Federal Deposit Insurance Company v. Ching et al

Filing 190

FINAL PRETRIAL ORDER signed by District Judge Kimberly J. Mueller on 6/8/16. Each party may make objections to this order within 14 days of the date it is filed. If no objections are filed, this order will become final without further order of this court. (Kastilahn, A) Modified on 6/8/2016 (Kastilahn, A).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FEDERAL DEPOSIT INSURANCE
CORPORATION AS RECEIVER FOR
BUTTE COMMUNITY BANK,
Plaintiff,

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FINAL PRETRIAL ORDER

v.

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No. 2:13-cv-01710-KJM-EFB

ROBERT CHING, et al.
Defendants.

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On June 3, 2016, the court held a final pretrial conference. Jean-Paul Cart

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appeared for the Federal Deposit Insurance Corporation (FDIC-R), acting as receiver for Butte

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Community Bank (the Bank). Kevin Hughes appeared for the defendants, Robert Ching, Eugene

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Even, Donald LeForce, Luther McLaughlin, Robert Morgan, James Richards, Gary Strauss,

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Hubert Townsend, John Coger, and Keith Robbins. The court now makes the following findings

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and orders:
JURISDICTION AND VENUE

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Jurisdiction is predicated on 12 U.S.C. § 18, et seq., 12 U.S.C. § 1819(b)(1) and

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(2), and 28 U.S.C. §§ 1331, 1345, and 1367. Jurisdiction and venue are not contested.

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JURY

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Both parties demand a jury trial. The jury will consist of eight jurors and two
alternates.

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UNDISPUTED FACTS

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The following core facts are undisputed by the Parties:

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1.
May 11, 1990.

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The Bank was incorporated under the laws of the State of California on

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At all times relevant to this action, the Bank was wholly owned by Community

Valley Bancorp (the “Holding Company”).

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3.

At all times relevant to this action, Defendant John Coger was a member of the

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Bank’s Board of Directors and the Bank’s Chief Financial Officer. Additionally, Coger was the

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Bank’s President from April 17, 2007 until August 20, 2010.

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4.

At all times relevant to this action, Coger was a member of the Holding

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Company’s Board of Directors, and the Holding Company’s Executive Vice President, Chief

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Financial Officer, and Chief Operating Officer. Additionally, Coger was the Holding Company’s

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President and Chief Executive Officer beginning in January 2010.

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5.

At all times relevant to this action, Defendant Keith Robbins was a member of the

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Bank’s Board of Directors. Robbins was the President of the Bank until April 17, 2007 and the

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Bank’s Chief Executive Officer until his retirement on December 31, 2009, and at all times prior

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that are relevant to this action.

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6.

At all times relevant to this action, Robbins was a member of the Holding

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Company’s Board of Directors. Additionally, Robbins was the Holding Company’s President

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and Chief Executive Officer until his retirement on December 31, 2009, and at all times prior that

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are relevant to this action.

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7.

Defendant Robert Ching was a member of the Bank’s Board of Directors and the

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Holding Company’s Board of Directors until June 2010, and at all times prior that are relevant to

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this action.

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Bank’s Board of Directors and the Holding Company’s Board of Directors.

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At all times relevant to this action, Defendant Robert Morgan was a member of the

Bank’s Board of Directors and the Holding Company’s Board of Directors.

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At all times relevant to this action, Defendant Luther McLaughlin was a member

of the Bank’s Board of Directors and the Holding Company’s Board of Directors.

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At all times relevant to this action, Defendant Donald Leforce was a member and

Chairman of both the Bank’s Board of Directors and the Holding Company’s Board of Directors.

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At all times relevant to this action, Defendant Eugene Even was a member of the

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At all times relevant to this action, Defendant James Rickards was a member of the

Bank’s Board of Directors and the Holding Company’s Board of Directors.

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13.

Defendant Gary Strauss was a member of the Bank’s Board of Directors and the

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Holding Company’s Board of Directors until June 2010, and at all times prior that are relevant to

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this action.

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14.

Defendant Hubert Townshend was a member of the Bank’s Board of Directors and

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the Holding Company’s Board of Directors until June 2010, and at all times prior that are relevant

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to this action.

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15.

In February 2008, the Bank completed the sale of seven of its branch buildings and

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properties for approximately $15,300,000 and concurrently leased back the branch buildings by

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entering into long term leases with the purchaser (the “Sale-Leaseback”).

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On March 13, 2008, the Holding Company publicly announced an offer to

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purchase up to 1,000,000 shares of Holding Company stock at $13.00 per share (the “Tender

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Offer”). The Tender Offer Statement the Holding Company filed with the Securities and

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Exchange Commission stated that several of its directors intended to participate in the Tender

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Offer and disclosed the number of shares those directors intended to tender.

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As of March 2008, the Holding Company held $4.2 million in cash that was later

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used to fund the Tender Offer in May 2008. On May 5, 2008, the Bank transferred $8,800,000 to

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the Holding Company in order to fund the remainder of the Tender Offer.

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On or about May 5, 2008, the Holding Company consummated the Tender Offer

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and distributed a total of $12,999,207 to shareholders who tendered and sold shares in the Tender

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Offer. As the Tender Offer was oversubscribed, tendering shareholders were permitted to sell

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only their pro rata share of the 999,939 shares repurchased by the Holding Company.

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Directly or indirectly, ten of the Bank’s thirteen directors participated in the

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Tender Offer. Defendants McLaughlin and Rickards did not tender or sell any shares in the

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Tender Offer. At the time of the Tender Offer, there were 7,662,715 shares of Holding Company

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common stock outstanding, of which, 2,120,164 shares were beneficially owned by the Bank’s

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directors.

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Ching’s medical practice 401k plan tendered 111,844 shares in the Tender Offer,

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and 70,889 of those shares were accepted for purchase by the Holding Company. Ching’s

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medical practice 401k plan received $921,557 in payment for those 70,889 shares.

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received $370,786 in payment for those 28,522 shares.

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Robbins tendered 75,000 shares in the Tender Offer, and sold 47,537 shares.

Robbins received $617,981 in payment for those 47,537 shares.

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Morgan tendered 73,916 shares in the Tender Offer, and sold 46,849 shares.

Morgan received $609,037 in payment for those 46,849 shares.

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Leforce tendered 20,000 shares in the Tender Offer, and sold 12,676 shares.

Leforce received $164,788 in payment for those 12,676 shares.

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Even tendered 20,044 shares in the Tender Offer, and sold 12,704 shares. Even

received $165,152 in payment for those 12,704 shares.

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Coger tendered 45,000 shares in the Tender Offer, and sold 28,522 shares. Coger

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Strauss tendered 45,000 shares in the Tender Offer, and sold 28,522 shares.

Strauss received $370,786 in payment for those 28,522 shares.

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Townshend tendered 25,000 shares in the Tender Offer, and sold 15,845 shares.

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Townshend received $205,985 in payment for those 15,845 shares.

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DISPUTED FACTUAL ISSUES
The FDIC Lists the Following Disputed Factual Issues

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1.

The defendants failed to exercise reasonable care by causing the Bank to issue an

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extraordinary $8,800,000 dividend in May 2008 (the “Dividend”), followed by additional

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dividends, at a time when the Bank’s income was falling, its classified assets were increasing, it

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was excessively concentrated in commercial loans and the real estate market was deteriorating.

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2.

The defendants engaged in an extreme departure from reasonable care by causing

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the Bank to issue the Dividend, followed by additional dividends, at a time when the Bank’s

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income was falling, its classified assets were increasing, it was excessively concentrated in

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commercial loans and the real estate market was deteriorating.

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Bank to distribute the Dividend and any subsequent dividends.

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The defendants violated their duties of loyalty to the Bank when they caused the

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Each defendant was motivated by self-interest either by manipulating the price of

his Holding Company stock or selling it at an above-market profit.

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The defendants failed to conduct adequate due diligence, analyze the financial

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implications of the Dividend, or obtain or review information provided by the Bank’s outside

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advisors or consultants prior to causing the Dividend to be distributed.

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6.

The Dividend violated the Bank’s Capital, Earnings and Dividend Policy.

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7.

The Dividend violated the Bank’s Asset/Liability Management Policy.

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8.

The Dividend violated the written agreement between the Bank and the Holding

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Company with respect to the distribution of dividends.

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9.

At the time the Dividend was issued, the defendants knew, or should have known,

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that the Bank’s financial condition had deteriorated and was facing a substantial risk of

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continuing financial decline.

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10.

At the time the Dividend was issued, the defendants knew, or should have known,

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that there was a material downturn taking place in the national, state and local real estate markets

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and there was a real risk of an historic decline.

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The defendants failed to follow proper internal procedures and industry custom in

causing the payment of the Dividend.

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At the time the Dividend was issued, the defendants knew or should have known

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that the distribution of the Dividend would result in the Bank no longer being a well-capitalized

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bank in violation of Bank policy.

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The Defendants List the Following Disputed Factual Issues

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decision to approve the Dividend.

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The defendants exercised more than the “scant care” required in making the

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The defendants exercised such care, including reasonable inquiry, as an ordinarily

prudent person in a like position would use in making the decision to approve the Dividend.

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3.

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Dividend.

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The defendants acted in good faith in approving the Dividend.

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In approving the Dividend, the defendants acted in what they believed to be the

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best interests of the Bank.

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The Bank does not deserve to recover “compensation” for paying out a portion of

its retained earnings to its sole shareholder.

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The defendants derived no benefit from the Dividend to the exclusion of other

Holding Company shareholders.

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The defendants engaged in adequate due diligence before deciding to approve the

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Neither the Bank nor its sole shareholder deserve “compensation” to replace the

sum of money the Bank previously paid out to its sole shareholder.

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9.

The Dividend did not cause the Bank to be inadequately capitalized.

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10.

The Dividend complied with the income, retained earnings, balance sheet and

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liquidity requirements set forth in California Corporations Code Section 501 and California

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Financial Code Section 1132.

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11.

The $4 million recovered by the Bank from the Holding Company on or about

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June 30, 2008 must be offset against any damages claimed by the Bank.

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12.

The $5.6 million net gain from the Sale-Leaseback must be offset against any

damages claimed by the Bank.

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13.

The sum total amount of the retirement benefits and deferred director

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compensation relinquished by the defendants must be offset against any damages claimed by the

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Bank.

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The Bank’s retention of the benefit of the aforementioned $4 million recovery,

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$5.6 million net gain from the Sale-Leaseback, or relinquished retirement benefits and deferred

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director compensation would constitute a double recovery or unjust enrichment if the Bank and

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the Holding Company were to also recover the monetary relief the FDIC-R seeks in this action.

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SPECIAL FACTUAL INFORMATION

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None applicable.

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DISPUTED EVIDENTIARY ISSUES AND MOTIONS IN LIMINE

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The FDIC-R moves in limine to preclude the defendants from presenting evidence

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or argument referencing the following matters:

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1.

Evidence about the “Great Recession.”

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2.

Evidence of reasons for failure of Bank and/or the decision to close the bank.

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Evidence regarding FDIC-R’s marketing, negotiation, and sale of Bank assets to

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Rabobank or the consideration therefor (deposits at a premium).
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Evidence regarding number of FDIC receiverships after May 5, 2008 and any

reference to other D&O lawsuits brought by FDIC.

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FDIC or state examination reports issued after May 5, 2008.

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Evidence of actions taken by Defendants after May 5, 2008 to allegedly remedy

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the financial problems of the Bank.

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Evidence of subsequent purchase of Holding Company stock after June 30, 2008.

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Documents not timely produced in discovery.

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Witnesses not timely identified in discovery.

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10.

Evidence regarding any lost retirement benefits and deferred director

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compensation allegedly lost by the Defendants as a result of the failure of the Bank.
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Evidence regarding the financial condition of the Defendants after June 30, 2008

and how much money they lost from the failure of the Bank.

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Evidence of the FDIC-R’s settlement with the Holding Company of tax claims.

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Evidence of the bankruptcy by Ellis Matthews.

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Opinions contained in the expert reports of Steven Clinton and Joe Hargett.

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The defendants move in limine to preclude the FDIC from presenting evidence or argument

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referencing the following matters:

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The opinions contained in the expert reports of Christopher Thornberg, Charles D.

Kenny and D. Paul Regan.

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2.

Any item of damages other than those expressly identified by Susan Salerno,

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Plaintiff’s designated 30(b)(6) witness on the subject of damages, in her September 3, 2015

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deposition.

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3.

Any risk of harm to or claim of harm suffered by (i) a creditor or depositor or

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former employee of the Bank, (ii) the FDIC in its corporate capacity, (iii) the FDIC as receiver; or

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(iv) the deposit insurance fund.

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the May 5, 2008 $8.8 million dividend identified in paragraph 4 of the Complaint.

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Any claim for relief or for damages allegedly arising from a dividend other than

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The closure of the Bank, the purported “failure” of the Bank, and any liabilities or

losses ultimately incurred by the Bank subsequent to the time period relevant to this action.

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6.

Inadmissible opinion testimony of witnesses who express lay opinions on matters

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they have not personally observed or expert opinions on matters for which they have neither been

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qualified or properly designated as an expert in this action, including such testimony of Richard

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Tuohey, Adam Keefer, Peter Buck, Murray Bodine, Gary Findley and Robert Hartline.

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email by Defendant Keith Robbins on or about May 6, 2008.

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The political cartoon depicting a lemonade stand in front of a house forwarded via

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Luther McLaughlin’s October 11, 2009 email re Some Additional Thoughts.

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How the FDIC-R might distribute any potential recovery of monetary relief in this

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Any facts or documents not timely produced in discovery.

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Any deposition testimony given outside the presence of Defendants or their

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action.

counsel.

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The court will make rulings on these motions on the first day of trial. If a party

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wishes to contest a pretrial ruling, it must do so through a proper motion or objection, or

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otherwise forfeit appeal on such grounds. See Fed. R. Evid. 103(a); Tennison v. Circus Circus

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Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) (“Where a district court makes a tentative in

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limine ruling excluding evidence, the exclusion of that evidence may only be challenged on

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appeal if the aggrieved party attempts to offer such evidence at trial.”) (alteration, citation and

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quotation omitted). In addition, challenges to expert testimony under Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579 (1993), are denied without prejudice. Should a party wish to

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renew a Daubert challenge at trial, it should alert the court, at which point the court may grant

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limited voir dire before such expert may be called to testify.

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STIPULATIONS AND AGREED STATEMENTS

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The Parties have not entered into any stipulations relevant at this time for pretrial
or trial purposes.

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The Parties do not believe that it would be feasible or advisable to present all or
part of the action to the jury by way of an agreed statement of facts.

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RELIEF SOUGHT

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The FDIC-R claims $10,915,786.61 in damages, plus applicable pre-judgment

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interest. This figure is comprised of the $8,800,000 the Bank transferred to the Holding

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Company on May 5, 2008, and $2,115,788.61 in subsequent transfers in 2008 and 2009.

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POINTS OF LAW

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The parties have provided the following summary points of law. Trial briefs of no

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more than ten pages addressing these points more completely shall be filed with this court no later

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than seven days prior to the date of trial in accordance with Local Rule 285.

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The FDIC-R’s Points of Law

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In its Complaint for Negligence, Gross Negligence, Breach of Fiduciary Duties,

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Plaintiff pled four claims for relief: (1) common law negligence; (2) violation of 12 U.S.C.

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§ 1821(k); (3) violation of Cal. Corp Code § 309; and (4) common law breach of fiduciary duties.

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(Dkt. No. 1.) The Court dismissed Plaintiff’s common law claims in its July 8, 2014 Order

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granting in part and denying in part Defendants’ first motion for summary judgment, finding that

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such claims are “preempted by statute and must be brought under the applicable statute.” (Dkt.

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No. 40 at 7:19-21.)

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Plaintiff intends to set forth the full factual and legal basis for its claims in its

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forthcoming trial brief; however, Plaintiff’s claims are based on allegations that Defendants

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caused the Bank to issue an extraordinary $8.8 million dividend, and subsequent dividend that

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substantially benefited each of the Defendants in violation of Bank policies and without

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considering their impact on the safety and soundness of the institution at a time when the

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Defendants recognized that Bank had declining income, overwhelmingly excessive loan

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concentration, increasing classified loans and was operating in a turbulent and uncertain

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economic environment.

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1.

Cal. Corp. Code § 309
In its July 8, 2014 Order, the Court denied summary judgment on Plaintiff’s claim

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under California Corporations Code section 309 claim and held that the statute “codif[ies]

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common law principles . . . [and] provides a statutory basis for preexisting common-law

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liability.” Order July 7, 2014, at 9–10, ECF No. 40. The Court later reaffirmed this holding in its

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July 27, 2015 Order denying Defendants’ second motion for summary judgment. See Order

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July 27, 2015, at 12, ECF No. 86. Accordingly, Plaintiff’s cause of action under California

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Corporations Code section 309 encompasses claims for negligence, gross negligence (to the
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extent necessary to defeat certain of Defendants’ affirmative defenses), and breach of the

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fiduciary duty of loyalty.

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To state a claim for negligence, Plaintiff must prove that: (1) Defendants were negligent;

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(2) Plaintiff was harmed; and (3) Defendants’ negligence was a substantial factor in

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causing Plaintiff’s harm. See Judicial Counsel of California, Civil Jury Instructions

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(Spring 2016) (“CACI”) No. 400. Negligence under California Corporations Code section

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309 is determined based on an “ordinarily prudent person” standard. See Order July 7,

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2014, at 8; Order July 27, 2015, at 12; Cal. Corp. Code §309(a); Lehman v. Superior

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Court, 145 Cal. App. 4th 109, 120 (2006); F.D.I.C. v. Castetter, 184 F.3d 1040, 1044 (9th

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Cir. 1999).
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To state a claim for gross negligence, Plaintiff must prove that: (1) Defendants were

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grossly negligent; (2) Plaintiff was harmed; and (3) Defendants’ gross negligence was a

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substantial factor in causing Plaintiff’s harm. See CACI Nos. 400, 425. Gross negligence

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is a “lack of any care or an extreme departure from what a reasonably careful person

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would do in the same situation.” CACI No. 425; City of Santa Barbara v. Superior Court,

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41 Cal. 4th 747, 754 (2007). The business judgment rule is not a defense to gross

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negligence. Katz v. Chevron Corp., 22 Cal. App. 4th 1352, 1366 (1994) (“Under the

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business judgment rule[,] director liability is predicated upon concepts of gross

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negligence.”).

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To state a claim for breach of the fiduciary duty of loyalty, Plaintiff must prove that:

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(1) Defendants were officers and/or directors of the Bank; (2) Defendants acted against

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the Bank’s interests; (3) the Bank did not give its informed consent to Defendants’

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conduct; (4) the Bank was harmed; and (5) Defendants’ conduct was a substantial factor

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in causing the Bank’s harm. See CACI Nos. 4100, 4202; Lehman, 145 Cal. App. 4th at

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121 (discussing fiduciary duties in the context of Cal. Corp. Code § 309); Berg & Berg

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Enters., LLC v. Boyle, 178 Cal. App. 4th 1020 (2009) (stating that Cal. Corp. Code § 309

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reflects common law duties of honesty, loyalty and good faith).

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2.

