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During a hearing for the Incora adversary trial earlier this week, Judge Marvin Isgur said he was “very concerned” with potential inconsistencies between testimony from an investment banker and evidence presented during cross examination.

Roopesh Shah, a managing director at Evercore, took to the witness stand in the US Bankruptcy Court for the Southern District of Texas on Tuesday in another day of testimony on Incora. The case focuses on legal disputes related to a 2022 uptiering transaction carried out by the Platinum Equity-backed aerospace supplier.

The case has pitted Wall Street heavyweights against each other. JPMorgan, BlackRock, PSAM and a King Street affiliate are among firms that lost out in the transaction and sued over it, while the likes of PIMCO, Silver Point and Carlyle benefitted from the deal.

Shah represented PIMCO and Silver Point in the uptiering deal at the center of the case.

During his direct examination in court, Shah testified that he was aware of a minority group of Incora noteholders that was negotiating with the company in parallel with his clients. But he also said he didn’t know the specifics of any transaction proposed by that minority group.

That testimony aligns with Shah’s deposition to Zachary Rosenbaum, a Kobre & Kim lawyer representing the ad hoc group of excluded 2024/2026 noteholders. In that deposition, which Rosenbaum cited during the cross examination, Shah said he was not aware that the details of those proposals had been shared with him or anyone at Silver Point or PIMCO.

However, in an email exchange produced as evidence by Rosenbaum, Silver Point managing director Jason Prager told colleagues that “advisors” to Silver Point had learned the specifics of a proposal coming from the minority group. Rosenbaum read an excerpt from Prager’s email detailing a drop-down transaction that would put up $100m of “low-cost new money” and would be liquidity-neutral compared to PIMCO and Silver Point’s transaction.

Evercore was among the advisors to Silver Point on the transaction, although it was not clear from the email excerpt which advisors Prager was referring to specifically. Rosenbaum also specified that Shah was not included on the email.

When Rosenbaum pressed Shah as to whether he knew the details of the transaction included in the email, the banker said he did not. When asked if the email jogged his memory, Shah said that it did not.

”I don’t know when I became aware of the general concepts,” Shah said. He said the nature of the proposed transaction had been “alluded to” by Incora’s advisor, for but said he could not recall when that was.

Rosenbaum then asked another question: was Shah was aware of the details in Prager’s email when he testified at his deposition that he didn’t have substantive knowledge of the minority group’s proposal?

”Were you telling the truth at your deposition?” Rosenbaum then asked.

Rosenbaum followed by asking if Shah was aware that Silver Point was in direct communication with counsel for Incora during the time of the email. When a lawyer objected to that question, Judge Isgur spoke up.

“That is not an objection. I heard the witness’s testimony today, and I think it’s totally inconsistent with what I’m seeing here,” Judge Isgur said. “So I’m very concerned about what we’re hearing. We’re going to let him continue to answer questions.”

Despite the judge’s intervention, the topic of these inconsistencies was not followed up. The hearing continued for approximately another hour and a half. Evercore and Shah did not respond to requests for comment.

The trial continued Wednesday with testimony from Samuel Dostart, a portfolio manager with PIMCO. He is on the witness stand again today.

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Incora judge ‘very concerned’ with potential discrepancy in witness testimony

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