Free Answer to Complaint - District Court of Arizona - Arizona

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Gary L. Birnbaum (#004386) [email protected] Charles S. Price (#006197) [email protected] Timothy J. Thomason (#009869) [email protected] Scot L. Claus (#14999) [email protected] MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012-2705 Phone: (602) 285-5000 Fax: (602) 285-5100

Attorneys for Defendant Snell & Wilmer, LLP 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 For its Answer to the Second Amended Complaint, Defendant Snell & Wilmer, LLP ("Snell & Wilmer") admits, denies and alleges as follows: I. JURISDICTION AND VENUE 1. Answering paragraph 1 of the Second Amended Complaint, Snell & v. PETER THIMMESCH, et al., Defendants. (Assigned to the Honorable H. Russell Holland) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA VISITALK.COM, INC., an Arizona corporation, Plaintiff, CASE NO. CIV'02 2405 PHX HRH ANSWER OF DEFENDANT SNELL & WILMER, LLP TO SECOND AMENDED COMPLAINT

Wilmer admits the allegations contained therein. 2. Answering paragraph 2 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 3. Answering paragraph 3 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein.

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II.

PARTIES 4. Answering paragraph 4 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 5. Answering paragraph 5 of the Second Amended Complaint, Snell &

Wilmer admits that Plaintiff maintained its principal place of business in the State of Arizona, but is without knowledge or information sufficient to form a belief as to the truth of all other allegations contained therein and, therefore, denies same. 6. Answering paragraph 6 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 7. Answering paragraph 7 of the Second Amended Complaint, Snell &

Wilmer admits that Peter Thimmesch is a former chief executive officer and director of the Plaintiff, but is without knowledge or information sufficient to form a belief as to the truth of all other allegations in paragraph 7 and, therefore, denies same. 8. Answering paragraph 8 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. Snell & Wilmer avers that Michael O'Donnell is the true name of the party described in paragraph 8 as "Mark O'Donnell". 9. Answering paragraph 9 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 10. Answering paragraph 10 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 11. Answering paragraph 11 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein.

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12.

Answering paragraph 12 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 13. Answering paragraph 13 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 14. Answering paragraph 14 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 15. Answering paragraph 15 of the Second Amended Complaint, Snell &

Wilmer admits that Stephen Best is a former in-house general counsel of the Plaintiff, but Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 15, and, therefore, denies same. 16. Answering paragraph 16 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 17. Answering paragraph 17 of the Second Amended Complaint, Snell &

Wilmer denies that Defendants Jeffrey Hirschberg and Jane Doe Hirschberg were residents of the State of Arizona, and is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and, therefore, denies same. 18. Answering paragraph 18 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 19. Answering paragraph 19 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same.

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20.

Answering paragraph 20 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 21. Answering paragraph 21 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 22. Answering paragraph 22 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 23. Answering paragraph 23 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 24. Answering paragraph 24 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 25. Answering paragraph 25 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 26. Answering paragraph 26 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 27. Answering paragraph 27 of the Second Amended Complaint, the

reference made therein is not an allegation of fact susceptible to answer by denial, admission or averment. 28. Answering paragraph 28 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 29. Answering paragraph 29 of the Second Amended Complaint, Snell &

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Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and, therefore, denies same. 30. Answering paragraph 30 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 31. Answering paragraph 31 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 32. Answering paragraph 32 of the Second Amended Complaint, Snell &

Wilmer admits that it was retained to perform certain legal services as requested by Plaintiff, denies Plaintiff's characterization thereof, and denies all remaining allegations of paragraph 32. 33. Answering paragraph 33 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 34. Answering paragraph 34 of the Second Amended Complaint, Snell &

Wilmer admits that it represented Messrs. Thimmesch and O'Donnell personally in 2000 for estate planning purposes, but denies the allegation of such representation in 1999. 35. Answering paragraph 35 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 36. Answering paragraph 36 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same.

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37.

