Free Reply to Response to Motion - District Court of Arizona - Arizona

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EXHIBIT A For the Court's convenience, K&E submits the following table to assist the Court in evaluating plaintiffs' responses to K&E's statement of facts. The first two columns contain K&E's statements of fact and plaintiffs' responses. The last column sets forth K&E's analysis of plaintiffs' response. K&E Fact 1. Five written agreements were executed on September 27, 1999 to implement GTCR's funding of LeapSource and to launch LeapSource's operations. K&E assisted in the drafting and negotiation of the agreements. (4th Am. Compl.¶¶ 175, 178.) Plaintiffs' Response Undisputed. Not disputed, although this description of the purpose of the written agreement is obviously very general and vague, and is in no way a complete description of the agreements or of their purpose(s). Plaintiffs do not Disputed. dispute that Sachnoff This is disputed, if it is & Weaver meant to suggest that represented Kirk in Sachnoff & Weaver the negotiations. represented LeapSource Instead, plaintiffs or Ms. Kirk in her suggest that the capacity as LeapSource representations did CEO, or that Ms. Kirk not extend to all of was represented in the written "these negotiations" agreements, but with respect to each of Schumacher testified the five written that there were no agreements referred to limitations on his in paragraph 1. representation of Kirk. (Schumacher Dep. at 28:17 - 29:2, attached as Ex. 3 to Adams Decl.) Undisputed. K&E Reply

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Snell & Wilmer L.L.P.

Plaintiff Christine Kirk, who would become LeapSource's CEO, was represented in these negotiations by her lawyers at the firm of Sachnoff & Weaver. (Excerpts of Deposition Transcript of Christine Kirk ("Kirk Dep."), attached as Exhibit 1, at 588:23 - 589:6; Excerpts of Deposition Transcript of Jeffrey Schumacher, attached as Exhibit 2, at 28:17-21; Plaintiffs' Response to GTCR Defendants' Statement of Uncontested Facts (delivered to chambers on 9/28/2005) at p. 4 ¶ 9.)

Plaintiff Thomas Gilman never had any conversations with any attorney, representative, or

Case 2:02-cv-02099-RCB

Document 303-2

Filed 12/12/2005

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K&E Fact employee from K&E (excluding David Eaton) during the times relevant to this case. (T. Gilman's Response to K&E's Interrogatory, dated March 18, 2005, attached as Exhibit 3.) Plaintiff Kimberly Hartmann never had any conversations with any attorney, representative, or employee from K&E (excluding David Eaton) during the times relevant to this case. (K. Hartmann's Response to K&E's Interrogatory, dated March 23, 2005, attached as Exhibit 4.) Plaintiff Julie McCollum never had any conversations with any attorney, representative, or employee from K&E (excluding David Eaton) during the times relevant to this case. (J. McCollum's Response to K&E's Interrogatory, dated March 18, 2005, attached as Exhibit 5.) Plaintiff Kelly Powers never had any conversations with any attorney, representative, or employee from K&E (excluding David Eaton) during the times relevant to this case. (K. Powers' Response to K&E's Interrogatory, dated March 18, 2005, attached as Exhibit 6.) Plaintiff Indu Gupta never had any conversations with any attorney, representative, or employee from K&E (excluding David Eaton) during the times relevant to this case. (I. Gupta's Response to K&E's Interrogatory, dated March 18,

Plaintiffs' Response

K&E Reply

4.

Undisputed.

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Snell & Wilmer L.L.P.

5.

Undisputed.

6.

Undisputed.

7.

Undisputed.

Case 2:02-cv-02099-RCB

Document 303-22 - Filed 12/12/2005

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K&E Fact 2005, attached as Exhibit 7.) Plaintiff Bobby Scott never had 8. any conversations with any attorney, representative, or employee from K&E (excluding David Eaton) during the times relevant to this case. (B. Scott's Response to K&E's Interrogatory, dated March 18, 2005, attached as Exhibit 8.) Plaintiff Patrice Walker never 9. had any conversations with any attorney, representative, or employee from K&E (excluding David Eaton) during the times relevant to this case. (P. Walker's Response to K&E's Interrogatory, dated March 18, 2005, attached as Exhibit 9.) Kirk's deposition 10. testimony made clear that the claims against K&E for tortiously interfering with contracts or prospective economic advantage arise solely from K&E service as GTCR's legal counsel: Q: And on what do you base your belief that Kirkland & Ellis provided legal advice to those persons [representatives of GTCR] that caused GTCR to breach the purchase agreement? Conversations that I had with them. What conversations? Where they would say, you know, "We

Plaintiffs' Response Undisputed.

