11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 1 of 15

Main Document

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------- X : In re : : LEHMAN BROTHERS HOLDINGS INC., : et al., : : Debtors. : : ------------------------------------------------------- X : ARCHSTONE LB SYNDICATION : PARTNER LLC, LEHMAN BROTHERS : HOLDINGS, INC., REPE ARCHSTONE GP : HOLDINGS, LLC, LUXEMBOURG : TRADING FINANCE S.A.R.L., : LUXEMBOURG RESIDENTIAL : PROPERTIES LOAN FINANCE S.A.R.L., : LUXEMBOURG RESIDENTIAL : PROPERTIES LOAN FINANCE 2 S.A.R.L., : and LEHMAN COMMERCIAL PAPER, : INC., : : Plaintiffs, : : v. : : BANC OF AMERICA STRATEGIC : VENTURES, INC., BANK OF AMERICA, : N.A., BIH ASN LLC, BARCLAYS : CAPITAL REAL ESTATE INC., and : ARCHSTONE EQUITY HOLDINGS INC. : : Defendants. : : ------------------------------------------------------- X Chapter 11 Case No. 08-13555 (JMP)

Adversary Proceeding No. 11-02928 (JMP)

THE BARCLAYS DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR EXPEDITED DISCOVERY

11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 2 of 15

Main Document

TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................................................... 1 ARGUMENT................................................................................................................................. 8 I. THIS COURT SHOULD DENY PLAINTIFFS REQUEST FOR EXPEDITED DISCOVERY..................................................................................................................... 8 ALTERNATIVELY, DEFENDANTS SHOULD BE GRANTED LEAVE TO TAKE EXPEDITED DISCOVERY .................................................................................. 9 THIS COURT SHOULD UNSEAL THE AGREEMENTS TO WHICH DEFENDANTS CONSENT AND TO WHICH PLAINTIFFS ALREADY SELECTIVELY REFER IN PUBLIC FILINGS............................................................. 10

II.

III.

CONCLUSION............................................................................................................................ 11

-i-

11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 3 of 15

Main Document

TABLE OF AUTHORITIES Page FEDERAL CASES In re Food Management Group, LLC, 359 B.R. 543 (Bankr. S.D.N.Y. 2007).....................................................................................11 In re Orion Pictures Corp., 21 F.3d 24 (2d Cir. 1994)............................................................10, 11

FEDERAL STATUTES 11 U.S.C. 107(b) .........................................................................................................................11

RULES Bankruptcy Rule 7026 .....................................................................................................................9 Bankruptcy Rule 7030 .....................................................................................................................9 Bankruptcy Rule 7034 .....................................................................................................................9 Bankruptcy Rule 9018 ...................................................................................................................11 Fed. R. Civ. P. 26(d) ........................................................................................................................9 Fed. R. Civ. P. 26(f).........................................................................................................................9 Fed. R. Civ. P. 30.............................................................................................................................9 Fed. R. Civ. P. 34(b) ........................................................................................................................9

-ii-

11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 4 of 15

Main Document

Defendants BIH ASN LLC, Barclays Capital Real Estate Inc., and Archstone Equity Holdings Inc. (collectively Barclays) respectfully submit this memorandum in opposition to Plaintiffs motion for expedited discovery: Preliminary Statement This Court should deny Plaintiffs request for expedited discovery because there is no need for a preliminary injunction in this case. Plaintiffs are suffering no harm whatsoever much less any irreparable harm and Plaintiffs themselves seek damages, a fully adequate remedy at law. Complaint 130-31. Further, this Court can deny Plaintiffs injunction request based on the plain and unambiguous language of the agreements they invoke. Should this Court, however, order any discovery, it should be a two-way street both sides should have an opportunity to develop the factual record through discovery prior to any hearing on the merits. This litigation is nothing more than an attempt by Plaintiffs to rewrite the express terms of a document to which they agreed and of which this Court approved. Section 3.01(d) of the parties agreement in this matter provides that any equity holder in Archstone may: (1) make the decision to sell on its own, without any input from any other owner; sell its equity for its own account, without sharing any sale proceeds with anyone; and sell to any third party, as determined in its sole discretion.

