1 UNITED STATES DISTRICT COURT FOR THE DISTRICT ... - …...Justice Tatel, writing for a unanimous panel, said, once again, that's too bad. The Court doesn't determine justice based

Rebecca Stonestreet (202) 354-3249 [email protected]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELOUISE PEPION COBELL, et al.

Plaintiffs

V.

DIRK KEMPTHORNE, Secretary of the Interior, et al.

Defendants

::::::::::

Civil Action 96-1285

Washington, D.C.Monday, June 9, 2008

MORNING SESSION

TRANSCRIPT OF EVIDENTIARY HEARING

DAY 1

BEFORE THE HONORABLE JAMES ROBERTSON

UNITED STATES DISTRICT JUDGE

APPEARANCES: For the Plaintiffs: DENNIS GINGOLD, ESQUIRE LAW OFFICES OF DENNIS GINGOLD

607 14th Street, NW Ninth Floor Washington, DC 20005 (202) 824-1448

ELLIOTT H. LEVITAS, ESQUIRE WILLIAM E. DORRIS, ESQUIRE

KILPATRICK STOCKTON, L.L.P. 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309-4530 (404) 815-6450

KEITH HARPER, ESQUIRE JUSTIN GUILDER, ESQUIRE

KILPATRICK STOCKTON, L.L.P. 607 14th Street, N.W. Suite 900 Washington, D.C. 20005 (202) 585-0053

DAVID C. SMITH, ESQUIRE KILPATRICK STOCKTON, L.L.P. 1001 West Fourth Street Winston-Salem, North Carolina 27101 (336) 607-7392


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For the Defendants: ROBERT E. KIRSCHMAN, JR., ESQUIREJOHN WARSHAWSKY, ESQUIRE

MICHAEL QUINN, ESQUIRE J. CHRISTOPHER KOHN, ESQUIRE

GLEN GILLETT, ESQUIREU.S. Department of Justice

1100 L Street, N.W. Washington, D.C. 20005

(202) 307-0010 JOHN STEMPLEWICZ, ESQUIRE Senior Trial Attorney U.S. Department of Justice Commercial Litigation Branch

Civil Division Ben Franklin Station

P.O. Box 975 Washington, D.C. 20044 (202) 307-1104

Court Reporter: REBECCA STONESTREET Official Court Reporter Room 6511, U.S. Courthouse 333 Constitution Avenue, N.W. Washington, D.C. 20001 (202) 354-3249

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.


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C O N T E N T S

WITNESS DIRECT CROSS REDIRECT RECROSS

DOUGLAS LAYCOCKBy Mr. Gingold 40 -- 93 --By Mr. Gillett -- 69 -- --

E X H I B I T S

NUMBER ADMITTED

(No Exhibits Moved into Evidence.)

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P R O C E E D I N G S

COURTROOM DEPUTY: This is Civil Action 96-1285,

Elouise Pepion Cobell, et al. versus Dirk Kempthorne, et al.

For the plaintiffs we have Dennis Gingold, Elliott Levitas,

Keith Harper, and for the defendant we have John Stemplewicz,

John Warshawsky, Robert Kirschman, and Michael Quinn.

THE COURT: The plaintiffs in this case -- plaintiffs

usually go first. I'm wondering if given the nature of these

proceedings, whether the defense would like to open first. If

not, have you any agreement about who speaks first? I assume

you're both going to make opening statements.

MR. KIRSCHMAN: Yes, Your Honor, we're both going to

make opening statements.

I anticipate that at the start of the case, at least,

we will be responding to plaintiffs' case, so I would cede to

plaintiffs' counsel unless he has an objection to presenting.

THE COURT: I've never heard Mr. Gingold object to

standing up to speak. So Mr. Gingold, proceed.

MR. GINGOLD: Good morning, Your Honor.

THE COURT: Good morning.

MR. GINGOLD: Just a note, Your Honor. I did have an

objection to standing up after the end of our 59-day IT security

trial. That was an exhausting period of time.

Your Honor, thank you very much for setting this date

for trial. We hope to go to final judgment in this case, which

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will reach its 12th anniversary tomorrow.

The history of this case is well-known to this Court.

This Court has held that the government has a fiduciary duty to

account, and has held that the government has breached its

fiduciary duty to account. The United States Court of Appeals

has affirmed this Court's decision.

This Court has also held that the United States

government has failed to render the accounting that's been

declared, and in fact has concluded that the accounting is now

impossible.

Your Honor, the law that applies to this case is

settled law. It is settled law in this district and it is

settled law in this circuit and it is settled law in the

Supreme Court. We have a situation where the government is

acting as trustee; that situation involves the government

failing to discharge its trust duties. We're looking at a

judgment, if plaintiffs' request is granted, that is

substantially into the billions of dollars. That's a lot of

money, but it's been 121 years, and these have been our clients'

funds for 121 years.

Justice Jackson in Mosser vs. Darrow in 1951 addressed

an accounting case involving a fiduciary at the Supreme Court,

and the appellant in that case specifically claimed that the

amount of money was too much, based on the time that accrued and

based on the original funds that had been collected.

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Justice Jackson's reaction was basically, it's too bad.

The duty to account imposes on fiduciaries the duty to provide a

full accounting, and if in fact the fiduciary failed to do so,

then whatever the just and proper amount is is what must be

rendered, without regard to fault, without regard to malice, and

Your Honor, even without regard to negligence.

In a recent case in this circuit involving

In Re: Medicare, a similar issue was raised at the Court of

Appeals by the government, which was defendant, because the

government claimed if in fact these statutory obligations were

affirmed by the Court of Appeals, that the cost to the

government could be in excess of a billion dollars.

Justice Tatel, writing for a unanimous panel, said,

once again, that's too bad. The Court doesn't determine justice

based on the amount because of the statutory obligations that

are in place, and those obligations cannot be vitiated in

accordance with principles of equity. And that was a decision

against the United States government, Your Honor.

In this Court's pretrial order, it established, at

least what plaintiffs understand, is the procedures that will

apply in this litigation. In this court in 1945, in Cafritz vs.

Corporation Audit Company, there was a situation there where the

fiduciary failed to render an accounting, and in fact, the

District Court in that case held that under the circumstances,

if in fact the specific items cannot be proved by the fiduciary

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to reduce the amount that is claimed by the plaintiff, then in

fact all inferences are against the fiduciary and the amount

that is requested will be sustained.

At 632 of that opinion, specifically this court held,

again in 1945, "When a fiduciary is under a duty to account and

he fails to do so, the only inference to be drawn is that he

could not satisfactorily explain the transaction without an

admission of guilt."

In 1961, this circuit addressed a similar situation in

Rosenak (ph) vs. Pollard. In that case the Court of Appeals,

again in conformity with Cafritz - and Cafritz explicitly

identified the need to provide checks, to provide securities, to

provide the specific evidence that is necessary for the

defendants to meet their burden - but in Rosenak (ph) v.

Pollard, the Court said, "The burden of establishing the

non-existence of money due to plaintiff rests on the defendant.

Because of the very nature of the remedy, that burden cannot

rest upon plaintiffs, but must shift to the defendant when facts

giving rise to a duty to account have been alleged and

admitted."

Your Honor, the duty to account has been alleged. It

hasn't been admitted, but it's been found, and the duty to

account has been breached, and, in fact, it's been rendered

impossible.

So Your Honor, these are the decisions that are

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directly relevant in our case. These are in conformity with

decisions throughout the United States since the turn of the

20th century. Plaintiffs, as a result of the inability to get

an accounting, are now unable to determine with any degree of

precision the amount of injuries that have been sustained by the

members of the class. We will never know now where the tens of

millions of acres of land that were in this trust have gone,

when there's no evidence that the land was ever sold or that

fair market value was paid.

We will never know --

THE COURT: We're not talking about land in this

proceeding. Right?

MR. GINGOLD: That's correct. But Your Honor, we asked

for an accounting of the trust, and Court of Appeals in

Cobell VI identified the accounting as all items of the trust.

The government has stated --

THE COURT: But in this proceeding we're talking about

cash in, cash out. Right?

MR. GINGOLD: That's correct. I did not suggest --

THE COURT: Let's just all be on the same page about

that.

MR. GINGOLD: That's all we're talking about. And

we're only talking about that in significant part, Your Honor,

because there cannot be an accounting of those other assets.

So I am in full agreement, we are all in full agreement

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with you with regard to the narrow scope of this proceeding.

We're dealing with the funds that were collected, we're dealing

with whether or not the funds were disbursed, we're dealing with

whether or not interest is to be earned, or another form of

recovery in the form of unjust enrichment is appropriate to be

paid. We're dealing with whether or not the prejudgment

interest rules that generally apply apply to this case. And

Your Honor, they do not.

This is a trust case, this is a trust case where

plaintiffs have charged unjust enrichment, and in 1926, the

Supreme Court held that where there is unjust enrichment, all

profits obtained in connection with the use of the trust funds

must be disgorged, that it is outside the scope of the

no-interest rule. That was the unanimous decision written by

Justice Sutherland.

In addition, we have Bowen vs. Massachusetts, which

everyone is familiar with, and Bowen deals with specific relief;

as a matter of fact, a statutory obligation which was embedded

in the statute as a promise to pay. The government breached

that promise, the monies that were recovered were monetary

relief, the Supreme Court held specifically that did not

constitute damages, and, in fact, it was a recovery of the very

thing that the plaintiff was entitled to receive.

Your Honor, we have two statutes that obligate the

payment of interest. We have one which is the 1994 Act which

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explicitly applies only to the individual Indians and the

Individual Indian Trust, and not to the tribes, and applies

retroactively with regard to any deposits or investments made of

the Individual Indian Trust funds. It does specifically apply

solely if the deposit was made, not if the investment was made

with those funds, even though it was obligated by statute. And

again, that is a retroactive statute.

We also have an 1841 Act, which was amended several

times, including in 1880 and last in September of 1982. And it

specifically states that all trust funds -- that trust funds

held by the government shall be invested in government

securities and shall pay an interest rate of not less than five

percent.

That statute has been rarely invoked, but it had been

utilized for a period of time through approximately 1880 for the

payment of interest on the Tribal Trust funds. The ability to

obtain the five percent was difficult, so the act was amended

for the tribes, a new statute was created, and separate interest

is provided.

Your Honor, the government's expert in trusts who

testified in 2003 testified that this is a unique trust, the

Individual Indian Trust, that the trust instrument consists of

the statutes, and the trust law that governs the instrument

primarily consists of what is embedded in the statutes. Your

Honor, where we have statutes that explicitly obligate the

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United States government to pay interest, that specifically

takes any interest issue outside the standards set forth in

Library of Congress.

But Your Honor, we're not asking for interest, we're

just saying if in fact for some reason this court made a

determination that our calculation of benefit conferred - which

is the benefit to the government, not the injury to our

clients - in some way constitutes a functional equivalent of

interest, interest is authorized explicitly by statute in any

event, so the no-interest rule doesn't apply. So Your Honor,

we're looking at something that we looked at very carefully.

We also, as this court knows, and approximately two

months ago provided to this court in our opening brief and in

some clarification in our reply, how we plan to calculate the

award that we believe is reasonable. We assumed for purposes of

our economic model that the information contained in the

government's CP&R database is information that could be relied

on, and we assumed that the checks that were identified in that

database for that, I believe, 14-year period was data that would

eventually allow the government to prove that 70 percent of the

funds were disbursed. Our calculations are for that 14-year

period collections amounted to -- connections -- there were

30 percent of the total value in collections that were not

accounted for.

Therefore, we were assuming, subject to the proofs that

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the government is required to put on in particularity, and not

with regard to general summary documents or information --

indeed, Your Honor, there is ample authority in various cases

that are incorporated by reference, we believe, in the Court's

pretrial order that suggest that general statements or

conclusions with regard to deductions are not sufficient, and in

fact, because of the obligation of the trustee, must be proved

with particularity. So we're assuming the government is going

to be able to prove the 70 percent.

We also are aware, and we don't know how it's going to

be done, that the government has represented that from the

beginning of the trust through 1991, virtually all the

disbursement checks have been destroyed. Now, whether or not

the disbursement checks were destroyed, there's a possibility

that there are contemporaneous entries, not entries created

years or decades or generations after the fact, that would

reflect transactions that actually occurred.

But what Your Honor is going to hear in this proceeding

is that the disbursement records of the government are wholly

unreliable, that in fact the external auditors who audited the

BIA and the trust for certain periods of time with regard to the

Individual Indian Trust found significant concerns about the

reliability of the disbursement records that conform to various

reports that have been written for decades in that regard from

1915 to 1928, and otherwise this court is well aware of the

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issues with regard to that.

So therefore, we believe, and we will listen very

carefully to the specific proof that is introduced, that the

government has the obligation to provide, that will reduce the

amount that plaintiffs have requested. The amount that

plaintiffs have requested, Your Honor, is principally based on

the amounts that have been reported by the government. To the

extent those amounts are incomplete - and Your Honor, we believe

they are incomplete, but they are the best evidence available -

we believe we're entitled to rely on that as a reasonable

approximation of what we would otherwise be entitled to if an

accounting had been rendered. That is provided for in a number

of cases, including SEC vs. First Financial, in this circuit.

So we believe that's reasonable, we believe the

information provided by the government is an admission against

interest, at the very least, and we believe we can move forward

in that regard.

This court will also hear testimony about the fact that

not only are the older systems inadequate with regard to the

checks and balances and availability of accurate and complete

records, but throughout this litigation, the 12 years of this

litigation, the data housed in the information technology

systems cannot be relied on to make a determination as to how

much money the government has actually paid out to any

beneficiaries.

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And Your Honor, in the 70 percent that we assumed in

our model, that assumed all checks were good, that assumed all

payments were made to trust beneficiaries, that assumed no

fraud, and that assumed the beneficiaries received the monies in

the correct amount. And that is notwithstanding the fact, Your

Honor, that there's ample evidence, and it will be the subject

of some testimony in this proceeding, of fraud and embezzlement

by government employees. We are well aware of concerns with

regard to that, and to the extent fraud and embezzlement is

proven, obviously that's a damages issue that doesn't become

part of this proceeding.

But nevertheless, I wanted this court to fully

appreciate the fact that it is our understanding that that has

occurred, but we are nevertheless assuming the 70 percent is

100 percent accurate.

So Your Honor, one other aspect of this which is very

important to consider, the United States is acting as a trustee,

and acting as a trustee, it is to be treated as a trustee and

not as an administrator. It has been the Supreme Court's

position since 1925 in Standard Oil vs. The United States, when

the United States government is not acting as a sovereign but

acts in another capacity, and in that case as an insurer, the

United States is treated as an insurer, and it is obligated to

pay interest as an insurer would pay interest for delayed

payments.

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There is no doubt, Your Honor, that the circuit

understands that the interest is owed, the income is owed for

any delay. In Cobell XIII, when the Court of Appeals vacated

the structural injunction entered by this court, Judge Williams,

who was speaking for this court --

THE COURT: Mr. Gingold, excuse me for just a second.

Could I see you and Mr. Kirschman at the bench for a moment,

please?

(BENCH CONFERENCE ON THE RECORD.)

THE COURT: I don't want to cut you off in front of

this huge audience, Mr. Gingold, but what you're giving me is a

closing argument about law.

MR. GINGOLD: Okay.

THE COURT: I wanted an opening statement that tells me

what the evidence is going to be in this proceeding. Can you

shift gears and get to that, please?

MR. GINGOLD: Yeah, I will do that immediately. I was

going to do that based on the explanation of why we were going

there.

THE COURT: I know. But there's too much law, and I

want to hear what the evidence is going to be. That's what an

opening statement is.

MR. GINGOLD: Okay. That's fine.

(END BENCH CONFERENCE.)

MR. GINGOLD: So the parameters are set forth in

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various cases that have been mentioned earlier, and we will

introduce our evidence in accordance with our understanding of

what this court set forth in the law.

We will open with Professor Laycock, who is a

distinguished professor of law at the University of Michigan law

school, who will testify with respect to restitution, unjust

enrichment, and remedies. The law of restitution has been an

arcane area of the law, and we believe just as

Professor Langbein was helpful to this court in 2003, that we

believe Professor Laycock will be similarly helpful to this

court.

We are going to be introducing Mona Infield as a

witness. Mona Infield is the branch chief for disaster recovery

for the Bureau of Indian Affairs, and she has broad knowledge

with regard to the reliability of the systems that house the

data that the government at least has represented that it will

be using in its response to plaintiffs' case-in-chief.

Ms. Infield as experience specifically with regard to

IRMS and other systems that are directly pertinent, and her

testimony is solely with respect to the reliability of the data,

the trustworthiness of the systems, and it has nothing to do,

Your Honor, with any issue regarding connectivity to the

Internet.

Ray Ziler is going to be testifying. Ray Ziler is a

certified public accountant in Albuquerque, New Mexico, he was

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the partner in charge of various audits when he was with

Arthur Andersen, audits of the BIA and in part IIM and Tribal

Trust issues. He will be testifying with regard to his

understanding of the reliability of the information, concerns

about the inability to reconcile the Treasury and Interior

accounts, the consequences of those concerns, and what they mean

with respect to plaintiffs' claim.

Joan Tyler is another Interior employee. She is the

Bureau of Indian Affairs' information technology specialist.

She has broader information with regard to certain issues than

Mona Infield does at the BIA. She went from the National

Institute of Standards and Technology to the BIA; she, too, is

not going to be testifying with regard to connectivity, she's

testifying with regard to the trustworthiness of the systems

that she is intimately familiar with, the reliability of data

and data that we believe the government is using in response,

and we believe that will be helpful and provide further evidence

in support of plaintiffs' claim.

We also have Mr. Jim Miller. Mr. Jim Miller is the

former director of the Office of Management and Budget, and

former chairman of the Federal Trade Commission in the Reagan

Administration. He will be testifying with respect to whether

or not plaintiffs are correct that the funds held in the General

Treasury Account are funds that would invariably be used by the

government, and he would also be testifying that that benefit

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conferred, as described by Commissioner Gregg in his testimony

before this court in 2003, is correct, the government has

benefitted from those funds, and in fact generally the

calculations provided by plaintiffs' economic expert, Mr. Brad

Cornell, are reliable, fair, and a reasonable approximation of

what the benefits conferred are as a result of funds held in the

Treasury.

So, Your Honor, we're only presenting seven witnesses

to this court in our case-in-chief. We believe this case will

go fairly quickly, we believe the information from each witness

is material to our claim, we believe that Mr. Cornell and others

will be able to explain in detail to the satisfaction of this

court how we arrived at those calculations, and, Your Honor, we

expect that this court will be satisfied that what we have done

is reasonable and fair and represents an amount of money that is

due our clients.

And again, Your Honor, we thank you very much for this

trial. We've been waiting 12 years for it. We believe it's

important to move on. Our clients have been waiting for this;

as this court pointed out, class members have been born into

this class and have died during the course of this action. It's

time for relief, it's time for the trustee to understand what

its obligations are, and we believe restitution is appropriate,

we believe monetary recovery is appropriate, we believe our

witnesses are sound and will be very informative to this court.

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And Your Honor, we hope that we never have to see this

situation again, because we hope that the remedy is sufficient

to provide the incentive to discharge the trust duties prudently

in the future.

THE COURT: Thank you, Mr. Gingold. Mr. Kirschman?

MR. KIRSCHMAN: During the course of the trial, you

will certainly have this on the large screen, and I will be

speaking generally to it today.

THE COURT: Speak to me. You can speak about that.

MR. KIRSCHMAN: I will be addressing -- Your Honor, I

will be speaking to you and addressing that flow of funds chart

for a brief time, but it will be explained in much more detail

and be before you for a longer period of time during the trial.

THE COURT: All right.

MR. KIRSCHMAN: Your Honor, consistent with this

Court's May 2nd order, we are here today to address money that

was, one, received into the Department of Interior's IIM system;

but two, was not shown at the October hearing to have been

posted to IIM trust accounts; and three, was not explained by

us, defendants, at that October hearing.

We will also address, as the Court indicated we should,

whether plaintiffs can meet their burden of proving their

allegation that the United States derived a benefit by

wrongfully withholding these funds instead of disbursing them to

IIM trust beneficiaries.

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The defendants' witnesses and exhibits, Your Honor,

will address each of these topics in detail. They will

establish that there's no legal or factual basis to pay

plaintiffs billions of dollars, or even anything close to

$1 billion. The contemporaneous documents and the rational

statistical analysis of those documents will demonstrate instead

that approximately one percent of all collections and

disbursements over the IIM system's 120-year history cannot be

accounted for at this time. This amounts to millions, not

billions of dollars still in question.

The reasons for that conclusion will be clearly set

forth to you, Your Honor. In summary, the testimony and

exhibits will demonstrate the following:

One, you will see that the money that was received into

Interior's IIM system was not posted into IIM accounts for

individuals was never supposed to be received by IIM

beneficiaries. Instead, it was money that was rightfully

supposed to go, for example, to tribes, to third parties, such

as disappointed bidders, or to the government as administrative

fees. And Your Honor, you will recall that in October you did

hear testimony and see evidence to that extent.

The evidence we will present will demonstrate the

process by which that money was correctly distributed to those

parties. There is simply no reason plaintiffs should be paid

money because of those proper distributions.

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The Court earlier has focused upon two documents from

the October hearing, DX-365 and AR-171. However, neither of

those documents indicate in any way that money that actually

should have been posted to IIM accounts was not posted to those

IIM accounts. The evidence we present will demonstrate the

proper flow of money within the IIM system, including the money

to the IIM accountholders. Plaintiffs will not be able to

demonstrate anything to the contrary.

Your Honor, you have noted that the flow of some money

collected was not explained by the government's accounting

efforts presented at the October trial, and there are good

reasons for that, Your Honor. First, the history and purpose of

the IIM system was to provide decentralized beneficiary services

for individual Indians, and those services were spread among a

large geographic area. The IIM system was never devised to

manage individual accounts on an aggregate basis, or to report

on operations in a consolidated manner. There has been no

historic need for an aggregate analysis with respect to the

entire IIM system.

Nevertheless, some limited aggregate data does exist

from the 120-year period we're addressing, and those records do

cover a relatively high percentage of the collections and

disbursements throughout the system.

Second, Your Honor, throughout this litigation the

courts have required a historical accounting be performed of the

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funds held in Individual Indian Money accounts, and that is

where Interior has focused its resources and its time since at

least 2001. At no point until this past year was Interior

charged with analyzing the aggregate amount of money that passed

through the entire IIM system, but that was then correctly

disbursed to parties other than the individual Indians. This

money was not posted or intended to be posted to IIM

beneficiaries.

Even at the October hearing, we, defendants, did not

understand that we were being charged with explaining the

disbursement of all the funds that entered the IIM system.

Certainly DX-365 and AR-171 were never intended to address that

broad topic. DX-365, you may recall, was developed solely for

the October hearing, and its purpose was to show how much

throughput could be covered by Interior's 2007 accounting plan

given various assumptions concerning the characteristics of the

IIM accounts. DX-365 has no bearing on any liability to any

member of the plaintiff class.

In similar fashion, Your Honor, AR-171 was merely

included in the October record as part of the administrative

record, because that information, the information contained in

AR-171, was considered by the Department of Interior when it was

considering how to prepare its 2007 accounting plan.

It was presented at trial to demonstrate the amount of

money that was collected into the entire IIM system based on the

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Court's request for throughput information. It was not intended

to address all of the disbursements, and you recall it did not

address all the disbursements made in the IIM system throughout

the 120-year period of the IIM system.

But Your Honor, we certainly recognize that these

matters are now in the past, and we are prepared to answer the

questions raised in the Court's May 2nd order. Since

January 2008, the Department of Interior, its contractors, and

the Department of the Treasury have dedicated many resources and

much time to provide the Court with the information that you

have deemed to be relevant to this trial. Given more time, the

Department of Interior could continue to uncover more relevant

documents, could continue to analyze those documents, and as a

result it would refine its numbers.

There are still gaps within the historical records that

research has not yet been able to fill; however, every

indication is that as more documents would be collected and more

data would be analyzed, it would serve to only further

demonstrate that the IIM systems were properly used and that

money was disbursed to the proper party.

As it is, Your Honor, the evidence and the analysis of

those records that we do have demonstrate that nearly

100 percent of all the funds that were posted into the IIM trust

fund were disbursed to individual Indian beneficiaries. This

will be explained to you in detail by our witnesses. These are

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witnesses who have been working with this information for years,

and from some of whom you have heard testimony previously back

in October. These include Michelle Herman, Dr. Fritz Scheuren,

and Dr. Ed Angel, our historian.

Your Honor, plaintiffs will not be able to meet their

burden of producing contrary evidence that shows that the

government has failed to disburse any significant amounts of IIM

funds to the IIM beneficiaries. Plaintiffs have claimed

previously that they're owed approximately $58 billion. They

bear the burden of proving this at trial. That claim will not

withstand scrutiny during the course of the trial.

To the extent that they present at trial a case

consistent with what we had seen from their earlier briefings,

Your Honor, plaintiffs' arguments and calculations are dubious

at best, because they have selectively used data and documents,

while at the same time ignoring other actual data that would

undermine their position. And this will be a focus of the

evidence and the testimony we will present to you.

In contrast to the evidence and testimony we will

present, we anticipate that plaintiffs will continue to misstate

the amount of funds that should have been in the IIM trust fund

by including amounts that clearly do not belong there. They

will apparently rely upon also, Your Honor, the testimony of

professional witnesses who have no real substantive

understanding of the relevant documents or the data or the

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processes within the IIM system. And these witnesses, Your

Honor, will be used to buttress plaintiffs' incorrect premise,

one of which is the unreliability of the data.

Plaintiffs, Your Honor, will not establish that

4.5 billion was not disbursed to IIM accountholders that should

have been disbursed to them. This is a figure that plaintiffs

have represented earlier to the Court and to us, defendants, in

their filings, and to the extent they're going to act consistent

with that here, they will not be able to demonstrate that amount

has not been disbursed.

Plaintiffs, as we understand it, will begin their

analysis with information from last October's AR-171. If again

they proceed consistent with their filings to you earlier this

year in April, they will deviate from that data and ignore the

information contained in portions of AR-171. For that reason,

their contention that $4.5 million was posted to IIM accounts

but not disbursed will be shown to be patently incorrect.

Plaintiffs' manipulation of the data led to, one, you

will see, inflated receipt amounts; two, disproportionately low

disbursement amounts; and, in turn, three, an erroneously low

disbursement rate.

For example, you heard this morning, Your Honor, about

a 70 percent disbursement rate, but we will present testimony

and evidence that shows that that does not include, as it

should, disbursements made to Tribal Trusts.

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Plaintiffs also incorrectly treat all Osage headright

revenues as being IIM, being Individual Indian Monies. That

will be shown to be incorrect.

Plaintiffs will apparently also seek to include over

$1.5 billion in Tribal IIM money as receipts, despite the fact

that this court has already recognized that Tribal IIM is not

properly to be included in individual IIM accounts.

As a final example, Your Honor, we anticipate that

plaintiffs' disbursement rate will not account for electronic

fund transfers. During this trial we will demonstrate the

significance of that omission.

Your Honor, there has been no wrongful withholding of

IIM trust funds, and plaintiffs will not meet their burden of

demonstrating that in the coming days. For them to collect the

$58 billion that they seek, they must prove not only that the

government failed to disburse IIM funds, but also that it

improperly withheld billions of IIM for long periods of time.

They cannot meet that evidentiary burden. There's no evidence

that the United States has wrongfully withheld any significant

amount of funds over the past 120 years. We know of no such

evidence, and we anticipate that plaintiff will not be able to

offer such evidence supporting any specific scenario under which

money was wrongfully withheld.

Your Honor, then beyond the issue of whether money was

wrongfully withheld, there's also not going to be any evidence

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that withheld funds were used to benefit the United States.