Answering paragraph 37 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 38. Answering paragraph 38 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. III. GENERAL ALLEGATIONS 39. Answering paragraph 39 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 40. Answering paragraph 40 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 41. Answering paragraph 41 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 42. Answering paragraph 42 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 43. Answering paragraph 43 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 44. Answering paragraph 44 of the Second Amended Complaint, Snell &

Wilmer admits that Defendant Cardwell was elected to the Board of Directors, but avers that his election occurred on September 18, not September 8, 1998.

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45.

Answering paragraph 45 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein, and avers that the price per share of the warrants was $0.1375 per share. 46. Answering paragraph 46 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 47. Answering paragraph 47 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 48. Answering paragraph 48 of the Second Amended Complaint, Snell &

Wilmer admits the allegations contained therein. 49. Answering paragraph 49 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 50. Answering paragraph 50 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 51. Answering paragraph 51 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 52. Answering paragraph 52 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 53. Answering paragraph 53 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same.

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54.

Answering paragraph 54 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 55. Answering paragraph 55 of the Second Amended Complaint, Snell &

Wilmer admits that it expressed concerns to Plaintiff about certain issues pertaining to the Founders Warrants, and denies Plaintiff's remaining characterization thereof, and denies all remaining allegations of paragraph 55. 56. Answering paragraph 56 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 57. Answering paragraph 57 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 58. Answering paragraph 58 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 59. Answering paragraph 59 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 60. Answering paragraph 60 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 61. Answering paragraph 61 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same.

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62.

Answering paragraph 62 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 63. Answering paragraph 63 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 64. Answering paragraph 64 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 65. Answering paragraph 65 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 66. Answering paragraph 66 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 67. Answering paragraph 67 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 68. Answering paragraph 68 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 69. Answering paragraph 69 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same.

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70.

Answering paragraph 70 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 71. Answering paragraph 71 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 72. Answering paragraph 72 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 73. Answering paragraph 73 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 74. Answering paragraph 74 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 75. Answering paragraph 75 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 76. Answering paragraph 76 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 77. Answering paragraph 77 of the Second Amended Complaint, Snell &

Wilmer admits that from February 1, 2000 through early May 2000, Defendant Cardwell and Plaintiff negotiated a "settlement" agreement through which Plaintiff was either to make payment or to arrange for payment to Defendant Cardwell of an amount in excess of $1.2 million with Defendant Cardwell giving up or "selling"

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500,000 shares of his stock, but is without knowledge or information sufficient to form a belief as to the truth of all other allegations contained therein and, therefore, denies same. 78. Answering paragraph 78 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 79. Answering paragraph 79 of the Second Amended Complaint, Snell &

Wilmer states that the terms of the "Settlement Separation and Release Agreement" are self evident and speak for themselves. 80. Answering paragraph 80 of the Second Amended Complaint, Snell &

Wilmer denies that the Plaintiff was required to pay $50,000 to Mr. Cardwell upon the execution of the "Settlement Separation and Release Agreement," denies the remaining allegations contained in paragraph 80, and avers that the exercise price of the options issued pursuant to the "Settlement Separation and Release Agreement" was $.10 per share. 81. Answering paragraph 81 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 82. Answering paragraph 82 of the Second Amended Complaint, Snell &

Wilmer denies the allegations contained therein which are directed at Snell & Wilmer. Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 82, and, therefore, denies same. 83. Answering paragraph 83 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same.

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84.

Answering paragraph 84 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 85. Answering paragraph 85 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 86. Answering paragraph 86 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 87. Answering paragraph 87 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 88. Answering paragraph 88 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 89. Answering paragraph 89 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 90. Answering paragraph 90 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 91. Answering paragraph 91 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 92. Answering paragraph 92 of the Second Amended Complaint, Snell &

Wilmer admits it prepared a draft of a promissory note at the direction of Plaintiff, and

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avers that Snell & Wilmer was not directed or requested or obligated to perform any additional services or follow-up with respect to the draft promissory note, and, therefore, denies the remaining allegations directed at Snell & Wilmer in paragraph 92. As to the remaining allegations of paragraph 92, Snell & Wilmer is without

knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 93. Answering paragraph 93 of the Second Amended Complaint, Snell &

Wilmer avers that Snell & Wilmer was not directed or requested or obligated to perform any services or follow-up with respect to a security agreement or deed of trust with regards to Mr. Thimmesch, and denies the allegations directed at Snell & Wilmer in paragraph 93. As to the remaining allegations of paragraph 93, Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 94. Answering paragraph 94 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 95. Answering paragraph 95 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 96. Answering paragraph 96 of the Second Amended Complaint, Snell &

Wilmer denies the allegations contained therein. 97. Answering paragraph 97 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same.