(2)

(3)

Second Amended and Restated Bridge Equity Providers Agreement (BEPA) 3.01(d) (emphasis supplied). By this action and their conduct leading up to it, Plaintiffs have sought to void each of these provisions and deprive Defendants of their carefully negotiated rights. At base, Plaintiffs simply dont like the fact that Defendants have chosen to sell 50% of their interests in the Archstone Entities to a competitor, Equity Residential (EQR) by far the highest bidder in a 1

11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 5 of 15

Main Document

sale process in which Plaintiffs themselves were an integral part. According to Plaintiffs, the EQR bid is simply inadequate and understates the value of Archstone by an additional $1 billion of value. Plaintiff Lehman Brothers Holdings Inc., Current Report (Form 8-K) (December 5, 2011), attached as Ex. A to Declaration of Matthew L. Craner dated December 20, 2011 (Craner Decl.). Although Plaintiffs may not like EQR and the price it is paying for Defendants interests, thats the deal they struck Defendants may sell their interests whenever, to whomever, and for whatever price they find acceptable. BEPA 3.01(d). Plaintiffs cannot now use this litigation to rewrite the parties agreement. The parties agreement instead provides Plaintiffs with protection from being joined by an unwelcome co-investor or an undervalued sale of Archstone equity. Under that agreement, not only do Defendants have the right to sell to whomever they want at whatever price they find acceptable, but Plaintiffs also have a Right of First Offer (ROFO) with respect to any such sale. BEPA 4.02(a). This ROFO right, along with a corresponding tag-along right in Section 4.02(b), allows Plaintiffs to buy Defendants interest at the same price and on the same terms as any other potential buyer. If Plaintiffs actually believe, as they say in their securities filing, that EQRs bid is too low by almost $1 billion in value, then Plaintiffs should be dancing in the streets under the ROFO, Plaintiffs can buy Defendants half interests for the same low, low price. If, by contrast, Plaintiffs just dont like EQR, they dont get to disqualify the highest bidder and dictate to whom Defendants may sell. And thats what this litigation is about. Plaintiffs have invoked their ROFO rights, stating an intent to match EQRs bid and take that bid for themselves. At the same time, Plaintiffs have filed this litigation and thrown a cloud of allegations against Defendants all in an attempt to obstruct the sale to EQR. According to Plaintiffs, Defendants have: (1) conspired to sell to EQR; (2) failed to provide information about the sale process to Plaintiffs; (3) failed to 2

11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 6 of 15

Main Document

give Plaintiffs sufficient time to exercise their ROFO rights; (4) entered into some sort of improper voting trust or agreement with EQR; (5) failed to allow Plaintiffs to ROFO the other 50% interest of the Defendants interests that is not currently for sale and for which a sale price has yet to be set; and (6) generally have acted unfairly in violation of the implied covenant of good faith and fair dealing. Complaint 5-10. Yet, each of Plaintiffs conflicting theories falls of its own weight. First, Plaintiffs contend that Defendants have conspired to sell 50% of their interests to EQR, and that, because EQR is a competitor, there must be a series of nefarious and yet-to-bediscovered side agreements between Defendants and the buyer. In support, Plaintiffs point to exactly . . . nothing. Not a single explanation for what those side agreements might be or why Plaintiffs so strenuously claim that they exist. Plaintiffs offer nothing in support of their wild accusations for one simple reason: there are no such agreements.1 Second, Plaintiffs contend that Defendants have failed to supply sufficient information about the sale process. In support, Plaintiffs point to a series of correspondence, culminating in a pre-litigation demand letter that they sent to Defendants on December 4, 2011, seeking various categories of additional information. In claiming ignorance of the EQR bid, Plaintiffs neglect to mention that it was the Plaintiffs themselves who actually helped run the sale process that led to EQRs offer. Beginning in early 2011 and continuing to as late as September of this year, Plaintiffs established a M&A data room, Plaintiffs filled that data room with relevant sale information, Plaintiffs identified and approved potential bidders (including EQR), Plaintiffs participated in buyer due diligence, Plaintiffs received and evaluated bids (including a bid from EQR), and then

If any such agreements existed, EQR, as a public company, would have filed those agreements with the SEC along with the Interest Purchase Agreement and Other Interest Agreement.

