Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:04-cv-01494-JJF Document 197-2 Filed 05/25/2007 Page 1 of 4

Case 1:04-cv-01494-JJF Document 197-2 Filed 05/25/2007 Page 2 of 4
BLAi\ll<_ ROMEM
COUNSELORS AT LAW
May 25, 2007
VIA HAND DELIVERY
John E. James, Esquire
Potter Anderson & Corroon LLP
1313 N. Market Street
P.O. Box 951
Wilmington, DE 19899-0951
Re: Magten Asset Management Corp. and Law Debenture Trust C0. v.
North Western Corp.; C.A. N0. 04-1494-JJF;
Magten Asset Management Corp. v. Mike .L Hanson and Ernie .L Kindt;
C.A. N0. 05-0499-JJF
Dear Special Master James:
We write this letter in brief response to Mr. Pizzur·ro’s affidavit ("Pizzurro Aff.") ,
conceming provision of the Report of the Special Committee to Mr. Hylland. While we disagree l
with many of the arguments in the Pizmrrro Aff. and many of the ‘factual’ assertions are
unsupported by any document whatsoever and therefore are not evidence but merely arguments,
two such ‘facts’ merit a reply.
First: Mr. PizzLuro’s bald allegation in 1] 8 that "Although the NorthWestem Board
minutes state that Mr. Hylland resigned as a director pursuant to a letter dated April 28, 2003,
this is an error" is inadmissible. The May 6, 2003 minutes referenced by Mr. Pizmirro dealt with
an issue of importance to NorthWestern — an issue that was hotly and vigorously contested by
Mr. Hylland — and were presumably carefully prepared and thereafter reviewed and approved by
the NorthWestem Board of Directors. In concluding that Mr. Hylland resigned as a director, it is
entirely possible that the Board considered the April 28 letter from Mr. Hylland (also referenced
in il 8 of the Pizzurro Aff. and referenced in Ex. E thereto) to be a resignation from the Board or
that the other disputes with Mr. Hylland led the Board to conclude that by his April 28 letter
(which is not attached and has not otherwise been produced), Mr. Hylland resigned as a director
as well as President and Chief Operating Officer. Mr. Hylland held all positions pursuant to
section l(a) of his employment agreement.
Without intending any disrespect to Mr. Pizzurro, he was neither a participant in the
process of the Special Committee nor present at the time those matters were considered by the
Board. In any event, Mr. Pizzurro’s say so is not competent evidence on this issue. The
statement that the Hylland resignation was ". . . by letter dated April 28. . ., effective
immediately. . ." contained as part of a resolution voted upon by the Board and recorded in the
Chase Manhattan Centre 1201 Market Street Suite 800 Wilmington, DE 19801
www.B|ankRome,com
Delaware • Florida • New Jersey • New York • Ohio • Pennsylvania • Washington, DC • Hong Kong

Case 1:04-cv-01494-JJF Document 197-2 Filed 05/25/2007 Page 3 of 4
BLANKE ROMELLP
COUNSELORS AT LAW
John E. James, Esquire
May 25, 2007
Page 2
May 6 Board minutes is binding on NorthWestern.
Second: There is an important inconsistency in the statement contained in il 7 of the
Pizzurro Aff. and the statement made by Alan Dietrich in his letter dated May 7 (attached as Ex.
F to Pizzurro Aff.). Mr. Pizzurro states without actual knowledge that the Special Committee
Report was delivered to Mr. Hylland on April 28. The email referenced in il 7 does not show the
Special Committee Report as an attachment and given its size, it was likely sent separately and
there is no proof that this delivery actually occurred. In contrast, Mr. Dietrich’s letter
affirmatively states that Mr. Hylland received the report on April 29. Again, given Mr.
Pizzurro’s lack of knowledge and Mr. Dietrich’s presence and participation in the events of late
April and early May 2003, no reliance can be placed on the statement in Mr. Pizzurro’s affidavit.
It is apparent from the Dietrich letter and the Board minutes that Mr. Hylland received
the reportin connection with his position as an employee who was being terminated for cause.
Because NorthWestem chose to provide Mr. Hylland with the grounds for his termination in that
manner rather than in some other form, NorthWestern waived any privilege that may have
attached to the Special Committee Report. Even if Mr. Hylland’s contract required
NorthWestem to provide the Report to Mr. Hylland, the privilege was waived nevertheless
because it is explicit in the contract (" . . . Executive, together with Executive's counsel . . .") that
NorthWestem and Mr. Hylland would by that time be (and, in fact, were) separately represented
and adversaries
Respectfully submitted,
E Q E Q x
Dale R. Dubé
(I.D. No. 2863)
Bonnie Steingart
FRIED, FRANK, HARRIS, SHRIVER &
JACOBSON LLP
New York, NY 10004
Attorneys for Magten Asset Management Corp.
— and -

Case 1:04-cv-01494-JJF Document 197-2 Filed 05/25/2007 Page 4 of 4
BLANK § ROMELLP
COUNSELORS AT LAW
John E. James, Esquire
May 25, 2007
Page 3
Kathleen M. Miller (DE N0. 2898)
SMITH, KATZENSTEIN & F URLOW, LLP
Wilmington, DE 19801
John V. Snellings
NIXON PEABODY LLP
Boston, MA 02110
Attorneys for the Law Debenture Trust Company
of New York
DRD/pb
Enclosures
cc: Kimberly A. Beatty, Esquire (via e-mail and Federal Express)
John W. Brewer, Esquire
David W. Cariclchoff, Jr.
Victoria W. Counihan, Esquire (via e-mail and hand delivery)
Amanda Darwin, Esquire (via e-mail and Federal Express)
Nancy E. Delaney, Esquire (via e-mail and Federal Express)
Miriam K. Harwood, Esquire (via e-mail and Federal Express)
Stanley T. Kaleczyc, Esquire (via e-mail and Federal Express)
Gary L. Kaplan, Esquire
Denise Seastone Kraft, Esquire (via e-mail and hand delivery)
Dennis A. Meloro, Esquire (via e-mail and hand delivery)
Jordarma L. Nadritch, Esquire
Sherita M. Perry, Esquire
Joseph D. Pizzurro, Esquire (via e-mail and Federal Express)
Steven J. Reisman, Esquire (via e-mail and Federal Express)
Peter B. Siroka, Esquire