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12 U.S.C. § 1821(k)
12 U.S.C. § 1821(k) sets a floor of gross negligence governing the conduct of

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directors and officers, which applies only as a substitute in the event that there are more relaxed

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state standards. Atherton v. FDIC, 519 U.S. 213, 227 (1997); Castetter, 184 F.3d at 1043. In its

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July 8, 2014 Order, the Court found that California’s “simple negligence standard is stricter than

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the gross negligence floor stated in 12 U.S.C. § 1821(k),” and held that Plaintiff’s 12 U.S.C.

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§ 1821(k) claim is “analyzed under the same standard as its claim under [California Corporations

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Code section 309].” Order July 8, 2014, at 8. The Court reiterated this holding in its July 27,

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2015 Order. Order July 27, 2015, at 12–13. Accordingly, Plaintiff’s 12 U.S.C. § 1281(k) claim

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encompasses the negligence and gross negligence claims described above with respect to

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California Corporations Code section 309.

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3.

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Business Judgment Rule
Defendants intend to claim at trial that the business judgment rule provides a

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complete defense to Plaintiff’s claims. Under California’s business judgment rule, a director

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must act in good faith and upon reasonable inquiry in order to obtain the protection of this rule.

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See Cal. Corp. Code § 309; Berg & Berg, 178 Cal. App. 4th at 1045. The business judgment rule

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does not apply where there is a conflict of interest, fraud, oppression, corruption, or where a

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director has failed to make a reasonable investigation or abdicated his or her responsibilities. See

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Order July 27, 2015, at 7; F.D.I.C. v. Faigin, No. 12-3448, 2013 WL 3389490, at *5 (C.D. Cal.

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Jul. 8, 2013) (“As a matter of policy a director with a personal interest in the transaction should

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not benefit from the business judgment rule.”); F.D.I.C. v. Castetter, 184 F.3d 1040 (9th Cir.

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1999) (acknowledging reasonable investigation requirement); Berg, 178 Cal. App. 4th at 1045

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(noting that the business judgment rule “does not shield actions taken without reasonable inquiry,

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with improper motives, or as a result of a conflict of interest.”) (citing Everest Investors 8 v.

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McNeil Partners, 114 Cal. App. 4th 411 (2004)). It is also does not insulate the actions of bank

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officers. See FDIC v. Perry, No. 11-5561, 2012 WL 589569, at *3. (C.D. Cal. Feb. 21, 2012)

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(“California’s statutory BJR does not extend its protection to corporate officers . . . .”)

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4.

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Injury in Fact and Damages
With regard to the issue of injury in fact, “[b]ecause all rights of the Bank and

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other stakeholders are vested in the FDIC as receiver, injury to any of them constitutes injury to

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the FDIC.” Order July 27, 2015, at 6 (citing 12 U.S.C. § 1821(d)(2)(A) and Pareto v. FDIC,

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139 F.3d 696, 700 (9th Cir. 1998)). This Court has ruled that Plaintiff’s claims, if proven, are

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sufficient to establish injury in fact. Id. (“These transactions allegedly reduced the Bank’s ability

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to respond to financial distress, prevented it from meeting its financial obligations, and eventually

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led to its failure.”). The FDIC-Receiver stands in the shoes of various stakeholders in the Bank,

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including the Bank itself, that were harmed by Defendants’ actions and can recover for damage to

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the Bank. See 12 U.S.C. § 1821(k); Order July 27, 2015, at 9–10.

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Transactions motivated by director self-interest are also actionable for resulting

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damages. See Faigin, 2013 WL 3389490 at *13 (noting a transaction otherwise permissible

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under applicable law may constitute corporate waste where motivated by a director’s personal

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stake in the transaction); Sinclair Oil Corp. v. Levien, 280 A.2d 717, 722 (Del. 1971) (applying

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Delaware law) (recognizing that a dividend from a company to its corporate parent may call for

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an accounting and damages if “the dividend payments resulted from improper motives and

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amounted to waste”); In re Se. Banking Corp., 855 F. Supp. 353, 358–59 (S.D. Fla. 1994)

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(denying motion to dismiss despite technical compliance with dividend requirements, since

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plaintiff alleged that dividends were not grounded in a reasonable business purpose, but rather

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were issued for the improper purpose of concealing defendants’ mismanagement of the bank.).

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California law does not permit corporate directors to siphon money out of a corporation to

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themselves. See Order July 27, 2015, at 7 (citing Kruss v. Booth, 185 Cal. App. 4th 699, 714

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(2010)).

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The Defendants’ Points of Law

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1.

The Business Judgment Rule Defense
In performing the duties of a director, defendant shall be entitled to rely on

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information, opinions, reports or statements, including financial statements and other financial

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data, in each case prepared or presented by any of the following: (a) One or more officers or
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employees of the Bank whom the defendant believes to be reliable and competent in the matters

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presented. (b) Counsel, independent accountants or other persons as to matters which the

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defendant believes to be within such person's professional or expert competence. (c) A

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committee of the board upon which the defendant does not serve, as to matters within its

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designated authority, which committee the defendant believes to merit confidence, so long as, in

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any such case, the defendant acts in good faith, after reasonable inquiry when the need therefor is

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indicated by the circumstances and without knowledge that would cause such reliance to be

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unwarranted.

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If the trier of fact finds that a defendant complied with the above and also

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performed his duties to the Bank in good faith, in a manner the defendant believes to be in the

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best interests of the Bank and its shareholder THE HOLDING COMPANY, and with such care,

12

including reasonable inquiry, as an ordinarily prudent person in a like position would use under

13

similar circumstances, then the defendant cannot be found liable. Cal. Corp. Code Section

14

309(a), (b) and (c).

15

(a) The phrase “under similar circumstances” is intended to make sure that the

16

director’s performance is judged based on the circumstances at the time and not judged with the

17

benefit of hindsight. Legislative Committee Comments to Cal. Corp. Code Section 309.

18

(b) The business judgment rule is intended to protect a director from liability for a

19

“mistake in business judgment which is made in good faith and in what he or she believes to be

20

the best interest of the corporation, where no conflict of interest exists.” Castetter, 184 F.3d

21

at 1044.

22

(c) “Under California law, a ‘prima facie showing of good faith and reasonable

23

investigation is established when a majority of the board is comprised of outside directors and the

24

board’ has received the advice of independent consultants.” Id. at 1045 (quoting Katz v. Chevron

25

Corp., 22 Cal. App. 4th 1352 (1994)).

26

(d) A director’s personal interest in a corporate distribution to shareholders will

27

disqualify the director from the business judgment rule’s protection only if the director derives

28

some benefit from the distribution to the exclusion of other shareholders. Rich v. Shrader, 2010
14

1

WL 3717373, *7 (S.D. Cal. 2010); Sinclair Oil Corp. v. Levien, 280 A.2d 717, 720–21

2

(Del. 1971); Metro. Cas. Ins. Co. v. First State Bank of Temple, 54 S.W.2d 358, 360

3

(Tex. Civ. App. 1932), rev’d. on other grounds, 79 S.W.2d 835 (Tex. 1935).

4

2.

Standard of Care

5

(a) A plaintiff may not use hindsight to substitute a new, more stringent standard

6

of care at trial to replace the standard of care known by defendant to be applicable to defendant’s

7

conduct at the time of the alleged injury. N.N.V. v. Am. Ass’n of Blood Banks, 75 Cal. App. 4th

8

1358, 1384–85 (1999).

9

(b) “The circumstances to be considered in deciding defendant’s negligence are

10

those which the evidence shows may reasonably be supposed to have been known to such person,

11

and to have influenced his mind and actions at the time. . . . Negligence is not to be determined

12

by hindsight nor by what a party subsequently learns.” Scarano v. Schnoor, 158 Cal. App. 2d

13

612, 622 (1958).

14

3.

15

Damages
(a) When a corporate payment of funds is sued upon as “excessive,” the amount

16

of recoverable damages is limited to that portion of the distribution that is established to be

17

“excessive.” See Rogers v. Hill, 289 U.S. 582, 592 (1933) (in action by corporation’s shareholder

18

against corporate president and vice presidents for excessive compensation, Supreme Court

19

directed district court to determine to what extent payments constituted misuse of corporate

20

funds); Albers v. Villa Moret, 46 Cal. App. 2d 54, 58 (1941) (in suit by shareholder plaintiffs

21

alleging excessive compensation, affirming judgment for defendants where there was a failure of

22

proof as to what would have constituted reasonable salaries); Jara v. Suprema Meats, Inc.,

23

121 Cal. App. 4th 1238, 1259–60 (2004) (excessive compensation as akin to dividends).

24
25
26

(b) A plaintiff’s successful efforts to mitigate its damages result in an offset of the
amount recovered. Krusi v. Bear, Stearns & Co., 144 Cal. App. 3d 664, 673 (1983).
(c) The general theory of compensatory damages bars double recovery for the

27

same wrong. 6 Witkin, Summary of California Law 10th (2005) Torts §1550. The classic case of

28

double recovery occurs where joint or concurrent tortfeasors or co-obligors are jointly and
15

1

severally liable for the same wrong. Roby v. McKesson Corp., 47 Cal. 4th 686, 702 (2009). Only

2

one complete satisfaction is permissible, and if partial satisfaction is received from one, the

3

liability of the other will be correspondingly reduced via the doctrine of offset. See Ash v.

4

Mortensen, 24 Cal. 2d 654, 658, 660 (1944). A shareholder can also be held liable to the

5

corporation for an allegedly improper dividend and thus may be a joint tortfeasor. California

6

Corporations Code §506(a) (a shareholder who receives a wrongful dividend with knowledge of

7

the facts “indicating the impropriety thereof” is liable to the corporation for the amount of such

8

dividend plus interest).

9

4.

Standing/Capacity to Sue

10

(a) The FDIC-R has no greater right to bring suit than the entities on whose behalf

11

it is suing. O’Melveny & Myers v. FDIC, 512 U.S. 79, 86 (1994) (“[T]he FDIC as receiver ‘steps

12

into the shoes’ of the [bank], obtaining the rights ‘of the depository institution’ that existed prior

13

to receivership.” (emphasis added)).

14
15

(b) The FDIC-R does not have the standing to sue on behalf of creditors other
than accountholders or depositors. See 12 U.S.C. §1821(d)(2)(A)(i).

16

(c) Creditors, including depositors and other accountholders, are not entitled to

17

bring claims under Section 309. See, e.g., Cal. Corp. Code §309(a); Copesky v. Superior Court

18

229 Cal. App. 3d 678, 692 (1991) (the relationship between a bank and its depositor is debtor-

19

creditor).

20

(d) A bank does not have a fiduciary duty to its depositors or other creditors.

21

Copesky, 229 Cal. App. 3d at 692, 694 (banks “are not fiduciaries for their depositors”); Roberts

22

v. UBS AG, No. 12-0724, 2013 WL 1499341, at *11 (E.D. Cal. Apr. 11, 2013) (a bank is not in a

23

fiduciary relationship with its depositors).

24

(e) So long as a bank is solvent, the bank’s directors owe no fiduciary duties to the

25

bank’s creditors, including depositors or other accountholders, under California law. Berg &

26

Berg, 178 Cal. App. 4th at 1041; Pittelman v. Pearce, 6 Cal.App.4th 1436 (1992); see also In re

27

Jacks, 266 B.R. 728, 738 (9th Cir. B.A.P. 2001) (“[A] director’s fiduciary duties to creditors do

28

not arise until the corporation is insolvent . . . .”).
16

1

5.

2

Other Affirmative Defenses Subject to Pending Motions
Negligence and gross negligence claims against corporate directors are governed

3

by the two-year statute of limitations period set forth in Cal. Code of Civil Procedure §339(1).

4

See, e.g., Burt v. Irvine, 237 Cal. App. 2d 828, 865 (1965) (applying two year statute of

5

limitations for action upon liability not founded upon an instrument of writing applies to action

6

against corporate directors for negligence); Cooke v. Odell, 59 Cal. App. 2d 820, 829 (1943).

7

Once a claim is time-barred under state law, appointment of the FDIC-R as receiver cannot revive

8

that claim. See McSweeney, 976 F.2d at 534.

9

ABANDONED ISSUES

10

In their February 12, 2016 opposition to the FDIC-R’s motion partial summary

11

judgment, ECF No. 128, the defendants withdrew their second (estoppel), third (waiver), fourth

12

(laches), ninth (failure to mitigate), eleventh (contributory and comparative negligence), and

13

fourteenth (supervening causation) affirmative defenses.

14

WITNESSES

15
16
17

The FDIC-R’s witnesses are listed in Attachment A. The defendants’ witnesses
are listed in Attachment B. Each party may call any witnesses designated by the other.
A.

18

The court will not permit any other witness to testify unless:
(1)

The party offering the witness demonstrates that the witness is for the

19

purpose of rebutting evidence that could not be reasonably anticipated at

20

the pretrial conference, or

21

(2)

22
23

The witness was discovered after the pretrial conference and the proffering
party makes the showing required in “B,” below.

B.

Upon the post pretrial discovery of any witness a party wishes to present at trial,

24

the party shall promptly inform the court and opposing parties of the existence of

25

the unlisted witnesses so the court may consider whether the witnesses shall be

26

permitted to testify at trial. The witnesses will not be permitted unless:

27

(1)

28

The witness could not reasonably have been discovered prior to the
discovery cutoff;
17

1

(2)

2

The court and opposing parties were promptly notified upon discovery of
the witness;

3

(3)

If time permitted, the party proffered the witness for deposition; and

4

(4)

If time did not permit, a reasonable summary of the witness’s testimony

5

was provided to opposing parties.

6

EXHIBITS, SCHEDULES AND SUMMARIES

7
8

Joint exhibits are listed in Attachment C. Joint Exhibits shall be identified as JX
and listed numerically, e.g., JX-1, JX-2.

9
10

The FDIC-R’s exhibits are identified in Attachment D. At trial, plaintiff’s exhibits
shall be listed numerically.

11

The defendants’ exhibits are identified on attachment E. At trial, defendant’s

12

exhibits shall be listed alphabetically, first A, B, C, etc., then AA, AB, AC, etc., and then A-1,

13

A-2, A-3, etc.

14

All exhibits must be premarked.

15

The parties must prepare exhibit binders for use by the court at trial, with a side tab

16

identifying each exhibit in accordance with the specifications above. Each binder shall have an

17

identification label on the front and spine.

18
19
20

The parties must exchange exhibits no later than twenty-eight days before trial.
Any objections to exhibits are due no later than fourteen days before trial.
A.

The court will not admit exhibits other than those identified on the exhibit lists

21

referenced above unless:

22

(1)

The party proffering the exhibit demonstrates that the exhibit is for the

23

purpose of rebutting evidence that could not have been reasonably

24

anticipated, or

25

(2)

26
27
28

The exhibit was discovered after the issuance of this order and the
proffering party makes the showing required in Paragraph “B,” below.

B.

Upon the discovery of exhibits after the discovery cutoff, a party shall promptly
inform the court and opposing parties of the existence of such exhibits so that the
18

1

court may consider their admissibility at trial. The exhibits will not be received

2

unless the proffering party demonstrates:

3

(1)

The exhibits could not reasonably have been discovered earlier;

4

(2)

The court and the opposing parties were promptly informed of their

5
6

existence;
(3)

The proffering party forwarded a copy of the exhibits (if physically

7

possible) to the opposing party. If the exhibits may not be copied the

8

proffering party must show that it has made the exhibits reasonably

9

available for inspection by the opposing parties.

10
11

DISCOVERY DOCUMENTS
Counsel must lodge the sealed original copy of any deposition transcript to be used

12

at trial with the Clerk of the Court on the first day of trial. However, to the extent the parties

13

agree that certified copies of certain depositions may be used in lieu of sealed originals, the court

14

approves such use.

15

Discovery Materials the FDIC-R Intends to Use at Trial

16

The FDIC-R intends to offer the following portions of depositions, answers to

17

interrogatories and responses to requests for admission at trial. Videotaped deposition counter-

18

designations are listed in bold. The parties are directed to meet and confer to identify objections

19

to deposition material and alert the court promptly to objections that require resolution prior to

20

playing a videotaped deposition during trial.

21
22

1. Depositions
a) Peter Buck (Aug. 26, 2015): 6:12-14, 8:9-18, 9:18-11:19, 13:22-15:17, 17:9-18:9, 21:23-

23

22:23, 24:24-25:15, 26:20-27:2, 27:19-28:19, 29:13-18, 30:1-32:10, 32:22-36:10, 39:2-18,

24

40:20-41:10, 43:17-44:11, 49:14-18, 51:3-53:4, 57:25-59:3, 62:5-24, 64:13-65:9, 66:2-67:9,

25

75:19-25, 82:14-83:14.

26

b) Peter Buck (Mar. 6, 2013): 5:13-15, 44:20-41:12, 45:17-47:19, 51:21-53:7, 96:6-97:10.

27

c) Murray Bodine (Aug. 25, 2015): 6:23-7:5, 7:10-8:8, 9:6-23, 10:7-11:11, 14:6-16:15, 19:7-

28

22:10, 24:4-29:6, 30:18-33:12, 33:13-36:1, 36:4-36:7, 32:2-8, 40:3-41:13, 45:7-46:14, 47:3-8,
19

1

47:19-48:18, 49:9-50:12, 50:19-51:3, 52:6-17, 53:1-18, 54:10-56:9, 59:6-25, 60:8-23, 65:17-

2

66:16, 66:19-67:22, 69:1-70:4, 76:10-15, 99:23-100:1, 108:25-111:5, 111:25-112:5, 120:15-

3

121:22, 124:18-125:10, 126:13-127:3.

4

d) Murray Bodine (Mar. 20, 2013): 46:17-47:12, 48:8-21, 49:8-50:1.

