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

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

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, v. GTCR Golder Rauner, L.L.C.; a Delaware limited liability company, et al., Defendants. No. CIV 02-2099 PHX RCB KIRKLAND & ELLIS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT REGARDING VICARIOUS LIABILITY (Assigned to Hon. Robert C. Broomfield) (Oral Argument Requested)

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Kirkland & Ellis ("K&E") moved for summary judgment establishing that it cannot be held vicariously liable for the acts of David Eaton and his company AEG Partners, LLC. As set forth in the motion, there is no evidence that would justify the imposition of vicarious liability on K&E for the acts of Eaton or AEG. No reasonable jury could find that Eaton or AEG was an actual or apparent agent for K&E under the clear parameters of Arizona law. Plaintiffs do not present any admissible evidence to the contrary in their response brief.1 There is no evidence of any oral or written words by K&E to designate Eaton or AEG as a K&E agent for purposes of any work with LeapSource. There is no evidence in the record to show that anyone at LeapSource relied on any conduct by K&E to conclude For the Court's convenience, K&E has attached to this reply a table setting forth K&E's statements of fact, plaintiffs' responses, and K&E's reply to the statements of fact that plaintiffs contend are in dispute.
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that Eaton or AEG was a K&E agent. Under Arizona law, these omissions are fatal to plaintiffs' agency theory. In an effort to withstand summary judgment on vicarious liability, plaintiffs attempt to cobble together a conspiracy theory in which K&E engineered the hiring of Eaton and AEG in order to further GTCR's interests. This theory suffers from a fatal flaw: there is no evidence to support it. K&E is entitled to judgment on plaintiffs' claims that it is vicariously liable for the acts of Eaton and AEG.2 1. The Vicarious Liability of Eaton and AEG Is Determined by the Common Law of Agency.

Plaintiffs agree that the question of whether K&E is vicariously liable for the conduct of Eaton or AEG is to be resolved by the common law of agency.3 As the Court previously recognized, the agency of an "of counsel" lawyer such as Eaton depends on
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12 whether he was doing "firm work." The Restatement provides, "The firm and its 13 principals are ordinarily liable for acts of lawyers who have an of-counsel relationship 14 with the firm . . . while they are doing firm work." Restatement (Third) of Law 15 Governing Lawyers § 58, cmt. c. The leading cases addressing the agency of "of counsel" 16 attorneys resolve this issue by looking to the common law of agency. See Trimble-Weber 17 v. Weber, 695 N.E.2d 344, 347 (Ohio Ct. App. 1997); Homa v. Friendly Mobile Manor, 18 Inc., 612 A.2d 322, 333 (Md. Ct. Spec. App. 1992). 19 Common law principles of agency are well-settled in Arizona: "There are two 20 main types of agency, actual (express) and ostensible (apparent)." Gulf Ins. Co. v. 21 Grisham, 613 P.2d 283, 286 (Ariz. 1980). In this case, plaintiffs do not have the evidence 22 to support either theory of agency. So, plaintiffs suggest in their response that any 23 resolution of an agency issue is inappropriate for summary judgment (Pls.' Resp. at 9), 24
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This motion pertains to the following claims: (a) Counts One, Three, and TwentyOne of the Fourth Amended Complaint, all of which purport to be directed at K&E but allege misconduct only on the part of Eaton, AEG, and others; (b) the portion of Count Ten (alleging professional negligence/malpractice against K&E) that pertains to the alleged actions of Eaton; and (c) any other claims of vicarious liability.

Plaintiffs also assert a separate theory based on the theory that Eaton and K&E were joint tortfeasors. K&E addresses this argument in Section 5 below.
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citing C.A.R. Transportation Brokerage Co. v. Darden Restaurants, Inc., 213 F.3d 474 (9th Cir. 2002), a case interpreting a California statute that defines ostensible authority broadly. See id. at 479 (citing Section 2317 of the Civil Code of California). But even under the broad California statute -- which is not in harmony with the Arizona agency law governing this case -- the Ninth Circuit affirmed summary judgment against the plaintiff on its agency claim. Indeed, courts routinely dispose of agency claims on summary judgment. See, e.g., Gulf Ins., 613 P.2d at 286 (affirming grant of summary judgment and rejecting argument of apparent agency); Computer Leasing, Inc. v. Casa Molina Restaurants, Inc., 721 P.2d 659, 661 (Ariz. Ct. App. 1985) (trial court "was justified in granting summary judgment" when there was no evidence of an agency relationship).4 2. There Is No Evidence That K&E Granted Actual or Express Authority to Eaton or AEG.

