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1
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ORDER AND FINAL JUDGMENT
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EXTRACTED KEY WORDS
COURT STIPULATION PLAINTIFFS DEFENDANTS HEREBY DIRECTORS ADMINISTRATORS REQUESTSJOR ATTORNEYS SUCCESSORS REAL PROPERTIES EXCLUSION DISMISSING PREJUDICE PARTIES EREIM INVESTMENT SETTLING DETERMIM COMPROMISE ADEQUATE JUDGEMENT MEMBERS ACCORDANCE ACTS THEREFOR ML/EQ ESTATE MANAGERS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ML/EQ REAL ESTATE ) CONSOLIDATED
PARTNERSHIP LITIGATION ) Civil Action No. 15741-NC '
ORDER ANIDINAL JUDGMENT
On this 29" day of November, 2000, a hearing having been held before this Court to
determim whether the terms of the Stipulation and Agreement of Compromise Settlement, and
Rekase, (dated September 7,200O (the "Stipulation"), and the terms and conditions of the
proposed in the Stipulation (the "Settlement"), are fair, reasonable and adequate for the settlement
of all claims asserted herein; and whether an order and final judgment should be entered in the
above-captioned consolidated class action (the "Action") dismissing the Action with prejudice as
against a.11 of the plaintiffs and all members of the class certified in this Court's Order dated
September 29, 2000 (the "Class"); and the Court having considered all matters submitted to it at the
hearing and otherwise;
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The mailing of the Notice of Proposed Settlement of Class Action,
Hearing and Right to Appear (the "Notice") which was mailed on October 13, 2000, is hereby
determined to be the best notice practicable under the circumstances and in full compliance with
Rule 23 of the Court of Chancery and the requirements of due process.
2. The Settlement of this Action as reflected in the Stipulation is approved as
SNIPPETS:
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2
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STIPULATION AND AGREEEMENT OF COMPROMISE SETTLEMENT AND RELEASE
|
EXTRACTED KEY WORDS
CLASS COUNSEL COURT PLAINTIFFS STIPULATION EXPENSES PURSUANT PARTIES PARAGRAPH ATTORNEYS FEES CLAIMANT AMOUNT AGREEMENT DEFENDANTS SETTLEMENT FUND SETTLING PLAINTIFFS CONSOLIDATION CLAIMS ADMINISTRATOR FIRST AMENDED COMPLAINT DISTRIBUTION CLASS MEMBERS ESCROW AGENT HEARING ORDER COMPROMISE VALID PROOF EREIM NET SETTLEMENT FUND REAL ESTATE PORTFOLIO AUTHORIZED CLAIMANT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ML'EQ REAL ESTATE ) CONSOLIDATED : -,
PARTNERSHIP LITIGATION ) Civil Action No. 15741-NC __-."
STIPULATION AND AGREEMENT OF
COMPRmISE. SETTLEMENT AND RElLEASE
The parties to the above-captioned consolidated class action (the "Action"), by and
through their attorneys, hereby enter into the following Stipulation and Agreement of Compromise,
Settlement and Release (the "Stipulation"), subject to the approval lof the Court.
I.
DEFINITIONS
The following temis shall have the following meanings for purposes of this
Stipulation:
1. "Attorneys ' Fees and Expenses " means the amount of attorneys' fees plus
expenses awarded by the Court to Class Counsel pursuant to part 11.1, paragraph 10 hereof.
2. "Azrtho.rized Claimant" means a Settling Plaintiff who submits a valid
of Claim im a timely manner. It does not include any person or entity: (a) otherwise eligible For
membership in the Class to the extent that that person's or entity's claims have already been
or have been adjudicated by a court or arbitrator; (b) who or that requests exclusion from the Class
in accordance with the Notice:, or (c) who or that does not submit a `valid Proof of Claim in a
manner.