5

e) Gary Findley (Sept. 8, 2015): 7:9-10, 10:14-17, 12:13-25: 13:1-14, 15:21-25, 16:1-12, 22:3-

6

11, 20:11-25, 21:1-25, 22:1-2, 22:18-22, 22:23-25, 23:1-5, 28:1-6, 30:2-10, 30:17-21, 31:2-

7

17, 33:17-25, 34:1-13, 38:22-25, 39:1-25, 40:1-2, 46:6-12, 48:9-18, 49:8-25, 50:1-25, 54:8-

8

12, 53:1-13, 55:23-25, 56:1-10, 56:11, 57:12-25, 58:10-59:1, 59:8-17, 62:12-25, 63:11-15,

9

64:15-21, 65:16-19, 67:2-6, 67:14-25, 68:1-122, 69:4-25, 70:1-5, 71:12-24, 72:1-25, 73:1-5,

10

74:16-21, 75:2-8, 75:22-25, 76:15-25, 77:7-21, 78:2-25, 79:1-11, 80:11-25, 81:1-3, 81:9-25,

11

82:1-7, 83:7-84:1, 84:15-19, 85:3-7, 87:4-25, 88:1-9, 89:2-25, 90:13-91:1, 91:12-25, 92:1-25,

12

93:1-2, 93:9-16, 94:7-17, 95:17-20, 96:16-23, 97:22-25, 98:1-18, 99:14-25, 100:1-6, 100:15-

13

25, 101:1-7, 103:14-24, 104:9-105:1, 105:21-25, 106:11-14, 107:24-25, 108:1-16, 109:1-2,

14

110:1-25, 111:1-19, 112:14-25, 113:1-10, 113:16-19, 114:1-4, 116:2-25, 117:1-19, 118:22-25,

15

119:18-120:1, 125:9-15, 126:1-3, 128:1-5, 128:6-23, 129:20-25, 130:1-4, 131:3-18, 132:8-14,

16

132:18-25, 135:2-10, 136:7-14, 137:18-25, 138:16-17, 138:18-25, 139:1-3, 139:9-25, 140:1-

17

3, 140:10-17, 140:18-25, 141:1-4, 143:16-25, 144:1-14, 151:17-20, 156:10-22, 162:2-10,

18

163:15-21, 165:17-22, 169:19-22, 170:7-24, 172:8-25, 173:1-25, 174:1-175:6, 176:10-177:16,

19

178:10-16, 179:1-3, 181:7-182:3, 184:9-25, 185:1-12, 186:1-21, 186:14-21, 191:7-11,

20

194:24-25, 195:15-19, 196:1-197:2, 199:2-4, 204:9-11, 207:25, 208:1-25, 209:1-4, 209:13-

21

25, 209:20-23, 210:1-10, 210:22-25, 211:1-6, 212:23-214:2, 216:11-25, 217:1-11, 217:6-11,

22

218:12-219:12, 223:5-18, 222:20-25, 223:1-4, 224:16-25, 225:1-4, 226:11-14, 230:23-233:9,

23

233:14-234:6, 235:15-238:1, 238:15-139:6, 239:24-240:4, 240:19-23, 241:9-25, 244:23-24,

24

245:5-246:19, 247:6-10, 247:21-24, 248:3-9, 248:18-25, 249:1-10, 250:20-23, 250:24-25,

25

251:1-14, 252:14-21, 265:9-13, 354:8-9, 367:22-25, 368:1-25, 374:5-19, 374:20-25, 375:1-

26

12, 375:24-25, 376:1-25, 377:6, 378:10-11.

27

/////

28

/////
20

1

f) Gary Findley (Feb. 22, 2013): 34:20-25, 35:1-6, 48:6-25, 49:1-9, 55:8-12, 76:8-14, 91:23-25,

2

92:1-13, 98:6-19, 111:5-25, 112:1-7, 113:2-25, 118:1-22, 119:23-25, 120:1-17, 122:6-11,

3

125:15-25, 126:1-6.

4

g) Robert Hartline (Aug. 19, 2015): 6:6-8, 8:17-9:19, 12:21-23, 33:16-19, 34:3-8, 34:18-35:3,

5

35:10-13, 40:2-5, 47:23-48:15, 49:15-21, 49:24-25, 50:2-5, 63:18-24, 63:25-64:22, 64:23-

6

65:5, 64:23-65:17, 65:18-66:1, 66:2-10, 66:2-21, 67:6-20, 69:16-21, 70:7-73:5, 74:11-12,

7

74:17-75:1, 75:8-9, 75:19-24, 76:4-20, 77:19-78:20, 82:1-85:7, 85:8-86:18, 86:19-87:2,

8

87:23-88:6, 89:20-23, 90:10-15, 91:22-92:2, 92:5-6, 96:18-21, 96:22-97:3, 99:15-19, 102:10-

9

14, 103:21-104:11, 109:2-110:12, 111:11-112:18, 114:8-19, 120:2-122:6, 122:19-126:23,

10

128:5-18, 130:18-131:5, 131:13-15, 132:12-134:22, 139:14-140:1, 141:15-142:11, 142:20-

11

143:23, 144:18-145:4.

12
13

h) Adam Keefer (Aug. 26, 2015): 6:15-20, 7:23-9:12, 10:20-11:22, 48:14-50:10, 55:18-60:24,
61:7-62:3, 67:2-71:4.

14

i) Susan Salerno (Sept. 3, 2015): 17:2-10, 24:4-7.

15

j) Richard Tuohey (Aug. 25, 2015): 7:13-16, 9:25-10:5, 72:22-73:7, 73:20-75:12, 75:22-25,

16

76:1-77:3, 80:6-81:4, 86:7-89:15, 94:20-96:4, 98:9-101:6, 102:10-19; 103:14-105:6, 106:6-

17

110:10, 112:15-113:6, 114:5-18.

18
19

k) Mary Viereck (Sept. 2, 2015): 13:18-19, 45:13-16, 70:5-20, 82:10-25, 83:1-9.
2.

Responses to Interrogatories

20

a) Defendant Robert Ching’s Response to Plaintiff’s First Set of Interrogatories (Jan. 19, 2015)

21

b) Defendant Eugene Even’s Response to Plaintiff’s First Set of Interrogatories (Jan. 19, 2015)

22

c) Defendant Donald Leforce’s Response to Plaintiff’s First Set of Interrogatories (Jan. 19,

23
24
25

2015)
d) Defendant Luther McLaughlin’s Response to Plaintiff’s First Set of Interrogatories (Jan. 19,
2015)

26

e) Defendant Robert Morgan’s Response to Plaintiff’s First Set of Interrogatories (Jan. 19, 2015)

27

f) Defendant James Rickards’ Response to Plaintiff’s First Set of Interrogatories (Jan. 19, 2015)

28

g) Defendant Gary Strauss’ Response to Plaintiff’s First Set of Interrogatories (Jan. 19, 2015)
21

1
2

h) Defendant Hubert Townshend’s Response to Plaintiff’s First Set of Interrogatories (Jan. 19,
2015)

3

i) Defendant John Coger’s Response to Plaintiff’s First Set of Interrogatories (Jan. 19, 2015)

4

j) Defendant Keith Robbins’ Response to Plaintiff’s First Set of Interrogatories (Jan. 19, 2015)

5

k) Defendant Robert Ching’s Response to Plaintiff’s Second Set of Interrogatories (Sept. 8,

6

2015); Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10,

7

2015)

8
9
10
11

l) Defendant Eugene Even’s Response to Plaintiff’s Second Set of Interrogatories (Sept. 8,
2015); Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10,
2015)
m) Defendant Donald Leforce’s Response to Plaintiff’s Second Set of Interrogatories (Sept. 8,

12

2015); Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10,

13

2015)

14

n) Defendant Luther McLaughlin’s Response to Plaintiff’s Second Set of Interrogatories

15

(Sept. 8, 2015); Supplemental Response (October 27, 2015); Second Supplemental Response

16

(Nov. 10, 2015)

17

o) Defendant Robert Morgan’s Response to Plaintiff’s Second Set of Interrogatories (Sept. 8,

18

2015); Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10,

19

2015)

20

p) Defendant James Rickards’ Response to Plaintiff’s Second Set of Interrogatories (Sept. 8,

21

2015); Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10,

22

2015)

23

q) Defendant Gary Strauss’ Response to Plaintiff’s Second Set of Interrogatories (Sept. 8, 2015);

24

Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10, 2015)

25

r) Defendant Hubert Townshend’s Response to Second Set of Interrogatories (Sept. 8, 2015);

26

Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10, 2015)

27

s) Defendant John Coger’s Response to Plaintiff’s Second Set of Interrogatories (Sept. 8, 2015);

28

Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10, 2015)
22

1

t) Defendant Keith Robbins’ Response to Plaintiff’s Second Set of Interrogatories (Sept. 8,

2

2015); Supplemental Response (October 27, 2015); Second Supplemental Response (Nov. 10,

3

2015)

4

3.

5

a) Defendant Robert Ching’s Supplemental Response to Plaintiff’s First Set of Requests for

6
7

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
b) Defendant Eugene Even’s Supplemental Response to Plaintiff’s First Set of Requests for

8
9

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
c) Defendant Donald Leforce Supplemental Response to Plaintiff’s First Set of Requests for

10
11

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
d) Defendant Luther McLaughlin Supplemental Response to Plaintiff’s First Set of Requests for

12
13

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
e) Defendant Robert Morgan’s Supplemental Response to Plaintiff’s First Set of Requests for

14
15

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
f) Defendant James Rickards’ Supplemental Response to Plaintiff’s First Set of Requests for

16
17

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
g) Defendant Gary Strauss’ Supplemental Response to Plaintiff’s First Set of Requests for

18
19

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
h) Defendant Hubert Townshend’s Supplemental Response to Plaintiff’s First Set of Requests

20
21

for Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
i) Defendant John Coger’s Supplemental Response to Plaintiff’s First Set of Requests for

22
23

Requests for Admission

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)
j) Defendant Keith Robbins’ Supplemental Response to Plaintiff’s First Set of Requests for

24

Admission (Oct. 27, 2015); Second Supplemental Response (Nov. 10, 2015)

25

/////

26

/////

27

/////

28

/////
23

1

Discovery Documents the Defendants Intend to Offer at Trial

2

1.

Depositions

3

a) Peter Buck (March 6, 2013): 21:1-16.

4

b) Peter Buck (Aug. 26, 2015): 5:22-6:4, 8:9-11:19, 13:22-14:19, 15:6-10, 21:17-22, 27:5-10,

5

39:19-23, 42:2-43:16, 44:23-45:15, 50:16-24, 51:3-52:7, 59:4-60:21, 61:15-62:24, 64:8-12,

6

69:22-71:9, 73:10-74:20, 75:17-76:19.

7

c) Murray Bodine (March 2013): 14:2-11, 40:16-41:8, 48:22-49:7.

8

d) Murray Bodine (Aug. 25, 2015): 6:23-7:8, 9:15-23, 10:7-12, 11:14-21, 14:12-15, 15:1-13,

9

15:16-16:22, 17:4-19:6, 20:21-21:20, 24:4-25:3, 27:20-28:23, 30:22-31:16, 34:14-36:7,

10

46:15-47:1, 48:22-49:8, 53:19-23, 58:22-59-5,70:6-73:16, 83:12-85:3, 86:24-87:3, 94:8-

11

101:2, 103:10-104:11, 112:4-18, 118:23-120:12.

12

e) Gary Findley (Feb. 22, 2013): 5:12-13, 8:14-23, 9:23-10:13, 13:22-14:10, 14:17-22, 15:22-

13

17:16, 18:7-17, 19:7-22:3, 22:8-25:3, 25:23-34:14, 35:12-44:11, 46:10-48:5, 51:4-17, 52:17-

14

53:16, 55:13-56:11, 57:3-58:2, 58:22-63:5, 64:18-76:7, 76:22-78:9, 80:7-87:22, 88:25-91:22,

15

94:13-99:5, 100:4-101:6, 102:6-103:2, 104:20-24, 105:4-106:19, 107:2-108:7, 108:24-109:20,

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110:8-111:2, 112:8-113:17, 114:15-117:1, 119:13-22, 120:10-19, 121:5-122:1, 122:12-18,

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129:5-10, 133:14-135:18, 136:14-17.

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f) Gary Findley (Sept. 8, 2015): 7:9-10, 10:14-11:21, 12:5-20:10, 25:6-26:13, 28:1-22, 38:22-

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43:2, 44:12-17; 45:5-46:5, 46:12-49:7; 56:12-57:25, 62:12-65:15, 69:4-8, 70:19-71:11, 77:22-

20

78:8, 79:2-11, 109:5-25, 121:16-123:4, 125:9-127:25, 135:11-136:6, 137:5-17, 138:3-15,

21

141:12-143:5, 143:16-22, 144:22-145:5, 151:21-153:9, 154:2-155:1, 157:22-162:1, 164:1-

22

170:24, 171:13-172:23, 175:7-176:19, 182:4-184:8, 185:13-25, 188:5-190:2, 191:12-194:15,

23

197:3-199:1, 199:18-204:8, 204:22-205:19, 205:24-207:5, 209:5-12, 210:11-22, 211:7-

24

213:14, 216:11-217:1, 217:12-222:19, 223:19-224:15, 225:5-226:10, 226:15-229:17, 240:11-

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25, 243:9-244:17, 244:23-245:10, 246:25-247:5, 249:24-250:19, 264:18-265:8, 265:22-

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266:14, 273:2-274:4, 276:6-8, 287:16-289:19, 289:23-335:19, 337:15-339:25, 340:13-353:17,

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353:21-354:7, 354:10-367:21; 377:11-378:9.

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/////
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1

l) Robert Hartline (Aug. 19, 2015): 6:6-8, 9:2-15, 9:16-10:9, 10:11-12:11, 12:21-14:4, 14:11-

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49.25, 50:6-58:14, 58:22-62:14, 67:21-69:13, 81:23-83:1, 84:3-20, 111:11-24, 127:14-24,

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135:3-23, 145:16-147:3.

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m) Adam Keefer (Aug. 26, 2015): 6:17-20, 7:23-9:12, 10:8-12:20, 13:22-14:4, 15:17-16:12,

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29:8-19, 29:25-34:19, 39:7-18, 40:24-41:6, 46:2-12, 47:6-9, 50:15-53:16, 55:18-56:14, 59:8-

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21, 63:9-65:22, 67:20-68:1.

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n) Susan Salerno (Sept. 3, 2015): 6:18-20, 24:8-25:15, 26:21-31:16, 34:24-35:24, 38:19-41:7.

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o) Richard Tuohey (Aug. 25, 2015): 7:13-16, 9:14-19, 16:8-17:1, 18:4-22:22, 23:4-25:7, 28:15-

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29:2, 29:24-32:12, 33:7-39:20, 43:14-44:13, 47:12-48:21, 48:25-54:22, 55:9-56:11, 57:11-

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65:10, 65:25-68:21, 70:9-14, 108:25-109:20.

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p) Mary Viereck (Sept. 2, 2015): 8:4-7, 15:13-18:17, 22:12-23:15, 24:1-22, 27:15-31:19, 37:21-

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41:24, 43:25-45:12, 47:9-48:7, 50:2-5, 58:10-59:2, 61:9-70:4, 70:21-72:11, 74:17-75:3, 76:8-

13

78:17, 79:14-82:9, 83:11-84:9, 85:3-91:9, 94:12-111:14, 114:21-115:16, 116:6-117:24,

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119:14-22, 120:13-123:7.

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2.

a) Amended Response of Plaintiff FDIC as Receiver for Butte Community Bank to First Set of

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Special Interrogatories Propounded by Defendant Gary Strauss (March 12, 2014);
b) FDIC’s Objections and Responses to Defendant Donald Leforce’s First Set of Interrogatories

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(December 8, 2014);
c) Plaintiff FDIC-R’s Responses to Defendant Gary Strauss’ Second Set of Interrogatories

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(December 8, 2014);
d) FDIC’s Objections and Responses to Defendant Donald Leforce’s Second Set of

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Interrogatories (April 17, 2015);
e) FDIC-R’s Supplemental Objections and Responses to Defendant Donald Leforce’s Second

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Set of Interrogatories (September 18, 2015);
f) FDIC’s Objections and Responses to Defendant Robert Ching’s First Set of Interrogatories

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Responses to Interrogatories

(April 17, 2015);
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g) FDIC’s Supplemental Objections and Responses to Defendant Robert Ching’s First Set of
Interrogatories (September 18, 2015).
3.

a) Plaintiff FDIC-R’s Objections and Responses to Defendant Gary Strauss’ First Set of
Requests for Admission (November 24, 2014);
b) FDIC-R’s Response to Defendant Donald Leforce’s First Set of Requests for Admission
(April 17, 2015).
4.

Requests for Production

a) FDIC-R’s Response to Defendant Donald Leforce’s First Set of Requests for Production
(December 8, 2014);
b) Plaintiff’s Amended Responses to Defendant Donald Leforce’s First Set of Requests for
Production (May 4, 2015).

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FURTHER DISCOVERY OR MOTIONS

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Requests for Admission

The Parties do not request leave to conduct further discovery or file pretrial
motions other than motions in limine and Plaintiff’s request for a trial protective order.

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AMENDMENTS AND DISMISSALS

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On April 21, 2016, the parties filed with the court a stipulation for dismissal of

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defendant Ellis Matthews. ECF No. No. 140. Matthews was dismissed on May 3, 2016. ECF

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No. 145.

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In the parties’ joint pretrial statement, the defendants requested clarification of two

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pleadings issues. First, the defendants requested clarification whether the FDIC-R’s complaint

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includes claims for negligence and breaches of fiduciary duty. Since the time the parties prepared

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their joint pretrial statement, the court issued its order on the FDIC-R’s motion for summary

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judgment. In that order, the court found that the complaint includes claims for breaches of

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fiduciary duty and negligence. See Order May 27, 2016, at 14–16, ECF No. 168 (“[A]mong the

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FDIC’s remaining claims is at least one whose gravamen is the directors’ breach of fiduciary

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duties. . . . [T]he FDIC’s complaint also includes claims of negligence, now funneled into its

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claim under Corporations Code section 309.”).
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Second, the defendants requested clarification that the FDIC-R’s complaint

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includes no allegations of “subsequent dividends” following the original $8.8 million dividend.

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The FDIC-R responded that its complaint includes allegations of damages beyond $8.8 million

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and argues the parties understood as much during discovery. Without context, the court cannot

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make general rulings with regard to these issues. The defendants may object at trial if the FDIC-

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R offers evidence it was required to disclose under Federal Rule of Evidence 26, but did not

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disclose. The defendants may also object at trial if the FDIC-R proceeds on a previously

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undisclosed theory of their liability. But see Fed. R. Civ. P. 15(b)(1) (“If, at trial, a party objects

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that evidence is not within the issues raised in the pleadings, the court may permit the pleadings

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to be amended. The court should freely permit an amendment when doing so will aid in

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presenting the merits and the objecting party fails to satisfy the court that the evidence would

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prejudice that party’s action or defense on the merits. The court may grant a continuance to

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enable the objecting party to meet the evidence.”).

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SETTLEMENT
The parties have discussed potential settlement of the present action and do not
believe that a court settlement conference is necessary or advisable at this time.
JOINT STATEMENT OF THE CASE
The parties proposed a joint statement of the case. The court proposes the
following modified statement:
This case is between the Federal Deposit Insurance Corporation,
which you may know as the “FDIC,” and ten former directors of
Butte Community Bank. Two of those directors also served as the
Bank’s senior officers.
The FDIC is a federal government agency and is acting as the
“receiver” for Butte Community Bank. As “receiver,” the FDIC is
essentially a custodian of the Bank’s affairs. In this lawsuit, the
FDIC seeks to recover a dividend paid to the Holding Company
that owned the Bank. The FDIC believes this dividend harmed the
Bank and personally benefitted the defendants. The FDIC alleges
the Defendants were negligent in allowing these dividends to be
distributed.

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The Defendants claim the dividend did not harm the Bank, did not
provide any unusual or improper personal benefit to any them, and
complied with all applicable laws, regulations, and standards
governing the proper amount for a bank dividend.

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4

As noted below, the parties may object to this proposed statement and other provisions of this

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order within fourteen days of the date it is filed.
SEPARATE TRIAL OF ISSUES

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The parties do not believe that it would be feasible or advisable to separate trial of
any of the issues in this action.
IMPARTIAL EXPERTS OR LIMITATION OF EXPERTS
The parties do not believe that it would be feasible or advisable for the court to

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appoint an impartial expert witness or limit the number of expert witnesses that may be called to

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testify by the Parties.

