Free Motion for Partial Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-00725-RPM

Document 41-27
ATTORNEY ATTORNEYS
1843 FOUNDED AT LAW

Filed 07/01/2005

Page 1 of 5

ARTERHADDEN
RECEIVED
KI

CLEVELAND COLUMBU COLUMBUS DALLA DALLAS

JRI ONE COLUMBUS COLUMBU 10 WEST BROAD STREETUITE 2100 S

FL 11

LUUL

SANDIEGO SAN FRANCISCO DC WOODLAND HILL HILLS

DAYTON
LRINE LOS ANGELES ANGELE

WMBU

COLUMBU OHIO 432153422 COLUMBUS
6142213155 TELEPHONE 6142210479 FACSIMILE

AFFILIATE OFFICE
SWITZERLAND

DIRECTDIAL

614

2293213

JANUARY2002

EMAIL

DBAILEYARTETHADDEN

MR PATRICKE

MEYER MEYERS
GENERAL COUNSEL

VIA

CERTIFIED

MAIL

VICE PRESIDENT THE

QUIZNO CORPORATION QUIZNOS
80202 INSURER

1415 LARRIMERSTREET

DENVERCO
RE

H POLICYOLDER THE

POLICY N POLICYO
CLAIM NO CLAIMANT
DEAR MR

COMPANY QUIZNO CORPORATION QUIZNOS PROTECTION INSURANCE POLICY MANAGEMENT
WESTCHESTERFIRE INSURANCE

DON

648451

X390L9630918
EDWARD C SEBESTA

MEYER MEYERS

THI THIS LETTER COMPANY ESTCHESTER W ACKNOWLEDGE ACKNOWLEDGES UNDER THE ABOVEREFERENCED RECEIPT O IN POLICYF THE COMPLAINT THE FOLLOWING

ON BEHALF OF WESTCHESTER FIRE INSURANCE

LAWSUIT LAWSUIT EDWARDC SEBESTAVS RICHARDB SCHADEN AL ET CASE NO 01CV6281 DISTRICT CITY AND COUNTY DENVER COLORADO OF COURT THI THIS TO DIRECTING LETTER YOU AS THEAUTHORIZED INSURANCE OFTHE REPRESENTATIVE INSURED UNDER THE POLICY ITH RESPECT THE LAWSUIT TO THE EXTENT INSUREDS W TO ON YOU ARE NOT ACTING BEHALF OF ANY INSUREDS INSURED WITH RESPECT THE LAWSUITPLEASE TO FORWARD COPY OFTHIS LETTER SUCH INSUREDS THI TO INSURED
WE
ARE

THEIR INSURANCE FORTHEIR INFORMATION REPRESENTATIVE REPRESENTATIVES AND INFORMUS WITH WHOM COMMUNICATEIN THE FUTUREREGARDING MATTER THI THIS
OR

WE

SHOULD

WESTCHESTER FURTHER ACKNOWLEDGE ACKNOWLEDGES OF YOUR AUGUST8 2001 AND NOVEMBER 23 2001 LETTERS RECEIPT 2 LETTERRELATING TO CLAIM CLAIMS BY SANDSTONEVENTURES POSSIBLE LLC AGAINST MAJORITY VENTURE THE SHAREHOLDER INVOLVED IN THE PROPOSED GROUP TRANSACTION AND OTHERS OTHER WHO AIDEDABETTEDOR ASSISTED THATGROUP IN CONNECTION WITH THE PROPOSED TRANSACTION THOSE LETTERDO LETTERS NOT CONSTITUTE CLAIM UNDER THE BUT POLICY WESTCHESTER LETTERAS NOTICE OF POTENTIAL ACCEPTTHOSELETTERS ACCEPTS CLAIM TO PURSUANT SUBSECTION OF THE POLICYS POLICY GENERALCONDITIONS AND LIMITATIONS CONDITION