11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 7 of 15

Main Document

Plaintiffs decided to drop out of the process after deciding that they no longer wanted to sell their interest in the Archstone Entities. In dropping out of the sale process that they had helped to run, Plaintiffs informed Defendants that they wished them well in their continued efforts to sell their individual interests. However, Plaintiffs also informed Defendants that they would offer no assistance in changing corporate governance to incentivize bidders, and stated that Plaintiffs would be there at the end to clean up any bid with their ROFO. Far from denying Plaintiffs information after they declined to sell, Defendants continued to provide Plaintiffs with various types of information, including unfettered access to the M&A data room access that Plaintiffs used on a weekly and sometimes daily basis to keep themselves informed on the sale process.2 And when EQR submitted a second and ultimately successful bid, Defendants promptly delivered Plaintiffs a ROFO notice describing the proposed transaction in full.3 In doing so, Defendants went far beyond merely identifying the interest to be transferred, the price payable, and the other economic terms relevant to such proposed Transfer as required by the parties agreement. BEPA 4.02(a). Indeed, Defendants voluntarily provided a copy of the actual Interest Purchase Agreement between Defendants and EQR even though their agreement with Plaintiffs expressly did not require such disclosure. And when Plaintiffs sent their pre-litigation letter on December 4, 2011, seeking all sorts of additional information information expressly not required by the parties agreement Defendants again went out of their way to indulge Plaintiffs and sent the additional information. Perhaps as a result, Plaintiffs Complaint is completely silent on any information they ever
Plaintiffs and their advisors were very active in the data room during the second round of bidding. They actively accessed the relevant documents and monitored which bidders were doing the same. Further, Plaintiffs and their advisors conferred with several bidders during this period. Indeed, one bidder even referenced several agreements with Plaintiffs that emerged from those discussions as part of that bidders formal bid. Far from being news to Plaintiffs, the second round EQR bid was identical to the first round bid that Plaintiffs received while still an active seller. EQR included the same essential terms and conditions in its second bid and merely scaled the consideration on offer to reflect the smaller size of the Defendants interests for sale.
3 2

11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 8 of 15

Main Document

requested but actually didnt get. The reason, of course, is that Plaintiffs have received everything required under the parties agreement, and much more.4 Third, Plaintiffs complain that Defendants somehow are trying to deny them sufficient time to exercise their ROFO rights. Yet, not only did Defendants give Plaintiffs abundant information about the EQR bid, but Plaintiffs then had sufficient time to form a definitive judgment about value (a judgment that Plaintiffs then announced to the world in their own securities filings subject to the accuracy requirements of Section 10(b) and Rule 10b5). More to the point, when Plaintiffs complained that they needed even more information about the EQR bid than they already had, Defendants again gave Plaintiffs the requested information and, in a further attempt to avoid litigation, even reset the ROFO clock providing Plaintiffs several additional days beyond the 50 day time period for Plaintiffs to deliver their binding notice of election to purchase as provided for in the parties agreement. Far from squeezing Plaintiffs on time, Defendants have gone out of their way to be reasonable and to provide additional time for Plaintiffs to form their own judgments about value judgments that directly led to Plaintiffs invoking their ROFO rights on December 14, 2011. Fourth, Plaintiffs accuse the Defendants of giving EQR veto rights over material decisions about the Archstone Entities. In an argument that strains credulity, Plaintiffs point to the provision in the Interest Purchase Agreement that requires Defendants to notify EQR of any proposed changes to the Archstone business that would have a material effect on the asset composition or capital structure of Archstone and then gives the buyer a termination right if any such material change occurs. Interest Purchase Agreement 8.4, 13.3.1, attached as Ex. O to Declaration of Jeffrey Fitts In Support of Plaintiffs motion for a Preliminary Injunction, Specific
4

Media sources such as the Wall Street Journal also closely followed the Archstone sale process with periodic updates on events. Although they were otherwise fully aware of events, Plaintiffs need only have picked up their daily paper for yet another source of information.