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ATTORNEYS’ FEES
The FDIC-R does not intend to seek attorneys’ fees in this action. The defendants
intend to seek attorneys’ fees by post-trial motion.
ESTIMATED TIME OF TRIAL/TRIAL DATE

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Jury trial is set for October 31, 2016, at 9:00 a.m. in Courtroom Three before the

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Honorable Kimberly J. Mueller. Trial is anticipated to last twelve days. The parties are directed

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to Judge Mueller’s default trial schedule outlined on her web page on the court’s website.

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PROPOSED JURY VOIR DIRE AND PROPOSED JURY INSTRUCTIONS
The parties shall file any proposed jury voir dire seven days before trial. Each
party will be limited to ten minutes of jury voir dire.
The court directs counsel to meet and confer in an attempt to generate a joint set of

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jury instructions and verdicts. The parties shall file any such joint set of instructions fourteen

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days before trial, identified as “Jury Instructions and Verdicts Without Objection.” To the extent

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the parties are unable to agree on all or some instructions and verdicts, their respective proposed

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instructions are due fourteen days before trial.

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Counsel shall e-mail a copy of all proposed jury instructions and verdicts, whether

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agreed or disputed, as a word document to [e-mail] no later than fourteen

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days before trial; all blanks in form instructions should be completed and all brackets removed.

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Objections to proposed jury instructions must be filed seven days before trial; each

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objection shall identify the challenged instruction and shall provide a concise explanation of the

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basis for the objection along with citation of authority. When applicable, the objecting party shall

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submit an alternative proposed instruction on the issue or identify which of his or her own

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proposed instructions covers the subject.

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TRIAL PROTECTIVE ORDER
With reliance on Local Rule 141.1(b)(2), the FDIC-R requests issuance of a trial

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protective order with respect to any reports of examination issued to the Bank by the Federal

12

Deposit Insurance Corporation or California Department of Financial Institutions. Plaintiff also

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requests approval from the court to redact and/or seal documents or other personally identifiable

14

information regarding the Bank’s borrowers and/or specific loans issued by the Bank. The court

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will address these requests on the morning of trial.

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OBJECTIONS TO PRETRIAL ORDER
Each party may make objections to this order within fourteen days of the date it is

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filed. If no objections are filed, this order will become final without further order of this court.

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DATED: June 8, 2016

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UNITED STATES DISTRICT JUDGE

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ATTACHMENT A: FDIC-R’S WITNESS LIST
1. Murray Bodine
c/o Christopher S. Hooper
Sandler O’Neill & Partners, L.P.
1251 Avenue of the Americas, 6th Floor
New York, NY 10020
This witness is expected to testify about the analyses Sandler O’Neill provided certain
representatives of the Bank with respect to a potential stock repurchase and sale-leaseback
transaction and the timing and limitations of those analyses. This witness will also testify
about communications between Sandler and Butte representatives regarding the prudency
of the Tender Offer.
(Via videotape or in person)
2. Peter Buck
c/o Christopher S. Hooper
(See above for address)
This witness will testify about the analyses Sandler O’Neill provided certain
representatives of the Bank with respect to a potential stock repurchase and sale-leaseback
transaction and the timing and limitations of those analyses. This witness will also testify
about communications between Sandler and Butte representatives regarding the prudency
of the Tender Offer.
(Via videotape or in person)
3. Robert Ching
c/o Kevin D. Hughes
Tisdale & Nicholson, LLP
2029 Century Park East, Suite 900
Los Angeles, CA 90067
310-286-1260
This witness is expected to testify about i) his service on and the operations of the Board
of Directors of the Bank and the Holding Company, ii) the benefits he sought and
ultimately received from the Tender Offer, iii) the process and procedures followed by the
Bank and the Holding Company to evaluate and approve the Dividend, the Tender Offer
and the sale-leaseback transaction, iv) the Bank’s financial condition and the economic
environment at the time of the Dividend, and v) the performance of his duties and
responsibilities as a director of the Bank.
(In person)

25
4. John Coger
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c/o Kevin D. Hughes
(See above for address)

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30

1
2
3
4
5
6

This witness is expected to testify about i) his service on and the operations of the Board
of Directors of the Bank and the Holding Company, ii) his service and responsibilities as
an officer of the Bank and the Holding Company, iii) the benefits he sought and ultimately
received from the Tender Offer, iv) the process and procedures followed by the Bank and
the Holding Company to evaluate and approve the Dividend, the Tender Offer and the
sale-leaseback transaction, v) the Bank’s financial condition and the economic
environment at the time of the Dividend, vi) the performance of his duties and
responsibilities as an officer and director of the Bank, and vii) the accounting treatment of
the Dividend and sale-leaseback transaction.
(In person)

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5. Eugene Even
c/o Kevin D. Hughes
(See above for address)
While this witness has a medical condition that may need to be addressed prior to his
being called as a witness, he currently is expected to testify about i) his service on and the
operations of the Board of Directors of Bank and the Holding Company, ii) the benefits he
sought and ultimately received from the Tender Offer, iii) the process and procedures
followed by the Bank and the Holding Company to evaluate and approve the Dividend,
the Tender Offer and the sale-leaseback transaction, iv) the Bank’s financial condition and
the economic environment at the time of the Dividend, and v) the performance of his
duties and responsibilities as a director of the Bank.
(In person)
6. Gary Findley
Findley & Associates
1470 N. Hundley Street
Anaheim, CA 92806-7136
This witness is expected to testify about i) the scope and limitations of his service and
involvement in the Tender Offer, Dividend and the sale-leaseback transaction, ii) the
benefits sought and received by members of his family from their participation in the
Tender Offer, iii) the process and procedures required to be followed by the Bank and the
Holding Company to approve the Dividend, the Tender Offer and the Sale-Leaseback
transaction, and iv) the economic and regulatory environment at the time of the Dividend.
(Via videotape or in person)
7. Wayne Green
Federal Deposit Insurance Corporation - Receiver Representative
c/o Antony Burt
Schiff Hardin, LLP
233 South Wacker Drive
Chicago, IL 60606

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28
31

1

3

This witness is expected to testify about: i) the appointment of the FDIC as receiver for
the Bank, ii) the duties and responsibilities of FDIC-R, iii) the loss suffered as a result of
the failure of the Bank, and iv) how the FDIC-R will distribute any recoveries.

4

(In person)

5

8. Robert Hartline

2

6

7501 Lorene Road
Redwood Valley, CA

7

This witness is expected to testify about i) the scope and limitations of the services
provided to the Bank and ii) the advice provided to the Bank regarding the accounting
treatment of the Dividend and sale-leaseback transaction.

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10
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15
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(Via videotape or in person)
9. Adam Keefer
c/o Christopher S. Hooper
(See above for address)
This witness is expected to testify about the analyses Sandler O’Neill provided certain
representatives of Butte with respect to a potential stock repurchase and sale-leaseback
transaction and the timing and limitations of those analyses. This witness will also testify
about communications between Sandler and Butte representatives regarding the prudency
of the Tender Offer.
(Via videotape)
10. Charles Kenny - Expert
c/o Antony Burt
(See above for address)

21

Mr. Kenny’s expertise is banking and the duties and responsibilities of boards of directors
and bank management. He is expected to testify about the opinions contained in his Expert
Report, including i) the appropriateness of Defendants’ conduct with respect to the
Dividend, ii) the impact of the Dividend on the safety and soundness of the Bank, and iii)
the Defendants’ duty of care in connection with the Dividend.

22

(In person)

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20

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11. Donald Leforce
c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify about i) his service on and the operations of the Board
of Directors of Bank and the Holding Company), ii) the benefits he sought and ultimately
received from the Tender Offer, iii) the process and procedures followed by the Bank and
the Holding Company to evaluate and approve the Dividend, the Tender Offer and the
sale-leaseback transaction, iv) the Bank’s financial condition and the economic
32

1
2

environment at the time of the Dividend, and v) the performance of his duties and
responsibilities as a director of the Bank.

3

(In person)

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7
8
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10
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12. Charles Matthews
c/o James Wright
Buchalter Nemper
Second Street, Suite 1700
San Francisco, CA 94105-3493
This witness is expected to testify about i) his service on and the operations of the Board
of Directors of the Bank and the Holding Company, ii) his knowledge of and
communication with the Defendants with respect to the Dividend, Tender Offer and saleleaseback transaction, iii) the Bank’s financial condition and the economic environment at
the time of the Dividend, and iv) the performance of his duties and responsibilities as a
director of the Bank.
(In person)
13. Luther McLaughlin
c/o Kevin D. Hughes
(See above for address)

18

This witness is expected to testify about i) his service on and the operations of the Board
of Directors of Bank and the Holding Company), ii) the benefits he sought and ultimately
received from the Tender Offer, iii) the process and procedures followed by the Bank and
the Holding Company to evaluate and approve the Dividend, the Tender Offer and the
sale-leaseback transaction, iv) the Bank’s financial condition and the economic
environment at the time of the Dividend, and v) the performance of his duties and
responsibilities as a director of the Bank.

19

(In person)

20

14. Robert Morgan

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16
17

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22
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26

c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify about i) his service on and the operations of the Board
of Directors of Bank and the Holding Company), ii) the benefits he sought and ultimately
received from the Tender Offer, iii) the process and procedures followed by the Bank and
the Holding Company to evaluate and approve the Dividend, the Tender Offer and the
sale-leaseback transaction, iv) the Bank’s financial condition and the economic
environment at the time of the Dividend, and v) the performance of his duties and
responsibilities as a director of the Bank.
(In person)

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15. James Rickards
c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify about i) his service on and the operations of the Board
of Directors of Bank and the Holding Company), ii) the benefits he sought and ultimately
received from the Tender Offer, iii) the process and procedures followed by the Bank and
the Holding Company to evaluate and approve the Dividend, the Tender Offer and the
sale-leaseback transaction, iv) the Bank’s financial condition and the economic
environment at the time of the Dividend, and v) the performance of his duties and
responsibilities as a director of the Bank.
(In person)
16. Keith Robbins
c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify about i) his service on and the operations of the Board
of Directors of the Bank and the Holding Company, ii) his service and responsibilities as
an officer of the Bank and the Holding Company, iii) the benefits he sought and ultimately
received from the Tender Offer, iv) the process and procedures followed by the Bank and
the Holding Company to evaluate and approve the Dividend, the Tender Offer and the
sale-leaseback transaction, v)the Bank’s financial condition and the economic
environment at the time of the Dividend, vi) the performance of his duties and
responsibilities as an officer and director of the Bank, and vii) the accounting treatment of
the Dividend and sale-leaseback transaction.
(In person)
17. Paul Regan - Expert
c/o Antony Burt
(See above for address)
Mr. Regan’s expertise is accounting for financial institutions and damages. He is expected
to testify about the opinions contained in his Expert Report and Rebuttal Expert Report,
including i) the financial trends impacting the Bank at the time of the Dividend, ii) the
accounting principles governing the sale-leaseback transaction on the Bank’s capital, and
iii) the damages suffered by the Bank from the Dividend and subsequent dividends.
(In person)
18. Gary Strauss
c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify about i) his service on and the operations of the Board
of Directors of Bank and the Holding Company), ii) the benefits he sought and ultimately
received from the Tender Offer, iii) the process and procedures followed by the Bank and
the Holding Company to evaluate and approve the Dividend, the Tender Offer and the
34

1
2

sale-leaseback transaction, iv) the Bank’s financial condition and the economic
environment at the time of the Dividend, and v) the performance of his duties and
responsibilities as a director of the Bank.

3

(By videotaped deposition)

4
5
6

19. Christopher Thornberg, PhD - Expert
c/o Antony Burt
(See above for address)

8

Dr. Thornberg’s expertise is economic trends and the real estate market. Dr. Thornberg is
expected to testify about the opinions in his Expert Report and Rebuttal Expert Report,
including i) the state of the local, state and national economy at the time of the Dividend,
and ii) the information available to the Defendants about the relevant real estate market.

9

(In person)

7

10

20. Hubert Townshend

11

c/o Kevin D. Hughes
(See above for address)

12

This witness is expected to testify about i) his service on and the operations of the Board
of Directors of Bank and the Holding Company, ii) the benefits he sought and ultimately
received from the Tender Offer, iii) the process and procedures followed by the Bank and
the Holding Company to evaluate and approve the Dividend, the Tender Offer and the
sale-leaseback transaction, iv) the Bank’s financial condition and the economic
environment at the time of the Dividend, v) the performance of his duties and
responsibilities as a director of the Bank, and vi) his document retention practices.

13
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15
16

(In person)
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21. P. Richard Tuohey
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c/o Christopher S. Hooper
(See above for address)
This witness will testify about the analyses Sandler O’Neill provided certain
representatives of Butte with respect to a potential stock repurchase and sale-leaseback
transaction and the timing and limitations of these analyses.
(Via videotape or in person)
22. Rebuttal Witnesses

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ATTACHMENT B: DEFENDANTS’ WITNESS LIST
1. Murray Bodine
c/o Christopher S. Hooper
Sandler O’Neill & Partners, L.P.
1251 Avenue of the Americas, 6th Floor
New York, NY 10020

6

This witness is expected to testify pertaining to the advice and financial analysis Sandler
O’Neill provided Defendants in connection with the Sale-Leaseback and Tender Offer.

7

(Via videotape or in person)

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2. Peter Buck
c/o Christopher S. Hooper
(See above for address)
This witness is expected to testify pertaining to the advice and financial analysis Sandler
O’Neill provided Defendants in connection with the Sale-Leaseback and Tender Offer.
(Via videotape or in person)
3. Robert Ching
c/o Kevin D. Hughes
Tisdale & Nicholson, LLP
2029 Century Park East, Suite 900
Los Angeles, CA 90067
310-286-1260
This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the Defendants’ monetary
contributions to payoff of the PCBB loan; (j) the witness’s forfeiture of director fees,
deferred compensation and retirement benefits; (k) regulatory examinations of the Bank
and the Bank’s communications with regulators during the relevant time period; (l) the
extent to which outside directors, including witness, participated and carried out their
duties and responsibilities as directors of the Bank and/or the Holding Company; and
(m) any matters in rebuttal.
(In person)

27
28
36

1
2
3

4. Stephen Clinton (expert)
c/o Kevin D. Hughes
(See above for address)

6

Mr. Clinton’s area of expertise is banking, investment banking and finance. He is
expected to testify pertaining to the opinions contained in his Expert Report, including
(a) the due diligence conducted by the Defendants in connection with the Tender Offer
and Sale-Leaseback, and the Dividend authorized to fund the Tender Offer; (b) the Bank’s
financial condition and the state of the local and national economy during the relevant
time period; (c) the FDIC-R’s purported damages; and (d) any matters in rebuttal.

7

(In person)

4
5

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5. John Coger
c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the Defendants’ monetary
contributions to payoff of the PCBB loan; (j) the witness’s forfeiture of deferred
compensation and retirement benefits; (k) regulatory examinations of the Bank and the
Bank’s communications with regulators during the relevant time period; (l) the settlement
agreement between the FDIC-R and the Holding Company; (m) interest the Holding
Company paid on the PCBB loan; (n) the Bank’s/ the Holding Company’s financial
function and financial reporting; and (o) any matters in rebuttal.
(In person)
6. Eugene Even
c/o Kevin D. Hughes
(See above for address)
This witness is expected to the Holding Company the Holding Company and their
respective Boards of Directors, policies, procedures, staff and operations; (b) the
formulation of the plan to pursue the Tender Offer; (c) the Tender Offer, Sale-Leaseback
and Dividend; (d) the due diligence conducted by the Defendants in connection with the
Tender Offer and Sale-Leaseback, and the Dividend authorized to fund the Tender Offer;
(e) the Bank’s financial condition and the state of the local economy during the relevant
time period; (f) the witness’s ownership of the Holding Company stock and participation
in the Tender Offer; (g) the $4 million capital contribution to the Bank made by the
Holding Company on or about June 30, 2008; (h) the FDIC-R’s purported damages; (i) the
37

1

4

Defendants’ monetary contributions to payoff of the PCBB loan; (j) the witness’s
forfeiture of director fees, deferred compensation and retirement benefits; (k) regulatory
examinations of the Bank and the Bank’s communications with regulators during the
relevant time period; (l) the extent to which outside directors, including witness,
participated and carried out their duties and responsibilities as directors of the Bank and/or
the Holding Company; and (m) any matters in rebuttal.

5

(In person)

2
3

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

7. Gary Findley (percipient expert witness)
Findley & Associates
1470 N. Hundley Street
Anaheim, CA 92806-7136
Mr. Findley’s area of expertise is banking, capital strategy and evaluating the performance
of California community banks. Mr. Findley is expected to testify as follows: He
provided capital strategy advice to the Bank in 2007 and 2008. He provided advice to
Defendants in connection with the Tender Offer and Sale-Leaseback transaction. It was
his view that the Tender Offer was a reasonable capital strategy for the Bank to undertake
in March 2008. His company evaluated the performance of California banks on an annual
basis. Mr. Findley will testify to his company’s evaluation of the Bank’s performance
over the years between 1990 and 2009. Mr. Findley will testify that the Bank’s track
record over that period made it the best performing Western Region community bank his
company had ever evaluated.
(Via videotape or in person)
8. Joe A. Hargett (expert)
c/o Kevin D. Hughes
(See above for address)
Mr. Hargett’s area of expertise is accounting and financial analysis. He is expected to
testify pertaining to the opinions contained in his Expert Report, including, among other
things, (a) the Dividend’s compliance with California Corporations Code and California
Financial Code provisions applicable to the liability of bank directors for authorizing
dividends; (b) the Bank’s capitalization before and after the Dividend; and (d) any matters
in rebuttal.
(In person)
9. Robert Hartline (percipient expert)
7501 Lorene Road
Redwood Valley, CA
Mr. Hartline’s area of expertise is accounting. Mr. Hartline is expected to testify that he
analyzed the Tender Offer transaction and concluded that the Bank had approximately
$15.3 million available for a dividend as of May 2008. He is expected to testify that the
proposed distribution from the Bank to the holding company to fund the Tender Offer
complied with applicable legal restrictions. He is expected to testify that he calculated the

28
38

1
2

Bank’s capital ratio after payment of the proposed distribution and concluded that the
Bank would remain well-capitalized.
(Via videotape or in person)

3
10. Adam Keefer
4
5

c/o Christopher S. Hooper
(See above for address)

6

This witness is expected to testify pertaining to the advice and financial analysis Sandler
O’Neill provided Defendants in connection with the Sale-Leaseback and Tender Offer.

7

(Via videotape or in person)

8
9
10

11. Donald Leforce
c/o Kevin D. Hughes
(See above for address)

19

This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the Defendants’ monetary
contributions to payoff of the PCBB loan; (j) the witness’s forfeiture of director fees,
deferred compensation and retirement benefits; (k) regulatory examinations of the Bank
and the Bank’s communications with regulators during the relevant time period; (l) the
extent to which outside directors, including witness, participated and carried out their
duties and responsibilities as directors of the Bank and/or the Holding Company; and
(m) any matters in rebuttal.

20

(In person)

11
12
13
14
15
16
17
18

21

12. Denna McGhee

22

c/o Kevin D. Hughes
(See above for address)

23

This witness is expected to testify pertaining to: (a) the fairness opinion, advice and
financial analysis Howe Barnes Hoefer & Arnett provided Defendants in connection with
the Tender Offer; (b) the Bank’s financial condition and the state of the local economy
during the relevant time period; (c) the state of the banking industry during the relevant
time period; (d) the Bank’s capitalization before and after the Dividend; and (e) any
matters in rebuttal. Ms. McGhee will only be called as a witness if Mr. Mecredy
becomes unavailable.