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Case 1:04-cv-00725-RPM

Document 41-27

Filed 07/01/2005

Page 2 of 5

ARTER

HADDENLLP

MR PATRICK E

MEYER MEYERS

JANUARY 2002
PAGE

LIMIT POLICY ROVIDES AGGREGATE OF LIABILITY 4 MILLION FORALLLOSS RESULTING AN OF LOS PROVIDE P FROMALLCLAIMS FIRSTMADE DURING POLICYERIOD AND IS SUBJECT 50000 RETENTIONUNDER CLAIM THE P TO CLAUSE CLAUSES AND FOR EACH SECURITIES SECURITIE CLAIM HOWEVER INSURING TO N PURSUANT ENDORSEMENT O THE AGGREGATE OF LIABILITYREDUCED 25 LIMIT IS TO MILLION AND THE RETENTIONNDER INSURING U CLAUSE CLAUSES AND IS INCREASED 250000 TO WITH RESPECT ANY CLAIMS WHICH IN WHOLEOR IN PART TO CLAIM ARISE ARISES OUT OFTHEFACTS CIRCUMSTANCEAND SITUATION DESCRIBED THEJANUARY 1999 NOTICELETTER THE FACTCIRCUMSTANCES SITUATIONS IN BY TO ROYAL INSURANCE UNDER ROYALS COMPANY COMPANY ASSURANCE N ROYAL MANAGEMENT POLICYO THE

HP606493

WESTCHESTER BELIEVESTHATTHE LAWSUIT IN WHOLE OR IN PART BELIEVE ARISE OUT OF THE FACTS ARISES FACT CIRCUMSTANCE CIRCUMSTANCES SITUATIONS AND SITUATION DESCRIBED THE JANUARY 1999 NOTICE LETTER ROYAL IN TO AND THEREFORE RETENTIONDESCRIBED IN HIGHER

THE LOWER AGGREGATE OF LIABILITY LIMIT AND

ENDORSEMENT NO APPLIE APPLIES TO THE LAWSUIT WESTCHESTER SHALLNOT BE LIABLEFORANY AMOUNT WITHIN THE APPLICABLE RETENTIONR O IN EXCESS OF THE APPLICABLE OF LIABILITY EXCES LIMIT C ISSUE ISSUES COVERAGE

THE

DISCUSSION SUMMARIZE VARIOU ACTUALAND POTENTIAL SUMMARIZESVARIOUS FOLLOWING ISSUE UNDER COVERAGE ISSUES FO RESPECT THE LAWSUIT

THE POLICYITH W

THI THIS DISCUSSION BASED UPON THE UNSUBSTANTIATED IS IN THE ALLEGATION ALLEGATIONS LAWSUIT AND IS NOT INTENDEDTO SUGGEST THOSE ALLEGATIONS ANY LEGAL HAVE ALLEGATION OR FACTUAL MERIT THIS DISCUSSION ALSO NOT INTENDED BE EXHAUSTIVE EXCLUSIVE THI IS TO OR

EJRT
WHICH
ARE

THE POLICY NLY COVER O COVERS

CLAIM CLAIMS

INSURED PERSONS FORCERTAINWRONGFUL PERSON AGAINST ACT ACTS

DEFINED IN THE POLICY VARIOUSACTS ERRORS OR OMISSIONSBY INSURED PERSONS THEIR AS VARIOU ACT ERROR OMISSION PERSON IN AS EXCLUSION 10 STATES THATWESTCHESTERSHALL CAPACITYSUCH IN ADDITION STATE NOT BE LIABLEFOR ACT PERSON WRONGFUL BYINSURED PERSONS IN THEIR AS CAPACITY TRUSTEE EMPLOYEE ANY ORGANIZATION THANAN OUTSIDEENTITY THE OR OF DIRECTOR OFFICER OTHER OR NO U COMPANYASA RESULT COVERAGEIS AFFORDEDNDER THE POLICYORCLAIMS AGAINST F CLAIM INSURED PERSON PERSONS FORALLEGED IN OTHERTHAN AS DIRECTOR OFFICER THE COMPANY WRONGDOING CAPACITY OR OF THU DEFENDANT RICHARD B SCHADENAND RICHARDF SCHADENARE NOT COVERED THUSDEFENDANTS UNDER THEPOLICY TO THE EXTENT THE LAWSUIT ASSERTS CLAIMS AGAINST ASSERT CLAIM THEM IN THEIR CAPACITY SHAREHOLDERS THE AS SHAREHOLDER OF OFFICER OFFICERSOR SHAREHOLDERS FIENZE CORP AS AS DIRECTORS DIRECTOR SHAREHOLDER OF COMPANY OR IN OR PARTICIPANT OF THE TRANSACTION BENEFICIARY PROPOSED
ON

