EFTA01150049.pdf

1 *** UNCERTIFIED ROUGH DRAFT *** 2 UNCERTIFIED TRANSCRIPT DISCLAIMER 3 IN THE MATTER OF 4 5 6 FORTRESS 7 8 -against- 9 10 ZWIRN 11 12 13 14 The following transcript of 15 proceedings, or any portion thereof, in 16 the above-entitled matter, taken on any 17 date, is being delivered unedited and 18 uncertified by the official court 19 reporter. 20 The purchaser agrees not to 21 disclose this UNCERTIFIED and UNEDITED 22 transcript in any form (written or 23 electronic) to anyone who has no 24 connection to this case. This is an 25 unofficial transcript, which should NOT be *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150049  2 1 *** UNCERTIFIED ROUGH DRAFT *** 2 relied upon for purposes of verbatim 3 citation of testimony. 4 This transcript has not been 5 checked, proofread, or corrected. It is a 6 draft transcript, NOT a certified 7 transcript. As such, it may contain 8 computer-generated mistranslations of 9 stenotype code or electronic transmission 10 errors, resulting in inaccurate or 11 nonsensical word combinations, or 12 untranslated stenotype symbols which 13 cannot be deciphered by non-stenotypists. 14 Corrections will be made in the 15 preparation of the certified transcript, 16 resulting in difference in content, page, 17 and line numbers, punctuation, and 18 formatting. 19 This uncertified and unedited 20 transcript contains no appearance page, 21 certificate page, index, or certification. 22 23 24 25 *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150050  3 1 *** UNCERTIFIED ROUGH DRAFT *** 2 THE VIDEOGRAPHER: My name is 3 Marc Friedman of Veritext New York. 4 The date today is June 14, 2011. The 5 time is approximately 9:13 a.m. 6 This deposition is being held in 7 the office of Susman Godfrey located 8 at 560 Lexington Avenue, New York, New 9 York. The caption of this case is 10 Fortress VRF 1, LLC and Fortress Value 11 Recovery Fund 1, LLC versus Jeepers, 12 Inc., et al. in the JAMS arbitration 13 reference number 1425006537. 14 The name of the witness is 15 Daniel Zwirn. 16 At this time the attorneys will 17 identify themselves after which time 18 our court reporter, Wayne Hock of 19 Veritext, will swear in the witness 20 and we can proceed. 21 MR. SIFFERT: John Siffert, 22 Lankler Siffert and Wohl for the 23 witness. 24 MR. REYNOLDS: Daniel Reynolds 25 also from Lankler Siffert and Wohl. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150051  4 1 *** UNCERTIFIED ROUGH DRAFT *** 2 MR. LEE: Andrew Lee also from 3 Lankier Siffert and Wohl. 4 MR. SCHWARTZ: William Schwartz 5 from Cooley, LLP for the Zwirn 6 entities. 7 MR. O'BRIEN: Bill O'Brien also 8 of Cooley. 9 MR. ARFFA: I'm Allan Arffa from 10 Paul, Weis, Rifkind, Wharton and 11 Garrison, LLP. We represent the 12 claimants in this proceeding. 13 MS. SHOLL: Hannah Sholl also 14 from Paul Weiss. 15 MEGAN JOHNSON: Megan Johnson 16 from Fortress. 17 MR. SUSMAN: Steve Susman and 18 Seth Ard are here representing Jeepers 19 and FTC. And Jeffrey Epstein is here. 20 21 22 EXAMINATION BY 23 MR. SUSMAN: 24 Q. Would you please state your full 25 name for the record. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150052  5 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. Daniel Bernard Zwirn. 3 Q. Mr. Zwirn, how old a man are 4 you? 5 A. Thirty-nine. 6 Q. Where do you live? 7 A. New York City. 8 Q. Where in New York City? 9 A. 3 East 84th Street, apartment 10 four. 11 Q. How long have you lived there? 12 A. About a year. 13 Q. And where did you live before 14 then? 15 A. 800 Fifth Avenue, apartment 20F. 16 Q. How long were you there? 17 A. Two years. 18 Q. Do you have any other homes 19 currently than the one on East 94th Street 20 (sic)? 21 A. No, I don't. 22 Q. You have testified I know a 23 number of times before the Securities and 24 Exchange Commission related to the matters 25 we're going to talk about today. * * * UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150053  6 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Have you given your testimony 3 other than that before under oath either 4 in court or at deposition in any other 5 kind of matter? 6 A. Yes. 7 Q. What kind and when? 8 A. Do you want me to list them 9 or 10 Q. Yes, sir. 11 A. There was a transaction in which 12 my former firm was involved where there 13 was a leasing transaction. There was a 14 case of some two former employees of my 15 former firm. There was a lending 16 transaction in some entertainment assets 17 in which my former firm was involved. 