24
25
26
27

(In person)
28
39

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

13. Luther McLaughlin
c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the Defendants’ monetary
contributions to payoff of the PCBB loan; (j) the witness’s forfeiture of director fees,
deferred compensation and retirement benefits; (k) regulatory examinations of the Bank
and the Bank’s communications with regulators during the relevant time period; (l) the
extent to which outside directors, including witness, participated and carried out their
duties and responsibilities as directors of the Bank and/or the Holding Company; and
(m) any matters in rebuttal.
(In person)
14. Tom Mecredy (percipient expert witness)
c/o Kevin D. Hughes
(See above for address)
Mr. Mecredy’s area of expertise is investment banking and financial advice for
community banks. Mr. Mecredy is expected to testify as follows: On behalf of Howe
Barnes Hoefer & Arnett, Mr. Mecredy provided a fairness opinion and financial advice
and analysis regarding the Tender Offer. The Howe Barnes fairness opinion concluded
that a Tender Offer share price of $13 was fair to the shareholders of the Bank’s holding
company who chose not to participate in the Tender Offer. The analysis supporting the
fairness opinion included projections of the Bank’s capitalization after consummation of
the Tender Offer, as well as projections of the Bank’s net income for 2008 and subsequent
years. Mr. Mecredy is expected to testify to the fairness opinion rendered and the analysis
reflected by the supporting documentation. Mr. Mecredy is also expected to testify that
Howe Barnes did not advise defendants against proceeding with the Tender Offer.
(In person)
15. Robert Morgan
c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
40

1
2
3
4
5
6
7
8
9
10
11

conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the Defendants’ monetary
contributions to payoff of the PCBB loan; (j) the witness’s forfeiture of director fees,
deferred compensation and retirement benefits; (k) regulatory examinations of the Bank
and the Bank’s communications with regulators during the relevant time period; (l) the
extent to which outside directors, including witness, participated and carried out their
duties and responsibilities as directors of the Bank and/or the Holding Company; and
(m) any matters in rebuttal.
(In person)
16. James Rickards
c/o Kevin D. Hughes
(See above for address)

20

This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the Defendants’ monetary
contributions to payoff of the PCBB loan; (j) the witness’s forfeiture of director fees,
deferred compensation and retirement benefits; (k) regulatory examinations of the Bank
and the Bank’s communications with regulators during the relevant time period; (l) the
extent to which outside directors, including witness, participated and carried out their
duties and responsibilities as directors of the Bank and/or the Holding Company; and
(m) any matters in rebuttal.

21

(In person)

22

17. Keith Robbins

12
13
14
15
16
17
18
19

23
24
25
26
27
28

c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
41

1

5

ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the witness’s purchase of the Holding
Company stock subsequent to the Tender Offer; (j) the Defendants’ monetary
contributions to payoff of the PCBB loan; (k) the witness’s forfeiture of deferred
compensation and retirement benefits; (l) regulatory examinations of the Bank and the
Bank’s communications with regulators during the relevant time period; and (m) any
matters in rebuttal.

6

(In person)

7

18. Susan Salerno

2
3
4

8

c/o Antony Burt
(See above for address)

9

This witness is expected to testify pertaining to the FDIC-R’s purported damages.

10
11
12
13

(Via videotape or in person)
19. Gary Strauss
c/o Kevin D. Hughes
(See above for address)

22

This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the Defendants’ monetary
contributions to payoff of the PCBB loan; (j) the witness’s forfeiture of director fees,
deferred compensation and retirement benefits; (k) regulatory examinations of the Bank
and the Bank’s communications with regulators during the relevant time period; (l) the
extent to which outside directors, including witness, participated and carried out their
duties and responsibilities as directors of the Bank and/or the Holding Company; and
(m) any matters in rebuttal.

23

(In person)

14
15
16
17
18
19
20
21

24
25
26
27
28

20. Hubert Townshend
c/o Kevin D. Hughes
(See above for address)
This witness is expected to testify pertaining to: (a) general information relating to the
Bank and the Holding Company and their respective Boards of Directors, policies,
procedures, staff and operations; (b) the formulation of the plan to pursue the Tender
Offer; (c) the Tender Offer, Sale-Leaseback and Dividend; (d) the due diligence
42

1
2
3
4
5
6
7
8
9
10
11

conducted by the Defendants in connection with the Tender Offer and Sale-Leaseback,
and the Dividend authorized to fund the Tender Offer; (e) the Bank’s financial condition
and the state of the local economy during the relevant time period; (f) the witness’s
ownership of the Holding Company stock and participation in the Tender Offer; (g) the $4
million capital contribution to the Bank made by the Holding Company on or about June
30, 2008; (h) the FDIC-R’s purported damages; (i) the Defendants’ monetary
contributions to payoff of the PCBB loan; (j) the witness’s forfeiture of director fees,
deferred compensation and retirement benefits; (k) regulatory examinations of the Bank
and the Bank’s communications with regulators during the relevant time period; (l) the
extent to which outside directors, including witness, participated and carried out their
duties and responsibilities as directors of the Bank and/or the Holding Company; and
(m) any matters in rebuttal.
(In person)
21. P. Richard Tuohey
c/o Christopher S. Hooper
(See above for address)

12

This witness is expected to testify pertaining to the advice and financial analysis Sandler
O’Neill provided Defendants in connection with the Sale-Leaseback and Tender Offer.

13

(Via videotape or in person)

14

22. Mary Viereck (percipient expert witness)

15

c/o Antony Burt
(See above for address)

16

Ms. Viereck’s area of expertise is bank examination for the FDIC. Ms. Viereck is
expected to testify as follows: She served as the examiner-in-charge of the FDIC team
examining the Bank as of September 30, 2008. In connection with such examination, she
and her team investigated the Defendants’ efforts to perform due diligence prior to
undertaking the Tender Offer. Her team concluded that the Defendants’ due diligence was
not inadequate. Her team concluded that the Bank was well-capitalized as of September
30, 2008; that its liquidity was adequate as of September 30, 2008, and that its ALLL
reserves were adequate as of December 2008.

17
18
19
20
21
22

(In person or via videotape)
23. Rebuttal Witnesses

23
24
25
26
27
28
43

1
2

ATTACHMENT E: JOINT EXHIBIT LIST

3

Joint
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

4

JX1

Dep. Ex. 189

6/30/2006

Financial Profile, Butte Community Bank, 6/30/06

JX2

Dep. Ex. 41

12/12/2006

Federal Register, Volume 71, No. 238, 12/12/06

JX3

Dep. Ex. 2 (excerpt)

1/16/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 1/16/2007

JX4

Dep. Ex. 2 (excerpt)

1/16/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 1/16/2007

JX5

Dep. Ex. 2 (excerpt)

2/20/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 2/20/2007

JX6

Dep. Ex. 2 (excerpt)

2/20/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 2/20/2007

JX7

Dep. Ex. 2 (excerpt)

3/27/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 3/27/2007

JX8

Dep. Ex. 2 (excerpt)

3/27/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 3/27/2007

JX9

Dep. Ex. 181

4/1/2007

The Findley Reports, Premier Performance in 2006, 4/07

JX10

Dep. Ex. 2 (excerpt)

4/17/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 4/17/2007

JX11

Dep. Ex. 2 (excerpt)

4/17/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 4/17/2007

JX12

Dep. Ex. 2 (excerpt)

5/15/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 5/15/2007

JX13

Dep. Ex. 2 (excerpt)

5/15/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 5/15/2007

JX14

Dep. Ex. 63

6/8/2007

E-mail re Tender Offer, 6/8/07

JX15

Dep. Ex. 2 (excerpt)

6/19/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 6/19/2007

JX16

Dep. Ex. 2 (excerpt)

6/19/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 6/19/2007

JX17

Dep. Ex. 182

7/1/2007

The Findley Reports, Barking Dogs, 7/07

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
44

1

Joint
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

3

JX18

Dep. Ex. 134

7/16/2007

E-mail re sale/lease, 7/16/07

4

JX19

Dep. Ex. 143

7/23/2007

Share Repurchase Analysis, Community Valley Bancorp,
7/23/07

JX20

Dep. Ex. 2 (excerpt)

7/24/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 7/24/2007

JX21

Dep. Ex. 2 (excerpt)

7/24/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 7/24/2007

JX22

Dep. Ex. 68

7/25/2007

E-mail re Board Planning Session, 7/25/07

JX23

10278N000000017792

7/25/2007

Deposition exhibit No. 68 (E-mail re Board Planning
Session, 7/25/07) with attachment.

JX24

Dep. Ex. 158

8/1/2007

Unsigned and undated letter from Murray Bodine to Board
of Directors, Community Valley Bancorp

JX25

Dep. Ex. 116

8/8/2007

E-mail re Strategic Planning, 8/8/07

JX26

Dep. Ex. 117

8/10/2007

E-mail re Background For 8/21 Meeting, 8/10/07

JX27

Dep. Ex. 2 (excerpt)

8/21/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 8/21/2007

JX28

Dep. Ex. 2 (excerpt)

8/21/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 8/21/2007

JX29

Dep. Ex. 66

8/21/2007

Community Valley Bancorp, Butte Community Bank,
Board Directors, Board Discussion, 8/21/07

JX30

Dep. Ex. 184

9/1/2007

The Findley Reports, Speechless, 9/07

JX31

Dep. Ex. 2 (excerpt)

9/18/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 9/18/2007

JX32

Dep. Ex. 2 (excerpt)

9/18/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 9/18/2007

JX33

Dep. Ex. 147

9/19/2007

Sale-Leaseback Transaction Analysis, Community Valley
Bancorp, 9/19/07

JX34

Dep. Ex. 154

9/21/2007

Share Repurchase Analysis, Community Valley Bancorp,
9/21/07

2

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

45

1

3

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

JX35

Dep. Ex. 120

9/30/2007

Securities and Exchange Commission, Form 10-Q for
9/30/07, Community Valley Bancorp

JX36

Dep. Ex. 2 (excerpt)

10/16/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 10/16/2007

JX37

Dep. Ex. 2 (excerpt)

10/16/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 10/16/2007

JX38

2

Joint
Ex. No.

CL Ex. 27

11/8/2007

Board of Governors of the Federal Reserve System,
Testimony of Ben Bernanke, 11/08/07

JX39

Dep. Ex. 2 (excerpt)

11/20/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 11/20/2007

JX40

Dep. Ex. 2 (excerpt)

11/20/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 11/20/2007

JX41

Dep. Ex. 123

11/29/2007

E-mail re Sale and Leaseback Comparison, 11/29/07

JX42

Dep. Ex. 19

12/10/2007

Report of Examination, Butte Community Bank,
examination date 12/10/07

JX43

CL Ex. 28

12/11/2007

Federal Reserve press release, 12/11/07

JX44

Dep. Ex. 2 (excerpt)

12/18/2007

Minutes of the Board of Directors Meeting, Butte
Community Bank, 12/18/2007

JX45

Dep. Ex. 2 (excerpt)

12/18/2007

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 12/18/2007

JX46

Dep. Ex. 97

12/31/2007

Form 10-K, Community Valley Bancorp, f/y/e 12/31/07

JX47

CL Ex. 1

12/31/2007

Butte 12/31/07 Uniform Bank Performance Report

12/31/2007

Butte Community Bank Call Report, 12/31/2007

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

JX48

24
25
26
27

JX49

Dep. Ex. 188

1/1/2008

Issuer Tender Offer – Timetable & Schedule of
Responsibilities, Community Valley Bancorp prepared by
Findley

JX50

Dep. Ex. 194

1/8/2008

E-mail re Capital Planning, 1/8/08

JX51

CL Ex. 169

1/11/2008

E-mail re Tender Offer, 1/11/08

28
46

1

Joint
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

3

JX52

CL Ex. 38

1/11/2008

CNN Money article re Countrywide rescue

4

JX53

Dep. Ex. 195

1/12/2008

E-mail re Tender Offer, 1/12/08

5

JX54

Dep. Ex. 76

1/14/2008

E-mail re Tender Offer Decision Model, 1/14/08

JX55

Dep. Ex. 2 (excerpt)

1/15/2008

Minutes of the Board of Directors Meeting, Butte
Community Bank, 1/15/2008

JX56

Dep. Ex. 2 (excerpt)

1/15/2008

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 1/15/2008

JX57

Dep. Ex. 204

1/19/2008

E-mail re Tender Offer, 1/19/08

JX58

CL Ex. 29

1/22/2008

Federal Reserve press release, 1/22/08

JX59

CL Ex. 173

1/25/2008

E-mail re Butte ITO Timetable, revised, 1/25/08

JX60

Dep. Ex. 90

1/30/2008

E-mail re Tender Offer, 1/30/08

14

JX61

CL Ex. 30

1/30/2008

Federal Reserve press release, 1/30/08

15

JX62

Dep. Ex. 48

1/31/2008

Minutes of the Regular ALCO Meeting, Butte Community
Bank, 1/31/08

JX63

Dep. Ex. 32

1/31/2008

Letter from Frank Bushnell to Board of Directors re
Report of Independent Examination of Butte Community
Bank, 1/31/08

JX64

CL Ex. 175

1/31/2008

E-mail re Howe Barnes valuation

2

6
7
8
9
10
11
12
13

16
17
18
19
20
JX65

Dep. Ex. 73

2/8/2008

Community Valley Bancorp, Documentation Report
Relating To The Fairness Of The Proposed Tender Offer
by Community Valley Bancorp, Chico, CA for up to
1,000,000 of its Common Shares

JX66

Dep. Ex. 206

2/11/2008

E-mail re Tender Offer, 2/11/08

25

JX67

Dep. Ex. 78

2/12/2008

E-mail re Option Exercise vs. Tender, 2/12/08

26

JX68

Dep. Ex. 209

2/13/2008

E-mail re Butte Press Release, 2/13/08

27

JX69

Dep. Ex. 23

2/14/2008

E-mail re Proposed Entries, 2/14/08

21
22
23
24

28
47

1

Joint
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

JX70

Dep. Ex. 53

2/15/2008

E-mail re: Fwd. Option Exercise vs. Tender, 2/15/08

JX71

Dep. Ex. 22

2/19/2008

Minutes of the Board of Directors Meeting, Butte
Community Bank, 2/19/08

JX72

Dep. Ex. 2 (excerpt)

2/19/2008

Community Valley Bancorp, Minutes of the Meeting of
the Board of Directors (Signed), 2/19/08

JX73

Dep. Ex. 49

2/19/2008

Revised and unsigned Community Valley Bancorp,
Minutes of the Meeting of the Board of Directors, 2/19/08

10

JX74

Dep. Ex. 196

3/1/2008

Profit Report CVB, year to date, 3/08

11

JX75

Dep. Ex. 21

3/10/2008

Letter from John Coger to Frank Bushnell, 3/10/08

JX76

Dep. Ex. 109

3/13/2008

United States Securities and Exchange Commission,
Schedule TO-1/A-1, Tender Offer Statement

JX77

CL Ex. 39

3/17/2008

CNN Money article re JP Morgan scoops up troubled Bear

16

JX78

CL Ex. 31

3/18/2008

Federal Reserve press release, 3/18/08

17

JX79

Dep. Ex. 2 (excerpt)

3/25/2008

Minutes of the Board of Directors Meeting, Butte
Community Bank, 3/25/2008

JX80

Dep. Ex. 2 (excerpt)

3/25/2008

Minutes of the Board of Directors Meeting, Community
Valley Bancorp, 3/25/2008

JX81

Dep. Ex. 106

3/31/2008

Form 10-Q, Community Valley Bancorp, quarterly period
ended 3/31/08

JX82

CL Ex. 14

3/31/2008

FDIC Quarterly Banking Profile, First Quarter 2008

JX83

CL Ex. 2

3/31/2008

Butte 3/31/08 Uniform Bank Performance Report

3/31/2008

Butte Community Bank Call Report, 3/31/2008

2
3
4
5
6
7
8
9

12
13
14
15

18
19
20
21
22
23
24

JX84

25
JX85

Dep. Ex. 59

4/1/2008

The Findley Reports, Call it Repression, 4/08

JX86

Dep. Ex. 43

4/1/2008

Three County Market Trends Analysis by Evans Appraisal
Service

26
27
28
48

1

Joint
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

JX87

Dep. Ex. 105

4/15/2008

E-mail re CVB’s 1st Quarter Newsletter, 4/15/08

JX88

10278-BTCB543763303-002229

4/15/2008

04/15/08 Bank Minutes of the Meeting of the Board of
Directors

JX89

10278-BTCB543763303-002233

4/15/2008

04/15/08 CVB Minutes of the Meeting of the Board of
Directors

JX90

Dep. Ex. 80

4/22/2008

E-mail re Dividend Policy, 4/22/08

JX91

Dep. Ex. 20

4/25/2008

Corporate Newsletter/Number 10, 4/25/08

11

JX92

CL Ex. 70

4/30/2008

Minutes of the Regular ALCO Meeting, Butte Community
Bank, 4/30/08

12

JX93

Dep. Ex. 50

5/5/2008

E-mail re: February meeting minutes, 5/5/08

13

JX94

Dep. Ex. 55

5/8/2008

E-mail re: Fwd. CVB Offer, 5/8/08

14

JX95

Dep. Ex. 81

5/12/2008

E-mail re Stock Ownership, 5/12/08

JX96

10278-BTCB543763303-002097

5/13/2008

05/13/08 Bank Minutes of the Meeting of the Board of
Directors

JX97

10278-BTCB543763303-002101

5/13/2008

05/13/08 CVB Minutes of the Meeting of the Board of
Directors

20

JX98

Dep. Ex. 83

5/29/2008

E-mail re Opt Exerc Req, 5/29/08

21

JX99

Dep. Ex. 84

6/17/2008

E-mail re Risk Based Capital, 6/17/08

JX100

10278-BTCB543763303-001940
to 001936

6/17/2008

JX101

10278-BTCB543763303-001940

6/17/2008

2
3
4
5
6
7
8
9
10

15
16
17
18
19

22
23
24

06/17/08 CVB Minutes of the Meeting of the Board of
Directors

25
26

06/17/08 Bank Minutes of the Meeting of the Board of
Directors

27
28
49

1
2
3

Joint
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

JX102

Dep. Ex. 197

6/19/2008

Minutes of the Annual Meeting, Community Valley
Bancorp, 6/19/08

JX103

10278-BTCB543763303-001939

6/24/2008

4
5

06/24/08 CVB Minutes of the Meeting of the Board of
Directors

6
7

6/30/2008

8

JX105

9

Dep. Ex. 39

JX106

FDIC Quarterly Banking Profile for Second Quarter of
2008

6/30/2008

Commercial Pledge Agreement

6/30/2008

JX104

Butte Community Bank Call Report 6/30/2008

10
11
12

JX107

Dep. Ex. 100

8/21/2008

Letter from BankVision to Butte Community Bank Audit
Committee, 8/21/08

JX108

Dep. Ex. 26

8/26/2008

Outstanding Findings By, 8/26/08

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
50

1

ATTACHMENT D: FDIC-R’S EXHIBIT LIST

2
Ex. No.

Bates No./Other
Identifier

Document
Date

1

Dep. Ex. 45

9/1/2002

Community Valley Bank, Management Services Monthly
Fees Allocation, 9/02

2

Dep. Ex. 95

5/31/2006

E-mail re Sale/Leaseback Accounting, 5/31/06

3

Dep. Ex. 180

1/1/2007

The Findley Reports, Reflections on a Plane, 1/07

4

10278-BTCB543763303-002508

3/1/2007

Profit Report CVB-Year to Date 03/07

5

Dep. Ex. 110

4/3/2007

E-mail re Budget Adjustment

6

Dep. Ex. 7

6/6/2007

Notice of Annual Meeting of Shareholders, Community
Valley Bancorp, 6/6/07

7

10278-N000000017703

8/1/2007

Email re: Buy Back- Gene's Input, 8/1/2007

8

Dep. Ex. 183

8/1/2007

The Findley Reports, Nasty and Ugly, 8/07

9

Dep. Ex. 8

8/1/2007

E-mail re Buy Back – Gene’s input, 8/1/07

10

10278-N00000001768889

8/2/2007

E-mail re Buy Back - Gene's Input, 8/2/2007

11

Dep. Ex. 200

8/9/2007

E-mail re Sale and Lease Back Funds Usage For Share
Buy Back, 8/9/07

12

Dep. Ex. 159

9/5/2007

E-mail re CVB’s Decision Not to Use Sandler O’Neill for
Tender Offer, 9/5/07

13

3

Dep. Ex. 28

9/18/2007

Board fees receipt, 9/18/07 for Townshend

14

10278-N000000016979

9/21/2007

Email re: information leak, 9/21/2007

15

Dep. Ex. 185

12/1/2007

The Findley Reports, What Are We Thankful For?, 12/07

4
5
6
7

Description Of Exhibit

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
51

1
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

16

Public, provided by
email

12/13/2007

FDIC Pocket Guide for Directors – Guidelines for
Financial Institutions Directors

