UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA. JOINT RULE 26(f) PRETRIAL REPORT vs.

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1 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 1 of 11 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA R.J. Zayed, In his Capacity as Court-Appointed Receiver for Trevor G. Cook, et al., Plaintiff, Case No: 0:11-cv MJD-FLN JOINT RULE 26(f) PRETRIAL REPORT vs. Arch Insurance Company, Defendant. Counsel identified below participated in the meeting required by Fed. R. Civ. P. 26(f) on August 11, 2011, and prepared the following report. The pretrial conference in this matter is scheduled for September 13, 2011, at 9:15 a.m. before United States Magistrate Judge Franklin Noel in chambers at 9W, United States Courthouse, 300 South 4 th Street, Minneapolis, Minnesota. The parties do not request that the pretrial conference be held by telephone, however, Defendant requests that its non-local counsel be allowed to participate in the pretrial conference by telephone and Plaintiff does not object. Both Plaintiff, by its counsel Dorsey & Whitney LLP, and Defendant, by its counsel Meagher & Geer, PLLP, will appear in person at the pretrial conference. I. Description of Case A. Concise Factual Summary of Plaintiff s Claims Plaintiff R.J. Zayed ( Receiver ) brings this case in his capacity as courtappointed receiver for Trevor G. Cook, et al. Zayed was appointed as Receiver for Cook

2 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 2 of 11 by Chief Judge Michael Davis in the proceedings entitled United States Securities and Exchange Commission v. Cook et al., U.S. District Court for the District of Minnesota, Case No. 09-cv-3333; and United States Commodity Futures Trading Commission v. Cook et al., U.S. District Court for the District of Minnesota, Case No. 09-cv Receiver brings this action seeking to recover judgments against Lynn Edward Baker and Mesa Holdings, Inc., plus attorneys fees, costs, and interest, for which Defendant Arch Insurance Company is liable as the insurer of Baker and Mesa. Between September 2008 and June 2009, Cook invested $3,750,000 in Mesa and other related entities, all of which were controlled by Baker. These investments were based on misrepresentations by Baker regarding the financial strength, assets, and expected income of Mesa. In August 2009, to recover the funds, Cook initiated a lawsuit entitled Trevor Cook v. L. Edward Baker; Baker Capital LLC; G5 Currency Fund Institutional Series, LP; G5 Currency Fund Affiliate Series, LP; Baker 500 Corporation; Mesa Holdings, LLC; Mesa Holdings, Inc.; Mesa Financial Advisors, Inc.; and Mesa Financial Advisors, LLC, Court File No. 27-CV ( Hennepin County Action ). The Hennepin County Action alleged breaches of contract, conversion, breaches of fiduciary duty, and violation of Minnesota Statutes 80A.40 and 302A.751. At the time of the Hennepin County Action, Mesa and Baker, as its director, were insured by Arch under a Directors, Officers & Organization Liability Policy. Under the Policy, Arch was obligated to defend and indemnify Baker and Mesa for the Hennepin County Action. Baker, on behalf of himself and Mesa, provided Arch notice of the 2

3 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 3 of 11 Hennepin County Action, requesting coverage for the claim. Arch denied coverage, including defense costs, for the Hennepin County Action on June 10, In February 2011, Baker and Mesa entered into a Miller-Shugart Agreement and a related Miller-Shugart Assignment with Receiver. In the Miller-Shugart Agreement, Baker and Mesa acknowledged that Cook alleged, and the Receiver was prepared to present evidence that at least $2,500,000 of Cook s damages were the result of conversion, breach of fiduciary duty, and violation of Minnesota Statutes 80A.40 and 302A.751, relating to Cook s investment in Mesa. Baker and Mesa further acknowledged that there was a substantial risk that a jury would conclude they were legally liable to the Receiver because of these claims. As part of the agreement, Baker and Mesa assigned to Receiver all claims or causes of actions against Arch related the Hennepin County Action. Pursuant to the Miller-Shugart Agreement, Baker and Mesa stipulated to the entry of judgments against them and in favor of Receiver in the amounts of $500,000 and $1,000,000, respectively, plus costs, fees and interest. The court in the Hennepin County Action entered judgment against Baker and Mesa in favor of Receiver on March 22, Receiver subsequently brought this action against Arch to recover the judgments entered against its insureds, Baker and Mesa. Receiver asserts a claim for declaratory judgment, seeking a declaration that the Policy provides coverage for the judgments in the Hennepin County Action and that Arch is obligated and liable to Receiver pursuant to the Miller-Shugart Agreement and Assignment for Baker s and Mesa s defense costs in the Hennepin County Action, the judgments entered against Baker and Mesa, and 3

