Free Response - District Court of Arizona - Arizona

1 Don P. Martin (AZ Bar No. 004232) [email protected] 2 Edward A. Salanga (AZ Bar No. 020654) [email protected] 3 QUARLES & BRADY STREICH LANG LLP 4 One Renaissance Square Two North Central Avenue 5 Phoenix, Arizona 85004-2391 (602) 229-5200 6 Kevin A. Russell (admitted pro hac vice) 7 David S. Foster (admitted pro hac vice) Michael J. Faris (admitted pro hac vice) 8 Nicholas B. Gorga (admitted pro hac vice) LATHAM & WATKINS LLP 9 Sears Tower, Suite 5800 Chicago, Illinois 60606 10 (312) 876-7700 11 Attorneys for Defendants GTCR Golder Rauner, LLC, GTCR Fund 12 VI, LP, GTCR VI Executive Fund, LP, GTCR Associates VI, Joseph 13 P. Nolan, Bruce V. Rauner, Daniel Yih, David A. Donnini and Philip A. 14 Canfield 15 16 17 18 19 20 21 Defendants. 22 23 24 25 26 27 28 ORAL ARGUMENT REQUESTED vs. GTCR Golder Rauner, L.L.C., a Delaware limited liability company, et al., Diane Mann, as Trustee for the Estate of LeapSource, Inc., et al., Plaintiffs, Case No.: CIV-02-2099-PHX-RCB GTCR DEFENDANTS' RESPONSES TO PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS PRECLUDING SUMMARY JUDGMENT (Assigned to the Honorable Robert C. Broomfield) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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Pursuant to Local Rule 56.1 and Federal Rule of Civil Procedure 56, GTCR

2 hereby submits the following response to Plaintiffs' Statement Of Additional Facts 3 Precluding Summary Judgment, which are numbered 42-155: 4 5 6 7 8 9 10 11 12 13 14 43. 42. In September 1998, Christine Kirk was approached by Joe Nolan of GTCR, who solicited Kirk to join with GTCR in forming a new business process outsourcing (BPO) financial and accounting firm to be funded by GTCR and managed by Kirk. Kirk Dep. (Ex. 1) at 43:4-48:17; Pl. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2 ) at 8:7-9:25 (Oct. 15, 2004. RESPONSE: Not disputed, but not material to the current motion. During the preceding several years, Kirk and others had grown the BPO accounting services division of Arthur Andersen from a handful of employees to the most profitable division of Andersen, providing quality outsourcing services to Andersen clients including Fortune 100 companies and companies such as General Motors. Pl. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 8:9-22 (Oct. 15, 2004) RESPONSE: Not disputed for purposes of the current motion only, but not material to the

15 current motion. 16 17 18 19 44. GTCR is a Chicago based venture capital company. P1. Hartmann's Ans. To GTCR's First Set of Interrogs. (Ex. 3 ) at 3:6-7 (Oct. 7, 2004) RESPONSE:

Not disputed, but GTCR denies that this fact is "additional" or that it precludes summary judgment. This fact is subsumed in GTCR's factual statements 20 regarding its funding of LeapSource. See SOF ¶¶ 4, 7, 31-35.1 21 22 23 24 25 26 27 28
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GTCR has a track record of partnering with exceptional executives to form leading companies, supported by GTCR's financial resources. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 8:24-9:25 (Oct. 15, 2004) RESPONSE:

References in GTCR's responses set forth herein to "SOF ¶ __" are to paragraphs in GTCR Defendants' Statement of Uncontested Facts, submitted with its motion and opening brief. References to exhibits take the form "Ex. __" and refer to Exhibits 135 to the Declaration of Michael J. Faris submitted with GTCR's opening brief, or to Exhibits 36-38 to the Supplemental Declaration of Michael J. Faris submitted herewith.

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GTCR does not dispute the fact that GTCR has a track record of successful

2 business relationships with executives, but denies that this fact is material to the current 3 motion. GTCR further denies that the partnership form was chosen for the companies it 4 has invested in, or that the cited interrogatory response provides support for such a 5 conclusion. 6 7 8 9 46. GTCR offered to "partner" with Christine Kirk and build an exciting company with her. GTCR letter of May 14, 1999 to Christine Kirk, Doc. Nos. LS-CK6-O973-O974 (Ex. 4). RESPONSE: GTCR does not dispute the fact that Nolan sent the referenced letter of May

10 14, 1999 to Kirk. GTCR denies that it was an "offer" of any kind, and certainly not an 11 offer to form a partnership. The letter speaks for itself. GTCR further denies that this 12 fact is "additional" or that it precludes summary judgment. GTCR has already referenced 13 the May 14, 1999 letter in its statement of facts. See SOF ¶¶ 4. 14 15 16 17 47. The joint venture between the plaintiffs and GTCR was intended to endure throughout the life of the business they were building. Kirk Dep. (Ex. 1) at 244: 3-7. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. The cited

18 testimony is nothing more than Kirk repeating the bare allegation in the Fourth Amended 19 Complaint, and does not provide any factual support whatsoever. In any event, there is 20 no support for the assertion that GTCR had such an intent. The facts are to the contrary. 21 See SOF ¶¶ 25, 28, 29; see also Kirk SMA (Ex. 7) § 11(d). 22 23 24 25 26 48. From September 1998 through the end of August 1999 GTCR made a number of promises and representations to Kirk, Hartmann and McCollum. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-6:2 (Oct. 15, 2004) RESPONSE:

Disputed, but for purposes of the current motion GTCR assumes that the promises and representations set forth in Kirk's Answers to GTCR's First Set of 27 Interrogatories were made. See SOF ¶ 12. GTCR denies that this fact is "additional" or that it precludes summary judgment. 28
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It was a term of the joint venture that GTCR would provide the financing required to successfully establish the new venture, with the understanding that the amounts required would be in the range of $50-l00 million. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-25 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

6 purposes of the current motion GTCR assumes that the promises and representations set 7 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 8 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 9 that this fact is "additional" or that it precludes summary judgment. 10 11 12 13 14 RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for 50. It was a term of the joint venture that the new venture would be expected to lose substantial amounts of money during its start up period (operating with negative EBITDA). Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-3:12 (Oct. 15, 2004).

