PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED CLASS ACTION COMPLAINT PURSUANT TO FED. R. CIV. P. 15(A) AND SUPPORTING MEMORANDUM OF LAW

Transcription

1 Filed 09/15/10 USDC Colorado Page 1 of Case No. 07-CV REB-MJW IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO STEVEN A. STENDER and INFINITY CLARK STREET OPERATING, L.L.C., on behalf of themselves and all others similarly situated, v. Plaintiffs, ARCH STONE-SMITH OPERATING TRUST, ARCHSTONE-SMITH TRUST, JAMES A. CARDWELL, ERNEST A GERARDI, JR., RUTH ANN M. GILLIS, NED S. HOLMES, ROBERT P. KOGOD, JAMES H. POLK III, JOHN M. RICHMAN, JOHN C. SCHWEITZER, R. SCOT SELLERS, ROBERT H. SMITH, STEPHEN R. DEMERITT, CHARLES MUELLER, JR., CAROLINE BROWER, MARK SCHUMACHER, ALFRED G. NEELY, LEHMAN BROTHERS HOLDINGS, INC., and TISHMAN SPEYER DEVELOPMENT CORPORATION, Defendants. PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED CLASS ACTION COMPLAINT PURSUANT TO FED. R. CIV. P. 15(A) AND SUPPORTING MEMORANDUM OF LAW

2 Filed 09/15/10 USDC Colorado Page 2 of I. PRELIMINARY STATEMENT To ensure timely filing for preservation of the class claims arising out of the facts giving rise to the original complaint including those asserted by plaintiffs in Katz v. Gerardi et ai, Civil Action No. 1 :09-cv WYD-CBS, United States District Cour for the District of Colorado, that were dismissed on "claims-splitting" grounds, Plaintiffs Steven A. Stender and Infinity Clark Street Operating, L.L.C. ("Plaintiffs") submit this motion pursuant to Federal Rule of Civil Procedure 15(a), for leave to file an amended class action complaint and supporting memorandum of law. Plaintiffs' proposed Amended Class Action Complaint is attached hereto as Exhibit 1. By this Motion, Plaintiffs are not asking this Court to make any substantive determinations about the matters underlying Plaintiffs' claims at this time. Plaintiffs' bring this motion now for the sale purpose of ensuring that all claims are timely filed. Plaintiffs filed their original Class Action Complaint on November 30, 2007, alleging three causes of action. Count I alleged that defendants Archstone-Smith Operating Trust ("Arch stone UPREIT") and Archstone-Smith Trust ("Arch stone REIT") breached their contracts with Plaintiffs. Counts II and II alleged breaches of fiduciary duties against defendants James A. Cardwell, Ernest A. Gerardi Jr., Ruth Ann M. Gillis, Ned S. Holmes, Robert P. Kogod, James H. Polk II, John M. Richman, John C. Schweitzer, R. Scot Sellers and Robert H. Smith, Stephen R. Demeritt, Charles Mueller, Jr., Carolina Brower, Mark Schumacher, and Alfred G. Neely (collectively referred to as the "Individual Defendants") in connection with the merger among Archstone UPREIT, Archstone REIT, Lehman Brothers Holding, Inc. ("Lehman Brothers") and Tishman Speyer Development Corporation ("Tishman Speyer"), and against defendants Lehman Brothers and Tishman Speyer for the aiding and abetting thereof. A portion of Count 1-2-