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98.

Answering paragraph 98 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 99. Answering paragraph 99 of the Second Amended Complaint, Snell &

Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 100. Answering paragraph 100 of the Second Amended Complaint, Snell & Wilmer denies that Snell & Wilmer failed to properly discharge any duty to Plaintiff. Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 101, and, therefore, denies same. 101. Answering paragraph 101 of the Second Amended Complaint, Snell & Wilmer denies that Snell & Wilmer breached any duty, including any fiduciary duty, to Plaintiff. Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 101, and, therefore, denies same. ANSWER TO COUNTS I THROUGH XXIII 102 ­ 298. Count I through Count XXIII (paragraphs 102 through 298, inclusive) of the Second Amended Complaint are directed to other parties; therefore, no Answer thereto by Defendant Snell & Wilmer is required and, therefore, Snell & Wilmer denies same. ANSWER TO COUNT XXIV PROFESSIONAL MALPRACTICE/NEGLIGENCE, BREACH OF FIDUCIARY DUTY 299. Answering paragraph 299 of the Second Amended Complaint, Snell & Wilmer incorporates by this reference all of the foregoing paragraphs of this Answer. 300. Answering paragraph 300 of the Second Amended Complaint, Snell & Wilmer admits that it owed a duty to Plaintiff to provide legal services in accordance

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with the applicable standard of care, but denies Plaintiff's remaining characterization thereof and denies all other allegations contained in paragraph 300. 301. Answering paragraph 301 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein and denies the allegations contained in subparts a through b(xii) of paragraph 301. 302. Answering paragraph 302 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein. ANSWER TO COUNT XXV NEGLIGENT MISREPRESENTATIONS 303. Answering paragraph 303 of the Second Amended Complaint, Snell &

10 Wilmer incorporates by this reference all of the foregoing paragraphs of this Answer. 11 304. Answering paragraph 304 of the Second Amended Complaint, Snell & 12 Wilmer denies the allegations contained therein, and separately denies the negative 13 pregnant of paragraph 304, and avers that no such misrepresentations or omissions 14 were made by Snell & Wilmer. 15 305. Answering paragraph 305 of the Second Amended Complaint, Snell & 16 Wilmer denies the allegations contained therein, and separately denies the negative 17 pregnant of paragraph 305, and avers that no such misrepresentations or omissions 18 were made by Snell & Wilmer. 19 306. Answering paragraph 306 of the Second Amended Complaint, Snell & 20 Wilmer denies the allegations contained therein, and separately denies the negative 21 pregnant of paragraph 306, and avers that no such misrepresentations were made by 22 Snell & Wilmer. 23 307. Answering paragraph 307 of the Second Amended Complaint, Snell & 24 Wilmer denies the allegations contained therein, and separately denies the negative 25 pregnant of paragraph 307, and avers that no such misrepresentations or omissions 26 were made by Snell & Wilmer.
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308. Answering paragraph 308 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein, and separately denies the negative pregnant of paragraph 308, and avers that no such misleading representations or omissions were made by Snell & Wilmer. 309. Answering paragraph 309 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein, and separately denies the negative pregnant of paragraph 309, and avers that no such misleading representations or omissions were made by Snell & Wilmer. 310. Answering paragraph 310 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein, and separately denies the negative pregnant of paragraph 310, and avers that no such misleading representations or omissions were made by Snell & Wilmer. 311. Answering paragraph 311 of the Second Amended Complaint, Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same, and avers that Snell & Wilmer made neither false nor misleading representations in the solicitations of releases. 312. Answering paragraph 312 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein, and separately denies the negative pregnant of paragraph 312, and avers that no false and misleading

misrepresentations or omissions were made by Snell & Wilmer. ANSWER TO COUNT XXVI AIDING AND ABETTING BREACH OF FIDUCIARY DUTIES 313. Answering paragraph 313 of the Second Amended Complaint, Snell &

