Re: Hollinger PRIVILEGED COMMUNICATION / ATTORNEYCLIENTCommunication/ Joint Defense Privilege
join
----- Original Message ----
From: "dkiesq@aol.com" dkiesq@aol.com
To: jeeproject@yahoo.com
Sent: Monday, November 6, 2006 3:18:51 PM
Subject: Fw: Hollinger PRIVILEGED COMMUNICATION / ATTORNEYCLIENTCommunication/ Joint Defense Privilege
Shall we do as Cadwalader recommends and agree to join the lawsuit if the other outside directors do?
Darren
Sent from my BlackBerry® wireless handheld
-----Original Message-----
From: "Setton, Ronit" Ronit.Setton@cwt.com
Date: Mon, 6 Nov 2006 13:22:02
Subject: RE: Hollinger PRIVILEGED COMMUNICATION / ATTORNEY
CLIENTCommunication/ Joint Defense Privilege
As I mentioned at the end of what is admittedly a very long email, I recommend that we say we will join if all of the others join. While we are more likely to be subject to discovery if we are parties than if we are not, as I mention below, we can still be subject to discovery if we are not. I think it is in our interest to join because we want the 80 million to be available to settle the class action, and we want the company to be in the best position vis a vis the carriers as possible. Since the view is that we are in a better position if the suit can remain in Delaware and there is a better ability to remain in Delaware if the outside directors join, we should join. As to the likelihood of success, I prefer to discuss that by phone. The likelihood of success is better, however, in Delaware.
Ronit Setton
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York NY 10281
Ph.: (212) 504-6130
Fax: (212) 504-6666
-----Original Message-----
From: dkiesq@aol.com [mailto:dkiesq@aol.com]
Sent: Monday, November 06, 2006 1:00 PM
To: Setton, Ronit
Subject: Re: Hollinger PRIVILEGED COMMUNICATION / ATTORNEY CLIENTCommunication/ Joint Defense Privilege
What do you think?
Sent from my BlackBerry® wireless handheld
-----Original Message-----
From: "Setton, Ronit" Ronit.Setton@cwt.com
Date: Mon, 6 Nov 2006 11:23:59
Subject: Hollinger PRIVILEGED COMMUNICATION / ATTORNEY CLIENT
Communication/ Joint Defense Privilege
Darren, I will do my best in an email, but we may have to talk. Sorry to bother you on vacation. We are being asked by the Company to join a lawsuit against the third and fourth excess carriers in an action to be brought in Delaware. The Company wants an answer by tomorrow, Tuesday, because they want to file as soon as possible. The third and fourth excess policies each total $40 million (for a combined total of $80 million). As you may recall, the first two layers totaled $50 million, all of which will be paid as part of the Cardinal settlement, assuming that settlement is approved. The Delaware court has scheduled a hearing for November 13th to consider the settlement. The third and fourth excess carriers sent a letter in June which I previously forwarded to you setting forth their position that the Company and the outside directors purportedly breached the cooperation clause of the insurance policies by not including the excess carriers in the Cardinal settlement negotiations. The excess carriers are arguing that we should have moved to dismiss the Cardinal action rather than settle it. Since receiving the June letter, the Company has attempted, unsuccessfully, to persuade the carriers otherwise. The Company intends to file a declaratory judgment action this week seeking an advancement of defense costs and a declaration of future coverage for the class action. They feel that it is important that the outside directors join for the following reason. The Canadian Judge who adjudicated issues relating to the Cardinal settlement is sympathetic to the third and fourth excess carriers. Thus, the Company feels that the Canadian Judge would rule in favor of those carriers. The Company believes it would be in a better position in Delaware. The presence of the outside directors would be helpful in that when the question comes up as to why the suit is not going forward in Canada, the Company can point out that the parties are different (the outside directors, as you will recall, were not parties in the Canadian action). In addition, the Company believes that our presence would be helpful from the perspective of atmospherics. The outside directors are more sympathetic plaintiffs, since we are innocent parties seeking the coverage to which we are entitled. The Company believes that the Company is viewed (unfairly) as tainted because it is being associated with management, such as Mr. Black. In a call late Friday afternoon with the other outside directors, it appeared that counsel for the outside directors were going to recommend to their clients that they should join the lawsuit. Apparently, Hollinger is not doing particularly well financially and there is a concern that absent the coverage from the excess carriers, the Company will not be able to pay for a settlement of the class action. In other words, we all have an interest in getting the excess carriers to meet their obligations under the policies, and they won't do it voluntarily. The outside directors could be subject to discovery in the action whether or not they are plaintiffs (i.e. if they did not join, they could still get document requests, interrogatories and deposition notices as non-parties). The insurers will counterclaim or cross-claim seeking a declaratory judgment that the policies are rescinded. The outside directors are having a call today at 4:30. The intention is to be in a position to tell the group whether each client will join. Based on the prior call, my sense is that the group thinks it makes sense to join the lawsuit but that it is important to each client that everyone join. No one wants to be part of a small group joining the suit. The reason the Company wants to bring the suit now is because the hearing on the Cardinal is next week. In addition, they want to bring suit before the excess carriers bring a suit, because the excess carriers will file in Canada. Where there is a forum dispute, it is best to file first. I expect that most if not all of the outside directors will get a response from their clients today. Please give me a call with any questions, and let me know when you think you can get a response. (It can be a conditional response, such as Mr. Wexner will join if all the other outside directors are joining -- which is the response I would recommend). The draft complaint is attached, as is the June letter from the carriers. Best, Ronit
Ronit Setton
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York NY 10281
Ph.: (212) 504-6130
Fax: (212) 504-6666
-----Original Message-----
From: dkiesq@aol.com [mailto:dkiesq@aol.com]
Sent: Monday, November 06, 2006 8:26 AM
To: Setton, Ronit
Subject: Re: Hollinger
Unfortunately, I am out of the office until next monday. I am available by cell phone -- 646 667 9681 -- but am at walt disney world with the family. If possible could you lay out the issues for me fully by e-mail so that I can consider ask any follow up and forward to the client for comment? Of course if you feel the issue is inappropriate for e-mail, I am at you disposal telephonically.
Darren
Sent from my BlackBerry® wireless handheld
-----Original Message-----
From: "Setton, Ronit" Ronit.Setton@cwt.com
Date: Fri, 3 Nov 2006 17:40:39
Subject: Hollinger
I need to speak with you Monday regarding a request from the company, as to which they have asked for a response by Tuesday. I just got off a call with the other counsel for the outside directors. We are all planning to speak to the clients and we have planned another call for Monday at 5 at which we are hoping to have responses, if at all possible. Are you in on Monday and when is the best time to reach you? Thanks and enjoy the weekend.
Ronit Setton
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York NY 10281
Ph.: (212) 504-6130
Fax: (212) 504-6666
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