Free Response to Motion - District Court of Arizona - Arizona

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John J. Bouma (#001358) James R. Condo (#005867) Patricia Lee Refo (#017032) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. 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' RESPONSE TO PLAINTIFFS' MOTION FOR RECONSIDERATION (Assigned to Hon. Robert C. Broomfield)

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Pursuant to the Court's order filed on December 4, 2006, Kirkland & Ellis ("K&E") submits its response in opposition to plaintiffs' Motion for Reconsideration. As directed by the Court, K&E focuses this brief on responding to plaintiffs' arguments "concerning K&E's conduct beyond its recommendation of David Eaton's services to LeapSource, Inc." (12/4/06 Order (Doc. #463) at 16.) None of these arguments, or the supporting evidence plaintiffs cite, demonstrate that this Court's prior orders were "clear error" or "fell clearly outside the bounds of [the Court's] authority." (Id. at 12.) I. LEGAL STANDARD. A "court may reconsider its grant of summary judgment under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from judgment [or order])." School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Under either rule, motions for reconsideration are disfavored
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and should not be granted absent "highly unusual circumstances." McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Reconsideration is appropriate under Rule 59(e) only if the moving party (1) demonstrates the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; (2) presents newly discovered or previously unavailable evidence; (3) shows the motion is necessary to prevent manifest injustice; or (4) shows the motion is justified by an intervening change of law. Id. at 1255 n.1. The "motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior . . . ." 11 CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 2810.1 at 127-28 (1995). Under Rule 60(b), reconsideration is appropriate only "upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) `extraordinary circumstances' which would justify relief." ACandS, 5 F.3d at 1263. In this case, plaintiffs do not rely on any newly discovered evidence or an intervening change in the controlling law. Plaintiffs must, therefore, establish that the Court committed clear error or that a manifest injustice would occur if summary judgment was not reconsidered. See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). For clear error to exist, the Court must be "left with the definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2000). Manifest injustice requires the showing of a "direct, obvious, and observable" error by the Court. In re Oak Park Calabasas Condo. Ass'n, 302 B.R. 682, 683 (Bankr. C.D. Cal 2003). II. EVIDENCE CITED BY PLAINTIFFS. In their motion for reconsideration, plaintiffs cite six specific instances of K&E's alleged conduct "apart from the fact and circumstances surrounding K&E's recommendation of Mr. Eaton for his role at LeapSource:" (1) K&E's alleged "participation in decisions regarding the reductions in force at LeapSource"; (2) K&E's conduct "regarding the termination of Individual Plaintiffs and opposing their claims for
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severance"; (3) K&E's alleged "attempts to intimidate or coerce Christine Kirk and Tom Gilman into releasing GTCR of any claims"; (4) K&E's purported "attempts to prevent Tom Gilman from inspecting LeapSource documents"; (5) any involvement by K&E in "the decision to put LeapSource into bankruptcy"; and (6) additional general evidence of K&E's involvement. (See Pls.' Mot. at 8:10-21.) A review of the record evidence, however, shows that plaintiffs' assertions are either unsupported by evidence or insufficient to support their claims, or both. A. "Participation in decisions regarding reductions in force."