Even assuming, Your Honor, that not every dollar collected into

the IIM system can be mapped to a precise disbursement, there is

no evidence that the United States gained a benefit by

withholding that money.

The United States can only benefit from IIM money --

someday I'm not going to miss not saying that acronym.

THE COURT: You've had a lot of practice,

Mr. Kirschman.

MR. KIRSCHMAN: I have. IIM money that it actually had

the use of and that was not dedicated to any beneficiary's use

or benefit.

Therefore, for example, Your Honor, money held in

commercial banks did not benefit the government; money that was

invested on behalf of the IIM beneficiaries and then was

subsequently paid to the beneficiaries did not benefit the

government; funds that were properly classified as IIM trust

funds and held in the account of an IIM beneficiary did not

benefit the government.

Even money that might have been lost somewhere - for

example, Your Honor, it was paid to the wrong party - was not

money from which the government could benefit, because the

United States did not have use of that money.

Now, the testimony and evidence we will present, Your

Honor, will disprove plaintiffs' theories. Our case is based on

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actual documents, the testimony of witnesses who have worked

with these documents for many, many years, and who are familiar

with the IIM system. And we will demonstrate through these

documents and reasonably widely accepted statistical analysis

that plaintiffs are not entitled to large sums of money as a

result of this trial.

You've already made note of the flow of funds chart we

have here, Your Honor, and throughout the trial, especially in

regard to the testimony of Ms. Herman, we will explain that flow

of funds within the IIM system.

True IIM dollars, money that should be posted to the

IIM accounts of beneficiaries, are and have always been only a

part of the total collections into the IIM system. That is what

this chart depicts, Your Honor. It demonstrates -- if you look

at the far left-hand side, there's a green box. It depicts in

that box the money that flows in into both individual accounts

and non-individual accounts, as then is depicted in the middle

in the blue box.

You'll see the top half of the blue box, Your Honor,

depicts non-individual accounts, and beneath it there are the

individual accounts which concern us here in this case, and

which always have, as we talk about historical accounting.

Within the IIM system, Your Honor, different types of transfers

may occur, as is demonstrated in the blue box with the circular

arrows.

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Finally, then, Your Honor, as we move to the right of

the chart, disbursements are then made from the money collected,

and these disbursements are made to many parties, including but

certainly not limited to IIM beneficiaries. And these are shown

in the brown boxes on the far right of the chart.

Our continuing research has demonstrated that a

significant percentage of money entering this IIM system, the

total system, over the years was not IIM trust account money.

For example, Your Honor, it was tribal money, and I have an

example I would like to briefly show you as to the type of

evidence you'll see on that front.

This document -- is it on your screen, Your Honor?

THE COURT: Yes.

MR. KIRSCHMAN: This document is a BIA intrabureau cash

transaction authorization, and it demonstrates how Tribal IIM -

again, that's depicted in the top half of the blue box in the

flowchart - is disbursed into a Tribal Trust account.

The account number at the top left corner of the

document, starting with 145 T, tells us that this is Tribal IIM

being disbursed, and this document shows that the money was

disbursed to the Warm Springs Tribe's proceeds of labor account,

you can see in the collection box, which is depicted on the

large flowchart in the middle brown box.

The document demonstrates that almost $9 million, Your

Honor, including interest, was disbursed in this one

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transaction. It also establishes why the money was disbursed to

the Tribal Trust, and this was an issue you heard some testimony

on back in October.

The reason it was moved was to remove Tribal IIM out of

the IIM system, pursuant to the OTFM - and that's the Office of

Trust Management - pursuant to the OTFM policy to, quote,

"prohibit the establishment of tribal accounts in the IIM

system."

Another example of money that was never intended to be

received by IIM beneficiaries, Your Honor, was, as Mr. Cason

told you back in October, bid deposit money. This document,

Your Honor, is a 1910 report of the Commissioner of Indian

Affairs. It is an excerpt at pages 68 and 69, and it is an

example that demonstrates that disbursements have been made to

disappointed bidders as early as 1910.

This image, Your Honor, is a blowup of the bottom of

page 68 and 69. It makes it easier to see that in the 1910

fiscal year, of the approximately $7,657,000 disbursed from the

IIM system, approximately $2,720,000 was returned to

unsuccessful bidders. If you do the math, Your Honor, that

comes to approximately 35 percent of the disbursements for that

fiscal year. That return of the bid deposit money is reflected

in the top orange arrow on this flow of funds chart, and the

brown box to third parties.

Your Honor, you will recall that I earlier stated also

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that money held in commercial banks should not benefit the

government or could not benefit the government. This page of

the 1910 commissioner's report is also relevant to that point.

It shows that as of July 1st, 1909, approximately 4.7 million

was located in bonded banks to the credit of individual Indians,

and that was of a total 6.6 million in the IIM system.

Significantly, it shows that in the following year, if

you look at the lower part of this image, individual Indians

drew over 2.5 million in checks from their bank accounts.

Finally, this page demonstrates that by the end of fiscal year

1910, there was then almost 6.9 million in bonded banks to the

credit of individual Indians, of the total balance of

$9.6 million in the IIM system.

These are the documents, these are the type of

documents our witnesses have reviewed, have been reviewing for

years, and will discuss with the Court in the coming days.

One final example, Your Honor, shows how IIM money has

over the years been correctly separated from other money that

was never supposed to go into any IIM beneficiary's account,

where both the individuals and tribes were, for example, on a

lease.

This example relates to -- consists of two documents.

The first document is another BIA intrabureau cash transaction

authorization form. This form, Your Honor, shows forestry

income, nearly four and a half million dollars, being disbursed

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from a Special Deposit Account - or an SDA, as we all know

them - to several Tribal accounts. You can see, Your Honor,

that the money is being disbursed from 14X-6039 to three Tribal

Trust accounts which are indicated by the 14X-7 at the beginning

of the account numbers.

On our flow of funds chart to my left, this transaction

is shown by funds moving from an SDA in the blue box to the

brown Tribal Trust box to the far right.

Before we leave this document, you can see that it is

based on a journal voucher, and it's at the bottom right-hand

corner, journal voucher number 3P11T018. Turning to that

journal voucher, you will see that a credit entry appears in the

amount of approximately $564,000. That amount represents a

10 percent forest management fee transferred to the government.

That is what the FMF indicates on the first line of this entry.

Turning back to our flow of funds chart, Your Honor,

that is depicted within the blue box as an

administrative-to-administrative transfer. The funds were moved

from an SDA to an administrative account.

Turning to the second page of the journal voucher, Your

Honor, you will see the transfer of the funds to the three

tribes; you will also see the funds that were disbursed to

them -- and these funds are the same figures that were then two

days later disbursed by the disbursing agent.

Finally, Your Honor, if we look at the bottom portion

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of this second page, we see a transfer of funds from the SDA to

the Individual Indian Money accounts. This entire transfer

totaled approximately $5,640,000, and of that total, the IIM

accounts made up roughly 11 percent of that amount. In our blue

box, in the IIM system, that was a transfer that went from the

top box, non-individual accounts, to the individual accounts.

And finally, regarding this document, Your Honor, it's

significant that it was prepared and signed by the forest

manager in charge, as well as being approved by the

superintendent and the designated disbursing agent, just as the

previous document had been executed by the deputy disbursing

agent.

These examples and the others that will also be

presented to you at trial by Ms. Herman will establish that

because large amounts of money are not IIM trust money, they are

not part of the historical accounting question that is central

in this case, that has been central now for almost 12 years, and

therefore should not count in calculating any remedy.

In this light, it should be clear that DX-365 did not

suggest a discrepancy in the amounts that should have been paid

to IIM beneficiaries, or provide a basis for any liability

against the United States. It only demonstrated a reality of

the IIM system, and that is that large amounts of the dollar

flows are simply not beneficiary dollars.

To the extent, Your Honor, there are IIM trust dollars

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not readily reconciled by the research and the statistical

analysis performed to date, the average estimated amount of

those IIM trust dollars is, based upon the data that is now

available, calculated to be approximately $158 million. And

even that amount undoubtedly continues to contain a significant

amount of Tribal monies, Your Honor, because of the fact of this

IIM system and what is included within it.

Research and analysis to update the throughput

estimates that were contained in AR-171 show that taking into

account the actual current balance of dollars held in the IIM

system, the difference between the reported trust balances and

the estimated average sum of all IIM systems transactions is

approximately that $158 million. This figure reflects just a

little more than one percent of total collections into the IIM

system over its entire history.

These results are consistent with a statistical

analysis performed by NORC, led by Dr. Fritz Scheuren. NORC has

constructed a comprehensive model that uses available data to

estimate a reasonable range within which the IIM system balance

should lie with a high level of confidence. The $158 million

calculated figure falls comfortably within that range.

NORC has undertaken a statistical analysis using a

series of methods preferred by statisticians for addressing

missing data. As Dr. Scheuren will explain to you in detail,

Your Honor, NORC's model uses available data to measure the

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uncertainty within the model. The point estimate, the point

estimate developed by NORC's model for the IIM system balance,

and that represents a mean, is consistent with what the

calculated updates to AR-171 demonstrates that, there is an

approximately $158 million difference between the reported IIM

system balance and the balance that could be explained using

available data.

And by the way, Your Honor, as we show the revised

AR-171, it will now be referred to I believe as DX-371, because,

of course, in this trial there is no administrative record.

Further, Your Honor, statistically, at a 95 percent

level of confidence, the evidence we present will demonstrate

that this difference could be at worst no more than

$365.7 million.

Now, beyond the statistical analysis by NORC and the

very detailed work provided by FTI and Ms. Herman, the work

performed during Interior's historical accounting efforts, the

paragraph 19 analysis, and the settlement packages that have

been prepared by Treasury and GAO over the years from 1890 to

1951, will also demonstrate that the documents used in this

exercise are reliable. They will discredit any argument that

billions of dollars could have been hidden by the government.

You heard argument this morning that the unreliability

of the documents used will be raised by plaintiffs' witnesses.

However, Your Honor, if you look at the work that was done by

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Interior and its contractors in the historical accounting

efforts, such as the Litigation Support Accounting, you will

recall that that work was based on actual documents, and refute

any claims of unreliability. The government's documents and

calculations during this work demonstrated regularity of process

and good faith in practice that rebut any presumption that any

undocumented disbursement equals an amount not paid to an IIM

beneficiary.

The remedy in this case must flow from the alleged

injury, and that alleged injury here is a failure to provide

historical accounting. Plaintiffs will not be able to

demonstrate any causal connection between the remedy they seek

and the breach which has led us to this trial.

Finally, Your Honor, we will also present evidence that

demonstrates that plaintiffs' allegation that the United States

wrongfully withheld funds within the Treasury general account

for the benefit of the government is factually defective. Thus,

for example, the testimony and evidence will explain the

Department of the Treasury's cash concentration system and the

funds accounting system, which Treasury employs to track the

flow of cash and the movement of funds. This evidence will

establish, contrary to plaintiffs' allegations, that large sums

of cash could not and have not accumulated to the benefit of the

government.

In summary, Your Honor, at the end of this trial it

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will be clear that plaintiffs could not carry their burdens of

proof, they cannot get over the hurdle of proving their

allegations that $4.5 billion was owed to individual

beneficiaries and was then not disbursed to them, and they will

be unable to establish that the United States wrongfully

withheld billions of dollars from IIM beneficiaries and then

benefitted from the use of that money.

This court should, based on the actual documents that

do exist and will be presented and addressed by our witnesses,

reject plaintiffs' flawed premise that the records relevant to

this inquiry are unreliable.

Given more time, Your Honor, defendants could perform

more work that would reduce the amount of unexplained monies

even further. However, even at this point in time, with the

limited amount of time and resources defendants have had to

address the Court's inquiries, the evidence and testimony will

demonstrate that the difference between the current reported

ending balance of the IIM system and the average statistical

estimate of the ending balance, is approximately $158 million.

Further, employing a confidence level of 95 percent,

the evidence will establish that at worst, no more than

$365.7 million cannot be explained within the IIM system. And

again, Your Honor, I cannot stress enough that even that amount

includes far more than only Individual Indian Money accounts,

for the reasons I've discussed earlier.

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Your Honor, we thank you for your consideration of our

evidence and our witnesses, and we appreciate you handling this

case in the manner you have. Thank you.

THE COURT: All right. Who's going to call the first

witness? I guess everybody now has a seat. Proceed, sir.

MR. GINGOLD: Thank you, Your Honor.

Professor Laycock.

(Oath administered by Courtroom Deputy.)

MR. GINGOLD: Your Honor, are we going to handle the

witnesses the way we did in the last trial, without a voir dire,

and we're supposed to give you a summary of who they are?

THE COURT: Oh, yeah, we don't need a big voir dire.

This man has already testified, has he not?

MR. GINGOLD: No, he has not, Your Honor.

THE COURT: All right. Well, what are you offering him

to testify about and what objection is there to his expertise?

MR. GINGOLD: Your Honor, we're offering

Professor Laycock to testify about restitution, unjust

enrichment, and remedies.

MR. KIRSCHMAN: Your Honor, we had previously made our

objections regarding this line of testimony, and you had

addressed that pretrial.

THE COURT: Right. But now the question is, what about

the qualifications of this witness to give testimony on this

subject? Any objection?

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MR. KIRSCHMAN: We do not challenge Professor Laycock's

qualifications.

THE COURT: Just give me a CV and give us the barest

outline of his credentials, and we'll get on with the substance.

MR. GINGOLD: Your Honor, we could put his CV on the

screen if you like. Let me see if I have the hard copy.

I do have one yellow highlight on it, Your Honor.

THE COURT: That's all right. Thank you.

MR. GINGOLD: Your Honor, just briefly,

Professor Laycock is a Yale Kamisar Collegiate professor of law

at the University of Michigan law school. Professor Laycock is

a graduate of the University of Chicago, with honors; he clerked

for a 7th Circuit United States Court of Appeals judge,

Judge Water Cummings; he is a fellow of the American Academy of

Arts and Sciences; he teaches remedies, restitutions, and

religious liberty; he is second vice president of the

American Law Institute, he has been since this year; he's a

member of the council of the American Law Institute, and has

been since 2001; he's involved in the restatement third as an

advisor and a member of the council. That's a restatement of

third restitution, Your Honor. He has been a lecturer at many

law schools and universities.

Prior to his position at the University of Michigan, he

spent 25 years teaching at the University of Texas law school;

he had several chairs at the University of Texas law school.

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Prior to the University of Texas, he was a professor at

the University of Chicago; at the University of Chicago, Your

Honor, he taught equity restitution. Your Honor, at Texas he

taught remedies.

He has written books and articles; one of his books is

"Modern American Remedies, Cases and Materials." He's also

written articles on how remedies became a field, the scope and

significance of restitution in the "Texas Law Review."

He's written a preliminary report on a restatement

third of restitution, report to the director of the American Law

Institute, 1987, and, Your Honor, he has been involved as an

advisor on the restatement second of restitution back in 1984

and 1985, and he has been involved as an advisor on the

restatement third restitution and unjust enrichment since 1997.

THE COURT: Professor Laycock is obviously a

distinguished academic scholar. We're happy to have him here.

Proceed with the testimony.

MR. GINGOLD: Thank you very much, Your Honor.

(DOUGLAS LAYCOCK, PLAINTIFF WITNESS, having been duly sworn,

testified as follows:)

DIRECT EXAMINATION

BY MR. GINGOLD:

Q. Professor Laycock, can you describe damages and restitution?

A. Damages and restitution are two of the fundamental

categories of the law of remedies. These categories are used in

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substantially every remedies book, the treatises and the case

books; in many of those books they're part of the title. The

title will be "The law of remedies, damages, equity,

restitution." And the modern remedies course was created by

combining previously separate courses in damages, in equity, and

in restitution.

So there are two different kinds of remedies, and

they're fundamentally different from each other.

Q. Are they fundamentally different in substance?

A. They're different -- well, they're different in many ways.

They're different in the purpose that they're trying to achieve,

they're different in the measure of recovery, they're also

different historically.

The only reason I hesitate on substance is some people

wonder whether remedies are substantive or procedural. I think

remedies are substantive, and so yes, they're different in

substance.

Q. Have you, in the course of your research and your writings

and your teachings, come across Dobbs?

A. Yes.

Q. And Dobbs, what has Dobbs written?

A. Dan Dobbs at the University of Arizona has written the

leading treatise on the law of remedies. The first edition is

1973, second edition is 1993. I've used it my whole career.

Everyone in the field uses it. It's often cited by the Supreme

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Court.

MR. GINGOLD: Plaintiffs would like to mark for

identification, Your Honor, Plaintiffs' Exhibit 2, which is

Dobbs "Law of Remedies, Damages, Equity Restitution," second

edition, Volume I.

BY MR. GINGOLD:

Q. I would like to turn your attention, Professor, to page

three.

THE COURT: So this is Laycock on Dobbs on remedies?

MR. GINGOLD: I believe Professor Laycock --

THE COURT: Professor Laycock probably has his own

views.

BY MR. GINGOLD:

Q. Do you agree with the highlighted section that is identified

on page three of Dobbs?

A. I do. That's what I testified to just a minute ago, that

these are fundamentally different and basic categories of

remedies.

Q. And with regard to damages, if you can turn to page three

just for clarification -- sorry, page four. Page four is a

statement with regard to what damages constitutes. Do you agree

with that, Professor Laycock?

A. I do agree. And the point is that damages are aimed at

compensating the losses to the plaintiff, and they're measured

by plaintiffs' loss. They're measured on the plaintiffs' side

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of the transaction.

Q. And I would like you to turn your attention to page six.

You see the highlighted section on page six, and it discusses

restitution. Correct?

A. Yes.

Q. Have you read that before?

A. I have.

Q. Are you familiar with what it means?

A. I am.

Q. What does it mean?

A. Well, it means that the purpose of unjust enrichment is very

different -- or of restitution is very different from what I

just described as the purpose of damages. The purpose of

restitution is to deprive the defendant of any unjust enrichment

in the transaction, so the restitutionary recovery is measured

on the defendant's side of the transaction. Damages are

designed to compensate the plaintiff's losses, restitution is

designed to take away the defendant's gains.

Sometimes they're called profits and sometimes they're

called benefits, but what the defendant got out of the

transaction is the measure of recovery and restitution.

Q. Now are there variations in the measurement of damages or

restitution?

A. There are.

Q. What are they?

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A. Well, I doubt the judge wants to hear much about variations

in damages. We have different measures for tort and for

contract, and for intentional tort and negligence and so forth.

On the restitution side, we have -- there are a variety

of different restitutionary remedies with somewhat different

histories. We're going to mostly be discussing the accounting

for profits, which is a measure of recovery against fiduciaries

or against conscious wrongdoers other than fiduciaries, and it

includes all the profits that the defendant received in any way

from the transaction.

MR. GINGOLD: I would like to mark for identification

Plaintiffs' Exhibit 4. If we can highlight or identify,

separate the top section.

BY MR. GINGOLD:

Q. This exhibit has identified four different distinctions.

Did you prepare this exhibit, Professor?

A. I did.

Q. Okay. What do you intend to convey with this exhibit?

A. Well, the part that is currently highlighted is designed to

illustrate the differences between damages and restitution with

respect to the claims that are now being made in this case, or

that were being made earlier could have been made in this case.

So it repeats the basic definition that damages are measured by

the plaintiff's loss and restitution is measured by the

defendant's gain.

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So a damage claim in this case would be very different

from the restitution claim that's actually being asserted. The

damage claim would include -- and I don't know if these things

exist, but these are the allegations that have been made or

could have been made.

It would include income that should have been collected

but never was collected by the government, it would include

assets that were sold or leased at prices below the market

price, assets that were mismanaged, improvements that were

allowed to deteriorate, money that was lost or stolen, money

that wasn't collected because leases weren't enforced or direct

pay contracts weren't collected or weren't paid on.

All of those would be examples of money that were

losses to the plaintiffs, but that money never came into the

hands of the government so it wouldn't be a benefit to the

government. And so none of those are at issue in this case, but

they illustrate the extent to which a damage claim would be very

different from the restitution claim.

The restitution claim includes only funds that were

collected by the government and retained by the government, and

then income earned on those funds or interest saved on those

funds. So the restitution claim is practically quite different

from the damage claim, as well as conceptually.

Q. You just said both interest earned and interest saved.

Correct?

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A. I did say that.

Q. Is that a traditional understanding of what profits are?

A. Yes, that's part of the traditional understanding of what

profits are. The new restatement takes the position that

savings of expense to the defendant are the same as income

earned, and there's a whole section, Section 7 is about cases in

which the unjust enrichment to the defendant is that someone

paid off part of his indebtedness.

So reduction of debt is a form of unjust enrichment.

There are lots of cases about that. That's very well settled.

Q. And as applied to this case, is it your understanding that

that is the form of restitution that plaintiffs are seeking?

A. It's been explained to me that the economist's model that's

going to be presented is based on the assumption that the

government was able to pay off debt and pay less interest.

My own view from the law side is that it really doesn't

matter whether the government invested in banks or its own

securities and earned interest, or whether it redeemed

securities and saved interest, that those are equivalent forms

of unjust enrichment.

Q. Now, the view you're stating is not a controversial view, is

it?

THE COURT: Repeat that.

BY MR. GINGOLD:

Q. It's not a controversial view, the fact that cost savings or

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benefits in that context are equally considered to be profits

for point of view --

THE COURT: Leading question, unobjected to, I'll allow

the answer.

A. I don't believe it's controversial with respect to the

reduction of debt or reduction of interest. I think there has

been some controversy with respect to savings of expense that

are more remote or more consequential, but I don't think there's

any controversy about reduction of debt and the accompanying

reduction of interest.

BY MR. GINGOLD:

Q. Do you have any understanding as to whether or not there's a

relationship to trust law -- relationship of restitution to

trust law?

A. Restitution is a familiar remedy in trust law. It's one of

the oldest and most basic applications, and indeed much of the

rest of the law of equitable restitution was developed by

analogy to the duty of the trustee to give up any profits he

earned from the trust.

So we talk about constructive trusts and we talk about

accounting for profits by infringers of intellectual property

and the like; all that law developed by analogy to this core

application of restitution to express trustees.

Q. Now, with regard to the application, is there a unique

vocabulary associated with restitution?

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A. There is some very odd and old fashioned vocabulary

associated with restitution.

Q. Could you please explain?

A. Well, restitution and unjust enrichment are global terms for

this whole body of remedies, and restitution was popularized as

the label for the field with the restatement of restitution in

1937. There are some older uses, but it wasn't that commonly

used before then.

Under that heading of restitution of unjust enrichment,

there are a number of more specific remedies, some of them legal

with names out of the root system, and some of them equitable.

And the kind of equitable restitution we're talking about here

is called accounting for profits, most commonly, that the

trustee has to account for any profits he made from the trust.

Some of the courts call it disgorgement of profits; my sense is

that disgorgement is a more recent term, but you see it quite

commonly.

Sometimes the courts say gain or benefit instead of

profits. Profits gain and benefit are all equivalent;

accounting for and disgorgement of are pretty much equivalent;

and sometimes you see other vocabulary, he has to surrender his

profits or give up his profits.

But accounting for profits is the oldest label, and I

think still probably the most common label.

Q. Is that traditionally in equity or at law?

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A. It's plainly in equity.

Q. Do you have an understanding of how federal law treats

restitution?

A. Federal law treats restitution pretty much the same way

state law does, and there are a lot of federal cases, including

Supreme Court cases, in many contexts, go back a long ways.

Q. Are you familiar with ERISA cases that have been recently

decided by the Supreme Court?

A. I'm familiar with a recent line of ERISA remedies cases.

I'm not an expert on the substantive law of ERISA in any way.

Q. Is there any relevance, in our view, of the ERISA decisions

to issues in this case?

A. The recent ERISA remedies cases have been the occasion for

the Supreme Court to explain and summarize the law of

restitution, and especially the law of equitable restitution.

Q. Now, in those cases, is there anything that -- or let me ask

you specifically, are you familiar with Mertens vs. Hewitt?

A. I am.

Q. What is your understanding of that case? What does it deal

with?

A. Mertens vs. Hewitt was a suit against the actuary of an

ERISA retirement plan, essentially for actuarial malpractice.

It was basically for damages caused to the plan by the actuary's

mistakes.

And the holding in the case is that's a legal remedy,

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not an equitable remedy, and so the plaintiff couldn't get it

under ERISA. And it's been criticized on that ground, that all

remedies about trust enforcement should have been treated as

equitable, but that's the holding, that's not the reason the

case is relevant here.

The reason the case is relevant here is in the course

of reaching that holding, the Court explained the difference

between damages and restitution.


identification Plaintiffs' 8, which is the Mertens vs. Hewitt

decision.

BY MR. GINGOLD:

Q. And I would like you to turn your attention to page three.

This is a highlighted section.

MR. GILLETT: Your Honor, if we could be provided with

hard copies of these.

THE COURT: I was just about to say, if you're going to

cite a Supreme Court case, you don't have to put it in evidence,

you can just cite it. Everybody can get it on their computers.

MR. GILLETT: With regard to the previous documents

that were shown that were created with the highlighting, we

don't have that in hard copy.

THE COURT: Yes, you should get hard copies.

MR. GINGOLD: Your Honor, they haven't provided us with

anything that they used in the opening.

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THE COURT: If you're introducing it at trial, you need

to give him a copy of it.

MR. GINGOLD: Okay. We won't use -- we don't have hard

copies right now.

THE COURT: But you can get them later, can't you?

MR. GINGOLD: Yes, we will. I thought you wanted them

contemporaneously right now. We don't have them right now.

THE COURT: We live in an electronic age.

MR. GINGOLD: Your Honor, may I proceed?

THE COURT: Yes, proceed.

MR. GINGOLD: Thank you.

BY MR. GINGOLD:

Q. Do you see the highlighted section of Mertens?

A. I do.

Q. Have you read this before?

A. I have.

Q. What does that mean to you?

A. This is the opinion of the Court, and it's explaining the

difference between damages and restitution in the same way that

I explained it earlier; the fiduciary is personally liable for

damages, for restitution.

And then the quotations in parentheses are quotations

from the statute that provide what the remedy is, and the Court

is characterizing those remedies as damages and restitution

respectively.

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So to make good to the plan any losses to the plan, the

Court says is damages; to restore the plan any profits of such

fiduciary made through the use of the assets, the Court

describes as restitution.

Q. So the use of the term damages and restitution does not

concern you, does it?

A. Well, it's an example of the Supreme Court explaining these

terms exactly the way I tried to explain them a few minutes ago.

Q. Now, are you familiar with another ERISA case which is

Great West Life vs. Knudson?

A. Yes, I am.

Q. What is your understanding of what that case involved and

what it held?

A. Well, that was a follow-up case to Mertens. The relevant

ERISA provision here draws a different distinction, actually,

from the one we're talking about. It says that if you're suing

a nonfiduciary under ERISA, the plaintiff is entitled to any

equitable relief but not to legal relief. So it's not a

damages/restitution distinction as such, it's legal/equitable.

And in Great West, the plaintiff formulated her

claim -- it was an insurance company. I'm sorry. The plaintiff

formulated its claim in terms of restitution, but the Court said

the kind of restitution they were seeking was legal, not

equitable, so they couldn't get it.

And in the course of that holding, they explained the

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difference between legal and equitable restitution, and they

explained the accounting for profits.

THE COURT: Mr. Gingold, I get the distinction between

damages and restitution. That's not a problem. The problem is

who the defendant is in this case, and what the jurisdictional

limitations are on what the government can pay out.

Now, just to call it damages and restitution in an

ERISA context or in some ancient context is helpful, but it

doesn't get me to what I think we all understand to be the real

legal nut of this restitution problem, or the gain problem,

which is what can the government be required to pay, if

anything.

So if you could direct the professor to cases involving

the government as a defendant, it would be most helpful to my

problem.

