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1
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LETTER OPINION
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EXTRACTED KEY WORDS
TRUST CITY INVESTING COMPANY AMBASE CORPORATION FACTS STATUTE REARGUMENT MOTION LIMITATIONS LIABILITY PRIOR DECISION PLAINTIFF TRUSTEE DEFENDANTS WITHHOLDING TAX OPINION ASSIGNMENT AGREEMENT AMBASE BOARD COMPLAINT IRS CITY STOCKHOLDERS EQUITABLE TOLLING DISTRIBUTIONS WITHHOLDING TAX OBLIGATION ESQUIRE MORRIS WILMINGTON BENCH DECISION DISMISSING TRUST AFFILIATES LIABILITIES DIRECTORS POTENTIAL WITHHOLDING IRS CODE |
COURT OF C HANCERY
OF THE
STATE OF DEL AWARE
L EO E. STRINE. J R. COURT HOUSE
V I C E - C H A N C E L L O R WILMINGTON . DELAWARE
February 7,200l
P. Clarkson Collins, Jr., Esquire
Morris, James, Hitchens & Williams
222 Delaware Avenue
Wilmington, DE 1980 1
Kenneth J. Nachbar, Esquire
Morris, Nichols, Arsht & Tunnel1
1201 N. Market Street
Wilmington, DE 1980 1
Re: Ambase Corporation v. Citv Investing Comnanv. et al,
C.A. No. 18207
Dear Counsel:
Plaintiff Ambase Corporation has moved for reargument of my
December 14, 2000 bench decision dismissing its claim against City
Investing Liquidating Trust (the "Trust") and certain Trust affiliates on
statute of limitations and lathes grounds. That bench opinion was
implemented by a final order on January 3,200 1.
To prevail on its reargument motion, Ambase must demonstrate that
the court's prior decision "rested on a misunderstanding of a material fact or
Ambase Corporation v. City Investing Company, C.A. No. 18207
February 7,200l
Page 2
a misapplication of law."' "[T]h e court's focus on a motion under Rule
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2
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DEFENDANTS OPPOSITION TO MOTION FOR REARGUMENT
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EXTRACTED KEY WORDS
MOTION PLAINTIFFS AMBASE TRUSTEES OPINION COURT FACTS DEFENDANTS LIQUIDATING TRUST COMPLAINT REARGUMENT TAX CLAIM CITY DISMISS DELAWARE AFFIDAVITS CITY INVESTING INVESTING COMPANY TAX LIABILITY AMBASE CORPORATION LIMITATIONS SCHARFFENBERGER OPPOSITION MISCHARACTERIZATION ALLEGATIONS FINANCIAL INCENTIVES OBLIGATION TRUST DISTRIBUTIONS TRUST EARNING INCOME |
IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE ~
IN AND FOR NEW CASTLE COUNTY
AMBASE CORPORATION, a Delaware
corporation,
Plaintiff,
V. C.A. No. 18207
\
CITY INVESTING COMPANY
LIQUIDATING TRUST, as Successor to
CITY INVESTING COMPANY, a dissolved
Delaware corporation, and
GEORGE `T. SCHARFFENBERGER,
EBEN W. PYNE AND LESTER J.
MANTELL, as Trustees of the CITY
INVESTING COMPANY LIQUIDATING
TRUST,
Defendants.
DEFENDANTS' OPPOSITION TO
PLAINTIFF'S MOTION FOR R&ARGUMENT
Pursuant to an opinion rendered on December 14 (the "Opinion") (Ex. A hereto)
and Order entered on January 3, 2001, this Court granted Defendants' motion to dismiss this
action because, based on the facts alleged in the Complaint, Plaintiffs claims were barred by the
statute of limitations and lathes. On January 10, 2001, Plaintiff filed a 23-page Motion for
Reargument (the "Motion") and an Appendix containing three affidavits and nineteen exhibits
none of which were pled in the Complaint or presented in opposition to the motion to dismiss.