15 purposes of the current motion GTCR assumes that the promises and representations set 16 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 17 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 18 that this fact is "additional" or that it precludes summary judgment. 19 20 21 22 23 51. It was a term of the joint venture that GTCR understood the magnitude of the financial commitment required to support the new venture during its start up period (because GTCR actually had similar loss experiences with other start-up companies). Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-3:12 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

24 purposes of the current motion GTCR assumes that the promises and representations set 25 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 26 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 27 that this fact is "additional" or that it precludes summary judgment. 28 52. It was a term of the joint venture that GTCR was "well equipped" to handle
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the anticipated new venture losses, and was willing to finance the new venture through that start up period. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-3:12 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

5 purposes of the current motion GTCR assumes that the promises and representations set 6 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 7 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 8 that this fact is "additional" or that it precludes summary judgment. 9 10 11 12 13 RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for 53. It was a term of the joint venture that GTCR's funding commitment was not conditioned upon the new venture's losses reaching or exceeding any particular amount over the first two years. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-3:14 (Oct. 15,2004).

14 purposes of the current motion GTCR assumes that the promises and representations set 15 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 16 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 17 that this fact is "additional" or that it precludes summary judgment. 18 19 20 21 22 RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for 54. It was a term of the joint venture that GTCR would not financially abandon the new venture, but would stick by the new venture even during bad times, in a way that other venture capital firms would not. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-3:21 (Oct. 15, 2004).

23 purposes of the current motion GTCR assumes that the promises and representations set 24 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 25 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 26 that this fact is "additional" or that it precludes summary judgment. 27 28 55. It was a term of the joint venture that other venture capital firms would not stick by the plaintiffs like GTCR would. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-3:21 (Oct. 15, 2004).
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RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

3 purposes of the current motion GTCR assumes that the promises and representations set 4 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 5 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 6 that this fact is "additional" or that it precludes summary judgment. 7 8 9 10 11 12 RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for 56. It was a term of the joint venture that the purpose of the new venture would be to create and develop a new BPO firm, to pursue related opportunities, and to grow the business of the new BPO firm through acquisitions, alliances, and operations, as contemplated in the business plan prepared by Chris Kirk and others, and provided to GTCR. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2 ) at 2:15-3:25 (Oct. 15, 2004).

13 purposes of the current motion GTCR assumes that the promises and representations set 14 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 15 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 16 that this fact is "additional" or that it precludes summary judgment. 17 18 19 20 21 RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for 57. It was a term of the joint venture that Chris Kirk would be permitted to assemble a management team to implement the business plan and to manage the new venture. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2 ) at 2:15-4:4 (Oct. 15, 2004).

22 purposes of the current motion GTCR assumes that the promises and representations set 23 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 24 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 25 that this fact is "additional" or that it precludes summary judgment. 26 27 28
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It was a term of the joint venture that the new venture would need to hire and train scores of employees even before outsourcing contracts were signed. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-4:7 (Oct. 15, 2004).

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RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

3 purposes of the current motion GTCR assumes that the promises and representations set 4 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 5 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 6 that this fact is "additional" or that it precludes summary judgment. 7 8 9 10 11 RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for 59. It was a term of the joint venture that the new venture would have to be equipped to provide the same level and depth of outsourcing services that Andersen provided to its clients. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-4:10 (Oct. 15, 2004).

12 purposes of the current motion GTCR assumes that the promises and representations set 13 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 14 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 15 that this fact is "additional" or that it precludes summary judgment. 16 17 18 19 60. It was a term of the joint venture that the management team put together by Chris Kirk would be permitted to manage the new venture. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-4:14 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

20 purposes of the current motion GTCR assumes that the promises and representations set 21 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 22 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 23 that this fact is "additional" or that it precludes summary judgment. 24 25 26 27 61. It was a term of the joint venture that the members of the management team would have an ownership interest in the new BPO company. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2 ) at 2:15-4:19 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

28 purposes of the current motion GTCR assumes that the promises and representations set
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1 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 2 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 3 that this fact is "additional" or that it precludes summary judgment. 4 5 6 7 8 62. It was a term of the joint venture that common stock in the new BPO company to be formed would be divided equally between GTCR and the management team, and with GTCR receiving preferred stock in return for its financial investment. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-4:19 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

9 purposes of the current motion GTCR assumes that the promises and representations set 10 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 11 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 12 that this fact is "additional" or that it precludes summary judgment. 13 14 15 16 17 63. It was a term of the joint venture that the members of the management team would be assured of compensation at levels comparable to the compensation that they had been receiving at Andersen. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-4:23 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

18 purposes of the current motion GTCR assumes that the promises and representations set 19 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 20 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 21 that this fact is "additional" or that it precludes summary judgment. 22 23 24 25 26 64. It was a term of the joint venture that GTCR would indemnify the management team against the costs of any action that might be taken by Andersen as a result of the management team's departure from Andersen. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2 ) at 2:15-5:3 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

27 purposes of the current motion GTCR assumes that the promises and representations set 28 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that
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1 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 2 that this fact is "additional" or that it precludes summary judgment. 3 4 5 6 7 8 9 65. It was a term of the joint venture that because of the non-competition provisions in the management team's agreements with Andersen, the new venture would not be permitted to start selling outsourcing services for a period of months after their departure from Andersen, which would further extend the start up period discussed previously (when the new venture would be losing money and requiring continuing financial support from GTCR). Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-5:8 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

10 purposes of the current motion GTCR assumes that the promises and representations set 11 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 12 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 13 that this fact is "additional" or that it precludes summary judgment. 14 15 16 17 18 19 66. It was a term of the joint venture that a new company would be formed to provide outsourcing services, and would be a "standard GTCR play," intended to replicate the AnswerThink experience, which meant to start the business with a substantial number of experienced employees from Andersen so that the new venture could stake out a leading position in the BPO services industry. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-5:14 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

20 purposes of the current motion GTCR assumes that the promises and representations set 21 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 22 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 23 that this fact is "additional" or that it precludes summary judgment. 24 25 26 27 28 67. It was a term of the joint venture that Kirk's $400,000 annual salary had been accepted by the GTCR's Board of Directors, that GTCR would make Kirk whole for any bonus distribution withheld by Andersen, and would pay her a one-year's severance package if she was terminated without cause. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2 ) at 2:15-5:18 (Oct. 15, 2004). RESPONSE:
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Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

2 purposes of the current motion GTCR assumes that the promises and representations set 3 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 4 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 5 that this fact is "additional" or that it precludes summary judgment. 6 7 8 9 10 11 68. It was a term of the joint venture that GTCR would make Hartmann whole with respect to any compensation that she expected to receive from Andersen but did not receive because she left before October 1999, up to $1 million, and that GTCR would pay Hartmann a one-year severance package equal to her annual salary of $300,000. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2 ) at 2:15-5:23 (Oct. 15, 2004); Hartmann's Ans. To GTCR's First Set of Interrogs. (Ex. 3 ) at 5:7-19 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