18 Q. Excuse me, let me just stop you 19 one second. 20 A. Okay. 21 Q. The former firm, what firm are 22 you referring to? 23 A. DB Zwirn and Company. And I was 24 in the -- 25 Q. DB Zwirn and Company? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150054  7 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. Just to be clear, in the first 3 and third situations, I was helping our 4 funds -- 5 Q. I'm sorry, could you speak up a 6 little? 7 A. Sure. 8 In the first and third 9 situations I referenced, I was called to 10 help our funds. In the second one, it was 11 with regard to the management company of 12 DB Zwirn and Company. 13 Q. Give me the first one again. 14 Where was that case pending? 15 A. I don't know. 16 Q. Was it a case in court or was it 17 an arbitration? 18 A. It was two different depositions 19 regarding the leasing transaction. I'm 20 not sure -- I don't know the circumstances 21 of that sort. 22 Q. Who was the opposing party? 23 A. In the first instance within 24 that situation, I believe it was a 25 trustee, but I don't recall. And then the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150055  8 1 *** UNCERTIFIED ROUGH DRAFT *** 2 second instance -- 3 Q. The first -- 4 A. In the second instance with 5 regard to the first situation 6 Q. I'm not even sure I understand 7 what the situation was. 8 What situation were you talking 9 about? 10 A. It was a leasing transaction. 11 Q. With whom? Between whom? 12 A. Some of my -- of the entities 13 that my former firm managed had invested 14 in a lease transaction with one or two 15 businesses in New Jersey. 16 Q. What were the entities that your 17 former firm managed that were involved in 18 this leasing transaction? 19 A. I don't recall which of the 20 specific funds was invested in it or 21 accounts. 22 Q. You have no idea what those 23 entities were; is that right? 24 A. It was -- we managed several 25 different entities. I just don't recall *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150056  9 1 *** UNCERTIFIED ROUGH DRAFT *** 2 which entities were involved. It was many 3 years ago. 4 Q. What entities did you manage? 5 A. It depends on the time. 6 Q. The firm in question, your 7 former firm was DB Zwirn and Company? 8 A. That was generally -- that's a 9 reasonable way to call the management 10 company, but there were other entities 11 that were generally referred to as the 12 management company. But DB Zwirn and 13 Company is a fair way to put it. 14 Q. And DB Zwirn and Company, is 15 that a limited partnership or an LLC? 16 A. By the way, that was -- that 17 also depends on the time. That was after 18 early '04. It was DB Zwirn and Company, 19 LP and DB Zwirn Partners, LLC. Before 20 that it was Highbridge Zwirn Capital 21 Management, LLC, I believe, and Highbridge 22 Zwirn Partners, LLC. And I was also 23 during an earlier a managing director of 24 Highbridge Capital Management. 25 Q. And these former entities that *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150057  10 1 *** UNCERTIFIED ROUGH DRAFT *** 2 you referred to, they were -- what were 3 they leasing? 4 A. I don't recall whether it was a 5 -- what type of lease it was, but they 6 were -- the entities to which I referred 7 managed funds or other entities with 8 capital that invested in leases for 9 various types of computer equipment. 10 Q. Were these -- were the funds, 11 the entities that you were managing the 12 claimants or the plaintiffs in that 13 dispute? 14 A. In the -- in the first instance, 15 those fund entities were managed entities 16 were creditors of the estate. 17 In the second one, in the second 18 instance within that situation that was 19 more recent, I believe, they were I guess 20 Plaintiffs in the situation. I don't know 21 the legal specifics. 22 Q. Okay. 23 And when was your testimony in 24 that matter, the one involving the leasing 25 transaction? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150058  11 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. In the first instance, it was 3 several years ago, between three, four 4 years ago, something like that. I just 5 don't recall. 6 Q. When? 7 A. And when in the second instance 8 of that first situation, it was last week. 9 Q. You testified last week? 10 A. Uh-huh. 11 Q. Was it in court or in a 12 deposition? 13 A. Deposition. 