K&E Reply

Undisputed.

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Snell & Wilmer L.L.P.

A: Q: A:

Plaintiffs have now made it clear in their This is disputed. The opposition brief that quoted testimony does the claims against not admit, imply, or K&E for tortious even support the point interference or aiding for which it is cited. and abetting liability The first question arise solely from quoted above assumed K&E's role in a claim that K&E recommending provided legal advice to David Eaton to representatives of GTCR and K&E's GTCR that caused vicarious liability GTCR to breach the arising from Eaton's Purchase Agreement, acts. As set forth in but none of the the reply brief, this questions asked conduct cannot form whether that was the the basis of basis and the only basis plaintiffs' claims. for the tortious interference claims against K&E. In fact, the claims against K&E Disputed.

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Document 303-23 - Filed 12/12/2005

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K&E Fact need to get back and talk to K&E about this," or "We need to call K&E about this." Q: About the breach of the purchase agreement? About LeapSource. And my question is: What do you base your belief on that Kirkland & Ellis provided legal advice to those persons that caused GTCR to breach the purchase agreement? I don't have any specifics on that.

Plaintiffs' Response for tortious interference do not arise solely from K&E service as GTCR's legal counsel.

K&E Reply

A: Q:

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Snell & Wilmer L.L.P.

(Kirk Dep., Ex. 1, at 687:6-21.) The draft letter to Kirk that 11. reclassified her termination as "for cause" was prepared by the firm of Jennings Strouss & Salmon, which served as counsel for LeapSource on employment matters. (Excerpts of Deposition Transcript of Tina Rhodes, attached as Exhibit 10, at 245:14 - 246:12). The letter was not prepared by K&E. (Id.; Excerpts of Deposition Transcript of Richard Clyne, attached as Exhibit 11, at 53:4 - 54:3; Excerpts of Deposition Transcript of Kevin Evanich, attached as Exhibit 12, at 31:12 33:10.)

Disputed. This is disputed if it is meant to suggest that K&E had no part in preparing the "for cause" letter, that Jennings Strouss alone was responsible for preparing the letter, or that Jennings Strouss alone was consulted as counsel for LeapSource on employment matters. The cited testimony by Mr. Clyne says only that he did not "draft" the letter, and otherwise did not remember it. In fact, the evidence suggests that

Plaintiffs do not dispute that the letter was prepared by the Jennings Strouss firm. Plaintiffs suggest that he must have played some role in revising the letter because a draft of it was on his computer, but there is no evidence to support this conjecture.

Case 2:02-cv-02099-RCB

Document 303-24 - Filed 12/12/2005

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K&E Fact

Plaintiffs' Response Mr. Clyne was consulted about the draft letter before it was finalized and sent to Ms. Kirk, just as he was consulted about other legal claims involving LeapSource, including severance claims by Christine Kirk, Kim Hartmann, and Julie McCollum (cited in the following Statement of Additional Facts Precluding Summary Judgment.) A copy of the draft "for cause" letter was found on his computer at Kirkland & Ellis, and the version of the draft letter found on his computer was not the final form of the letter that was subsequently sent to Ms. Kirk. See the draft and final "for cause" letters, including the `DRAFT LETTER TO CHRIS KIRK," produced from K&E files, Bates KE003880, and bearing the footer "shared rclyne kirkco kirk cause letter de 509 doc/99999-8." SOAF Exhibit 1.

K&E Reply

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1754963.1

Snell & Wilmer L.L.P.

Case 2:02-cv-02099-RCB

Document 303-25 - Filed 12/12/2005

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