Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-01294-JJF Document 82-2 Filed O4/25/2006 Paget of 2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FLOWSERVE CORPORATION, )
)
Plaintiff, )
v. ) C.A. N0. 04-1294-JJF
)
BURNS INTERNATIONAL SERVICES )
CORPORATION and BORG-WARNER )
CORPORATION, )
)
Defendants. )
AF F IDAVIT OF GREGORY E. ROGUS
Gregory E. Rogus, on oath deposes and states:
l. I am an attorney and member of the law firm Segal McCambridge Singer &
Mahoney, Ltd., and am representing Flowserve Corporation ("Flowserve") in this matter. ‘ I am
licensed to practice law in the State of Illinois. I have personal knowledge of the facts stated in
this Affidavit, and if called as a witness, could testify competently thereto.
2. On March 23, 2006, following my receipt of the court’s March 22, 2006 Order,
which directed the parties to prepare and submit an agreed upon Injunction Order by March 28,
2006, I sent an email message to opposing counsel Michael Moirano to suggest that Mr. Moirano
prepare the initial draft of the Order and forward it to me for review and/or discussion. Mr.
Moirano responded by email that he would do so. Exhibit A attached to Flowserve’s Reply is a
true and accurate print out of those transmissions.
3. I conferred by telephone with Mr. Moirano on March 24, 2006, regarding the
status and the content of the Order, including a provision enabling Flowserve to fund reasonable
settlements with insurance money, which Mr. Moirano had mentioned during the course of his
oral argument before the Court on March 16.
4. On March 27, 2006, I received an email from Mr. Moirano late in the afternoon
informing me that he would probably not have a draft Order to me until the following day.
Exhibit B is a true and accurate printout of that transmission.
5. Between 2:00 and 2:30 p.m. on March 28, 2006, Mr. Moirano emailed to me an
initial draft of the Injunction Order. Exhibit C is a true and accurate print out of that
transmission.
6. After receiving the initial draft from Mr. Moirano, I telephoned him to discuss the
need to request additional time from the Court within which to submit the Order. I needed to

Case 1:04-cv-01294-JJF Document 82-2 Filed O4/25/2006 Page 2 of 2
confer with my client regarding the content of Mr. Moirano’s initial draft before it could be
forwarded to the Court as an agreed matter. Mr. Moirano’s co—counsel, Francis Murphy,
forwarded a letter to the Court later that day requesting that the parties be allowed until March 31
to submit the Order. Exhibit D is a true and accurate printout of that letter.
7. On March 30, 2006, after having had an opportunity to confer with my client, I
forwarded a revised draft of the Order to Mr. Moirano. Exhibit E is a true and accurate printout
of that transmission.
8. On March 31, 2006, I telephoned Mr. Moirano to discuss the basis for the
revisions made to the Order. I discussed with Mr. Moirano the reason for incorporating the
terms "potentially unreasonable settlements" and "unreasonable settlements." I also discussed
our basis for including a reference to “historical case valuations utilized by the insurers."
9. I did not tell Mr. Moirano that Flowsewe intended to negotiate inventory
settlements with plaintiff’ s counsel for amounts that would exceed the historical values that had
been paid by Borg—Warner’s insurers in settlement of individual claims, as his affidavit states.
Instead, while I was discussing the inclusion of language regarding "unreasonable settlements"
and “historical case valuation utilized by the insurers," I brought up a possible scenario involving
settlement of a group of cases where the amount to be paid on each case within the group was
reasonable, i.e., within the historical limits. At that point, Mr. Moirano informed me that Burns
would never agree to any inventory or group settlement.
10. Following that conversation, I informed Mr. Moirano that I would again confer
with my client regarding Mr. Moirano’s positions. Later that day, I telephoned Mr. Moirano to
advise that if Burns was not amenable to including Flowsewe’s proposed revisions, then the
parties would not be able to submit an Agreed Order, and each side would have to submit
separate versions to the Court.
FURTHER AFF IANT SAETH NOT. E Q % § i
SUBSCRIBED and SWORN to before » ,
· th · OFFICUM. SEAL
th1s day of Apgi 2006. SANDRA M HUMAN
3 Nomar pus
Qjw-J-·v he { ¢M-M,) MY COMM!S;l(DN r;; Notary Public
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