3 Filed 09/15/10 USDC Colorado Page 3 of has been ordered to arbitration. 5/12/1 0 Order (Docket # 114) at The remainder of Count I and Count II have been dismissed without prejudice and leave has been granted to amend those claims. 9/28/09 Order (Docket # 1 01) at Count II has been dismissed with prejudice. Id. at 12. Plaintiffs brought this action as a class action on behalf of themselves and all persons who owned Class A-I Common Units of Archstone-Smith Operating Trust ("A-l Unitholders") at the time of the merger. Through and following the merger, Defendants abrogated all the valuable rights of the Plaintiff A-I Unitholders. This conduct - negating the deals which had established the nature of the A-I Units - forms the basis of the Plaintiffs' claims. Plaintiffs seek leave to amend their complaint for four reasons: (1) to address the deficiencies which the Court has found with respect to the allegations relating to the breach of contract claims of the Series 0 Unitholders and with respect to the breach of fiduciary duty claim relating to minority oppression i; (2) to add River Holding, LP, River Acquisition (MD), LP, River Trust Acquisition (MD), LLC and Tishman Speyer Archstone-Smith Multifamily Series I Trust as Defendants; (3) to add counts for Tortious Interference with Contract and Civil Conspiracy; and (4) to preserve the Series 0 Unitholders' claims under the federal securities laws. This Court has already granted leave to fie an amended complaint with respect to Item (l) after the completion of the arbitration. 9/28/09 Order (Docket # 101) at 12. However, the Plaintiffs find it necessary to come forward now with respect to Items (2), (3) and (4) in order to preserve all claims 1 The portion of Count I that involves former A-I Unitholders who cashed out their shares and were forced to incur tax liability they had contracted to avoid is the subject of arbitration, by order of this Court. 5/12110 Order (Docket #114) at A Statement of Claim has been provided to counsel for the arbitration Respondents. -3-

4 Filed 09/15/10 USDC Colorado Page 4 of prior to the running of the applicable statute/s of limitations. For efficiency's sake, the Plaintiffs are addressing amendments to the breach of contract and breach of fiduciary duty/aiding and abetting claims in this proposed amendment as well. If the Court grants leave to file the proposed Amended Class Action Complaint, the Plaintiffs understand that the Court will again administratively close the case pending the outcome of the arbitration. The Plaintiffs seek leave to join as Defendants River Holding, LP, River Acquisition (MD), LP and River Trust Acquisition (MD), LLC (collectively, the "River Entities") and Tishman Speyer Multifamily Series I Trust ("Tishman Speyer Parnership"), the successor-in-interest to River Acquisition (MD), LP. The Plaintiffs already have included as Defendants Archstone-Smith Trust and Archstone-Smith Operating Trust, the parties with whom the Plaintiffs had contracts regarding their A- 1 Units. The River Entities and the Tishman Speyer Partnership are or were owned and controlled by Lehman Brothers Holdings, Inc.2 and Tishman Speyer Development Corporation - both of which were original Defendants in the case. See Class Action Complaint (Docket #1) at iìiì The River Entities entered into an Agreement and Plan of Merger ("Merger Agreement") with the Archstone Entities. The Plaintiffs assert that the Merger abrogated their rights as A-I Unitholders. The Plaintiffs propose adding the River Entities as Defendants as they were the signatories to the Merger Agreement, through which the value of Plaintiffs' investments were destroyed. Additionally, upon further review of the Merger Agreement, Plaintiffs have discovered that as a result of the 2 Lehman Brothers fied a Notice of Bankruptcy with this Court on September, (Docket # 75.) All proceedings against Lehman Brothers are stayed pursuant to Section 362 of the Bankruptcy Code, 11 U.S.C. 362(a)(I), 362(a)(3), therefore Lehman Brothers is not named as a defendant in the proposed amended complaint. -4-

5 Filed 09/15/10 USDC Colorado Page 5 of Merger the rights, duties and liabilities of Archstone-Smith Trust were assigned to River Acquisition (MD), LP, which partnership survived the merger. See Merger Agreement, Section 2.01(b) ("Accordingly,..., (River Acquisition (MD), LPJ shall have all the properties, rights, privileges, purposes and powers and debts, debts, duties and liabilities of (Archstone-Smith Trust)"). To the extent that the claims in the proposed Amended Class Action Complaint are, as a result of the Merger, properly brought against River Acquisition (MD), LP, or the other River Entities (including, but not limited to the nonarbitrable aspects of Count I (Breach of Contract)), Plaintiffs request leave to amend the complaint to include River Holding, LP, River Acquisition (MD), LP, River Trust Acquisition (MD), LLP and Tishman Speyer Multifamily Series I Trust, as Defendants? Plaintiffs also seek leave to add counts based on the same conduct, transactions and occurrences set out in the original complaint. The claim for tortious interference with contract alleges that the River Entities and Tishman Speyer interfered with the contracts Plaintiffs had with the Archstone Entities. Plaintiffs also claim that Tishman Speyer conspired with Lehman Brothers to tortiously interfere with Plaintiffs' contracts with the Archstone Entities. Both the tortious interference and civil conspiracy counts are based on the conduct described in the original complaint. Specifically, the Defendants entered into the Merger Agreement with full knowledge of the Archstone Entities' obligations to A-I Unitholders. The negotiations leading up to the execution of the Merger demonstrate that the purchasers of the Archstone Entities changed their 3 On September 14, 2010, Plaintiffs were advised by counsel for Archstone that there are two additional entities that should be part of the arbitration proceedings as successors-in-interest to one or more of the foregoing Defendants. By , Plaintiffs' counsel requested the precise names of the two entities. Defendants have not responded, and Plaintiffs reserve the right to add these Defendants, if appropriate, upon obtaining the information. -5-