14 Q. And that was -- was it the same 15 case? 16 A. It was regarding the same 17 ultimate borrower, but I don't think it 18 was the same case. But I just don't 19 it's been -- I don't manage the entities 20 any more. I just don't know. 21 Q. And so the testimony you were in 22 last week, who took your deposition? 23 A. An attorney. 24 Q. Which attorney? 25 A. I don't recall his name. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150059  12 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Q. Who did he represent? 3 A. A company called Cincom. 4 Q. Spell that, please. 5 A. I don't know -- I really don't 6 recall how to spell it. C I N C O M. 7 Q. What's that? 8 A. PerhapsCINCO M. 9 Q. Cinton (sic)? 10 A. Sin come, C I N, as in Nancy, C 11 as in cat, O M, as in Mary. Again, I 12 think that's the spelling, but I just 13 don't recall. 14 MR. SIFFERT: Mr. Susman is 15 having difficulty hearing, so if you 16 could keep your voice up, that would 17 help. 18 THE WITNESS: Okay. 19 Sorry. 20 Q. Okay. 21 And the first testimony you gave 22 was in a deposition, also; correct? 23 A. Yes, I believe so. 24 Q. And what was in what year? 25 A. As I said, I just don't recall. * * * UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150060  13 1 *** UNCERTIFIED ROUGH DRAFT *** 2 I would guess perhaps four years ago, 3 three years ago. I just don't recall. 4 Q. Okay. 5 Those are two separate occasions 6 you've testified. 7 What's -- has there been a 8 third? 9 A. Well, going back to my previous 10 answer, there was an employee case with 11 regard to the management companies. 12 Q. Who were the employees? 13 A. Susan Chen and Todd Dittmann. 14 Q. Susan? 15 A. Chen, C H E N, and Todd 16 Dittmann, DITTMAN N. 17 Q. Who had they been employees of? 18 A. The management company of my 19 former firm. 20 Q. Of DB Zwirn and Company? 21 A. Yes, or its affiliates. 22 Q. Okay. 23 And what were they suing -- they 24 were suing that former company? 25 A. I believe so. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150061  14 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Q. For what? 3 A. I don't recall their complaint. 4 Q. Was your testimony in a 5 deposition? 6 A. Yes, I believe so. 7 Q. When was that deposition taken? 8 A. Maybe a year and a half or two 9 years ago. Maybe more. I just don't 10 recall. 11 Q. And has there been any other 12 testimony either in a deposition or in 13 court or to an enforcement agency or 14 arbitration? 15 A. There was another lending 16 transaction that I had previously 17 referenced for a company, a series of 18 companies in the entertainment area. 19 Q. All right. 20 What can you tell us about that 21 matter? 22 A. Again, it was with regard to a 23 borrower of some of the -- of money from 24 some of the entities that I had been 25 involved in managing through the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150062  15 1 *** UNCERTIFIED ROUGH DRAFT *** 2 management company. 3 MR. ARFFA: Could I hold on a 4 second and take a break. 5 THE VIDEOGRAPHER: Stand by. 6 The time is 9:27. We are going 7 off the record. 8 (Whereupon a break was taken) 9 THE VIDEOGRAPHER: The time is 10 9:29. We are back on the record. 11 MR. ARFFA: Let me just say on 12 the record we believe there's a 13 confidentiality order with respect to 14 the last matter that was just 15 referenced, so to the extent I have 16 the ability to designate that as 17 confidential under our order that 18 testimony, I may so -- I do so right 19 now. 20 MR. SUSMAN: Oh, does that solve 21 the problem? Can I then ask him about 22 it? 23 MR. ARFFA: No, because I think 24 the way the order works he's not 25 supposed to be testifying about that *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150063  16 1 *** UNCERTIFIED ROUGH DRAFT *** 2 at all. 3 MR. SUSMAN: He can't even 4 testify that he -- 5 MR. ARFFA: Well, you already 6 have that, that fact. 7 MR. SUSMAN: Generally the matter 8 is? If you're making the 9 representation, Mr. Arffa, that he is 10 prevented by some confidentiality in 11 the matter by describing that he was 12 testifying in a lawsuit between A and 13 B and what that lawsuit was about, I 14 will not ask him any other questions. 15 But I will ask to see the 16 confidentiality order and then, if you 17 are wrong, we may have to talk to him 18 again. 19 MR. ARFFA: My point is I don't 20 have the order with me so I'm not sure 21 of the exact terms. I didn't have a 22 problem so far with his just saying he 23 testified and he gave you a very 24 generally description of what the 25 matter involved. I think that's fine. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150064  17 1 *** UNCERTIFIED ROUGH DRAFT *** 2 MR. SUSMAN: Why don't we leave 3 at this. I'm coming back to the 4 matter after lunch, so why don't you 5 get the order for us and then that 6 will guide me on how far I can 7 inquire. 8 MR. ARFFA: I will attempt to do 9 so. 10 MR. SUSMAN: Okay. So I'll come 11 back to that. 12 Q. Was there any other matters that 13 you have testified in? 14 A. Not that I recall. Oh, oh, 15 wait, wait, auto I'm sorry. With regard 16 to 9 former CFO of our management company. 17 Q. With regard to -- 18 A. There was a case regarding the 19 former CFO of our management company. 20 Q. That's Mr. Gruss? 21 A. Yes. 22 Q. You testified in that matter? 23 A. Yes. 24 Q. In a deposition? 25 A. Yes, I believe so. * * * UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150065  18 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Q. When did -- was that testimony? 3 A. Within the last year. 4 Q. Is that lawsuit still pending or 5 has it been resolved? 6 A. Still pending, I believe. 7 Q. Any others? 8 A. Not that I can recall. 9 Q. Mr. Zwirn, where are you 10 currently employed? 11 A. I'm not. 12 Q. Are you working these days? 13 A. I spend time, you know, trying 14 to look at new opportunities sometimes or 15 talk to people about different small 16 investments or situations, but nothing 17 that -- I'm not employed or no full-time 18 commitments of any sort. 19 Q. Do you have an office outside of 20 your home? 21 A. I do. 22 Q. Where is your office located? 23 A. It's at 595 Madison, 24 thirty-third floor. 25 Q. What is the name on the door? * * * UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150066  19 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. 595 33, LLC. 3 Q. 595 -- 4 A. Space 33, LLC. It's the lessee 5 of the space. 6 Q. Space 33 LL -- 7 A. LLC, yes. 8 Q. What's the name on the door? 9 A. There is no actual name on the 10 door. I just assumed you meant -- 11 Q. Are you the only one who offices 12 there? 13 A. No, I'm not. 14 Q. Who else offices there? 15 A. Another -- a guy called Todd 16 Meister. 17 Q. Who is Todd Meister? 18 A. He's just a guy I've known since 19 we worked together almost twenty years at 20 Lazard and there are a couple of 21 administrative-type people. 22 Q. Do you do any business with Mr. 23 Meister? 24 A. I have not, no. 25 Q. What business do you understand * * * UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150067  20 1 *** UNCERTIFIED ROUGH DRAFT *** 2 him to be in? 3 A. I would say he's an investor and 4 kind of intermediary of transactions or 5 something like that. I don't really know. 6 I don't really engage with him that much 7 on what he does. I just know him 8 personally. 9 Q. Okay. 10 Do you pay half the rent; is 11 that -- 12 A. About half. We also sublet to 13 David Lee, a former employee of mine. 14 Q. He also what? 15 A. We also sublet an office space 16 to David Lee, a former employee of mine. 17 And he does his own stuff. 18 Q. David Lee? 19 A. Uh-huh. 20 Q. He offices there, too? 21 A. Yes. 22 MR. SCHWARTZ: Can I ask Mr. 23 Zwirn to speak up, please? 24 THE WITNESS: Sure. 25 Q. Is Mr. Lee still employed by *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150068  21 1 *** UNCERTIFIED ROUGH DRAFT *** 2 you? 3 A. No, he's not. 4 Q. Is he still employed by any 5 companies you have been associated with? 6 A. No, he is not. Not that I know 7 of. 8 Q. Are you in the process of 9 raising a fund? 10 A. No, I'm not. 11 Q. Is Mr. Meister, to your 12 knowledge? 13 A. Not that I know of. 14 Q. Or Mr. Lee? 15 A. I'm not sure what he's doing. 16 Q. You don't have any idea what Mr. 17 Lee is doing today for a living? 18 A. I know he talks to different 19 companies. I know he advised some sort of 20 telecom company on some capital raising 21 alternatives or something like that. 22 Q. But you -- other than that, you 23 don't know the source of his income today? 24 A. No, I don't. 25 Q. Let me show you what's been *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150069  22 1 *** UNCERTIFIED ROUGH DRAFT *** 2 marked as -- by the way, do you have a 3 home in Quogue? 4 A. I do not own a home in Quogue. 5 Q. Do you rent one there? 6 A. No, I don't. 7 MR. O'BRIEN: Can I just ask, has 8 Exhibit 86 already been marked? 9 MR. SUSMAN: I'm told it has not 10 been marked. Mr. Ard is the one who 11 gave me that, who did the telling. 12 MR. ARD: That's correct. It's 13 on that sheet as being marked. 