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Under Arizona law, express or actual agency exists only if "there is evidence that the principal has delegated authority by oral or written words which authorize him to do a 14 certain act or series of acts." Premium Cigars Int'l, Ltd. v. Charleston, 96 P.3d 555, 567 15 (Ariz. Ct. App. 2004) (citing Curran v. Industrial Comm'n, 752 P.2d 523, 526 (Ariz. Ct. 16 App. 1988). There is no evidence that K&E delegated authority to Eaton or AEG by oral 17 or written words. There is not a single witness who has testified to such delegation, nor is 18 there any document that would support such a finding. To the contrary, Eaton's "of 19 counsel" agreement expressly provides that Eaton is an independent contractor, not an 20 agent, employee, or partner. (SOF ¶ 7.) 21 Because such evidence of express agency is lacking, plaintiffs have concocted a 22 conspiracy theory in which Kevin Evanich, a K&E partner, referred Eaton and AEG to 23 GTCR for the sole purpose of "doing K&E's work protecting the interests of GTCR, with 24 K&E's knowledge and approval." (Pls.' Resp. at 11.) While all parties agree that Evanich 25 26 27 28 Plaintiffs also rely on a Seventh Circuit decision affirming summary judgment on motive and intent issues, Box v. A & P Tea Co., 772 F.2d 1372 (7th Cir. 1985), a dissent from a denial of certiorari, Hardin v. Pitney Bowes, Inc., 451 U.S. 1008 (1981) (Rehnquist, J., dissenting), and a 1967 state court case on contract reformation, State v. Ashton, 422 P.2d 727 (Ariz. Ct. App. 1967). None of these decisions addresses the agency issues presented by this motion.
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provided the initial referral, there is not a shred of evidence that the referral took place for this reason. Plaintiffs' unsupported assertions and speculation do not create an issue of material fact. See Karam v. City of Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003) (speculation as to improper motive "does not rise to the level of evidence sufficient to survive summary judgment"); Box v. A & P Tea Co., 772 F.2d 1372, 1379 (7th Cir. 1985) ("A motion for summary judgment requires the court to consider only reasonable inferences, not every conceivable inference.") (cited by plaintiffs). Without evidence of any oral or written words from K&E designating Eaton or AEG as agents, summary judgment is proper. Plaintiffs also try to argue that K&E exercised control over Eaton by consulting with Eaton as he performed his work for LeapSource. (Pls.' Resp. at 11.) This is nonsense. There is no evidence that K&E ever controlled Eaton or directed his activities. As Eaton testified, while working for LeapSource he gave "periodic status reports" to K&E lawyers because they represented GTCR, the company's major shareholder. (SOF ¶ 45.) There is no contrary evidence. None of the communications between Eaton and K&E reflect any instructions or directions from K&E to Eaton. Instead, the few communications between Eaton and K&E are limited to brief status reports. (PSOF ¶¶ 101-103.) Plaintiffs' claim that Eaton "took direction from K&E" about plaintiff Tom Gilman's request to inspect LeapSource's books and records (Pls.' Resp. at 6) is supported by nothing but a copy of a letter from Gilman's attorney faxed from Tina Rhodes at LeapSource to Richard Clyne at K&E, who then sent a copy to Eaton. (PSOF ¶ 137.) No reasonable jury could find an agency relationship from that. Finally, plaintiffs make the unsupported assertion that Eaton "was not free to take a position contrary to the interests of GTCR" because of a supposed conflict of interest. (Pls.' Resp. at 13.) Plaintiffs do not explain how the legal question of whether a conflict of interest existed affects the question of agency. There is no evidence in the record that K&E controlled or constrained Eaton or AEG by this supposed conflict. Certainly, plaintiffs' expert Prof. Hazard does not opine that any conflict of interest allowed K&E to
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