6 Filed 09/15/10 USDC Colorado Page 6 of estimation of the value of the deal based on Archstone's agreements with unitholders. See Complaint (Docket #1) at iìiì Then, after accounting for the unitholders' agreements in the purchase price, the River Entities, owned and controlled by Lehman Brothers and Tishman Speyer, entered into the Merger Agreement which stripped the A-I Unitholders of the value of their interests by divesting them of the tax protections, liquidity and dividend rights for which they had bargained. The Merger Agreement, engineered by Tishman Speyer and Lehman Brothers, required the Archstone Entities to breach the agreements they had with the A- 1 Unitholders, who were thereby damaged. The proposed amended complaint also seeks to preserve the Series 0 Unitholders' claims under the federal securities laws and regulations. A Series 0 representative (Infinity Clark Street Operating) joined a case initiated by another plaintiff in the Circuit Court for Cook County, Ilinois. That case was removed to the United States District Court for the Northern District of Ilinois and eventually transferred, by agreement, to the District of Colorado and assigned to Judge Daniel's docket by this District Court. See Katz v. Gerardi et ai., Civil Action No. 1:09-cv WYD-CBS, United States District Court for the District of Colorado. When Infinity joined the case before Judge Daniel, it asserted the securities claims which are included in the proposed amended complaint. Although the cases had been randomly assigned to him, Judge Daniel held that Infinity had improperly split its claims, thereby dismissing the securities claims before him. See Katz, 8/3/10 Order (Dkt. No. 66, Civil Action NO.1 :09-cv-01340). Judge Daniel made no rulings on the merits of the securities claims of Series 0 Unitholders. Id. Infinity is appealing the August 3, 2010 Order as it relates to, among other things, whether Infinity's claims were inappropriately split. Further, Infinity is asking, alternatively, for -6-

7 Filed 09/15/10 USDC Colorado Page 7 of the Tenth Circuit to remand the Series 0 claims and provide an opportunity to substitute an adequate plaintiff. The proposed amended complaint also names an additional 0 Unitholder, Harold Silver, as a plaintiff, in the event that Infinity is somehow deemed an inadequate plaintiff for purposes of the securities claims here. Series 0 Plaintiffs Silver and Infinity have included their securities claims in the proposed amended complaint in order to preserve the opportunity to have such claims evaluated on their merits. The Court's May 12, 2010 Order contemplates the fiing of an amended complaint following the completion of the arbitration. The Plaintiffs bring this motion and propose their amendments at this time, within the relevant statutory periods, to ensure that such amendments cannot be argued as fied out oftime.4 II. ARGUMENT A party may amend its pleading with leave of court, which should be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). See Foman v. Davis, 371 U.S. 178, 182 (1962). The Supreme Court has held that "(ijf the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman, 371 U.S. at 182. Leave to amend should be refused "only on a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Duncan v. Manager, Dep't of Safety, City and County of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005). 4 The amendments for which the Plaintiffs have not already been granted leave to fie, involving joinder of parties and claims, relate back to the filing of the original complaint, under Federal Rules of Civil Procedure 15(c)(l)(B) and (C). Nonetheless, the Plaintiffs bring the claims now to avoid potential timing arguments. -7-

