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December 1, 201 0
By Email and Federal Express
Gary J. Cohen, Esq.
General Counsel
Financial Crisis Inquiry Commission
1717 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006-4614
Re: Publication of Financial Crisis Inquiry Commission ("FCIC")
Summaries of JPMorgan and Bear Stearns Interviews
Dear Gary:
On behalf of JPMorgan Chase & Co. (with its subsidiaries, "JPMorgan"), I
write to inform you of gross inaccuracies in the FCIC memoranda purporting to
summarize FCIC interviews of JPMorgan and Bear Stearns witnesses (the
"Memoranda").
In our November 22, 2010 letter to the FCIC, we objected to the
publication of JPMorgan and Bear Stearns interview summaries and audio files on the
FCIC's website as part of its "oral history" project. We emphasized that the FCIC had
never before informed us of its intention to publish these interview summaries and audio
files. To the contrary, we were repeatedly assured that the interviews would be treated
confidentially and that their purpose was to aid the Commission in drafting its Report and
briefing the Commissioners in advance of hearings. Indeed, more than one of the
Confidential Treatment Requested by JPMorgan
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
Gary J. Cohen, Esq.
2
Memoranda make clear that witnesses were led to believe swnmaries of their interviews
would not be published by the FCIC. For example, in one Memorandum, Sarah Knaus
writes that Tom Krebs "informed [the witness] that I was just taking notes for Tom's
assistance." In another Memorandum, Mr. Krebs told the witness "we're taking notes to
facilitate correct responses." In our November 22 letter, we also pointed out that the
publication of the interview swnmaries and audio files would result in gratuitous free
discovery for plaintiffs in litigation against JPMorgan and Bear Steams.
Although we had not had an opportunity to review the Memoranda prior to
submitting our November 22 letter, we also specifically objected to the publication of the
Memoranda based on our belief that they would be incomplete and inaccurate, resulting
in misleading and incorrect information being provided to the public. Since writing to
you on November 22, we have had the opportunity to conduct a preliminary review of the
Memoranda, which has confirmed our concerns and reinforced our view that the
Memoranda should not be published on the FCIC's website or disclosed publicly except
through the National Archives after a minimum waiting period of five years.
Given the short time remaining for the FCIC to complete its work, rather
than wait until the completion of our review, we wanted to highlight now just a few of the
many gross inaccuracies in the Memoranda that we've encountered to date:
First, many of the Memoranda are made to look like transcripts, which
creates the misleading impression that they are accurate and complete records of what
was said during the interviews when, in fact, they are incomplete (and often inaccurate)
summary Memoranda. While disclaimers at the beginning of several of the Memoranda
indicate that the Memoranda contain paraphrases of interview dialogue and are not
transcripts, the caveats are either incomplete or unclear. And several of the transcriptstyle Memoranda contain no disclaimers at all.
Indeed, the FCIC itself cannot rely on its own Memoranda for complete
and accurate quotations of witnesses. In the Commission's letter to one Bear Steams
witness today, it seeks to confirm the accuracy of an alleged quote from the witness's
FCIC interview. However, neither the quote, nor any words remotely resembling the
quote, appear in the FCIC's Memorandum of the interview.
Second, the FCIC has omitted critical information and context that renders
portions of the Memoranda misleading and inaccurate. For example, one Memorandum
states that Bear Steams was working on its consultants' recommendations regarding risk
management, but omits the witness's statement that Bear Steams had already undertaken
the tasks recommended on its own initiative and had hired the consultants to confirm that
the goals were worthwhile.
Third, the Memoranda are replete with grossly inaccurate paraphrases of
the witnesses. For example, one Memorandum indicates that the witness said $500
Confidential Treatment Requested by JPMorgan
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
Gary J. Cohen, Esq.
3
million was provided to certain hedge funds when, in fact, the witness said exactly the
opposite-i.e., that the money was not provided to the hedge funds, but instead was
provided to an unrelated entity. Another Memorandum states that the hedge funds
contained credit card related securities, when, in fact, the witness stated that the securities
were credit-based. While these discrepancies may seem inconsequential to the FCIC, the
extremely large number of grossly inaccurate paraphrases in the Memoranda should be
reason alone to withhold them from publication. 1
Fourth, for those Memoranda not written in transcript style, it is often
impossible to tell who the speaker is-i.e., whether the witness is speaking, counsel is
speaking, or the FCIC is providing editorial or explanatory commentary. In one
particular Memorandum, the FCIC does not even identify a JPMorgan witness by name,
and notes simply that the interview was with "personnel from JPMorgan and Paul
Weiss."
Fifth, the Memoranda frequently contain garbled passages where the
FCIC's accounts of the witnesses' responses bear little relationship to what was actually
said. For example, one witness's explanation of a deal involving New York City bonds
contains several sentences that are badly mangled, making the resulting narrative
incoherent. Further, we note that the Memoranda often omit entire questions and/or
responses, further contributing to the confused dialogue. For example, in several
instances, the FCIC summarized the responses to questions, but failed to indicate the
questions.
Sixth, in countless instances the Memoranda attribute statements to the
wrong individuals. For example, in several Memoranda, numerous interview questions
are incorrectly attributed to the witnesses and the responses are attributed to the FCIC
questioners.
Seventh, the Memoranda often fail to record statements by witnesses that
indicate they were guessing, and/or had no involvement in or responsibility for the issue
being discussed. For example, in one Memorandum, the FCIC includes the witness's
criticism of a company decision, but omits the witness's qualifications on his responsei.e., that he was not involved in the decision, had no responsibility for the decision, and
did not know if other alternatives to the decision were feasible.
Eighth, in many instances, basic information such as the interview date,
time, location, and/or attendees is incorrectly recorded in the Memoranda. For instance,
As the FCIC is aware, there also is ongoing litigation concerning many of the topics
covered during FCIC interviews. Should the FCIC publish the Memoranda on its
website, we believe it likely that plaintiffs in civil litigation will seek to depose the
FCIC staffers who wrote the Memoranda and/or call them as witnesses at trial.
Confidential Treatment Requested by JPMorgan
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
4
Gary J. Cohen, Esq.
in the summary of one Bear Steams interview, the Memorandum incorrectly indicates
that a prominent Morgan Stanley hedge fund manager attended the interview with his two
lawyers.
Finally, we note that the Memoranda are riddled with typographical
errors.
These are just a few examples ofthe many gross inaccuracies in the
Memoranda. In light of the unreliable and misleading content of the Memoranda, we
believe it would be unfair-not only to JPMorgan, but also to the individuals who
voluntarily appeared for interviews-and wholly inappropriate for the FCIC to publish
the Memoranda on its website. We reiterate our prior request that the FCIC withhold all
JPMorgan and Bear Steams interview summaries from publication, leaving the release of
the Memoranda to the National Archives after a minimum waiting period of five years.
Thank you for your attention to these matters. We would be happy to
answer any questions that you have.
Sincerely,
&, c:.. <;, DQl Js~rft4lc..
Eric S. Goldstein
cc: Brad S. Karp, Esq.
Confidential Treatment Requested by JPMorgan
@FedFRASER