control Eaton or transformed Eaton into an agent of K&E, nor did Prof. Hazard opine that Eaton or AEG was an agent of K&E. To the contrary, Prof. Hazard maintained in his deposition that AEG and Eaton were agents of LeapSource, not K&E. (Hazard Dep. at 44:4-11, Ex. 1 to Adams Decl.5) This alleged conflict of interest has no bearing on the question of agency. 3. There Is No Evidence That K&E Granted Apparent or Ostensible Authority to Eaton or AEG.

Under Arizona law, the "touchstone of apparent authority is conduct of a principal that allows a third party reasonably to conclude that an agent is authorized to make certain representations or act in a particular way." Dickens v. First American Title Ins. Co., 784 P.2d 717, 721 (Ariz. Ct. App. 1989) (citing Miller v. Mason-McDuffie Co., 739 P.2d 806, 810 (Ariz. 1987)). To show apparent authority, "the record must reflect that the alleged principal not only represented another as his agent, but that the person who relied on the manifestation was reasonably justified in doing so under the facts of the case." Reed v. Gershweir, 772 P.2d 26, 28 (Ariz. Ct. App. 1989); Koven v. Saberdyne Systems, Inc., 625 P.2d 907, 911 (Ariz. Ct. App. 1980). Plaintiffs essentially concede that they cannot point to a single representation made by K&E to anyone at LeapSource that Eaton or AEG was acting as a K&E agent. Of the individual plaintiffs, only Christine Kirk ever spoke to anyone at K&E, and she does not claim that K&E ever told her anything about Eaton or AEG. (SOF ¶¶ 47-55.) Instead, plaintiffs claim that apparent agency exists because Dan Yih, a GTCR principal, allegedly referred to Eaton as a "K&E kind of advisor" in one LeapSource board meeting. (Pls.' Resp. at 11-13.) This argument fails as a matter of law for two reasons: (1) a statement by Dan Yih is not a statement by the alleged principal, which is K&E, and (2) there is absolutely no evidence that anyone at LeapSource relied on this statement to do anything.

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K&E submits certain exhibits attached to the supplemental Declaration of Joseph G. Adams ("Adams Decl.") with this reply to respond to new factual matters raised by plaintiffs in their response brief and their supporting statement of additional facts.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

First, Arizona law is crystal clear that apparent agency can arise only from the conduct of the alleged principal, which is K&E. All plaintiffs can point to is Kevin Evanich's initial recommendation of Eaton and AEG to GTCR. Yet plaintiffs cannot cite a single case -- because there is none -- holding that simply recommending an advisor to someone creates an agency relationship. To gild the lily, plaintiffs argue -- without the slightest shred of evidence -- that this referral was part of a sinister plot and that Evanich told GTCR that they "could count on Mr. Eaton to protect GTCR's interests, as a substantial client of K&E." (Pls.' Resp. at 12.) There is no witness, document, or other evidence to support this claim. In fact, Evanich testified that he referred Eaton to GTCR only because Eaton was "an expert in the financial restructuring advisory business." (SOF ¶ 19.) Plaintiffs also speculate that GTCR's "K&E kind of advisor" comment might have come from Evanich. (Pls.' Resp. at 12.) There is absolutely no evidence that this comment originated with Evanich. Indeed, plaintiffs concede that they have no information about Evanich's conversations with GTCR because GTCR has invoked the attorney-client privilege and K&E is ethically obligated to honor that invocation. Plaintiffs' argument that the factfinder may draw an adverse inference against the lawyer from the client's exercise of the privilege is both outrageous and contrary to law.6 No adverse inference may be drawn, even against GTCR, from its exercise of this privilege. See Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmBH v. Dana Corp., 383 F.3d 1337, 1344 (Fed. Cir. 2004) ("[N]o adverse inference shall arise from invocation of the attorneyclient and/or work product privilege."); Doe v. Rudy-Glanzer, 232 F.3d 1258, 1265 (9th Cir. 2000) ("[A] refusal to respond to discovery under such an invocation cannot justify the imposition of penalties."). Second, plaintiffs have no evidence that anyone at LeapSource ever relied on any conduct by K&E to reach a conclusion about the agency of Eaton or AEG. Without 6 The single case cited by plaintiffs (Pls.' Resp. at 12 n.2) dealt with the propriety of invoking the attorney-client privilege in front of a jury, and did not support any adverse inference from the exercise of this privilege. See United California Bank v. The Prudential Ins. Co. of America, 681 P.2d 390, 446 (Ariz. Ct. App. 1983).
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