14 MR. SIFFERT: Shouldn't it be 15 with the real tag? 16 MR. ARD: I think he's marking it 17 now with the real tag. 18 MR. SUSMAN: I'm sorry, what I'll 19 do is I have them previously marked. 20 I'll hand them to the witness. When 21 he's done with them, he'll hand it to 22 the reporter and the reporter will put 23 a sticker on them to just save the 24 time. 25 MR. SIFFERT: That's fine. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150070  23 1 *** UNCERTIFIED ROUGH DRAFT *** 2 MR. SUSMAN: I'll try to get 3 these numbered in a way that -- 4 THE WITNESS: So is this not 5 Bates stamp. 6 MR. SIFFERT: It is Bates stamped 7 but it's not been previously marked at 8 a deposition. 9 Q. Do you recognize -- this is a 10 confidential memo copy number 001 that was 11 sent to Mr. Epstein in April of 2002 by 12 Highbridge Capital Management, LLC. 13 And you recognize this document; 14 do you not, sir? 15 A. I don't recall the document 16 being sent or -- but I recognize it. It 17 looks like the original offering memo. 18 Q. Okay. 19 I'm just going to use it to ask 20 you some questions about how this all got 21 going. 22 When did you first meet Glenn 23 Dubin? 24 A. Summer of 2001. 25 Q. In 2001? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150071  24 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. Summer of 2001, roughly. 3 Q. Where did you meet him? 4 A. In his office. 5 Q. What was the occasion for your 6 meeting him? 7 A. One of his employees wanted to 8 introduce me to him. 9 Q. And did you discuss with him on 10 that occasion going to work for Highbridge 11 Capital Management? 12 A. I just I don't recall the 13 specifics of the conversation. 14 Q. At the time you met with Mr. 15 Dubin for the first time where were you 16 working? 17 A. MSD Capital. 18 Q. Okay. 19 Did there come a time when you 20 joined Mr. Dubin's company? 21 A. Yes. 22 Q. When was that? 23 A. September of 2001. 24 Q. Okay. 25 And what position did you have *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150072  25 1 *** UNCERTIFIED ROUGH DRAFT *** 2 when you joined his company? 3 A. Managing director. 4 Q. And the company -- it was a 5 managing director of what company? 6 A. Highbridge Capital Management. 7 Q. And in that capacity, what did 8 you do when September of '01 and up to 9 April, '02? Let's focus on that period. 10 A. I began -- I took the securities 11 exams, seven and sixty-three, for their -- 12 that they wanted employees to do. I began 13 interviewing people and began investing 14 some amount of capital from their main 15 fund. 16 Q. Their main fund being? 17 A. I believe it was called 18 Highbridge Capital Corporation. 19 Q. Now, when did -- when was it 20 decided to -- how did Highbridge Zwirn 21 Special Opportunities Fund, LP come about? 22 A. I think in early 2002 we created 23 a separate management company, Highbridge 24 Zwirn Capital Management, LLC, with a view 25 toward raising funds that would invest in *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150073  26 1 *** UNCERTIFIED ROUGH DRAFT *** 2 the same types of things -- additional 3 funds that would invest in the same types 4 of things I was investing in with 5 Highbridge Capital. 6 Q. And that was created when, in 7 January, '02? 8 A. Early '02. I don't remember the 9 month. 10 Q. Highbridge Capital Management, 11 LLC, when it was set up, who was the 12 managing member? 13 A. You mean Highbridge Zwirn 14 Capital Management, LLC? 15 Q. Yes, HZCM. 16 A. HZCM. 17 I don't recall the entity's 18 structure. 19 Q. Do you recall who owned a piece 20 of it? 21 A. Me, Glenn Dubin, and Henry 22 Swieca. In their case I believe it was an 23 entity that they controlled. I don't know 24 that they were the only investors in that 25 entity. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150074  27 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Q. How much did you own? 3 A. Half. 4 Q. 50/50? 5 A. I believe so, yeah. 6 Q. And were you going to be the 7 person that was going to run this 8 management company? 9 A. I was going to select 10 investments for it but strategically on 11 the strategic decisions, key hires, and 12 things of that sort and capital raising, I 13 worked mostly with Glenn. 14 Q. Now, was the Highbridge Zwirn 15 Special Opportunities Fund, LP and there 16 was a -- can we all that the onshore fund? 17 Okay? 18 A. Okay. 19 Q. There was an offshore fund, too, 20 created at the same time? 21 A. I don't know that it was exactly 22 the same time, but around that time. 23 Q. Do you know which came first? 