SNIPPETS:
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3
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LETTER OPINION
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EXTRACTED KEY WORDS
MOTION DEFENDANTS REAL ESTATE PARTNERSHIP ML/EQ REAL ESTATE ESTATE PARTNERSHIP LITIGATION CONS MERRITT LOAN PROCEEDS DISTRIBUTIONS MERRITT LOAN OPINION AMENDED COMPLAINT REARGUMENT GENERAL PARTNER SALE FINANCING PROCEEDS UNITHOLDERS PRIOR OPINION RECHARACTERIZATION CLAIM INQUIRY NOTICE WILMINGTON DISCOVERY DISTRIBUTABLE CASH SUMMARY JUDGMENT EVIDENCE TIKELLIS BOUCHARD MARGULES FRIEDLANDER REPRESENTATIVES LETTER OPINION TREATING |
C O U R T O F C H A N C E R Y
OF THE
S T A T E OF D E L A W A R E
LEO E. STRINE, J R
"ICE-CHANCELLOR
March 22,200O
Pamela S. Tikellis, Esquire
Chimicles & Tikellis
One Rodney Square
P.O. Box 1035
Wilmington, DE 19899
Alan J. Stone, Esquire
Morris, Nichols, Arsht & Tunnel1
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899- 1347
Andre G. Bouchard, Esquire
Bouchard Margules Friedlander & Maloneyhuss
222 Delaware Avenue, Suite 1102
Wilmington, DE 1980 1
RE: In re ML/EQ Real Estate Partnership Litigation,
Consolidated C.A. No. 15741
Dear Counsel:
The plaintiffs in this action are representatives of a putative class of
unitholders ("Unitholders") of defendant ML/EQ Real Estate Partnership
("MLIEQ"). They seek reargument of my December 20, 1999 decision finding
In re ML/EQ Real Estate Partnership Litigation, Cons. C.A. No. 15741
March 22,200O
Page 2
that certain of their claims were time-barred.' In this letter opinion, I assume the
reader's familiarity with my prior opinion.
In their motion for reargument, the plaintiffs make three major arguments:
SNIPPETS:
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4
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DEFENDANTS JOINT REBUTTAL MEMORANDUM IN OPPOSITION TO MOTION FOR REARGUMENT
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EXTRACTED KEY WORDS
PROCEEDS MERRITT LOAN DISTRIBUTIONS DEFENDANTS MOTION COURT REARGUMENT FINANCING PROCEEDS LIMITATIONS PERIOD PARTNERSHIP INQUIRY NOTICE SALE CASH MEMORANDUM RESERVES COMPLAINT MEM DEL ASSERT DISMISS EXHIBIT SUPER REVIEW PARTNERSHIP AGREEMENT OPINION REASON DISCOVERY LEXIS HERETO |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
(
IN RE ML/EQ REAL ESTATE ) CONSOLID.ATED i-- : 1 -
PARTNERSHIP LITIGATION ) Civil Action No;, 15741-NC ' a
DEFENDANTS' JOINT REBUTTAL MEMORANDUM IN .CA3
OPPOSITION TO PLAINTIFFS' MOTION FOR REARGUMENT
`- : _/
Preliminarv Statement -_
Plaintiffs have asserted a new theory -- articulated for the first time in their
brief in support of their reargument motion -- to support their mischaracterization claim as to the
Merritt Loan proceeds. They now contend that those proceeds were at first correctly
characterized as Sa.ie or Financing Proceeds, but that they were transformed into Distributable
Cash when they were set aside as reserves. On this basis, plaintiffs seek to avoid the Court's
conclusion reflected in its decision of December 20, 1999 that the claim is time-barred.