According to plaintiffs, there is evidence of K&E's "participation" in reductions at force at LeapSource. (Pls.' Mot. at 8:10-14, citing Pls.' Statement of Additional Facts re Aiding and Abetting Mot. ("Aiding and Abetting SOAF") (Doc. #292) ¶¶ 30, 69, 71, 86, 137, and 143.)1 First, plaintiffs claim that K&E billed time to LeapSource for work regarding "WARN Act issues and liabilities related to employee terminations." (Aiding and Abetting SOAF ¶ 30.) For support, plaintiffs point to an invoice jointly sent to GTCR and LeapSource. However, the cited invoice does not reflect that K&E performed any services for LeapSource. Instead, as all witnesses with personal knowledge testified, K&E represented GTCR, not LeapSource. (Kirkland & Ellis' Statement of Facts in Supp. of Mot. for Summ. J. Re Malpractice and Professional Negligence ("SOF re Malpractice") (Doc. #329) at ¶¶ 10, 12, 32-33, 47, 52, 60-61; Resp. to Aiding and Abetting SOAF ¶ 30 (Doc. #304).) Further, at the time of GTCR's initial investment, LeapSource agreed to pay GTCR's legal bills regarding LeapSource. (SOF re Malpractice (Doc. #329) at ¶ 51.) Second, plaintiffs claim that David Eaton "consulted with" and received "advice" from K&E partner Timothy Stephenson about WARN Act issues at LeapSource. (Aiding and Abetting SOAF ¶¶ 69, 71, 86.) However, the only evidence reflecting any communication between Eaton and Stephenson is a single e-mail that Stephenson sent to For the Court's convenience, Appendix A contains each of the individual statements of fact and responses cited in this memorandum.
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Eaton that did not refer specifically to LeapSource and that attached WARN Act notices from other cases. The solitary e-mail does not reflect any advice or consultation apart from the transmission of the e-mail, and certainly is not evidence of "participation in decisions regarding reductions in force." (See Resp. to Aiding and Abetting SOAF ¶¶ 69, 71, 86 (Doc. #304).) Third, plaintiffs point to deposition testimony by Richard Clyne, a former K&E associate attorney, and a note and e-mail from Sean Cunningham at GTCR. (Aiding and Abetting SOAF ¶¶ 137, 143.) However, Clyne testified only that he recalled having some sort of conversation involving Eaton and himself (as a listener or participant) regarding liability under the WARN Act. (Resp. to Aiding and Abetting SOAF ¶ 143 (Doc. #304).) He could not remember any additional details. The Cunningham documents -- an e-mail and a handwritten note on a website printout -- do not contain any information about K&E other than Tim Stephenson's phone number. None of this evidence points to participation by K&E in any decisions regarding reductions in force at LeapSource. B. Conduct regarding termination and severance.

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Plaintiffs next claim that there is evidence that K&E engaged in conduct regarding the termination of the individual plaintiffs and their subsequent claims for severance. The cited evidence consists entirely of correspondence forwarded by Tina Rhodes or David Eaton to K&E lawyers. (Aiding and Abetting SOAF ¶¶ 97-99, 102.) First, plaintiffs point to a fax from Tina Rhodes at LeapSource to Richard Clyne at K&E, which Clyne forwarded to other K&E attorneys. (Id. at ¶¶ 97-98.) The fax cover sheet from Rhodes states that "I will call tomorrow" and "I have many items to discuss." However, Tina Rhodes testified that she never talked to Clyne about the "many items" referenced in the letter. (Rhodes Dep. at 154:4-10, Ex. 1 to Adams Decl. (Doc. #408).) She also testified that she understood that K&E was representing GTCR, not LeapSource, and that she "never went to Kirkland & Ellis for any type of substantive legal advice." (Resp. to Aiding and Abetting SOAF ¶ 97 (Doc. #304).)
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Next, plaintiffs point to the fact that Rhodes forwarded a letter from plaintiff Julie McCollum to Clyne at K&E. (Aiding and Abetting SOAF ¶ 99.) However, plaintiffs provide no evidence showing that the letter prompted K&E to take any action. Finally, plaintiffs point to an e-mail that Rhodes received from LeapSource's lawyers at Osborn Maledon. (Id. at ¶ 102.) Rhodes forwarded the e-mail to David Eaton, who forwarded it to Clyne, who forwarded it to two other K&E lawyers, James Munson and Michael Foster. Plaintiffs provide no evidence that this e-mail prompted any K&E lawyer to take any action. C. Attempts to "intimidate" or "coerce" Kirk and Gilman.