12 purposes of the current motion GTCR assumes that the promises and representations set 13 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 14 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 15 that this fact is "additional" or that it precludes summary judgment. 16 17 18 19 20 21 22 69. It was a term of the joint venture that McCollum would be made whole on any earned but unpaid bonus she would have received had she stayed at Andersen (with the understanding that McCollum expected to receive a bonus from Andersen in the amount of $80,000), and that GTCR would provide McCollum with a one-year severance package equal to her salary of $360,000. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 2:15-5:23 (Oct. 15, 2004); McCollum's Ans. To GTCR's First Set of Interrogs. (Ex. 5 ) at 4:20-25 (Oct. 20, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

23 purposes of the current motion GTCR assumes that the promises and representations set 24 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 25 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 26 that this fact is "additional" or that it precludes summary judgment. 27 28 70. Joe Nolan told Kim Hartmann that GTCR was prepared to commit fifty to one hundred million dollars to help build the venture. Hartman Dep. (Ex. 6) at 51:21-23.
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RESPONSE: Disputed, but for purposes of the current motion GTCR assumes that the

3 promises and representations set forth in Kirk's Answers to GTCR's First Set of 4 Interrogatories (including this one) were made, and that plaintiffs contend they became 5 terms of the joint venture. See SOF ¶ 12. GTCR denies that this fact is "additional" or 6 that it precludes summary judgment. 7 8 9 10 71. One of the purposes of the joint venture was to build a substantial and profitable business process outsourcing firm focused on accounting and finance. Kirk Dep. (Ex. 1 ) at 244: 22-245:1. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

11 purposes of the current motion GTCR assumes that the promises and representations set 12 forth in Kirk's Answers to GTCR's First Set of Interrogatories (including this one) were 13 made, and that plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. 14 GTCR denies that this fact is "additional" or that it precludes summary judgment. 15 16 17 18 19 RESPONSE: Not disputed for purposes of the current motion only, but not material to the 72. Kim Hartmann and Joe Nolan discussed the fact that things like investing in people, hiring of people ahead of the curve, investing in potential alliances and acquisitions and in building of a technology platform and facilities were all things that required capital. Hartmann Dep. (Ex. 6) at 52:21-53:13.

20 current motion. 21 22 23 24 25 73. Joe Nolan told Kim Hartmann that GTCR would help Hartmann and others with respect to their resignation from Arthur Andersen and limit their liability with respect to same. Hartmann Dep. (Ex. 6 ) at 56:2-6; Hartmann's Ans. To GTCR's First Set of Interrogs. (Ex. 3) at 5:17-19 (Oct. 15,2004) RESPONSE: Disputed, but for purposes of the current motion GTCR assumes that the

26 promises and representations set forth in Kirk's Answers to GTCR's First Set of 27 Interrogatories (including this one) were made, and that plaintiffs contend they became 28 terms of the joint venture. See SOF ¶ 12. GTCR denies that this fact is "additional" or
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1 that it precludes summary judgment. 2 3 4 5 74. As part of the joint venture agreement with plaintiffs, GTCR made a commitment not to financially desert them, to stick by them, and to be their "partner for life". Kirk Dep. (Ex. 1) at 258: 22-259:1. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

6 purposes of the current motion GTCR assumes that the promises and representations set 7 forth in Kirk's Answers to GTCR's First Set of Interrogatories (including this one) were 8 made, and that plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. 9 GTCR denies that this fact is "additional" or that it precludes summary judgment. 10 11 12 13 14 75. Part of the joint venture included an oral agreement made by GTCR that plaintiffs Julie McCollum and Kim Hartmann would be made financially whole if they joined the joint venture and resigned from Arthur Andersen. McCollum Dep. (Ex. 7 ) at 209: 23-210: 12, Hartmann Dep. (Ex. 6) at 55:23-24 and 56:17-19. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

15 purposes of the current motion GTCR assumes that the promises and representations set 16 forth in Kirk's Answers to GTCR's First Set of Interrogatories (including this one) were 17 made, and that plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. 18 GTCR denies that this fact is "additional" or that it precludes summary judgment. 19 20 21 22 76. Some of the terms and conditions of the joint venture agreement were oral. Kirk Dep. (Ex. 1) at 256: 23-25; Hartmann Dep. (Ex. 6 ) at 211: 24-212:4; Weekes-Powers Dep. (Ex. 8 ) at 126:3-11. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

23 purposes of the current motion GTCR assumes that the promises and representations set 24 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, some of 25 which may have been oral, and that plaintiffs contend they became terms of the joint 26 venture. See SOF ¶ 12. GTCR denies that this fact is "additional" or that it precludes 27 summary judgment. 28 77. Some of the terms and conditions of the joint venture agreement were
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contained in the Summary of Understanding. Kirk Dep. (Ex. 1) at 256:l625. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

5 purposes of the current motion GTCR assumes that plaintiffs contend that the SOU 6 contained some of the terms of the alleged joint venture. See SOF ¶ 10. GTCR denies 7 that this fact is "additional" or that it precludes summary judgment. 8 9 10 11 78. The joint venture agreement was formed through a combination of conduct, oral promises and statements, and communications in writing. P1. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2 ) at 7:5-6 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

12 purposes of the current motion GTCR assumes that the promises and representations set 13 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 14 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 15 that this fact is "additional" or that it precludes summary judgment. 16 17 18 19 79. GTCR had a separate and distinct financial commitment to the Kirk-GTCR joint venture after the formation of LeapSource. Kirk Dep. (Ex 1) at 244:14-17. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, the

20 cited testimony is taken out of context and, in context, does not provide any support for 21 this alleged "fact." Kirk claims the financial commitment is contained in the SOU, but 22 admits that the SOU nowhere refers to a joint venture. Kirk Dep. (Ex. 18) at 244:1823 245:8. Elsewhere, Kirk admits that she never told anyone a joint venture existed. See 24 SOF ¶¶ 25-27. GTCR had never even heard of, let alone made a commitment to, such a 25 joint venture. See SOF ¶¶ 28-29. 26 27 28 80. Plaintiffs' resigned from their positions of employment with Arthur Andersen based upon the promises and representations made by GTCR with respect to the business contemplated by the joint venture. McCollum Dep. (Ex. 7) at 121: 19-122: 11; Hartmann Dep. (Ex. 6) at 291: 12-21; Hartmann Dep. (Ex. 6) at 444:25-445:3; Aff. Julie B. McCollum (Ex. 33 ) ¶
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3 ; Aff. Christine V. Kirk (Ex. 29 ) ¶ 3; Aff. Kimberly C. Hartmann (Ex. 34 ) ¶ 3; Aff. Patrice E. Walker (Ex. 30 ) ¶ 3; Aff. Bobby Scott (Ex. 31) ¶ 3; Aff. Indu Gupta (Ex. 32 ) ¶ 3 ; Aff. Kelly Powers-Weekes (Ex. 35) RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Nonetheless, for