4 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 4 of 11 Receivers attorneys fees, costs and expenses incurred in enforcing Arch s duty to defend. Receiver has also asserted claims against Arch for breach of contract for failing to provide a defense for Baker and Mesa and for failing to indemnify Baker and Mesa against the judgments entered in the Hennepin County Action. B. Concise Factual Summary of Defendant s Claims/Defenses Defendant Arch Insurance Company ( Arch ) issued Arch Corporate Canopy Policy Private Company Management Liability & Crime Insurance to Mesa Holdings, LLC (hereinafter referred to as Mesa ) with a Policy Period of August 1, 2009 to August 1, 2010 (the Arch Policy ). On August 19, 2009, Trevor G. Cook ( Cook ) initiated a lawsuit in Minnesota state court entitled Trevor Cook v. L. Edward Baker; Baker Capital LLC; G5 Currency Fund Institutional Series, LP; G5 Currency Fund Affiliate Series, LP; Baker 500 Corporation; Mesa Holdings, LLC; Mesa Holdings, Inc.; Mesa Financial Advisors, Inc.; and Mesa Financial Advisors, LLC, Court File No. 27-CV (hereinafter the Hennepin County Action ). The complaint alleged that beginning in 2008, Cook invested in and loaned money to entities controlled by L. Edward Baker ( Baker ) based upon Baker s misrepresentations concerning the financial strength, assets, and expected income of Mesa. On October 5, 2009, Cook filed an Amended Complaint in Hennepin County, which for the first time named Mesa Holdings, LLC as a defendant. The Amended Complaint, alleged breaches of contract, conversion, breaches of fiduciary duty, and violation of Minnesota Statutes 80A.40 and 302A.751. The Amended Complaint 4

5 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 5 of 11 further asserted that at all relevant times, Baker was acting as an agent for Baker Capital LLC and the Baker Currency Funds. By dated November 5, 2009, Mesa submitted the Amended Complaint to Arch for coverage. Arch acknowledged receipt of the November 5, 2009, notice by letter to the Insured dated November 6, On February 10, 2010, Arch issued an initial coverage position letter to the Insured indicating that Baker was named as a defendant in the Amended Complaint in a non- Insured capacity and, therefore, coverage was not afforded under the Arch Policy for the claims asserted in the Hennepin County Action against Baker and Mesa. The February 10, 2010, letter reserved Arch s rights to disclaim coverage based upon other terms, conditions and exclusions of the Arch Policy. Following Arch s coverage investigation and based upon the allegations in the Amended Complaint, Arch issued a supplemental coverage position letter dated June 10, 2010, which disclaimed coverage for the Amended Complaint. Based upon the allegations in the Amended Complaint and information obtained by counsel for the Insured, Arch determined that Baker was acting as an agent for non-insured entities and not in an Insured Capacity as a director or officer of Mesa. Accordingly, the Insuring Agreement in the Arch Policy does not cover the claims asserted in the Hennepin County Action. Arch supplemented its June 10, 2010, coverage position by letter dated July 29, 2010, denying coverage on the additional basis that the claims asserted in the Hennepin County Action arose out of breaches of various agreements between Cook and Mesa, 5

6 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 6 of 11 e.g., breach of promissory notes and placement memorandum. Such breach of contract claims are expressly not covered under the terms, conditions and exclusions of the Arch Policy. Subsequent to filing the Hennepin County action, Cook was indicted for participating in a fraudulent investment scheme and Plaintiff R.J. Zayed was appointed as Receiver for Cook by Chief Judge Michael Davis in the proceedings entitled United States Securities and Exchange Commission v. Cook et al., U.S. District Court for the District of Minnesota, Case No. 09-cv-3333; and United States Commodity Futures Trading Commission v. Cook et al., U.S. District Court for the District of Minnesota, Case No. 09-cv In February 2011, Baker and Mesa stipulated to a judgment of $1.5 million subject to agreement that the Receiver could look only to the proceeds of the Arch Policy to satisfy the judgment (the Miller - Shugart Agreement ). In addition, Baker and Mesa assigned their rights under the policy to the Receiver. The Receiver then filed his coverage action against Arch seeking, inter alia, a declaration that the Policy provides coverage for the judgments in the Hennepin County Action. On July 27, 2011, Arch answered the within Complaint and affirmatively asserts that the amount of the stipulated judgment in the Miller-Shugart Agreement was unreasonable and thus any judgments entered thereon were invalid and void. Arch further contends that the Miller-Shugart Agreement was the product of collusion and failed to allocate the amount of the stipulated judgment between potentially covered and non-covered claims. Arch also affirmatively restates its coverage positions that Baker 6

