Free Objection - District Court of Arizona - 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' OBJECTION TO PLAINTIFFS' PROPOSED ORDER RE DISMISSAL OF AEG PARTNERS, LLC AND DAVID EATON (Assigned to Hon. Robert C. Broomfield)

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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 377

Snell & Wilmer L.L.P.

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

On April 20, 2006, plaintiffs lodged a proposed order (doc. #372) regarding the dismissal of AEG Partners, LLC and David Eaton from this case. The proposed order dismisses plaintiffs' claims against these two defendants with prejudice, but also contains a superfluous statement about claims that plaintiffs purport to reserve against the other defendants and adverse parties in this case. Although the statement does not mention any specific defendants other than Eaton and AEG, it is undoubtedly aimed at Kirkland & Ellis ("K&E"). The statement reads, in part, that plaintiffs reserve their claims against the remaining defendants "regardless of whether AEG/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." (Proposed Order at 2:5-9.) In this case, plaintiffs have repeatedly claimed that Eaton and AEG served as agents of K&E.

Filed 04/27/2006

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

This additional statement is improper and has no place in the Court's order of dismissal. The stipulation of dismissal submitted by plaintiffs' counsel and counsel for AEG and Eaton makes no mention of any reservation of rights. Instead, the stipulation merely requests that the Court dismiss AEG and Eaton with prejudice, with the parties to bear their own costs and fees. The additional statement regarding plaintiffs' attempted reservation of rights plainly goes beyond the stipulation submitted by the parties. The statement appears to have been inserted unilaterally by plaintiffs for the purpose of shoring up their legal position against K&E. As the Court is aware, K&E filed a motion for summary judgment on the issue of vicarious liability of Eaton and AEG (doc. #250), which is pending before the Court. Once the Bankruptcy Court approved the settlement agreement among AEG, Eaton, and plaintiffs, K&E supplemented its motion (doc. #369) with authority holding that the settlement agreement releasing the alleged agents also constitutes a release of K&E, the alleged principal. The governing law specifically provides that plaintiffs cannot reserve their claims against K&E that derive solely from K&E's alleged principal-agent relationship with parties that have been released from this case. Plaintiffs cannot oppose this motion by inserting helpful language in proposed orders for the Court to sign. For these reasons, K&E respectfully objects to the proposed order submitted by plaintiffs. K&E requests that the Court's order of dismissal include only the first sentence of dismissal (page 1, lines 21-23) and that the second sentence regarding plaintiffs' reservation of rights (page 1, line 23 through page 2, line 9) be deleted. DATED this 27th day of April, 2006. SNELL & WILMER L.L.P.

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Snell & Wilmer L.L.P.

By s/ Joseph G. Adams John J. Bouma James R. Condo Patricia Lee Refo Joseph G. Adams Attorneys for Kirkland & Ellis

Case 2:02-cv-02099-RCB

Document 377- 2 - Filed 04/27/2006

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

CERTIFICATE OF SERVICE I hereby certify that on this 27th day of April, 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 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. By:
1824679

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Case 2:02-cv-02099-RCB Document 377- 3 - Filed 04/27/2006 Page 3 of 3

Snell & Wilmer L.L.P.

s/ Kimberley K. Mosaidis