5 purposes of the current motion GTCR assumes that the promises and representations set 6 forth in Kirk's Answers to GTCR's First Set of Interrogatories were made, and that 7 plaintiffs contend they became terms of the joint venture. See SOF ¶ 12. GTCR denies 8 that any decision to resign based upon such promises was reasonable in light of the 9 contents of the SOU and subsequent agreements flowing there from. GTCR denies that 10 this fact is "additional" or that it precludes summary judgment. See SOF ¶¶ 10, 12. 11 12 13 14 15 81. The parties to the joint venture included Chris Kirk, GTCR, Kim Hartmann, Julie McCollum, Kelly Powers-Weekes, lndu Gupta, Patti Walker, and Bobby Scott. McCollum Dep. (Ex. 7 ) at 124: 20-24; Scott Dep. (Ex. 9) at 92: 5-22; Walker Dep. (Ex. 10) at 21:16-19; Powers-Weekes Dep. (Ex. 8) at 119:5-Il. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this

16 alleged fact is contradicted by plaintiff Kirk, who testified that the parties included 17 everyone who had ever been an employee of LeapSource, as well as others who 18 purportedly joined and then left before August 30, 1999, the date plaintiffs now claim is 19 the beginning of the joint venture. See Kirk Dep. (Ex. 18) at 133:1-3, 359:7-20. 20 Plaintiffs' own testimony is inconsistent on this, which is additional evidence that no 21 such joint venture existed. Nonetheless, this alleged fact is immaterial to the current 22 motion. 23 24 25 26 27 28 RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this is
13

82.

Christine Kirk and the other individual plaintiffs, except Tom Gilman, were parties to a joint venture with GTCR that was separate and apart from LeapSource. Kirk Dep. (Ex. 1) at 244: 3-6; McCollum Dep. (Ex. 7) at 113: 22-114:1; Scott Dep. (Ex. 9) at 86: 21-87: 1; Walker Dep. (Ex. 10) at 21: 16-19; Weekes-Powers Dep. (Ex. 8) at 119: 5-7; Hartmann Dep. (Ex. 6) at 298: 15-18; Scot Dep. (Ex. 9 ) at 87:21-23.

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1 not a statement of "fact" at all, but rather the ultimate legal question at issue in the current 2 motion. 3 4 5 6 83. Plaintiff Bobby Scott testified that he joined the joint venture when he agreed to resign from Arthur Andersen with the rest of the plaintiffs. Scott Dep. (Ex. 9) at 90: 4-7. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this is

7 not a statement of "fact" at all, but rather the ultimate legal question at issue in the current 8 motion. 9 10 11 84. The joint venture had expenses. Kirk Dep. (Ex. 1) at 246:2 to 250:11. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this is

12 not a statement of "fact" at all, but rather a legal conclusion based on Kirk's attempt to 13 impute personal expenses to the alleged joint venture. Because the expenses discussed in 14 the testimony are purely personal, the quoted testimony provides no factual support for 15 the alleged statement. 16 17 18 19 85. Plaintiff Kelly Powers-Weekes testified that she joined the joint venture when she agreed to resign from Arthur Andersen. Powers-Weekes Dep. (Ex. 8 ) at 126: 3-1. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this is

20 not a statement of "fact" at all, but rather the ultimate legal question at issue in the current 21 motion. 22 23 24 25 86. Plaintiff Bobby Scott joined the joint venture in early September 1999 when he communicated his intention to join to Chris Kirk. Scott's Ans. To GTCR's First Set of Interrogs. (Ex. 11) at 4:22-25 (Oct. 7, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this is

26 not a statement of "fact" at all, but rather the ultimate legal question at issue in the current 27 motion. 28 87. Plaintiff Patrice Walker joined the joint venture towards the end of August
14

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1999. Walker's Ans. To GTCR's First Set of Interrogs. (Ex. 12) at 4:10-13 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this is not a statement of "fact" at all, but rather the ultimate legal question at issue in the current motion. 88. Plaintiff Indu Gupta joined the joint venture towards the end of August 1999. Gupta's Ans. To GTCR's First Set of Interrogs. (Ex. 13) at 2:18-24 and 4:16-17 (Oct. 15, 2004). RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this is not a statement of "fact" at all, but rather the ultimate legal question at issue in the current motion. This alleged statement, taken from Gupta's obviously attorney-written interrogatories, is directly contradicted by her own later sworn testimony, in which she admitted that she did not understand that such a joint venture even existed, let alone that she was a member. 89. Patrice Walker testified that she believed the joint venture agreement between plaintiffs and GTCR began on approximately August 30, 1999. Walker Dep. (Ex. 10.) at 22: 22-12 23:2 RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. Moreover, this is not a statement of "fact" at all, but rather the ultimate legal question at issue in the current motion. 90. Julie McCollum would not have resigned her position at Arthur Andersen if she did not believe that she had a financial commitment form GTCR to fund their joint venture to build an industry-leading BPO practice. Aff. Julie B. McCollum (Ex. 33) ¶ 3. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-42. In any event, the

26 alleged "fact" is not material to the current motion. As of September 14, 1999, when the 27 individual plaintiffs resigned, they had a "commitment" from GTCR as set forth in the 28 SOU of that date, subject to all the conditions and limitations described therein.
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91.