Plaintiffs also contend that K&E was involved with attempts to "intimidate or coerce Christine Kirk and Tom Gilman into releasing GTCR of any claims." (Pls.' Mot. at 8:16-17.) The cited evidence is a draft termination letter addressed to Kirk from K&E's files. (Aiding and Abetting SOAF ¶¶ 119, 123.) However, all witnesses with knowledge of the letter testified that it was prepared by an attorney at Jennings Strouss & Salmon, not anyone at K&E. (Kirkland & Ellis' Statement of Facts in Supp. of Mot. for Summ. J. Re Aiding and Abetting and Tortious Interference Claims (Doc. #256) at ¶ 11.) Plaintiffs correctly note that the letter was shared with K&E, but provide no evidence that anyone at K&E either contributed to the letter or advised anyone regarding the letter. Plaintiffs also cite the transcript of a voicemail message from David Eaton to Steve Savage, an attorney representing Kirk. (Aiding and Abetting SOAF ¶ 119.) However, the message -- which lacks foundation and is not authenticated -- does not mention K&E and plaintiffs offer no evidence showing any relationship between K&E and the message. (See Resp. to Aiding and Abetting SOAF ¶ 119 (Doc. #304).) D. Attempts to prevent Gilman from inspecting LeapSource documents.

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Plaintiffs contend that K&E attempted to prevent plaintiff Tom Gilman from inspecting LeapSource documents. (Aiding and Abetting SOAF ¶ 125.) The cited evidence is a letter from Gilman's attorney to LeapSource requesting to
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review corporate records. Rhodes faxed the letter to Clyne, who faxed it to David Eaton. The fax cover sheet included Clyne's message to Eaton that "I think we will need to speak with GTCR before making any response." The letter does not reflect any conduct by any K&E lawyer other than the transmission of a fax to LeapSource's Chief Restructuring Officer, Eaton. The message merely communicates that GTCR's lawyer at K&E would like to speak with his client before responding. Significantly, Eaton testified that he did not recall ever discussing this letter with Clyne. (Resp. to Aiding and Abetting SOAF ¶ 125 (Doc. #304).) E. Decision to put LeapSource into bankruptcy.

Plaintiffs also claim that K&E participated in the decision "to put LeapSource into bankruptcy." (Aiding and Abetting SOAF ¶ 149.) The sole basis for this contention is Richard Clyne's deposition testimony that he "participated in conversations primarily as a listener in which the potential bankruptcy of LeapSource was one of the topics," and that Eaton also participated. (Resp. to Aiding and Abetting SOAF ¶ 149 (Doc. #304).) Plaintiffs do not provide evidence that K&E took any action to "put LeapSource into bankruptcy" other than listening to a conversation in which the "potential bankruptcy" was mentioned. F. Other general evidence.

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Finally, plaintiffs cite "more generally" to evidence of K&E's participation in decisions involving LeapSource. According to plaintiffs, the evidence shows that David Eaton "reported what was going on at LeapSource" to lawyers at K&E. (Aiding and Abetting SOAF ¶¶ 127-128.) The cited evidence consists of deposition testimony by Eaton and two K&E lawyers, Clyne and Steve Ritchie. In fact, Eaton testified only that he sometimes gave "periodic status updates" to K&E because they represented the largest shareholder, GTCR. (Resp. to Aiding and Abetting SOAF ¶¶ 127, 128 (Doc. #304).) Plaintiffs do not explain how such updates prompted K&E to take any action. /// ///
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III.

THE CITED PORTIONS OF THE RECORD DO NOT RAISE AN ISSUE OF FACT REGARDING ANY OF PLAINTIFFS' CLAIMS AGAINST K&E. A. The Court correctly held that K&E was entitled to summary judgment on the Trustee's aiding and abetting claims.

