Current Year Case Updates
|Case Updates for 2009|
Prior Case Updates for: 2012—2011—2010—2009—2008—2007—2006—2005—2004—2003—2002—2001
|Posted: October 29, 2009||
“On Friday, October 23rd, I filed a detailed brief including Declarations and exhibits in support of our claim for damages against the government for breach of contract concerning the acquisition by Benj. Franklin of Western Heritage Savings & Loan. The argument stresses that rescission or restitution damages would be appropriate.
I have requested the government to disclose its own calculation of the amount that the FSLIC Fund would have had to pay to depositors of Western Heritage if it had not been acquired by Benj. Franklin. The government refused to disclose this number and on Monday, October 26th, I filed a short brief explaining why we need this information.
As I have said before on this website, this is an uphill fight, but our cause is just!”
|Posted: October 8, 2009||An Order Granting Extension has been approved by the court. Click here to read.|
|Posted: September 10, 2009||
“The long awaited telephone hearing took place on September 9th. After listening to argument, Judge Smith appointed me and my law firm as the attorneys for the proceedings in the Federal Court of Claims. The text of the Order follows:
The issue is whether we can prove damages solely for the government breach of contract in connection with the acquisition of Western Heritage. This is going to be an up-hill argument, but I owe it to the Benj. Franklin shareholders to continue the fight.”
June 25, 2009
ADDENDUM - August 24, 2009
After several previous postponements, the court has again postponed the hearing which was scheduled for September 9, 2009.
ADDENDUM - August 3, 2009
"Our attorney, Don Willner, has just reported that the hearing set for today on the government motion to dismiss the case and our motion to substitute attorneys has been postponed until August 25th."
This is a report from our attorney, Don S. Willner:
“As we all know, the Federal Circuit Court of Appeals reversed the decision of Claims Court Judge Smith by deciding that there was no contract between Benj. Franklin and the government over the long time amortization of the goodwill acquired as part of the acquisition of Equitable Savings & Loan. This decision ignored the affidavits of the three government officials who negotiated with Benj. Franklin. These affidavits said that there was such a contract. This factual determination is not the kind of case which the United States Supreme Court would review.
The Federal Circuit sent the case back to the Claims Court (this is called a Remand) to decide whether there should be compensation for the admitted breach of contract with Benj. Franklin in connection with the smaller acquisition of Western Heritage Savings & Loan.
After much study and research, lead plaintiff Bob Suess and his attorneys, Winston & Strawn, concluded that there was no realistic chance of winning on this issue. Meanwhile, I had been working with former Benj. Franklin financial experts, as volunteers, to develop a theory of compensation. These financial experts were not available to help until after the conclusion of tax season on April 15th.
Bob Suess and Winston & Strawn then filed in Court a Notice of Dismissal of the case with prejudice. At that point, I filed a motion on behalf of the other plaintiffs to substitute my law firm as attorneys for the Remand and supported it with legal and factual arguments which I believe have a reasonable chance of winning.
Bob Suess and Winston & Strawn then withdrew their Notice of Dismissal, and agreed that my firm should be lead counsel on the Remand with Bob Suess continuing as a plaintiff and Winston & Strawn being of-counsel. I welcomed this collaboration.
Co-plaintiff FDIC has no objection to my Motion to Substitute, but the government is opposed. The Motion to Substitute will be heard by Judge Smith at a telephone status conference on August 3rd.
If my substitution is allowed, I will then proceed with the case. The amount we will be seeking is an additional $6.8 million. I was previously lead counsel in your receiving $4.20 per share in connection with a tax settlement, and the return of your contribution to the Litigation Fund, which together came to about $35 million.
If the Motion to Substitute is allowed, I will work on a contingency being paid only if we win, since there is no shareholder interest in advancing any more money.
I do not know if we will win, but after 18 years of working on this case, I want to make this final effort for the shareholders.”
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