McCollum was told that she had to resign from Arthur Andersen before GTCR, Joe Nolan and Bruce Rauner would sign any written documentation committing funding to them. Aff. 18 Julie B. McCollum (Ex. 33 ) ¶ 4. RESPONSE: Not disputed that McCollum "was told" this, but she was told this by Kirk

or her attorney Jeff Gilbert, not GTCR, and therefore this fact is not material to the current motion. GTCR never made resignation a requirement prior to completion of funding documents. To the contrary, this was Kirk's requirement, made on advice from her counsel Jeff Gilbert. See Gilbert Dep (Ex. 36) at 58:13-60:14; Kirk Dep. (Ex. 37) at 187:5-189:9. 92. GTCR, Joe Nolan and Bruce Rauner knew that Julie McCollum would rely on their verbal commitment to fund their venture. Aff. Julie B. McCollum (Ex. 33 ) ¶ 5. RESPONSE: Disputed. There is no record support for this statement. The sole source for this alleged "fact" is McCollum's self-serving affidavit, even though there is no foundation for her to have any basis for so testifying to what GTCR, Nolan or Rauner may have known. In any event, the alleged "fact" is not material to the current motion. As of September 14, 1999, when the individual plaintiffs resigned, they had a "commitment" from GTCR as set forth in the SOU of that date, subject to all the conditions and limitations described therein. There was no joint venture. See SOF ¶ 141. 93. GTCR, Joe Nolan and Bruce Rauner knew that Arthur Andersen was going to file a lawsuit against Julie McCollum and others who had left Andersen and that it would be difficult to find employment at any Big 5 accounting firm after she resigned from Arthur Andersen if GTCR did not honor its commitment to the joint venture. Aff. Julie B. McCollum (Ex. 33 ) ¶ 5. RESPONSE: Disputed. There is no record support for this statement. The sole source

26 for this alleged "fact" is McCollum's self-serving affidavit, even though there is no 27 foundation for her to have any basis for so testifying to what GTCR, Nolan or Rauner 28 may have known. In any event, the asserted "fact" is not material to the current motion.
16

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1 2 3 4 5

94.

Christine Kirk would not have resigned her position at Arthur Andersen if she did not believe that she and the group had a financial commitment from GTCR, Joe Nolan and Bruce Rauner to fund their joint venture to build an industry-leading BPO practice. Aff. Christine V. Kirk (Ex. 29) ¶ 3. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-42. In any event, the

6 alleged "fact" is not material to the current motion. As of September 14, 1999, when the 7 individual plaintiffs resigned, they had a "commitment" from GTCR as set forth in the 8 SOU of that date, subject to all the conditions and limitations described therein. 9 10 11 12 95. Kirk was told that she had to resign from Arthur Andersen before GTCR, Joe Nolan and Bruce Rauner would sign any written documentation committing funding to them. Aff. Christine V. Kirk (Ex. 29) ¶ 4. RESPONSE: Not disputed that Kirk "was told" this, but she was told this by her attorney

13 Jeff Gilbert, not GTCR, and therefore this fact is immaterial to the current motion. 14 GTCR never made resignation a requirement prior to completion of funding documents. 15 To the contrary, this was Kirk's requirement, made on advice from her counsel Jeff 16 Gilbert. See Gilbert Dep (Ex. 36) at 58:13-60:14; Kirk Dep. (Ex. 37) at 187:5-189:9. 17 18 19 20 96. GTCR, Joe Nolan and Bruce Rauner knew that Kirk would rely on their verbal commitment to fund their venture. Aff. Christine V. Kirk (Ex. 29 ) ¶ 5. RESPONSE: Disputed. There is no record support for this statement. The sole source

21 for this alleged "fact" is Hartmann's self-serving affidavit, even though there is no 22 foundation for her to have any basis for so testifying to what GTCR, Nolan or Rauner 23 may have known. In any event, the alleged "fact" is not material to the current motion. 24 As of September 14, 1999, when the individual plaintiffs resigned, they had a 25 "commitment" from GTCR as set forth in the SOU of that date, subject to all the 26 conditions and limitations described therein. There was no joint venture. See SOF ¶ 127 41. 28 97. GTCR, Joe Nolan and Bruce Rauner knew that Arthur Andersen was going
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to file a lawsuit against Christine Kirk and others who had left Andersen and that it would be difficult to find employment at any Big 5 accounting firm after she resigned from Arthur Andersen if GTCR did not honor its commitment to the joint venture. Aff. Christine V. Kirk (Ex. 29 ) ¶ 5. RESPONSE: Disputed. There is no record support for this statement. The sole source for this alleged "fact" is Kirk's self-serving affidavit, even though there is no foundation for her to have any basis for so testifying to what GTCR, Nolan or Rauner may have known. In any event, the asserted "fact" is not material to the current motion. 98. Kim Hartmann would not have resigned her position at Arthur Andersen if she did not believe that she had a financial commitment form GTCR to fund their joint venture to build an industry-leading BPO practice. Aff. Kimberly C. Hartmann (Ex. 34 ) ¶ 3. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-42. In any event, the

13 alleged "fact" is not material to the current motion. As of September 14, 1999, when the 14 individual plaintiffs resigned, they had a "commitment" from GTCR as set forth in the 15 SOU of that date, subject to all the conditions and limitations described therein. 16 17 18 19 99. Hartmann was told that she had to resign from Arthur Andersen before GTCR, Joe Nolan and Bruce Rauner would sign any written documentation committing funding to them. Aff. Kimberly C. Hartmann (Ex. 34 ) ¶ 4. RESPONSE: Not disputed that Hartmann "was told" this, but she was told this by Kirk or

20 her attorney Jeff Gilbert, not GTCR, and therefore this fact is immaterial to the current 21 motion. GTCR never made resignation a requirement prior to completion of funding 22 documents. To the contrary, this was Kirk's requirement, made on advice from her 23 counsel Jeff Gilbert. See Gilbert Dep (Ex. 36) at 58:13-60:14; Kirk Dep. (Ex. 37) at 24 187:5-189:9. 25 26 27 28 100. GTCR, Joe Nolan and Bruce Rauner knew that Hartmann would rely on their verbal commitment to fund their venture. Aff. Kimberly C. Hartmann (Ex. 34 ) ¶ 5. RESPONSE: Disputed. There is no record support for this statement. The sole source
18

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1 for this alleged "fact" is Hartmann's self-serving affidavit, even though there is no 2 foundation for her to have any basis for so testifying to what GTCR, Nolan or Rauner 3 may have known. In any event, the alleged "fact" is not material to the current motion. 4 As of September 14, 1999, when the individual plaintiffs resigned, they had a 5 "commitment" from GTCR as set forth in the SOU of that date, subject to all the 6 conditions and limitations described therein. There was no joint venture. See SOF ¶ 17 41. 8 9 10 11 12 101. GTCR, Joe Nolan and Bruce Rauner knew that Arthur Andersen was going to file a lawsuit against Kim Hartman and others who had left Andersen and that it would be difficult to find employment at any Big 5 accounting firm after she resigned from Arthur Andersen if GTCR did not honor its commitment to the joint venture. Aff. Kimberly C. Hartmann (Ex. 34 ) ¶ 5. RESPONSE: Disputed. There is no record support for this statement. The sole source

