Free Motion to Expedite - District Court of Colorado - Colorado

Case 1:04-cv-01225-MSK-BNB

Document 211

Filed 10/26/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 04-cv-1225-MSK-BNB (Consolidated with 04-cv-1226-MSK-BNB)

MALIK M. HASAN, M.D., an individual; and SEEME G. HASAN, an individual, Plaintiffs, v. GOLDMAN SACHS 1998 EXCHANGE PLACE FUND, L.P., a Delaware limited partnership; GOLDMAN SACHS 1999 EXCHANGE PLACE FUND, L.P., a Delaware limited partnership; GOLDMAN SACHS MANAGEMENT PARTNERS, L.P., a Delaware limited partnership; GOLDMAN SACHS MANAGEMENT, INC., a Delaware corporation; THE GOLDMAN SACHS GROUP, INC., a Delaware corporation; GOLDMAN, SACHS & CO., a New York limited partnership; JOHN DOES 1-100, individual persons whose true identities are unknown; and LENDER PARTIES 1-100, business entities whose true identities are unknown, Defendants. T EN ME D F N A T ' T O F R H A D E E D N S MO I N O EXPEDITED CONSIDERATION OF MOTION FOR PRECLUSION

The Named Defendants respectfully move the Court for expedited consideration fT e o "h Named Defendants' t n Preclusion an Ohr ee ( t n o Pel i "fe Mo o for i d t R lf " i fr r u o )id e i " Mo o csn l October 18, 2005 (Doc # 200). The Named Defendants seek expedited consideration of the Motion prior to the trial scheduled for November 9-10, 2005, in order to narrow the issues for trial and to reduce the time and expense associated with the trial. The Named Defendants certify that on October 25, 2005, pursuant to D.C.COLO.LCivR 7.1(A), their counsel discussed this Motion and the relief requested with counsel for the

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plaintiffs. Plaintiffs oppose this Motion and expedited consideration. As grounds for this Motion, the Named Defendants state: 1. Plaintiffs'deadline to respond to the Motion for Preclusion is November 10,

2005. Absent expedited consideration, the Motion will not be decided before the November 910, 2005 trial date. 2. The N m dD f dn 'Motion for Preclusion seeks, among other relief, to a e e nat e s

preclude plaintiffs from defending against arbitration pursuant to the arbitration provisions in the Limited Partnership Agreements due to discovery and other misconduct of plaintiffs in the course of this litigation, as more particularly stated in the Motion. The relief, if granted, would narrow the issues to be decided at the November 9-10 trial, saving the Court and the parties significant time and expense. Among other narrowing and efficiency benefits, the relief would obviate the need for the Court to read at trial the depositions of printers and binders of the subscription books that plaintiffs have falsely asserted they did not receive and/or (in the case of 1998) did not fully execute. The Motion for Preclusion shows that these claims were made in bad faith, and that they have now been conclusively disproven. (Indeed, as noted in the Motion, these pel i s r m na dudr el T n Cr ihl ns needn o p i is r u o a adt ne ste et i u o i i pnet f ln f ' csn e e td h ct dg d a tf misconduct.) 3. The Motion for Preclusion is based on t N m d e nat r eti oe o h a e D f dn 'e nd cvr f e e s c s y

an affidavit filed by Malik Hasan in 1999 in other litigation which, together with a civil cover sheet from that litigation, conclusively proves that Dr. Hasan met with one Morris Sandler on the same floor, and in the same office space, as the notary w ont i dD . aa' s nt e o h o r e rH sns i a r t az g u the Subscription Agreement for his investment in the 1998 Exchange Fund, contrary to Dr.

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H snseet asros Dr. Hasan concealed this meeting and his presence at this address, aa' r a d s t n. p e ei and in this office space, on the day in question, in his discovery responses. As a result of the discovery of that 1999 Hasan affidavit, the Named Defendants located Mr. Sandler and he attested in an affidavit that he introduced Dr. Hasan to the notary and that Dr. Hasan executed the 1998 Subscription Agreement in the presence of the notary. This evidence (indeed, even the 1999 Hasan affidavit and civil cover sheet alone) ptt l t H sns claim that the document u h i o aa' s ee was not notarized in his presence. The Motion is further based on irrefutable forensic evidence f m p i is o nfr s epr that puts thel t p i is c i t t r o ln f ' w oe i xe a tf nc t i o ln f ' lm h they did not e a tf a a expressly warrant that they had received, read, understood, and agreed to the terms of the Private Placement Memorandums and Forms of Limited Partnership Agreements (both of which include arbitration provisions) when they executed the Subscription Agreements for their investments in the 1998 and 1999 Exchange Funds. The p i is o nfr s epr ar i wt t ln f ' w oe i xe , ge n i h a tf nc t eg h e N m dD f dn ' xe , oc ddthat Hasan (1998) and plaintiffs (1999) possessed the a e e nat epr cnl e e s t u pages of the Subscription Agreements containing the aforementioned representations and warranties at the time of their execution of the Subscription Agreements, again contrary to the nm d ln f ' a e p i issworn testimony and assertions before this Court. a tf 4. A proposed form of order granting the relief requested herein is attached for

consideration and entry by the court.

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DATED: October 26, 2005

Respectfully submitted,

s/ Bruce Featherstone Bruce A. Featherstone Matthew D. Collins FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Telephone: (303) 626-7100 Facsimile: (303) 626-7101 E-mail: [email protected] Max Gitter Nancy I. Ruskin CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 Telephone: (212) 225-2000 E-mail: [email protected] ATTORNEYS FOR THE NAMED DEFENDANTS

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CERTIFICATE OF MAILING I hereby certify that on October 26, 2005, I electronically filed the foregoing THE NAMED DEFENDAN S MO I NF RE P D T DC N I E A I NOF MOTION FOR T ' T O O X E I E O SD R T O PRECLUSION, with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Glenn W. Merrick SENN VISCIANO KIRSCHENBAUM MERRICK P.C. [email protected]

s/ Bruce Featherstone Bruce A. Featherstone FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Telephone: (303) 626-7100 Facsimile: (303) 626-7101 E-mail: [email protected] ATTORNEYS FOR THE NAMED DEFENDANTS