25 Wilmer incorporates by this reference all of the foregoing paragraphs of this Answer. 26

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314. Answering paragraph 314 of the Second Amended Complaint, Snell & Wilmer admits the allegations contained therein. 315. Answering paragraph 315 of the Second Amended Complaint, Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 316. Answering paragraph 316 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein. 317. Answering paragraph 317 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein and denies the allegations contained in subparts a through f of paragraph 317. 318. Answering paragraph 318 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein. ANSWER TO COUNT XXVII PREFERENTIAL TRANSFER 319. Answering paragraph 319 of the Second Amended Complaint, Snell &

15 Wilmer incorporates by this reference all of the foregoing paragraphs of this Answer. 16 320. Answering paragraph 320 of the Second Amended Complaint, Snell & 17 Wilmer admits that the stated amounts (except $101,313.28 instead of $101,313.30 in 18 subparagraph g) were paid on or about the stated dates. 19 321. Answering paragraph 321 of the Second Amended Complaint, Snell & 20 Wilmer is without knowledge or information sufficient to form a belief as to the truth of 21 the allegations contained therein and, therefore, denies same. 22 322. Answering paragraph 322 of the Second Amended Complaint, Snell & 23 Wilmer denies the allegations contained therein. 24 323. Answering paragraph 323 of the Second Amended Complaint, Snell & 25 Wilmer denies the allegations contained therein. 26

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324. Answering paragraph 324 of the Second Amended Complaint, Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 325. Answering paragraph 325 of the Second Amended Complaint, Snell & Wilmer denies the allegations contained therein, but refers to its answer to paragraph 320 of the Second Amended Complaint regarding the amount and timing of payment. 326. Answering paragraph 326 of the Second Amended Complaint, Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 327. Answering paragraph 327 of the Second Amended Complaint, Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 328. Answering paragraph 328 of the Second Amended Complaint, Snell & Wilmer is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and, therefore, denies same. 329. Answering paragraph 329 of the Second Amended Complaint, the

representations made therein is not an allegation of fact susceptible to answer by denial, admission or averment. ANSWER TO COUNT XXVIII 330 - 340. Count XXVIII (paragraphs 330 through 340, inclusive) is of the Second Amended Complaint is directed to other parties; therefore, no Answer thereto by Defendant Snell & Wilmer is required and, therefore, Snell & Wilmer denies same. 341. Snell & Wilmer denies each and every allegation in the Second Amended Complaint not expressly admitted herein. AFFIRMATIVE DEFENSES (Failure to State a Claim)

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342. The Second Amended Complaint fails to state a claim upon which relief might be granted against Snell & Wilmer. (Estoppel) 343. Because all of the actions and conduct alleged in the Second Amended Complaint were known to and acquiesced by the officers and directors of Plaintiff, Plaintiff is estopped to assert any claim against Defendant Snell & Wilmer. (Ratification) 344. Plaintiff's claims are precluded because Plaintiff and its officers and directors were aware of and ratified the actions and conduct at issue. (A.R.S. § 12-2602) 345. Plaintiff's claims may be precluded by Plaintiff's failure to comply with the requirements and other provisions in A.R.S. § 12-2602. (Comparative Fault) 346. Plaintiff's claims may be barred or the amount of recoverable damages reduced by Plaintiff's own comparative fault. (In Pari Delicto) 347. Plaintiff's claims may be barred by the doctrine of In Pari Delicto. (Wagoner Rule) 348. Plaintiff's claims may be barred by the doctrine in Shearson Lehman Hutton v. Wagoner, 944 F.2d 114, 120 (2nd Cir. 1991). (Statute of Limitations) 349. Some or all of Plaintiff's claims may be barred by the statute of limitations in A.R.S. § 12-542. (Rule 9(b))