24 A. I don't recall. 25 Q. We'll call that the offshore *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150075  28 1 *** UNCERTIFIED ROUGH DRAFT *** 2 fund. 3 Other than those two funds, were 4 any other funds set up in 2002 which were 5 going to be managed by HZCM? 6 A. Not that I recall, other than of 7 course the capital from Highbridge which 8 was channeled through an entity called 9 HCM/Z I forgot what. But it was a 10 subsidiary of Highbridge Capital 11 Corporation. 12 Q. Let's take a look at page JE 228 13 of the document I've just given you. 14 MR. SIFFERT: That's number 15 eighty-six. 16 A. And to be clear, you said 2002. 17 I don't recall it -- whether we began 18 investing for Highbridge Capital 19 Corporation in '01. I'm not sure when the 20 CMZ Specialty Opportunities, LLC was 21 created, '01 or '02. 22 Q. Do that again? 23 A. You asked me which -- were there 24 any other entities created other than 25 onshore fund and offshore fund in 2002. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150076  29 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Q. Right. 3 A. So there was an entity called 4 HCM/Z Special Opportunities. I'm not sure 5 whether it was formed in 2001 or 2002. It 6 was a subsidiary of Highbridge Capital 7 Corporation or potentially another entity 8 of Highbridge called Highbridge 9 International. I don't recall. And I 10 don't recall whether it was formed in 2001 11 and 2002. Or 2002. 12 Q. But it was formed before the 13 onshore and offshore funds were formed? 14 A. We were investing on behalf of 15 Highbridge before that, before the onshore 16 and offshore funds were started. I 17 believe the entity, that entity was 18 created before that time but I couldn't be 19 sure. We may have invested directly into 20 the Highbridge funds and then Highbridge 21 put those investments in that entity. 22 Either way it was Highbridge Capital 23 Corporation money in some form. 24 Q. If you will look at the last 25 paragraph of this page you're looking at, *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150077  30 1 *** UNCERTIFIED ROUGH DRAFT *** 2 it says, "the fund intends to establish 3 its initial portfolio by purchasing 4 investments from HCM/Z Special 5 Opportunities, LLC, the HCC subsidiary, a 6 Cayman Islands limited liability company 7 which is a subsidiary of Highbridge 8 Capital Corporation, a collective 9 investment fund managed by HCM." 10 So it's your recollection that 11 HCM/Z Special Opportunities, LLC was -- 12 how long after you -- well, let me ask 13 that. 14 You don't recall when it was set 15 up; right? 16 A. I do not. I believe 2001 or 17 2002. 18 Q. Okay. 19 And did you have any ownership 20 in that entity? 21 MR. SIFFERT: Which entity? 22 MR. SUSMAN: The HCC subsidiary. 23 A. No. 24 MR. SIFFERT: That's the HCM/Z? 25 MR. SUSMAN: Huh? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150078  31 1 *** UNCERTIFIED ROUGH DRAFT *** 2 MR. SIFFERT: You're referring to 3 HCM/Z. 4 MR. SUSMAN: Special 5 Opportunities, LLC. 6 MR. SIFFERT: And the question is 7 did Mr. Zwirn have any ownership 8 interest in HCM/Z? 9 MR. SUSMAN: Correct. 10 A. No. 11 Q. And did you make -- before April 12 of '02, were you making investment 13 decisions for it? 14 A. As I said, we were making 15 investments starting in late '01 on behalf 16 of Highbridge. Whether they were through 17 HCM/Z, the HCM/Z entity or not, I just 18 don't recall. 19 Q. Do you know why this HCM/Z 20 special opportunities, LLC was set up? 21 A. I don't recall. 22 Q. But you never had -- did you 23 have any kind of indirect ownership in 24 that entity? 25 A. I don't know what you mean by *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150079  32 1 *** UNCERTIFIED ROUGH DRAFT *** 2 that. 3 Q. You owned no interest in that 4 entity? 5 A. No, I did not. 6 Q. Let's go to DB Zwirn and 7 Company, LLC. 8 MR. SIFFERT: Are we done with 9 eighty-six? 10 MR. SUSMAN: No, we're not. 11 Q. You were the managing member as 12 of April, '02? 13 A. I don't recall the structure. 14 I'm reading it here so I have no reason to 15 believe that wasn't the case. 16 Q. Okay. 17 A. But I don't know that that has 18 anything to do with what became DB Zwirn 19 and Company, LP. As I sit here today, I 20 just don't recall. 21 Q. Were there other members of DB 22 Zwirn and Company, LLC other than you? 23 A. I just don't know how that 24 worked at that time. I don't recall. 