Apart from being a belated and meritless invention, plaintiffs' new theory does
not help them avoid the time-bar, because it moves the accrual of -:he Merritt Loan claim only a
year closer to, but still not within, the three-year limitations period Under the original theory
pleaded in plaintiffs' Consolidated and Amended Class Action Complaint ("Amended
Complaint") the claim accrued, as the Court has held, in 1994. Under plaintiffs' new theory, the
claim accrued in March 1995. Plaintiffs did not challenge the characterization of the Merritt
Loan proceeds unti:. they filed their Amended Complaint more than three years later, in August
1999. And it is still true, as the Court has already decided, that there is no basis for tolling the
limitations period: Plaintiffs were, at least, on "inquiry notice" of de.Fendants'
the Merritt Loan proceeds from the time the characterization was adopted. Therefore, the Merritt
Loan claim is still time-barred.
SNIPPETS:
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5
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DEFENDANTS JOINT MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO COMPEL
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EXTRACTED KEY WORDS
DEFENDANTS EXHIBIT OPINION PRIVILEGE BUSINESS PLANS COUNSEL LIVANOS PRODUCTION MOTION COLIN OPINION DEPOSITION MLIEQ EML ROSENMAN PAPALIA MERRILL LYNCH INVESTMENT RESERVES REASONS DISCOVERY EREIM MWEQ FUNDS ATTORNEY-CLIENT RELATING PORTIONS MERRITT LOAN COURT HEREWITH |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ML/EQ REAL ESTATE ) CONSOLIDATED
PARTNERSHIP LITIGATION ) Civil Action No. 15741-NC -2..
T'i
`-2 "-' `2
;:.c,
DEFENDANTS' JOINT MEMORANDUM OF LAW _ _
:'
IN OPPOSITION TO PLAINTIFFS' MOTION TO
COMPEL THE PRODUCTION OF DOCUMENTS _-.
AND WITNESSES BY DEFENDANTS
!.
.
:
<.;L
:-~;,
PRELIMINARY STATEMENT -.. .,-
Defendants have agreed to produce all responsive, non-privileged documents
relevant to this action or reasonably calculated to lead to the discovery of admissible evidence,
Nonetheless, plaintiffs move to compel the production of documents and witnesses by
defendants. Plaintiffs' approach is to ignore this Court's decision on defendants' motion to
dismiss that substantially narrowed their case.
At issue on this motion are plaintiffs' contentions that defendants must produce
for inspection:
(1) business plans of Equitable Real Estate Investment
Management, Inc. ("EREIM, Inc.") for the period
January 1, 1994 to the present;
(2) documents showing amounts earned by The Equitable Life
Assurance Society of the United States ("Equitable") and
its affiliates on MWEQ Real Estate Portfolio, L.P.
("ML/EQ") and EML Associates ("EML") funds or
reserves; and
(3) a legal opinion of Rosenman & Colin.
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6
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DEFENDANTS JOINT MEMORANDUM OF LAW IN OPPOSITION TO REVISED MOTION TO COMPEL
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EXTRACTED KEY WORDS
PLAINTIFFS DEFENDANTS EXHIBIT ACCOUNTANT-CLIENT PRIVILEGE ATTORNEY-CLIENT PRIVILEGE COURT DELAWARE MOTION CONTEND PRODUCTION COMMUNICATIONS LEGAL ADVICE DOCUMENTS WITHHELD WORK-PRODUCT DOCTRINE ATTORNEYS COMPEL ML/EQ REAL ESTATE ASSERTION ADVISING MLIEQ REVISED MOTION PRIVILEGE LOGS GOTHAM PARTNERS ACTIVE INVOLVEMENT SENTENCES REFLECTING PROFESSIONAL LEGAL SERVICES PLAINTIFFS ASSERT COLIN OPINION DISTRIBUTIONS MERRITT LOAN PROCEEDS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ML/EQ REAL ESTATE ) CONSOLIDATED
PARTNERSHIP LITIGATION ) Civil Action `No. 15741 -NC
;'
DEFENDANTS' JOINT MEMORANDUM OF LAW IN T.-i
T"; I:>
OPPOSITION TO PLAINTIFFS' REVISED MOTION TO `--;`
COMPEL THE PRODUCTION OF DOCUMENTS F-i`
WITHHELD ON THE BASIS OF PRIVILEGE CLAIMS . .