LOS LOSS

ACCOUNT OF ANY

CLAIM FOR

SECONDEXCLUSION
AND FORLOSS LOS
ON

STATE STATES THATWESTCHESTERSHALLNOT BE LIABLE UNDER CLAUSE CLAUSES INSURING

ACCOUNT OF ANY

ACT WRONGFUL INTENT TO CAUSE

COMMITTED IF DAMAGE

CLAIM BASEDUPON ARISING OF OR ATTRIBUTABLE OUT TO ANY THE INSURED WITH ACTUALKNOWLEDGE WRONGFUL BY OF ITS NATURE OR WITH
FINAL AND

NONAPPEALABLE JUDGMENT ADJUDICATION OR ADVERSE TO THE
ACT WRONGFUL THE LAWSUIT INCLUDES INCLUDE IN WHICH EVENT WESTCHESTER JUDGMENT ADJUDICATION
OR OR

INSURED ESTABLISHES ESTABLISHETHATTHE INSURED COMMITTEDSUCH

WHICH ALLEGATION ALLEGATIONS MAY

RESULTIN SUCH

SHALLNOT BE LIABLE UNDER INSURING CLAUSE CLAUSES

FORLOSS DESCRIBED LOS WITHIN THIS EXCLUSION THI

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Case 1:04-cv-00725-RPM

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Filed 07/01/2005

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ARTER

HADDENLLP

MR PATRICK E

MEYER MEYERS

JANUARY 2002 PAGE

THIRD EXCLUSION
OR

STATE THATWESTCHESTER STATES SHALLNOT BE LIABLE UNDER INSURING CLAUSE CLAUSES

CLAIM BASED UPON ARISING OF OR ATTRIBUTABLETO THE INSURED OUT IN REMUNERATION FINANCIAL TO WHICH THE INSURED WAS NOT OR GAINING FACTANY PROFIT ADVANTAGE ENTITLED THE LAWSUIT INCLUDES INCLUDE ALLEGATIONSSOME OR ALLOF THE DEFENDANTS THAT DEFENDANT GAINED LEGALLY ALLEGATION
FORLOSS LOS
ON

ACCOUNT OF ANY

REMUNERATIONOR FINANCIAL IN THI AS DESCRIBED THISEXCLUSION TO THE EXTENT ANY PROFIT ADVANTAGE R DEFENDANTINSURED IN FACTREALIZED SUCH PROFITEMUNERATION FMANCIAL ADVANTAGE OR WESTCHESTER SHALL OT BE LIABLEUNDER INSURING CLAUSE CLAUSES OR FOR LOS LOSS INCURRED SUCH INSURED IN CONNECTION N BY WITH THE LAWSUIT
EXCLUSION FOURTH FORLOSS LOS
ON

12

STATE STATES THATWESTCHESTER SHALLNOT BE LIABLE UNDER

CLAUSE INSURING

ACCOUNT OF ANY CLAIM BASED UPON

OUT TO ARISING OF OR ATTRIBUTABLE THE ACTUALOR

O CONSIDERATION CONNECTION IN WITH THE BY INADEQUATE PROPOSED PAYMENT THE COMPANYF ALLEGEDLY

OFSECURITIES BUT THI DOE T COMPANY PURCHASESECURITIE ISSUEDBY THE COMPANY THISEXCLUSIONDOES NOT APPLYO COMPANYS DEFENSE COSTS THE PROPOSED TRANSACTION RESULT RESULTS ITS EFFECTIVELY IN THE COMPANY URCHASING P SECURITIE AT SECURITIES ALLEGEDLY IN WHICH EVENT NO ENTITY UNDER CONSIDERATION INADEQUATE COVERAGE WITH RESPECT ANY SETTLEMENT JUDGMENT SUCH CLAIMS OF CLAUSE SHALLAPPLY TO OR INSURING
VARIOU TYPE OF VARIOUS TYPES WRONGDOING SEEKS CERTAIN RELIEF AND SEEK WHICH MAY FIFTH THE LAWSUIT ALLEGES ALLEGE DEEMED UNINSURABLE UNDER APPLICABLE IN WHICH EVENT WESTCHESTER SHALLNOT BE LIABLE TO LAW LAW PRECLUDE INSURANCE COVERAGETHEREFOR APPLICABLE PRECLUDES OF THE POLICYS CONDITION POLICY GENERAL CONDITIONS AND

