Case MFW Doc Filed 12/03/18 Page 1 of 4 KYLE LAW CORPORATION. San Francisco, California December 3, 2018

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1 Case MFW Doc Filed 12/03/18 Page 1 of 4 Stephan E. Kyle skyle@kylelawcorp.com Direct Dial: KYLE LAW CORPORATION APROFESSIONALLAWCORPORATION 465CaliforniaStreet,5 th Floor SanFrancisco,California94104 Telephone: Facsimile: United States Bankruptcy Judge United States Bankruptcy Court District of Delaware 824 North Market Street 5 th Floor, Courtroom No. 4 Re: In re WMI Liquidating Trust Employee Claims Litigation Case No.: (Bankr. D. Del.)(MFW) Dear Judge Walrath: As you know, we are the attorneys for twenty-three (23) individual claimants in the abovereferenced action. We are writing to Your Honor in connection with the supplemental briefing you requested from the parties during the November 1, 2018 hearing (the Hearing ) in this matter. As you may recall, the supplemental briefing relates to claims that should not be included in your order on the Trust s Motion to Disallow Claims [D.I ] (the Dismissal Motion ). At the Hearing, counsel for WMILT again asserted that all remaining claims had been submitted to the FDIC for consideration and that WMILT was precluded from making payment on any claims. At that time, we raised concerns that WMILT still had not produced the Payment Applications and related materials that were submitted and exchanged with the FDIC. These concerns stem from the fact that Your Honor made an initial determination, at the hearing on the Dismissal Motion on October 16, 2018, to dismiss the entirety of the remaining employee claims based on orders entered by the District Court for the District of Columbia which purportedly hold that that WMILT was prohibited from making any payments, in any amount, to any of the claimants on the basis of their claims. In light of these concerns, Your Honor ordered WMILT at the Hearing to produce the applications that were submitted to the FDIC on behalf of our clients so that we could properly determine which claims were fully considered by the FDIC and, therefore, which claims would be

2 Case MFW Doc Filed 12/03/18 Page 2 of 4 Page 2 KYLE LAW CORPORATION potentially encompassed by the orders entered by the D.C. District Court. Several weeks later, on Tuesday November 20, 2018 just before the Thanksgiving break, we received a binder of printed materials containing approximately 1500 pages of documents. The binder appears to contain the basic applications submitted to the FDIC but, based on our initial review of the materials, we identified a number of missing relevant documents from the production. These include: 1. A letter inquiry dated August 14, 2013, seeking guidance as to certain additional contracts and benefit plans, referenced in the April 18, 2014 letter from the FDIC to Brian Rosen. We were not provided a copy of this additional letter inquiry of August 14, An August 1, 2013 correspondence from the FDIC, in which the FDIC found that the SERAP qualified for exception from Part 359 as a Bona Fide Deferred Compensation Plan under 12 C.F.R (d)(2). This correspondence is referenced pp. 6-7 of the Second FDIC Determination. We were not provided a copy of this August 1, 2013 correspondence from the FDIC. 3. A November 14, 2013 confirmation from the FDIC, in which the FDIC determined that the Trust could proceed with payment of the ETRIP Base Components without violating Part 359. This correspondence is referenced p. 6 of the Second FDIC Determination. We were not provided a copy of that November 14, 2013 confirmation. The discovery of these missing documents, especially in light of the limited review we have been able to complete to date, caused us to question whether Trust counsel had produced all of the correspondence and submissions between WMILT and the FDIC related to the employee claims. For that reason, we wrote to Trust counsel on Thursday, November 29, 2018 and requested that WMILT promptly provide us with the specific items we identified as missing. In addition, we also requested that WMILT provide us with other documents and filings that have not been made part of the public record, including: 1. Any other correspondence, supplemental application materials, clarification requests or submissions, supporting documentation, etc., either to or from the FDIC, in connection either of the applications made to the FDIC or the determinations rendered by the FDIC; and 2. Complete and unredacted copies of the pleadings, exhibits and administrative record materials filed Under Seal with the D.C. District Court in both of the APA actions. Since WMILT is relying on the determinations made by the FDIC, as well as the orders of the D.C. District Court in the APA actions, as grounds for seeking dismissal of the employee claimants claims, it is imperative that we be able to review the entirety of the documentation from