BY MR. GINGOLD:

Q. Professor, do you have any understanding as to whether or

not there are Supreme Court or other cases that exist where the

government is a defendant and the government has been held

accountable in restitution or unjust enrichment?

A. To some extent, yes.

Q. And what is your understanding?

A. Well, the one clean example that I'm familiar with is a case

called Henkels vs. Sutherland.


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identification Exhibit 10.

BY MR. GINGOLD:

Q. Professor Laycock, is this the case that you were referring

to?

A. Yes, it is.

Q. I would like to turn your attention to the page three. And

by the way, can you describe this case and state whether or not

the government was the defendant?

A. An officer of the United States was the defendant. The

custodian of alien property during wartime, the government was

seizing the property of enemy aliens, and what happened in this

case was they mistakenly seized the property of a citizen and

held it through the course of the war. And the citizen is suing

to recover his property and to recover interest on the property.

Q. I would like you to turn your attention to the highlighted

section on page three of this opinion. Have you read this

before?

A. I have.

Q. Let me read this to you, and maybe you could explain whether

or not you believe the government is treated the same way as

private parties with respect to restitution.

Quote, "We cannot bring ourselves to agree that a

direction to invest such money in securities of the United

States, rather than in other securities, may be utilized to

enable the government unjustly to enrich itself at the expense

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of its citizens, by appropriating income actually earned and

received, which morally and equitably belongs to them as plainly

as though they had themselves made the investment."

What is your understanding of that statement?

THE COURT: That speaks for itself, doesn't it,

counsel?

A. It mostly speaks for itself. I think the beginning of the

sentence is a little odd, and that reflects the government's

argument that -- the government conceded it had to make

restitution of income earned on the original shares of stock

that they had seized from the plaintiff, but they said once we

sold the shares of stock and invested in government securities,

we're no longer accountable, we don't have to make restitution

of the interest. And the Court is rejecting that defense, and

rejecting it on unjust enrichment grounds.

Q. Do you have any recollection as to why the Court expressed

concern of the need to ensure that the government did not

unjustly enrich itself?

A. Well, what you have highlighted here is a straightforward

statement of basic unjust enrichment doctrine.

Q. I would like to go back to this page and there's a

highlighted section at the top of the page. If we can focus in

on the highlighted section, have you read that before,

Professor Laycock?

A. Yes, I have.

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Q. What does that mean to you?

A. Well, it says that restitution of profits to the government,

even when it's in the form of interest, is not subject to the

no-interest rule, and apparently does not require any waiver of

sovereign immunity. Because the government -- the unjust

enrichment I think is treated as a citizen's own property, and

at the end of that highlighted passage the Court suggests that

otherwise there would be constitutional problems with the taking

of the property.

So they're treating the original property and the

interest earned from the property as the plaintiff's own

property.

Q. Do you know whether or not the funds involved in Henkels

were held in trust by the government?

A. I believe the property held under the Alien Property Act was

treated as held in trust, but in any event, what's clear is it

was always treated as property of the citizen being held by the

government, it was not the government's own property.

Q. Now, are you familiar with Bowen vs. Massachusetts?

A. Yes, I am.

Q. What is your understanding of that case? What does it

involve and what did it hold?

A. Well, it's about a provision in the Administrative Procedure

Act, Section 702, and I gather it's been the subject of a lot of

discussion here.

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702 waives sovereign immunity for any remedy other than

money damages, and Bowen vs. Massachusetts says money damages is

a very familiar term in the law, it has a settled meaning in the

law, and that's what it means in the statute. And Bowen itself

involved specific relief rather than damages, but it's equally

true that restitution is not money damages.

So if money damages in 702 means what the Court says it

meant, the meaning it's always had in the law, then restitution

is also a remedy other than money damages, and 702 waives

sovereign immunity with respect to restitution claims.

Q. Do you have any understanding as to what the basis for that

holding is? Why did the Court conclude as it did?

A. I think it was a straightforward reading of the text of the

statute.

Q. And was it a statutory obligation to pay?

A. Well, I'm sorry, we're talking about two different steps in

the Court's reasoning.

The term "money damages" they treated as a term of art.

It has a settled meaning; that meaning excludes restitution.

That meaning also excludes specific relief.

And what the holding was in Bowen is that the specific

enforcement of a statutory entitlement was specific relief, and

it was not money damages even though it resulted in an award of

money.

So they were focused on specific relief as the

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alternative to money damages. I've so far been focused on

restitution as the alternative to money damages, but they're

both clearly distinct from the historic meaning of money

damages.

Q. And again, it was the United States that was the defendant.

Correct?

A. Well, it was Bowen, who was secretary of a cabinet

department in his official capacity, so functionally, yes, the

United States was the defendant.

Q. Are you aware of any statutes, have you read any statutes

relevant to Cobell that provide a statutory obligation to pay

interest to the trust beneficiaries?

A. Yes.

Q. Do you recall what they are?

A. Well, there's an 1841 statute and a 1994 statute. I don't

have the section numbers memorized.


identification Plaintiffs' 11. Your Honor, this is part of the

Trust Reform Act.

BY MR. GINGOLD:

Q. Have you read this before, Professor Laycock?

A. Yes, I have.

Q. What is your understanding from reading this statute?

A. Well, I'm not an expert on these statutes, and the judge can

read them at least as well as I can, but I can testify to the

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nature of the remedy that would be involved in enforcing these

statutes. The statute on its face appears to require the

payment of interest on funds held for individual Indians.

Q. Do you know whether it's prospective or retroactive in fact?

A. In, let's see, the fourth line of that first paragraph, it

says retroactive to the date that the Secretary began investing

Individual Indian Monies on a regular basis.

Q. Is this the sort of statutory obligation that existed in

Bowen?

A. Well, it's a statutory obligation to pay money. The

obligation in Bowen was a very different statute, but it was

also a statutory obligation to pay money.

So the remedy of specifically enforcing that statutory

obligation would be the same remedy; it wouldn't be money

damages, it would be specific relief to enforce the statutory

obligation.

MR. GINGOLD: I would also like to mark for

identification Plaintiffs' Exhibit 12, the second paragraph, or

the second half of this, if we could focus. A little bit more.

The entire part of chapter 25 that's identified, can we focus?

Yes, thank you.

BY MR. GINGOLD:

Q. Professor Laycock, have you reviewed this statute before?

A. Yes, I have.

Q. Is this the 1841 statute you were referring to?

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A. Yes, it is.

Q. What is your understanding of what it provides?

A. Well, again, the substance of the statute is not really my

expertise. But if you go down through Section One to the last

sentence, it says, "The Secretary of the Treasury shall -- " and

it's talking about the fund that was donated to create the

Smithsonian Institution, I think. It says, "The Secretary shall

invest at accruing interest any stock of the United States

bearing a rate of interest not less than five percent per

annum."

And then in Section Two it applies that same standard

to all other funds held in trust by the United States, and the

annual interest accruing thereon to be in like manner invested

bearing a like rate of interest.

So it seems to say that any money held in trust must be

invested at at least five percent, and the annual interest

accruing thereon must also then be invested at five percent.

Q. I would like to mark for identification Plaintiffs' 13.

This is a current codification of the 1841 statute. Have you

read this before, Professor Laycock?

A. Yes, I have.

Q. What does this codification mean to you?

A. Well, the language has been simplified, but it appears to

say the same thing, that amounts held in trust by the United

States government, including the annual interest earned on the

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amounts, shall be invested in government obligations and shall

earn interest at an annual rate of at least five percent.

Q. With respect to the "shall earn interest at an annual rate

of at least five percent," how would you interpret that?

A. Well, I think that speaks for itself. I mean, again, I'm

more comfortable speaking to the remedy that would be used to

enforce it, but it seems to be a mandatory obligation to earn at

least five percent on all monies held in trust, and on a

compound basis, including the annual interest that has

previously accrued.

Q. Now, is compound interest consistent with your understanding

of restitution or unjust enrichment with respect to remedies?

A. Absolutely.

Q. And why is that?

A. Well, because the -- in the absence of a statute, the

judge-made equity rule for restitution would be all the profits

that inured to the defendant. If the defendant is holding

money, compound interest is routinely readily available in our

economy, so of course those profits would include compound

interest. And anything less than compound interest would allow

the defendant to keep part of its profits from the breach of

trust, and if a long period of time has elapsed, anything less

than compound interest would enable the defendant to keep most

of his profits.

Q. So is this statutory obligation, as you understand it,

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consistent with the type of obligation that was interpreted in

Bowen as an obligation that may be recovered as that which the

plaintiff had the right to obtain?

A. Well, again, this is a statutory obligation to pay money, it

creates a specific entitlement on the part of the plaintiff, and

an injunction or other court order to specifically enforce this

entitlement, the specific relief within the meaning of Bowen,

it's not money damages.

Q. Now, are you familiar with the testimony of

Professor Langbein in trial 1.5 in 2003?

A. I've read that testimony. I'm in general familiar with it,

and I'm familiar with certain parts of it in some detail.

Q. Are you familiar with the parts of that testimony where

Professor Langbein referred to the relationship of statute to

the trust instrument in this case?

A. In general, yes.

Q. What is your understanding?

A. That the statute -- that because Congress created this

trust, that the statutes are the trust instrument. And I

believe his position was that each new statute acted as an

amendment, but that there is no other trust instrument except

for the statutes themselves.

Q. So we're dealing with -- what is your understanding of the

effect of the statutes that specifically mandate the payment of

interest based on Professor Langbein's testimony?

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A. Well, I understand the effect of his testimony to be that

the statutory obligation to pay interest, of course it's a

statutory obligation on the face of the statute, and I take it

he would say it's also a trust obligation, that that is the

trust instrument.

Q. I would like to return to Plaintiffs' Exhibit 4, and I would

like to look at the categories, the last three items in each

column, if we can.

Professor, you testified that you prepared this. Could

you explain the categories that are on this exhibit and the

importance of them?

A. Well, the point of this is to try to define as succinctly as

possible the difference in these various categories of remedies

that we've talked about. Actually, we didn't get to the last

one yet.

But you recall the one at the top, and the place we

started, was the difference between restitution and damages, and

that's the distinction that explains why the restitution claim

here is within the waiver of immunity in 702.

The distinction between substitutionary remedies and

specific remedies was a distinction specifically at issue in

Bowen, and I think the Court is familiar with it. But it's the

difference between money as a substitute for some non-monetary

entitlement or money as either the very thing that plaintiff

lost or the very thing that defendant gained. And so that's a

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different distinction.

But in either case the specific remedies are not money

damages, and getting the recovery in either the specific

statutory entitlement to pay interest or recovering specifically

the money that the defendant earned from the trust, either of

those would be a form of specific relief and would not be money

damages.

The difference between legal and equitable remedies is

the distinction in the ERISA cases, and that's pretty familiar,

I think, to the Court, and that has to do with where did the

remedy originate, in the courts of law or in the courts of

equity before the merger. And again, that's a little different.

There were restitutionary remedies on both sides of that divide,

there were specific relief remedies on both sides of that

divide.

And then the last one here we haven't talked about yet.

Q. Let's talk about it.

A. Well, that's the difference between a simple judgment for

money and tracing identifiable assets, and that, again, is

different from any of the other three.

If the plaintiff gets a judgment for money, even if

he's a trust beneficiary, he gets equal status with all the

defendant's other creditors. And if the defendant is going

bankrupt, he may not be able to collect his judgment.

If the plaintiff traces identifiable assets and shows

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this very bank account or this very fund of money or this very

piece of land is identifiable as what was taken from me, then

he's treated as the owner of the property, not just a creditor,

and he gets priority over all the other creditors.

So tracing into identifiable assets is really not

relevant when you're only worried about the plaintiff and the

defendant. It's relevant when there are third party creditors

out there who may go unpaid, and that's not an issue with the

United States as the defendant.

So the difference between judgment for money and

tracing identifiable assets is not the same as substitutionary

remedies and specific remedies. The accounting for profits,

which is the remedy we're talking about here, is a

restitutionary remedy, it's an equitable remedy, it ends in a

simple money judgment that gives no priority over other

creditors, but does not require tracing into identifiable

assets. I think on these facts it's also a specific remedy,

because the very thing the government benefitted from is money,

and it's only that money that the plaintiff is trying to

recover.

But as in Bowen, the plaintiff doesn't have to identify

the specific dollars. There's no talk about erase or

identifiable funds in Bowen. If the defendant takes $1,000 and

the plaintiff seeks to recover that $1,000, that's specific

relief, whether or not it's the same one-thousand-dollar bill or

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whether or not it comes out of the same checking account. The

$1,000 is so directly equivalent to the original $1,000, we

treat that as specific. And that's how Bowen treated it.

Q. So as a specific remedy, it's not substitutionary relief.

Is that correct?

A. If the very thing the defendant benefitted from is money,

then getting that money back or disgorging that money is

specific relief.

Q. So based on your understanding of the cases where the

federal government is either the trustee, in Henkels, or in

Bowen, where it's dealing with specific relief in the context of

a statutory obligation, do you see any issues, any negative

issues, with respect to the legitimacy of plaintiffs'

restitutionary claim in this court?

A. Well, I don't know whether you can prove it, and I haven't

reviewed the evidence. But the economic model that you intend

to present has been explained to me by the economist, it's a

restitution model, and if the evidence supports it, it's a

perfectly valid model of a restitution claim, it's not a damages

claim.

Q. Is it reasonable to use restitution when an accounting has

not been rendered, in your view?

A. Absolutely. One of the common reasons for seeking

restitution is precisely when the restitutionary recovery is

provable and quantifiable in a way that the damage recovery is

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not.

Q. And why is it easier to prove, or is it easier to prove a

restitutionary remedy based on the benefit conferred than it

would be to prove damages to the members of the class, do you

know?

A. Well, again, without getting into the evidence that I'm not

familiar with, the basic difference here is, as we said at the

very beginning, restitution is measured on the defendant's side

of the transaction by the amount of the defendant's gain. I

mean, there's only one defendant, so it's much simpler to figure

out how much that defendant gained.

Damages are based on the plaintiffs' side of the

transaction. They're measured by the plaintiffs' loss. And the

class has hundreds of thousands of plaintiffs, and if it's

impossible to do an individualized accounting, then it may well

be impossible to prove or quantify the loss to individual

members of the class, but it may remain entirely possible to

quantify the gain to the defendant because you don't have to do

that disaggregation on the defendant's side.

Q. Based on your vast knowledge of restitution, is it commonly

used? Is it an area of law which is commonly understood in this

country?

A. It is certainly commonly used; I'm not sure it's commonly

understood. But there are -- you know --

THE COURT: You would be out of a job if it were.

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THE WITNESS: I would be out of a job if it were. I

get asked to explain restitution much more often than I'm asked

to explain damages.

A. But restitution is a very common remedy, especially in

certain fields of law, including the law of fiduciaries, who

have to give up all their profits, including the law of

intellectual property, where infringers have to give up all

their profits, including the law of fraud, where the plaintiff

always has the option of asking for the defendant's profits

instead of the plaintiff's gain.

So it is commonly used, and the judges usually figure

it out when it's presented to them. And some judges are

familiar with it, but I think it's not taught in many law

schools anymore, and the vocabulary of the first restatement and

of Palmer's Treatise is kind of quaint and inaccessible to

modern lawyers. So it's commonly used, but it's not as well

understood, certainly, as damages or injunctions.

Q. One last question. In how many law schools is restitution a

course studied, do you know?

A. I don't know for sure, but I'm only aware of two where

there's a separate course in restitution, the University of

Michigan and Boston University.

Now, many law schools have a remedies course that

includes a substantial unit on restitutionary remedies. That's

where it's still taught. But it's not taught as a separate

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course in many places at all, and there's no case book in print.

I had to use the draft restatement for my course.

MR. GINGOLD: Thank you, Professor. No further

questions.

THE COURT: Any cross for Professor Laycock?

MR. GILLETT: Yes, Your Honor.

CROSS-EXAMINATION

BY MR. GILLETT:

Q. Good morning, Professor Laycock.

A. Good morning.

Q. This takes me back to my law school days. I'm not certain

those were pleasant days.

A. But you get to turn the tables.

Q. I always tried not to get called on by the law school

professor who liked to use the Harvard method. Unfortunately,

sometimes I did.

When were you first hired to work on the Cobell case?

A. Sometime in late May. I don't remember the exact date.

Q. May of this year?

A. It was before the meetings of the ALI, so it would have been

the week of the 9th. So it was early May.

Q. Of 2008?

A. Of 2008, yes.

Q. And prior to that contact, Professor, what was your

knowledge or understanding of the case of Cobell vs. Kempthorne,

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or otherwise sometimes known as versus Babbitt or Norton.

A. Right. I actually didn't know about the case.

Q. And how many hours did you spend reviewing materials prior

to your testimony today?

A. I've got a running log I haven't totaled. I don't have it

with me. I have not reviewed many of the materials in the case.

I reviewed some. What I mostly reviewed was to confirm my own

recollections, the leading treatises in trust and in restitution

and remedies, and the relevant restatements and the key Supreme

Court cases.

And I've probably spent in the neighborhood of 30 or

40 hours all together, but that's an estimate. I haven't added

it up.

Q. Okay. And so you've looked at, for instance, the

restatement of trusts third?

A. I think the restatement of trusts is second. The

restatement of restitution is now third. They're doing this in

generations.

Q. And they're doing the restatement of trusts third as well,

aren't they?

A. Oh, I'm sorry, yes. They're doing a restatement of trusts

third, but I don't think the published drafts have yet gotten to

these remedies issues.

Q. And what information was there provided to you directly by

the plaintiffs in this case for your review?

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A. Well, they sent me their briefs and your briefs on --

pretrial briefs for this trial. Because the first thing I asked

them is, you've got to tell me what you're arguing. I've got to

know if your theory is the same as my theory.

So they sent me all the briefs, they sent me the

judge's most recent opinion, I think it's called Cobell XX. I

did not read I through XIX. I've looked at a few passages in

those earlier opinions that they pointed out to me, but I do

not -- I told them from the beginning, in the time available, I

cannot master the facts of this case. What I can testify to is

how settled principles of law apply to the claims you're making.

I've also seen a presentation of their economist's

model, so I have some familiarity with that.

Q. And what is the -- when you looked at that model, what sort

of assumptions were made in that model concerning the funds that

were or were not paid?

A. Well, you'll probably do better to ask that question of the

economist, but I can tell you what I understood.

Q. What did you understand that model to contain?

A. I understood it to contain an estimate of revenues into the

trust based on government data, an estimate of disbursements of

the trust based on what was called the CP&R data. I think

that's Check Processing and Reconciliation. So that was based

on checks that were written and checks that were cashed. And

from the years for which that data was available, they derived

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an average disbursement rate of about 70 percent, and they used

that disbursement rate. They had more data, more years of data,

available for collections.

And then they assumed the 10-year government bond rate

as the government's average internal rate of return for money

that was deposited in the Treasury.

Q. And that 10-year rate, that was the profits that were

attributable to the funds that were identified as not having

been paid?

A. Well, the profits would include the principal, the money

that was collected but not disbursed, and then also the interest

saved by having that model -- having that money in the Treasury.

And they used the 10-year rate as the average rate for

estimating that.

Q. Other than that information, the three briefs, your review

of treatises on the area of both whether it would be restatement

of restitution, unjust enrichment, or trusts, and that, any

other material that you used in preparing for your testimony

today?

A. Did you mention cases?

Q. Cases, excuse me.

A. Yes. You know, there might have been some stray document

here or there, but that pretty much sums it up.

Q. Are you familiar with the term "Treasury general account"?

A. I've heard that term. I have some notion what it means, but

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I don't have any precise notion what it means.

Q. And did you examine in your preparation whether there was

any commingling of funds, as that term is used in the

restatement of restitution and unjust enrichment, or in the

restatement of trusts?

A. I did not examine that. As I said, I did not examine the

facts. What I tried to testify to was, is the claim the

plaintiffs are making a restitution claim within these various

waivers of immunity. I did not try to verify the claim.

Q. But is commingling, whether a fund is commingled or not

commingled, important with regard to the manner in which the

plaintiff meets its burden of proving unjust enrichment by the

defendant?

A. Well, normally, commingling trust funds with the trustee's

own funds would be a very serious breach of trust. Someone over

the last few days explained to me that the government is

entitled to commingle. It still has to account for interest on

the trust funds, but it doesn't have to keep them separate. So

I didn't inquire into commingling.

Q. So have you looked at the statements in the restatement of

trusts that seem to allow a trustee to commingle trust accounts?

If that happens to be, in effect, to the benefit of the

claimant, the beneficiary takes 1,000 small trusts, puts all of

the money into one large cash account, and then invests it in

that manner, would that be improper commingling, in your

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opinion?

A. I think what you just described is commingling of the funds

of multiple beneficiaries --

Q. Right.

A. -- which may save money. I think that's rather different

from commingling beneficiary money with trustee money. So yeah,

I don't have any problem with running a joint account that

commingles the funds of many beneficiaries.

Q. So that would not be improper commingling?

A. This isn't what I came to testify in regard to the

violation, but my understanding of trust law is no, that would

not be improper.

Q. What you're trying to suggest would be commingling, if the

United States received $10 million from an IRS payment, someone

paying their taxes, and they put that $10 million in the same

account as $10 million of Individual Indian Trust.

A. That's my understanding of commingling by a trustee, the

kind of commingling that's generally improper.

Q. Are you aware of any statements in the restatement of trusts

that would deal with that that is allowed in sort of a cash

collection account so long as the trustee can properly identify

the ownership of those funds?

A. I'm not aware that those provisions exist or that they don't

exist, because I didn't investigate the law with respect to the

alleged breach. I was only reviewing my recollection of the law

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with respect to the remedy.

Q. And commingling, whether there was commingling or not

commingling, would not affect the appropriateness of any

particular remedy in this case?

A. I think the remedy here, the remedy that is sought, is based

on the government's imputed use of the trust funds, and that

remedy doesn't really depend on whether they were commingled. I

think the theory of the alleged remedy is they were in the

Treasury account, they enabled the government to borrow us

money; whether they were identified as a separate sub account in

Treasury or commingled in Treasury, I don't think affects the

remedies issues.

Q. So you were not told to assume for the purposes of your

testimony that it was a commingled fund?

A. I was not told to assume it was commingled, and I did not

assume it was commingled.

Q. But you did assume for the purpose of the remedies that

there was unjust enrichment, that there was some sum of money

that the United States received on behalf of Indian

beneficiaries that was not paid to them?

A. Actually, I didn't even assume that. The basis of my

testimony is that's what the plaintiffs are claiming, and if

that's what they're claiming, it's a

down-the-middle-of-the-plate restitution claim.

But whether or not what they're claiming really

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happened was not within the scope of my testimony.

Q. Are you familiar with the term "specific restitution"?

A. Yes.

Q. And what is specific restitution?

A. Specific restitution is restitution of specific property

that represents the very thing that the defendant gained.

Q. So if I was the trustee and had received $1,000 on account

of my claimant beneficiary, and that was put into a large cash

account, cash collection account, would specific restitution

still reach the $1,000, assuming there was still $1,000 in that

cash collection account?

A. Yes, it would. I think the question is ambiguous about

which of two sets of distinctions you're asking about, but the

answer to either is yes. Getting back that $1,000 is going to

be specific relief.

Q. So there could be specific restitution for the $1,000, but

the claimant could also bring a civil money damage claim for

$1,000 and recover that from the trustee as well. Is that

correct?

A. I think that question draws a mistaken distinction. Civil

money judgment is the alternative to recovering from an

identifiable fund, and the point of recovering from an

identifiable fund is to gain priority over other creditors. And

we also use specific relief in a different sense, simply meaning

to recover the same thing that you lost, and it has nothing to

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do with priority over other creditors. So a specific

performance decree is specific relief, and it's not about

priority over other creditors in most cases.

I think the general understanding in the field is if

the very thing the trustee gained was $1,000, then returning

$1,000 is specific relief, whether or not it comes out of the

same fund.

And the reason I began, I think, is this: Except for

Bowen, this distinction is a descriptive category that doesn't

have any doctrinal consequences. It doesn't matter really --

usually it doesn't matter whether we describe the relief as

substitutionary or specific. It helps lawyers and law students

understand what's going on, but it typically doesn't have

doctrinal consequences.

Bowen gives that distinction doctrinal consequences,

and Bowen seems to treat money as fungible. So if what you're

entitled to is money and you recover money, they treat that as

specific relief. I think that is consistent with how lawyers

have used the terms. But it's not a term that has been

litigated or interpreted much, because apart from Bowen, it's

only descriptive and not result driving.

Q. You seem to resist using the term "specific restitution" in

favor of the term "specific relief." Is there a reason that you

use that, specific relief, as opposed to specific restitution?

A. I wasn't meaning to resist. In this case I'm perfectly

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comfortable with specific restitution. But Bowen was specific

relief more generally, it wasn't restitution.

Q. That involved an APA case in which the plaintiffs sought to

require the Secretary to perform certain obligations that were

imposed by statute?

A. That's right.

Q. And that's not the sort of thing that you would have where a

trustee simply receives money and fails to -- and either

dissipates it or whatever. There's not a statute and an APA

action at all?

A. Well, it's not the sort of thing you would have with the

usual trustee, but with the United States as trustee of a trust

created by statute, with specific duties imposed by statute like

those duties to pay interest we were looking at on direct, it is

a specific statutory obligation. And at least if the statute

interpreted mean what it appears to say, then an order enforcing

it would be exactly analogous to Bowen. It would be specific

enforcement of a statutory duty.

Q. But it also would be a trustee has the duty of a prudent

investor, so that if he receives money on account of a claimant,

the prudent investor rule requires him to invest that in a

prudent manner. And if he fails to do so, isn't it true that

the claimant is then entitled to recover the sum that was

invested, plus the sums that would have been earned if invested

in a prudent manner?

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A. That's true. But that would be a damage claim and not a

restitution claim. Because the sums that -- if the plaintiff

asked for the sums that would have been earned if the money had

been invested, that's money that should have been earned but

never was. That's a loss to the beneficiaries, and that would

be a damage claim that's not included in the restitution claims

that we're talking about here.

Q. So in a restitution claim, under those same fact patterns,

we would have to switch the interest that should have been

earned to the interest that was in fact earned?

A. The interest that was in fact earned or the interest that

was in fact saved if the government is that borrower through

this whole period.

Q. I hadn't gotten to that hypothetical yet. But just where

the trustee takes the $1,000 and does not invest it prudently,

the claimant is still entitled to the $1,000 and the interest

that was actually earned, and you're saying that would be a

restitutionary remedy?

A. That's correct. And if we take your two questions together,

they're entitled to one or the other but not both. They can't

get interest on the same money twice, but they can get the

interest that should have been earned as a damages claim, or

they get the interest that actually accrued to the trustee as a

restitution claim.

Q. And even though these are both breaches of trust, and the

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remedies for breaches of trust are almost uniquely equitable.

Isn't that true?

A. Well, it was true until the Supreme Court got into the act

and declared all these damage remedies to be legal, not

equitable. I think that's historically mistaken, and I think

Professor Langbein has been very vocal about that, but it's not

an issue here.

Historically, all the remedies for the enforcement of a

trust were equitable if the plaintiff chose to sue in equity,

and there were some very limited exceptions where you also had

the option to sue in the law courts.

Q. So in addition to the -- you would say that for the $1,000

that the trustee got and did not pay, you could get the $1,000

back as specific restitution, clearly?

A. Yes.

Q. You could get the interest that was actually earned; that

would be specific restitution?

A. Yes.

Q. You could then get interest that should have been earned in

the alternative; that would be legal?

A. Yes.

Q. That would be damages?

A. That would be legal in the Supreme Court's new

categorization of these things, yes. That would be damages. I

think I'm more comfortable saying it would be damages than

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saying it would be legal.