7:-
PRELIMINARY STATEMENT
L`i . .
> : I
-;
Out of thousands of documents produced by defendants, approximately 474'have
been withheld from production on grounds of attorney-client privilege, accountant-client
privilege and the work-product doctrine. Given the active involvement of attorneys and
accountants in advising MLIEQ, the number of privileged documents is quite modest.
Defendants have carefully reviewed their privileged documents and have withheld from
production only those documents as to which the claimed privilege applies.
Plaintiffs move to compel the production of documents listed in Exhibits G, H and
I of Plaintiffs' Revised Motion to Compel the Production of Documents Withheld on the Basis of
Privilege Claims ("Pl. Mn."). At issue on this motion are approximately 190 documents in
relation to which plaintiffs' contend defendants have improperly invoked:
(1) the attorney-client privilege in relation to documents listed
in Exhibit G;
(2) the accountant-client privilege in relation to documents
listed in Exhibit H; and
(3) the work-product doctrine in relation to documents listed in
Exhibit I.
SNIPPETS:
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7
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DEFENDANTS JOINT MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION FOR REARGUMENT
|
EXTRACTED KEY WORDS
PLAINTIFFS MOTION DELAWARE REARGUMENT MERRITT LOAN DEFENDANTS DISMISS SUMMARY JUDGMENT CHANCERY MISCHARACTERIZATION CLAIMS COUNTY FACTS BRANDNER JOINT MOTION REASON ATTORNEY CONTENDS DECISION DISMISSING MEMORANDUM OPINION DISTRIBUTIONS TRUST SHARES CONVERSION RECONSIDER MATERIALS MERRITT LOAN PROCEEDS DSHA IRREVOCABLE PROXY CHANDLER COMPLAINT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ML/EQ REAL ESTATE CONSOLIDATED / "
PARTNERSHIP LITIGATION C i v i l A c t i o n N o . 15741-NC .,' ;
.,
DEFENDANTS' JOINT MEMORANDUM OF LAW IN -\, ,-
OPPOSITION TO PLAINTIFFS' MOTION FOR REARGUMENT :
_
.
PRELIMINARY STATEMENT `-0.
Plaintiffs, moving for reargument of this Court's decision of December 20, 1999,
contend that the Court: (1) improperly converted defendants' joint motion to dismiss to one for
summary judgment; (2) erred in dismissing plaintiffs' mischaracterization allegations relating to
the Merritt Loan; and (3) should clarify its order with respect to what plaintiffs call the "later
mischaracterization claims."
Plaintiffs' motion should be denied because: (1) the Court's conversion of the
motion to dismiss to one for summary judgment was proper under Court of Chancery
Rule 12(b); (2) there is no reason for the Court to reconsider its decision dismissing the Merritt
Loan claim; and (3) there is no need for the Court to clarify its order because we agree with
plaintiffs that that order did not affect the "later mischaracterization claims," which were not the
subject of defendants' motion to dismiss.
ARGUMENT
I. THE COURT'S CONVERSION OF DEFENDANTS' MOTION
TO DISMISS TO ONE FOR SUMMARY JUDGMENT WAS
PROPER UNDER COURT OF CHANCERY RULE 12(b).
Plaintiffs claim that in treating defendants' joint motion to dismiss as a motion for
SNIPPETS:
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8
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MEMORANDUM OPINION
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EXTRACTED KEY WORDS
DEFENDANTS EREIM MANAGERS ZELDIN REAL ESTATE DISTRIBUTIONS DELAWARE ESQUIRE ML/EQ COMPLAINT INVESTMENT DISTRIBUTABLE CASH JOINT VENTURE UNITHOLDERS PARTNERSHIP INQUIRY NOTICE TRANSACTION DISCLOSURES LIMITATIONS ORIGINAL COMPLAINT FINANCING PROCEEDS ZERO COUPON NOTES LIFE ASSURANCE SOCIETY GENERAL PARTNER ZERO COUPON MERRITT LOAN ZELDIN AFF MISCHARACTERIZATION CLAIMS NORTHLAND EQUITABLE LIFE ASSURANCE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY , `.'