17

Dep. Ex. 16

12/14/2007

Credit Memo – Borrower: …., Guarantors: …., et al.,
12/14/07

18

CMJ007890

12/15/2007

Butte Community Bank 2008 Budget (Original)

19

Dep. Ex. 36

1/1/2008

The Findley Reports, Expect the Unexpected, 1/08

20

Dep. Ex. 96

1/1/2008

Fixed Assets, Rollforward of book/tax/ differences

21

Dep. Ex. 25

1/2/2008

Community Valley Bancorp and Subsidiaries, Services
To/From Affiliates, 1/2/08

22

Dep. Ex. 129

1/4/2008

E-mail re The Findley Reports Banking Newsletter, 1/4/08

23

Dep. Ex. 18 excerpt,
HT03515-18

1/8/2008

Minutes of the Loan Committee, 1/8/2008

24

Dep. Ex. 14

1/10/2008

Memo re Board of Directors Meeting, 1/10/08 and 12/07
minutes for Bank and Holding Co.

25

Dep. Ex. 18 (first page
only); HT03509

1/15/2008

Butte Community Bank 2008 Budget (Revised)

26

10278-BTCB543763306-000313

1/15/2008

Profit Report Budget/Actual December-2007

27

10278-BTCB543763306-000347

1/15/2008

Profit Report CVB Year to Date December 2007

25

28

Dep. Ex. 52

1/16/2008

E-mail re: Tender Offer, 1/16/08

26

29

CL Ex. 172

1/19/2008

E-mail re Tender Offer, 1/19/08

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

27
28
52

1
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

30

Public, provided by
email

1/23/2008

James Rickards' January 23, 2008 SEC Form 4

5

31

Dep. Ex. 205

1/31/2008

E-mail re value of Community Valley Bank shares

6

32

Dep. Ex. 58

2/1/2008

The Findley Reports, Ch-Ch-Ch-Change

7

33

Dep. Ex. 77

2/7/2008

E-mail Re Director Fees, 2/7/08

34

10278-N000000014954

2/13/2008

E-mail re We have all received an invitation for dinner,
2/13/2008

35

Dep. Ex. 46

Capital, Earnings and Dividend Policy, Butte Community
Bank

36

Dep. Ex. 47

Asset/Liability Management Policy, Butte Community
Bank

37

Dep. Ex. 17

2/14/2008

Memo re Board of Directors Meeting, 2/14/08

38

Public, provided by
email

2/15/2008

Hubert Townshend's February 15, 2008 SEC Form 4

39

Public, provided by
email

2/15/2008

Robert Morgan's February 15, 2008 SEC Form 4

40

Public, provided by
email

2/15/2008

John Lanam's February 15, 2008 SEC Form 4

41

Public, provided by
email

2/15/2008

Ellis Matthews' February 15, 2008 SEC Form 4

42

Dep. Ex. 29

2/19/2008

Board fees receipt, 2/19/08 for Townshend

43

10278-N000000380819

2/28/2008

E-mail re Dinner in Hawaii, 2/28/2008

44

CJM001296

2/28/2008

February 2008 Profit Report For CVB – Year to Date

2
3
4

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
53

1
Ex. No.

Bates No./Other
Identifier

Document
Date

45

10278-BTCB543763303-002454

3/1/2008

Profit Report Budget/Actual 03/08

46

10278-BTCB543763303-002479 to
002480

3/1/2008

CVB Stock Information for 03/08

47

10278-BTCB543763303-002370

3/4/2008

03/04/08 CVB Minutes of the Meeting of the Board of
Directors

48

10278-N00000001439495

3/7/2008

E-mail re Howe Barnes - Dinner location, 3/7/2008

49

10278-BTCB543763303-002384

3/12/2008

03/12/08 Minutes of the Audit Committee

50

Dep. Ex. 60

3/17/2008

Financial Institution Letters, Managing Commercial Real
Estate Concentrations in a Challenging Environment,
3/17/08

51

10278-BTCB543763303-002420

3/31/2008

03/31/08 Qualitative Factor Considerations

52

Public, provided by
email

3/31/2008

FDIC Quarterly Banking Profile for Fourth Quarter of
2007

53

10278-BTCB543763303-002228

4/1/2008

04/08 Executive Summary

54

10278-BTCB543763303-002303

4/1/2008

Profit Report Budget/Actual 04/08

55

10278-BTCB543763303-002360

4/1/2008

Profit Report CVB-Year to Date 04/08

56

Dep. Ex. 79

4/5/2008

E-mail re trading of CVB shares

2
3

Description Of Exhibit

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
54

1
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

57

Dep. Ex. 42

4/10/2008

Memo re Board of Directors Meeting, 4/10/08 attaching
minutes for March 2008 of Bank and Holding Co.

58

10278-BTCB543763303-002251

4/15/2008

04/15/08 Minutes of the Audit Committee

59

10278-BTCB543763303-002234

4/29/2008

04/29/08 CVB Minutes of the Special Meeting of the
Board of Directors

60

10278-BTCB543763303-002248

4/29/2008

04/29/08 Minutes of the Loan Committee

61

Dep. Ex. 126

5/6/2008

E-mail Fwd: RE Cartoon

62

10278-BTCB543763303-002114

5/7/2008

05/07/08 Audit Committee Minutes

63

Dep. Ex. 125

5/8/2008

E-mail re Tender Offer distribution, 5/8/08

64

Public, provided by
email

5/9/2008

Robert Ching's May 9, 2008 SEC Form 4

65

Public, provided by
email

5/9/2008

John Coger's May 9, 2008 SEC Form 4

66

Public, provided by
email

5/9/2008

Eugene Even's May 9, 2008 SEC Form 4

67

Public, provided by
email

5/9/2008

John Lanam's May 9, 2008 SEC Form 4

68

Public, provided by
email

5/9/2008

Donald Leforce's May 9, 2008 SEC Form 4

69

Public, provided by
email

5/9/2008

Ellis Matthews' May 9, 2008 SEC Form 4

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

55

1
Ex. No.

Bates No./Other
Identifier

Document
Date

70

Public, provided by
email

5/9/2008

Robert Morgan's May 9, 2008 SEC Form 4

71

Public, provided by
email

5/9/2008

Keith Robbins' May 9, 2008 SEC Form 4

72

Public, provided by
email

5/9/2008

Gary Strauss' May 9, 2008 SEC Form 4

73

Public, provided by
email

5/9/2008

Hubert Townshend's May 9, 2008 SEC Form 4

74

Public, provided by
email

5/12/2008

CVB 5/12/2008 10-Q

75

Dep. Ex. 82

5/15/2008

E-mail re 2008 BCB Budget, 5/15/08

76

CJM001336

5/31/2008

May 2008 Profit Report For CVB – Year to Date

77

Dep. Ex. 186

6/1/2008

The Findley Reports, Required Regulatory Interaction,
6/08

78

10278-BTCB543763303-001953

6/17/2008

June 17, 2008 Minutes of the Audit Committee

79

BC000061-79

6/19/2008

CVB Proxy Statement, June 19, 2008 Annual Meeting

80

10278-N000000364669

6/23/2008

E-mail "Tomorrow Morning" from Coger to Robbins

81

Public, provided by
email

6/27/2008

CVB 6/27/2008 8-K

82

10278-BTCB543763303-001955

6/30/2008

June 30, 2008 Profit Report For CVB – Year to Date

6/30/2008

FDIC UPBR

2
3

Description Of Exhibit

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

83

28
56

1
Ex. No.

Bates No./Other
Identifier

Document
Date

84

Dep. Ex. 156

7/7/2008

E-mail re yikes…tender offer, now this…, Community
Valley Bancorp quarterly dividend, 7/7/08

85

10278-N000000010083

7/25/2008

CVB Corporation Newsletter dated 07/25/08

86

Dep. Ex. 44

7/25/2008

Community Valley Bancorp, Accounts Payable Register.
7/25/08

8/8/2008

CVB 8/8/2008 10-Q

2
3

Description Of Exhibit

4
5
6
7
8
9

87
88

Dep. Ex. 34

8/28/2008

E-mail re Dividend Up Resolution, 8/28/08

89

10278-BTCB543763303-001469

9/16/2008

9/16/2008 Butte Community Bank Board of Directors
Meeting Minutes

90

10278-BTCB543763306-000910

9/16/2008

Declaration of Dividend Up from Butte Community Bank
to Community Valley Bancorp, 9/16/2008

91

Public, provided by
email

9/19/2008

CVB 9/19/2008 8-K

92

Public, provided by
email

9/30/2008

FDIC Quarterly Banking Profile for Third Quarter of 2007

93

Dep. Ex. 93

10/28/2008

E-mail re News Article (Director Obligation Article)

94

Public, provided by
email

11/6/2008

CVB 11/6/2008 10-Q

95

Dep. Ex. 94

11/19/2008

E-mail re Pocket Guide for Directors, 11/19/08

96

Dep. Ex. 35

12/16/2008

Declaration of Dividend Up from Butte Community Bank
to Community Valley Bancorp, 12/16/08

97

Dep. Ex. 15 excerpt,
HT03393-96

12/18/2008

Minutes of the Loan Committee, 12/18/2007

98

BC00086

12/31/2008

CVB 2008 Bank Statements

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

57

1
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

99

PerrySmith00004306

12/31/2008

Perry Smith Audit Workpapers 2009

100

Public, provided by
email

3/3/2009

CVB 3/3/2009 10-K

101

GSF004232-53

6/19/2009

CVB Proxy Statement, June 19, 2009 Annual Meeting

102

10278-N00000000755456

6/30/2009

E-mail re: $500,000 Principal Payment

10

103

Dep. Ex. 92

10/11/2009

E-mail re Fwd: FW: some additional thoughts, 10/11/09

11

104

BC00087

12/31/2009

CVB 2009 Bank Statements

12

105

PerrySmith00006630

12/31/2009

Perry Smith Audit Workpapers 2008

106

Public, provided by
email

4/25/2010

CVB 4/15/2010 10-K

107

Public, provided by
email

4/30/2010

E-mail re: Tender Offer, 4/30/10

108

BC00056-74

6/3/2010

CVB Proxy Statement, June 3, 2010 Annual Meeting

109

Public, provided by
email

3/31/2016

Butte Community Bank Receivership Balance Statement
Summary

110

Public, provided by
email

9/1/1964

Accounting Standards Board Opinion No. 5

111

Public, provided by
email

11/1/1976

Statement of Financial Accounting Standards No. 13

112

Public, provided by
email

5/1/1979

Statement of Financial Accounting Standards No. 28

2
3
4
5
6
7
8
9

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
58

1
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

113

Public, provided by
email

10/1/1982

Statement of Financial Accounting Standards No. 66

114

Dep. Ex. 75

11/14/1985

Federal Reserve Board Policy Statement, 11/14/85

115

Public, provided by
email

5/1/1988

Statement of Financial Accounting Standards No. 98

12/3/1992

FDIC Statement Concerning the Responsibilities of Bank
Directors and Officers – FIL-87-92

2
3
4
5
6
7
8
9

116

10
11

117

Public, provided by
email

5/1/1993

Statement of Financial Accounting Standards No. 114

118

Dep. Ex. 179

2/22/2013

Correction of Gary Steven Findley administrative
deposition regarding the Community Valley Bancorp
shares owned

12
13
14
15
119

Dep. Ex. 70

11/13/2013

120

Dep. Ex. 108

3/17/2014

Declaration of Keith Robbins in Support Of Defendants’
Motion For Summary Judgment, Or In The Alternative,
Partial Summary Judgment, On Plaintiff’s Complaint

121

Dep. Ex. 74

5/1/2014

Capital Earnings and Dividend Policy, Butte Community
Bank Documents

122

Dep. Ex. 128

1/19/2015

Defendant Keith Robbins’ Response to Plaintiff’s First Set
of Interrogatories

123

Dep. Ex. 130

1/19/2015

Defendant Robert Morgan’s Response To Plaintiff’s First
Set Of Interrogatories

124

Dep. Ex. 56

1/19/2015

Defendant John Coger’s Response to Plaintiff’s First Set
of Interrogatories

125

16

Answer, Affirmative Defenses And Jury Demand Of
Defendants Robert Ching, Eugene Even, Donald Leforce,
Ellis Matthews, Luther McLaughlin, Robert Morgan,
James Rickards, Gary Strauss, Hubert Townshend, John
Coger And Keith Robbins

Dep. Ex. 57

1/19/2015

Verification, John Coger, 1/19/15

17
18
19
20
21
22
23
24
25
26
27
28

59

1
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

126

Dep. Ex. 71

1/19/2015

Defendant Gary Strauss’s Response To Plaintiff’s First
Set Of Interrogatories

127

Dep. Ex. 91

1/19/2015

Defendant Donald Leforce’s Response to Plaintiff’s First
Set of Interrogatories

128

Dep. Ex. 176

6/30/2015

Butte Community Bank Receivership Balance Statement
Summary

129

Dep. Ex. 103

8/18/2015

Historical Changes of the Target Federal Funds and
Discount Rates

130

RE Ex. C

11/27/2015

"Butte Community bank BOD Minutes, Asset Liability
Management Reports"

131

RE Ex. D

11/27/2015

"Butte Community Bank, Net Income vs. Dividends Paid"

132

RE Ex. E

11/27/2015

"Community Valley Bancorp, Dividends Paid"

133

RE Ex. F

11/27/2015

"Proceeds Paid to Defendants as a Result of the Tender
Offer"

134

TH Ex. 10

11/27/2015

Percent Change in Nominal Home Prices S&P Case
Shiller Index (2002-2007)

135

TH Ex. 11

11/27/2015

Residential Loan Delinquency Rates, U.S. Federal
Reserve (1992-2008)

136

TH Ex. 12

11/27/2015

Commercial Bank Loan Delinquency Rate, Federal
Deposit Insurance Corporation (2005-2007)

137

TH Ex. 13

11/27/2015

Ration California Median Price to U.S. Median, National
Association of Realtors and California Association of
Realtors (1993-2010)

138

TH Ex. 14

11/27/2015

Share of Mortgages Delinquent 90 Days Plus 9New York
Federal Reserve (2003-2010)

139

TH Ex. 15

11/27/2015

Months Supply of Existing Homes, California Association
of Realtors (2003-2008)

140

TH Ex. 16

11/27/2015

California Notices of Default, DataQuick (2002-2011)

141

TH Ex. 17

11/27/2015

Index of Home Sale, DataQuick (2002-2010)

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

60

1
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

142

TH Ex. 18

11/27/2015

Index of Home Prices, DataQuick (2002-2010)

143

TH Ex. 19

11/27/2015

Index of Trustee Deeds Files, DataQuick (1994-2010)

144

TH Ex. 20

11/27/2015

Area Names and Locations

145

TH Ex. 21

11/27/2015

Change in Median Home Prices, DataQuick (2002-2006)

8

146

TH Ex. 22

11/27/2015

Existing Home Sales, DataQuick (2002-2010)

9

147

TH Ex. 23

11/27/2015

New Home Sales, DataQuick (2004-2008)

148

TH Ex. 24

11/27/2015

Trustee Deeds Filed, DataQuick (2002-2010)

149

TH Ex. 25

11/27/2015

Single Family Housing Permits, Construction Industry
Research Board (2002-2010)

150

TH Ex. 26

11/27/2015

Residential Sales Statistics Presented in Evan’s report to
Butte Bank (2005-2007)

151

TH Ex. 27

11/27/2015

Evans Report Outlook for Local Residential Real Estate
for 2008

152

TH Ex. 5

11/27/2015

Real Investments in Structures, Bureau of Economic
Analysis (1958-2014)

153

TH Ex. 6

11/27/2015

Building Permits, U.S. Census Bureau (1962-2014)

154

TH Ex. 7

11/27/2015

Sales and Inventories of New Single Family Homes
(2003-2007)

155

TH Ex. 8

11/27/2015

Existing Home Sales, National Association of Realtors
(1990-2010)

156

TH Ex. 9

11/27/2015

Real Home Price Index, S&P Case Shiller Index and U.S.
Bureau of Labor Statistics (1960-2011)

157

TH Ex. 29

1/18/2005

Baker, Dean. "Trouble At Home: The Housing
Bubble." Around the Kitchen Table. 18 Jan. 2005.

158

TH Ex. 34

5/27/2005

Krugman, Paul. "Running out of Bubbles." The New York
Times 27 May 2005.

2
3
4
5
6
7

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

61

1
Ex. No.

Bates No./Other
Identifier

Document
Date

159

TH Ex. 30

6/3/2005

Brand, Madeleine. "Yale Professor Predicts Housing
'Bubble' Will Burst." Day to Day. National Public Radio.
2005. Radio. Transcript.

160

TH Ex. 37

6/27/2005

Myerhoff, Matt. "Burst of Real Estate Bubble Could
Result in Recession, Economists Say." Los Angeles
Business Journal 27 June 2005.

161

TH Ex. 35

8/8/2005

Krugman, Paul. "That Hissing Sound." The New York
Times 8 Aug. 2005.

162

TH Ex. 36

8/21/2005

Leonhardt, David. "Be Warned: Mr. Bubble's Worried
Again." The New York Times 21 Aug. 2005.

163

TH Ex. 44

9/28/2005

Sing, Bill. "Peak for Housing Said to Be Near." Los
Angeles Times 28 Sept. 2005.

