The Federal Deposit Insurance Corporation, et al v. Killinger et al, No. 2:2011cv00459 - Document 88 (W.D. Wash. 2012)

Court Description: DECLARATION of Steven P. Caplow filed by Defendants Kerry K Killinger, Linda C Killinger, Esther T Rotella, Stephen J Rotella, David C Schneider re 87 MOTION to Dismiss [Defendants Motion for a Reasonableness Determination and Entry of Final Judgment of Dismissal Pursuant to Settlement] MOTION to Dismiss [Defendants Motion for a Reasonableness Determination and Entry of Final Judgment of Dismissal Pursuant to Settlement] (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Caplow, Steven) (Entered: 02/24/2012)

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. The Federal Deposit Insurance Corporation, et al v. Killinger et al Doc. 88 Judge Marsha J. Pechman 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 11 12 13 14 15 16 17 18 THE FEDERAL DEPOSIT INSURANCE CORPORATION, as RECEIVER of WASHINGTON MUTUAL BANK, ) ) ) ) Plaintiff, ) ) v. ) ) KERRY K. KILLINGER, STEPHEN J. ) ROTELLA, DAVID C. SCHNEIDER, LINDA ) C. KILLINGER, and ESTHER T. ROTELLA, ) ) Defendants. ) ) No.: 2:11-cv-00459-MJP DECLARATION OF STEVEN P. CAPLOW IN SUPPORT OF DEFENDANTS’ MOTION FOR A REASONABLENESS DETERMINATION AND ENTRY OF FINAL JUDGMENT OF DISMISSAL PURSUANT TO SETTLEMENT Note on Motion Calendar: February 24, 2012 19 20 21 22 23 24 25 26 27 CAPLOW DECLARATION ISO DEFS.’ MOT. FOR REASONABLENESS DETERM. AND ENTRY OF JUDGMENT NO.: 2:11-CV-00459-MJP 1 Dockets.Justia.com . 1 I, Steven P. Caplow, declare: 2 1. I am a member at the law firm of Davis Wright Tremaine LLP and counsel of 3 record in this action. I make this declaration in support of Defendants Kerry K. Killinger, 4 Stephen J. Rotella, David C. Schneider, Linda C. Killinger and Esther T. Rotella’s 5 (“Defendants”) Motion for Reasonableness Determination and Entry of Final Judgment of 6 Dismissal Pursuant to Settlement, filed concurrently herewith. I am familiar with the facts set 7 forth herein and could and would testify thereto if necessary. 8 9 2. Attached hereto as Exhibit A is a true and correct copy of the December 13, 2011 Settlement and Release Agreement between the Defendants and The Federal Deposit Insurance 10 Corporation, as Receiver for Washington Mutual Bank (individually, the “FDIC,” and 11 collectively with the Defendants, the “Parties”). 12 13 14 3. Attached hereto as Exhibit B is a proposed Final Judgment of Dismissal Pursuant to Settlement. 4. Attached hereto as Exhibit C is a true and correct copy of the Declaration of the 15 Hon. Layn R. Phillips (U.S. District Judge, Ret.), the mediator who facilitated the Parties’ 16 settlement, dated February 22, 2012. 17 5. Attached hereto as Exhibit D is a true and correct copy of an Order dated 18 February 15, 2012, issued in the Washington Mutual, Inc. (“WMI”) chapter 11 bankruptcy 19 proceedings in the United States Bankruptcy Court, District of Delaware, granting the debtor’s 20 motion for An Order Pursuant to Section 105(a) of the Bankruptcy Code and Rule 9019 of the 21 Federal Rules of Bankruptcy Procedure (I) Approving Settlement Agreement in FDIC Litigation 22 and Authorizing the Debtors’ Consummation thereof and (II) Modifying Automatic Stay under 23 Section 362 of the Bankruptcy Code, as Necessary, to Allow Payment of Settlement Amount 24 under Directors and Officers Insurance Policies (“9019 Motion”), approving the Settlement 25 Agreement in this action. 26 27 CAPLOW DECLARATION ISO DEFS.’ MOT. FOR REASONABLENESS DETERM. AND ENTRY OF JUDGMENT NO.: 2:11-CV-00459-MJP 2 1 . 1 6. Attached hereto as Exhibit E are excerpts of the Second Amended and Restated 2 Settlement Agreement, dated as of February 7, 2011, between the WMI debtors, JPMC, the 3 FDIC in its capacity of receiver and corporate, and the official committee of unsecured creditors. 4 5 6 7 8 9 7. Attached hereto as Exhibit F is a copy of the service list for the 9019 Motion filed with the Bankruptcy Court (Exh. C to the 9019 Motion). 8. Attached hereto as Exhibit G is a Certificate of Non-Objection, certifying that no objections were filed to the WMI debtors’ 9019 Motion were filed. I declare under penalty of perjury that the foregoing is true and correct. Executed this 24th day of February 2012. 10 11 s/ Steven P. Caplow Steven P. Caplow 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CAPLOW DECLARATION ISO DEFS.’ MOT. FOR REASONABLENESS DETERM. AND ENTRY OF JUDGMENT NO.: 2:11-CV-00459-MJP 3 2 . 1 2 CERTIFICATE OF SERVICE I hereby certify that on February 24, 2012, the foregoing was electronically filed with the 3 Clerk of the Court using the CM/ECF system which will send notification of such filing to all 4 counsel of record who receive CM/ECF notification, and that the remaining parties shall be 5 served in accordance with the Federal Rules of Civil Procedure. 6 DATED this 24th day of February, 2012. 7 Davis Wright Tremaine LLP 8 By s/ Steven P. Caplow Steven P. Caplow, WSBA #19843 Suite 2200 1201 Third Avenue Seattle, Washington 98101-3045 Tel: (206) 757-8018 Fax: (206) 757-7108 E-mail: stevencaplow@dwt.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CAPLOW DECLARATION ISO DEFS.’ MOT. FOR REASONABLENESS DETERM. AND ENTRY OF JUDGMENT NO.: 2:11-CV-00459-MJP 4 3

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