BE

THE EXTENT

TO SIXTH PURSUANT SUBSECTION

LIMITATION LIMITATIONS

IS EXCES TO THE COVERAGEUNDER THE POLICY IN EXCESS OF THE AMOUNT OF ANY OTHERINSURANCE APPLICABLE LAWSUIT WESTCHESTER THATTHE INSUREDS GIVE INSURED NOTICE OF THE LAWSUIT TO ROYAL INSURANCE REQUEST REQUESTS

U ASSURANCE POLICY NO HP 606493 CONSISTENT WITH THE COMPANYNDER ROYALS ROYAL MANAGEMENT TO U TO COMPANY JANUARY 1999 NOTICELETTER ROYALNDER THATPOLICYPLEASE PROVIDE US COPY COMPANYS OF SUCH NOTICEAND ANY RESPONSE BYROYALO THATNOTICE T
COST COSTS INCURRED THE INSUREDS TO COMPLY INSURED WITH SEVENTH BY

RELIEFARE NOT

COVERED LOSS UNDERTHE POLICY LOS AND WILL NOT BE

INJUNCTIVEOTHEREQUITABLE OR WESTCHESTER PAIDBY
ANY

D

DEFENSEARRANGEMENT

WESTCHESTERUNDERSTANDSTHATTHE FOLLOWING UNDERSTAND DEFENDANTINSUREDS HAVE RETAINED THE INSURED LAW FIRM RESPECTIVE FIRMS AS DEFENSE COUNSELIN THE LAWSUIT

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Case 1:04-cv-00725-RPM

Document 41-27

Filed 07/01/2005

Page 4 of 5

ARTER

HADDENU

MR

PATRICK E

MEYER MEYERS

JANUARY 2002 PAGE

DEFENDANT INSURED INSUREDS

DEFENSE COUNSEL

COMPANY

R PIPERMARBURYUDNICK NEW YORK

WOLFE

COMMITTEE DIRECTOR DEFENDANT DEFENDANTS SPECIAL

LLP BROBECK PHIEGER HARRISON

DENVER
RICHARDE SCHADEN RICHARDF SCHADEN FIENZE CORPORATION

MOYE GILES OKEEFE VERMEIER GILE DENVER

GORREL

WESTCHESTERONSENTS CONSENT C
1

TO THESE DEFENSE COUNSELSUBJECTTHE FOLLOWING TO

FEE CHARGE REASONABLEAND NECESSARY FEES AND EXPENSES ONLY IN THATREGARD WESTCHESTERQUESTIONSNECESSITY NEW YORK COUNSEL TO THE FOR QUESTION DEFEND LITIGATION IN DENVER AND THEREFORE RESERVE RESERVES THE RIGHT WITHHOLD TO EACH LAW FIRM MUST

REIMBURSEMENT CERTAIN OF TRAVELCOSTSWHICH MAY BE DEEMED UNREASONABLEOR COST
THE ALSO WESTCHESTER OF QUESTION REASONABLENES QUESTIONSREASONABLENESS THE HOURLY CHARGED AT LEASTTHE BROBECK LAW FIRM IE UP TO 580 PER HOUR BY PLEASE PROVIDE US THEPROPOSED TO RATE RATES LAW HOURLY FORTHEPIPER MARBURY FIRM UNNECESSARY
RATE RATES

2

COST COSTS INCURRED THESE LAWFINNS IN CONNECTION ITH NONLITIGATION FINN W BY MATTER MATTERS ARE
NOT COVERED UNDER THE POLICYFOR

SERVICE RENDERED EXPENSES S EXAMPLEERVICES OR EXPENSE INCURRED CONNECTION WITH THE COMPANYS IN COMPANY PROXY STATEMENTOR SHAREHOLDER OR TO MEETING WITH RESPECT SHAREHOLDER APPRAISAL ARE NOT COVERED RIGHT RIGHTS
3