164

TH Ex. 28

3/30/2006

Baker, Dean. "The Menace of an Unchecked Housing
Bubble." The Economists' Voice 3.4. 30 Mar. 2006.

165

TH Ex. 45

8/15/2006

Vincent, Roger. "Real Estate Economist Leaves UCLA
Forecast." Los Angeles Times 15 Aug. 2006.

166

TH Ex. 39

8/23/2006

Nutting, Rex. "Recession Will Be Nasty and Deep,
Economist Says." Market Watch. The Wall Street Journal,
23 Aug. 2006.

167

TH Ex. 41

9/24/2006

Robledo, S. Jhoanna. "The Descent: One Extreme View of
How Long This Market Will Last." New York
Magazine 24 Sept. 2006.

168

TH Ex. 46

2/4/2007

Wilcox, Gregory. “California foreclosure rate climbs to 8year high” Chicago Tribune 04 Feb. 2007.

169

TH Ex. 43

8/17/2007

Sacramento new-home prices, sales tumble Sacramento
Business Journal 17 Aug. 2007.

170

TH Ex. 40

8/20/2007

Record number of homes on market as sales drop
Sacramento Business Journal 20 Aug. 2007.

2
3
4

Description Of Exhibit

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
62

1
Ex. No.

Bates No./Other
Identifier

Document
Date

Description Of Exhibit

171

TH Ex. 31

10/21/2007

Celaschi, Robert. “Housing haunts 2008 outlook”
Sacramento Business Journal 21 Oct. 2007.

172

TH Ex. 33

10/24/2007

Home sales drop almost 40 percent in September
Sacramento Business Journal 24 Oct. 2007.

173

TH Ex. 38

10/26/2007

New-home building permits plummet Sacramento
Business Journal 26 Oct. 2007.

174

TH Ex. 42

2/25/2008

Sacramento home prices tumble 28 percent Sacramento
Business Journal 25 Feb. 2008.

175

TH Ex. 32

2/28/2008

Home building permits fall 66 percent Sacramento
Business Journal 28 Feb. 2008.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

63

1
2

ATTACHMENT E: DEFENDANTS’ EXHIBIT LIST
Ex. No.

3
4

A

5
B

6
7

C

Description and Identifying Information
May 11, 1990 Butte Community Bank Articles of Incorporation
Bates No. Butte-01109003.
May 22, 1990 Butte Community Bank Bylaws Bates No. 10278-N000000461799 (Excerpts from
Clinton Report Exhibit 55)
November 1997 Butte Community Bank CDFI Report of Examination
Bates No. 10278-BTCB-543763322-000531

8
9

D

10

E

11
12
13

F

G

14
15

H

December 31, 1998 FDIC Report of Examination
Bates No. 10278-BTCB-543763322-000501
June 30, 2000 FDIC Report of Examination 10278-BTCB-543763322-000466
September 24, 2001 State of CDFI Report of Examination
Bates No. 10278-BTCB-543763306-000964
June 30, 2002 FDIC Report of Examination
Bates No. 10278-BTCB-543763322-000425
December 17, 2002 Minutes of the Board meeting
Bates No. FDIC-R-BUT-CHI-0000773-775 (Excerpts from Clinton Report Exhibit 55)

16
17

I

18
J

19
20

K

21
22

L

23
24

M

25

N

26
O

27

September 30, 2003 FDIC Report of Examination
Bates No. 10278-BTCB-543763322-000402
September 21, 2004 Butte Community Bank Amended and Restated Director Deferred Fee
Agreement
September 30, 2004 FDIC Report of Examination
Bates No. 10278-BTCB-543763322-000381
December 5, 2005 State of CDFI Report of Examination
Bates No. 10278-BTCB-543763322-000360
2005 FDIC Quarterly Banking Profile (Last Updated February 28, 2006)
Clinton Report Exhibit 13
September 2006 Community Valley Bancorp Quarterly Report
September 30, 2006 FDIC Report of Examination
Bates No. 10278-BTCB-543763322-000328

28
64

1
2

Ex. No.
P

3
4

Q

5
R

6
7
8

S
T

9
10

U

11
V

12

Description and Identifying Information
December 31, 2006 Community Valley Bancorp 10K Annual Report
2003-2007 SNL Data Share Repurchase Activity
Clinton Report Exhibit 20
2007 Butte Community Bank Budget Notes
(Deposition Exhibit #7)
2007 Compensation Committee Resolution of Increased Benefits for Keith Robbins
January 16, 2007 to December 16, 2008 Minutes of Bank and CVB Board of Directors Meeting
(Deposition Exhibit #2)
March 26, 2007 Email from Richard Tuohey to K Robbins Subject: Sale-Leaseback Transactions of
Bank Owned Property to Middle Market Banks (Deposition Exhibit #131)
March 26, 2007 Email from Richard Tuohey to K Robbins Subject: Sale-Leaseback Model
(Deposition Exhibit #148)

W

March 31, 2007 PeerPoint Customized Performance Analysis (Deposition Exhibit #11)

X

13

April 5, 2007 Email from Keith Robbins to Richard Tuohey re: Sale-Leaseback transactions of
Bank owned property to middle market banks

14
15

(Deposition Exhibit #132)

16
17
18

Y

Z

19
20

AA

21

BB

May 3, 2007 Email from Keith Robbins to Gary Findley re: Tender Offer
(Deposition Exhibit #111)
May 4, 2007 Email from Gary Findley to Keith Robbins re: Tender Offer
(Deposition Exhibit #190)
April 30, 2007 SEC Schedule 14A
May 15, 2007 Bank/CVB Minutes of the Board of Directors Meeting
(Deposition Exhibit #62)

22
23

CC

(Deposition Exhibit #149)

24
25

May 23, 2007 Email from Tom Killian to Calum Robertson re: Sale Leaseback Conference Call
Community Valley Bancorp

DD

May 24, 2007 Community Valley Bancorp Sale-Leaseback Transaction Analysis
(Deposition Exhibit #38)

26
27

EE

June 2007 Community Valley Bancorp Tender Offer
(Deposition Exhibit #199)

28
65

1

Ex. No.

2
3

FF

4
GG

5
6

HH

7

II

8
9

JJ

10
11

KK

12
LL

13
14

MM

15
16

NN

Description and Identifying Information
June 19, 2007 Bank/CVB Minutes of the meeting of the Board of directors
(Deposition Exhibit #64)
June 22, 2007 email from Keith Robbins to John Coger re: Stockman’s
(Deposition Exhibit #112)
July 2, 2007 Email from Peter Buck to Adam Keefer re cvll model (without attachments)
July 2, 2007 Sandler O’Neill Sale Leaseback Analysis
(Deposition Exhibit #133)
July 3, 2007 Email from Peter Buck to Murray Bodine re: updated analysis for project nba
(Deposition Exhibit #157)
July 3, 2007 Email from Adam Keefer to Keith Robbins re: Additional Analysis
(Deposition Exhibit #167)
July 5, 2007 email from Keith Robbins to Adam Keefer re: additional analysis
Clinton Report Exhibit 101
July 5, 2007 Email from Adam Keefer to Keith Robbins re: Additional Analysis
(Deposition Exhibit #168)
July 6, 2007 Email from Adam Keefer to Keith Robbins re: Additional Analysis
(Deposition Exhibit #151)

17
18

OO

19
20
21

PP

QQ

22
23

RR

July 16, 2007 Email from Peter Buck to Murray Bodine re: Cvll
(Deposition Exhibit #166)
July 16, 2007 Email from Richard Tuohey to Tom Killian re: Sale/lease
(Deposition Exhibit #135)
July 16, 2007 Email from Richard Tuohey to Adam Keefer re: Sale/lease
(Deposition Exhibit #136)
July 16, 2007 Email from Adam Keefer to Richard Tuohey re: Repurchase slides for krobbins
(Deposition Exhibit #137)

24
25

SS

26
27

TT

July 17, 2007 Email from Richard Tuohey to Keith Robbins re: Updated model with stock buyback
(Deposition Exhibit #138)
July 17, 2007 CVB share repurchase Analysis Sandler O’Neill
(Deposition Exhibit #139)

28
66

1

Ex. No.

2
3

UU

4
5

VV

WW

8
XX

9
10

YY

11
12

July 17, 2007 Email from Keith Robbins to John Coger re: updated model with stock buyback
Clinton Report Exhibit 111
July 19, 2007 Email from Tom Killian to [e-mail] re: update model with stock
buyback
(Deposition Exhibit #141)

6
7

Description and Identifying Information

ZZ

July 19, 2007 Email from Tom Killian to Richard Tuohey re: updated model with stock buyback
(Deposition Exhibit #140)
July 23, 2007 CVB Share Repurchase Analysis Sandler O’Neill
(Deposition Exhibit #1)
Email from Adam Keefer to Richard Tuohey re: updated model with stock buyback
(Deposition Exhibit #142)
July 23, 2007 Email from Richard Tuohey to Keith Robbins re: Model with Revisions
(Deposition Exhibit #144)

13
14

A-1

15
A-2

16
17

A-3

July 23, 2007 Email from Richard Tuohey to Keith Robbins re: Model with Revisions
(Deposition Exhibit #153)
July 24, 2007 Bank/CVB Minutes of the meeting of the Board of Directors
(Deposition Exhibit #65)
July 24, 2007 Butte Community Bank Amended and Restated Executive Supplemental Retirement
Plan Executive Agreement

18
19

A-4

20
21
22

A-5
A-6

23
A-7

24
25

A-8

July 26, 2007 Email from Don Leforce to Bert & Debbie Townshend re: Strategic Planning
(Deposition Exhibit #5)
August 6, 2007 Sale Leaseback Analysis Sandler O’Neill
(Deposition Exhibit #145)
INTENTIONALLY LEFT BLANK
August 7, 2007 Board of Governors of the Federal Reserve System Press Release
Clinton Report Exhibit 24
August 9, 2007 Email from Keith Robbins to John Coger re: background for 8/21 meeting
(Deposition Exhibit #200)

26
27

A-9

August 10, 2007 CVB Sale Leaseback Transaction Analysis
(Deposition Exhibit #146)

28
67

1

Ex. No.

2
3

A-10

4
A-11

5
6

A-12

Description and Identifying Information
August 21, 2007 Community Valley Bancorp Butte Community Bank Board Discussion
(Deposition Exhibit #6)
August 21, 2007 Community Valley Bancorp Butte Community Bank Board Discussion
(Deposition Exhibit #27)
August 21, 2007 Bank/CVB Minutes of the Board of Directors Meeting
(Deposition Exhibit #9)

7
8

A-13

9
10

A-14

(Deposition Exhibit #5)
August 27, 2007 Email from Murray Bodine to Keith Robbins re: here it is in word form with a few
blanks
(Deposition Exhibit #169)

11
12

August 21, 2007 Community Valley Bancorp Butte Community Bank Board Discussion

A-15

August 31, 2007 Email from Don Leforce to Gayle Lee re: Stock Price run up
(Deposition Exhibit #86)

13
September 2, 2007 Email from Gary Findley to Don Leforce re: Stock Price run up

14

A-16

15

A-17

September 30, 2007 CVB 10-Q

16

A-18

September 2007 Bank internal Executive Summary

A-19

September 5, 2007 Email from Keith Robbins to Murray Bodine re: here it is in word form with a
few blanks

17
18

Clinton Report Exhibit 129

(Deposition Exhibit #118)

19
20

A-20

(Deposition Exhibit #159)

21
22

September 5, 2007 Email from Murray Bodine to Adam Keefer re: here it is in word form with a
few blanks

A-21

September 6, 2007 Email from Don Leforce to Gary Strauss re: Increase in stock price
(Deposition Exhibit #87)

23
24

A-22

25
26
27

A-23

A-24

September 7, 2007 Community Valley Bancorp Sale Lease Back Transaction Analysis
(Deposition Exhibit #127)
September 7, 2007 Email from Keith Robbins to John Coger re: Sandler
Clinton Report Exhibit 133
September 7, 2007 Email from Richard Tuohey to Keith Robbins and John Coger re Updated Sale
Leaseback numbers, and attachment (Excerpts from Clinton Report Exhibit 55)

28
68

1
2

Ex. No.
A-25

3
4

A-26

5
A-27

6
7

A-28

8
9

A-29

10
11

A-30

Description and Identifying Information
September 10, 2007 Sale and Lease Back Funds Usage for Share Buy Back KR00022
September 11, 2007 Email from Peter Buck to Murray Bodine re: Repurchase Analysis
(Deposition Exhibit #160)
September 12, 2007 Email from Keith Robbins to Gary Findley re: Tender Offer
Clinton Report Exhibit 136
September 12, 2007 Email from Jeffrey Jones to Keith Robbins re: Meeting September 27
Clinton Report Exhibit 137
September 14, 2007 Email from Adam Keefer to Peter Buck re revised analysis for cvll (without
attachment)
September 17, 2007 Community Valley Bancorp Share Repurchase Analysis Sandler O’Neil &
Partners
(Deposition Exhibit #161)

12
13

A-30

(Deposition Exhibit #161)

14
15

September 17, 2007 Community Valley Bancorp Share Repurchase Analysis Sandler O’Neil &
Partners

A-31

September 18, 2007 Bank/CVB Minutes of the board of directors meeting
(Deposition Exhibit #10)

16
17

A-32

18
19

A-33

20

September 18, 2007 Federal Reserve Press Release
Clinton Report Exhibit 25
September 19, 2007 Email from Denna McGhee to Keith Robbins re: Cvll repurchase analysis
(Excerpts from Clinton Report Exhibit 55)

A-34

September 20, 2007 Email from Keith Robbins to John Coger, Don Leforce re: cvll repurchase
analysis (with attached September 19, 2007 Email from Denna McGhee to Keith Robbins and Gary
Findley Re: cvll repurchase analysis, and attachment) (Clinton Report Exhibit 141)

A-35

September 21, 2007 Email from Adam Keefer to Peter Buck re analysis for cvll (without
attachment)

A-36

September 21, 2007 Email from Adam Keefer to Peter Buck RE: cvll (without attachment), and
attached September 21, 2007 email string from Peter Buck to Adam Keefer

A-37

September 21, 2007 Email from Adam Keefer to Peter Buck re Attachments: 07-09-21CVLL.pdf
(but without attachment)

21
22
23
24
25
26
27

A-38

September 21, 2007 Email from Peter Buck to Keith Robbins re: repurchase analysis
(Deposition Exhibit #164)

28
69

1

Ex. No.

2
3

A-39

4
A-40

5
6

A-41

Description and Identifying Information
September 21, 2007 CVB Share Repurchase Analysis Sandler O’Neill
Clinton Report Exhibit 144
September 21, 2007 Email from Don Leforce to Gary Strauss re: Tender Offer
(Deposition Exhibit #119)
September 21, 2007 Email from Don Leforce to Gary Strauss re: Information leak
(Deposition Exhibit #88)

7
8

A-42

9
A-43

10
11

A-44

12
13

A-45

October 2, 2007 email from Keith Robbins to Denna McGhee re: cvll repurchase analysis (Clinton
Report Exhibit 147)
October 11, 2007 Email from Keith Robbins to Laura re: ITO
(Deposition Exhibit #191)
October 16, 2007 Bank/CVB Minutes of the board of Directors meeting
(Deposition Exhibit #11)
October 16, 2007 Bank/CVB Minutes of the board of Directors meeting
Bates No. FDIC00409-412

14
15

A-46

16
A-47

17
18

A-48

19
20

A-49

October 17, 2007 Email from Keith Robbins to Gary Findley re: Stolen Laptop
Clinton Report Exhibit 151
October 17, 2007 Email from Keith Robbins to Gary Findley re: Tender Offer
(Deposition Exhibit #121)
October 22, 2007 Email from Gary Findley to Keith Robbins re: Open Period
(Deposition Exhibit #202)
October 25, 2007 Email from Gary Findley to Don Leforce re: Tender Offer & information breach
(Deposition Exhibit #203)

21
October 26, 2007 email from Keith Robbins to McLaughlin

22

A-50

Re: tender offer & information breach

23

Clinton Report Exhibit 154

24

October 31, 2007

25

A-51

Federal Reserve Press Release
Clinton Report Exhibit 26

26
27

A-52

November 7, 2007 Sale and Lease Back expense comparison
Clinton Report Exhibit 155

28
70

1

Ex. No.

2
3
4

A-53
A-54

5
A-55

6
7

A-56

8
9

A-57

10
11

A-58

12
A-59

13
14

A-60

15
16

A-61

Description and Identifying Information
November 20, 2007 Bank/CVB Minutes of the board of directors meeting
(Deposition Exhibit #12)
December 2007 Executive Summary Butte Community Bank
December 4, 2007 Minutes of the Loan Committee Butte Community Bank
(Deposition Exhibit #15)
December 10, 2007 CDFI Report of Examination
Bates No. FDIC00183
2007 California Public Bank Pricing
Clinton Report Exhibit 21
2007 Holding Company Capital Analysis Publicly traded western banks
Clinton Report Exhibit 45
2000-2008 Bank Merger Data
Clinton Report Exhibit 19
2001-2008 Labor Force Statistics from the Current Population Survey
Clinton Report Exhibit 15
2006-2008 SNL Price
Clinton Report Exhibit 18

17
18
19

A-62
A-63

20
21

(Deposition Exhibit #18)
Documents Produced to FDIC-R by Raymond James & Associates
January 2008 BCB Executive Summary

A-64

Bates No. HT03510
Clinton Report Exhibit 167

22
23

2008 Butte Community Bank Budget

A-65

January 2008 Tender Offer Decision Model
(Deposition Exhibit #9)

24
25

A-66

26
27
28

January 2008 Tender Offer Decision Model
(Deposition Exhibit #2)
January 8, 2008 Minutes of the Loan Committee Butte Community Bank

A-67

Bates No. HT03515
Clinton Report Exhibit 164

71

1

Ex. No.

2
3

A-68

Description and Identifying Information
January 10, 2008 Memo to the Board of Directors from Keith Robbins re: Board of Directors
Meeting
(Deposition Exhibit #14)

4
A-69

January 10, 2008 BCB/CVB Board Packet (Clinton Report Exhibit 75)

5
6

A-70

7
8
9

A-71

A-72

10
11

A-73

January 10, 2008 Email from Keith Robbins to G Findley re: Tender Offer
(Deposition Exhibit #7)
January 10, 2008 Email from Keith Robbins to G Findley re: Tender Offer
Bates No. FDIC01385
January 11, 2008 Email from Gary Findley to Keith Robbins re: Tender Offer (Deposition Exhibit
#10)
January 15, 2008 email from Keith Robbins to G Findley re: Tender Offer
(Deposition Exhibit #8)

12
13

A-74

14

A-75

15
A-76

16
17

A-77

18
19

January 15, 2008 Bank/CVB Minutes of the Board of Directors Meeting
Bates No. FDIC00422-425
January 15, 2008 Community Valley Bancorp Minutes of the meeting of the Board of Directors
January 29, 2008 Email from John Coger to Tom Mecredy re: Butte ITO Timetable revised
Bates No. FDIC00962
INTENTIONALLY OMITTED
January 31, 2008 Risk based Capital Calculation

A-78

Bates No. HT03560
Clinton Report Exhibit 176

20
21

A-79

22
23

A-80

Documents marked at Clinton expert deposition
(Deposition Exhibit #213)
February 8, 2008 Letter to Board of Directors Community Valley Bancorp from Howe Barnes
Hoefer & Arnett
Bates No. 000021-23

24
25

A-81

February 11, 2008 Email from Keith Robbins to John Coger, Gary Findley and Don Leforce re:
Howe Barnes (Clinton Report Exhibit 181)

26

A-82

February 11, 2008 Email from Don Leforce to Luther McLaughlin re: Fairness Opinion

A-83

February 12, 2008 Email from Laura Dean-Richardson to Tom Kwan, et al. re: Tender Offer
Questions and revised timetables

27
28

72

1

Ex. No.

