Free Reply to Response to Motion - District Court of Delaware - Delaware

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EXHIBIT 1

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EXHIBIT 2

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EXHIBIT 4

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EXHIBIT 5

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Jeremiah S. Buckley [email protected] ph: 202.349.8000 fax: 202.349.8080

August 1, 2008 VIA FACSIMILE AND EXPRESS MAIL Charles Cope, Esq. Senior Counsel Federal Deposit Insurance Corporation 3501 Fairfax Drive, # D-7022 Arlington, Virginia 22226 Re: First Bank of Delaware v. Federal Deposit Insurance Corp. (D.Del.) Civil Action No. 08-429

Dear Mr. Cope: This will follow up on our telephone conversation yesterday, July 31, 2008. In this conversation, we discussed your letter of July 30, 2008 which (1) denied two requests (dated July 18 and July 29) by the First Bank of Delaware (the "Bank") for a copy of the administrative record on which the FDIC relied when it served on the Bank a Temporary Order to Cease and Desist dated July 3, 2008 ( the "Temporary Order") and (2) informed us that on August 4, 2008, the FDIC intends to file a response to the Bank's July 14, 2008 motion for a preliminary injunction ("Motion"). In the course of our conversation yesterday, I requested that we set a time today when counsel could meet by phone to discuss briefing and discovery matters. You stated that you were unwilling to hold a conference call before you had filed your response to the Bank's Motion. As I stated during our call, and as was indicated in our letter to the Clerk of the Court accompanying the Bank's Motion, the Bank intends to file a brief in support of its Motion and will be asking the Court to set a schedule for briefing on that Motion by the parties. Your response directs the Bank to the Federal Rules of Civil Procedure governing formal discovery and suggests that the FDIC intends to withhold the record -- the basis for the Order that the Bank challenges here -- until formal discovery. If the FDIC intends to file a brief in support of its response to the Bank's Motion before any discovery could possibly be taken, this would short-circuit the normal briefing process, potentially forcing the Bank to argue its Motion without ever having seen the information upon which the FDIC purportedly relied in issuing the Order that the Bank challenges. We believe that any opposing brief submitted by the FDIC to the Bank's Motion is premature and contravenes the Local Rules of the Court. In addition, we do not understand, based on

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your position, how the FDIC concludes that its response is timely. If the FDIC's position is that the time to respond commenced with the Bank's service of the Motion on July 14, 2008, then FDIC's response would be untimely. It is essential to the preparation of the Bank's brief that the administrative record referenced above be supplied to the Bank, and the Bank is entitled to such record, Parker v. Ryan, 959 F.2d 579, 583 (5th Cir. 1992). Because an important element of the the Court's decision whether to grant the Bank's Motion will be a finding that the Bank would have a reasonable probability of success on the merits, the Bank in briefing this issue needs to have all the information that the FDIC had available to it on July 3, 2008 in making its Findings of Fact and Conclusions of Law before issuing the Temporary Order. In addition, a protective order regarding the confidential materials to be produced by the parties in discovery has not yet been agreed to by the parties and entered by the Court. This underscores the necessity of all parties conferring to address discovery and briefing schedules. With respect to the language for a protective order in this case, the language developed with Ms. Marguerite Sagatelian of your office for the current administrative law case involving the Bank and the FDIC would seem to provide a good model for an order in this case, subject to appropriate modification. We look forward to discussing this with you at your earliest convenience. By this letter, we renew our request for a conference call at your earliest convenience so that, consistent with Fed. R. Civ. P. 26(f) and D. Del. R. 7.1.1, we can reach an agreement on proposed joint motions for a status conference, expedited discovery, a briefing schedule, and a hearing date. Very truly yours,

Jeremiah S. Buckley cc: Thomas Holzman, Esq. Ashley Doherty, Esq. A.T. Dill, Esq. Marguerite Sagatelian, Esq. Edmond D. Johnson, Esq.

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