Free Supplement - 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' SUPPLEMENTAL STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT REGARDING 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 369

Snell & Wilmer L.L.P.

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

Pursuant to LRCiv 56.1(a), Kirkland & Ellis submits this Supplemental Statement of Facts in Support of its Motion for Summary Judgment Regarding the Vicarious Liability of David Eaton and AEG Partners, L.L.C. 1. In a written agreement, LeapSource specifically agreed that its relationship

with AEG Partners, L.L.C. would be governed by Illinois law: This letter agreement is governed by and construed in accordance with the laws of the State of Illinois with respect to contracts made and to be performed entirely therein and without regard to choice of law or principles thereof. (Financial Advisory Engagement letter dated March 2, 2001, attached as Exhibit 1.) 2. Pursuant to that agreement, Eaton went to work for LeapSource, traveling

back and forth between Illinois and Arizona, and working in both states. (Excerpts of Deposition of David Eaton, attached as Exhibit 2, at 159:3-10, 199:7-14.)

Filed 04/17/2006

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

3.

In the Settlement Agreement among plaintiffs, Eaton, and AEG, plaintiffs

released Eaton and AEG from any and all liability and agreed to dismiss them from the case. (Settlement Agreement, attached as Exhibit 3, at ¶¶ 4, 5.) 4. In the Settlement Agreement, AEG agreed to assign roughly $200,000 in

insurance proceeds to plaintiffs. (Id. at ¶ 1.) 5. AEG and Eaton also agreed to cooperate with plaintiffs in the continued

prosecution of plaintiffs' case, including allowing plaintiffs' counsel to interview Eaton, who is presently a partner of K&E. (Id. at ¶ 3.) 6. Plaintiffs also purported to reserve their rights to assert all claims against the

non-settling defendants, including those that arose solely from the conduct of Eaton and AEG. The settlement agreement provided, in relevant part: . . . provided, however, that 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, 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, 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. This release does not constitute a full satisfaction or acceptance of full compensation for Claims for injuries and damages that the Trustee and Plaintiffs have alleged or may allege has been incurred as a consequence of any act or omission to act by any other person or entity, regardless of whether AEG is, or may be alleged to be, a joint tortfeasor as to such Claims. This Agreement constitutes and is intended to be a full and complete release of AEG only and is not a full satisfaction or release of Claims for injuries caused by other persons or entities. (Id. at ¶ 5.) 7. AEG is an Illinois limited liability company. Its offices are located in

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Snell & Wilmer L.L.P.

Highland Park, Illinois. (Eaton Dep., Ex. 2, at 56:2-5; Fourth Amended Compl. ¶ 30.)

Case 2:02-cv-02099-RCB

Document 369- 2 - Filed 04/17/2006

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

8.

Eaton is a resident of the State of Illinois. For the times relevant to this

case, he maintained a regular office at AEG's location in Illinois. (Eaton Dep., Ex. 2, at 56:6-8; Fourth Amended Compl. ¶ 29.) 9. LeapSource was incorporated in Delaware. The company had offices in

Phoenix, Arizona; Washington, D.C.; near San Diego, California; Los Angeles, California; and in Northern California. (Excerpts of Deposition of Christine Kirk, attached as Exhibit 4, at 478:18 - 479:14; Fourth Amended Compl. ¶ 170.) 10. The individual plaintiffs are residents of Arizona, Michigan, and Illinois.

(Fourth Amended Compl. ¶¶ 35-38, 40-42; Excerpts of Deposition of Kelly Weekes, attached as Exhibit 5, at 7:21-22.) DATED this 17th day of April, 2006. SNELL & WILMER L.L.P.

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Case 2:02-cv-02099-RCB

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

Document 369- 3 - Filed 04/17/2006

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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 17th 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:
1821303

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Case 2:02-cv-02099-RCB Document 369- 4 - Filed 04/17/2006 Page 4 of 4

Snell & Wilmer L.L.P.

s/ Kimberley K. Mosaidis