evidence that anyone relied on K&E's conduct to form a belief about the agency of Eaton or AEG, there is no apparent authority under Arizona law. See, e.g., Max of Switzerland, Inc. v. Allright Corp. of Delaware, 930 P.2d 1010, 1014 (Ariz. Ct. App. 1997). While plaintiffs repeatedly contend that the phrase "K&E kind of advisor" was mentioned at a board meeting attended by plaintiffs Kirk and Gilman, there is not the slightest bit of evidence that anyone relied on this characterization for any purpose. In particular, none of the board members voting to retain AEG based the decision on any affiliation of Eaton with K&E. In her deposition, plaintiff Chris Kirk recalled GTCR's comment as "K&E kind of guy," not a "K&E kind of advisor." (Kirk Dep. at 429:16-20; 663:16 - 664:3, Ex. 2 to Adams Decl.) Though plaintiffs now claim that the "K&E kind of advisor" comment was uttered on February 27, 2001, the same day that the board voted to retain AEG, during discovery plaintiffs' counsel suggested to witnesses that it was said on February 20.7 (Yih Dep. at 295:3 - 296:9, Ex. 7 to Adams Decl.; Nolan Dep. at 318:18-24, Ex. 14 to Adams Decl.) Either way, Kirk admits that she did not think that LeapSource was retaining K&E by hiring Eaton and that she understood that AEG was not a law firm. (SOF ¶¶ 27, 28.) Plaintiff Tom Gilman did not even associate Eaton with K&E and instead thought that Eaton was affiliated with GTCR. (SOF ¶ 31.) As plaintiffs concede in their brief, Kirk and Gilman "were not told that the `crisis manager' recommended by GTCR members of the board was in fact an attorney at K&E." (Pls.' Resp. at 3.) The three remaining board members, who were also GTCR principals, also did not conclude that Eaton was a K&E agent. (SOF ¶¶ 32-34.) Dan Yih of GTCR explained that while GTCR initially "thought that GTCR was going to use him for helping make its decision," Eaton himself "was very clear that he wanted to represent the Company [LeapSource]." (Yih. Dep. at 298:9-23, Ex. 7 to Adams Decl.) There is simply no evidence that anyone relied on the "K&E kind of advisor" comment, much less that any reliance would have been reasonable.
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This timing dispute is not material to K&E's motion.
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Plaintiffs also point to a single e-mail that Eaton received from Tim Stephenson, a K&E lawyer, regarding the WARN Act. Although plaintiffs make much of this e-mail, there is no evidence that anyone at LeapSource even knew about it or reasonably relied on it in the face of all the other evidence to conclude that Eaton or AEG were the agents of K&E.8 4. There Is No Evidence That Anyone Viewed Eaton as Legal Counsel for LeapSource.