WESTCHESTER IS

ALLOF AND RESERVING ITSRIGHTS DEFENSES EXPLAINED RIGHT DEFENSE AS BELOW

WESTCHESTER ACKNOWLEDGE ACKNOWLEDGES OF YOUR DECEMBER 17 2001 LETTER WHICH ENCLOSES RECEIPT ENCLOSE FIRM COPIEOF INVOICE COPIES INVOICESFROM THESETHREELAW FIRMSFORSERVICES SERVICERENDERED AND EXPENSES INCURRED IN EXPENSE 2001 BECAUSETHE AGGREGATE NOVEMBER AMOUNT OF THOSE INVOICESIS LESS INVOICE LES THAN THE 250OQO RETENTION TO THE APPLICABLE LAWSUITWESTCHESTER WILLDEFER UNTIL INVOICE INVOICES FORPURPOSES OF EVALUATING WHETHERTHE FEES AND FEE PURPOSE
REASONABLE AND NECESSARY LATER DATE ITS ANALYSIS THOSE OF ANALYSI
ARE

THEREIN EXPENSE EXPENSES REFERENCED

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Case 1:04-cv-00725-RPM

Document 41-27

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Page 5 of 5

ARTER

HADDENLLP

MR

PATRICK E

MEYER MEYERS

JANUARY 2002 PAGE

D

RESERVATION RIGHTS OF RIGHT
ALLOF ITSRIGHTS DEFENSES AND A RIGHT DEFENSE UNDER THEPOLICYND
OR

WESTCHESTERRESPECTFULLY RESERVE RESERVES

AVAILABLE LAWWITH RESPECT THISMAILER INCLUDING AT TO THI WITHOUT THE LIMITATION RIGHT LIMIT TO

DENY

ISSUE COVERAGE FORTHE LAWSUIT BASEDUPON ANY OF THE ACTUALOR POTENTIAL COVERAGEISSUESSUMMARIZED EXCLUSION AND PROVISIONS O ABOVEAS WELL AS ANY ADDITIONAL TERM CONDITIONEXCLUSIONS TERMS CONDITIONS W PROVISIONF THE POLICY HICH
ARE

THE ALLEGATIONS LAWSUIT AND IN THE ALLEGATION
AS

TO THE SET ABOVEIS PREMISED APPLICABLE LAWSUIT THE DISCUSSION FORTH UPON KNOWN FACTS AND ARE BYNECESSITY PRESENTLY FACT TO SUBJECTCHANGE ADDITIONAL AND OR COME TO THE ATTENTIONOFWESTCHESTER ALLEGATION FACT ALLEGATIONSFACTSARE DEVELOPED

DETERMINED BE TO

US ADVISED OF MATERIAL WITH KEEP CLOSELY TO DEVELOPMENT DEVELOPMENTS RESPECT THE LAWSUIT BUT INCLUDING NOT LIMITED TO THE FOLLOWING

PLEASE

1

COPIE OF COPIES ANY

MATERIAL PLEADINGS MOTION MOTIONSAND RELATEDRIEFS WITHOUT PLEADING BRIEF INCLUDING B

LIMITATIONANY MOTIONS TO DISMISS AND MOTIONSFORSUMMARY MOTION DISMIS MOTION
2

JUDGMENT

ORDER COPIE OF COPIES ANY MATERIAL COURT ORDERSOR RULINGS ORDER ORDERS RULING INCLUDING SCHEDULING AND MOTION TO DISMISS AND MOTION FORSUMMARY JUDGMENT DISMIS ON RULING RULINGS ANY

3

PRIORNOTICE OF ANY SETTLEMENT MEDIATION MEDIATIONS NEGOTIATION NEGOTIATIONS NOTICE WHEN DEFENSE COUNSELHAS

OR

SETTLEMENTOFFERS OFFER

4

ITSPRELIMINARY AND COMPLETED LIABILITY ANALYSI ANALYSIS

DEFENSE STRATEGY THATWE MAY ARRANGEDISCUSSIONS SO DISCUSSIONWITH DEFENSE COUNSEL THAT ANALYSI AND REGARDING ANALYSIS STRATEGY IF YOU HAVE THI THIS CONTACT US QUESTION QUESTIONS REGARDING MATTER PLEASE

SINCERELY
ARTER HADDEN LLP

DAN A

BAILEY

CC

KENNETH D

MILBAUER

262849 7057716158

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