THE COURT: Can plaintiff get both?

THE WITNESS: He cannot get both.

THE COURT: Or do they have to elect?

THE WITNESS: He has to elect to the extent that

they're two measures of the same economic substance. There are

cases where part of the recovery is in restitution and part of

the recovery is damages, and they don't overlap. But when we're

talking about interest, he has to choose. Because interest that

should have been earned is damages, and interest that actually

was earned on the same money are two measures of the same thing.

We might use a different interest -- we would use a different

interest rate, but he can't get both. He would have to elect.

BY MR. GILLETT:

Q. Let's look at -- I mean, when we're talking about damages,

you look to the loss by the claimant, the beneficiary here?

A. Yes.

Q. So there, the $1,000, whether you look at it from the

claimant's point of view or the government's point of view, the

$1,000 is the same on both sides of the ledger. Right?

A. If it's only $1,000, it's the same on both sides of the

ledger.

Q. The claimant has lost $1,000 --

A. Yes.

Q. -- the trustee has gained $1,000?

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A. Yes.

Q. Looking at it from the claimant's point of view, he has lost

a certain amount of interest that was not paid to him, and that

would still be a damage claim.

On the other side, you would say if the trustee had

invested the $1,000 in government securities, the benefit, the

unjust enrichment, looking at it from the trustee's point of

view, is the $1,000 plus the money that was actually earned by

investing that $1,000 in government securities?

A. Yes.

Q. Now let's assume that the trustee had the obligation to,

under statute or regulation, to invest in government

obligations. When you look at the two from the point of view of

the claimant, he had the right to receive interest that was paid

on government instruments that were invested in, and he gets the

$1,000. And on the other side, the quantum of damages is

exactly the same. Is that correct?

A. I'm sorry --

Q. Invested --

A. I got lost. It was exactly the same before we started

putting the interest in. I think once we put in the interest,

it may become somewhat different.

Q. Let me start over. From the beneficiary's point of view, it

was $1,000 that he's entitled to?

A. Yes.

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Q. And because, let's say, a statute requires the United States

to invest it in government securities, he is entitled to the

interest that would be obtained from that investment, even if

the United States didn't do that. Is that correct?

A. I think that's correct.

Q. Now, on the other side, looking at it from the trustee's

point of view, he gained $1,000, and in this case he actually

invested it in those government obligations and received

interest on those government obligations.

A. Yes.

Q. Now we have the quantum on both sides; whether it be

restitution disgorgement or it be damages, we have exactly the

same thing, same quantum.

A. Not necessarily. Because, for example, the statute we

looked at a few minutes ago, the statutory obligation was to

invest at a rate of at least five percent. The interest rate

that the government actually earned or saved in many years was

less than five percent.

So the unjust enrichment, based on what the government

actually gained, will be a lower interest rate and therefore a

smaller number than the specific statutory entitlement of five

percent. And it would probably also be a lower number than if

we just measured it by the general measure of common law

damages, which would be the market rate of interest available to

the plaintiffs, which is probably higher than the 10-year bond

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rate.

Q. But a trustee who as a prudent investor has to comply with

the restrictions on the trust, if the trust requires that it be

invested in government obligations, then he must fulfill that

obligation, is that correct, even if he could find greater

return somewhere else?

A. That's correct.

Q. But leaving aside the five percent statute that Mr. Gingold

showed you, I don't want that in my hypothetical.

A. Okay.

Q. They both -- from the damage point of view, look at from the

claimant's side, the beneficiary's, he lost interest that would

have been earned on government securities that his trustee was

required to invest his funds in, and that would be his damages,

non-restitutionary, just money damages.

On the other side, the unjust enrichment side would be

the $1,000 would have to be paid back as restitution, specific

restitution, and the interest that was actually earned by

investing it in the same government securities or instruments,

he would have to -- that he actually earned, he would have to

pay that back. That would be disgorgement.

A. Yes.

Q. And if the investment, the interest rates, because they were

the same instruments, are the same, why would one remedy be more

appropriate than the other, or does the law favor one over the

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other?

A. Well, the numbers are only going to be the same if you

stipulate that the trust instrument tightly restricts what the

trustee can invest in for the benefit of the beneficiaries, and

that is exactly what the trustee then invested in for the

benefit of himself.

And if we assume those facts, then the amount of the

loss to the beneficiaries and the amount of the enrichment to

the defendant should be the same. Whether it's the same or

different, the usual rule is the plaintiff has a choice of

remedies here. He can choose to pursue the damage remedy or he

can choose to pursue the restitution remedy, and he has to

obviously satisfy the requirements of the one he chooses, but if

he can satisfy those requirements, he's entitled to elect.

Q. But when the damages equal the gain, there's very little

reason to go to restitution. Isn't that true?

A. Well, in a wide range of cases there's very little reason,

but sometimes either judge-made doctrine or statute creates a

reason. And most obviously here, if you have a waiver of

sovereign immunity for any remedy except money damages, then

you've got a waiver that covers the restitution claim and that

doesn't cover the damages claim. And that may be an odd choice

for Congress to make, but we've got similar distinctions in the

law of a lot of states.

So that's a distinction that's fairly familiar to the

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law, that the waiver of immunity covers one remedy but not the

other.

Q. Well, would you agree with this statement: That when the

underlying wrong is the same and the remedy is the same,

important collateral issues should not be left to the option of

the clever pleader?

A. As a matter of policy, I would agree with that because I

wrote that. But if you look at the context in which I wrote it,

the immediately preceding or preceding plus two sentences says,

but that's what the law is, that you get different rules of

statute of limitations, different rules of sovereign immunity,

and I think there are a couple of other examples there of things

you get different rules of in what the law actually is if the

plaintiffs' lawyer knows to choose the restitution remedy rather

than the damage remedy, or vice versa.

Q. As a matter of policy, you don't think that's a good idea,

however?

A. As a matter of policy, I don't think that's a good idea, but

I don't have a majority of the votes in the Congress. I didn't

get to write the statute.

Q. Now, are you aware of a statute that actually requires the

investment of Individual Indian Money trusts in government

securities?

A. Yes, I've seen that statute.

Q. And in fact, in this case, in the hypothetical that the

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plaintiffs have asked you where the avoidance of a cost by the

United States, which is the benefit that they've asserted and

you've testified about, is the avoidance of a cost that the

government would bear if it had, say, taken $1 million of the

Indians' money and not had to borrow it, it would have had to

pay some Treasury rate to borrow that million dollars; now, if

the statute requires that the million dollars of the Indian

funds be invested in government securities, it's possible that

the measure of the two there, the government actually hasn't

benefitted at all, it would have paid the government instrument

rate of interest on the million dollars to the Indians just as

it would have avoided that cost?

A. I'm not sure I follow the question.

Q. If you assume that the United States invested the money for

the Indians, they would have paid the interest also on whatever

a million dollars of government obligations were.

A. If you assume they invested the money for the Indians, and

they accounted for the interest and eventually disbursed that

interest to the Indians, then yes, there's no benefit to the

government. I don't think that's the assumption of the model

based on the disbursement evidence that's actually available,

but again, I'm not testifying to what the evidence is.

Q. Now, you've testified that you believe that in the

Administrative Procedure Act, when they use the term "money

damages," that they were using that as a term of art.

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Now, isn't it true that in the federal system, equity

in law was used with the federal rules, there were no separate

legal and equitable causes of action, per se?

A. There's one form of action known as the civil action, but

distinction between legal and equitable persists for various

purposes, including jury trial and including ERISA and so forth.

Q. But in terms of you believe that under the APA, that if the

same measure of damages and the same amount, and you simply put

the label "restitution" on it, that you automatically, then, by

pleading, have avoided the sovereign immunity issue of the APA?

A. I didn't say that. It's not enough to simply put the label

on it. The facts have to support it. It has to actually be a

gain to the defendant and not merely a loss to the plaintiff.

If it is both, you can focus on the gain to the

plaintiff -- I'm sorry, you can focus on the gain to the

defendant. Because if it's both, the plaintiff has a choice of

remedy. And so yes, if the facts will support it, then the

plaintiff can make a restitution claim and be within the waiver.

But it's not merely a matter of labeling. They have to

actually prove a different set of facts for restitution than for

damages. And there will be cases where the facts overlap or

turn out to be pretty much the same, but you can't assume that.

When they're filing their complaint, they have to make out a

case for restitution.

Q. Now, are you aware of the cases that I guess would be

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denominated as -- the lead case was United States vs. $277,000,

a civil forfeiture case where the United States comes into

possession of $277,000, let's say, from a civil forfeiture along

with a criminal action; after the criminal charges are dropped

and the United States decides that there's no reason to forfeit

the money, the claimant says, I want my $277,000 back and I want

the use value of that money.

A. I don't know those cases.

Q. Could that be a restitution issue? Could you claim

restitution of that $277,000?

A. Well, unless there is some statute that precludes the

restitutionary remedy, yes. Is it common law or in equity, that

would be a pretty straightforward restitution claim.

Q. And along with that you could make a claim for the

disgorgement of profits or interest earned by the United States

while it was holding the money, if they actually earned it?

A. Well, not necessarily. These rules that we've been

discussing, the accounting for profits rules -- well, let me

answer that in two parts. Okay?

The rule that the defendant has to account for all his

profits of whatever kind is a rule that applies to conscious

wrongdoers and to fiduciaries. So there are other forms of

restitution claims that have more limited remedies, and I think

your question was about all profits, or words to that effect.

But even with respect to the more limited remedies in

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other forms of restitution, I think restitution normally

includes interest, unless -- because the question you're asking

is with the government as a defendant, and I'm not familiar,

except in the most general terms, with the general forfeiture

statutes. Unless there's some statutory provision that prevents

it.

But that kind of claim for restitution of money that a

defendant wound up in possession of at common law or in equity

would normally include interest.

Q. Now, are we talking about interest actually earned or

interest that should have been earned in a non-fiduciary

situation?

A. In a non-fiduciary situation but a restitution claim, not a

damages claim, it would be interest actually earned or interest

actually saved by the defendant.

Q. So let's assume the government did not invest that 277 in an

interest-bearing account, so there's no actual interest earned.

But the United States put it in the General Treasury Account,

where money usually goes when the government gets in possession

of it. We'll assume that. Okay?

A. (Witness nods.)

Q. Now, under your -- under what you've testified today, would

it be correct to say that if the government used that $277,000

to avoid borrowing $277,000, there should be a disgorgement

remedy available for the savings, the interest-avoidant costs

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that the United States obtained?

A. Yes.

Q. And we're ignoring sovereign immunity issues here.

A. We're ignoring sovereign immunity issues, because I don't

know what the immunity rules are with respect to civil

forfeiture recoveries.

Q. But if there were a bar against obtaining prejudgment

interest against the United States, a sovereign immunity type

issue, on the damage side they wouldn't be able to get interest,

but on the disgorgement restitution remedy side, it's possible

they could?

A. I think that's right. I think that's what Henkels says.

Q. Do you know whether the statute that you referred to

requiring five percent interest paid on accounts, do you know,

did you do any research as to whether that's still actually

effective today with regard to individual Indian accounts?

A. Well, I saw that it's still in the current codification, but

I did not personally do any research beyond that.

Q. Now, are you familiar with the Blue Fox case that followed

the Bowen case with regard to equitable -- certain equitable

liens or constructive trusts against the United States?

A. Yes, I am.

Q. Does that in some way limit the availability of some of

these equitable remedies against the United States?

A. No.

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Q. No. What was the import of the Blue Fox case with regard to

the Bowen case?

A. Well, Blue Fox was not an ERISA case, it was a case of a

government subcontractor who didn't get paid because the general

contractor went broke. So the claim was squarely based on

losses to the subcontractor. There was no unjust enrichment in

the case, because the government lost money, too, when the

general contractor went broke.

And so what the plaintiff did was he sued for the money

he was due that had been unpaid on his contract, and sought an

equitable lien on certain funds that had once been in possession

of the government to secure the payment of his losses. And what

the Court said, and I think it's right, and it excited me in the

course of saying it, is the claim here is essentially for losses

suffered as a consequence of the government's failure to require

a performance bond from the general contractor. And the

equitable lien, which would be equitable and would be

restitutionary, that's just an attempt to secure the underlying

judgment, and the underlying judgment is for damages, not

restitution.

Q. And so even though they were a clever pleader in that case,

they didn't succeed?

A. Well, they weren't as clever as they thought they were,

because they couldn't disguise the fact that what they were

really seeking was losses they had suffered.

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MR. GILLETT: I have no further questions, Your Honor.

Thank you, Professor Laycock.

THE WITNESS: Thank you.

MR. GINGOLD: Just a couple of questions, Your Honor,

on redirect.

REDIRECT EXAMINATION

BY MR. GINGOLD:

Q. If I understand Mr. Gillett's questions, I think he asked

you if interest was obligated and wasn't paid, would that be

damages or would that be restitution, or words to that effect.

Do you recall that?

A. I recall the question. I think it was a little different

from the way you just asked it. Because I think you left out of

his question anything about the possibility of specific

enforcement of the statute, and I understood him to be asking

about common law remedies, interest that should have been earned

but wasn't would normally be a loss to the plaintiff, and in the

absence of a specific statutory entitlement, would normally be

treated as damages.

Q. Where there is a specific statutory entitlement or

obligation, what is it?

A. Well, it doesn't convert it into restitution if you're

looking at the money the plaintiffs lost, but a specific

statutory obligation may well bring it within the specific

relief category of Bowen. I think you could specifically

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enforce that statutory obligation.

Q. And that would not be damages?

A. That would be specific relief, it would not be damages.

Q. I would like to identify Plaintiffs' Exhibit 18.

MR. GINGOLD: Your Honor, this is Cobell XIII.

THE COURT: It's what again?

MR. GINGOLD: Cobell XIII.

BY MR. GINGOLD:

Q. I would like to turn your attention to page six.

Professor Laycock, have you read this before?

MR. GILLETT: Your Honor, this is beyond the scope.

MR. GINGOLD: We're dealing with payment of interest

that Mr. Gillett went into great questioning --

THE COURT: I'll allow it. I'll allow it.

A. I have read this before.

BY MR. GINGOLD:

Q. What is your understanding of this statement?

A. This is the Court of Appeals saying that a delay in the

accounting would be harmless, because the income beneficiaries

are going to be entitled to interest for the entire period

anyway, or for imputed yields over the period of the delay.

MR. GINGOLD: No further questions, Your Honor.

THE COURT: Professor, in Mr. Kirschman's opening

statement he repeated one of the basic challenges that the

government has laid down to the plaintiffs' recovery throughout

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95

this case. He said, and I expect I'll hear this more and more,

that the remedy, the remedy in this case must flow from the

alleged injury, which is failure to provide a historical

accounting.

So far what's been established in this case is that the

government has failed to provide a historical accounting -- and

I'm oversimplifying this for the sake of the question. The

government has failed to provide a historical accounting, and

indeed cannot do so.

And then there was some desultory discussion last time

we were here about what the gap is between what the government

has collected and what they have disbursed, but we're going to

sort all that out.

The question is, can there be restitution for a failure

to account?

THE WITNESS: I don't think I would put it quite that

way, although the failure to account is certainly relevant. I

think -- as I said, I have not tried to master the 20 opinions

in this case, but my understanding of the attempt at the

historical accounting was that it was to determine, in as much

detail as possible, what had happened over the years so that the

plaintiffs would then know what claims were available to them.

And further requests for relief would have followed in the wake

of the accounting.

The accounting, having been found to be impossible, the

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96

plaintiffs are left only with those claims that they can prove

without the benefit of the full accounting. And the claim that

they have focused on and think they can prove without the

benefit of the full accounting is not based on the failure to

account, except as an evidentiary matter, it's based on the

evidence they think they have that much more money was collected

than was ever disbursed.

THE COURT: Actually, the plaintiffs' theory is a

little bit more the flip side of that. The plaintiffs' theory

is, it's your duty to account --

THE WITNESS: Well, that's right.

THE COURT -- and that which you can not account for,

you must restore.

THE WITNESS: I think that's right, Your Honor. I

think they're saying both. I think they're saying it's the

government's duty to account, but the best evidence the

government has offered so far also shows this gap between income

and disbursements.

And I think the restitution claim is now focused on

that violation. Not on the failure to account as such, but the

inability to account continues to be relevant as an evidentiary

matter to the attempt to determine the difference between income

and disbursements.

So restitution here, or specific relief, is not

intended to be directly the remedy for failure to account,

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97

except insofar as the failure to account has evidentiary value

on the amount of disbursements. The accounting having been

found impossible, they have focused on the violations that they

think they can still prove even in the absence of an accounting.

And if you recall the list of potential damage claims, a lot of

claims have gone by the wayside after the accounting turned out

to be impossible.

THE COURT: In the taxonomy of relief that you used to

lead off your discussion, you mentioned damages, restitution,

injunctive or injunctive relief, declaratory relief.

THE WITNESS: Yes.

THE COURT: Does each of those forms of relief stand

alone? Or I'm interested particularly in declaratory relief.

Does declaratory relief have to be tied to something else or can

it just stand all by itself?

THE WITNESS: Sometimes it stands all by itself; often

it is tied to something else. So you declare what the

defendant's duty is under a body of law, and usually the

defendant will comply, but sometimes you have to follow up with

an injunction to make sure that that happens.

But declaratory relief stand by itself, and often the

parties are both happy to have their dispute resolved and they

both comply with whatever the Court declares.

THE COURT: So just hypothetically, if a court were

uncertain about its power to award restitutionary relief, and

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98

were, as a consequence, to award declaratory and restitutionary

relief, belt and suspenders, would those two merge or could the

plaintiff -- if the restitutionary relief were not allowed by

another court, could the plaintiff take the declaratory relief

to another court that could award -- that could require it to be

satisfied?

THE WITNESS: That's a very interesting question. You

know, the Declaratory Judgment Act expressly provides for such

further appropriate relief as may be necessary to enforce the

declaratory judgment. I think that the usual presumption is

that that further relief to enforce the declaratory judgment is

going to come from the court that issued the declaratory

judgment.

But if some higher court were to say the money has to

come from the claims court --

THE COURT: We don't want to get too specific.

THE WITNESS: We don't want to get too specific. The

money has to come from somewhere else, it would also be part of

the usual rules that the declaratory judgment is a final

judgment, it's res judicata. And I would think that ought to be

honored in the other court, and I think we're in relatively

unexplored territory here, but I would think that ought to be

honored.

THE COURT: Thank you, Professor. There was some

dispute about whether I should hear expert testimony from law

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99

professors, and of course, as you say, I'm presumed to be able

to read the cases myself, but you have a gift for making things

simple and straightforward, and I appreciate your testimony.

THE WITNESS: Thank you, Your Honor.

THE COURT: You're excused. Thank you very much. It's

lunchtime. We'll be in recess until 1:35.

(Recess taken at 12:34 p.m.)

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100

CERTIFICATE OF OFFICIAL COURT REPORTER

I, Rebecca Stonestreet, certify that the foregoing is a

correct transcript from the record of proceedings in the

above-entitled matter.

_______________________________ _________

SIGNATURE OF COURT REPORTER DATE

$$1,000 - 65:23, 65:24, 66:2, 76:7, 76:10, 76:14, 76:16, 76:18, 77:5, 77:6, 79:15, 79:16, 80:12, 80:13, 81:18, 81:20, 81:21, 81:23, 81:25, 82:6, 82:8, 82:9, 82:16, 82:24, 83:7, 84:17$10 - 74:14, 74:15, 74:16$158 - 34:4, 34:13, 34:20, 35:5, 37:19$2,720,000 - 30:19$277,000 - 89:1, 89:3, 89:6, 89:10, 90:23, 90:24$5,640,000 - 33:3$564,000 - 32:13$58 - 24:9, 26:15$7,657,000 - 30:18

11 - 1:8, 20:5, 87:41,000 - 73:231.5 - 26:5, 62:1010 - 32:14, 54:110-year - 72:4, 72:7, 72:13, 83:25100 - 14:15, 23:231001 - 1:2411 - 33:4, 58:181100 - 1:16, 2:312 - 13:21, 18:18, 33:17, 59:18120 - 26:20120-year - 20:8, 21:21, 23:4121 - 5:19, 5:2012:34 - 99:712th - 5:113 - 60:1814-year - 11:19, 11:21145 - 29:1914th - 1:12, 1:2014x-6039 - 32:314x-7 - 32:418 - 94:41841 - 10:8, 58:15, 59:25, 60:191880 - 10:9, 10:151890 - 35:1919 - 35:181909 - 31:41910 - 30:12, 30:15, 30:17, 31:3, 31:111915 - 12:251925 - 14:201926 - 9:101928 - 12:251937 - 48:71945 - 6:21, 7:51951 - 5:21, 35:201961 - 7:91973 - 41:241982 - 10:91984 - 40:121985 - 40:131987 - 40:111991 - 12:121993 - 41:241994 - 9:25, 58:151997 - 40:141:35 - 99:6

1st - 31:4

22 - 42:32.5 - 31:920 - 95:1820001 - 2:1320005 - 1:13, 1:21, 2:42001 - 22:3, 39:192003 - 10:21, 16:9, 18:2, 62:1020044 - 2:92007 - 22:15, 22:232008 - 1:4, 23:8, 69:22, 69:23202 - 1:14, 1:22, 2:4, 2:9, 2:1320th - 8:325 - 39:24, 59:2027101 - 1:24277 - 90:162800 - 1:172nd - 19:16, 23:7

33 - 3:330 - 11:23, 70:1130309-4530 - 1:17307-0010 - 2:4307-1104 - 2:9333 - 2:12336 - 1:2535 - 30:21354-3249 - 2:13365.7 - 35:14, 37:223p11t018 - 32:11

44 - 44:12, 63:64.5 - 25:5, 25:16, 37:34.7 - 31:440 - 70:12404 - 1:18

5585-0053 - 1:2259-day - 4:22

66.6 - 31:66.9 - 31:11607 - 1:12, 1:20607-7392 - 1:25632 - 7:46511 - 2:1268 - 30:13, 30:1769 - 30:13, 30:17

77 - 46:670 - 11:20, 12:9, 14:1, 14:14, 25:23, 72:1702 - 56:24, 57:1, 57:7, 57:9, 63:197th - 39:13

88 - 50:10815-6450 - 1:18824-1448 - 1:14

99 - 1:4, 29:249.6 - 31:13900 - 1:2195 - 35:11, 37:2096-1285 - 1:2, 4:2975 - 2:89th - 69:21

Aability - 10:16able - 12:9, 18:12, 21:7, 23:16, 24:5, 25:9, 26:21, 36:11, 46:15, 64:24, 91:9, 99:1above-entitled - 100:5absence - 61:15, 93:18, 97:4Absolutely - 61:13, 66:23academic - 40:16Academy - 39:14accepted - 28:4accompanying - 47:9accordance - 6:17, 16:2account - 5:4, 5:5, 6:2, 7:5, 7:19, 7:21, 7:23, 26:9, 27:18, 29:8, 29:17, 29:18, 29:21, 31:19, 32:5, 32:19, 34:10, 36:16, 48:14, 65:1, 66:1, 72:24, 73:17, 73:24, 74:7, 74:16, 74:21, 75:9, 75:10, 76:7, 76:9, 76:11, 78:20, 89:20, 90:17, 95:15, 95:17, 96:5, 96:10, 96:12, 96:16, 96:20, 96:21, 96:25, 97:1Account - 17:24, 32:1, 90:18accountable - 53:20, 55:13accountant - 16:25accounted - 11:24, 20:9, 87:18accountholders - 21:7, 25:5Accounting - 36:2accounting - 5:8, 5:9, 5:22, 6:3, 6:23, 8:4, 8:14, 8:15, 8:24, 13:12, 21:10, 21:25, 22:15, 22:23, 28:22, 33:16, 35:17, 36:1, 36:11, 36:20, 44:6, 47:21, 48:13, 48:20, 48:23, 53:2, 65:12, 66:21, 67:15, 89:18, 94:19, 95:4, 95:6, 95:8, 95:20, 95:24, 95:25, 96:2, 96:4, 97:2, 97:4, 97:6accounts - 17:6, 19:19, 20:15, 21:4, 21:5, 21:16, 22:1, 22:17, 25:16, 26:7, 28:12, 28:16, 28:17, 28:20, 28:21, 30:7, 31:9, 32:2, 32:4, 33:2, 33:4, 33:6, 37:24, 73:21, 91:14, 91:16

accrued - 5:24, 61:10, 79:23accruing - 60:8, 60:13, 60:17accumulated - 36:23accurate - 13:20, 14:15achieve - 41:11acres - 8:7acronym - 27:7act - 10:17, 25:8, 80:3Act - 9:25, 10:8, 56:15, 56:24, 58:19, 87:24, 98:8acted - 62:20acting - 5:15, 14:17, 14:18, 14:21Action - 1:2, 4:2action - 18:21, 78:10, 88:3, 88:4, 89:4acts - 14:22actual - 24:16, 28:1, 34:10, 36:3, 37:8, 90:17actuarial - 49:22actuary - 49:21actuary's - 49:23added - 70:12addition - 9:16, 80:12address - 19:16, 19:21, 20:2, 22:12, 23:2, 23:3, 37:16addressed - 5:21, 7:9, 37:9, 38:22addressing - 19:10, 19:11, 21:21, 34:23administered - 38:8Administration - 17:22Administrative - 56:23, 87:24administrative - 20:19, 22:20, 32:18, 32:19, 35:10administrative-to-

administrative - 32:18administrator - 14:19admission - 7:8, 13:15Admitted - 3:6admitted - 7:20, 7:22advisor - 39:20, 40:12, 40:13Affairs - 16:14, 30:13Affairs' - 17:9affect - 75:3affects - 75:11affirmed - 5:6, 6:11age - 51:8agent - 32:24, 33:10, 33:12aggregate - 21:16, 21:18, 21:20, 22:4ago - 11:13, 42:16, 52:8, 83:15agree - 42:14, 42:21, 42:23, 54:22, 86:3, 86:7agreement - 4:10, 8:25aided - 2:15aimed - 42:23