7 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 7 of 11 was acting in an un-insured capacity and that the claims in the Hennepin County Action arise of out alleged breaches of agreements, both of which are expressly not covered under the terms, conditions and exclusions of the Arch Policy. C. Statement of Jurisdiction (including statutory citations) This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332(a), because there is diversity of citizenship between the parties, and the amount in controversy exceeds $75,000. Venue in this Court is proper under 28 U.S.C. 1391(a). Receiver asserts that this Court also has jurisdiction pursuant to 28 U.S.C. 754, 1692, 1367 and Fed. R. Civ. P. 4(k)(1)(C). D. Summary of Factual Stipulations or Agreements None at this time. E. Statement of whether jury trial has been timely demanded by any party Both Receiver and Arch have timely demanded a jury trial. II. Pleadings Answer. A. Statement of whether all process has been served, all pleadings filed, and any plan for any party to amend pleadings or add additional parties to the action. Receiver filed his Complaint on May 20, On July 27, 2011, Arch filed its Receiver may seek to further amend his complaint. Defendant may likewise seek to amend its Answer. 7

8 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 8 of 11 B. Proposed date by which all hearings on motions to amend and/or add parties to the action shall be heard: November 18, 2011 III. Discovery Limitations A. The parties agree and recommend that the Court limit the use and numbers of discovery procedures as follows: interrogatories per party document requests per party 3. 6 factual depositions per party requests for admissions per party The above limitation for number of document requests does not include document requests served on non-parties. IV. Discovery Schedule/Deadlines V. Experts A. Date by which the initial Rule 26(a)(1)(A) disclosures will be completed: September 2, 2011 B. The parties recommend that the Court establish the following discovery deadlines: 1. Deadline for completion of non-expert discovery, including service and responses to interrogatories, document requests, requests for admission and taking of factual depositions: February 10, C. Receiver believes a Protective Order is necessary, and will prepare a proposed Protective Order for Arch s review in advance of the pretrial conference. A. The parties anticipate that they will require expert witnesses at the time of trial. 1. Receiver currently anticipates calling 1-3 experts, including regarding the reasonableness of the relevant settlement and/or attorneys fees. 8

9 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 9 of Arch currently anticipates calling 1-3 experts in support of its affirmative claims/defenses and to rebut Receiver s experts. 3. The parties pursuant to Local Rule 26.3(a), recommend the disclosure and discovery option as follows: a. Deadlines for identification of expert witness and exchange of expert reports pursuant to and required by Fed. R. Civ. P. 26: (i) Receiver: December 9, 2011 (ii) Arch: January 13, 2012 b. Deadline for completion of expert witness depositions, if any: (i) February 10, 2012 VI. Motion Schedule A. The parties recommend that motions be filed and served on or before the following date: 1. Non-dispositive motions: February 24, Dispositive motions: March 23, 2012 VII. Trial-Ready Date A. The parties agree that the case will be ready for trial on or after May 25, The parties currently estimate trial will take 2-3 days. B. A final pretrial conference should be held on or before a date and time to be determined by the Court. VIII. Insurance Carriers/Indemnitors A. List all insurance carriers/indemnitors, including limits of coverage, or statement that the defendant is self-insured. Not applicable. 9

10 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 10 of 11 IX. Settlement Receiver believes that a settlement conference before the Magistrate Judge is appropriate and should be scheduled by the Court sometime before the first of the year. Defendant Arch has requested that the Receiver provide a settlement. Defendant Arch joins the Receiver s request for a Settlement Conference before the Magistrate Judge. X. E-Discovery The parties discussed the existence of and production protocol for e-discovery and the preservation of information. DORSEY & WHITNEY, LLP By:_/s/ Kieran Dwyer Katie C. Pfeifer, # Kieran Dwyer, # South Sixth Street, Suite 1500 Minneapolis, Minnesota pfeifer.katie@dorsey.com dwyer.kieran@dorsey.com Telephone: (612) Facsimile: (612) Attorneys for Plaintiff 10 KAUFMAN BORGEEST & RYAN LLP By:_/s/ Joan M. Gilbride Joan M. Gilbride (Admitted pro hac vice) Paul T. Curley (Admitted pro hac vice) Patrick Stoltz (Admitted pro hac vice) 200 Summit Lake Drive Valhalla, New York Telephone: (914) Fax: (914) jgilbride@kbrlaw.com

11 CASE 0:11-cv MJD -FLN Document 15 Filed 08/25/11 Page 11 of AND - M. Gregory Simpson # MEAGHER & GEER, P.L.L.P. 33 South Sixth Street, Suite 4400 Minneapolis, Minnesota Telephone: (612) Fax: (612) gsimpson@meagher.com Attorneys for Defendant Arch Insurance Company 11