As this Court has held, a claim for aiding and abetting requires proof of three elements: "(1) the primary tortfeasor must commit a tort that causes injury to the plaintiff; (2) the defendant must know that the primary tortfeasor's conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tortfeasor in the achievement of the breach." (8/28/06 Order (Doc. #457) at 22:14-22, citing Wells Fargo Bank v. Arizona Laborers, Teamsters and Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 26 (Ariz. 2002).) None of the facts to which plaintiffs point in their motion for reconsideration change the Court's holding that "Plaintiffs have failed to establish that K&E substantially assisted or encouraged GTCR in committing a breach [of fiduciary duty]." (8/28/06 Order (Doc. #457) at 24.) In particular, there is no evidence that K&E did anything other than communicate with its client GTCR. As a matter of law, this is not enough. "In addressing aiding and abetting liability in cases involving professionals, most courts have recognized that `substantial assistance' means something more than the provision of routine professional services." Witzman v. Lehrman, Lehrman, & Flom, 601 N.W.2d 179, 188-89 (Minn. 1999). In their motion, plaintiffs have claimed -- without evidentiary support -- that K&E "participat[ed]" in various decisions affecting LeapSource, such as decisions regarding the reductions in force, the termination of the individual plaintiffs, and the decision to "put LeapSource into bankruptcy." (Pls.' Mot. at 8:10-21.) When plaintiffs' claim is examined, however, there is no evidence of meaningful participation. Instead, plaintiffs point to things such as K&E's occasional receipt of correspondence regarding these general topics, general conversations regarding these topics, and limited work that K&E performed for GTCR regarding the WARN Act. At most, the evidence shows that K&E dealt with general issues concerning LeapSource, which no one disputes and is not
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surprising in light of K&E's representation of LeapSource's majority shareholder. Indeed, even if there were evidence that K&E participated in such discussions or decisions involving LeapSource, plaintiffs would not have met their burden to produce evidence supporting aiding and abetting liability. In particular, there is no showing of a "substantial causal connection between the culpable conduct of the alleged aider and abetter and the harm to the plaintiff." Metge v. Baehler, 762 F.2d 621, 624 (8th Cir. 1989), cited in Wells Fargo Bank, 38 P.3d at 26). Nor is there any evidence that K&E's conduct was "illegal and inequitable." Bar J Bar Cattle Co. v. Pace, 763 P.2d 545, 548 (Ariz. Ct. App. 1988). Without such evidence, plaintiffs' claims that K&E aided and abetted breaches of fiduciary duty must fail. B. The Court correctly held that K&E was entitled to summary judgment on the tortious interference claims.

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The individual plaintiffs claim that K&E tortiously interfered with their contracts and business expectancies. In their motion to reconsider, they argue that K&E was 14 involved in their terminations, opposed their severance claims, attempted to "intimidate or 15 coerce" Kirk and Gilman, and attempted to prevent Gillman from inspecting documents. 16 (Pls. Mot. at 8:10-21.) None of these claims merits reconsideration of the Court's ruling. 17 Under Arizona law, a critical element of a claim for tortious interference with 18 contractual relations or economic advantage is that the defendant acted "improperly." 19 (8/28/06 Order (Doc. #457) at 25, citing Safeway Insurance Co. v. Guerrero, 106 P.3d 20 1020, 1025 (Ariz. 2005), and Wells Fargo Bank, 38 P.3d at 31.) As the Arizona Supreme 21 Court held, affirming summary judgment for a lawyer on a tortious interference claim, 22 plaintiffs must "show more than the defendant's knowledge that his or her conduct would 23 induce a breach." Safeway Ins., 106 P.3d at 1026. Moreover, held the Court, "proof that 24 an actor intentionally induced a breach of contract is not sufficient to establish that the 25 actor's conduct was improper." Id. "Even such means as `physical violence, fraudulent 26 misrepresentation and threats of illegal conduct' may not constitute `improper conduct' 27 for purposes of the intentional interference tort in light of the particular `relation between 28
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the actor and the person induced.'" Id. at 1028 (quoting Restatement (Second) of Torts § 767, cmt. c). As before, plaintiffs have not produced any such evidence showing that K&E acted improperly to intentionally interfere with any of their contracts or business expectancies. None of plaintiffs' cited evidence suggests any improper conduct by K&E. Plaintiffs claim that K&E somehow participated in decisions involving reductions in force at LeapSource and the termination of individual plaintiffs, but cannot point to anything other than K&E's receipt of correspondence on these issues and the limited work that K&E did for GTCR regarding the WARN Act. Plaintiffs provide no evidence that K&E did anything at all in response to the correspondence, much less that it did something egregious enough to constitute tortious interference. Finally, there is no evidence to prove that K&E advised anyone to breach plaintiffs' contracts and, even if there were, lawyers' advice to their clients to breach a contract (assuming plaintiffs' claim that termination was a breach) does not constitute tortious interference. Safeway Ins., 106 P.3d at 1025 n.7. Similarly, plaintiffs' claim that K&E was involved in "attempts to intimidate or coerce" Chris Kirk and Tom Gilman simply have no support in the record. The only evidence supporting this assertion is a copy of the letter terminating Chris Kirk for cause ­ a letter which was drafted by a lawyer at another law firm, Jennings Strouss & Salmon. The only connection to K&E is that someone shared a copy of the letter with K&E, which is utterly insufficient to support a tortious interference claim. Finally, Tom Gilman complains that K&E interfered with his right as a shareholder to review the books and records of LeapSource. The sole evidence Gilman cites is that Richard Clyne received a copy of Gilman's request (authored by his attorney) and forwarded it to David Eaton, noting that Clyne would have to speak with GTCR before responding to Gilman's request. (Aiding and Abetting SOAF ¶ 125.) There is no evidence in the record that K&E did anything further with respect to Gilman's request. Accordingly, there is no proof K&E did anything to interfere with Gilman's review, much