25 Q. Do you recall -- it was a *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150080  33 1 *** UNCERTIFIED ROUGH DRAFT *** 2 company. 3 Were there any officers or 4 directors of the company other than you 5 that you recall? 6 A. When? 7 Q. Back in 2002. 8 A. We began hiring people. I don't 9 know that any of those people were 10 officers of that, but I just don't recall 11 how it was structured. 12 Q. Okay. 13 This says that DBZ was the 14 managing member of Highbridge Zwirn 15 Partners, LLC which is referred to it says 16 as HZP or as the general partner. 17 Do you see that? 18 A. Or -- I don't see that. 19 Where are you talking about? 20 Q. I'm reading from the second -- 21 the middle paragraph on the page we're 22 looking at. 23 A. Okay. 24 Q. HZP or the general partner is 25 the fund's general partner. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150081  34 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Okay? 3 A. HZP. Okay. I see that. 4 MR. O'BRIEN: Is that HZP, Z as 5 in zebra? Because I think the 6 reporter is getting it down as a C. 7 MR. SIFFERT: We're going to have 8 to show the reporter this because the 9 initialing is all wrong throughout. 10 Q. When this was set up, who were 11 the other members, who else had an 12 ownership interest in HZP other than DB 13 Zwirn and Company? 14 A. To the extent that that or the 15 other one, HZCM was managing the outside 16 funds and being compensated for doing so, 17 as a general matter in some form, Glenn 18 and Henry had half and I had half. Again, 19 I just don't recall the mechanics of this. 20 Q. Okay. 21 And did -- and then there was an 22 entity called Highbridge Zwirn Capital 23 Management, an LLC, the trading manager, 24 and again that was a 50/50 ownership, as 25 you recall? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150082  35 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. What I said was to the extent 3 that the outside funds were compensated 4 for being managed, my general 5 understanding is Glenn and Henry in some 6 form their entity had half and I had half. 7 Again, I don't recall how the legal 8 structure worked. 9 Q. Okay. 10 Now, did there come a time when 11 there were other owners or members added 12 to either Highbridge Zwirn Partners or 13 Highbridge Zwirn Capital Management? 14 A. I don't recall whether these 15 specific entities had additional members 16 added. As a general matter over time in 17 terms of the entities that were paid to 18 manage the outside funds, there were 19 additional people that were added as 20 owners. 21 Q. Okay. 22 So you say there were different 23 people added to the trading manager over 24 time? 25 A. Again, I don't recall. Trading *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150083  36 1 *** UNCERTIFIED ROUGH DRAFT *** 2 manager I think was a Highbridge kind of 3 construct. I just don't recall the 4 structure. I'm just trying to make it 5 simple and say in terms of the owners of 6 the management company or companies that 7 managed the funds, additional owners were 8 added. Whether it was the trading manager 9 or not or whether it was called Highbridge 10 Zwirn Capital Management at the time or 11 not I just don't recall. 12 Q. Who was added? 13 A. In terms of people who were 14 added over time to the ownership group, 15 those people included Chris Suan, Vasan 16 Kesavan. 17 Q. Chris Suan what? 18 A. Chris Suan, S U A N, Vasan 19 Kesavan, and Perry Gruss at some point. 20 Q. And do you recall who 21 percentages of ownership each of them had? 22 A. I don't recall the specific 23 numbers. I would say probably less than 24 five. 25 Q. Less than five for each of them *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150084  37 1 *** UNCERTIFIED ROUGH DRAFT *** 2 or collectively? 3 A. Each of them. And they may have 4 changed over time. I don't recall. 5 Q. Did you have any ownership 6 interest in Highbridge Capital 7 Corporation? 8 A. No. 9 Q. There was a -- at some point in 10 time Highbridge Zwirn Capital Management 11 or the manager, it's called here the 12 trading manager, handled a what's called a 13 managed account for Highbridge. 