8 Filed 09/15/10 USDC Colorado Page 8 of In this case, the Court already has granted the Plaintiffs leave to amend their complaint with respect to certain breach of contract claims and a breach of fiduciary duty claim. 9/28/09 Order (Docket #101) at The Court's 9/28/09 and 5/12/10 Orders conclude that litigation of any amended claims wil not proceed in court until the completion of the arbitration of the tax -related contract claims. However, to preserve all claims relating to the conduct that forms the basis of the complaint, the Plaintiffs find it necessary to now come forward to present an Amended Class Action Complaint with the understanding that the claims it contains will not be litigated until the arbitration is finished. Leave to amend is warranted. The Plaintiffs have exhibited no undue delay, bad faith or dilatory motive and the Defendants, existing and proposed by amendment, will not be prejudiced. The claims also are not futile. A. No Undue Delay Although the original complaint in this case was filed on November 30, 2007, the case remains in its infancy. There is currently no scheduling order establishing a time line for the progress of the case - even setting aside its administrative closing. By Order dated February 27, 2008 (Docket #50), discovery and other pretrial proceedings were stayed pending resolution of the Defendants motions to dismiss or stay in favor of arbitration. Those motions were decided and the case is now stayed in its entirety pending arbitration of certain claims. No discovery has been initiated and leave has already been granted with respect to certain claims that were dismissed without prejudice. It cannot be argued that the Plaintiffs have unduly delayed amending. The court in Colorado Cross-Disabilty Coalition et al. v. Abercrombie & Fitch Co. et ai., Civil Action No. 09-cv-02757, 2010 U.S. Dist. LEXIS at *4-5 (D. Co. May 12, 2010), found no undue delay when the plaintiffs had complied with the fiing deadline for -8-

9 Filed 09/15/10 USDC Colorado Page 9 of amendments and the close of discovery was over five months away. See also Ryskin v. Banner Health, Inc., Civil Action No. 09-cv-01864, 2010 U.S. Dist. LEXIS at *2, 6 (D. Co. April, 2010) (allowing amendment to add claim of tortious interference with prospective business advantage after amendments' deadline but before close of discovery). In this case, no scheduling order has even set a date by which amendments have to be proposed or parties joined. Nor has any discovery been initiated. When the case resumes after the completion of the arbitration, all parties will be at the same point with respect to all claims proceeding - the very beginning. B. No Prejudice Wil Result If Leave Is Granted The most important factor in deciding to allow pleading amendments is whether such allowance will prejudice the non-moving parties. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (loth Cir. 2006). Prejudice under Rule 15 is "undue difficulty in prosecuting (or defending) a lawsuit as a result of a change of tactics or theories on the part of the other party." Colorado Cross, 2010 U.S. Dist. LEXIS at *6 (internal citations and quotations omitted). The Defendants should have no additional diffculty at all in defending against the claims brought by the Plaintiffs in the proposed amended complaint - no defenses have even been raised at this point. There also has been no shift in theory or tactics. The Merger, and the events surrounding it, have been, and continue to be, the sources of the Plaintiffs' claims. When amended claims "track the factual situations set forth in (the) original claims," there is no prejudice. Gilette v. Tansy, 17 F.3d 308,313 (loth Cir. 1994). C. Plaintiffs Have Not Acted In Bad Faith Plaintiffs bring request leave to fie the amended complaint in good faith. As explained, in order to ensure that the relevant statutory period does not run, Plaintiffs -9-

10 Filed 09/15/10 USDC Colorado Page 10 of seek leave now, rather than waiting until the conclusion of the arbitration, the date of which is unknown. Plaintiffs simply seek to amend their pleading to address the perceived deficiencies in claims already raised, to include all parties to the Merger Agreement and to add claims based on the conduct described in the original complaint. The purpose behind the amendments is to allow this Court to fully and fairly decide this case on the merits. See Foman, 371 U.S. at 182. D. The Proposed Amendments Are Not Futile Here, the proposed amended complaint addresses the issues raised previously by the Court with respect to the non-arbitrable aspects of contract claims and a breach of fiduciary duty claim. It further adds relevant paries and facts regarding proposed counts for tortious interference with contract, civil conspiracy and securities claims. None of the proposed amendments are futile because they raise plausible claims for relief and should be determined on their merits. See Foman, 371 U.S. at 182 (if, among other things, the amendments are not futile, plaintiff should be allowed to proceed). 1. Non-Arbitrable Breach of Contract Claims The Merger Agreement forced holders of A-I Units of the Archstone UPREIT to "choose" one of two options. A unitholder could "opt" to cash-out for a specified price, causing the holder to incur significant tax liability, in violation of the agreements the unitholders had negotiated. The breach of contract claims by the Unitholders who "chose" the cash-out option are the subject of the arbitration ordered by this Court. The only other "option" an A-I Unitholder had was to trade in his or her units for a newly created interest called a Series 0 Unit. Plaintiffs' proposed amended complaint refers to the portions of the relevant agreements (and attaches them) that provide the A-I Unitholders with liquidity and dividend rights. The proposed amended complaint also -10-