2

Description and Identifying Information
(Deposition Exhibit #207)

3
A-84

February 12, 2008 email from Laura Dean-Richardson to Tom Kwan re: Press Release

4

(Deposition Exhibit #208)

5

February 13, 2008 Email from Gary Findley to Keith Robbins re: Butte Press Release (including
attached Draft March 2008 CVB Tender Offer press release)

A-85

6

Clinton Report Exhibit 186

7

A-86

Intentionally Omitted

8

A-87

February 14, 2008 BCB/CVB Board Packet (Clinton Report Exhibit 76)

9
A-88

10
11
12

A-89
A-90

13
14

A-91

15
16

A-92

17
18

A-93

21

A-94
A-95

22
A-96

23
24

Bates No. FDIC00954
February 19, 2008 Certificate of Secretary James Rickards
March 2008 Quarterly Banking Profile
Clinton Report Exhibit 14
March 7, 2008 Email from Laura Dean Richardson to John Coger, et al. re: Tender Offer Docs, and
attachments (Clinton Report Exhibit 192)
March 13, 2008 Email from Gayle Lee to Keith Robbins re: Tender Offer has been posted
(Deposition Exhibit #54)
March 13, 2008 Email from Nicole Howell to Jimmy Dunne re: Community Valley Bancorp
Announces Tender Offer
Clinton Report Exhibit 196

19
20

February 14, 2008 Email from Thomas Q. Kwan to Gary Findley re: Option Exercise vs Tender

A-97

March 25, 2008 Bank/CVB Minutes of the Board of Directors Meeting
Bates No. FDIC00436-439
March 20, 2008 BCB/CVB Board Packet (Clinton Report Exhibit 77)
March 31, 2008 Statistics at a glance
Clinton Report Exhibit 5
April 3, 2008 Email from Murray Bodine to Peter Buck re: Gold Country
(Deposition Exhibit #163)

25
26
27

A-98
A-99

Documents produced by Robert Ching at his deposition
(Deposition Exhibit #1)
April 10, 2008 BCB/CVB Board Packet excerpt

28
73

1

Ex. No.

2
3

Description and Identifying Information
(Deposition Exhibit #42)

A-100

4
A-101

5

April 10, 2008 BCB/CVB Board Packet (Clinton Report Exhibit 78)
April 22, 2008 Email from Adam Keefer to Keith Robbins re: Contact info
(Deposition Exhibit #170)

6

A-102

Excerpts of June 2008 BCB/CVB Board Packet (Clinton Report Exhibit 80)

7

A-103

May 5, 2008 SEC Statement of Changes in Beneficial Ownership re CVB Directors
May 5, 2008 Tender Offer Statement

8
9

A-104

Bates No. FDIC001132
Clinton Report Exhibit 206

10
A-105

May 8, 2008 BCB/CVB Board Packet (Clinton Report Exhibit 79)

11
12

A-106

13
A-107

14
15
16

A-108
A-109

17
18

A-110

March 31, 2008 FDIC Quarterly Banking Profile (Last Updated May 29, 2008)
Clinton Report Exhibit 6
Email from Adam Keefer to Keith Robbins re: Revised Analysis
(Deposition Exhibit #171)
June to December 2008 BCB Executive Summary
June 2, 2008 Email from Adam Keefer to Keith Robbins re: revised analysis
(Deposition Exhibit #172)
June 5, 2008 Email from Adam Keefer to Keith Robbins re: revised analysis
(Deposition Exhibit #173)

19
20

A-111

June 2008 Bank/CVB Board Packet (printed from Relativity starting at 10278-BTCB-543763303002092 and ending at 10278-BTCB-543763303-002220 but does not bear Relativity identifying
numbers or any other Bates numbers)

21
22

A-112

23
24

A-113

25
A-114

26
27
28

A-115

June 24, 2008 Resolution Negative Pledge Agreement
Bates No. PerrySmith00013553-578
June 25, 2008 Federal Reserve Press Release
Clinton Report Exhibit 32
June 30, 2008 CVB 10-Q
(Deposition Exhibit #107)
June 30, 2008 Collateral Receipt
Bates No. FDIC00576

74

1
2
3

Ex. No.
A-116

June 30, 2008 BCB Call Report

A-117

July 10, 2008 BCB/CVB Board Packet (Clinton Report Exhibit 81)

4
5

Description and Identifying Information

A-118

July 13, 2008 CNNMoney Article The Fall of IndyMac
Clinton Report Exhibit 40

6

A-119

July 15, 2008 Butte Community Bank Agenda

7

A-120

July 15, 2008 Minutes of the Board of Directors Butte Community Bank

8

A-121

July 15, 2008 Community Valley Bancorp Minutes of the Meeting of the Board of Directors

9
A-122

10
11
12

A-123
A-124

13
14
15

A-125
A-126

July 24, 2008 Minutes of the regular ALCO Meeting Butte Community Bank
Clinton Report Exhibit 71
August 19, 2008 Bank/CVB Minutes of the Board of Directors Meeting
June 30, 2008 Quarterly Banking Profile (Last Updated August 26, 2008)
Clinton Report Exhibit 7
INTENTIONALLY OMITTED
September 15, 2008 The New York Times Article Lehman Files for Bankruptcy; Merrill is Sold
Clinton Report Exhibit 36

16
17

A-127

18
19

A-128

September 16, 2008 Bank/CVB Minutes of the Board of Directors Meeting
(Deposition Exhibit #33)
Wall Street Journal Article WaMu is Seized, Sold off to J.P. Morgan, In Largest failure in U.S.
Banking History
Clinton Report Exhibit 35

20
21

A-129

22
23

A-130

24
A-131

25
26

A-132

27
28

A-133

September 30, 2008 FDIC Report of Examination
(Deposition Exhibit #174)
October 3, 2008 The New York Times Article Wells Fargo to Buy Wachovia in $15.1 Billion Deal
Clinton Report Exhibit 37
October 14, 2008 USA Today Article Dow Suffers its Worst Drop Ever
Clinton Report Exhibit 42
October 21, 2008 Bank/CVB Minutes of the Board of Directors Meeting
Bates No. FDIC00463-467
October 23, 2008 Email from B08-22 to Keith Robbins re: Bank B08-22 Acquisition Opportunity

75

1

Ex. No.

2
3

A-134

4
A-135

5
6

A-136

Description and Identifying Information
November 18, 2008 Bank Minutes of the Meeting of the Board of Directors
Bates No. FDIC00474-477
November 18, 2008 Community Valley Bancorp Minutes of the Meeting of the Board of Directors
Bates No. FDIC00468
September 30, 2008 Quarterly Banking Profile (Last Updated November 25, 2008)
Clinton Report Exhibit 8

7
8

A-137

9
10

A-138

11
A-139

12
13

A-140

14

December 15, 2008 Email from Keith Robbins to Don Leforce re: TARP
Clinton Report Exhibit 224
December 31, 2008 Perry-Smith workpapers
(Deposition Exhibit #96)
December 31, 2008 Statistics at a glance
Clinton Report Exhibit 4
December 31, 2008 CVB 10-K
(Deposition Exhibit #102)

A-141

December 31, 2008 BCB Call Report

16

A-142

2009 Subscription Agreement for the Purchase of Note and Exchange of Note for preferred stock in
CVB executed by Luther McLaughlin

17

A-143

August 21, 2007 to February 5, 2009 CVB stock purchase confirmations for Luther McLaughlin

15

18
19

A-144

20
21

February 13, 2009 Memorandum to Directors from Gayle Lee
(Deposition Exhibit #31)
March 11, 2009 FDIC Letter to Butte Community Bank

A-145

Bates No. FDIC-CORPORATE/CHING-0001
Clinton Report Exhibit 74

22
23

A-146

24
25

A-147

26
27

2008 Quarterly Banking Profile (Last Updated March 18, 2009)
Clinton Report Exhibit 12
December 31, 2008 Quarterly Banking Profile (Last Updated March 20, 2009)
Clinton Report Exhibit 9
2008 Quarterly Banking Profile

A-148

(Last Updated March 20, 2009)
Clinton Report Exhibit 10

28
76

1

Ex. No.

2

Description and Identifying Information

A-149

April 29, 2009 Letter from the FDIC to Board of Directors Butte Community Bank re:
Memorandum of Understanding

A-150

May 1, 2009 SEC Schedule 14A

3
4
5

A-151

March 31, 2009 Quarterly Banking Profile (Last Updated May 19, 2009)
Clinton Report Exhibit 11

6
7
8
9

A-152
A-153
A-154

July 20, 2009 BankVision Inc. Butte Community Bank Administration/Finance/ Treasury Audit
December 31, 2009 CVB 10-K
(Deposition Exhibit #16)
December 31, 2009 Keith Robbins brokerage account statement reflecting CVB holdings

10
2010 FDIC Sales

11

A-155

12

A-156

January 28, 2010 Community Valley Bancorp Certificate of Preferred Stock

13

A-157

February 2010 Surrender and Death Benefit Report

A-158

June 22, 2010 Agreement for termination of Keith Robbins Salary continuation agreement and
Supplemental executive retirement agreement and release and waiver

A-159

August 1, 2000 Keith Robbins Executive Retirement Plan Executive Agreement

A-160

June 30, 2010 CVB 10-Q

A-161

August 20, 2010 FDIC Press Release Rabobank, National Association Acquires all the deposits of
two banks in California

14
15
16
17
18
19

Clinton Report Exhibit 22

(Deposition Exhibit #177)

20
A-162

August 20, 2010 Butte Community Bank Bid Summary

21

(Deposition Exhibit #175)

22

August 20, 2010 The Findley Reports The Failure of Butte Community Bank and the assumption of
all deposits and the purchase of certain assets by Rabobank

A-163

23

(Deposition Exhibit #210)

24
A-164

August 20, 2010 Purchase and Assumption Agreement FDIC & Rabobank

25

(Deposition Exhibit #178)

26

September 30, 2010 Guru Focus Article Big Time Investors who Made Big Time Mistakes Example
#2 Tom Brown Prominent Bank Stock Analyst of Second Curve Capital Calls the bottom of
Financials in the Fall of 2007!

27
28

A-165

Clinton Report Exhibit 44

77

1
2
3
4
5

Ex. No.
A-166

November 22, 2010 FDIC-R Proof of Claim John Coger deferred compensation

A-167

December 17, 2010 Letter from FDIC to Donald Leforce re: Notice of Disallowance of Claim

A-168

December 17, 2010 Letter from FDIC to John Coger re: Notice of Disallowance of Claim

A-169

December 17, 2010 Letter from FDIC to Keith Robbins re: Notice of Disallowance of Claim

6
7

A-170

8
A-171

9
10

A-172

July 1, 2012 the Wall Street Journal BofA’s Blunder: $40 Billion-Plus
Clinton Report Exhibit 33
March 19, 2013 Sale and Lease Back Funds Usage for Share Buy Back
(Deposition Exhibit #4)
April 30, 2013 Settlement Agreement and Release CVB and FDIC
July 2013 FDIC Office of the Comptroller of the Currency New Capital Rule

11
12

Description and Identifying Information

A-173

Community Bank Guide
Hargett Report Exhibit

13
14

A-174

15
16
17

A-175

A-176

18
19

2000-2015 S&P Dow Jones Indices S&P / Case-Shiller 20-City Composite Home Price Index
Clinton Report Exhibit 23

February 20, 2015 print-out of FDIC Failed Bank List identifying banks that have failed since
October 1, 2000 (attached as Exhibit G to Defendant Donald Leforce’s First Set of Requests for
Admission dated February 20, 2015)

A-179

A-180

25
A-181

27
28

Hargett Report Exhibit

A-178

24

26

September 10, 2013 Federal Register Vol. 78 No. 175

February 21, 20014 Article from The Sacramento Bee As 2008 “Economic Disaster Loomed,
Yellen first for Aggressive Action, Transcripts Show”

22
23

Hargett Report Exhibit

A-177

20
21

July 9, 2013 FDIC Financial Institution Letter

A-182

June 30, 2015 Butte Community Bank Receivership Balance Sheet Summary
(Deposition Exhibit #176)
Sandler O’Neill Excel Earnings Analysis
(Deposition Exhibit #72)
August 6, 2015 The Wall Street Journal Fannie Mae to Send $4.4 Billion to Treasury Department
Clinton Report Exhibit 34
August 28, 2015 Email from Heftman Lawrence to Linda Kim re: Meet and Confer

78

1

Ex. No.

2

Description and Identifying Information

A-183

September 30, 2015 Failed Bank Information from FDIC website Butte Community Bank
Receivership Balance Sheet Summary

A-184

October 27, 2015 Fully Vested BOLI and Deferred Total Payout

3
4
5

A-185

Community Valley Bancorp Issue Tender Offer Timetable & Schedule of Responsibilities
(Deposition Exhibit #193)

6
7

A-186

Clinton Report Exhibit 43

8
9

A-187

10
11

A-188

A-189

A-190

16
17
18

Clinton Report Exhibit 17

A-192

Section 6.1 of the FDIC’s Risk Management Manual of Examination Policies (attached to FDICR’s Response to Defendant Donald Leforce’s First Set of Requests for Admission dated April 17,
2015)

A-193

FDIC Law, Regulations, Related Acts 5000 Statements Policy Uniform Financial Institutions
Ratings System
Hargett Report Exhibit

A-194

23
24

Federal Reserve Board Discount Rate Historical Data Dating Back to 2003

December 31, 2005 UBPR Reports (Clinton Report Exhibit 3)

21
22

Federal Reserve Board Household Debt Service and Financial Obligations Ratios Historical Data
Dating Back to 1980 (Last Updated June 17, 2015)

A-191

19
20

2015 Bank of America Web Article Financial Releases Bank of America Agrees to Purchase
Countrywide Financial Corp.

Clinton Report Exhibit 16

14
15

December 31, 2015 Failed Bank Information from FDIC website Butte Community Bank
Receivership Balance Sheet Summary

Clinton Report Exhibit 41

12
13

November 18, 2015 CNSNEWS Web Article Bernanke Leaves Fed with Record Balance Sheet of
$4,138,000,000

A-195

FDIC Regulatory Capital Interim Final Rule
Hargett Report Exhibit
Expanded Community Bank Guide to the New Capital Rule for FDIC Supervised Banks
Hargett Report Exhibit

25
Community Valley Bancorp Issue Tender Offer Timetable & Schedule of responsibilities

26
27

A-196

Butte Community Bank Capital Earnings and Policy
(Deposition Exhibit #193)

28
79

1

Ex. No.

2
3

July 23, 2007 Share Repurchase Analysis (including Base Case Forecast Sandler O’Neill& Partners
A-197

Bates No. SOP_REV00000485)
(Deposition Exhibit #67)

4
5

Description and Identifying Information

A-198

Prompt Corrective Action Categories
Hargett Report Exhibit

6
7

A-199

Risk Management Manual of Examination Policies Section 6.1 Liquidity and Funds Management
(DE 21 at pp. 142-162)

8

A-200

FDIC Supervisory Policy and Guidance Topics Allowance for Loan and Lease Losses (ALLL)

9

A-201

INTENTIONALLY LEFT BLANK

10
A-202

11
12

A-203

13
14

A-204

CVB’s Form 10-K for period ending December 31, 2005
[Hargett Report Exhibit]
CVB’s Form 10-K for period ending December 31, 2006
[Hargett Report Exhibit]
CVB’s Form 10-K for period ending December 31, 2007
[Hargett Report Exhibit]

15
16

A-205

17
18

A-206

19
20

A-207

[Hargett Report Exhibit]
CVB’s Form 10-K for period ending December 31, 2009
[Hargett Report Exhibit]
Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date March 31, 2001
[Hargett Report Exhibit]

21
22

CVB’s Form 10-K for period ending December 31, 2008

A-208

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date June 30, 2001
[Hargett Report Exhibit]

23
24

A-209

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2001

25

[Hargett Report Exhibit]

26

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date December 31, 2001

A-210

27

[Hargett Report Exhibit]

28
80

1

Ex. No.

2
3

A-211

Description and Identifying Information
Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date March 31, 2002
[Hargett Report Exhibit]

4
5

A-212

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date June 30, 2002

6

[Hargett Report Exhibit]

7

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2002

A-213

8

[Hargett Report Exhibit]

9

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date December 31, 2002

10

A-214

[Hargett Report Exhibit]

11
12

A-215

[Hargett Report Exhibit]

13
14

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date March 31, 2003

A-216

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date June 30, 2003

15

[Hargett Report Exhibit]

16

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2003

A-217

17

[Hargett Report Exhibit]

18
19

A-218

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date December 31, 2003
[Hargett Report Exhibit]

20
21

A-219

[Hargett Report Exhibit]

22
23

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date March 31, 2004

A-220

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date June 30, 2004

24

[Hargett Report Exhibit]

25

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2004

26

A-221

[Hargett Report Exhibit]

27
A-222

28

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date December 31, 2004

81

1

Ex. No.

2

[Hargett Report Exhibit]

3
4

A-223

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date March 31, 2005
[Hargett Report Exhibit]

5
6

Description and Identifying Information

A-224

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date June 30, 2005
[Hargett Report Exhibit]

7
8

A-225

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2005
[Hargett Report Exhibit]

9
10
A-226

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date December 31, 2005

11

[Hargett Report Exhibit]

12

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date March 31, 2006

13

A-227

[Hargett Report Exhibit]

14
15

A-228

[Hargett Report Exhibit]

16
17

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date June 30, 2006

A-229

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2006

18

[Hargett Report Exhibit]

19

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date December 31, 2006

A-230

20

[Hargett Report Exhibit]

21
22

A-231

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date March 31, 2007
[Hargett Report Exhibit]

23
24

A-232

[Hargett Report Exhibit]

25
26
27

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date June 30, 2007

A-233

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2007
[Hargett Report Exhibit]

28
82

1
2
3
4

Ex. No.
A-234

INTENTIONALLY OMITTED

A-235

INTENTIONALLY OMITTED

A-236

INTENTIONALLY OMITTED

A-237

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2008

5
6

[Hargett Report Exhibit]

7
8

Description and Identifying Information

A-238

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date December 31, 2008
[Hargett Report Exhibit]

9
10
A-239

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date March 31, 2009

11

[Hargett Report Exhibit]

12

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date June 30, 2009

13

A-240

[Hargett Report Exhibit]

14
15

A-241

[Hargett Report Exhibit]

16
17
18

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date September 30, 2009

A-242

Butte Community Bank’s Call Report (Consolidated Report of Condition and Income) for Quarter
End Date December 31, 2009
[Hargett Report Exhibit]

19
20
21
22
23
24
25
26
27
28
83