I ',.
IN RE ML/EQ REAL ESTATE ) CONSOLIDATED ; ,:
PARTNERSHIP LITIGATION > Civil Action No. 15741: _i :`I
.<'_, `. : /
-.`. >`,Im,.;
MEMORANDUM OPINION
Date Submitted: December 14, 1999
Date Decided: December 20, 1999
Pamela S. Tikellis, Esquire, James C. Strum, Esquire, Robert J. Kriner, Esquire, of
CHIMIC!LES & TIKELLIS, Wilmington, Delaware; OF COUNSEL: Nicholas E.
Chimicles, Esquire, Michael D. Gottsch, Esquire, of CHIMICLES & TIKELLIS,
Haverford, Pennsylvania; Joel Bernstein, Esquire, Diane Zilka, Esquire, of
GOODKIND, LABATON, RUDOFF & SUCHAROW, New York, New York,
Attorneys for Plaintiffs.
Alan J. Stone, Esquire, Jessica Zeldin, Esquire, of Morris, Nichols, Arsht & Tunnell,
Wilmington, Delaware; OF COUNSEL: Robert S. Smith, Esquire, Steven G.
Rawlings, Esquire, Stacey A. Shortall, Esquire, of PAUL, WEISS, RIFKIND,
WHARTON & GARRISON, New York, New York, Attorneys for Defendants
EREIM Managers Corp., The Equitable Life Assurance Society of the United States,
Equitablle Real Estate Investment Management, Inc., EREIM L.P. Corp., and
EREIM :LP Associates.
Andre G. Bouchard, Esquire, Joel E. Friedlander, Esquire, of Bouchard Margules
Friedlander & Maloneyhuss, Wilmington, Delaware, Attorneys for Defendant
ML/EQ .Real Estate Portfolio.
STRINE, Vice Chancellor
Plaintiffs Marion F. Scher and Donald T. Follette are unitholders in
defendant ML/EQ Real Estate Portfolio, L.P., which is a Delaware publicly
registered limited partnership. They bring this action on their own behalf
and on behalf of a yet to be certified class consisting of other ML/EQ
unitholders ("Unitholders").
In simple terms, the complaint alleges that the defendants, who are all
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9
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DEFENDANTS JOINT REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS
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EXTRACTED KEY WORDS
COMPLAINT DEFENDANTS FACTS DEL INQUIRY NOTICE RESERVES LIMITATIONS DISCLOSURES COURT PARTNERSHIP DISCOVERY SUIT DELAWARE MOTION PAYMENT MISCHARACTERIZATION CLAIMS ORIGINAL COMPLAINT DOCTRINE DISTRIBUTION CONSOL CORN CIR PARTNERSHIP AGREEMENT REASON REAL PROPERTY DISMISS ACCRUES MONEY ALLEGATIONS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE $ a3: .: 3
--:
IN AND FOR NEW CASTLE COUNTY p I*. I -
_a+
*I..-
_ ,.
_ -,
Vi
_I)
:
IN RE ML/EQ REAL ESTATE ) CONSOLIDATED ^ .I
i:;:
PARTNERSHIP LITIGATION ) Civil ActionNo. 15741-NC :
-;`! I1
g?, 2 ,: P.,
__+ 4
+ y-1 g-J-l
DEFENDANTS JOINT REPLY BRIEF IN -><
SUPPORT OF THEIR MOTION TO DISMISS THE
CONSOLIDATED AND AMENDED CLASS ACTION COMPLAINT
6'ORRIS, NICHOLS, ARSHT & TUNNELL
lan J. Stone
essica Zeldin
1201 N. Market Street
.O. Box 1347
ilmington, DE 19899-1347
(302) 6.58-9200
1Attorneys for Defendants EREIM Managers
Corp., The Equitable Life Assurance Society
of the United States, Equitable Real Estate
Investment Management, Inc., EREIM L.P.
