast Federal with the Claims Court in
Washington, D.C.
On January 27, 2000, the government submitted its own experts' reports on
damages in response to the conclusions set forth in the First 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 opined that
the damages Coast Federal sought from the government were too speculative to
permit a recovery. In addition, the government's experts' reports opined that
the capital credit received by Coast Federal 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.
As discussed above under "Management's Discussion and Analysis of Financial
Condition and Results of Operations - Proceedings Leading to Trial," on December
28, 2000, the Claims Court issued its Order with respect to the government's
motion and Coast Federal's cross-motion for summary judgment (the "December
Order"). In the December Order, the Claims Court largely accepted the
government's contention with respect to the capital credit in ruling that the
capital credit was not a permanent addition to Coast Federal's regulatory
capital and was required to be amortized over 12.7 years. Also as described
above, on October 18, 2001, the Claims Court entered judgment in favor of the
government and awarded no damages to Coast Federal in light of Coast Federal's
statement that Coast Federal would not be able to prove damages if its contract
with the government is as interpreted by the Claims Court in the December Order.
As discussed above under "Management's Discussion and Analysis of Financial
Condition and Results of Operations - Proceedings Leading to Trial," Coast
Federal intends to appeal the Claims Court's ruling in the December Order. If
the December Order is upheld on appeal, no award of monetary damages will be
made to Coast Federal, and therefore no monetary payment will be possible from
the Trust to certificateholders. If the Court of Appeals reverses the December
Order, it is expected that the Litigation will be remanded to the Claims Court
for further proceedings on damages in accordance with the decision reversing the
Order.
There can be no assurance that Coast Federal will obtain any monetary or other
recovery in the Litigation. As discussed below under "Management's Discussion
and Analysis of Financial Condition and Results of Operations - Damages Rulings
in Other Cases," no judge in any of the Winstar related cases which have gone to
trial has made an award for lost profits damages, which is one of the primary
theories of damages for which Coast Federal is currently seeking a recovery.
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 non-overlapping reliance damages), based on
that judge's evaluation of the evidence and analysis of the legal arguments
presented in the Glendale Case. The government appealed the damages ruling in
the Glendale Case, and on February 16, 2001, the United States Court of Appeals
for the Federal Circuit issued a ruling vacating the trial court's damage award
on the theory of restitution and remanded the case to the trial court for a
determination of total pre- and post-breach reliance damages suffered by the
plaintiff.
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 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, who was 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 was one of the primary
theories of expectation damages for which Coast Federal initially sought
recovery as described in the First Reports. In addition, no judge in any of the
cases has made a significant award of damages for the cost of replacing capital
(other than damages related to transaction costs), for which Coast Federal also
initially sought recovery as described in the First Reports. Further, in only
one of the seven cases in which a judgment has been entered after a trial on
damages , Glendale Federal Bank v. United States, Claims Court Docket No. 90-
772C (the "Glendale Case"), has an award been granted that is in excess of $40
million. The award in the Glendale Case has since been vacated on appeal and
sent back to the Claims Court for further proceedings.
It is likely that rulings in other Priority Cases will occur before trial of
Coast Federal's damage claims is completed. Appeals of the judgments in several
of these cases 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 award 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.
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. This includes all decisions as to retention,
dismissal, terms of engagement of existing or new counsel, whose 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 unless such instructions are unreasonable.
The Litigation Trustees entered into a letter agreement, dated February 13, 1998
(the "Letter Agreement"), with the law firm of Cooper, Carvin & Rosenthal, PLLC
(the "Firm"). In the Letter Agreement the Firm agreed that it would 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"). The Firm further agreed that up to $2
million of the Cap, i.e., any amounts over $5,650,000, would only be payable to
the Firm out of the Commitment Amount, if any, when received by the CPR Trust
from Ahmanson. In consideration of these limitations on the Firm's customary
charges for professional services, the Letter Agreement provided that the CPR
Trust would pay to the Firm, in addition to fees up to the amount of the Cap, a
contingent incentive fee in the amount of one percent (1%) of the Commitment
Amount, provided that no such incentive fee would be payable in the event (1)
that both Charles J. Cooper and Steven S. Rosenthal ceased 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 ceased 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.
As of October 15, 2001, the amount remaining to be paid to the Firm under the
Cap (less the $2 million payable solely out of the Commitment Amount) was
approximately $0.3 million. On April 24, 2001, Mr. Rosenthal announced that he
had left the Firm. As a result, pursuant to the terms of the Letter Agreement,
the CPR Trust is not obligated to pay the contingent fee to the Firm in the
amount of one percent (1%) of the Commitment Amount. However, the Litigation
Trustees currently expect to enter into an agreement with the Firm, renamed
Cooper & Kirk, pursuant to which the Firm will continue to represent Coast
Federal in the Litigation.
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, 2001, Mr.
Barritt made no deferral election and Mr. Martin, Mr. Hunt and Mr. Raiden
elected to defer one-half of their 2001 compensation.
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 or 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 $5,250,780 as of September 30, 2001) and expenses that have
been accrued but not yet paid for the three and nine months ended September 30,
2001, as well as the balance of the Expense Fund that was available to cover
future expenses as of September 30, 2001.
For the Three For the Nine
Months Ended Months Ended
September 30, 2001 September 30, 2001
------------------- ---------------------
Expense Fund balance available for future
expenses as of June 30, 2001 $2,775,910
Expense Fund balance available for future
expenses as of December 31, 2000 $4,312,873
Disbursements:
Litigation Trustee fees (250,000) (766,667)
Litigation and trust administration (65,000) (195,000)
Outside legal counsel and expert witness fees (185,021) (676,333)
Premises and equipment (14,009) (39,809)
Office and other expenses (7,059) (99,793)
Accrued expenses:
Deferred Litigation Trustee fees (150,000) (450,000)
Decrease in accrual for Litigation Trustee fees - 16,667
Decrease (increase) in accrual for outside legal
counsel and expert witness fees (60,000) 30,000
Decrease in other accrued expenses - 30,000
Accrued interest on deferred Litigation
Trustee fees (57,849) (174,966)
---------- ----------
Expense Fund balance available
for future expenses as of
September 30, 2001 $1,986,972 $1,986,972
========== ==========
In addition, $3,355,777 of expense was accrued through September 30, 2001, 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.
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
None
(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. July 18, 2001, Item 5, Other Events. Press release announcing trial
date.
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 6, 2001