As shown herein, the Motion (i) is procedurally impermissible, (ii) is premised on an egregious
mischaracterization of the Opinion, (iii) makes unsupportable factual assertions and (iv) in all
events, provides no basis for the "withdraw[al]" of the Opinion or the unprecedented discovery
that Plaintiff seeks.
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3
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PLAINTIFFS MOTION FOR REARGUMENT
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EXTRACTED KEY WORDS
DEFENDANTS LIQUIDATING TRUST CITY INVESTING AMBASE TAX WITHHOLDING OBLIGATION COURT LIABILITY TRUSTEES MANTEL1 COUNSEL CITY INVESTING COMPANY MOTION UNIT HOLDERS IRS DISTRIBUTIONS PLAINTIFF FERRARA AFF ASSIGNMENT AGREEMENT INQUIRY NOTICE INCENTIVES REARGUMENT DISCOVERY REPRESENTATIONS INDIVIDUAL DEFENDANTS FINANCIAL INCENTIVES PERSONAL EMBARRASSMENT RESPONSIBILITY SUCCESSOR |
IN THE COURT OF CHANCERY OF TIHE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AMBASE CORPORATION, a Delaware >
corporation,
Plaintiff, i
i> C.A. No.
C.A. No. 18207-NC
18207-NC
V
ClTY INVESTING COMPANY
LIQUIDATING TRUST, as Successor to
CITY 1NVESTING COMPANY, a
dissolved Delaware corporation, and
GEORGE T. SCHARFFENBERGER, i
EBEN W. PYNE and LESTER J.
MANTELL, as Trustees of the
CITY INVESTING COMPANY
LIQUIDATING TRUST,
Defendants.
PLAINTIFF'S MOTION FOR REARGUMENT
MORRIS, JAMES, HITCHENS &WILLIAMS LLP
P. Clarkson Collins, Jr. (I.D. No. 739)
Joseph C. Slchoell (I.D. No. 3133)
Elizabeth A Brown (I.D. No. 3713)
222 Delaware Avenue, IO"' Floor
P. 0. Box 2306
Wilmington, DE 19899
(302) 888-6800
Attorneys for Plaintiff AmBase Corporation
OF COUNSEL:
COOPER, CARVIN & ROSENTHAL, PLLC
Charles J. Cooper
Steven S. Rosenthal
Kenneth L. Marcus
Ham&h Hume
1500 K Street, N.W., Suite 2,OO
Washington, DC 20005
(202)220-9600
January IO,2001
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4
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ORDER AND RULING
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EXTRACTED KEY WORDS
COMPLAINT AMBASE COURT DEFENDANTS DELAWARE INVESTING COMPANY STATUTE CONVINCE CHANCERY CITY INVESTING TRUSTEES PLAINTIFFS DISMISS LIMITATIONS LATHES LIQUIDATING TRUST REASON HAT JUDGEMENT LIABILITY DISABILITY HEREBY COURT REPORTERS CONTRACT MOTION WILMINGTON MERITS EXPECTATION PARTY |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AMBASE CORPORATION, a Delaware )
corporation,
Plaintiff, ; CA. No. 1820'7-NC
V. j
CITY INVESTING COMPANY
LIQUIDATING TRUST, as Successor to
CITY INVESTING COMPANY, a
dissolved Delaware corporation, and
GEORGE T. SCHARFFENBERGER,
EBEN W. PYNE and LESTER J.
MANTELL, as Trustees of CITY
INVESTING COMPANY
LIQUIDATING TRUST,
Defendants.
WHEREAS, plaintiff filed this case on August 14, 2000, and
WHEREAS, defendants moved to dismiss the Complaint on September 29,2000, on
the grounds that (i) the causes of action alleged in the Complaint are barred by the statute
and (ii) the Complaint fails to state a claim upon which relief may be granted; and
WHEREAS, the Court has considered $e briefs and arguments of the parties,
".,Y I
IT 1.S HEREBY ORDERED thi&k day
c of January, 2001, that the
action is hereby dismissed with prejudice, solely on the grounds that it is barred by the
limitations and the doctrine of lathes, as set fo
2000, attached hereto as Exhibit A, the Court
substantive claims.