In the "Factual Background" portion of their brief, plaintiffs contend that Eaton was "expected to provide legal advice and did, in fact, provide legal advice." (Pls.' Resp. 9 at 6.) Plaintiffs never explain how the provision of legal advice by Eaton is relevant to the 10 issues of actual agency or apparent agency. As set forth above, there is no evidence that 11 K&E ever granted Eaton any authority to act on K&E's behalf regarding LeapSource -- as
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

12 a businessman or as a lawyer. 13 Moreover, in their misleading effort to portray Eaton's work as legal services, 14 plaintiffs quote selectively from the deposition transcript of Sean Cunningham, a 15 GTCR employee. Plaintiffs cite to a page from Mr. Cunningham's notes and claim 16 that the notes consist entirely of Eaton's advice. (Pls.' Resp. at 6; PSOF ¶¶ 111-113, 17 116.) In deposition, however, Mr. Cunningham described the notes in the following 18 manner: "I don't know whether all of the substance was from David Eaton or not. It 19 appears to have been discussed with him. I don't know whether others were involved 20 or not, but I don't know that all the content was from him." (Cunningham Dep. at 21 126:11-20, Ex. 4 to Adams Decl.) Significantly, plaintiffs omit this exchange from 22 the portions of the Cunningham deposition attached as Exhibit 25 to their statement 23 of additional facts. Indeed, the only piece of information that Cunningham attributed 24 to Eaton was the suggestion that LeapSource file for bankruptcy in Arizona. (PSOF ¶ 25 111.) Further, Cunningham's notes plainly state that Eaton relied on other lawyers to 26 make that statement. (Ex. 24 to PSOF at GTCR 012336 ("All lawyers David has 27 28 LeapSource subsequently obtained information about the WARN Act from its principal outside counsel, Osborn Maledon, not K&E. (PSOF ¶ 138.)
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talked w/ agree.")) 5. Plaintiffs' "Concert of Action" Theory Is At Odds With the Complaint and the Evidence.

Finally, plaintiffs advance the argument that K&E can be held "vicariously liable for the acts of David Eaton because they were acting in concert." (Pls.' Resp. at 5.) To 5 support this claim, Plaintiffs cite to an Arizona statute imposing joint and several liability 6 on joint tortfeasors who act in concert. See A.R.S. 12-2506(D). Plaintiffs' "acting in 7 concert" theory based on section 876(a) of the Restatement of Torts is essentially a claim 8 that Eaton and K&E conspired together. See The Estate of Ruben Hernandez v. Flavio, 9 930 P.2d 1309, 1313-14 (Ariz. 1997) (liability under § 876(a) is based on conspiracy). 10 But plaintiffs' complaint does not plead their newly discovered "acting in concert" 11 theory. In the voluminous "General Factual Allegations" section of plaintiffs' Fourth
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

12 Amended Complaint (¶¶ 43 - 319), there is not a single allegation regarding any 13 agreement or conspiracy between Eaton and K&E. The alleged conduct of Eaton is 14 contained in ¶¶ 289 - 292 and ¶¶ 314-318. While it alleges that Eaton conspired with 15 other defendants, there is no mention of K&E. Similarly, Counts One, Three, and 16 Twenty-One seek damages against K&E for the acts of Eaton without alleging that K&E 17 did anything wrong. There are no facts alleged in the complaint that would support this 18 new "acting in concert" theory. 19 Further, plaintiffs would be unable to make such allegations because there is 20 absolutely no evidence that K&E and Eaton entered into any agreement, conspiracy, or 21 any form of joint action. There is no witness, document, or other piece of evidence that 22 would allow a reasonably jury to conclude that Eaton and K&E were acting in concert. In 23 the total absence of any supporting evidence, plaintiffs cannot seek to hold K&E liable for 24 Eaton's conduct. 25 6. 26 Plaintiffs have not produced any evidence that would allow a reasonable jury to 27 conclude that Eaton or AEG was acting as an agent for K&E while working for 28
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Snell & Wilmer L.L.P.

Conclusion.

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

LeapSource. There is no actual agency because there is not a shred of evidence that K&E ever designated Eaton or AEG as an agent. There is no apparent agency because no one at LeapSource relied on any conduct by K&E to conclude that Eaton and AEG were K&E agents. Because plaintiffs gave failed to raise a genuine issue of material fact, summary judgment is appropriate on all claims against K&E that depend on the vicarious liability of Eaton or AEG. DATED this 7th day of November, 2005. SNELL & WILMER L.L.P.

By

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

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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 November 7, 2005, 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 Richard R. Thomas 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. s/ Joseph G. Adams

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