Corp., and EREIM LP Associates
OF COUNSEL:
Robert S. Smith
Steven G. Rawlings
Stacey A. Shortall
PALJL, WEISS, RIFKIND,
WHARTON & GARRISON
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
BOUCHARD MARGULES FRIEDLANDER
& MALONEYHUSS
Andre G. Bouchard
Joel E. Friedlander
222 Delaware Avenue, Suite 1102
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10
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ANSWER TO CONSOLIDATED AND AMENDED CLASS ACTION COMPLAINT
|
EXTRACTED KEY WORDS
ALLEGATIONS DENY PARTNERSHIP AGREEMENT ADMIT VENTURE EREIM DEFENDANTS COMPLAINT JOINT VENTURE REFER DELAWARE GENERAL PARTNER ML/EQ EREIM MANAGERS CLASS ACTION AMENDED CLASS ACTION FINANCING PROCEEDS GUARANTY AGREEMENT FIRST SENTENCE PLAINTIFFS MANAGING GENERAL PARTNER DISTRIBUTIONS PROSPECTUS NORTHLAND PARTNERSHIP FORMED PURSUANT INFORMATION SUFFICIENT PRINCIPAL OFFICES CASH RESERVES |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ML/EQ REAL ESTATE > CONSOLIDATED
PARTNERSHIP LITIGATION > Civil Action No. 15741-NC
ANSWER TO CONSOLIDATED AND
AMENDED CLASS ACTION COMPLAINT `. !
Defendants The Equitable Life Assurance Society of the United States
* 7
("Equitable"), EREIM Managers Corp. ("EREIM Managers"), Equitable Real EstateFIgvestment
Management, Inc. ("ERE"), EREIM L.P. Corp. ("EREIM Corp."), and EREIM LP Associates
("EREIM Associates"), by their attorneys, answer the consolidated and amended class action
complaint dated August 3 1, 1999 (the "Complaint") as follows:
1. Deny the allegations of paragraph 1, except admit that ML/EQ is a
Delaware registered public limited partnership formed pursuant to the Amended and Restated
Agreement of Limited Partnership dated April 23, 1987 as amended on February 9, 1988 (the
"Partnership Agreement").
2. Deny the allegations of paragraph 2, except admit that (a) ML/EQ owns an
80% interest in a Joint Venture (the "Venture") in which EREIM Associates owns a 20% interest
pursuant to EML Associates Joint Venture Agreement dated March 1988 (the "Joint Venture
Agreement") and (b) ERJZIM Associates and the Venture are parties to a Guaranty Agreement
dated March 10, 1988 (the "Guaranty Agreement"), and refer to the Joint Venture Agreement,
the Guaranty Agreement and the Partnership Agreement for their terms
3. Deny the allegations of paragraph 3.
4. Deny the allegations of paragraph 4.
5. Deny the allegations of paragraph 5, except admit that EREIM Associates
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11
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ANSWER TO CONSOLIDATED AND AMENDED CLASS ACTION COMPLAINT
|
EXTRACTED KEY WORDS
ALLEGATIONS DENIES AGREEMENT PARTNERSHIP ADMITS VENTURE ML/EQ EREIM JOINT VENTURE GUARANTY AGREEMENT REFERS DELAWARE CLASS ACTION LIMITED PARTNERSHIP CASH AMENDED CLASS ACTION REAL ESTATE FINANCING PROCEEDS GENERAL PARTNER PLAINTIFFS DISTRIBUTIONS CLASS ACTION COMPLAINT AFFIRMATIVE DEFENSE ML/EQ PROSPECTUS MANAGING GENERAL PARTNER PARTNERSHIP FORMED PURSUANT PRINCIPAL OFFICES NORTHLAND TIMES RELEVANT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ML/EQ REAL ESTATE > CONSOLIDATED
PARTNERSHIP LITIGATION ) Civil Action No. 15741-NC
ANSWER TO CONSOLIDATED AND AMENDED CLASS ACTION COMPLAINT
Defendant ML/EQ Real Estate Portfolio, L.P. ("MWEQ" or the
"Partnership"), by its attorneys, answers the Consolidated and Amended Class Action
Complaint (the "Complaint") as follows:
1. Denies the allegations of paragraph 1, except admits that ML/EQ
is a Delaware registered public limited partnership formed pursuant to the Amended
and Restated Agreement of Limited Partnership dated April 23, 1987 as amended on
February 9, 1988 (the "Partnership Agreement").