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350. Some of Plaintiff's claims are barred because Plaintiff has failed to allege fraud with particularity, as required by Rule 9(b) of the Federal Rules of Civil Procedure. (Contemporaneous Value) 351. Any alleged pre-petition "transfer" from Plaintiff to Snell & Wilmer was intended to Plaintiff and Snell & Wilmer to be a contemporaneous exchange of new value given to the Plaintiff, and in fact was a substantially contemporaneous exchange, all in accordance with 11 U.S.C. §547(c)(1). (Ordinary Course) 352. Any alleged pre-petition "transfer" from Plaintiff to Snell & Wilmer was made in the ordinary course of business or financial affairs of the Plaintiff and Snell & Wilmer, and was made in accordance with ordinary business terms, and according to standard business practice for the relevant industry, all in accordance with 11 U.S.C. §547(c)(2). (New Value) 353. Any alleged pre-petition transfer was accompanied by Snell & Wilmer's provision of new value to or for the benefit of the Plaintiff not secured by otherwise unavoidable security interest and on account of which the Plaintiff did not make an otherwise unavoidable transfer to or for the benefit of Snell & Wilmer, all in accordance with 11 U.S.C. §547(c)(4). WHEREFORE having duly answered, Defendant Snell & Wilmer prays that the Second Amended Complaint against it be dismissed and that it have and recover its fees and costs herein incurred and such other relief as the Court deems just. RESPECTFULLY SUBMITTED this 12th day of December, 2003. MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. an

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1 By: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 s/ Gary L. Birnbaum Timothy J. Thomason Charles S. Price 2901 N. Central Avenue Suite 200 Phoenix, Arizona 85012-2705 Attorneys for Defendant Snell & Wilmer, LLP

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CERTIFICATE OF SERVICE I hereby certify that on December 12, 2005, I electronically transmitted ANSWER OF DEFENDANT SNELL & WILMER, LLP TO SECOND AMENDED COMPLAINT to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Christopher R. Kaup, Esq. Robert Royal, Esq. Gregory W. Seibt Tracy C. Morehouse, Esq. Tiffany & Bosco, P.A. Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Special Counsel for the Plaintiff Joseph E. Mais Perkins Coie Brown & Bain, P.A. 2901 North Central Avenue P.O. Box 400 Phoenix, AZ 85001-0400 Attorneys for Defendants Michael and Marcia O'Donnell David Rosenbaum Maureen Beyers Warren John Stapleton Osborn Maledon 2929 N. Central Avenue, Suite 2100 Phoenix, Arizona 85012-2794 Attorneys for Defendants Michael Cardwell and Margaret Mahoney David P. Brooks Brooks & Affiliates, PLC 123 North Centennial Way, Suite 207 Mesa, Arizona 85201 Attorneys for Defendants Robert and Carla Corry Brian N. Spector Douglas F. Behm Jennings Strouss & Salmon, PLC 201 East Washington, Suite 1100 Phoenix, Arizona 85004 Attorneys for Defendant MP3.com, Inc.

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A copy of the ANSWER OF DEFENDANT SNELL & WILMER, LLP TO SECOND AMENDED COMPLAINT was also served on December 12, 2005, via U.S. mail, postage prepaid, to the following, who are not registered participants in the CM/ECF System: Cynthia Thimmesch 6530 North Central Avenue Phoenix, Arizona 85012 Defendant Pro Se Peter Thimmesch 11329 Stonehouse Place Potomac Falls, Virginia 20165-5123 Defendant Pro Se Raymond F. Gaston Betty B. Gaston 5825 East Orange Blossom Lane Phoenix, Arizona 85018 Defendants Pro Se Mark J. Giunta 845 North Third Avenue Phoenix, Arizona 85003-1408 Defendant Pro Se DATED December 12, 2005. MARISCAL, WEEKS, McINTYRE & FRIELDANDER, P.A.

By:

s/Charles S. Price Charles S. Price 2901 N. Central Avenue Suite 200 Phoenix, Arizona 85012-2705 [email protected]

F:\USERS\CSP\Current Cases and OG\SNELL v. Visitalk 13801-1\Final Answer Second Amended Complaint Dec 12.doc

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