1

al - 1:3, 1:6, 4:3Albuquerque - 16:25Ali - 69:20Alien - 56:15alien - 54:10aliens - 54:11allegation - 19:23, 36:15allegations - 36:22, 37:3, 45:4alleged - 7:19, 7:21, 36:9, 36:10, 74:25, 75:8, 95:3allow - 11:20, 47:3, 61:20, 73:21, 94:14allowed - 45:10, 74:20, 98:3almost - 29:24, 31:11, 33:17, 80:1alone - 97:13alternative - 58:1, 58:2, 76:21, 80:20ambiguous - 76:12amended - 10:8, 10:17amendment - 62:21American - 39:14, 39:17, 39:18, 40:6, 40:10amount - 5:24, 6:4, 6:15, 7:1, 7:2, 8:5, 13:5, 14:5, 18:15, 22:4, 22:24, 24:21, 25:9, 26:20, 32:13, 33:4, 34:2, 34:5, 34:6, 36:7, 37:13, 37:15, 37:23, 67:9, 82:3, 85:7, 85:8, 88:8, 97:2amounted - 11:22amounts - 13:7, 13:8, 20:9, 24:7, 24:22, 25:19, 25:20, 33:15, 33:20, 33:23, 60:24, 61:1ample - 12:3, 14:6analogous - 78:17analogy - 47:18, 47:22analysis - 20:6, 21:18, 23:21, 25:12, 28:4, 34:2, 34:8, 34:17, 34:22, 35:15, 35:18analyze - 23:13analyzed - 23:18analyzing - 22:4ancient - 53:8Andersen - 17:2Angel - 24:4anniversary - 5:1annual - 60:13, 60:16, 60:25, 61:2, 61:3, 61:9annum - 60:10answer - 23:6, 47:4, 76:14, 89:19anticipate - 4:14, 24:20, 26:8, 26:21anyway - 94:21Apa - 78:3, 78:9, 88:7, 88:10apart - 77:20Appeals - 5:5, 6:9, 6:11, 7:10, 8:14, 15:3, 39:13, 94:18Appearances - 1:10appellant - 5:23application - 47:23, 47:24

applications - 47:16applied - 46:11applies - 5:11, 10:1, 10:2, 60:11, 89:21apply - 6:21, 9:7, 10:4, 11:10, 71:11appreciate - 14:13, 38:2, 99:3appropriate - 9:5, 18:23, 18:24, 84:25, 98:9appropriateness - 75:3appropriating - 55:1approved - 33:9approximation - 13:11, 18:5April - 25:14Ar-171 - 21:2, 22:12, 22:19, 22:22, 25:12, 25:15, 34:9, 35:4, 35:9arcane - 16:8area - 16:8, 21:15, 67:21, 72:16arguing - 71:3argument - 15:12, 35:21, 35:23, 55:9arguments - 24:14Arizona - 41:22arrived - 18:13arrow - 30:23arrows - 28:25art - 57:18, 87:25Arthur - 17:2articles - 40:5, 40:7Arts - 39:15aside - 84:8aspect - 14:16asserted - 45:2, 87:2assets - 8:24, 45:8, 45:9, 52:3, 64:19, 64:25, 65:5, 65:11, 65:17associated - 47:25, 48:2assume - 4:10, 75:13, 75:15, 75:16, 75:17, 75:21, 82:11, 85:7, 87:14, 87:17, 88:22, 90:16, 90:20assumed - 11:15, 11:18, 14:1, 14:2, 14:3, 14:4, 72:4assuming - 11:25, 12:8, 14:14, 27:2, 76:10assumption - 46:14, 87:20assumptions - 22:16, 71:15Atlanta - 1:17attempt - 92:18, 95:19, 96:22attention - 42:7, 43:2, 50:13, 54:6, 54:15, 94:9Attorney - 2:6attributable - 72:8audience - 15:11Audit - 6:22audited - 12:20auditors - 12:20audits - 17:1, 17:2authority - 12:3authorization - 29:15, 31:24

authorized - 11:9automatically - 88:9availability - 13:20, 91:23available - 13:9, 34:4, 34:18, 34:25, 35:7, 61:18, 71:9, 71:25, 72:3, 83:24, 87:21, 90:25, 95:22Avenue - 2:12average - 34:2, 34:12, 37:18, 72:1, 72:5, 72:13avoid - 90:24avoidance - 87:1, 87:3avoidant - 90:25avoided - 87:12, 88:10award - 11:15, 57:23, 97:25, 98:1, 98:5aware - 12:10, 12:25, 14:8, 58:10, 68:20, 74:19, 74:23, 86:21, 88:25

BBabbitt - 70:1bad - 6:1, 6:14balance - 31:12, 34:10, 34:19, 35:2, 35:6, 37:18, 37:19balances - 13:20, 34:11bank - 31:9, 65:1bankrupt - 64:24banks - 27:14, 31:1, 31:5, 31:11, 46:17bar - 91:7barest - 39:3based - 5:24, 5:25, 6:15, 13:6, 15:18, 22:25, 27:25, 32:10, 34:3, 36:3, 37:8, 46:14, 62:25, 66:9, 67:3, 67:12, 71:21, 71:22, 71:23, 75:5, 83:19, 87:21, 92:5, 96:4, 96:5Based - 67:20basic - 42:17, 44:23, 47:16, 55:20, 67:7, 94:24basis - 20:3, 21:16, 33:21, 57:11, 59:7, 61:9, 75:21bear - 24:10, 87:4bearing - 22:17, 60:9, 60:14, 90:17became - 40:7become - 14:10, 82:22began - 59:6, 77:8begin - 25:11beginning - 12:12, 32:4, 55:7, 67:8, 71:9behalf - 27:15, 75:19belong - 24:22belongs - 55:2below - 45:8belt - 98:2Ben - 2:8bench - 15:7Bench - 15:9, 15:24beneath - 28:20beneficiaries - 13:25, 14:3, 14:4,

19:25, 20:17, 22:8, 23:24, 24:8, 27:15, 27:16, 28:12, 29:4, 30:10, 33:21, 37:4, 37:6, 58:12, 74:3, 74:8, 75:20, 79:5, 85:4, 85:8, 94:19beneficiary - 21:13, 27:18, 33:24, 36:8, 64:22, 73:23, 74:6, 76:8, 81:16beneficiary's - 27:11, 31:19, 82:23, 84:12benefit - 11:6, 11:7, 17:25, 19:23, 27:1, 27:4, 27:6, 27:12, 27:14, 27:16, 27:19, 27:22, 31:1, 31:2, 36:17, 36:23, 45:15, 48:18, 48:19, 67:3, 73:22, 82:6, 85:4, 85:6, 87:2, 87:19, 96:2, 96:4benefits - 18:6, 43:20, 47:1benefitted - 18:3, 37:7, 65:18, 66:6, 87:10best - 13:9, 24:15, 96:16better - 71:17between - 34:11, 35:5, 36:12, 37:17, 44:20, 50:8, 51:19, 53:1, 53:3, 63:17, 63:20, 63:23, 64:8, 64:18, 65:10, 88:5, 95:11, 96:17, 96:22beyond - 26:24, 35:15, 91:18, 94:11Bia - 12:21, 17:2, 17:11, 17:12, 29:14, 31:23bid - 30:11, 30:22bidders - 20:19, 30:15, 30:20big - 38:12bill - 65:25billion - 6:12, 20:5, 24:9, 25:5, 26:5, 26:15, 37:3billions - 5:18, 20:4, 20:10, 26:17, 35:22, 37:6bit - 59:19, 96:9blowup - 30:16Blue - 91:19, 92:1, 92:3blue - 28:18, 28:19, 28:24, 29:16, 32:7, 32:17, 33:4body - 48:5, 97:18bond - 72:4, 83:25, 92:16bonded - 31:5, 31:11book - 41:1, 69:1books - 40:5, 41:2born - 18:20borrow - 75:9, 87:5, 87:6borrower - 79:12borrowing - 90:24Boston - 68:22bottom - 30:16, 32:10, 32:25Bowen - 9:16, 9:17, 56:19, 57:2, 57:4, 57:21, 58:7, 59:9,

59:11, 62:2, 62:7, 63:22, 65:21, 65:23, 66:3, 66:11, 77:9, 77:15, 77:16, 77:20, 78:1, 78:17, 91:20, 92:2, 93:25box - 28:15, 28:16, 28:18, 28:19, 28:24, 29:16, 29:22, 29:23, 30:24, 32:7, 32:8, 32:17, 33:5, 33:6Box - 2:8boxes - 29:5Brad - 18:4Branch - 2:7branch - 16:13breach - 36:13, 61:21, 73:15, 74:25breached - 5:4, 7:23, 9:19breaches - 79:25, 80:1brief - 11:13, 19:12briefings - 24:13briefly - 29:10, 39:9briefs - 71:1, 71:2, 71:5, 72:15bring - 54:22, 76:17, 93:24broad - 16:14, 22:13broader - 17:10broke - 92:5, 92:8brown - 29:5, 29:23, 30:24, 32:8Budget - 17:20burden - 7:14, 7:15, 7:17, 19:22, 24:6, 24:10, 26:13, 26:18, 73:12burdens - 37:1Bureau - 16:14, 17:9buttress - 25:2

Ccabinet - 58:7Cafritz - 6:21, 7:11calculate - 11:14calculated - 34:4, 34:21, 35:4calculating - 33:18calculation - 11:6calculations - 11:21, 18:4, 18:13, 24:14, 36:5cannot - 6:16, 6:25, 7:17, 8:24, 13:23, 20:8, 26:18, 37:2, 37:22, 37:23, 54:22, 71:10, 81:3, 95:9capacity - 14:22, 58:8career - 41:24carefully - 11:11, 13:3Carolina - 1:24carry - 37:1case - 4:7, 4:14, 4:15, 4:25, 5:2, 5:11, 5:22, 5:23, 6:7, 6:24, 7:10, 8:1, 9:7, 9:9, 14:22, 16:17, 18:9, 24:12, 27:25, 28:21, 33:17, 36:9, 38:3, 41:1, 44:21, 44:22, 45:1, 45:16, 46:11, 49:12, 49:19, 49:25, 50:5, 50:6, 50:18, 52:9, 52:12, 52:14, 53:5, 53:23, 54:3,


2

54:7, 54:12, 56:21, 62:15, 64:2, 69:1, 69:17, 69:25, 70:2, 70:6, 70:25, 71:10, 75:4, 77:25, 78:3, 83:7, 86:25, 88:24, 89:1, 89:2, 91:19, 91:20, 92:1, 92:2, 92:3, 92:7, 92:21, 95:1, 95:2, 95:5, 95:19case-in-chief - 16:17, 18:9Cases - 40:6, 72:21cases - 12:3, 13:13, 16:1, 46:6, 46:10, 49:5, 49:6, 49:7, 49:9, 49:13, 49:16, 53:13, 53:18, 64:9, 66:9, 70:10, 72:20, 77:3, 81:7, 85:17, 88:21, 88:25, 89:8, 99:2cash - 8:18, 29:14, 31:23, 36:19, 36:21, 36:23, 73:24, 74:20, 76:8, 76:9, 76:11cashed - 71:24Cason - 30:10categories - 40:25, 42:17, 63:7, 63:10, 63:13categorization - 80:24category - 77:9, 93:25causal - 36:12caused - 49:23causes - 88:3cede - 4:15central - 33:16, 33:17century - 8:3certain - 12:21, 17:10, 62:12, 68:5, 69:11, 78:4, 82:3, 91:20, 92:11certainly - 19:7, 23:5, 29:4, 67:23, 68:17, 95:17Certainly - 22:12Certificate - 100:1certified - 16:25certify - 100:3chairman - 17:21chairs - 39:25challenge - 39:1challenges - 94:24chapter - 59:20characteristics - 22:16characterizing - 51:24charge - 17:1, 33:9charged - 9:10, 22:4, 22:10charges - 89:4chart - 19:11, 28:7, 28:14, 29:2, 29:5, 30:23, 32:6, 32:16Check - 71:23checking - 66:1checks - 7:12, 11:18, 12:13, 12:14, 13:20, 14:2, 31:9, 71:24Chicago - 39:12, 40:2chief - 16:13, 16:17, 18:9choice - 85:10,

85:22, 88:16choose - 81:9, 85:11, 85:12, 86:14chooses - 85:13chose - 80:9Christopher - 2:2circuit - 5:13, 6:7, 7:9, 13:13, 15:1Circuit - 39:13circular - 28:24circumstances - 6:24cite - 50:18, 50:19cited - 41:25citizen - 54:12, 54:13, 56:17citizen's - 56:6citizens - 55:1civil - 76:17, 88:4, 89:2, 89:3, 91:5Civil - 1:2, 2:7, 4:2, 76:20claim - 17:7, 17:18, 18:11, 24:10, 45:1, 45:2, 45:3, 45:17, 45:18, 45:19, 45:22, 45:23, 52:21, 52:22, 63:18, 66:14, 66:19, 66:20, 73:7, 73:8, 73:9, 75:24, 76:17, 79:1, 79:2, 79:6, 79:8, 79:22, 79:24, 82:4, 85:21, 85:22, 88:18, 89:9, 89:13, 89:14, 90:7, 90:13, 90:14, 92:5, 92:14, 96:2, 96:19claimant - 73:23, 76:8, 76:17, 78:20, 78:23, 79:16, 81:16, 81:23, 82:14, 89:6claimant's - 81:19, 82:2, 84:12claimed - 5:23, 6:10, 7:1, 24:8claiming - 75:22, 75:23, 75:25claims - 36:4, 44:21, 57:10, 71:11, 79:6, 89:23, 95:22, 96:1, 97:5, 97:6, 98:15clarification - 11:14, 42:20class - 8:6, 18:20, 18:21, 22:18, 67:4, 67:14, 67:17classified - 27:17clean - 53:23clear - 33:19, 37:1, 56:16clearly - 20:11, 24:22, 58:3, 80:14clerked - 39:12clever - 86:6, 92:21, 92:23clients - 11:8, 18:16, 18:19clients' - 5:19close - 20:4closing - 15:12Cobell - 1:2, 4:3, 8:15, 15:3, 58:11, 69:17, 69:25, 71:6, 94:5, 94:7codification - 60:19, 60:22, 91:17collateral - 86:5collect - 26:14, 64:24

collected - 5:25, 9:2, 21:10, 22:25, 23:17, 27:2, 29:2, 45:6, 45:7, 45:11, 45:12, 45:20, 72:11, 95:12, 96:6collection - 29:22, 74:21, 76:9, 76:11collections - 11:22, 11:23, 20:7, 21:22, 28:13, 34:14, 72:3Collegiate - 39:10Columbia - 1:1column - 63:8combining - 41:5comfortable - 61:6, 78:1, 80:25comfortably - 34:21coming - 26:14, 31:16Commercial - 2:7commercial - 27:14, 31:1commingle - 73:17, 73:21commingled - 73:10, 73:11, 75:7, 75:11, 75:14, 75:15, 75:16commingles - 74:8commingling - 73:3, 73:10, 73:14, 73:19, 73:25, 74:2, 74:6, 74:9, 74:13, 74:17, 74:18, 75:2, 75:3Commission - 17:21Commissioner - 18:1, 30:12commissioner's - 31:3common - 48:24, 66:23, 68:4, 83:23, 89:12, 90:8, 93:16commonly - 48:7, 48:13, 48:17, 67:20, 67:21, 67:23, 68:11, 68:16company - 52:21Company - 6:22compensate - 43:17compensating - 42:24complaint - 88:23complete - 13:20comply - 84:2, 97:19, 97:23compound - 61:9, 61:11, 61:18, 61:19, 61:20, 61:23comprehensive - 34:18computer - 2:15computer-aided - 2:15computers - 50:19conceded - 55:9concentration - 36:19conceptually - 45:23concern - 28:21, 52:6, 55:17concerning - 22:16, 71:15concerns - 12:22, 14:8, 17:4, 17:6conclude - 57:12concluded - 5:9conclusion - 20:11

conclusions - 12:6Conference - 15:9, 15:24conferred - 11:6, 18:1, 18:6, 67:3confidence - 34:20, 35:12, 37:20confirm - 70:7conform - 12:23conformity - 7:11, 8:1Congress - 11:3, 62:18, 85:23, 86:19connection - 9:12, 36:12connections - 11:22connectivity - 16:22, 17:13conscious - 44:8, 89:21consequence - 92:15, 98:1consequences - 17:6, 77:10, 77:14, 77:15consequential - 47:8consider - 14:17consideration - 38:1considered - 22:22, 47:1considering - 22:23consistent - 19:15, 24:13, 25:8, 25:13, 34:16, 35:3, 61:11, 62:1, 77:18consists - 10:22, 10:24, 31:22consolidated - 21:17constitute - 9:22constitutes - 11:8, 42:21Constitution - 2:12constitutional - 56:8constructed - 34:18constructive - 47:20, 91:21contact - 69:24contain - 34:5, 71:19, 71:20contained - 11:16, 22:21, 25:15, 34:9contemporaneous - 12:15, 20:5contemporaneousl

y - 51:7contention - 25:16context - 47:1, 53:8, 66:11, 86:8contexts - 49:6continue - 23:12, 23:13, 24:20continues - 34:5, 96:21continuing - 29:6contract - 44:3, 92:10contractor - 92:5, 92:8, 92:16contractors - 23:8, 36:1contracts - 45:12contrary - 21:8, 24:6, 36:22contrast - 24:19controversial -

46:21, 46:25, 47:5controversy - 47:7, 47:9convert - 93:22convey - 44:18copies - 50:16, 50:23, 51:4copy - 39:6, 50:22, 51:2core - 47:22Cornell - 18:5, 18:11corner - 29:18, 32:11Corporation - 6:22correct - 8:13, 8:19, 14:5, 17:23, 18:2, 66:5, 76:19, 79:19, 82:17, 83:4, 83:5, 84:5, 84:7, 90:23, 100:4Correct - 43:4, 45:25, 58:6correctly - 20:23, 22:5, 31:18cost - 6:11, 46:25, 87:1, 87:3, 87:12costs - 90:25council - 39:18, 39:20counsel - 4:16, 55:6count - 33:18country - 67:22couple - 86:12, 93:4course - 18:21, 19:6, 24:11, 35:10, 41:4, 41:18, 50:6, 52:25, 54:13, 61:19, 63:2, 68:19, 68:21, 68:23, 69:1, 69:2, 92:14, 99:1courses - 41:5court - 6:21, 7:4, 11:5, 11:12, 11:13, 12:25, 13:18, 14:12, 15:4, 15:5, 16:3, 16:9, 16:11, 18:2, 18:9, 18:13, 18:14, 18:20, 18:25, 26:6, 37:8, 62:6, 66:14, 97:24, 98:4, 98:5, 98:12, 98:14, 98:15, 98:21Court - 1:1, 2:11, 4:7, 4:17, 4:20, 5:2, 5:3, 5:5, 5:7, 5:14, 5:22, 6:8, 6:11, 6:14, 6:24, 7:10, 7:15, 8:11, 8:14, 8:17, 8:20, 9:11, 9:21, 15:3, 15:6, 15:10, 15:14, 15:20, 19:5, 19:9, 19:14, 19:21, 21:1, 23:10, 25:7, 27:8, 29:13, 31:16, 38:4, 38:12, 38:15, 38:23, 39:3, 39:8, 39:13, 40:15, 42:1, 42:9, 42:11, 46:23, 47:3, 49:6, 49:8, 49:14, 50:7, 50:17, 50:18, 50:23, 51:1, 51:5, 51:8, 51:10, 51:18, 51:23, 52:2, 52:3, 52:7, 52:22, 53:3, 53:18, 55:5, 55:14, 55:16, 56:7, 57:7, 57:12, 63:22, 64:10, 67:25, 69:5, 70:10, 80:3, 81:2, 81:4, 92:13, 94:6, 94:14, 94:18, 94:23, 96:8, 96:12,


3

97:8, 97:12, 97:23, 97:24, 98:16, 98:24, 99:5, 100:1, 100:10Court's - 5:6, 6:19, 12:4, 14:19, 19:16, 23:1, 23:7, 37:16, 57:17, 80:23Courthouse - 2:12Courtroom - 4:2, 38:8courts - 21:25, 48:15, 48:18, 64:11, 80:11cover - 21:22, 85:22covered - 22:15covers - 85:21, 86:1Cp&r - 11:17, 71:22create - 60:6created - 10:18, 12:15, 41:4, 50:21, 62:18, 78:13creates - 62:5, 85:18credentials - 39:4credit - 31:5, 31:12, 32:12creditor - 65:3creditors - 64:23, 65:4, 65:7, 65:16, 76:23, 77:1, 77:3criminal - 89:4criticized - 50:2cross - 69:5Cross - 3:2, 69:7Cross-examination - 69:7Cummings - 39:14current - 34:10, 37:17, 60:19, 91:17custodian - 54:10cut - 15:10Cv - 39:3, 39:5

Ddamage - 45:1, 45:3, 45:17, 45:23, 66:25, 76:17, 79:1, 79:6, 80:4, 82:4, 84:11, 85:11, 86:15, 91:9, 97:5damages - 9:22, 14:10, 40:23, 41:3, 41:5, 42:19, 42:21, 42:23, 43:13, 43:22, 44:2, 44:20, 44:23, 49:23, 50:8, 51:19, 51:21, 51:24, 52:2, 52:5, 53:4, 53:7, 57:2, 57:5, 57:6, 57:7, 57:9, 57:18, 57:23, 58:1, 58:2, 58:4, 59:15, 62:8, 63:17, 64:3, 64:7, 66:19, 67:4, 68:3, 68:17, 79:22, 80:22, 80:24, 80:25, 81:8, 81:10, 81:15, 82:16, 83:12, 83:24, 84:14, 84:15, 85:15, 85:20, 85:22, 87:25, 88:8, 88:21, 90:14, 92:19, 93:10, 93:19, 94:2, 94:3, 97:9Damages - 40:24, 42:4, 43:16, 67:12damages/

restitution - 52:19Dan - 41:22Darrow - 5:21data - 11:19, 13:22,

16:16, 16:20, 17:15, 17:16, 21:20, 23:18, 24:15, 24:16, 24:25, 25:3, 25:14, 25:18, 34:3, 34:18, 34:24, 34:25, 35:7, 71:21, 71:22, 71:25, 72:2database - 11:17, 11:19Date - 100:10date - 4:24, 34:2, 59:6, 69:18David - 1:23days - 26:14, 31:16, 32:24, 69:11, 69:12, 73:16Dc - 1:4, 1:13, 1:21, 2:4, 2:9, 2:13deal - 49:19, 74:20dealing - 9:2, 9:3, 9:6, 62:23, 66:11, 94:12deals - 9:17debt - 46:9, 46:15, 47:6, 47:9decades - 12:16, 12:24decentralized - 21:13decided - 49:8decides - 89:5decision - 5:6, 6:17, 9:14, 50:11decisions - 7:25, 8:2, 49:11Declaratory - 98:8declaratory - 97:10, 97:13, 97:14, 97:21, 98:1, 98:4, 98:10, 98:11, 98:12, 98:19declare - 97:17declared - 5:9, 80:4declares - 97:23decree - 77:2dedicated - 23:9, 27:11deductions - 12:6deemed - 23:11defective - 36:17defendant - 4:5, 6:9, 7:16, 7:18, 43:14, 43:20, 44:9, 46:5, 46:7, 53:5, 53:14, 53:19, 54:8, 54:9, 58:5, 58:9, 61:17, 61:21, 61:23, 63:25, 64:5, 64:23, 65:7, 65:9, 65:23, 66:6, 67:10, 67:11, 67:18, 73:13, 76:6, 85:9, 88:13, 88:16, 89:20, 90:3, 90:8, 90:15, 97:19defendant's - 43:16, 43:18, 44:25, 64:23, 67:8, 67:9, 67:19, 68:9, 97:18defendants - 7:14, 19:20, 22:9, 25:7, 37:12, 37:15Defendants - 1:7, 2:1defendants' - 20:1defense - 4:9, 55:14define - 63:12definition - 44:23degree - 8:4delay - 15:3, 94:18, 94:21delayed - 14:24

demonstrate - 20:6, 20:13, 20:22, 21:5, 21:8, 22:24, 23:19, 23:22, 25:9, 26:10, 28:3, 35:12, 35:20, 36:12, 37:17demonstrated - 28:24, 29:6, 33:22, 36:5demonstrates - 28:14, 29:15, 29:24, 30:14, 31:10, 35:4, 36:15demonstrating - 26:14Dennis - 1:11, 1:12, 4:4denominated - 89:1Department - 2:3, 2:6, 19:17, 22:22, 23:8, 23:9, 23:12, 36:19department - 58:8depicted - 28:17, 29:16, 29:22, 32:17depicts - 28:14, 28:15, 28:20Deposit - 32:1deposit - 10:5, 30:11, 30:22deposited - 72:6deposits - 10:3deprive - 43:14Deputy - 4:2, 38:8deputy - 33:11derived - 19:23, 71:25describe - 40:23, 54:7, 77:11described - 18:1, 43:13, 74:2describes - 52:4descriptive - 77:9, 77:21designated - 33:10designed - 43:17, 43:18, 44:19despite - 26:5destroyed - 12:13, 12:14desultory - 95:10detail - 18:12, 19:12, 20:2, 23:25, 34:24, 62:12, 95:21detailed - 35:16deteriorate - 45:10determination - 11:6, 13:23determine - 6:14, 8:4, 95:20, 96:22developed - 22:13, 35:2, 47:17, 47:22deviate - 25:14devised - 21:15died - 18:21difference - 34:11, 35:5, 35:13, 37:17, 50:7, 51:19, 53:1, 63:13, 63:17, 63:23, 64:8, 64:18, 65:10, 67:7, 96:22differences - 44:20different - 28:23, 41:7, 41:8, 41:9, 41:10, 41:11, 41:12, 41:13, 41:16, 42:17, 43:12, 44:2, 44:5, 44:15, 45:1, 45:18, 45:22, 52:15, 57:16, 59:11, 64:1, 64:12,

64:20, 74:5, 76:24, 81:12, 82:22, 85:10, 86:10, 86:11, 86:13, 88:20, 93:12difficult - 10:17dire - 38:10, 38:12direct - 45:11, 53:13, 78:14Direct - 3:2, 40:21direction - 54:23directly - 8:1, 16:19, 66:2, 70:24, 96:25director - 17:20, 40:10Dirk - 1:5, 4:3disaggregation - 67:19disappointed - 20:19, 30:15disaster - 16:13disburse - 24:7, 26:16disbursed - 9:3, 11:21, 22:6, 23:20, 23:24, 25:5, 25:6, 25:10, 25:17, 29:17, 29:20, 29:21, 29:25, 30:1, 30:18, 31:25, 32:3, 32:22, 32:24, 37:4, 72:11, 87:18, 95:12, 96:7disbursement - 12:13, 12:14, 12:19, 12:23, 22:11, 25:20, 25:21, 25:23, 26:9, 27:3, 36:7, 72:1, 72:2, 87:21disbursements - 20:8, 21:23, 23:2, 23:3, 25:25, 29:2, 29:3, 30:14, 30:21, 71:21, 96:18, 96:23, 97:2disbursing - 19:24, 32:24, 33:10, 33:11discharge - 5:16, 19:3discredit - 35:21discrepancy - 33:20discuss - 31:16discussed - 37:25discusses - 43:3discussing - 44:6, 89:18discussion - 56:25, 95:10, 97:9disgorged - 9:13disgorgement - 48:15, 48:16, 48:20, 83:12, 84:21, 89:15, 90:24, 91:10disgorging - 66:7disguise - 92:24disproportionately - 25:19disprove - 27:25dispute - 97:22, 98:25dissipates - 78:9distinct - 58:3distinction - 52:15, 52:19, 53:3, 63:18, 63:20, 63:21, 64:1, 64:9, 76:20, 77:9, 77:15, 85:25, 88:5distinctions - 44:15, 76:13, 85:23distinguished - 16:5, 40:16distributed - 20:23

distributions - 20:25district - 5:12District - 1:1, 1:9, 6:24divide - 64:13, 64:15Division - 2:7Dobbs - 41:19, 41:21, 41:22, 42:4, 42:9, 42:15doctrinal - 77:10, 77:14, 77:15doctrine - 55:20, 85:18document - 29:12, 29:14, 29:19, 29:20, 29:24, 30:11, 31:23, 32:9, 33:7, 33:11, 72:22documents - 12:2, 20:5, 20:6, 21:1, 21:3, 23:13, 23:17, 24:15, 24:25, 28:1, 28:2, 28:4, 31:14, 31:15, 31:22, 35:20, 35:24, 36:3, 36:4, 37:8, 50:20dollar - 27:2, 33:23, 65:25dollars - 5:18, 6:12, 20:4, 20:10, 28:11, 31:25, 33:24, 33:25, 34:3, 34:10, 35:22, 37:6, 65:22, 87:6, 87:7, 87:11, 87:16donated - 60:6done - 12:11, 18:14, 35:25Dorris - 1:15doubt - 15:1, 44:1Douglas - 3:3, 40:19down - 60:4, 75:24, 94:25down-the-middle-

of-the-plate - 75:24Dr - 24:3, 24:4, 34:17, 34:24draft - 69:2drafts - 70:22drawn - 7:6draws - 52:15, 76:20drew - 31:9driving - 77:21dropped - 89:4dubious - 24:14due - 7:16, 18:16, 92:10duly - 40:19during - 18:21, 19:13, 24:11, 35:17, 36:5, 54:10During - 19:6, 26:10duties - 5:16, 19:3, 78:13, 78:14duty - 5:3, 5:5, 6:2, 7:5, 7:19, 7:21, 7:22, 47:18, 78:18, 78:19, 96:10, 96:16, 97:18Dx-365 - 21:2, 22:12, 22:13, 22:17, 33:19Dx-371 - 35:9