2. Denies the allegations of paragraph 2, except admits that
(a) M:L/EQ owns an 80% interest in a Joint Venture (the "Venture") in which EREIM
:LP Associates ("EREIM Associates") owns a 20% interest pursuant to EML Associates
Joint Venture Agreement dated March 1988 (the "Joint Venture Agreement"), and
(b) EREIM Associates and the Venture are parties to a Guaranty Agreement dated
March 10, 1988 (the "Guaranty Agreement") and refers to the Joint Venture
.Agreement, the Guaranty Agreement and the Partnership Agreement for their terms.
3. Denies the allegations elf paragraph 3.
4. Denies the allegations of paragraph 4.
5. Denies the allegations o-f paragraph 5, except admits that EREIM
Associates contributed a portion of certain zero coupon mortgage loans on two
shopping centers to acquire its 20% interest in the Venture.
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12
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DEFENDANTS JOINT BRIEF IN SUPPORT OF MOTION TO DISMISS
|
EXTRACTED KEY WORDS
COMPLAINT DEL PARTNERSHIP MISCHARACTERIZATION CLAIMS DISTRIBUTIONS WITTER PARTNERSHIP LITIG ZELDIN AFF CIR LIMITED PARTNERS VENTURE DISTRIBUTABLE CASH DEFENDANTS FILING CHANDLER REAL ESTATE INVESTMENT ML/EQ ZERO NOTES ANNUAL REPORT DELAWARE BUILDING NORTHLAND CLASS ACTION COMPLAINT ATLANTIS PLASTICS DEAN WITTER PARTNERSHIP PRUDENTIAL-BATHE PROPERTIES SHAREHOLDERS LIMITATIONS TRANSACTION ORIGINAL COMPLAINT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE "
1 +
IN AND FOR NEW CASTLE COUNTY ,-r:
IN RE ML/EQ REAL ESTATE > CONSOLIDATED
PARTNERSHIP LITIGATION > Civil Action No. 15741-NC
lx.&3
.l.
DEFENDANTS' JOINT BRIEF :+ cc !J
IN SUPPORT OF THEIR MOTION TO DISMISS THE tti
CONSOLIDATED AND AMENDED CLASS ACTION COMPLAINT p;33izr,7. ,, Ch;:rcaKy-
ZJI
MORRIS, NICHOLS, ARSHT & TUNNELL
Alan J. Stone
Jessica Zeldin
1201 N. Market Street
P.O. Box 1347
Wilmington, Delaware 19899-l 347
(302) 658-9200
Attorneys for Defendants EREIM Managers
Corp., The Equitable Life Assurance Society of
the United States, Equitable Real Estate
Investment Management, Inc., EREIM L.P.
Corp., and EREIM LP Associates
OF COUNSEL:
Robert S. Smith
Steven G. Rawlings
Stac,ey A. Shortall
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
BOUCHARD MARGULES FRIEDLANDER
& MALONEYHUSS
Andre G. Bouchard
Joel E. Friedlander
222 Delaware Avenue, Suite 1102
Wilmington, Delaware 19801
(302) 573-3500
Attorneys for Defendant
ML/EQ Real Estate Portfolio, L.P.
October 1, 1999
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