13 for this alleged "fact" is Hartmann's self-serving affidavit, even though there is no 14 foundation for her to have any basis for so testifying to what GTCR, Nolan or Rauner 15 may have known. In any event, the asserted "fact" is not material to the current motion. 16 17 18 19 20 21 22 23 24 25 26 27 103. Christine Kirk told Patrice Walker that GTCR, Joe Nolan and Bruce Rauner required her to resign from Arthur Andersen before they would sign any written documentation committing their funding to them. Aff. Patrice E. Walker (Ex. 30 ) ¶ 4. RESPONSE: Not disputed that Kirk may have told her colleagues this, but GTCR never 102. Patrice Walker would not have resigned her position at Arthur Andersen if she did not believe that she had a financial commitment form [sic] GTCR to fund their joint venture to build an industry-leading BPO practice. Aff. Patrice E. Walker (Ex. 30 ) ¶ 3. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-42. In any event, the alleged "fact" is not material to the current motion. As of September 14, 1999, when the individual plaintiffs resigned, they had a "commitment" from GTCR as set forth in the SOU of that date, subject to all the conditions and limitations described therein.

28 made resignation a requirement prior to completion of funding documents and therefore
19

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1 this fact is immaterial to the current motion. To the contrary, this was Kirk's 2 requirement, made on advice from her counsel Jeff Gilbert. See Gilbert Dep (Ex. 36) at 3 58:13-60:14; Kirk Dep. (Ex. 37) at 187:5-189:9. Kirk admitted never telling anyone 4 about the existence of a joint venture. See Kirk Dep. (Ex. 18) at 244:24-245:8. 5 6 7 8 9 10 11 12 13 14 15 16 105. Christine Kirk told Bobby Scott that GTCR, Joe Nolan and Bruce Rauner required him to resign from Arthur Andersen before they would sign any written documentation committing their funding to them. Aff. Bobby Scott (Ex. 31) ¶ 4. RESPONSE: Not disputed that Kirk may have told her colleagues this, but GTCR never 104. Bobby Scott would not have resigned his position at Arthur Andersen if he did not believe that he had a financial commitment form GTCR to fund their joint venture to build an industry-leading BPO practice. Aff. Bobby Scott (Ex. 31) ¶ 3. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-42. In any event, the alleged "fact" is not material to the current motion. As of September 14, 1999, when the individual plaintiffs resigned, they had a "commitment" from GTCR as set forth in the SOU of that date, subject to all the conditions and limitations described therein.

17 made resignation a requirement prior to completion of funding documents and therefore 18 this fact is immaterial to the current motion. To the contrary, this was Kirk's 19 requirement, made on advice from her counsel Jeff Gilbert. See Gilbert Dep (Ex. 36) at 20 58:13-60:14; Kirk Dep. (Ex. 37) at 187:5-189:9. Kirk admitted never telling anyone 21 about the existence of a joint venture. See Kirk Dep. (Ex. 18) at 244:24-245:8. 22 23 24 25 26 106. Indu Gupta would not have resigned her position at Arthur Andersen if she did not believe that she had a financial commitment form GTCR to fund their joint venture to build an industry-leading BPO practice. Aff. Indu Gupta (Ex. 32 ) ¶ 3. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-42. In any event, the

27 alleged "fact" is not material to the current motion. As of September 14, 1999, when the 28 individual plaintiffs resigned, they had a "commitment" from GTCR as set forth in the
20

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1 SOU of that date, subject to all the conditions and limitations described therein. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 108. Kelly Powers-Weekes would not have resigned her position at Arthur Andersen if she did not believe that she had a financial commitment form [sic] GTCR to fund their joint venture to build an industry-leading BPO practice. Aff. Kelly Powers-Weekes (Ex. 35 ) ¶ 3. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-42. In any event, the 107. Christine Kirk told Indu Gupta that GTCR, Joe Nolan and Bruce Rauner required her to resign from Arthur Andersen before they would sign any written documentation committing their funding to them. Aff. Indu Gupta (Ex. 32 ) ¶ 4. RESPONSE: Not disputed that Kirk may have told her colleagues this, but GTCR never made resignation a requirement prior to completion of funding documents and therefore this fact is immaterial to the current motion. To the contrary, this was Kirk's requirement, made on advice from her counsel Jeff Gilbert. See Gilbert Dep (Ex. 36) at 58:13-60:14; Kirk Dep. (Ex. 37) at 187:5-189:9. Kirk admitted never telling anyone about the existence of a joint venture. See Kirk Dep. (Ex. 18) at 244:24-245:8.

16 alleged "fact" is not material to the current motion. As of September 14, 1999, when the 17 individual plaintiffs resigned, they had a "commitment" from GTCR as set forth in the 18 SOU of that date, subject to all the conditions and limitations described therein. 19 20 21 22 23 24 25 26 27 28
21

109.

Christine Kirk told Kelly Powers-Weekes that GTCR, Joe Nolan and Bruce Rauner required her to resign from Arthur Andersen before they were prepared to commit funding to their joint venture. Aff. Kelly PowersWeekes (Ex. 35) ¶ 4. RESPONSE: Not disputed that Kirk may have told her colleagues this, but GTCR never

made resignation a requirement prior to completion of funding documents and therefore this fact is immaterial to the current motion. To the contrary, this was Kirk's requirement, made on advice from her counsel Jeff Gilbert. See Gilbert Dep (Ex. 36) at 58:13-60:14; Kirk Dep. (Ex. 37) at 187:5-189:9. Kirk admitted never telling anyone about the existence of a joint venture. See Kirk Dep. (Ex. 18) at 244:24-245:8.

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110.

