Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 202

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Cygnus Systems, Inc. v. Microsoft Corporation, et al Doc. 20 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________ BILTMORE ASSOCIATES, as Trustee for the Visitalk, Creditors' Trust, ) ) ) ) Plaintiff, ) ) vs. ) ) PETER THIMMESCH, et al., ) ) Defendants. ) _____________________________ ) No. CV 02-2405-PHX-HRH Phoenix, Arizona March 13, 2008 1:19 p.m. BEFORE: THE HONORABLE H. RUSSEL HOLLAND, JUDGE REPORTER'S EXCERPTED TRANSCRIPT OF PROCEEDINGS SETTLEMENT AGREEMENT Official Court Reporter: Candy L. Potter, RMR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, Spc 36 Phoenix, Arizona 85003-2151 (602) 322-7246 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT For the Defendants: Mariscal Weeks McIntyre & Friedlander By: Gary L. Birnbaum, Esq. Timothy J. Thomason, Esq. Scot L. Claus, Esq. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 For the Plaintiff: Tiffany & Bosco By: Christopher Reed Kaup, Esq. 2525 East Camelback Road, 3rd Floor Phoenix, Arizona 85016 APPEARANCES 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 count. (Previous proceedings held on the record not included in this transcript) THE COURT: MR. KAUP: Mr. Kaup. Your Honor, in light of your ruling, 13:19:09 counsel for Snell & Wilmer and I have had conversations right before we resumed with our principals, and we have a resolution of this matter between us and Snell & Wilmer which will avoid the need to continue to proceed in the trial as between us and Snell & Wilmer, assuming Your Honor approves of the resolution. I'd like to put it on the record. THE COURT: MR. KAUP: Let's do it. Your Honor, first there would be a judgment 13:19:32 in favor of the -- in favor of Snell & Wilmer on all counts for dismissal with prejudice of all counts, which obviously are the malpractice count, the aiding and abetting, and the preference count. MR. BIRNBAUM: Excuse me, Mr. Kaup, there is one other 13:19:49 It is all counts, which is malpractice, aiding and 13:20:05 abetting, misrepresentation, and preference. MR. KAUP: THE COURT: MR. KAUP: I apologize. Understood. Second, Your Honor, there would be an award -- an agreement that the plaintiff would pay a fee -- an amount of $100. With all of the costs and fees to be borne by UNITED STATES DISTRICT COURT 13:20:24 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 each party. THE COURT: understand it. Let me play that back to make sure I I'm sort of turning it around. But this aspect of the agreement is that everyone would bear their own costs and attorney's fees, except that the plaintiff is going to pay $100 -MR. KAUP: THE COURT: To Snell & Wilmer. -- to Snell & Wilmer. Your Honor, let me clarify, please. 13:20:52 13:20:41 MR. BIRNBAUM: The concept is that there will be a judgment entered concluding this case. THE COURT: Yes. The judgment will provide for dismissal MR. BIRNBAUM: of all claims, for payment by the plaintiff of $100 to Snell & Wilmer, and otherwise that all parties will bear their own costs and attorney's fees. THE COURT: MR. KAUP: THE COURT: MR. KAUP: Agreed, Mr. Kaup? Yes. Okay. Yes. Anything else? 13:21:21 13:21:06 There will be full and complete mutual releases between all parties and principals of the parties and their counsel. THE COURT: Now, when you say "all parties," we've got Mr. Thimmesch hanging out here. MR. KAUP: I apologize, Your Honor. "All parties" 13:21:39 UNITED STATES DISTRICT COURT 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 meaning between Biltmore Associates as the trustee of the Visitalk Creditors' Trust and Snell & Wilmer. THE COURT: Got it. We agree with that, Your Honor. 13:21:50 MR. BIRNBAUM: The only exception to the release is the $100 payable under the judgment. THE COURT: MR. KAUP: Okay. Anything else? In addition, Your Honor -- yes. Your Honor, the plaintiff will agree to forego any and all rights of appeal from that judgment. This agreement constitutes an unconditional withdrawal of all allegations and claims against Snell & Wilmer and its individual attorneys. And finally, Your Honor, on behalf of Biltmore Associates as the trustee of the creditor's trust, as the plaintiff, we apologize to Snell & Wilmer and their individual attorneys for any difficulties associated with the litigation. The complaint was brought by Biltmore -- by Visitalk and Biltmore Associates in good faith. However, as the evidence in 13:23:02 13:22:37 13:22:07 the trial developed, it has led us to the conclusion that the case should not proceed any further as against defendant Snell & Wilmer. And that, I believe, is it. MR. BIRNBAUM: We agree, Your Honor, that's the correct statement of the agreement that we've reached. UNITED