Eearly - 30:15, 69:21earn - 61:2, 61:3, 61:7


4

earned - 9:4, 45:21, 45:24, 46:6, 46:18, 47:19, 55:1, 55:10, 56:11, 60:25, 64:5, 78:24, 79:3, 79:4, 79:10, 79:11, 79:17, 79:22, 80:16, 80:19, 81:10, 81:11, 82:8, 83:17, 84:13, 84:18, 84:20, 89:15, 89:16, 90:10, 90:11, 90:14, 90:17, 93:16easier - 30:17, 67:2economic - 11:16, 18:4, 66:16, 81:6economist - 66:17, 71:18economist's - 46:13, 71:12economy - 61:19Ed - 24:4edition - 41:23, 41:24, 42:5effect - 62:24, 63:1, 73:22, 89:24, 93:10effective - 91:16efforts - 21:11, 35:17, 36:2either - 63:24, 64:2, 64:3, 64:5, 66:10, 76:14, 78:8, 85:18elapsed - 61:22elect - 81:4, 81:5, 81:13, 85:14electronic - 26:9, 51:8Elliott - 1:15, 4:4Elouise - 1:2, 4:3embedded - 9:18, 10:24embezzlement - 14:7, 14:9employee - 17:8employees - 14:8employing - 37:20employs - 36:20enable - 54:25, 61:23enabled - 75:9end - 4:22, 31:10, 36:25, 56:7End - 15:24ending - 37:18, 37:19ends - 65:14enemy - 54:11enforce - 59:15, 61:7, 62:6, 94:1, 98:9, 98:11enforced - 45:11enforcement - 50:3, 57:22, 78:18, 80:8, 93:15enforcing - 59:1, 59:13, 78:16enrich - 54:25, 55:18enrichment - 9:5, 9:10, 9:11, 16:7, 38:19, 40:14, 43:11, 43:14, 46:7, 46:9, 46:20, 48:4, 48:9, 53:20, 55:15, 55:20, 56:6, 61:12, 72:17, 73:4, 73:12, 75:18, 82:7, 83:19, 84:16, 85:8, 92:6ensure - 55:17entered - 15:4, 22:11

entering - 29:7entire - 21:19, 22:5, 22:25, 33:2, 34:15, 59:20, 94:20entirely - 67:17entitled - 9:23, 13:10, 13:11, 28:5, 52:17, 73:17, 77:17, 78:23, 79:16, 79:20, 82:24, 83:2, 85:14, 94:20, 100:5entitlement - 57:22, 62:5, 62:7, 63:24, 64:4, 83:21, 93:18, 93:20entries - 12:15entry - 32:12, 32:15equal - 64:22, 85:15equally - 47:1, 57:5equals - 36:7equitable - 47:17, 48:11, 48:12, 49:15, 50:1, 50:4, 52:18, 52:24, 53:1, 64:8, 65:14, 80:1, 80:5, 80:9, 88:3, 88:5, 91:20, 91:24, 92:11, 92:17equitably - 55:2Equity - 42:4equity - 6:17, 40:3, 41:3, 41:5, 48:25, 49:1, 61:16, 64:12, 80:9, 88:1, 89:12, 90:8equivalent - 11:8, 46:19, 48:19, 48:20, 66:2erase - 65:22Erisa - 49:7, 49:9, 49:10, 49:11, 49:13, 49:22, 50:2, 52:9, 52:15, 52:17, 53:8, 64:9, 88:6, 92:3erroneously - 25:20especially - 28:8, 49:15, 68:4Esquire - 1:11, 1:15, 1:19, 1:23, 2:1, 2:2, 2:5essentially - 49:22, 92:14establish - 20:3, 25:4, 33:14, 36:22, 37:5, 37:21established - 6:19, 95:5establishes - 30:1establishing - 7:15establishment - 30:7estimate - 34:19, 35:1, 35:2, 37:19, 70:12, 71:20, 71:21estimated - 34:2, 34:12estimates - 34:9estimating - 72:14et - 1:3, 1:6, 4:3event - 11:10, 56:16eventually - 11:20, 87:18Evidence - 3:8evidence - 7:13, 8:8, 13:9, 14:6, 15:15, 15:21, 16:2, 17:17, 20:21, 20:22, 21:5, 23:21, 24:6, 24:18, 24:19, 25:24, 26:18, 26:21, 26:22, 26:25,

27:4, 27:24, 29:11, 35:12, 36:14, 36:18, 36:21, 37:16, 37:21, 38:2, 50:18, 66:16, 66:18, 67:6, 87:21, 87:22, 96:6, 96:16Evidentiary - 1:8evidentiary - 26:18, 96:5, 96:21, 97:1exact - 69:18exactly - 52:8, 78:17, 82:17, 82:20, 83:12, 85:5examination - 69:7Examination - 40:21, 93:6examine - 73:2, 73:6example - 20:18, 25:22, 26:8, 27:13, 27:21, 29:9, 29:10, 30:9, 30:14, 31:17, 31:20, 31:22, 36:18, 52:7, 53:23, 83:14examples - 33:13, 45:13, 86:12Except - 77:8except - 62:21, 85:20, 90:4, 96:5, 97:1exceptions - 80:10excerpt - 30:13excess - 6:12excited - 92:13excludes - 57:19, 57:20excuse - 15:6, 72:21excused - 99:5executed - 33:11exercise - 35:21exhausting - 4:23Exhibit - 42:3, 44:12, 54:1, 59:18, 63:6, 94:4exhibit - 44:15, 44:16, 44:18, 63:10exhibits - 20:1, 20:13Exhibits - 3:8exist - 21:20, 37:9, 45:4, 53:18, 74:23, 74:24existed - 59:8existence - 7:16expect - 18:14, 95:1expense - 46:5, 47:7, 54:25experience - 16:18expert - 10:20, 18:4, 49:10, 58:24, 98:25expertise - 38:16, 60:4explain - 7:7, 18:12, 28:9, 34:24, 36:18, 48:3, 49:14, 52:8, 54:19, 63:10, 68:2, 68:3explained - 19:12, 19:19, 21:10, 23:25, 35:6, 37:22, 46:13, 50:7, 51:20, 52:25, 53:2, 66:17, 73:16explaining - 22:10, 51:18, 52:7explains - 63:18explanation - 15:18explicitly - 7:11, 10:1, 10:25, 11:9express - 47:23

expressed - 55:16expressly - 98:8extent - 13:8, 14:9, 20:21, 24:12, 25:8, 33:25, 45:17, 53:21, 81:5external - 12:20

Fface - 59:2, 63:3fact - 5:9, 6:3, 6:10, 6:23, 6:25, 7:2, 7:23, 9:18, 9:22, 11:5, 12:7, 12:16, 12:20, 13:18, 14:5, 14:13, 18:3, 26:5, 34:6, 46:25, 59:4, 79:8, 79:10, 79:11, 79:12, 86:25, 92:24facts - 7:18, 65:17, 71:10, 73:7, 85:7, 88:12, 88:17, 88:20, 88:21factual - 20:3factually - 36:17failed - 5:8, 6:3, 6:23, 24:7, 26:16, 95:6, 95:8failing - 5:16fails - 7:6, 78:8, 78:22failure - 36:10, 92:15, 95:3, 95:14, 95:17, 96:4, 96:20, 96:25, 97:1fair - 8:9, 18:5, 18:15fairly - 18:10, 85:25faith - 36:6falls - 34:21familiar - 9:17, 17:15, 28:2, 43:8, 47:15, 49:7, 49:9, 49:17, 52:9, 53:23, 56:19, 57:3, 62:9, 62:11, 62:12, 62:13, 63:22, 64:9, 67:7, 68:13, 72:24, 76:2, 85:25, 90:3, 91:19familiarity - 71:13far - 28:15, 29:5, 32:8, 37:24, 58:1, 95:5, 96:17fashion - 22:19fashioned - 48:1fault - 6:5favor - 77:23, 84:25federal - 49:2, 49:5, 66:10, 88:1, 88:2Federal - 17:21, 49:4fee - 32:14fees - 20:20fellow - 39:14few - 52:8, 71:7, 73:16, 83:15fiduciaries - 6:2, 44:7, 44:8, 68:5, 89:22fiduciary - 5:3, 5:5, 5:22, 6:3, 6:23, 6:25, 7:2, 7:5, 51:20, 52:3, 90:11, 90:13field - 40:7, 41:25, 48:6, 77:4fields - 68:5figure - 25:6, 34:13, 34:21, 67:10, 68:11figures - 32:23filing - 88:23

filings - 25:8, 25:13fill - 23:16final - 4:25, 26:8, 31:17, 98:19Finally - 29:1, 31:10, 32:25, 36:14finally - 33:7Financial - 13:13fine - 15:23First - 13:13, 21:12first - 4:8, 4:9, 4:10, 31:23, 32:15, 38:4, 41:23, 59:5, 68:14, 69:17, 71:2fiscal - 30:18, 30:22, 31:10five - 10:12, 10:17, 60:9, 60:16, 60:17, 61:2, 61:4, 61:8, 83:16, 83:18, 83:21, 84:8, 91:14flawed - 37:10flip - 96:9Floor - 1:13flow - 19:11, 21:6, 21:9, 28:7, 28:9, 30:23, 32:6, 32:16, 36:9, 36:21, 95:2flowchart - 29:17, 29:23flows - 28:16, 33:24Fmf - 32:15focus - 24:17, 55:22, 59:19, 59:20, 88:14, 88:15focused - 21:1, 22:2, 57:25, 58:1, 96:3, 96:19, 97:3follow - 52:14, 87:13, 97:19follow-up - 52:14followed - 91:19, 95:23following - 20:13, 31:7follows - 40:20foregoing - 100:3forest - 32:14, 33:8forestry - 31:24forfeit - 89:5forfeiture - 89:2, 89:3, 90:4, 91:6form - 9:4, 9:5, 31:24, 46:9, 46:12, 56:3, 64:6, 88:4former - 17:20, 17:21forms - 46:19, 89:22, 90:1, 97:12formulated - 52:20, 52:22forth - 11:2, 15:25, 16:3, 20:12, 44:3, 88:6forward - 13:16four - 31:25, 42:20, 44:15fourth - 59:5Fourth - 1:24Fox - 91:19, 92:1, 92:3Franklin - 2:8fraud - 14:4, 14:7, 14:9, 68:8Fritz - 24:3, 34:17front - 15:10, 29:11Fti - 35:16fulfill - 84:4full - 6:3, 8:25, 96:2, 96:4


5

fully - 14:12functional - 11:8functionally - 58:8fund - 23:24, 24:21, 26:10, 60:6, 65:1, 73:10, 75:14, 76:22, 76:23, 77:7fundamental - 40:24fundamentally - 41:8, 41:9, 42:17funds - 5:20, 5:25, 9:2, 9:3, 9:12, 10:4, 10:6, 10:10, 10:16, 11:21, 17:23, 17:24, 18:3, 18:6, 19:11, 19:24, 22:1, 22:11, 23:23, 24:8, 24:21, 26:13, 26:16, 26:20, 27:1, 27:17, 27:18, 28:7, 28:10, 30:23, 32:6, 32:7, 32:16, 32:18, 32:21, 32:22, 32:23, 33:1, 36:16, 36:20, 36:21, 45:19, 45:21, 45:22, 56:13, 59:3, 60:12, 65:23, 71:15, 72:8, 73:3, 73:14, 73:15, 73:18, 74:2, 74:8, 74:22, 75:6, 84:14, 87:8, 92:11fungible - 77:16future - 19:4

Ggain - 44:25, 48:18, 48:19, 53:10, 67:9, 67:18, 68:10, 76:23, 85:15, 88:13, 88:14, 88:15gained - 27:4, 63:25, 67:11, 76:6, 77:5, 81:25, 83:7, 83:20gains - 43:18Gao - 35:19gap - 95:11, 96:17gaps - 23:15gather - 56:24gears - 15:16general - 12:2, 12:5, 36:16, 62:11, 62:16, 72:24, 77:4, 83:23, 90:4, 92:4, 92:8, 92:16General - 17:23, 90:18generally - 9:7, 18:3, 19:8, 74:18, 78:2generations - 12:16, 70:18geographic - 21:15Georgia - 1:17gift - 99:2Gillett - 50:15, 50:20, 69:6, 69:8, 81:14, 93:1, 94:11, 94:13Gillett's - 93:8Gingold - 1:11, 1:12, 3:3, 4:4, 4:17, 4:18, 4:19, 4:21, 8:13, 8:19, 8:22, 15:6, 15:11, 15:13, 15:17, 15:23, 15:25, 19:5, 38:6, 38:9, 38:14, 38:17, 39:5, 39:9,

40:18, 40:22, 42:2, 42:6, 42:10, 42:13, 44:11, 44:14, 46:24, 47:11, 50:9, 50:12, 50:24, 51:3, 51:6, 51:9, 51:11, 51:12, 53:3, 53:16, 53:25, 54:2, 58:17, 58:20, 59:17, 59:22, 69:3, 84:8, 93:4, 93:7, 94:5, 94:7, 94:8, 94:12, 94:16, 94:22Given - 23:11, 37:12given - 4:8, 22:16global - 48:4government - 5:3, 5:4, 5:8, 5:14, 5:15, 6:9, 6:10, 6:12, 6:18, 8:16, 9:19, 10:11, 11:1, 11:7, 11:20, 12:1, 12:8, 12:11, 12:19, 13:4, 13:7, 13:15, 13:24, 14:8, 14:21, 16:16, 17:16, 17:25, 18:2, 20:19, 24:7, 26:16, 27:14, 27:17, 27:19, 27:22, 31:2, 32:14, 35:22, 36:17, 36:24, 45:7, 45:15, 45:16, 45:20, 46:15, 46:17, 53:6, 53:11, 53:14, 53:19, 54:8, 54:10, 54:20, 54:25, 55:9, 55:12, 55:17, 56:2, 56:5, 56:14, 56:18, 60:25, 61:1, 65:18, 66:10, 71:21, 72:4, 73:16, 75:9, 79:12, 82:6, 82:9, 82:12, 82:15, 83:2, 83:8, 83:9, 83:17, 83:19, 84:4, 84:13, 84:19, 86:22, 87:4, 87:8, 87:9, 87:10, 87:16, 87:20, 90:3, 90:16, 90:19, 90:23, 92:4, 92:7, 92:12, 94:25, 95:6, 95:8, 95:11, 96:17government's - 10:20, 11:17, 21:10, 36:4, 55:8, 56:18, 72:5, 75:6, 81:19, 92:15, 96:16governs - 10:23graduate - 39:12granted - 5:17great - 94:13Great - 52:10, 52:20greater - 84:5green - 28:15Gregg - 18:1ground - 50:2grounds - 55:15guess - 38:5, 88:25Guilder - 1:19guilt - 7:8

Hhalf - 28:19, 29:16, 31:25, 59:19hand - 28:15, 32:10handle - 38:9handling - 38:2hands - 45:15happy - 40:16, 97:22hard - 39:6, 50:16, 50:22, 50:23, 51:3

harmless - 94:19Harper - 1:19, 4:5Harvard - 69:15heading - 48:9headright - 26:1hear - 12:18, 13:18, 15:21, 20:21, 44:1, 95:1, 98:25heard - 4:17, 24:2, 25:22, 30:2, 35:23, 72:25hearing - 19:18, 19:20, 21:2, 22:9, 22:14Hearing - 1:8held - 5:3, 5:4, 5:7, 6:24, 7:4, 9:11, 9:21, 10:11, 17:23, 18:6, 22:1, 27:13, 27:18, 31:1, 34:10, 52:13, 53:19, 54:13, 56:14, 56:15, 56:16, 56:17, 59:3, 60:12, 60:15, 60:24, 61:8helpful - 16:9, 16:10, 17:17, 53:8, 53:14helps - 77:12Henkels - 53:24, 56:13, 66:10, 91:12Herman - 24:3, 28:9, 33:14, 35:16hesitate - 41:14Hewitt - 49:17, 49:21, 50:10hidden - 35:22high - 21:22, 34:20higher - 83:25, 98:14highlight - 39:7, 44:12highlighted - 42:14, 43:3, 44:19, 50:14, 51:13, 54:15, 55:19, 55:22, 55:23, 56:7highlighting - 50:21himself - 85:6hired - 69:17historian - 24:4historic - 21:18, 58:3historical - 21:25, 23:15, 28:22, 33:16, 35:17, 36:1, 36:11, 95:3, 95:6, 95:8, 95:20historically - 41:13, 80:5Historically - 80:8histories - 44:6history - 5:2, 20:8, 21:12, 34:15hold - 56:22holding - 49:25, 50:4, 50:7, 52:25, 57:12, 57:21, 61:17, 89:16Honor - 4:12, 4:19, 4:21, 4:24, 5:11, 6:6, 6:18, 7:21, 7:25, 8:13, 8:23, 9:8, 9:24, 10:20, 10:25, 11:4, 11:10, 12:3, 12:18, 13:6, 13:8, 14:1, 14:6, 14:16, 15:1, 16:22, 18:8, 18:13, 18:17, 19:1, 19:10, 19:15, 20:1, 20:12, 20:20, 21:9, 21:12, 21:24, 22:19, 23:5, 23:21,

24:5, 24:14, 24:23, 25:2, 25:4, 25:22, 26:8, 26:12, 26:24, 27:2, 27:13, 27:21, 27:25, 28:8, 28:14, 28:19, 28:23, 29:1, 29:9, 29:12, 29:25, 30:10, 30:12, 30:16, 30:20, 30:25, 31:17, 31:24, 32:2, 32:16, 32:21, 32:25, 33:7, 33:25, 34:6, 34:25, 35:8, 35:11, 35:25, 36:14, 36:25, 37:12, 37:23, 38:1, 38:6, 38:9, 38:14, 38:17, 38:20, 39:5, 39:7, 39:9, 39:21, 40:3, 40:11, 40:18, 42:3, 50:15, 50:24, 51:9, 58:18, 69:6, 93:1, 93:4, 94:5, 94:11, 94:22, 96:14, 99:4Honorable - 1:9honored - 98:21, 98:23honors - 39:12hope - 4:25, 19:1, 19:2hours - 70:3, 70:12house - 16:15housed - 13:22huge - 15:11hundreds - 67:14hurdle - 37:2hypothetical - 79:14, 84:9, 86:25hypothetically - 97:24

Iidea - 86:16, 86:18identifiable - 64:19, 64:25, 65:2, 65:5, 65:11, 65:16, 65:23, 76:22, 76:23identification - 42:3, 44:11, 50:10, 54:1, 58:18, 59:18, 60:18identified - 7:12, 8:15, 11:18, 42:14, 44:15, 59:20, 72:8, 75:10identify - 44:12, 65:21, 74:21, 94:4ignore - 25:14ignoring - 24:16, 91:3, 91:4Iim - 17:2, 19:17, 19:19, 19:25, 20:8, 20:15, 20:16, 21:4, 21:5, 21:6, 21:7, 21:13, 21:15, 21:19, 22:5, 22:7, 22:11, 22:17, 22:25, 23:3, 23:4, 23:19, 23:23, 24:7, 24:8, 24:21, 25:1, 25:5, 25:16, 26:2, 26:5, 26:6, 26:7, 26:13, 26:16, 26:17, 27:3, 27:6, 27:10, 27:15, 27:17, 27:18, 28:3, 28:10, 28:11, 28:12, 28:13, 28:23, 29:4, 29:7, 29:8, 29:15, 29:19, 30:4, 30:5, 30:7, 30:10, 30:19, 31:6, 31:13,

31:17, 31:19, 33:3, 33:5, 33:15, 33:21, 33:23, 33:25, 34:3, 34:7, 34:10, 34:12, 34:14, 34:19, 35:2, 35:5, 36:7, 37:6, 37:18, 37:22illustrate - 44:20, 45:17image - 30:16, 31:8immediately - 15:17, 86:9immunity - 56:5, 57:1, 57:10, 63:19, 73:9, 85:20, 86:1, 86:11, 88:10, 91:3, 91:4, 91:5, 91:8import - 92:1importance - 63:11important - 14:17, 18:19, 73:11, 86:5imposed - 78:5, 78:13imposes - 6:2impossible - 5:10, 7:24, 67:15, 67:16, 95:25, 97:3, 97:7improper - 73:25, 74:9, 74:12, 74:18improperly - 26:17improvements - 45:9imputed - 75:6, 94:21inability - 8:3, 17:5, 96:21inaccessible - 68:15inadequate - 13:19incentive - 19:3include - 24:3, 25:24, 26:4, 45:3, 45:6, 45:7, 61:19, 72:10, 90:9included - 22:20, 26:7, 34:7, 79:6includes - 37:24, 44:9, 45:19, 68:24, 90:2including - 10:9, 13:13, 21:6, 24:22, 29:3, 29:25, 49:5, 60:25, 61:9, 68:5, 68:6, 68:8, 88:6income - 15:2, 31:25, 45:6, 45:21, 46:5, 55:1, 55:10, 94:19, 96:17, 96:22incomplete - 13:8, 13:9incorporated - 12:4incorrect - 25:2, 25:17, 26:3incorrectly - 26:1indebtedness - 46:8indeed - 12:3, 47:16, 95:9Indian - 10:2, 10:4, 10:22, 12:22, 16:14, 17:9, 22:1, 23:24, 26:2, 30:12, 33:2, 37:24, 59:7, 74:16, 75:19, 86:22, 87:7, 91:16Indians - 10:1, 21:14, 22:6, 31:5, 31:8, 31:12, 59:3, 87:11, 87:15, 87:17, 87:19


6

Indians' - 87:5indicate - 21:3indicated - 19:21, 32:4indicates - 32:15indication - 23:17individual - 10:1, 21:14, 21:16, 22:6, 23:24, 26:7, 28:16, 28:17, 28:20, 28:21, 31:5, 31:8, 31:12, 33:6, 37:3, 59:3, 67:16, 91:16Individual - 10:2, 10:4, 10:22, 12:22, 22:1, 26:2, 33:2, 37:24, 59:7, 74:16, 86:22individualized - 67:15individuals - 20:16, 31:20inference - 7:6inferences - 7:2Infield - 16:12, 16:13, 16:18, 17:11inflated - 25:19information - 11:16, 11:17, 12:2, 13:15, 13:22, 17:4, 17:9, 17:10, 18:10, 22:21, 23:1, 23:10, 24:1, 25:12, 25:15, 70:24, 72:15informative - 18:25infringers - 47:21, 68:7injunction - 15:4, 62:6, 97:20injunctions - 68:17injunctive - 97:10injuries - 8:5injury - 11:7, 36:10, 95:3inquire - 73:19inquiries - 37:16inquiry - 37:11insofar - 97:1instance - 70:14instead - 19:24, 20:6, 48:18, 68:10Instead - 20:17Institute - 17:12, 39:17, 39:18, 40:11Institution - 60:7instrument - 10:22, 10:23, 62:15, 62:19, 62:21, 63:5, 85:3, 87:10instruments - 82:15, 84:19, 84:24insurance - 52:21insurer - 14:22, 14:23, 14:24intellectual - 47:21, 68:7intend - 44:18, 66:16intended - 22:7, 22:12, 23:1, 30:9, 96:25intentional - 44:3interest - 9:4, 9:7, 9:14, 9:25, 10:12, 10:16, 10:18, 11:1, 11:2, 11:4, 11:9, 11:10, 13:16, 14:24, 15:2, 29:25, 45:21, 45:24, 46:15, 46:18, 46:19, 47:6, 47:10,

54:14, 55:14, 56:3, 56:4, 56:11, 58:12, 59:3, 60:8, 60:9, 60:13, 60:14, 60:16, 60:25, 61:2, 61:3, 61:9, 61:11, 61:18, 61:20, 61:23, 62:25, 63:2, 64:4, 72:11, 73:17, 78:14, 79:9, 79:10, 79:11, 79:16, 79:21, 79:22, 79:23, 80:16, 80:19, 81:9, 81:10, 81:12, 81:13, 82:3, 82:14, 82:21, 83:3, 83:9, 83:16, 83:20, 83:24, 84:12, 84:18, 84:23, 87:11, 87:15, 87:18, 87:19, 89:15, 90:2, 90:9, 90:10, 90:11, 90:14, 90:17, 90:25, 91:8, 91:9, 91:14, 93:9, 93:16, 94:12, 94:20interest-avoidant - 90:25interest-bearing - 90:17interested - 97:13interesting - 98:7Interior - 1:6, 17:5, 17:8, 22:2, 22:3, 22:22, 23:8, 23:12, 36:1Interior's - 19:17, 20:15, 22:15, 35:17internal - 72:5Internet - 16:23interpret - 61:4interpreted - 62:1, 77:20, 78:16intimately - 17:15intrabureau - 29:14, 31:23introduce - 16:2introduced - 13:3introducing - 16:12, 51:1inured - 61:17invariably - 17:24invest - 54:23, 60:8, 78:21, 79:15, 82:12, 83:2, 83:16, 84:14, 85:4, 90:16Invested - 82:19invested - 10:11, 27:15, 46:17, 55:12, 60:13, 60:16, 60:17, 61:1, 78:24, 79:4, 82:6, 82:15, 83:8, 84:4, 85:5, 87:8, 87:14, 87:17investigate - 74:24investing - 59:6, 82:9, 84:19investment - 10:5, 55:3, 83:3, 84:23, 86:22investments - 10:3investor - 78:20, 78:21, 84:2invests - 73:24invoked - 10:14involve - 56:22involved - 39:19, 40:11, 40:13, 52:12, 56:13, 57:5, 59:1, 78:3involves - 5:15involving - 5:22, 6:7, 53:13

Irms - 16:19Irs - 74:14issue - 6:8, 11:2, 14:10, 16:22, 26:24, 30:2, 45:16, 63:21, 65:8, 80:7, 88:10, 89:9, 91:9issued - 98:12issues - 13:1, 17:3, 17:10, 49:12, 66:12, 66:13, 70:23, 75:12, 86:5, 91:3, 91:4items - 6:25, 8:15, 63:7itself - 54:25, 55:5, 55:7, 55:18, 57:4, 61:5, 97:15, 97:16, 97:21

JJackson - 5:21Jackson's - 6:1James - 1:9January - 23:8Jim - 17:19Joan - 17:8job - 67:25, 68:1John - 2:1, 2:5, 4:5, 4:6joint - 74:7journal - 32:10, 32:11, 32:12, 32:20Jr - 2:1judge - 39:13, 44:1, 58:24, 61:16, 85:18Judge - 1:9, 15:4, 39:14judge's - 71:6judge-made - 61:16, 85:18judges - 68:11, 68:12Judgment - 98:8judgment - 4:25, 5:17, 64:18, 64:21, 64:24, 65:10, 65:15, 76:21, 92:19, 98:10, 98:11, 98:13, 98:19, 98:20judicata - 98:20July - 31:4June - 1:4jurisdictional - 53:5jury - 88:6Justice - 2:3, 2:6, 5:21, 6:1, 6:13, 9:15justice - 6:14Justin - 1:19

KKamisar - 39:10keep - 61:21, 61:23, 73:18Keith - 1:19, 4:5Kempthorne - 1:5, 4:3, 69:25key - 70:9Kilpatrick - 1:16, 1:20, 1:23kind - 48:12, 52:23, 68:15, 74:18, 89:21, 90:7kinds - 41:7Kirschman - 2:1, 4:6, 4:12, 15:7, 19:5, 19:6, 19:10, 19:15, 27:9, 27:10, 29:14, 38:20, 39:1