On August 30, 1999, Kirk notified Nolan that she and a management team including Kim Hartmann, Julie McCollum and the remaining individual plaintiffs (with the exception of Tom Gilman) had agreed to leave Andersen in order to pursue the new business venture with GTCR. The joint venture agreement was created on that date. Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 7:l4-l7 (Oct. 15, 2004). RESPONSE: Disputed. In her deposition, Kirk testified that she had not decided to leave

Andersen as of August 30, 1999, and instead she continued to negotiate the terms of the SOU until September 14, 1999. See SOF ¶ 9. In addition, there was no joint venture. See SOF ¶¶ 1-42. In any event, the alleged "fact" is not material to the current motion. 111. In reliance on the promises and commitments made by GTCR to the plaintiff members of the joint venture, plaintiffs chose to resign from their careers at Arthur Andersen and create a business process outsourcing opportunity as joint venturers with GTCR. Hartmann Dep. (Ex. 6 ) at 300: 3-9, and 444: 24-445: 5. RESPONSE: Disputed. There was no joint venture, no such promises and commitments and no reasonable reliance. See SOF ¶¶ 1-41. Moreover, this is not a statement of "fact" at all, but rather the ultimate legal question at issue in the current motion. 112. Hartmann and others were pursuing other venture capital options with Bank of America during the July/August 1999 time frame. Hartmann Dep. (Ex 6) at 59:11-24. RESPONSE: Not disputed, but not material to the current motion. 113. GTCR said that GTCR was much larger, they could be counted on and they would be a more committed partner, (as compared to Bank of America). Hartmann Dep. (Ex. 6 ) at 71:13-15. RESPONSE: Not disputed for purposes of the current motion only, but not material to the current motion. 114. GTCR's commitment was important to Hartmann and the others. Hartmann Dep. (Ex. 6) at 7l:l6-l7. RESPONSE: Not disputed for purposes of the current motion only. As of September 14,
22

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1 1999, when the individual plaintiffs resigned, they had a "commitment" from GTCR as 2 set forth in the SOU of that date, subject to all the conditions and limitations described 3 therein. There was no joint venture. See SOF ¶ 1-41. Nonetheless, not material to the 4 current motion. 5 6 7 8 9 10 11 12 13 14 15 16 17 117. Nolan told Hartmann that he thought that GTCR was the better partner. Hartmann Dep. (Ex. 6) at 72:l6-l7. RESPONSE: Not disputed for purposes of the current motion only, but not material to the 116. Nolan told Hartmann that he knew she was considering other alternatives, but that he wanted her to know that GTCR was committed to her. Hartmann Dep. (Ex. 6 ) at 72:15-16. RESPONSE: Not disputed for purposes of the current motion only, but not material to the current motion. 115. GTCR placed doubt on Bank of America's wherewithal to fully finance Hartmann and the others. Hartmann Dep. (Ex. 6) at 71:11-12. RESPONSE: Not disputed for purposes of the current motion only, but not material to the current motion.

18 current motion. 19 20 21 22 23 118. In early September 1999, Kirk demanded additional assurances from Nolan about GTCR's commitment to funding the new BPO firm, and was assured that GTCR was "fully committed" to funding $65 million and if "things are going well, we'll fund $100 million". Kirk's Ans. To GTCR's First Set of Interrogs. (Ex. 2) at 19:13-20:2 (Oct. 15, 2004) RESPONSE: Not disputed for purposes of the current motion only, but not material to the

24 current motion. 25 26 27 28 119. Joe Nolan told Kim Hartmann it was OK for her to publish, in a press release, that GTCR had committed sixty five million dollars of venture capital to their start-up. Hartmann Dep. (Ex. 6 ) at 279:7-10. RESPONSE: Not disputed for purposes of the current motion only, but not material to the
23

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1 current motion. 2 3 4 5 120. Kim Hartmann viewed the joint venture as a set of promises and commitments that GTCR extended to her and others upon which they decided to leave Andersen. Hartman Dep. (Ex. 6) at 291:12-15. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. In any event,

6 what Hartmann "viewed" the joint venture to be is not a "fact" material to the current 7 motion. 8 9 10 11 121. Kim Hartmann believed that there were operations or things being done by the joint venture separate and apart from LeapSource. Hartmann Dep. (Ex. 6) 296:20-23. RESPONSE: Disputed. Hartmann contradicted herself several times on this point.

12 Immediately prior to the quoted testimony, she denied that there were any "operations" 13 because the joint venture wasn't an "entity" but rather merely a "relationship." See 14 Hartmann Dep. (Ex. 38) at 296:3-8. Moreover, Hartmann never identified anything the 15 alleged joint venture did separate and apart from LeapSource. See id. at 297:8-298:14. 16 In any event, what Hartmann "believed" is not material to the current motion where she 17 can identify no facts to support it. 18 19 20 21 22 23 24 25 26 27 28 123. The joint venture between the plaintiffs and GTCR was intended to endure throughout the life of the business they were building. Kirk Dep. (Ex. 1 ) at 244: 3-7.
24

122.

The joint venture was a separate entity from LeapSource. Walker Dep. (Ex. 10) at 53:18-21. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. In addition, there

is no record support for this statement. Walker does not testify in the selection cited about the joint venture at all, and nowhere in her deposition did Walker testify that the joint venture was an "entity." Moreover, if she had, she would have been directly contradicted by other plaintiffs, who testified that the joint venture was something other than an entity. See Hartmann Dep. (Ex. 38) at 295:3-296:8.

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1 2 3 4 5 6 124.

RESPONSE: Disputed. See response to SOF ¶ 47, to which this alleged fact is identical. Part of Kim Hartmann's obligation with respect to the joint venture was to help build a leading practice BPO company. Hartmann Dep. (Ex. 6 ) at 300:21-25. RESPONSE: Disputed. There was no joint venture. See SOF ¶¶ 1-41. In any event, the

7 asserted "fact" is not material to the current motion. 8 9 10 11 125. On September 16, 1999 Kirkco, Inc. was formed. The name was subsequently changed to Leap, Inc. and then to LeapSource, Inc. Certificate of Incorporation and Amendments (Ex. 14). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it

12 precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 13 13. 14 15 16 17 18 19 20 21 22 126. On or around September 27, 1999 GTCR, Kirkco, Inc. and Christine Kirk entered into a Stockholders Agreement. Stockholders Agreement (Ex. 15). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 32. 127. On our around September 27, 1999 GTCR, Kirkco, Inc. and Christine Kirk entered into a Registration Agreement. Registration Agreement (Ex. 16). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it

23 precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 24 33. 25 26 27 28
25

128.

On our around September 27, 1999 Kirkco, Inc. entered into a Purchase Agreement with GTCR. Purchase Agreement (Ex. 17). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it

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1 precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 2 35. 3 4 5 6 129. On or around September 27, 1999 Kirkco, Inc. and Christine Kirk entered into a Senior Management Agreement (SMA). Kirk SMA (Ex. 18). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it

7 precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 8 31. 9 10 11 12 130. On or around October 5, 1999 Leap, Inc. entered into a Senior Management Agreement with Kimberly C. Hartmann. Hartmann SMA (Ex. 19). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it

13 precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 14 36. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 133. On or around October 5, 1999 Leap, Inc entered into an Employment Agreement with Kelly A. Powers. Powers Employment Agreement (Ex. 22).
26

131.

