sweeping, and we believe unsupported, Gladstone's colleague, Nancy A. Matusiak, also a partner of Ernst & Young pointed out in her testimony the same day that Leventhal "has made some serious mistakes, including one in which the document on which Leventhal focused in reaching its conclusions had nothing to do with the gain recognition on this transaction." While allegations have been made that ACC's hiring of a partner of Arthur Young somehow taints the professionalism with which these audits were performed, Gladstone pointed out that "there were probably 50 or 60 people involved (in the audits] including numbers of other partners...", and, ACC recalls, the audit involved not the usual test sampling of random transactions, but an extended review of every transaction. Notwithstanding the obvious frailties of the Leventhal Report, and the strongly contrary position of the major accounting firm that performed a complete and thorough analysis of transactions criticized in that report, this report nonetheless appears to have formed the basis for the FHLBB's reversal of $135,269,000 of previously reported pre-tax income. C. The Receivership On August 2, 1989, the FHLBB met to appoint a receiver for Lincoln. Like the earlier meeting at which the conservator had been appointed, this August 2 meeting was a secret, ex parte affair from which ACC and Lincoln were deliberately excluded. The FHLBB's staff at the meeting asserted that Lincoln was insolvent as of March 31, 1989 as a result of the massive adjustments that the conservator and others had made to Lincoln's financial reports after the conservator had been appointed. Because ACC and Lincoln were excluded from the meeting, they were unable to question or challenge any of these adjustments. the FHLBB members question the adjustments, even though the staff failed to explain the basis for any of them. Instead, the FHLBB simply assumed without more, that the conservator's adjustments were appropriate. The FHLBB took several actions on August 2 in addition to appointing the receiver. The FHLBB replaced the conservator with the receiver, thereby terminating the conservatorship. The FHLBB also formed a new federally chartered thrift, Lincoln Savings and Loan Association, F.A. ("New Lincoln"), and authorized all of Lincoln's assets and most of its liabilities to be transferred to New Lincoln (liabilities not transferred to New Lincoln were to be transferred to the Resolution Trust Corporation, the successor agency to FSLIC). Finally, the FHLBB appointed a conservator for New Lincoln on the ground that it, too, was insolvent. purpose of these actions was to destroy ACC's ownership interest in Lincoln and to prepare Lincoln's assets for sale unencumbered by that interest or the scrutiny of the Bankruptcy Court. On August 18, 1989, Lincoln amended its complaint in the action to remove the conservator to add a challenge to the FHLBB's appointment of the receiver. Lincoln's amended complaint asserts that the conservator's massive adjustments were not warranted and that Lincoln was not insolvent either on March 31 or August 2, 1989, as alleged by the FHLBB. Lincoln also alleged that if it was in fact insolvent on August 2, it was made so by the actions of the conservator and other federal officials and that the FHLBB therefore could not fairly appoint a receiver based on such insolvency. The issue of whether Lincoln was insolvent on March 31 and August 2 is currently before the District Court in Washington, D.C. The FHLBB has moved for summary judgment on this issue based upon the adjustments to Lincoln's financial records that are included in the "Administrative Record." Lincoln has opposed the Board's motion on the ground that it cannot respond to these adjustments until it has had the opportunity to discover the bases for them. As discussed above, oral argument on the FHLBB's motion for summary judgment was held on November 8 and 9, 1989. time, the District Court refused to grant summary judgment and scheduled a series of hearings at which testimony will be presented concerning certain of the factual allegations in the administrative records. XVIII. Regulators. Efforts to Obstruct a Reorganization of ACC Both prior to and since the appointment of a receiver for Lincoln and the liquidation of all of its assets, many actions taken by the regulators seem more to be directed to aborting ACC's prospects for reorganization, with the consequential loss to its creditors, including approximately 23,000 bondholders, than to the 131 proper exercise of their regulatory authority and obligations to the public. Less For example, at its first formal meeting of creditors on the morning of June 6, 1989, ACC announced its intention to propose a plan of reorganization which would repay all creditors in full with interest. The centerpiece of the plan of reorganization as described that morning was the purchase, from AMCOR Funding, a also in a Chapter 11 reorganization, of its assets including the AFLIC, CFLIC and GOIL assets. The initial response of creditors and the press was quite favorable and parties appeared to be interested in working with ACC to help effectuate this plan. than an hour after ACC's creditors' meeting concluded, however, the FDIC conducted a brief meeting of two of the three members of the Board of Directors of AMCOR Funding. Without particular discussion, the decision to sell AFLIC and CFLIC was purportedly made at that "meeting." The FDIC caused a press release to be issued two days later stating that AFLIC was to be sold, subject to approval of the Bankruptcy Court, an application for which it expected to file the following week. When, ten days later, at the first meeting of creditors for AMCOR Funding, creditors asked why the application for approval of that sale still had not been filed, representatives of the FDIC testified that the sale was still subject to negotiation and that no application for sale would be filed for at least several weeks. They refused to provide further detail concerning the sale, asserting that the negotiations were confidential and the considerations regarding the sale were subject to "deliberative process privilege." Months later, the FDIC announced that the "negotiations" had terminatedand that no sale would take place. It appears that no sale agreement ever existed, notwithstanding public announcements..to the contrary, and the conclusion is inescapable that the sale was announced prematurely to undercut the positive effect of ACC's announcement of prospects for reorganization at its first meeting of creditors. The FDIC has also refused to provide information essential