11 Filed 09/15/10 USDC Colorado Page 11 of attaches the Merger Agreement and specifies the portions of that agreement which abrogate the previously referenced contractual rights to liquidity and dividends. The allegations provide the Defendants with a fair opportunity to respond, and this Court the ability to meaningfully assess whether Plaintiffs and the Class share common questions of law or fact. 2. Breach of Fiduciary Duty Except to preserve the record in the event of an appeal, Plaintiffs have limited their breach of fiduciary duty claim to a claim for minority oppression, in accordance with the Court's orders. Judge Nottingham, in originally dismissing this claim with prejudice (9/30/08 Order (Docket #76) at 42-43, held that Plaintiffs had failed to allege that the Defendants had acted ultra vires, illegally or in bad faith. This Court held that such purported pleading failures could be remedied. 9/28/09 Order (Docket #101) at 8. Plaintiffs repaired the perceived pleading defects with respect to Defendants' ultra vires, illegal and bad faith actions in the proposed amended complaint. Plaintiffs have further separated the aiding and abetting count from the breach of fiduciary duty claim in accordance with Maryland law. 3. Joinder of Additional Defendants Plaintiffs propose joining the River Entities and the Tishman Speyer Multifamily Series I Trust in order to ensure that all of the relevant entities are parties to the lawsuit - a purpose which is surely not futile. 5 The River Entities were signatories to the Merger Agreement and the Tishman Speyer Multifamily Series I Trust is a successor-in-interest to one of the River Entities. All of these parties were owned and controlled by Tishman 5 See Footnote 3, supra. -11-

12 Filed 09/15/10 USDC Colorado Page 12 of Speyer Development Corporation and/or Lehman Brothers, which have been parties to this suit from the outset. 4. Tortious Interference with Contract Count IV for tortious interference with contract is also not futile. Plaintiffs have alleged that the River Defendants and Tishman Speyer knew that the Archstone Entities had valid, on-going contracts with Plaintiffs and other members of the Class and those Defendants negotiated the Merger with complete disregard for those underlying agreements, even after acknowledging their value by discounting the purchase price of the Archstone Entities. The structure of the Merger, orchestrated by the River Entities, Tishman Speyer and Lehman Brothers caused the breach of the Archstone Entities' contracts with A-I Unitholders, who were thereby damaged. Trimed, Inc. v. Sherwood Medical Co., 772 F. Supp. 879, 881 (D. Md. 1991) (elements of tortious interference in Maryland are (l) that a valid contract existed between two third parties; (2) that the interferer/s knew of the existence of that contract; (3) that the interferer/s, without justification or privilege, intentionally persuaded one party to the contract to breach it; (4) that the breach occurred based on that conduct; and (5) that the other party suffered monetary damages as a result of the breach). Plaintiffs' proposed amended complaint contains allegations which constitute a plausible claim for relief for tortious interference with contract, therefore allowing the amendment is warranted. 5. Civil Conspiracy Plaintiffs further allege that Tishman Speyer Development Corporation and Lehman Brothers Holdings, Inc. conspired to tortiously interfere with the A-I Unitholders' contracts with the Archstone Entities. The proposed amended complaint alleges that at least two actors, Tishman Speyer and Lehman Brothers, took concerted -12-

