Irving H. Picard v. Saul B. Katz et al

Filing 105

DECLARATION of David C. Newman in Support re: 80 MOTION to Strike THE EXPERT REPORTS AND TESTIMONY OF STEVE POMERANTZ AND HARRISON J. GOLDIN.. Document filed by Charles 15 Associates, Charles 15 LLC, Charles Sterling LLC, Charles Sterling Sub LLC, College Place Enterprises LLC, Coney Island Baseball Holding Company LLC, Estate of Leonard Schreier, FFB Aviation LLC, FS Company LLC, Fred Wilpon Family Trust, Arthur Friedman, Ruth Friedman, Iris J. Katz and Saul B. Katz Family Foundation, Inc., Judy and Fred Wilpon Family Foundation, Inc., Amy Beth Katz, David Katz, Dayle Katz, Gregory Katz, Howard Katz, Iris Katz, 157 J.E.S. LLC, Air Sterling LLC, BAS Aircraft LLC, Jason Bacher, Bon Mick Family Partners LP, Bon-Mick, Inc., Brooklyn Baseball Company LLC, C.D.S. Corp., Michael Katz, Saul B. Katz, Todd Katz, Katz 2002 Descendants' Trust, Heather Katz Knopf, Natalie Katz O'Brien, Mets II LLC, Mets Limited Partnership, Mets One LLC, Mets Partners, Inc., Minor 1 (REDACTED), Minor 2 (REDACTED), L. Thomas Osterman, Phyllis Rebell Osterman, Realty Associates Madoff II, Red Valley Partners, Robbinsville Park LLC, Ruskin Garden Apartments LLC, Saul B. Katz Family Trust, Michael Schreier, Deyva Schreier Arthur, See Holdco LLC, See Holdings I, See Holdings II, Sterling 10 LLC, Sterling 15C LLC, Sterling 20 LLC, Sterling Acquisitions LLC, Sterling American Advisors II LP, Sterling American Property III LP, Sterling American Property IV LP, Sterling American Property V LP, Sterling Brunswick Corporation, Sterling Brunswick Seven LLC, Sterling Dist Properties LLC, Sterling Equities, Sterling Equities Associates, Sterling Equities Investors, Sterling Heritage LLC, Sterling Internal V LLC, Sterling Jet II Ltd., Sterling Jet Ltd., Sterling Mets Associates, Sterling Mets Associates II, Sterling Mets LP, Sterling Pathogenesis Company, Sterling Third Associates, Sterling Thirty Venture LLC, Sterling Tracing LLC, Sterling Twenty Five LLC, Sterling VC IV LLC, Sterling VC V LLC, Edward M. Tepper, Elise C. Tepper, Jacqueline G. Tepper, Marvin B. Tepper, Valley Harbor Associates, Kimberly Wachtler, Philip Wachtler, Bruce N. Wilpon, Daniel Wilpon, Debra Wilpon, Fred Wilpon, Jeffrey Wilpon, Jessica Wilpon, Judith Wilpon, Richard Wilpon, Scott Wilpon, Valerie Wilpon, Wilpon 2002 Descendants' Trust, Robin Wilpon Wachtler. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Seshens, Dana)

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C O N F I D E N T I A L

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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
11-CV-03605(JSR)(HBP)

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IRVING H. PICARD, Trustee for
the Liquidation of Bernard L.
Madoff Investment Securities LLC,

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Videotaped
Deposition of:

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Plaintiff,

HARRISON J. GOLDIN

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v.
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SAUL B. KATZ, et al.,
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Defendants.
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TRANSCRIPT of testimony as taken by and before

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NANCY MAHONEY, Certified Court Reporter, Registered

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Professional Reporter, and Notary Public of the

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States of New York and New Jersey, at the offices of

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Davis Polk & Wardwell, 450 Lexington Avenue

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New York, New York on January 12, 2012, commencing

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at 9:30 a.m.

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PICARD v. KATZ, et al.

CONFIDENTIAL

HARRISON J. GOLDIN 1/12/12
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A.
Q.

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A.

Yes, with pride.
Here in the State of New York?
Yes, sir.

I have a, I should tell

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you, a limited and restricted license.

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provides licenses for people who profess not to be

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active in the practice of law, and every year for

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many years I have so represented to the state.

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Q.

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So you're licensed, but you're not

active?
A.

I'm licensed, but I'm not licensed to

be an active practicing attorney.
Q.

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The state

Understood.
Are you aware of the federal

statutory scheme known as ERISA?
A.
Q.

In a general way, yes.
Does ERISA provide the statutory

basis for the regulation of benefit plans?
A.

I've never read ERISA.

I've retained

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ERISA counsel over the years from time to time.

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I've received advice on ERISA.

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relates to retirement plans, I believe retirement

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plans organized under Section 401(k) of the Internal

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Revenue Code, but I'm not an expert on ERISA.

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Q.

I'm aware that ERISA

Are you aware that ERISA provides

regulation for benefit plan fiduciaries?
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PICARD v. KATZ, et al.

CONFIDENTIAL

HARRISON J. GOLDIN 1/12/12
23

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A.

In a general way.

I have a sense, as

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I just testified, that ERISA is applicable to the

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activities of fiduciaries in connection with 401(k)

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plans, but, as I just testified, I've never read the

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statute and I'm certainly not an expert on it.

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Q.

Do you know whether ERISA defines the

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standard of care with which a fiduciary relating to

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a benefit plan must act?

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MR. SUSANIN:

Object.

I think it's

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been asked and answered with regard to his

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understanding of ERISA more than once.

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A.

Again, I have a general understanding

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of ERISA.

I know that it relates to prudent experts

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being the kinds of people who have to play roles

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when it comes to managing or safeguarding other

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people's retirement assets, that it requires a

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number of considerations, but I'm -- I'm not an

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expert on the statute.

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Q.

Fair to say, then, that you were not

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engaged -- Goldin Associates was not engaged to

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provide ERISA advice?

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A.
Q.

That is correct.
Also correct that you and Goldin

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Associates were not engaged to provide legal

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advisory services to the Trustee?
BENDISH REPORTING, INC.
877.404.2193

PICARD v. KATZ, et al.

CONFIDENTIAL

HARRISON J. GOLDIN 1/12/12
68

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issue.

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experts myself in connection with risk management

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and diversification, for that matter as well, but

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the essential elements of risk management are the

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ones that I just described to you in my prior

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answer.

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I said to you earlier I've often consulted

Q.

If an individual has investment

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experience in a particular investment option and

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understands the risk associated with that investment

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option, is that a piece that's relevant to

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understanding risk management?

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A.

Well, we are speaking now

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specifically -- at least I am -- about retirement

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plan management.

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individual who decides how to invest his or her own

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money.

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We're not speaking about some

The criteria that relate to how

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people may invest their own money are wholly

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separate and apart from the standards that apply to

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the management of an investment and safeguarding of

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other people's retirement money.

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When it comes to a role in connection

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with the management, investment, safeguarding of

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other people's retirement money, the standard in the

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industry requires that the person who exercises
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