11-02928-jmp

Doc 22

Filed 12/20/11

Entered 12/20/11 16:23:17 Pg 9 of 15

Main Document

Performance, and Declaratory Relief. According to Plaintiffs, such a garden variety M&A provision actually rises to the level of some sort of improper voting agreement or trust. While Plaintiffs are correct that the BEPA does in fact prohibit voting agreement[s] or trust[s], the Defendants Interest Purchase Agreement with EQR is nothing of the kind. Under the Interest Purchase Agreement, Defendants are completely free to vote any way they want on Special Major Matters that might fundamentally affect Archstones balance sheet. Indeed, even after any sale, Defendants still would own a significant portion of Archstone. According to Plaintiffs, however, Defendants purposefully might vote the wrong way and intentionally injure their remaining interests in Archstone. In reality, the reason for the provision at issue (which, as a matter of law, does not qualify as a voting agreement or trust of any kind) is the unremarkable fact that no buyer (not EQR or anyone else) would ever agree to spend billions of dollars for a company with a particular balance sheet, allow that balance sheet to be materially diminished through operational changes, and then still pay the same purchase price. Plaintiffs argument to the contrary is another way of saying that they dont want Defendants to be able to sell to anyone who cares about the value of their billion dollar investment. Such an argument is tantamount to saying that Defendants may not sell their interests to anyone. Fifth, Plaintiffs point to the fact that, in addition to the Interest Purchase Agreement, EQR also entered into a fully disclosed option agreement (called the Other Interest Agreement) with Defendants. The Other Interest Agreement allows EQR to buy the remaining 50% of Defendants interests, but only if Plaintiffs buy the first 50% through a successful ROFO of EQRs first offer. Under the Other Interest Agreement, EQR is barred from exercising its option to acquire the remaining 50% of Defendants interests if EQRs first purchase of Defendants is successful. In other words, the Interest Purchase Agreement and Other Interest Agreement provide EQR with the right to purchase at most half of Defendants interests, and 6

11-02928-jmp

Doc 22

Filed 12/20/11 Entered 12/20/11 16:23:17 Pg 10 of 15

Main Document

nothing more. Even reading the two agreements together as Plaintiffs incorrectly suggest, EQR would never be able to purchase all of Defendants interests in Archstone. Plaintiffs contention to the contrary goes far beyond the rights Plaintiffs bargained for in the BEPA or that EQR has under the Other Interest Agreement. Significantly, while the Other Interest Agreement leaves price undetermined other than establish a floor, any agreement by EQR to purchase the remaining half of Defendants interests would still be subject to Plaintiffs ROFO rights. That is, if EQR exercises its option to purchase the remaining 50% of Defendants interests, Plaintiffs may still ROFO that acquisition at the same price ultimately agreed to by EQR. Despite being completely separate from EQRs agreement to buy the first 50% of Defendants interests in Archstone, Plaintiffs argue that the two agreements somehow are one and the same. According to Plaintiffs, they may ROFO not only the existing agreement to purchase Defendants interests, but also a potential agreement to purchase for which the triggering event has yet to occur (and may never occur) at a price that has yet to be determined. In Plaintiffs view, they get to take a purchase agreement that has yet to be struck and at a price of their choosing (not surprisingly the lowest price) from among the range of prices that EQR might pay if it could and did exercise its option. Yet, thats not what the parties original agreement says, nor what EQRs option provides. Further, if Plaintiffs ever had the right to ROFO EQRs option and they did not the time for Plaintiffs to do so has now expired. Plaintiffs effort to convert EQRs option into a right (exercisable only by them) to purchase 100% of Defendants interests is completely unsupported by the law and by the text of the relevant agreements. Sixth, in a final attempt to taint Defendants with a very broad brush indeed, Plaintiffs argue amorphously that Defendants somehow have violated the implied covenant of good faith 7