On or around October 5, 1999 Leap, Inc. entered into a Senior Management Agreement with Julie McCollum. McCollum SMA (Ex. 20). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it

precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 37. 132. On or around October 5, 1999 Leap, Inc. entered into an Employment Agreement with Indu Gupta. Gupta Employment Agreement (Ex. 21). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 38.

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1 2

RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it

3 precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 4 39. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
27

134.

On or around October 5, 1999 Leap, Inc. entered into an Employment Agreement with Bobby D. Scott. Scott Employment Agreement (Ex. 23). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it

precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 40. 135. On or around October 5, 1999 Leap, Inc. entered into an Employment Agreement with Patrice E. Walker. Walker Employment Agreement (Ex. 24). RESPONSE: Not disputed, but GTCR denies that this fact is "additional" or that it precludes summary judgment. This fact is not materially different than GTCR's SOF ¶ 41. 136. GTCR identified executives that they thought were exceptional in their fields and they forged partnerships with them to start companies and to buy companies. Donnini Dep. (Ex. 25) at 106:15-18. RESPONSE: Not disputed, but taken out of context so as to make it meaningless. In context, Mr. Donnini was merely explaining the sense in which he had used the word "partnership" in response to an earlier question, in which he stated that GTCR "forged partnerships" with executives. His answer clarified that he was referring to GTCR's approach to the relationship with executives, not to any legal relationship or entity. In any event, this "fact" is not material to the current motion. 137. GTCR used the word "partnerships" to describe their company relationships with CEO's in whose companies they invest. Donnini Dep. (Ex. 25) at 107:19-21. RESPONSE:

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1

Not disputed, but taken out of context so as to make it meaningless. In

2 context, Mr. Donnini was merely explaining the sense in which he had used the word 3 "partnership" in response to an earlier question, in which he stated that GTCR "forged 4 partnerships" with executives. His answer clarified that he was referring to GTCR's 5 approach to the relationship with executives, not to any legal relationship or entity. In 6 any event, this "fact" is not material to the current motion 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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138.

GTCR's admitted "tag line" is the phrase "Partners With Management In Private Equity" which implies, among other things, a "cooperative working relationship with people." Nolan Dep. (Ex. 26 ) at 61: 17-62:8, Rauner Dep. (Ex. 27 ) at 63:4-2. RESPONSE: Not disputed, but not material to the current motion.

139.

Bruce Rauner of GTCR testified that GTCR's tag line "Partners With Management In Private Equity" means that GTCR is all about identifying with and investing behind talented CEO's and talented entrepreneurs. Rauner Dep. (Ex. 27 ) at 63:4-19. RESPONSE: Not disputed, but not material to the current motion.

140.

Bruce Rauner of GTCR testified that GTCR's tag line "Partners With Management In Private Equity" means that there is not a senior-subservient dynamic between GTCR and the entrepreneurs that they back. Rauner Dep. (Ex. 27 ) at 63:4-20. RESPONSE: Not disputed, but not material to the current motion.

141.

Bruce Rauner of GTCR testified that GTCR's tag line "Partners With Management In Private Equity" means that GTCR and the entrepreneurs that they back are at the same level. Rauner Dep. (Ex. 27) at 63:4-2 1. RESPONSE: Not disputed, but not material to the current motion.

142.

Bruce Rauner of GTCR testified that GTCR's tag line "Partners With Management In Private Equity" means that GTCR and the entrepreneurs that they back are in things together. Rauner Dep. (Ex. 27) at 63:4-21. RESPONSE: Not disputed, but not material to the current motion.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

143.

Bruce Rauner of GTCR testified that GTCR's tag line "Partners With Management In Private Equity" means that GTCR and the entrepreneurs that they back work together as a team. Rauner Dep. (Ex. 27 ) at 63:4-22. RESPONSE: Not disputed, but not material to the current motion.

144.

Bruce Rauner of GTCR testified that GTCR's tag line "Partners With Management In Private Equity" means that GTCR and the entrepreneurs that they back cooperate with one another. Rauner Dep. (Ex. 27 ) at 63:422. RESPONSE: Not disputed, but not material to the current motion.

145.

Bruce Rauner of GTCR testified that GTCR's tag line "Partners With Management In Private Equity" means that GTCR and the entrepreneurs that they back help each other. Rauner Dep. (Ex. 27 ) at 63:4-23. RESPONSE: Not disputed, but not material to the current motion.

146.

Bruce Rauner of GTCR testified that GTCR and the entrepreneurs that they back take a long-term view. Rauner Dep. (Ex. 27 ) at 63 :4-23. RESPONSE: Not disputed, but not material to the current motion.

147.

Bruce Rauner of GTCR testified that GTCR and the entrepreneurs that they back try to build quality companies. Rauner Dep. (Ex. 27 ) at 63:4-24. RESPONSE: Not disputed, but not material to the current motion.

148.

Bruce Rauner of GTCR testified that GTCR and the entrepreneurs that they back try to have fun together as teammates and cooperative workers in building quality businesses. Rauner Dep. (Ex 27 ) at 63:4-64-1. RESPONSE: Not disputed, but not material to the current motion.

149.

Joe Nolan admitted that it would not have been unusual for GTCR to refer to Christine Kirk as their "management partner". Nolan Dep. (Ex. 26) at 62: 17-21. RESPONSE: Disputed. Mischaracterizes the testimony. Nolan was not asked whether
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1 Kirk specifically was thus referred to. The question related to general practices. 2 Nevertheless, the alleged fact is not material to the current motion. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155. The joint venture did generate profits and losses. Kirk Dep. (Ex. 1) at 249:22-25.
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150.

GTCR previously formed a venture with former KPMG partners similarly situated to Hartmann and the others. Hartmann Dep. (Ex. 6) at 45:17-21. RESPONSE: GTCR does not dispute that it previously funded a company called

AnswerThink in conjunction with former KPMG partners, but that fact is not material to the current motion. Notwithstanding that, GTCR disputes whether those former KPMG partners were "similarly situated" to Hartmann or anyone else. 151. GTCR's average length of involvement behind a management team is almost eight years. Rauner Dep. (Ex. 27 ) at 78:20-79:6. RESPONSE: Not disputed, but not material to the current motion. 152. GTCR's focus is really on identifying people. Canfield Dep. (Ex. 28 ) at 21:3-4. RESPONSE: Not disputed, but taken out of context so as to make it meaningless, and not material to the current motion. 153. GTCR seek