Free Statement - 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. (Oral Argument Requested) No. CIV 02-2099 PHX RCB KIRKLAND & ELLIS' STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT RE AIDING AND ABETTING AND TORTIOUS INTERFERENCE CLAIMS (Assigned to Hon. Robert C. Broomfield)

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Pursuant to LRCiv 56.1(a), Kirkland & Ellis ("K&E") submits this Statement of Facts in Support of its Motion for Summary Judgment Regarding the Aiding and Abetting and Tortious Interference Claims. 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.) 2. 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.)
Case 2:02-cv-02099-RCB Document 256 Filed 10/03/2005 Page 1 of 4

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

3.

Plaintiff Thomas Gilman never had any conversations with any attorney,

representative, or 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.) 4. 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.) 5. 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.) 6. Plaintiff Kelly Powers never had any conversations with any attorney,

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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.) 7. 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, 2005, attached as Exhibit 7.) 8. Plaintiff Bobby Scott never had 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.) 9. Plaintiff Patrice Walker never 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.)
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

10.

Kirk's deposition 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 need to get back and talk to K&E about this," or "We need to call K&E about this." 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.

A: Q: A: Q: A: Q:

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A:

(Kirk Dep., Ex. 1, at 687:6-21.) 11. 16 prepared by the firm of Jennings Strouss & Salmon, which served as counsel for 17 LeapSource on employment matters. (Excerpts of Deposition Transcript of Tina Rhodes, 18 attached as Exhibit 10, at 245:14 - 246:12). The letter was not prepared by K&E. (Id.; 19 Excerpts of Deposition Transcript of Richard Clyne, attached as Exhibit 11, at 53:4 - 54:3; 20 Excerpts of Deposition Transcript of Kevin Evanich, attached as Exhibit 12, at 31:12 21 33:10.) 22 23 24 25 26 27 28
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The draft letter to Kirk that reclassified her termination as "for cause" was

DATED this 3rd day of October, 2005. SNELL & WILMER L.L.P. By s/ Joseph G. Adams John J. Bouma James R. Condo Patricia Lee Refo Joseph G. Adams Attorneys for Kirkland & Ellis

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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 October 3, 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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1727748

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Case 2:02-cv-02099-RCB

Document 256- 4 - Filed 10/03/2005

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