Free Response - District Court of Arizona - Arizona


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Date: May 24, 2006
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State: Arizona
Category: District Court of Arizona
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John J. Bouma (#001358) James R. Condo (#005867) Patricia Lee Refo (#017032) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 E-Mail: [email protected] Attorneys for Defendant Kirkland & Ellis IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Diane Mann, as Trustee for the Estate of LeapSource, Inc. et al., Plaintiffs, No. CIV 02-2099 PHX RCB KIRKLAND & ELLIS' RESPONSE TO PLAINTIFFS' SUPPLEMENTAL STATEMENT OF ADDITIONAL FACTS TO MOTION FOR SUMMARY JUDGMENT RE VICARIOUS LIABILITY (Assigned to Hon. Robert C. Broomfield) Defendants.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

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Case 2:02-cv-02099-RCB Document 411

Snell & Wilmer L.L.P.

GTCR Golder Rauner, L.L.C.; a Delaware limited liability company, et al.,

Pursuant to Local Rule 56.1, and Federal Rule of Civil Procedure Rule 56, Kirkland & Ellis submits the following response to Plaintiffs' Statement of Additional Facts Precluding Summary Judgment. 11. On January 13, 2006 K&E was electronically served with a copy of the

Motion of Trustee and Plaintiffs to Approve Settlement With David Eaton and AEG Partners, L.L.C. (Motion of Trustee and Plaintiffs to Approve Settlement With David Eaton and AEG Partners, L.L.C., attached as Exhibit 1) RESPONSE: Not disputed for purposes of this motion.

Filed 05/24/2006

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

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On January 13, 2006 K&E was also electronically served with a Notice of

Motion of Trustee and Plaintiffs to Approve Settlement with David Eaton and AEG Partners, L.L.C. (Notice of Motion of Trustee and Plaintiffs to Approve Settlement with David Eaton and AEG Partners, L.L.C., attached as Exhibit 2) RESPONSE: Not disputed for purposes of this motion.

13.

On February 2, 2006 K&E filed a document entitled "Notice of Reservation

of Rights" with the United States Bankruptcy Court in connection with the LeapSource, Inc. bankruptcy proceedings. In this document K&E represented it "does not object to the approval of the proposed settlement in this Court." (Notice of Reservation of Rights, attached as Exhibit 3) RESPONSE: Not disputed for purposes of this motion, though plaintiffs have quoted selectively from K&E's filing. The full paragraph from which plaintiffs cite reads as follows: "4. Kirkland & Ellis believes that the terms of the settlement may materially affect its rights and liabilities as a defendant in the District Court Case. By motion in the District Court Case, Kirkland & Ellis intends to ask the District Court to resolve all such disputed issues. While Kirkland & Ellis does not object to the approval of the proposed settlement in this Court, it specifically reserves all of its rights, claims, defenses, and/or other interests regarding the interpretation of that settlement agreement by the District Court." 14. On April 6, 2006 United States Bankruptcy Court Judge James M. Marlar

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Snell & Wilmer L.L.P.

signed an Order Granting Motion of Trustee and Plaintiffs to Approve Settlement Agreement With David Eaton and AEG Partners, L.L.C. (Order dated April 6, 2006, attached as Exhibit 4) RESPONSE: Not disputed for purposes of this motion that the Bankruptcy Judge granted the proposed order submitted by plaintiffs' counsel. Though the order was not signed, the words "granted" were stamped on both pages of the order.
Document 411- 2 - Filed 05/24/2006

Case 2:02-cv-02099-RCB

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

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Judge Marlar's Order reads as follows:

IT IS HEREBY ORDERED that said Motion is hereby granted. The terms and conditions of the Settlement Agreement entered into by and between the parties are hereby approved and deemed to be in the best interests of the Debtor. By the express terms of the Settlement Agreement, the Trustee and Plaintiffs do not release and expressly reserve any Claims that she (in her capacity as Trustee) and Plaintiffs might have or claim to have against any person or entity other than AEG and Eaton, including, without limitation, the various persons and entities named as defendants or adverse parties in the Litigation or in any adversary proceeding in which the Trustee is or has been the plaintiff or other party asserting a Claim, that currently is pending in the U.S. District Court or the Bankruptcy Court, and that arises from or relates to the Litigation or the Debtor, including, without limitation, the Other Defendants, regardless of whether AEG and/or Eaton, on the one hand, and any one or more of the Other Defendants, on the other hand, are or may be alleged to be principals, agents, or joint tortfeasors as to one or more of the Trustee's reserved alleged Claims. (Order dated April 6, 2006, attached as Exhibit 4)

12 RESPONSE: 13 Not disputed for purposes of this motion that the order granted by the Bankruptcy 14 Court contained this provision. Disputed that the insertion of this provision in the 15 proposed order submitted by plaintiffs' counsel to the Bankruptcy Court is dispositive of 16 K&E's rights and liabilities in this action. 17 18 16. 19 the following 20 21 22 23 RESPONSE: 24 Not disputed for purposes of this motion that the Settlement Agreement contained 25 this portion. Disputed that AEG and plaintiffs have the power to unilaterally choose the 26 governing substantive law that would apply to affect the rights and liabilities of third 27 parties in this action. 28
Case 2:02-cv-02099-RCB Document 411- 3 - Filed 05/24/2006 Page 3 of 5

Snell & Wilmer L.L.P.

In their Settlement Agreement with Plaintiffs, AEG and Plaintiffs agreed to

"14. Governing Law. This agreement shall be governed, construed and enforced according to the laws of the State of Arizona without regard to conflicts of laws principles." (Settlement Agreement, attached as Exhibit 3 to K&E's Supplement)

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

DATED this 24th day of May, 2006. SNELL & WILMER L.L.P. By s/ Patricia Lee Refo John J. Bouma James R. Condo Patricia Lee Refo Joseph G. Adams Attorneys for Kirkland & Ellis

CERTIFICATE OF SERVICE I hereby certify that on May 24, 2006, I electronically transmitted the attached document 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: Leo R. Beus Scot C. Stirling Beus Gilbert, PLLC 4800 North Scottsdale Road Scottsdale, AZ 85251 Attorneys for Plaintiffs Don P. Martin Edward A. Salanga Quarles & Brady Streich Lang, LLP Two North Central Phoenix, AZ 85004-2391 Attorneys for GTCR Defendants and Defendants Nolan, Rauner, Yih, Donnini and Canfield David S. Foster Latham & Watkins, LLP Sears Tower, Suite 5800 233 South Wacker Drive Chicago, IL 60606 Attorneys for GTCR Defendants and Defendants Nolan, Rauner, Yih, Donnini and Canfield Merrick B. Firestone Ronan & Firestone, P.L.C. 649 North Second Avenue Phoenix, AZ 85003 Attorneys for Michael Makings

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Snell & Wilmer L.L.P.

Case 2:02-cv-02099-RCB

Document 411- 4 - Filed 05/24/2006

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Foster Robberson Richard A. Halloran Lewis and Roca LLP 40 N. Central Avenue Phoenix, AZ 85004-4429 Attorneys for David L. Eaton and AEG Partners LLC Steven J. Brown Steve Brown & Associates, L.L.C. 1440 E. Missouri, Suite 185 Phoenix, AZ 85014-2412 Attorneys for Plaintiff Diane Mann, as Trustee for the Estate of LeapSource, Inc. s/ Kimberley K. Mosaidis

1838027

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Case 2:02-cv-02099-RCB Document 411- 5 - Filed 05/24/2006 Page 5 of 5

Snell & Wilmer L.L.P.