11-02928-jmp

Doc 22

Filed 12/20/11 Entered 12/20/11 16:23:17 Pg 11 of 15

Main Document

and fair dealing. Yet, not only have Defendants acted in strict good faith, it is instead the Plaintiffs who first secretly tried to sell Archstone without Defendants knowledge by forming a second data room with the intent of running a clandestine sale process in breach of the parties agreement. Not only does the Complaint fail to cite any examples of Defendants purported bad faith, the Plaintiffs come to this Court with unclean hands. Argument I. THIS COURT SHOULD DENY PLAINTIFFS REQUEST FOR EXPEDITED DISCOVERY. Plaintiffs are not entitled to preliminary injunctive relief because they face no irreparable harm and have an adequate remedy at law. Moreover, their claim for an injunction fails under the plain and unambiguous terms of the governing agreements. Accordingly, there is no need for discovery on an expedited basis. First, there simply is no urgency to this matter. Plaintiffs already have invoked their ROFO right. By their own admission, they had enough information to do so. The orderly corporate process envisioned by the parties agreement is now underway. In such circumstances, Plaintiffs are entitled to no more time for the ROFO process than the time for which they originally bargained. Second, if Plaintiffs have been injured in some way by the sale process, that injury would be purely monetary. If Defendants have breached the parties agreement and Plaintiffs end up overpaying for Defendants interests (as opposed to radically underpaying, as Plaintiffs now contend), then Plaintiffs already have sued for any damages that result. See Complaint 130 (suing for damages as a result of Defendants alleged breach of contract). Similarly, if Plaintiffs end up exercising their ROFO right with respect to interests subject to EQRs option under the Other Interest Agreement if it ensues that EQR can and does exercise that option at a price 8

11-02928-jmp

Doc 22

Filed 12/20/11 Entered 12/20/11 16:23:17 Pg 12 of 15

Main Document

higher than they otherwise would have been obligated to pay, then Plaintiffs have already sued for those damages as well. In short, this Court should not let Plaintiffs create an emergency where there is none and should deny Plaintiffs request for expedited discovery. II. ALTERNATIVELY, DEFENDANTS SHOULD BE GRANTED LEAVE TO TAKE EXPEDITED DISCOVERY In the alternative, Barclays seeks expedited discovery on specific topics that are relevant to Plaintiffs claims and Barclayss defenses. Among other things, Barclays seeks discovery concerning: The history of the marketing and negotiations for the sale of Barclayss, BofAs and Plaintiffs interests in the Archstone Companies; Documents concerning Plaintiffs potential exercise of any ROFO right; Communications between or among Lehman, its creditors and the Archstone Companies concerning the transfer or potential transfer of any interests in the Archstone Companies; and Documents concerning the conduct alleged in the Complaint.

The specific discovery requested includes previously-served requests for the production of documents and deposition notices attached as Exs. B and C to the Craner Decl., as well as the third-party subpoenas attached as Ex. D to the Craner Decl. Federal Rule of Civil Procedure 26(d)(1) (incorporated by Bankruptcy Rule 7026) provides that a party may, by court order, seek discovery before the parties have conferred under Rule 26(f). See Fed. R. Civ. P. 26(d). Federal Rule of Civil Procedure 30 (incorporated by Bankruptcy Rule 7030) also permits parties to take depositions prior to the Rule 26(f) meet and confer. See Fed. R. Civ. P. 30(a)(2)(A). Additionally, Federal Rule of Civil Procedure Rule 34(b) (incorporated by Bankruptcy Rule 7034) provides that a court may order that a party produce documents within a shorter time than the default 30-day period provided in Rule 34(b). See Fed. R. Civ. P. 34(b)(2)(A). 9