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less that it did so wrongfully, or any evidence that Gilman was damaged as a consequence. C. The Court should not reconsider its malpractice ruling.

None of the evidence plaintiffs cite supplies the causal link this Court correctly found was missing in the Trustee's malpractice claim -- that is, there is still no causal connection between any action by K&E and any harm to LeapSource. The court correctly held that "the Trustee has failed to make a showing sufficient to establish the existence of the causation element essential to her claim." (8/28/06 Order (Doc. #457) at 38.) Assuming, for example, that K&E's January research on the WARN Act was for LeapSource (an assumption which the record belies), how did that research cause any damage to LeapSource, let alone the tens of millions of dollars LeapSource claims? Assuming that a K&E associate "participated in conversations together where the potential bankruptcy of LeapSource was one of the topics" (see Aiding and Abetting SOAF ¶ 149), what causal link is there between that and any harm to LeapSource? Moreover, these supposed facts have no connection whatsoever to Professor Hazard's sole theory of malpractice -- that K&E had a conflict of interest because it knew that Kirk had originally wanted a firmer funding commitment from GTCR. (See SOF re Malpractice (Doc. #329) at ¶ 96.) As the Court held, absent specific evidence of causation, a plaintiff in a legal malpractice action "must present expert testimony to substantiate the link between the claimed breach and the alleged injury." (8/28/06 Order (Doc. #457) at 31.) Applying this standard to the facts of this case, the Court further held that "Hazard did not express a specific opinion expressing causation in this matter." (Id. at 34.) The additional evidence on which plaintiffs rely does not supply the missing causal link between the claimed breach of duty by K&E and any injury suffered by plaintiff. This omission is fatal to plaintiffs' claim of legal malpractice. In short, none of these facts supplies the causation that K&E's motion demonstrated was missing. ///
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IV.

CONCLUSION. For all of the foregoing reasons, plaintiffs' Motion to Reconsider should be denied. DATED this 22nd day of December, 2006. 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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CERTIFICATE OF SERVICE I hereby certify that on December 22, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Leo R. Beus Scot C. Stirling Beus Gilbert, PLLC 4800 North Scottsdale Road Scottsdale, AZ 85251 Attorneys for Plaintiffs Don P. Martin Edward A. Salanga Quarles & Brady Streich Lang, LLP Two North Central Phoenix, AZ 85004-2391 Attorneys for GTCR Defendants and Defendants Nolan, Rauner, Yih, Donnini and Canfield David S. Foster Latham & Watkins, LLP Sears Tower, Suite 5800 233 South Wacker Drive Chicago, IL 60606 Attorneys for GTCR Defendants and Defendants Nolan, Rauner, Yih, Donnini and Canfield Merrick B. Firestone Ronan & Firestone, P.L.C. 649 North Second Avenue Phoenix, AZ 85003 Attorneys for Michael Makings Foster Robberson Richard A. Halloran Lewis and Roca LLP 40 N. Central Avenue Phoenix, AZ 85004-4429 Attorneys for David L. Eaton and AEG Partners LLC Steven J. Brown Steve Brown & Associates, L.L.C. 1440 E. Missouri, Suite 185 Phoenix, AZ 85014-2412 Attorneys for Plaintiff Diane Mann, as Trustee for the Estate of LeapSource, Inc. By: s/ Julie Molera
1932322

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