STATES DISTRICT COURT 13:23:20 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. judgment? THE COURT: All right. Then I approve it. MR. BIRNBAUM: THE COURT: Thank you, Your Honor. That's a proper settlement of this case. This is the way it should come out. 13:23:38 I underscore "proper." Do you understand, Mr. Kaup, and your client, that this is the settlement, and I will enforce it? If there would be any question about it later, I will enforce this settlement. MR. KAUP: There is no question in our mind, And we agree with each of 13:23:58 Your Honor, and we understand it. those terms. THE COURT: Okay. Who's going to prepare the MR. BIRNBAUM: THE COURT: We will, Your Honor. Prepare it, serve it, and file 13:24:08 All right. We have a -- what is it called, a mail box for judgments -- the CM/ECF system has a wicket for you to lodge proposed orders and judgments in. MR. BIRNBAUM: THE COURT: It will be -- That's where you need to send it. We'll do that, Your Honor. It will be 13:24:31 MR. BIRNBAUM: in the form of a stipulated judgment, so we'll run it by Mr. Kaup first. It will have both attorney s' signatures on it before we send it to you. THE COURT: MR. KAUP: All right. Anything else we need to do? 13:24:43 Your Honor, the only issue is the prove up UNITED STATES DISTRICT COURT 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of damages against Mr. Thimmesch. And we can do that in a form -- we can submit -- obviously he hasn't been here other than a few minutes at the beginning of the day on the first day. THE COURT: MR. KAUP: That's what I thought. And we can do that, Your Honor. It doesn't 13:25:00 involve them, but we could do that either by bringing our damages expert back or submitting a declaration from her specific as to that issue so you have the evidentiary predicate to do that. THE COURT: point? MR. BIRNBAUM: We know he's in China next week, Do we know where Mr. Thimmesch is at this 13:25:17 because we tried to get him. MR. CLAUS: He is in Washington, D.C. at the present And then we served him with a 13:25:32 time, according to what I know. subpoena when he was here, in trial, I had a subpoena ready for him. THE COURT: MR. CLAUS: And he left? Well, I candidly, Your Honor, I told him 13:25:48 that he could leave because we didn't know when we were going to be scheduling for. And I even had a cover letter prepared that said, call Lori Mandell, Mr. Birnbaum's secretary, and tell us your schedule. He's been keeping in contact with 13:26:06 Miss Mandell and informed her -- we had anticipated calling him UNITED STATES DISTRICT COURT 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 next week. And he said he's going to be in Beijing. We actually understand, Your Honor, MR. BIRNBAUM: it's sort of interesting, that he's putting together some sort of computer system for outer Mongolia. the next few weeks. THE COURT: MR. KAUP: for the approval. THE COURT: No, thank you. 13:26:38 And that's where he is 13:26:23 I wish him luck. That's interesting. Well, we could adjourn to outer Mongolia I think in light of what I've been told, the better way to approach this is in due course, prepare the written prove-up material, serve it on Mr. Thimmesch somehow. we have a mail address for him. address for him. MR. KAUP: THE COURT: Camel in outer Mongolia? No, I think we got a better one than that. I think I think you have a mail 13:26:58 And I'm going to insist that he have an opportunity to respond -MR. KAUP: THE COURT: Sure. -- to the affidavit. 13:27:16 Anything else? MR. KAUP: No, Your Honor. Your Honor, we'd just like to express I know it's difficult traveling up Visiting judge's staff 13:27:29 MR. BIRNBAUM: our thanks, first to you. and down. But also to the staff. UNITED STATES DISTRICT COURT 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sometimes have an unusual burden, and yours has been particularly helpful to us. THE COURT: We appreciate it. My secretary is not happy with me that she didn't get to come along on this trip. MR. KAUP: THE COURT: Thank you, Your Honor. Very, very good. 13:27:48 Again, I want to tell you that I compliment counsel on their good sense in reaching this resolution. good job of wrapping things up. Thank you. MR. BIRNBAUM: MR. KAUP: THE COURT: Thank you, Your Honor. 13:28:02 You've done a Thank you. We'll be in recess. (Proceedings concluded at 1:28 p.m.) -oOo- UNITED STATES DISTRICT COURT 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT s/Candy L. Potter________ Candy L. Potter, RMR, CRR 2008. I, CANDY L. POTTER, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona. I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control. DATED at Phoenix, Arizona, this 13th day of March, CERTIFICATE

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