11-02928-jmp

Doc 22

Filed 12/20/11 Entered 12/20/11 16:23:17 Pg 13 of 15

Main Document

Barclays has good cause to seek expedited discovery in order to prepare for any preliminary injunction hearing. The discovery sought is narrowly tailored to address the issues likely to be raised in any preliminary injunction hearing, and such discovery is necessary for Barclays to prepare adequately and to defend against Plaintiffs claims and requests for relief. The interests of fairness and reasonableness also weigh heavily in favor of permitting Barclays to pursue expedited discovery if Plaintiffs are allowed to do so. III. THIS COURT SHOULD UNSEAL THE AGREEMENTS TO WHICH DEFENDANTS CONSENT AND TO WHICH PLAINTIFFS ALREADY SELECTIVELY REFER IN PUBLIC FILINGS. Barclays also requests that this Court unseal certain exhibits to Plaintiffs Motion that are agreements between the parties to this action: The Second Amended and Restated Bridge Equity Providers Agreement, dated December 1, 2010, attached as Exhibit B to the Fitts Dec. In Support of Plaintiffs Motion; The Archstone Enterprise LP First Amended and Restated Limited Partnership Agreement, attached as Exhibit G to the Fitts Dec. Plaintiffs motion to seal these two agreements lacks any basis. Barclays a party to the agreements consents to their public filing, as do the BofA Defendants. Plaintiffs the only parties who ask this Court to keep the agreements confidential themselves have quoted extensively from the BEPA in their publicly-filed pleadings.5 In such circumstances, Plaintiffs should not be permitted to hide the full terms of these governing agreements (terms that expressly contradict Plaintiffs allegations) from public view. The Second Circuit permits documents to be filed under seal only in compelling or extraordinary circumstances circumstances not present here. In re Orion Pictures Corp., 21 F.3d 24, 26-27 (2d Cir. 1994). Indeed, this court recognizes a strong presumption of public

Key provisions of the relevant agreements also have been widely reported in media outlets such as the Wall Street Journal.

10

11-02928-jmp

Doc 22

Filed 12/20/11 Entered 12/20/11 16:23:17 Pg 14 of 15

Main Document

access to court records. See In re Food Mgmt. Group, LLC, 359 B.R. 543, 553 (Bankr. S.D.N.Y. 2007). Here, the information Plaintiffs would have under seal does not fall into either of the categories enumerated in Section 107(b) of the Bankruptcy Code, 11 U.S.C. 107(b) (or the related provision of Bankruptcy Rule 9018), pursuant to which Plaintiffs filed their motion. See Motion Pursuant to Section 107 of the Bankruptcy Code and Bankruptcy Rule 9018 for Authorization to File Exhibits to Plaintiffs Motion for Injunctive Relief, Specific Performance and Declaratory Relief Under Seal (Plaintiffs Motion to Seal). In particular, the information contained in the agreements would not cause an unfair advantage to competitors by providing them information as to the commercial operations of the debtor. In re Orion Pictures Corp., 21 F.3d at 27 (emphasis supplied; internal quotation marks omitted). Plaintiffs fail to allege that any competitive disadvantage would result to them if the agreements were publicly filed. Having repeatedly (and selectively) referred to the terms of those agreements in unsealed and publicly-filed papers, Plaintiffs unfairly attempt to skew the public record and paint a misleading picture of the facts in this case. See, e.g., id. at 26 (presumption in favor of public access helps safeguard the integrity, quality, and respect in our judicial system.) (internal quotation omitted). This Court should unseal the two documents at issue. Conclusion For the foregoing reasons, Barclays respectfully requests that this Court enter the attached proposed Order denying Plaintiffs motion for expedited discovery and unsealing Exhibits B and G to the Fitts Decl. Alternatively, Barclays respectfully requests that this Court

11

11-02928-jmp

Doc 22

Filed 12/20/11 Entered 12/20/11 16:23:17 Pg 15 of 15

Main Document

unseal Exhibits B and G to the Fitts Declaration and grant Barclayss motion for expedited discovery in support of which this memorandum is offered.6 DATED: December 20, 2011

ORRICK HERRINGTON & SUTCLIFFE LLP

s/ Joseph J. Frank______________________ Joseph J. Frank Steven J. Fink Matthew L. Craner Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, New York 10019 Tel: (212) 506-5000 Fax: (212) 506-5151 jfrank@orrick.com sfink@orrick.com mcraner@orrick.com Attorneys for Defendants BIH ASN LLC, Barclays Capital Real Estate Inc., and Archstone Equity Holdings Inc

Barclays does not consent to the entry of a final order by the Bankruptcy Court as to any of the relief sought by Plaintiffs in this proceeding.

12