to the day-to-day operations of ACC which have caused it great expense, potential liability, and the distraction of management from the reorganization process. For example, ACC files consolidated tax returns with all of its subsidiaries, including Lincoln and its subsidiaries and notwithstanding the seizure of Lincoln's assets by the regulators, ACC was still considered to be the common parent for the consolidated group under the applicable provisions of the Internal Revenue Code. As parent, ACC was "sole agent for each subsidiary in the group duly authorized to act in its own name in all matters relating to the tax liability for the consolidated return year. 1257 Under that regulation, no 1257 Treas. Reg. Section 1.1502-77 (a). R000303 subsidiary had "authority to act for or to represent itself in any such matter." Accordingly, ACC had the responsibility to file the 1988 consolidated tax returns including information concerning the income of Lincoln and its subsidiaries. As the result of an extension filed by ACC on March 15, 1969, the 1988 federal returns were due on September 15, 1989 and no further extensions could be obtained. In order to complete these returns, however, ACC required access to certain financial information in the possession of Lincoln. The FDIC refused ACC's requests for that information and required ACC to seek and obtain a court order for the production of documents from Lincoln's accountants over the regulators' objections in order to have even a part of the information necessary for the filing. These actions by the FDIC, for no discernible legitimate purpose, exposed ACC to the possibility of the assessment of penalties and interest by the Internal Revenue Service. In another example, the FSLIC/FDIC objected to a proposed settlement between a first tier ACC subsidiary and a lessor of an aircraft whereby the lessor agreed to the termination of the aircraft lease and waived its rights to collect a deficiency judgment against that subsidiary or ACC. That settlement was clearly in the best interests of ACC and its creditors but the regulators pursued their objections. Throughout the recent summer, following the Chapter 11 filings and conservatorship, the regulators continued their leaks of confidential and damaging information which were acknowledged in the ERC memorandum of April 1988 to have occurred at times when these leaks were sure to have the maximum damaging value before the various courts in which ACC presently must appear. The Leventhal Report discussed above, for example, was released on the day a purported class of securities plaintiffs was required by the court to present evidence of the basis of their claims against the professionals employed by ACC or to have their claims against those professionals dismissed. Without that report they would have been unable to produce anything colorably passing as such evidence. Simultaneously, the same securities claimants sought the appointment of an examiner for ACC in the Chapter 11 proceeding, notwithstanding the lack of support for such motion by the creditors' committee or the United States Trustee. Notwithstanding the obvious frailties of the Leventhal Report, however, the judge in the Bankruptcy Court appeared to give credence to the Leventhal Report in granting the request for an examiner, made by only a handful of individual creditors. Perhaps the most striking example of the Regulators' use of the media as a platform for their campaign of harassment is found in the events that led to and followed the September 15, 1989, filing of the action styled Resolution Trust Corporation v. Charles H Keating, Jr., et al. That suit, which in the RTC's own estimation seeks damages of approximately $2.4 billion, purports to state claims for violations of the Racketeer Influenced and Corrupt Organizations statute ("RICO") 126/ but the real impact of that lawsuit has not been its allegations (which merely rehash further the allegations of the various FHLBB examinations, cast in a new form) but rather the manner in which it was filed and has been prosecuted. Stories began to appear in the media as early as June of 1989 that federal authorities were investigating ACC and its subsidiaries to determine whether ACC executives had made false reports to federal regulators or profited from loans to insiders of Lincoln. By July 1989, the media was reporting that federal regulators had said that they were looking at the possibility that Lincoln and ACC had used fraudulent transfers of funds and fraudulent accounting methods to make Lincoln appear healthier than it really was. The prefiling media campaign intensified in early August 1989 when reports surfaced that the FDIC had reportedly targeted Charles H Keating, Jr. and were contemplating the filing of a RICO lawsuit. Throughout August 1989, those reports intensified as the media continued to quote named and unnamed federal regulatory sources and lawyers representing the RTC. Throughout August and early September media reports of various aspects of the federal investigation of Lincoln and ACC continued to proliferate, culminating in the middle of September when news accounts around the country began to state that federal regulators were shortly expected to file a civil racketeering lawsuit against ACC executives. On September 14, 1989, the day before the RICO action was filed, various newspapers and other media reported that the racketeering suit was imminent and some reports gave factual accounts of the allegations of the as yet unfiled complaint which were accurate enough in their descriptions of the document to lead to the conclusion that advance copies of the complaint had been leaked to certain select media. Inevitably, the media treatment of the preannouncements of the RICO lawsuit prominently featured the use of the term "racketeering" in describing the conduct ascribed to ACC and its executives by the federal regulators. Public exposure of charges before they are formally made, liberally salted with pejoratives such as "racketeering" can only be viewed as an effort to poison public opinion and to make as inhospitable as possible the public climate surrounding persons who had yet to be sued for anything by the federal regulators. Moreover, the named defendants in the RICO action that was filed on September 15, 1989, were not limited to ACC entities and executives. The federal regulators also named as defendants the spouses of the named defendants, taking care to name as many members of the Keating family as possible without charging any of the spouses with any wrongdoing whatsoever. 1267 18 U.S.C. SS 1961 et seq. R 000305 |