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42.

As publicly reported in the Wall Street Journal (and not denied by Mr.

c s e y at his deposition), the United States Attorney’s‘Officefor the Eastern District of

New York investigated the sale of ARS by Lehman, including the sale of such securities

to Essex, during Mr. Casey’s tenure.

43.

Mr. Casey testified that he supervised all securities fraud investigations at

the U.S. Attorney’s Office for the Eastern District of New York, see Casey Dep., Exhibit

E, p. 77, and there is no doubt he conducted andor supervised the Lehman Investigation.

I

That is demonsqated by, among other things, the fact that, among others, subpoenas

upi’

requiring three of the Petitioners to give testimony before a grand jury were issued under

his name.

44.

Recause the criminal Investigation encompasses, among others, the s m e

transactions arid securities at issue in {liepending A r btration, the iiifurrnation Mr. Cascy

acquired as part of the Investigation is material to the Arbitration.

45.

Under the circuinstances, under governing New York law, no screen can

be effective to avoid imputed disqualificationof the Firm.

The Screen CannotBe Effective In Any Event Because Of The Size And Structure Of K&K

46.

Rule

1.11

of

the

New

York

Rules

of

Professional

Conduct,

entitled

“Special Conflicts of Interest for Former and Current Government Officers and

Employees,” addresses the issue of law firm disqualification when a former government

attorney now working at a law fim is himself disqualified fiom working on a matter.

The Rule provides that when a former government lawyer is disqualified from working

on a matter so too is his law firmunless the law finnhas (a) promptly and reasonably

implemented an erective screen md @) promptly and reasonably given written notice to

12

Supreme Court Records OnLine Library - page 15 of 22

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