Kirschman's - 94:23knowledge - 16:14, 67:20, 69:25known - 5:2, 70:1, 88:4knows - 11:12, 86:14Knudson - 52:10Kohn - 2:2

Llabel - 48:6, 48:23, 48:24, 88:9, 88:11labeling - 88:19labor - 29:21laid - 94:25land - 8:7, 8:8, 8:11, 65:2Langbein - 16:9, 62:10, 62:14, 80:6Langbein's - 62:25language - 60:23large - 19:7, 21:15, 28:5, 29:23, 33:15, 33:23, 36:22, 73:24, 76:8last - 10:9, 25:12, 38:10, 60:4, 63:7, 63:14, 64:16, 68:18, 73:16, 95:10late - 69:18law - 5:11, 5:12, 5:13, 10:23, 15:12, 15:20, 16:3, 16:5, 16:7, 16:8, 39:10, 39:11, 39:22, 39:24, 39:25, 40:25, 41:3, 41:23, 46:16, 47:13, 47:14, 47:15, 47:17, 47:22, 48:25, 49:2, 49:4, 49:5, 49:10, 49:14, 49:15, 57:3, 57:4, 57:8, 64:11, 67:21, 68:5, 68:6, 68:8, 68:13, 68:18, 68:23, 69:11, 69:14, 71:11, 74:11, 74:24, 74:25, 77:12, 80:11, 83:23, 84:25, 85:24, 86:1, 86:10, 86:13, 88:2, 89:12, 90:8, 93:16, 97:18, 98:25Law - 1:12, 39:17, 39:18, 40:8, 40:10, 42:4lawyer - 86:14lawyers - 68:16, 77:12, 77:18Laycock - 3:3, 16:4, 16:10, 38:7, 38:18, 39:10, 39:11, 40:15, 40:19, 40:23, 42:9, 42:10, 42:11, 42:22, 54:3, 55:24, 58:21, 59:23, 60:20, 69:5, 69:9, 93:2, 94:10Laycock's - 39:1lead - 89:1, 97:9Leading - 47:3leading - 41:23, 70:8lease - 31:21leased - 45:8leases - 45:11least - 4:14, 6:20, 13:16, 16:16, 22:3, 58:25, 60:16, 61:2, 61:4, 61:8, 78:15, 83:16

leave - 32:9leaving - 84:8lecturer - 39:21led - 25:18, 34:17, 36:13ledger - 81:20, 81:22left - 28:15, 29:18, 32:6, 86:5, 93:13, 96:1left-hand - 28:15legal - 20:3, 48:10, 49:25, 52:18, 52:23, 53:1, 53:10, 64:8, 80:4, 80:20, 80:23, 81:1, 88:3, 88:5legal/equitable - 52:19legitimacy - 66:13less - 10:12, 46:15, 60:9, 61:20, 61:22, 83:18level - 34:20, 35:12, 37:20Levitas - 1:15, 4:4liability - 22:17, 33:21liable - 51:20liberty - 39:16Library - 11:3lie - 34:20lien - 92:11, 92:17liens - 91:21Life - 52:10light - 33:19limit - 91:23limitations - 53:6, 86:11limited - 21:20, 29:4, 37:15, 80:10, 89:23, 89:25line - 32:15, 38:21, 49:9, 59:5list - 97:5listen - 13:2litigated - 77:20litigation - 6:21, 13:21, 13:22, 21:24Litigation - 2:7, 36:2live - 51:8Llp - 1:16, 1:20, 1:23located - 31:5log - 70:5look - 28:14, 31:8, 32:25, 35:25, 63:7, 81:15, 81:16, 81:18, 82:13, 84:11, 86:8looked - 11:11, 70:14, 71:7, 71:14, 73:20, 83:15Looking - 82:2looking - 5:16, 11:11, 78:14, 82:7, 83:6, 93:23loss - 42:25, 44:24, 67:13, 67:16, 79:5, 81:16, 85:8, 88:13, 93:17losses - 42:24, 43:17, 45:14, 52:1, 92:6, 92:12, 92:14, 92:25lost - 27:20, 45:10, 63:25, 76:25, 81:23, 82:2, 82:20, 84:12, 92:7, 93:23low - 25:19, 25:20lower - 31:8, 83:20, 83:22lunchtime - 99:6


7

Mmachine - 2:15majority - 86:19malice - 6:5malpractice - 49:22man - 38:13manage - 21:16Management - 17:20, 30:6management - 32:14manager - 33:9mandate - 62:24mandatory - 61:7manipulation - 25:18manner - 21:17, 38:3, 60:13, 73:11, 73:25, 78:22, 78:25mapped - 27:3mark - 42:2, 44:11, 50:9, 53:25, 58:17, 59:17, 60:18market - 8:9, 45:8, 83:24Massachusetts - 9:16, 56:19, 57:2master - 71:10, 95:18material - 18:11, 72:18Materials - 40:6materials - 70:3, 70:6math - 30:20matter - 9:18, 46:17, 77:10, 77:11, 86:7, 86:16, 86:18, 88:19, 96:5, 96:22, 100:5matters - 23:6mean - 17:6, 35:3, 43:10, 51:17, 56:1, 60:22, 61:5, 67:10, 78:16, 81:15meaning - 57:3, 57:8, 57:19, 57:20, 58:3, 62:7, 76:24, 77:25means - 43:8, 43:11, 57:4, 57:7, 72:25, 73:1meant - 57:8measure - 34:25, 41:12, 43:21, 44:7, 83:23, 87:9, 88:8measured - 42:24, 42:25, 43:15, 44:23, 44:24, 67:8, 67:13, 83:23measurement - 43:22measures - 44:2, 81:6, 81:11Medicare - 6:8meet - 7:14, 19:22, 24:5, 26:13, 26:18meetings - 69:20meets - 73:12member - 22:18, 39:18, 39:20members - 8:6, 18:20, 67:4, 67:17memorized - 58:16mention - 72:20mentioned - 16:1, 97:9merely - 22:19, 88:13, 88:19

merge - 98:2merger - 64:12Mertens - 49:17, 49:21, 50:10, 51:13, 52:14method - 69:15methods - 34:23Mexico - 16:25Michael - 2:2, 4:6Michelle - 24:3Michigan - 16:5, 39:11, 39:23, 68:22middle - 28:17, 29:23, 75:24might - 27:20, 72:22, 81:12Miller - 17:19million - 25:16, 29:24, 31:4, 31:6, 31:9, 31:11, 31:13, 31:25, 34:4, 34:13, 34:20, 35:5, 35:14, 37:19, 37:22, 74:14, 74:15, 74:16, 87:4, 87:6, 87:7, 87:11, 87:16millions - 8:7, 20:9minute - 42:16minutes - 52:8, 83:15mismanaged - 45:9miss - 27:7missing - 34:24misstate - 24:20mistaken - 76:20, 80:5mistakenly - 54:12mistakes - 49:24model - 11:16, 14:2, 34:18, 34:25, 35:1, 35:2, 46:13, 66:16, 66:18, 66:19, 71:13, 71:14, 71:15, 71:19, 72:12, 87:20Modern - 40:6modern - 41:4, 68:16moment - 15:7Mona - 16:12, 16:13, 17:11Monday - 1:4monetary - 9:20, 18:24, 63:23money - 5:19, 5:24, 7:16, 13:24, 18:15, 19:16, 20:14, 20:17, 20:23, 20:25, 21:3, 21:6, 21:9, 22:4, 22:7, 22:25, 23:20, 26:5, 26:23, 26:24, 27:5, 27:6, 27:10, 27:13, 27:14, 27:20, 27:22, 27:23, 28:5, 28:11, 28:16, 29:2, 29:7, 29:8, 29:9, 29:20, 30:1, 30:9, 30:11, 30:22, 31:1, 31:17, 31:18, 32:3, 33:15, 37:7, 45:10, 45:13, 45:14, 54:23, 57:2, 57:6, 57:7, 57:9, 57:18, 57:23, 57:24, 58:1, 58:2, 58:3, 59:10, 59:12, 59:14, 60:15, 61:18, 62:4, 62:8, 63:23, 63:24, 64:2, 64:5, 64:6, 64:19, 64:21, 65:1, 65:10, 65:15, 65:18, 65:19, 66:6, 66:7,

72:5, 72:10, 72:12, 73:24, 74:5, 74:6, 75:10, 75:18, 76:17, 76:21, 77:16, 77:17, 78:8, 78:20, 79:3, 79:4, 79:21, 81:11, 82:8, 84:15, 85:20, 87:5, 87:14, 87:17, 87:24, 89:6, 89:7, 89:16, 90:7, 90:19, 92:7, 92:9, 93:23, 96:6, 98:14, 98:18Money - 22:1, 33:2, 37:24, 86:22monies - 9:20, 14:4, 34:6, 37:13, 61:8Monies - 26:2, 59:7months - 11:13morally - 55:2morning - 4:19, 4:20, 25:22, 35:23, 69:9, 69:10Morning - 1:7Mosser - 5:21most - 47:16, 48:13, 48:24, 53:14, 61:23, 71:6, 77:3, 85:19, 90:4mostly - 44:6, 55:7, 70:7move - 13:16, 18:19, 29:1moved - 30:4, 32:18Moved - 3:8movement - 36:21moving - 32:7multiple - 74:3must - 6:4, 7:18, 9:13, 12:7, 26:15, 36:9, 60:15, 60:17, 84:4, 95:2, 96:13

Nnames - 48:11narrow - 9:1National - 17:11nature - 4:8, 7:17, 59:1nearly - 23:22, 31:25necessarily - 83:14, 89:17necessary - 7:13, 98:9need - 7:12, 21:18, 38:12, 51:1, 55:17negative - 66:12negligence - 6:6, 44:3neighborhood - 70:11never - 4:17, 8:6, 8:10, 19:1, 20:16, 21:15, 22:12, 30:9, 31:19, 45:7, 45:14, 79:5Nevertheless - 21:20nevertheless - 14:12, 14:14New - 16:25new - 10:18, 46:4, 62:20, 80:23Ninth - 1:13no-interest - 9:14, 11:10, 56:4non - 7:16, 28:17, 28:20, 33:6, 63:23, 84:15, 90:11, 90:13

non-existence - 7:16non-fiduciary - 90:11, 90:13non-individual - 28:17, 28:20, 33:6non-monetary - 63:23non-restitutionary - 84:15none - 45:16nonfiduciary - 52:17Norc - 34:17, 34:22, 35:15Norc's - 34:25, 35:2normally - 73:14, 90:1, 90:9, 93:17, 93:18North - 1:24Norton - 70:1note - 4:21, 28:7noted - 21:9nothing - 16:21, 76:25notion - 72:25, 73:1notwithstanding - 14:5Number - 3:6number - 13:12, 29:18, 32:11, 48:10, 83:21, 83:22numbers - 23:14, 32:5, 58:16, 85:2nut - 53:10Nw - 1:12, 1:20, 2:3, 2:12

OOath - 38:8object - 4:17objection - 4:16, 4:22, 38:16, 38:25objections - 38:21obligate - 9:24, 10:25obligated - 10:6, 14:23, 93:9obligation - 9:18, 12:7, 13:4, 57:15, 58:11, 59:8, 59:10, 59:11, 59:12, 59:14, 59:16, 61:7, 61:25, 62:1, 62:2, 62:4, 63:2, 63:3, 63:4, 66:12, 78:15, 82:11, 83:15, 84:5, 93:21, 93:24, 94:1obligations - 6:10, 6:15, 6:16, 18:23, 61:1, 78:4, 82:13, 83:8, 83:9, 84:4, 87:16obtain - 10:17, 62:3obtained - 9:12, 83:3, 91:1obtaining - 91:7obviously - 14:10, 40:15, 85:13, 85:19occasion - 49:13occur - 28:24occurred - 12:17, 14:14October - 19:18, 19:20, 20:20, 21:2, 21:11, 22:9, 22:14, 22:20, 24:3, 30:3, 30:11October's - 25:12

odd - 48:1, 55:8, 85:22offer - 26:22offered - 96:17offering - 38:15, 38:17Office - 17:20, 30:5officer - 54:9Offices - 1:12Official - 2:11, 100:1official - 58:8often - 41:25, 68:2, 97:16, 97:21Oil - 14:20old - 48:1older - 13:19, 48:7oldest - 47:16, 48:23omission - 26:11once - 6:14, 55:11, 82:21, 92:11One - 20:14, 31:17, 60:4, 66:23, 68:18one - 9:25, 14:16, 19:17, 20:7, 25:3, 25:18, 29:25, 34:14, 39:7, 40:5, 47:15, 52:16, 53:23, 63:15, 63:16, 64:16, 65:25, 67:10, 73:24, 79:20, 84:24, 84:25, 85:13, 86:1, 88:4, 94:24one-thousand-

dollar - 65:25open - 4:9, 16:4opening - 4:11, 4:13, 11:13, 15:14, 15:22, 50:25, 94:23operations - 21:17opinion - 7:4, 51:18, 54:16, 71:6, 74:1opinions - 71:8, 95:18opposed - 77:24option - 68:9, 80:11, 86:5orange - 30:23order - 6:19, 12:5, 19:16, 23:7, 62:6, 78:16original - 5:25, 55:10, 56:10, 66:2originate - 64:11Osage - 26:1Otfm - 30:5, 30:6otherwise - 12:25, 13:11, 56:8, 70:1ought - 98:20, 98:22ourselves - 54:22outline - 39:4outside - 9:13, 11:2overlap - 81:8, 88:21oversimplifying - 95:7owed - 15:2, 24:9, 37:3own - 42:11, 46:16, 46:17, 56:6, 56:11, 56:18, 70:7, 73:15owner - 65:3ownership - 74:22

Ppackages - 35:18page - 8:20, 30:17, 31:2, 31:10, 32:20,


8

33:1, 42:7, 42:15, 42:19, 42:20, 43:2, 43:3, 50:13, 54:6, 54:16, 55:21, 55:22, 94:9Page - 42:20pages - 30:13paid - 8:9, 9:6, 13:24, 20:24, 27:16, 27:21, 33:20, 36:7, 45:12, 46:8, 71:16, 72:9, 75:20, 82:3, 82:14, 84:17, 87:10, 87:15, 91:14, 92:4, 93:9Palmer's - 68:15panel - 6:13paragraph - 35:18, 59:5, 59:18parameters - 15:25parentheses - 51:22part - 8:23, 14:11, 17:2, 22:20, 28:13, 31:8, 33:16, 41:2, 44:19, 46:3, 46:8, 58:18, 59:20, 61:21, 62:5, 81:7, 98:18particular - 75:4particularity - 12:1, 12:8particularly - 97:13parties - 20:18, 20:24, 22:6, 29:3, 30:24, 54:21, 97:22partner - 17:1parts - 62:12, 62:13, 89:19party - 23:20, 27:21, 65:7passage - 56:7passages - 71:7passed - 22:4past - 22:3, 23:6, 26:20patently - 25:17patterns - 79:8pay - 9:19, 10:12, 11:1, 14:24, 20:3, 45:12, 46:15, 53:6, 53:11, 57:15, 58:11, 59:10, 59:12, 62:4, 63:2, 64:4, 78:14, 80:13, 84:21, 87:6paying - 74:15payment - 9:25, 10:16, 59:3, 62:24, 74:14, 92:12, 94:12payments - 14:3, 14:25Peachtree - 1:16people - 41:14Pepion - 1:2, 4:3per - 60:9, 88:3percent - 10:13, 10:17, 11:20, 11:23, 12:9, 14:1, 14:14, 14:15, 20:7, 23:23, 25:23, 30:21, 32:14, 33:4, 34:14, 35:11, 37:20, 60:9, 60:16, 60:17, 61:2, 61:4, 61:8, 72:1, 83:16, 83:18, 83:22, 84:8, 91:14percentage - 21:22, 29:7perfectly - 66:19, 77:25perform - 37:12,

78:4performance - 77:2, 92:16performed - 21:25, 34:2, 34:17, 35:17period - 4:23, 10:15, 11:19, 11:22, 19:13, 21:21, 23:4, 61:22, 79:13, 94:20, 94:21periods - 12:21, 26:17persists - 88:5personally - 51:20, 91:18pertinent - 16:19ph - 7:10, 7:14piece - 65:2place - 6:16, 63:16places - 69:1plainly - 49:1, 55:2Plaintiff - 40:19plaintiff - 7:1, 7:16, 9:23, 22:18, 26:21, 42:24, 50:1, 52:17, 52:20, 52:21, 55:11, 62:3, 62:5, 63:24, 64:21, 64:25, 65:6, 65:19, 65:21, 65:24, 68:8, 73:12, 79:2, 80:9, 81:2, 85:10, 88:13, 88:15, 88:16, 88:18, 92:9, 93:17, 98:3, 98:4plaintiff's - 43:17, 44:24, 56:11, 68:10plaintiffs - 4:4, 4:7, 6:20, 7:18, 9:10, 13:5, 13:6, 17:23, 19:22, 20:4, 20:24, 24:5, 24:20, 25:6, 26:13, 28:5, 37:1, 45:14, 46:12, 67:14, 70:25, 73:8, 75:22, 78:3, 83:25, 87:1, 93:23, 95:22, 96:1Plaintiffs - 1:3, 1:11, 8:3, 21:7, 24:8, 25:4, 25:11, 26:1, 26:4, 36:11, 42:2, 50:9, 53:25, 58:17plaintiffs' - 4:15, 4:16, 5:17, 16:17, 17:7, 17:18, 18:4, 24:14, 25:2, 26:9, 27:25, 35:24, 36:15, 36:22, 37:10, 42:25, 66:13, 67:12, 67:13, 86:14, 94:25, 96:8, 96:9Plaintiffs' - 25:18, 42:3, 44:12, 50:10, 58:18, 59:18, 60:18, 63:6, 94:4plan - 11:14, 22:15, 22:23, 49:22, 49:23, 52:1, 52:2plate - 75:24pleader - 86:6, 92:21pleading - 88:10pleasant - 69:12plus - 78:24, 82:8, 86:9Pm - 99:7Po - 2:8point - 22:3, 31:3, 35:1, 37:14, 42:23, 47:2, 63:12, 76:22, 81:19, 82:2, 82:7,

82:13, 82:23, 83:7, 84:11pointed - 18:20, 71:8policy - 30:6, 86:7, 86:16, 86:18Pollard - 7:10, 7:15popularized - 48:5portion - 32:25portions - 25:15position - 14:20, 24:17, 39:23, 46:4, 62:20possession - 89:3, 90:8, 90:19, 92:11possibility - 12:14, 93:14possible - 63:13, 67:17, 87:8, 91:10, 95:21posted - 19:19, 20:15, 21:4, 22:7, 23:23, 25:16, 28:11potential - 97:5power - 97:25practically - 45:22practice - 27:8, 36:6preceding - 86:9precise - 27:3, 73:1precisely - 66:24precision - 8:5precludes - 89:11preferred - 34:23prejudgment - 9:6, 91:7preliminary - 40:9premise - 25:2, 37:10preparation - 73:2prepare - 22:23, 44:16prepared - 23:6, 33:8, 35:19, 63:9preparing - 72:18present - 20:22, 21:5, 24:12, 24:18, 24:20, 25:23, 27:24, 35:12, 36:14, 66:17presentation - 71:12presented - 21:11, 22:24, 33:14, 37:9, 46:14, 68:12presenting - 4:16, 18:8president - 39:16presumed - 99:1presumption - 36:6, 98:10pretrial - 6:19, 12:5, 38:22, 71:2pretty - 48:20, 49:4, 64:9, 72:23, 88:22, 89:13prevents - 90:5previous - 33:11, 50:20previously - 24:2, 24:9, 38:20, 41:5, 61:10price - 45:9prices - 45:8primarily - 10:24principal - 72:10principally - 13:6principles - 6:17, 71:11print - 69:1priority - 65:4, 65:15, 76:23, 77:1,

77:3private - 54:21problem - 53:4, 53:10, 53:15, 74:7problems - 56:8procedural - 41:15Procedure - 56:23, 87:24procedures - 6:20Proceed - 38:5, 40:17proceed - 4:18, 25:13, 51:9, 51:10proceeding - 8:12, 8:17, 9:1, 12:18, 14:7, 14:11, 15:15Proceedings - 2:15proceedings - 4:9, 100:4proceeds - 29:21process - 20:23, 36:5processes - 25:1Processing - 71:23produced - 2:15producing - 24:6professional - 24:24Professor - 16:4, 16:9, 16:10, 38:7, 38:18, 39:1, 39:10, 39:11, 40:15, 40:23, 42:7, 42:10, 42:11, 42:22, 44:16, 53:17, 54:3, 55:24, 58:21, 59:23, 60:20, 62:10, 62:14, 62:25, 63:9, 69:3, 69:5, 69:9, 69:24, 80:6, 93:2, 94:10, 94:23, 98:24professor - 16:5, 39:10, 40:1, 53:13, 69:15professors - 99:1profits - 9:12, 43:19, 44:7, 44:9, 46:2, 46:4, 47:1, 47:18, 47:21, 48:13, 48:14, 48:15, 48:19, 48:22, 48:23, 52:2, 53:2, 56:2, 61:16, 61:19, 61:21, 61:24, 65:12, 68:6, 68:8, 68:9, 72:7, 72:10, 89:15, 89:18, 89:21, 89:24Profits - 48:19prohibit - 30:7promise - 9:19, 9:20proof - 13:3, 37:2proofs - 11:25proper - 6:4, 20:25, 21:6, 23:20properly - 23:19, 26:7, 27:17, 74:21Property - 56:15property - 47:21, 54:10, 54:11, 54:12, 54:14, 56:6, 56:9, 56:10, 56:11, 56:12, 56:15, 56:17, 56:18, 65:3, 68:7, 76:5prospective - 59:4provable - 66:25prove - 11:20, 12:9, 26:15, 66:15, 67:2, 67:4, 67:16, 88:20, 96:1, 96:3, 97:4proved - 6:25, 12:7proven - 14:10

provide - 6:2, 7:12, 7:13, 13:4, 17:17, 19:3, 21:13, 23:10, 33:21, 36:10, 51:23, 58:11, 95:3, 95:6, 95:8provided - 10:19, 11:13, 13:12, 13:15, 18:4, 35:16, 50:15, 50:24, 70:24provides - 60:2, 98:8proving - 19:22, 24:10, 37:2, 73:12provision - 52:15, 56:23, 90:5provisions - 74:23prudent - 78:19, 78:21, 78:22, 78:25, 84:2prudently - 19:3, 79:15public - 16:25published - 70:22purpose - 21:12, 22:14, 41:11, 43:11, 43:13, 75:17purposes - 11:15, 75:13, 88:6pursuant - 30:5, 30:6pursue - 85:11, 85:12put - 12:1, 39:5, 50:18, 74:15, 76:8, 82:21, 88:8, 88:11, 90:18, 95:16puts - 73:23putting - 82:21

Qquaint - 68:15qualifications - 38:24, 39:2quantifiable - 66:25quantify - 67:16, 67:18quantum - 82:16, 83:11, 83:13questioning - 94:13questions - 23:7, 69:4, 79:19, 93:1, 93:4, 93:8, 94:22quickly - 18:10Quinn - 2:2, 4:6quite - 45:22, 48:16, 95:16quotations - 51:22quote - 30:6Quote - 54:22

Rraised - 6:8, 23:7, 35:24range - 34:19, 34:21, 85:17rarely - 10:14rate - 10:12, 25:21, 25:23, 26:9, 60:9, 60:14, 61:2, 61:3, 72:1, 72:2, 72:4, 72:5, 72:7, 72:13, 81:13, 83:16, 83:20, 83:24, 84:1, 87:6, 87:11rates - 84:23rather - 54:24, 57:5, 74:5, 86:14rational - 20:5


9

Ray - 16:24Re - 6:8reach - 5:1, 76:10reaching - 50:7reaction - 6:1read - 43:6, 51:15, 54:16, 54:19, 55:23, 58:10, 58:21, 58:25, 60:20, 62:11, 71:7, 94:10, 94:15, 99:2readily - 34:1, 61:18reading - 57:13, 58:23Reagan - 17:21real - 24:24, 53:9reality - 33:22really - 46:16, 60:3, 65:5, 75:7, 75:25, 77:10, 92:25reason - 11:5, 20:24, 25:15, 30:4, 41:14, 50:4, 50:6, 77:8, 77:23, 85:16, 85:17, 85:19, 89:5reasonable - 11:15, 13:10, 13:14, 18:5, 18:15, 34:19, 66:21reasonably - 28:4reasoning - 57:17reasons - 20:11, 21:12, 37:25, 66:23Rebecca - 2:11, 100:3rebut - 36:6receipt - 25:19receipts - 26:5receive - 9:23, 82:14received - 14:4, 19:17, 20:14, 20:16, 30:10, 44:9, 55:2, 74:14, 75:19, 76:7, 83:8receives - 78:8, 78:20recent - 6:7, 48:16, 49:9, 49:13, 71:6recently - 49:7recess - 99:6Recess - 99:7recognize - 23:5recognized - 26:6recollection - 55:16, 74:25recollections - 70:8reconcile - 17:5reconciled - 34:1Reconciliation - 71:23Record - 15:9record - 22:20, 22:21, 35:10, 100:4records - 12:19, 12:23, 13:21, 21:21, 23:15, 23:22, 37:10recover - 54:14, 65:20, 65:24, 76:18, 76:25, 77:17, 78:23recovered - 9:20, 62:2recoveries - 91:6recovering - 64:4, 76:21, 76:22recovery - 9:5, 9:22, 16:13, 18:24, 41:12, 43:15, 43:21, 44:7, 64:3, 66:24, 66:25, 81:7, 81:8, 94:25Recross - 3:2redeemed - 46:18

redirect - 93:5Redirect - 3:2, 93:6reduce - 7:1, 13:4, 37:13reduction - 46:9, 47:6, 47:9, 47:10reference - 12:4referred - 35:9, 62:14, 91:13referring - 54:3, 59:25refine - 23:14reflect - 12:17reflected - 30:22reflects - 34:13, 55:8Reform - 58:19refute - 36:3regard - 6:5, 6:6, 9:1, 10:3, 12:2, 12:6, 12:21, 12:24, 13:1, 13:17, 13:19, 14:9, 16:15, 16:18, 17:3, 17:10, 17:13, 17:14, 28:9, 42:19, 42:21, 47:24, 50:20, 73:11, 74:10, 91:16, 91:20, 92:1regarding - 16:22, 33:7, 38:21regular - 59:7regularity - 36:5regulation - 82:12reject - 37:10rejecting - 55:14, 55:15relates - 31:22relationship - 47:13, 62:14relatively - 21:22, 98:21relevance - 49:11relevant - 8:1, 23:11, 23:12, 24:25, 31:3, 37:10, 50:5, 50:6, 52:14, 58:11, 65:6, 65:7, 70:9, 95:17, 96:21reliability - 12:23, 16:15, 16:20, 17:4, 17:15reliable - 18:5, 35:21relied - 11:17, 13:23relief - 9:17, 9:21, 18:22, 52:18, 57:5, 57:20, 57:22, 57:25, 59:15, 62:7, 64:6, 64:14, 65:25, 66:4, 66:8, 66:11, 76:15, 76:24, 77:2, 77:6, 77:11, 77:18, 77:23, 77:24, 78:2, 93:25, 94:3, 95:23, 96:24, 97:8, 97:10, 97:12, 97:13, 97:14, 97:21, 97:25, 98:2, 98:3, 98:4, 98:9, 98:11religious - 39:16rely - 13:10, 24:23remain - 67:17remedies - 16:7, 38:19, 39:15, 40:4, 40:7, 40:25, 41:1, 41:3, 41:4, 41:7, 41:15, 41:16, 41:23, 42:9, 42:18, 44:5, 48:5, 48:10, 49:9, 49:13, 50:3, 51:24, 61:12, 63:13, 63:20,