IN THE COURT o!? CHANCERY OF THE STATE OF DELAWARE
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5
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DEFENDANTS REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS
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EXTRACTED KEY WORDS
TAX STATUTE CITY INCOME TAX LIMITATIONS PLAINTIFF LIABILITY CONTRACT ASSIGNMENT AGREEMENT FACTS INTERNAL REVENUE CODE TRUST FEDERAL INCOME DELAWARE COURT RELEVANT FACTS CITY INVESTING COMPANY IRC OBLIGATIONS LIQUIDATING DEFENDANTS INCOME TAXES CITY INVESTING IRS STANDARDS WITHHOLDING DEFICIENCY SCOTT FETZER LIABILITIES |
IN THIE COURT OF CH.4N(.`ERY FOR THE STA.l'E OF DELAWARE '
/ii /j
AMBASE CORPORATION, a Delaware
wrporatim,
E'laintifC, 1)
\:. ) CA No. 18207
CITY INVESTING COMPANY
LIQUIDATING TRUST, as Successor TV.)
CITY INVESTING COMPANY, a dissc,lved
Delaware corporation, and
GEORGE T. SCHARFFENBERGER,
EBEN W. PYNE AND LESTER J.
MANTELL, as Truslces of the CITY i
INVESTING LIQUIDATING TRUST,
DEFENDANTS' REPLY BRIEF
IN SUPPORT
.-k-- OF THEIR MOTION `TO DISMISS
I _ - - - . - - _ _ _ _
LIORRIS. NlCHOLS, ARSHT & TUNNELL
Kenneth .i. Nacbar
h4egan E. Ward
1201 N. h4arket Slreet
P.O. Box I347
Wilmhgton, DE 1989% 1347
(302) 658-9200
Attorneys for Defendants
1.
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6
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REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION TO DISQUALIFY COUNSEL
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EXTRACTED KEY WORDS
CRAVATH REPRESENTATION DEFENDANTS AGREEMENT COUNSEL CITY CONNECTION MOTION DISQUALIFY ALLEGED WITHHOLDING ATTORNEY OBLIGATION COURT INVESTING COMPANY CITY INVESTING ASSIGNMENT AGREEMENT IRS DISPUTE ADVISING COMPLAINT PURSUANT LIABILITY RESPONSE GENERAL CORPORATE ADVISOR DELAWARE PLAINTIFF AMBASE CORPORATION MEMORANDUM FIN-THER SUPPORT INDIVIDUAL DEFENDANTS |
IN THE COURT OF CHANCERY OF THE STATE `OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AMBASE CORPORATION, a Delaware )
c o r p o r a t i o n , 1
Plaintiff, ; C.A. No. 18207-NC
V. i
ClTY INVESTING COMPANY ;
LIQUlDATING TRUST, as Successor to )
CITY INVESTING COMPANY, a
dissolved Delaware corporation, and i
GEORGE T. SCHARFFENBERGER )
EBEN W. PYNE and LESTER I.
MANTELL, as Trustees of the ;
C:lTY INVESTING COMPANY
LIQUIDATING TRUST, t
Defendants.