3 Case MFW Doc Filed 12/03/18 Page 3 of 4 Page 3 KYLE LAW CORPORATION the application process with the FDIC, as well as all of the filings that were made Under Seal with the D.C. District Court, which includes the FDIC s administrative record. Trust counsel responded to our requests on Friday, November 30, 2018 but refused to provide any further materials to us, claiming that our requests plainly exceed the scope of the Court s ruling that WMILT provide [us] with redacted copies of the Payment Applications. Trust counsel asserts that we did not make a specific request for these additional items during the Hearing and, therefore, WMILT is not required to provide them. Certainly, since we had not seen the Payment Applications before, there was no way for us to know what was included or not included in the Payment Applications themselves. Regardless, we believe the intent of Your Honor s ruling was to provide those materials to us that were not part of the public record in connection with the application process and the APA actions. This would include (i) the other correspondence, supplemental application materials, clarification requests or submissions, supporting documentation, etc., either to or from the FDIC, in connection either of the applications made to the FDIC or the determinations rendered by the FDIC, and (ii) the filings and exhibits submitted Under Seal in the APA actions. Certainly, the basic Payment Applications themselves provide some context necessary to understand the FDIC Determinations. In fact, based on our review of the basic Payment Applications provided, it has now become clear to us why WMILT consistently rebuffed the employee claimants requests for the Payment Applications, and why WMILT pushed so hard for the entry of a modified order on the Dismissal Motion even before it finally turned over the basic Payment Applications to us. These documents reveal that there are numerous claims, with claim values in the tens of millions of dollars that were either (i) not specifically submitted to the FDIC for determination, or (ii) not considered/prohibited by the FDIC in its determination letters. These claims are in addition to those we initially identified and brought to the Court s attention prior to the Hearing. This very recent discovery directly undermines the specific representations made by WMILT to the Court, and to the claimants, that the FDIC had specifically considered all remaining claims and had determined that payments on any of the claims - to any of the Claimants - were prohibited. At a minimum, this discovery provides grounds for our clients request for access to these additional administrative documents and sealed filings and records. Based on the foregoing, we respectfully request Your Honor s assistance in mandating production by WMILT of the additional materials and filings we have requested and which are not part of the public record. In addition, we also request, if Your Honor is agreeable, additional time in which to review and digest the additional materials in order to provide the Court with a thorough briefing on these matters. The currently scheduled briefing date of December 5, 2018 is only a few days away. Trust counsel indicated in their letter that they were willing to grant a two-week extension until December 19, 2018 for the parties to submit briefing. However, given the amount of material provided just before the Thanksgiving holiday, not to mention the additionally requested materials we have not yet seen, we propose that briefing deadlines be continued to a

4 Case MFW Doc Filed 12/03/18 Page 4 of 4 Page 4 KYLE LAW CORPORATION reasonable date following the date by which WMILT is ordered to produce the additional materials and sealed filings (if the Court so orders). Thank you for your consideration of these matters. Should the Court have any questions, or if it would prefer that these matters be addressed by way of formal motion, please do not hesitate to let us know. Respectfully submitted, SEK/of cc: Brian Rosen, Esq. John Mastando, Esq. Amanda Steele, Esq. Robyn Sokol, Esq. Michael Joyce, Esq. STEPHAN E. KYLE

5 Case MFW Doc Filed 12/03/18 Page 1 of 2 CERTIFICATE OF SERVICE I, Michael J. Joyce, hereby certify that on, I caused a true and correct copy of the Letter to Judge Walrath regarding Production of Additional Materials to be served on the parties listed on the attached service list via CM/ECF and/or by first class mail: /s/ Michael J. Joyce Michael J. Joyce (No. 4563)

6 Case MFW Doc Filed 12/03/18 Page 2 of 2 SERVICE LIST Mark D. Collins, Esq. Paul N. Heath, Esq. Amanda R. Steele, Esq. Richards, Layton and Finger PA 920 N. King Street Michael Busenkell, Esq. Gellert Scali Busenkell & Brown, LLC 1201 N. Orange Street Suite 300 Kenneth E. Aaron, Esq. Jeffrey S. Cianciulli, Esq. Weir & Partners LLP 824 Market Street Mall, Suite 800 Erik B. Bond, Esq. Federal Deposit Insurance Corporation Legal Division 3501 N. Fairfax Drive Arlington, VA Brian S. Rosen, Esq. Proskauer Rose LLP Eleven Times Square (Eighth Avenue & 41st Street) New York, New York Joseph J. McMahon, Jr., Esq. Ciardi Ciardi & Astin 1204 N. King Street Katherine H. Wheatley, Esq. Joshua P. Chadwick, Esq. Christopher J. Becker, Esq. Board of Governors of the Federal Reserve System 20th & C Streets, N.W. MS #9 Washington, D.C John P. Mastando III, Esq. Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153