63:21, 64:2, 64:8, 64:13, 64:14, 65:12, 68:23, 68:24, 70:9, 70:23, 75:12, 75:17, 80:1, 80:4, 80:8, 85:11, 89:23, 89:25, 91:24, 93:16Remedies - 40:6, 42:4remedy - 7:17, 19:2, 33:18, 36:9, 36:12, 47:15, 49:25, 50:1, 51:23, 57:1, 57:9, 59:1, 59:13, 59:14, 61:6, 64:11, 65:13, 65:14, 65:17, 66:4, 67:3, 68:4, 75:1, 75:4, 75:5, 75:7, 75:8, 79:18, 84:24, 85:11, 85:12, 85:20, 86:1, 86:4, 86:14, 86:15, 88:17, 89:12, 90:25, 91:10, 95:2, 96:25remember - 69:18remote - 47:8remove - 30:4render - 5:8, 6:23rendered - 6:5, 7:23, 13:12, 66:22Repeat - 46:23repeated - 94:24repeats - 44:23reply - 11:14report - 21:16, 30:12, 31:3, 40:9, 40:10reported - 2:15, 13:7, 34:11, 35:5, 37:17Reporter - 2:11, 100:1, 100:10reports - 12:24represented - 12:11, 16:16, 25:7represents - 18:15, 32:13, 35:3, 76:6request - 5:17, 23:1requested - 7:3, 13:5, 13:6requests - 95:23require - 56:4, 59:2, 65:16, 78:4, 92:15, 98:5required - 12:1, 21:25, 53:11, 84:14requirements - 85:13, 85:14requires - 78:21, 83:1, 84:3, 86:21, 87:7requiring - 91:14res - 98:20research - 23:16, 29:6, 34:1, 41:18, 91:15, 91:18Research - 34:8resist - 77:22, 77:25resolved - 97:22resources - 22:2, 23:9, 37:15respect - 16:6, 16:20, 17:7, 17:22, 21:18, 44:21, 47:5, 47:7, 54:21, 57:10, 61:3, 61:12, 66:13, 74:24, 75:1, 89:25, 91:5respectively - 51:25responding - 4:15response - 16:17,

17:16rest - 7:18, 47:17restatement - 39:19, 39:20, 40:9, 40:12, 40:14, 46:4, 48:6, 68:14, 69:2, 70:15, 70:16, 70:17, 70:19, 70:21, 72:16, 73:4, 73:5, 73:20, 74:19restatements - 70:9restitution - 16:6, 16:7, 18:23, 38:18, 39:21, 40:3, 40:8, 40:10, 40:12, 40:14, 40:23, 40:24, 41:4, 41:6, 43:4, 43:12, 43:14, 43:17, 43:21, 43:23, 44:4, 44:20, 44:24, 45:2, 45:18, 45:19, 45:22, 46:12, 47:13, 47:17, 47:23, 47:25, 48:2, 48:4, 48:5, 48:6, 48:9, 48:12, 49:3, 49:4, 49:15, 50:8, 51:19, 51:21, 51:24, 52:4, 52:5, 52:22, 52:23, 53:1, 53:4, 53:7, 53:10, 53:20, 54:21, 55:10, 55:13, 56:2, 57:6, 57:8, 57:10, 57:19, 58:2, 61:12, 61:16, 63:17, 63:18, 66:18, 66:19, 66:21, 66:24, 67:8, 67:20, 68:2, 68:4, 68:18, 68:21, 70:8, 70:17, 72:17, 73:4, 73:8, 75:24, 76:2, 76:4, 76:5, 76:9, 76:16, 77:22, 77:24, 78:1, 78:2, 79:2, 79:6, 79:8, 79:24, 80:14, 80:17, 81:7, 83:12, 84:17, 84:18, 85:12, 85:16, 85:21, 86:14, 88:9, 88:18, 88:20, 88:24, 89:9, 89:10, 89:13, 89:23, 90:1, 90:7, 90:13, 91:10, 92:20, 93:10, 93:22, 95:14, 96:19, 96:24, 97:9Restitution - 42:4, 47:15restitutionary - 43:15, 44:5, 64:13, 65:14, 66:14, 66:24, 67:3, 68:24, 79:18, 84:15, 89:12, 92:18, 97:25, 98:1, 98:3restitutions - 39:15restore - 52:2, 96:13restrictions - 84:3restricts - 85:3rests - 7:16result - 8:3, 18:6, 23:14, 28:6, 77:21resulted - 57:23results - 34:16retained - 45:20retirement - 49:22retroactive - 10:7, 59:4, 59:6retroactively - 10:3return - 30:22, 63:6, 72:5, 84:6returned - 30:19returning - 77:5

revenues - 26:2, 71:20review - 70:25, 72:15Review - 40:8reviewed - 31:15, 59:23, 66:16, 70:6, 70:7reviewing - 31:15, 70:3, 74:25revised - 35:8right-hand - 32:10rightfully - 20:17rise - 7:19Robert - 2:1, 4:6Robertson - 1:9Room - 2:12root - 48:11Rosenak - 7:10, 7:14roughly - 33:4routinely - 61:18rule - 9:14, 11:10, 56:4, 61:16, 78:21, 85:10, 89:20, 89:21rules - 9:7, 86:10, 86:11, 86:13, 88:2, 89:17, 89:18, 91:5, 98:19running - 70:5, 74:7

Ssake - 95:7salem - 1:24satisfaction - 18:12satisfactorily - 7:7satisfied - 18:14, 98:6satisfy - 85:13, 85:14save - 74:5saved - 45:21, 45:24, 46:19, 72:12, 79:12, 83:17, 90:15savings - 46:5, 46:25, 47:7, 90:25saw - 91:17scenario - 26:22Scheuren - 24:3, 34:17, 34:24scholar - 40:16school - 16:6, 39:11, 39:24, 39:25, 69:11, 69:14schools - 39:22, 68:14, 68:18, 68:23Sciences - 39:15scope - 9:1, 9:13, 40:7, 76:1, 94:11screen - 19:7, 29:12, 39:6scrutiny - 24:11Sda - 32:1, 32:7, 32:19, 33:1se - 88:3seat - 38:5Sec - 13:13Second - 21:24second - 15:6, 32:20, 33:1, 39:16, 40:12, 41:24, 42:4, 59:18, 59:19, 70:16Secretary - 1:5, 59:6, 60:5, 60:7, 78:4secretary - 58:7section - 42:14, 43:3, 44:13, 46:6, 50:14, 51:13, 54:16, 55:22, 55:23, 58:16Section - 46:6,


10

56:24, 60:4, 60:11secure - 92:12, 92:18securities - 7:12, 10:12, 46:18, 46:19, 54:23, 54:24, 55:12, 82:6, 82:9, 83:2, 84:13, 84:19, 86:23, 87:8security - 4:22see - 15:7, 19:1, 20:14, 20:21, 25:19, 28:19, 29:11, 29:22, 30:17, 32:2, 32:9, 32:12, 32:21, 32:22, 33:1, 39:6, 43:3, 48:16, 48:21, 51:13, 59:5, 66:12seek - 26:4, 26:15, 36:12seeking - 46:12, 52:23, 66:23, 92:25seeks - 65:24seem - 73:21, 77:22seized - 54:12, 55:11seizing - 54:11selectively - 24:15Senior - 2:6sense - 48:15, 76:24sent - 71:1, 71:5sentence - 55:8, 60:5sentences - 86:9separate - 10:18, 41:5, 44:13, 68:21, 68:25, 73:18, 75:10, 88:2separated - 31:18September - 10:9series - 34:23serious - 73:15serve - 23:18services - 21:13, 21:14Session - 1:7set - 11:2, 15:25, 16:3, 20:11, 88:20sets - 76:13setting - 4:24settled - 5:12, 5:13, 46:10, 57:3, 57:19, 71:11settlement - 35:18seven - 18:8several - 10:8, 32:2, 39:25shall - 10:11, 10:12, 60:5, 60:7, 61:1, 61:3shares - 55:10, 55:12shift - 7:18, 15:16shorthand - 2:15show - 22:14, 29:10, 34:9, 35:8showed - 84:9shown - 19:18, 25:17, 26:3, 29:4, 32:7, 50:21shows - 24:6, 25:24, 29:20, 31:4, 31:7, 31:17, 31:24, 64:25, 96:17side - 28:15, 42:25, 43:16, 44:4, 46:16, 67:8, 67:12, 67:19, 82:5, 82:16, 83:6, 84:12, 84:16, 91:9, 91:10, 96:9

sides - 64:13, 64:14, 81:20, 81:21, 83:11Signature - 100:10signed - 33:8significance - 26:11, 40:8significant - 8:23, 12:22, 24:7, 26:19, 29:7, 33:8, 34:5Significantly - 31:7similar - 6:8, 7:9, 22:19, 85:23similarly - 16:10simple - 64:18, 65:15, 99:3simpler - 67:10simplified - 60:23simply - 20:24, 33:24, 76:24, 78:8, 88:8, 88:11situation - 5:14, 5:15, 6:22, 7:9, 19:2, 90:12, 90:13six - 43:2, 43:3, 94:9small - 73:23smaller - 83:21Smith - 1:23Smithsonian - 60:7sold - 8:8, 45:8, 55:12solely - 10:5, 16:20, 22:13someday - 27:7Someone - 73:15someone - 46:7, 74:14Sometime - 69:18Sometimes - 43:19, 48:18, 97:16sometimes - 43:19, 48:21, 69:16, 70:1, 85:18, 97:19somewhat - 44:5, 82:22somewhere - 27:20, 84:6, 98:18sorry - 42:20, 52:21, 57:16, 70:21, 82:18, 88:15sort - 59:8, 71:14, 74:20, 78:7, 78:11, 95:13sought - 75:5, 78:3, 92:10sound - 18:25sovereign - 14:21, 56:5, 57:1, 57:10, 85:20, 86:11, 88:10, 91:3, 91:4, 91:8speaking - 15:5, 19:8, 19:11, 61:6speaks - 4:10, 55:5, 55:7, 61:5Special - 32:1specialist - 17:9Specific - 76:5specific - 6:25, 7:13, 9:17, 13:3, 26:22, 48:10, 57:5, 57:20, 57:21, 57:22, 57:25, 59:15, 62:5, 62:7, 63:21, 64:2, 64:3, 64:6, 64:14, 65:12, 65:17, 65:22, 65:24, 66:3, 66:4, 66:8, 66:11, 76:2, 76:4, 76:5, 76:9, 76:15, 76:16, 76:24, 77:1, 77:2, 77:6,

77:12, 77:18, 77:22, 77:23, 77:24, 78:1, 78:13, 78:15, 78:17, 80:14, 80:17, 83:21, 84:17, 93:14, 93:18, 93:20, 93:23, 93:24, 94:3, 96:24, 98:16, 98:17specifically - 5:23, 7:4, 9:21, 10:4, 10:10, 11:1, 16:18, 49:17, 59:13, 62:6, 62:24, 63:21, 64:4, 93:25spend - 70:3spent - 39:24, 70:11spread - 21:14Springs - 29:21squarely - 92:5stand - 97:12, 97:15, 97:21Standard - 14:20standard - 60:11standards - 11:2Standards - 17:12standing - 4:18, 4:22stands - 97:16start - 4:14, 82:23started - 63:17, 82:20starting - 29:19state - 49:5, 54:7statement - 15:14, 15:22, 42:21, 55:4, 55:20, 86:3, 94:17, 94:24statements - 4:11, 4:13, 12:5, 73:20, 74:19states - 10:10, 85:24States - 1:1, 1:9, 5:5, 5:7, 6:18, 8:2, 11:1, 14:17, 14:20, 14:21, 14:23, 19:23, 26:19, 27:1, 27:4, 27:6, 27:23, 33:22, 36:15, 37:5, 39:13, 54:9, 54:24, 58:5, 58:9, 60:8, 60:12, 60:25, 65:9, 74:14, 75:19, 78:12, 83:1, 83:4, 87:2, 87:14, 89:1, 89:2, 89:5, 89:15, 90:18, 91:1, 91:8, 91:21, 91:24stating - 46:21Station - 2:8statistical - 20:6, 28:4, 34:1, 34:16, 34:22, 35:15, 37:18statistically - 35:11statisticians - 34:23status - 64:22statute - 9:19, 10:6, 10:7, 10:14, 10:18, 11:9, 51:23, 57:4, 57:14, 58:15, 58:23, 59:2, 59:11, 59:23, 59:25, 60:3, 60:19, 61:15, 62:14, 62:18, 62:20, 63:3, 78:5, 78:9, 78:13, 78:15, 82:12, 83:1, 83:14, 84:8, 85:18, 86:11, 86:20, 86:21, 86:24, 87:7, 89:11, 91:13, 93:15statutes - 9:24, 10:23, 10:24, 10:25,

58:10, 58:24, 59:2, 62:19, 62:22, 62:24, 90:5statutory - 6:10, 6:15, 9:18, 57:15, 57:22, 58:11, 59:8, 59:10, 59:12, 59:13, 59:15, 61:25, 62:4, 63:2, 63:3, 64:4, 66:12, 78:15, 78:18, 83:15, 83:21, 90:5, 93:18, 93:20, 93:24, 94:1Stemplewicz - 2:5, 4:5steps - 57:16still - 20:10, 23:15, 48:24, 68:25, 73:17, 76:10, 79:16, 82:4, 91:15, 91:17, 97:4stipulate - 85:3stock - 55:10, 55:12, 60:8Stockton - 1:16, 1:20, 1:23stolen - 45:10Stonestreet - 2:11, 100:3straightforward - 55:19, 57:13, 89:13, 99:3stray - 72:22Street - 1:12, 1:16, 1:20, 1:24, 2:3stress - 37:23structural - 15:4students - 77:12studied - 68:19sub - 75:10subcontractor - 92:4, 92:6subject - 11:25, 14:6, 38:25, 56:3, 56:24subsequently - 27:16substance - 39:4, 41:9, 41:14, 41:17, 60:3, 81:6substantial - 68:24substantially - 5:18, 41:1substantive - 24:24, 41:15, 41:16, 49:10substitute - 63:23substitutionary - 63:20, 65:11, 66:4, 77:12succeed - 92:22succinctly - 63:12sue - 80:9, 80:11sued - 92:9suffered - 92:15, 92:25sufficient - 12:6, 19:2suggest - 8:19, 12:5, 33:20, 74:13suggests - 56:7suing - 52:16, 54:13suit - 49:21Suite - 1:17, 1:21sum - 34:12, 75:18, 78:23summarize - 49:14summary - 12:2, 20:12, 36:25, 38:11sums - 28:5, 36:22, 72:23, 78:24, 79:2, 79:3

superintendent - 33:10support - 17:18, 88:12, 88:17Support - 36:2supporting - 26:22supports - 66:18supposed - 20:16, 20:18, 31:19, 38:11Supreme - 5:14, 5:22, 9:11, 9:21, 14:19, 41:25, 49:6, 49:8, 49:14, 50:18, 52:7, 53:18, 70:9, 80:3, 80:23surrender - 48:21suspenders - 98:2sustained - 7:3, 8:5Sutherland - 9:15, 53:24switch - 79:9sworn - 40:19system - 19:17, 20:15, 21:6, 21:13, 21:15, 21:19, 21:23, 22:5, 22:11, 22:25, 23:3, 23:4, 25:1, 27:3, 28:3, 28:10, 28:13, 28:23, 29:7, 29:8, 30:5, 30:8, 30:19, 31:6, 31:13, 33:5, 33:23, 34:7, 34:11, 34:15, 34:19, 35:2, 35:6, 36:19, 36:20, 37:18, 37:22, 48:11, 88:1system's - 20:8systems - 13:19, 13:23, 16:15, 16:19, 16:21, 17:14, 23:19, 34:12

Ttables - 69:13Tatel - 6:13taught - 40:3, 40:4, 68:13, 68:25taxes - 74:15taxonomy - 97:8teaches - 39:15teaching - 39:24teachings - 41:19technology - 13:22, 17:9Technology - 17:12tens - 8:6term - 48:16, 52:5, 57:3, 57:18, 72:24, 72:25, 73:3, 76:2, 77:19, 77:22, 77:23, 87:24, 87:25terms - 48:4, 52:8, 52:22, 77:19, 88:7, 90:4territory - 98:22testified - 10:21, 38:13, 40:20, 42:16, 63:9, 87:3, 87:23, 90:22testify - 16:6, 38:16, 38:18, 58:25, 71:10, 73:7, 74:10testifying - 16:24, 17:3, 17:13, 17:14, 17:22, 17:25, 87:22testimony - 13:18, 14:7, 16:20, 18:1, 20:12, 20:21, 24:2, 24:18, 24:19, 24:23,


11

25:23, 27:24, 28:1, 28:9, 30:2, 36:18, 37:16, 38:21, 38:24, 40:17, 62:9, 62:11, 62:13, 62:25, 63:1, 70:4, 72:18, 75:14, 75:22, 76:1, 98:25, 99:3Texas - 39:24, 39:25, 40:1, 40:3, 40:8text - 57:13themselves - 55:3, 62:22theories - 27:25theory - 71:4, 75:8, 96:8, 96:9Therefore - 11:25, 27:13therefore - 13:2, 33:18, 83:20thereon - 60:13, 60:17they've - 87:2third - 20:18, 30:24, 39:19, 39:21, 40:10, 40:14, 65:7, 70:15, 70:17, 70:19, 70:22thousand - 65:25thousands - 67:14three - 19:19, 25:20, 32:3, 32:21, 42:8, 42:15, 42:19, 50:13, 54:6, 54:16, 63:7, 64:20, 72:15throughout - 8:2, 13:21, 21:23, 21:24, 23:3, 28:8, 94:25throughput - 22:15, 23:1, 34:8tied - 97:14, 97:17tightly - 85:3title - 41:2, 41:3today - 19:8, 19:16, 70:4, 72:19, 90:22, 91:16together - 70:12, 79:19tomorrow - 5:1top - 28:19, 29:16, 29:18, 30:23, 33:6, 44:13, 55:22, 63:16topic - 22:13topics - 20:2tort - 44:2, 44:3total - 11:23, 28:13, 29:8, 31:6, 31:12, 33:3, 34:14totaled - 33:3, 70:5traces - 64:25tracing - 64:19, 65:5, 65:11, 65:16track - 36:20Trade - 17:21traditional - 46:2, 46:3traditionally - 48:25transaction - 7:7, 29:15, 30:1, 31:23, 32:6, 43:1, 43:15, 43:16, 43:21, 44:10, 67:9, 67:13transactions - 12:17, 34:12Transcript - 1:8transcript - 2:15, 100:4transcription - 2:15transfer - 32:18, 32:21, 33:1, 33:2,

33:5transferred - 32:14transfers - 26:10, 28:23Treasury - 17:5, 17:24, 18:7, 23:9, 35:19, 36:16, 36:20, 60:5, 72:6, 72:12, 72:24, 75:9, 75:11, 87:6, 90:18Treasury's - 36:19treat - 26:1, 66:3, 77:16, 77:17treated - 14:18, 14:23, 50:3, 54:20, 56:6, 56:16, 56:17, 57:18, 65:3, 66:3, 93:19treating - 56:10treatise - 41:23Treatise - 68:15treatises - 41:1, 70:8, 72:16treats - 49:2, 49:4trial - 4:23, 4:25, 18:18, 19:6, 19:13, 21:11, 22:24, 23:11, 24:10, 24:11, 24:12, 26:10, 28:6, 28:8, 33:14, 35:10, 36:13, 36:25, 38:10, 51:1, 62:10, 71:2, 88:6Trial - 2:6tribal - 29:9, 30:7Tribal - 10:16, 17:2, 25:25, 26:5, 26:6, 29:15, 29:17, 29:19, 30:2, 30:4, 32:2, 32:3, 32:8, 34:6Tribe's - 29:21tribes - 10:2, 10:18, 20:18, 31:20, 32:22tried - 52:8, 69:14, 73:7, 95:18true - 57:6, 78:22, 79:1, 80:2, 80:3, 85:16, 88:1True - 28:11Trust - 10:2, 10:4, 10:16, 10:22, 12:22, 17:3, 29:17, 30:2, 30:6, 32:4, 32:8, 58:19, 74:16trust - 5:16, 8:7, 8:14, 8:15, 9:9, 9:12, 10:10, 10:21, 10:22, 10:23, 12:12, 12:21, 14:3, 19:3, 19:19, 19:25, 23:23, 24:21, 26:13, 27:17, 29:8, 33:15, 33:25, 34:3, 34:11, 47:13, 47:14, 47:15, 47:19, 48:14, 50:3, 56:14, 56:16, 58:12, 60:12, 60:15, 60:24, 61:8, 61:22, 62:15, 62:19, 62:21, 63:4, 63:5, 64:5, 64:22, 70:8, 71:21, 71:22, 73:14, 73:15, 73:18, 73:21, 74:11, 75:6, 78:12, 79:25, 80:1, 80:9, 84:3, 85:3trustee - 5:15, 12:7, 14:17, 14:18, 18:22, 47:18, 48:14, 66:10, 73:21, 74:6, 74:17, 74:21, 76:7, 76:18, 77:5, 78:8, 78:12, 78:19, 79:15, 79:23,

80:13, 81:25, 82:5, 82:11, 84:2, 84:13, 85:4, 85:5trustee's - 73:14, 82:7, 83:6trustees - 47:23Trusts - 25:25trusts - 10:20, 47:20, 70:15, 70:16, 70:19, 70:21, 72:17, 73:5, 73:21, 73:23, 74:19, 86:22, 91:21trustworthiness - 16:21, 17:14try - 63:12, 73:9trying - 41:11, 65:19, 74:13turn - 8:2, 25:20, 42:7, 42:19, 43:2, 50:13, 54:6, 54:15, 69:13, 88:22, 94:9turned - 97:6Turning - 32:11, 32:16, 32:20twice - 79:21Two - 60:11two - 9:24, 11:12, 19:18, 21:1, 25:19, 31:22, 32:23, 40:24, 41:7, 57:16, 68:20, 76:13, 79:19, 81:6, 81:11, 82:13, 86:9, 87:9, 89:19, 98:2Tyler - 17:8type - 29:10, 31:14, 62:1, 91:8types - 28:23typically - 77:13

Uunable - 8:4, 37:5unanimous - 6:13, 9:14uncertain - 97:25uncertainty - 35:1uncover - 23:12Under - 48:9under - 6:24, 7:5, 26:22, 50:2, 52:17, 56:15, 79:8, 82:12, 88:7, 90:22, 97:18underlying - 86:4, 92:18, 92:19undermine - 24:17understood - 67:21, 67:24, 68:17, 71:18, 71:20, 93:15undertaken - 34:22undocumented - 36:7undoubtedly - 34:5unexplained - 37:13unexplored - 98:22Unfortunately - 69:15unique - 10:21, 47:24uniquely - 80:1unit - 68:24United - 1:1, 1:9, 5:5, 5:7, 6:18, 8:2, 11:1, 14:17, 14:20, 14:21, 14:23, 19:23, 26:19, 27:1, 27:4, 27:6, 27:23, 33:22, 36:15, 37:5, 39:13, 54:9, 54:23, 58:5, 58:9, 60:8, 60:12,

60:24, 65:9, 74:14, 75:19, 78:12, 83:1, 83:4, 87:2, 87:14, 89:1, 89:2, 89:5, 89:15, 90:18, 91:1, 91:8, 91:21, 91:24universities - 39:22University - 16:5, 39:11, 39:12, 39:23, 39:24, 39:25, 40:1, 40:2, 41:22, 68:21, 68:22unjust - 9:5, 9:10, 9:11, 16:6, 38:18, 40:14, 43:11, 43:14, 46:7, 46:9, 46:20, 48:4, 48:9, 53:20, 55:15, 55:20, 56:5, 61:12, 72:17, 73:4, 73:12, 75:18, 82:7, 83:19, 84:16, 92:6unjustly - 54:25, 55:18unless - 4:16, 89:11, 90:2Unless - 90:5unobjected - 47:3unpaid - 65:8, 92:10unreliability - 25:3, 35:23, 36:4unreliable - 12:20, 37:11unsuccessful - 30:20up - 4:18, 4:22, 33:4, 47:18, 48:22, 52:14, 68:6, 68:7, 70:13, 72:23, 90:8, 97:19update - 34:8updates - 35:4uses - 34:18, 34:25, 41:25, 48:7usual - 78:12, 85:10, 98:10, 98:19utilized - 10:15, 54:24

Vvacated - 15:3valid - 66:19value - 8:9, 11:23, 89:7, 97:1variations - 43:22, 44:1variety - 44:4various - 12:3, 12:23, 16:1, 17:1, 22:16, 63:13, 73:8, 88:5vast - 67:20verify - 73:9versa - 86:15versus - 4:3, 70:1Vi - 8:15vice - 39:16, 86:15view - 46:16, 46:21, 46:25, 47:2, 49:11, 66:22, 81:19, 82:2, 82:8, 82:13, 82:23, 83:7, 84:11views - 42:12violation - 74:11, 96:20violations - 97:3virtually - 12:12vitiated - 6:16vocabulary - 47:25, 48:1, 48:21, 68:14

vocal - 80:6voir - 38:10, 38:12Volume - 42:5votes - 86:19voucher - 32:10, 32:11, 32:12, 32:20vs - 5:21, 6:21, 7:10, 9:16, 13:13, 14:20, 49:17, 49:21, 50:10, 52:10, 53:24, 56:19, 57:2, 69:25, 89:1

Wwaiting - 18:18, 18:19waiver - 56:4, 63:19, 85:19, 85:21, 86:1, 88:18waivers - 73:9waives - 57:1, 57:9wake - 95:23wants - 44:1war - 54:13Warm - 29:21Warshawsky - 2:1, 4:6wartime - 54:10Washington - 1:4, 1:13, 1:21, 2:4, 2:9, 2:13Water - 39:14ways - 41:10, 49:6wayside - 97:6week - 69:21well-known - 5:2West - 1:24, 52:10, 52:20whole - 41:24, 46:6, 48:5, 79:13wholly - 12:19wide - 85:17widely - 28:4William - 1:15Williams - 15:4Winston - 1:24Winston-salem - 1:24withheld - 26:17, 26:19, 26:23, 26:25, 27:1, 36:16, 37:6withholding - 19:24, 26:12, 27:5withstand - 24:11witness - 16:13, 18:10, 38:5, 38:24Witness - 3:2, 40:19, 68:1, 81:3, 81:5, 90:21, 93:3, 95:16, 96:11, 96:14, 97:11, 97:16, 98:7, 98:17, 99:4witnesses - 18:8, 18:25, 20:1, 23:25, 24:1, 24:24, 25:1, 28:1, 31:15, 35:24, 37:9, 38:2, 38:10wonder - 41:15wondering - 4:8words - 89:24, 93:10worried - 65:6worst - 35:13, 37:21wound - 90:8write - 86:20writing - 6:13writings - 41:18written - 9:14, 12:24, 40:5, 40:7, 40:9, 41:21, 41:22,


12

71:24wrongdoers - 44:8, 89:22wrongful - 26:12wrongfully - 19:24, 26:19, 26:23, 26:25, 36:16, 37:5wrote - 86:8

XXiii - 15:3, 94:5, 94:7Xix - 71:7Xx - 71:6

YYale - 39:10year - 22:3, 25:14, 30:18, 30:22, 31:7, 31:10, 39:17, 69:19years - 5:19, 5:20, 12:16, 13:21, 18:18, 24:1, 26:20, 28:2, 29:8, 31:16, 31:18, 33:17, 35:19, 39:24, 71:25, 72:2, 83:17, 95:21yellow - 39:7yields - 94:21

ZZiler - 16:24

Documents

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT ... - …...Justice Tatel, writing for a unanimous panel, said, once again, that's too bad. The Court doesn't determine justice based