REPLY M.EMORANDUM IN SUPPORI' OF
PLAINTIFF'S MOTIO-N TO DBQUALIFY COUNSEL
Plaintiff, AmBase Corporation ("AmBase" or "Plaintiff'), by and through
its undersigned attorneys, submits this Reply Memorandum in fin-ther support of its
Motion to disqualify Cravath, Swaine & Moore ("Cravath") from representing or advising
any of the defendants in connection with this action
AmBase brought this action on August 14, 2000. In its Complaint,
AmBase seeks a declaration that it is not primarily liable for an alleged withholding
obligation sought to be imposed by the IJnited States Internal Revenue Service ("IRS"),
because such obligation: (a) was not primarily assumed by AmBase pursuant to an
A.ssignment and Assumption Agreement by and between AmBa:se and City Investing
Company ("City"), dated as of August 30, 1985 (the "Assignment Agreement"); and (b)
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7
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PLAINTIFFS ANSWERING BRIEF IN OPPOSITION TO MOTION TO DISMISS
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EXTRACTED KEY WORDS
CITY DEFENDANTS AGREEMENT FEDERAL INCOME INCOME TAXES ASSIGNMENT PLAINTIFF AMBASE YORK TRUST TAX LIABILITY DEL LANGUAGE TRUSTEES LIMITATIONS CITY INVESTING ALLEGED WITHHOLDING OBLIGATION EXPENSE CLAIM WITHHOLDING AGENT COMPLAINT PLAIN LANGUAGE INDIVIDUAL DEFENDANTS CITY INVESTING COMPANY DISTINCTION PRIMARY LIABILITY IRS SCOTT FETZER LIABILITIES |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE ' /`j
//-ir=i
IN AND FOR NEW CASTLE COUNTY
AMBASE CORPORATION, a Delaware )
corporation,
Plaintiff, i C.A. No. 1X207-NC
CITY 1NVESTING COMPANY ;
LIQUIDATING TRUST, as Successor to )
CITY INVESTING COMPANY, a
dissolved Delaware corporation, and i
GEORGE T. SCHARFFENBERGER, )
E?BEN W. PYNE and LESTER .I. J
MANTELL, as Trustees of the
CITY INVESTING COMI'AN\I 1
LIQUIL)ATING TRUST, >
Defendants. i
PLAINTIFF'S ANSWERING BRIEF IN
OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
P. Clarkson Collins, Jr. (I.D. No. 739)
Joseph C. Schoell (I.D. No. 3 133)
Elizabeth A. Brown (I.D. No. 3713)
222 Delaware Avenue, 10th Floor
P. 0. Box 2306
Wilmington, DE 19899
(302) 888-6800
A-ttorneys for Plaintiff AmBase Corporation
OF COUNSEL:
PRYOR CASHMAN SHERMAN & FLYNN LLP
Peter D. Wolfson
4 10 Park Avenue
New York, NY 10022
(212) 421-4100
November 15, 2000
TABLE OF CONTENTS
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8
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PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISQUALITY COUNSEL
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EXTRACTED KEY WORDS
CSM REPRESENTATION AGREEMENT COUNSEL CITY INVESTING DEFENDANTS TRUST DISQUALIFICATION LITIGATION ASSIGNMENT AGREEMENT DIRECTORS LIABILITIES MATTER CLIENT DELAWARE ATTORNEYS INVESTING COMPANY WITHHOLDING OBLIGATIONS SUBSTANCE PRIOR REPRESENTATION COMPLAINT DISPUTE PURSUANT ADVICE MATERIALLY ADVERSE EXHIBIT LAWYER DRAFTERS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AMBASE CORPORATION, a Delaware )
corporation, >
Plaintiff,
t CA. No. 18207-NC
V.
i r..
CITY INVESTING COMPANY
LIQUIDATING TRUST, as Successor to 1
CITY INVESTING COMPANY, a : 1.
> `\
dissolved Delaware corporation, and
GEORGE T. SCHARFFENBERGER, i
EBEN W. PYNE and LESTER J.
MANTELL, as Trustees of the CITY .-
i _.
INVESTING COMPANY
LIQUIDATING TRUST, i>
Defendants. )
PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT
OF ITS MOTION TO DISOUALIFY COUNSEL
Plaintiff, AmBase Corporation ("AmBase" or "Plaintiff `), submits this Memorandum of
Law in support of its Motion to Disqualify Counsel wherein AmBase requests the
disqualification of Cravath, Swaine & Moore ("CSM") from representing or advising any of the
defendants (or defendants' other counsel) with respect to this action.
PRELIMINARY STATEMENT
As alleged in AmBase's complaint, filed on August 14,200O (the "Complaint" or
"Compl."), this action involves a dispute between AmBase and The City Investing Company
Liquidating Trust (the "Trust"), as successor to City Investing Company ("City Investing"),
concerning the primary liability for an alleged withholding tax obligation sought to be imposed
by the Internal Revenue Service ("IRS"), and the obligation to defend litigation relating to such
alleged liability (the "Withholding Litigation"). Directly at issue is the interpretation of an
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