13 Filed 09/15/10 USDC Colorado Page 13 of action to accomplish an unlawful result - the interference with the investment agreements between the Archstone Entities and Plaintiffs and other members of the Class. Plaintiffs and the other members of the Class were thereby damaged. See Shoregood Water Co., Inc. v. U.S. Bottling Co., Civil Action No. RDB , 2009 U.S. Dist. LEXIS at *17-18 (D. Md. Aug. 10,2009) (a combination of two or more persons to accomplish an unlawful act or to use unlawful means to accomplish a lawful act causing damage to the plaintiff/s constitutes civil conspiracy). The amended complaint should include the civil conspiracy claim. 6. Securities Claims It is not futile to permit the Plaintiffs to add the Series 0 Unitholders' federal securities claims, which have been timely raised. The merits of these claims have not yet been considered. Plaintiffs Silver and Infinity, on behalf of all former A-I Unitholders who were forced to exchange their A-I Units for Series 0 Units, request that this Court allow them to include such claims in the proposed amended complaint so that in the event the Tenth Circuit denies either alternative form of relief sought with respect to these claims as brought before Judge Daniel, such claims will be preserved as timely fied. III. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant them leave to fie and serve the proposed Amended Class Action Complaint. -13-

14 Filed 09/15/10 USDC Colorado Page 14 of Dated: September 15, 2010 Respectfully submitted, WEXLER WALLACE LLP By: /s/ Kenneth A. Wexler Kenneth A. Wexler Edward A. Wallace Kara A. Elgersma Wexler Wallace LLP 55 W. Monroe Street, Suite 3300 Chicago, Ilinois (312) Telephone (312) Facsimile kaw(qjwexlerwallace.com eaw(qjwexlerwallace.com kaera)wexlerwallace.com Lee Squitieri SQUITIERI & FEARON, LLP 32 E. 57th Street, 12th Floor New York, New York (212) Telephone (212) Facsimile lee((sfclasslaw.com Gerald L. Bader, Jr. Renee B. Taylor BADER & ASSOCIATES, LLC 1873 S. Bellaire Street, Suite 1110 Denver, Colorado (303) Telephone (303) Facsimile g bad er(á bad er -associates. co m rtaylor((~badel-associates.com Counsel for Plaintiffs Steven A. Stender and Infinity Clark Street Operating, L.L. C. -14-

15 Filed 09/15/10 USDC Colorado Page 15 of D.C.COLO.LCIV.R. 7.HA) CERTIFICATION I, Kenneth A. Wexler, am one of the counsel for Plaintiffs Steven A. Stender, Harold Silver and Infinity Clark Street Operating, and certify that I conferred with counsel for the Defendants regarding this motion pursuant to D.C.COLO.LCivR 7.1 (A), and that counsel for the Defendants advised me that they would not consent to the relief requested in this motion. Dated: September 15, 2010 Respectfully submitted, WEXLER WALLACE LLP By: Is/Kenneth A. Wexler Kenneth A. Wexler Edward A. Wallace Kara A. Elgersma Wexler Wallace LLP 55 W. Monroe Street, Suite 3300 Chicago, Ilinois (312) Telephone (312) Facsimile kaw@wexlerwallace.com eawcâwexlerwallace.com cj sc(ùwexlerwallace.com smtcâwex lerwallace.com Counsel for Plaintiffs Steven A. Stender, Harold Silver and Infinity Clark Street Operating, L.L. C. -15-

16 Filed 09/15/10 USDC Colorado Page of CERTIFICATE OF SERVICE I, Kenneth A. Wexler, hereby certify that I electronically fied the foregoing Motion for Leave to File an Amended Class Action Complaint Pursuant to Fed. R. Civ. P. 15(a) and Supporting Memorandum of Law with the Clerk of the Court using the CMIECF System which will send notification of such fiing to the following: Jonathan D. Polkes Ashishi Dinesh Gandhi Wei i Gotshal & Manges, LLP- NY 767 5th Avenue New York, NY Jonathan. pol kes(áwei i. com Ashish.gandhi@weil.com Frederick J. Baumann Cindy Coles Oliver Rothgerber Johnson & Lyons, LLP th Street One Taboe Center, #3000 Denver, CO fbaumann@rothgerber.com co liver@rothgerber.com Date: September 15,2010 lsi Kenneth A. Wexler Kenneth A. Wexler WEXLER WALLACE LLP 55 W. Monroe Street Suite 3300 Chicago, IL (tel) (fax) kaw@wexlerwallace.com