14 Do you know what that refers to? 15 A. There was a time I guess 16 starting in 2004 in conjunction with our 17 moving offices where Highbridge wanted to 18 change the structure because of their 19 internal reasons and at that point I 20 became -- I stopped being a managing 21 director of Highbridge and became we 22 referred to it as a senior adviser of 23 Highbridge and the capital that was 24 managed on behalf of Highbridge, instead 25 of having a portfolio manager effectively *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150085  38 1 *** UNCERTIFIED ROUGH DRAFT *** 2 who was an employee of Highbridge which 3 would have been me, became a managing 4 account effectively of the management 5 companies that were being -- that were 6 managing the various funds that we were 7 managing. 8 Q. Well, that -- look if you will 9 at page 234 of this document eighty-six. 10 At the top of the page it says, "the 11 non-U.S. fund" -- this is the first full 12 paragraph. "The non-U.S. fund and the HZC 13 subsidiary will be managed using trading 14 strategies generally similar to those the 15 trading manager will use for the fund." 16 Do you see that? 17 A. I do. 18 Q. But the trading manager was not 19 actually managing the HZC subsidiary or 20 was it at that time? 21 A. Well, as I said, I think at that 22 time before the 2004 relocation that I 23 described, I was an employee of Highbridge 24 who was managing the subsidiary. 25 Q. Okay. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150086  39 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. Which was a subsidiary of the 3 Highbridge Capital Corporation. 4 Q. Right. 5 It says the next under general 6 partner, the last sentence says, "the 7 general partner's responsible for the 8 management and administration of the fund 9 generally." And then it says trading 10 manager, "the trading manager" -- last 11 sentence -- "is responsible for all 12 investment activities of the fund." 13 Now, is that, in fact, how it 14 was divided up or did that change? 15 MR. ARFFA: I object to form. 16 A. As I said, I don't recall how 17 the entities were structured at that time 18 beyond what I've said. 19 Q. Do you recall at any point in 20 time -- well, my question is the general 21 partner. 22 Was it, in fact, in practice did 23 this ever handle management and 24 administration of the fund generally 25 itself? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150087  40 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. I don't understand by itself. 3 Q. Well, the trading manager -- 4 A. Okay. 5 Q. -- here Highbridge Zwirn Capital 6 Management is responsible for investment 7 activities of the fund; right? 8 A. I can read it, yes. Barely. 9 Q. Did -- HZCM had employees; 10 correct? 11 A. At this time I believe we were 12 hiring the employees into Highbridge. 13 Q. They were being hired by 14 Highbridge? 15 A. I believe. 16 Q. Okay. 17 Highbridge Capital Management? 18 A. I believe so. 19 Q. Okay. 20 And that's true for the general 21 partner, too, its employees were all hired 22 by Highbridge Capital Management? 23 A. I don't know that the general 24 partner as described here in this case had 25 any employees at this time. But again, I *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150088  41 1 *** UNCERTIFIED ROUGH DRAFT *** 2 just don't recall how it was structured. 3 Q. Fair enough. 4 Now look at Exhibit 93. 5 A. Am I done with this? 6 Q. Yes. 7 MR. SIFFERT: Is this also a new 8 exhibit? 9 MR. SUSMAN: Yes. 10 MR. SIFFERT: So the reporter 11 will mark it later. 12 Q. Now, this is a redlined version 13 of a confidential offering memo from May, 14 2005 and I want you to look at page 2999 15 because obviously the structure changed 16 and this may help us discuss what changes 17 took place. 18 Okay, Mr. Zwirn? 19 A. Okay. 20 Q. If you look at the second full 21 paragraph, DB Zwirn Partners, LLC. 22 Now, that is the -- DBZP or the 23 general partner is the fund's general 24 partner. 25 Okay? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150089  42 1 *** UNCERTIFIED ROUGH DRAFT *** 2 A. Okay. 3 Q. And Zwirn Holdings, LLC is the 4 fund's manager. I'm sorry, DB Zwirn and 5 Company, LP was the fund's manager. 6 Do you see that? 7 A. I do see it. 8 Q. Okay. 9 And so this was just a change in 10 the entities that did these functions? 11 MR. SIFFERT: Objection as to 12 form. 13 A. I don't understand. 14 What's the question? 15 Q. Huh? 16 MR. SIFFERT: He said he didn't 17 understand the question is what he 18 said. 19 Q. Okay. 20 Under the original onshore fund, 21 the general partner was something called 22 Highbridge Zwirn Partners, LLC. Now it is 23 changed to DB Zwirn Partners, LLC. 24 Okay? 25 A. Yes. Again, I heard you say * * * UNCERTIFIED ROUGH DRAFT COPY ONLY *** EFTA01150090  43 1 *** UNCERTIFIED ROUGH DRAFT *** 2 that. I don't kn