Gainor v. Sidley, Austin, Brow

Filing 66

MOTION to Dismiss 40 Amended Complaint for Lack of Personal Jurisdiction and Incorporated Memorandum of Law in Support by P. Anthony Nissley. Responses due by 6/6/2007 (Attachments: # 1 Exhibit 1)(Austin, Michael)

Gainor v. Sidley, Austin, Brow

Doc. 66 Att. 1

Case 1:06-cv-21748-JEM

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EXHIBIT "I"

Dockets.Justia.com

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division Case No. 06-21748 CIV-MARTINEZ/BANDSTRA
MARK 1. GAINOR and ELYSE GAINOR,
Plaintiffs,
v.

SIDLEY AUSTIN LLP, et aL.

Defendants.

/

DECLARTION OF P. ANTHONY NISSLEY
I, P. ANTHONY NISSLEY, declare and state as follows:
i . I have personal knowledge of the facts stated in this declaration. I make this

declaration in support of my Motion to Dismiss for Lack of Personal Jurisdiction.
2. I am a resident of the state of Arizona and have been an Arzona resident since
Ilinois from 1994 to 1999.

1999. Prior to that, I was a resident of

3. I have never been a citizen, domiciliary, or resident of

the State of

Florida.

4. I have been licensed to practice as an accountat in the state of Ilinois since 1994

and have been licensed to practice law in the state of Ilinois since 1994.
5. From May 11, 1981 thorough approximately June 2002, I worked in the

Washington, D.C. and Chicago, Ilinois offces of Arthur Andersen LLP ("Andersen"). I began
as a Senior Manager in Offce of

Federal Tax Services and was elected to parner on September

1,2000.
6. From June 2002 to the present, I have been a parner at PricewaterhouseCoopers

(PwC). I work principally out of PwC' s Chicago as a partner in PwC' s utilities tax practice.

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7. I have never worked or maintained an office in the State of Florida, and I have

never been licensed to practice accounting or law in the State of Florida.
8. I have never held any professional licenses in the State of

Florida or advertised

my services in the State of Florida.
9. Since approximately 2003, I have owned

jointly with other family members a

house in Jacksonvile, Florida in which my sister-in-law currently resides. I do not reside in that
home, nor do I earn any income from that property in Florida.
10. I do not maintain any bank accounts in the State of Florida.

11. In the fall of 1999, Gainor engaged Andersen to assist in the structuring and

implementation of a tax strategy involving the sale of

two Georgia entities owned or controlled

by Gainor to two Georgia entities owned or controlled by co-defendant Mark Klopfenstein (the

"Gainor Strategy").
12. In or about 1999, I was asked by others in the Atlanta offce of Andersen to assist

with the Gainor Strategy. At that time, I was working out of Andersen's Chicago, Ilinois

offce.
13. At the time he elected to engage in the Gainor Strategy, I understad that Gainor

was a Georgia resident who owned or controlled several Georgia entities.
14. Gainor elected to retain Andersen through two of those entities, Gainor Medical

USA, Inc. ("Gainor Medical") and Bryan Medical Inc. ("Bryan") Attached as Exhibits A and B
respectively are the job arangement letters for Gainor Medical and Bryan, both of

which had

their principal place of business in Atlanta.

15. My work on the Gainor Strategy consisted primarily of consulting with personnel
in Andersen's Atlanta office by phone.

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16. I recall that I may have also consulted with a Gainor on one or more occasions

regarding the structure and implementation Gainor Strategy. To the best of my recollection, all of
my communications with Gainor regarding the structure and implementation of

the Gainor

Strategy were directed to Gainor in Georgia.
17. I did not receive any fees in connection with the Gainor Strategy.

18. To the best of my recollection, the fees Andersen received in connection with the

Gainor strategy were paid by Gainor's

two Georgia entities, Gainor Medical and Bryan.

19. During the course of implementing the Strategy, Gainor Medical and Bryan were

acquired by two other Georgia entities owned or controlled by Mark Klopfenstein.
20. To the best of

my knowledge, Klopfenstein was and is a Georgia resident, and he

retained a Georgia law firm, Sutherland Asbil & Brennan, to assist him in connection with the
Gainor Strategy.
21. To the best of my knowledge, Gainor retained a Georgia law firm, King &

Spalding, to assist him in connection with the Gainor Strategy.
22. To the best of

my knowledge, the Gainor Strategy was fully implemented in

December 1999.
23. All of the work I completed and all of

the services I provided in connection with

the Gainor Strategy were performed in Ilinois or Georgia.
24. To the best of my knowledge, Gainor did not change his residency from Georgia

to Florida until the Gainor Strategy had been fully implemented.
25. After Gainor established residency in the State of

Florida, which I believe

occurred in 2000, he chose to replace Andersen as his tax preparer with a local firm in Florida,
Rachlin Cohen & Holtz.

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26. J did nol ever trvel to Florida to meet with Gainor in connectio11 with the

strcturing OT implementation of Gainor Strategy or the preparation of' his tax returs. L do not

recaii ever communicating with Gainm whilo he was in Flonda regarding the structuring or
iinpl~mcntation of the Gainor Straregy or the preparation of

his tax returns. J n1ay have briefly

met with Gainor on or more subscaueni oooasions in Florida, but these subsequent visits werc
not related to the strcturing or implementation of the Gainor Strategy or the prepaTation of

his

ia returns.

27. 1 did not parlicipatc in the pTepartjon of any of Gainor's tax returs and wa

never consulted by Gainor or any or his advisor regarùing any Florida lix issues.
28. If! were required to defend myself in the courts or

Florida 1n conneçtion with U1is

lawsuit, it co\lld cause my family and me 5ub$tantial hardship and inconvenience, including the
disruption of

my accounting practic~.
perjury pur~l':l1 to the laws of

I declare under penalty of

the Siaie of Arizona and the

United States that the foregoÌl\g is trut: and correct and that this Declaration was execiited on

May~, 2007 in Paradise Valley, Arizomi..

CHi99 4wz(\t6Q.1065?l¿.ooi6

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EXHIBIT "A"

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,.

.. \

I)

ARTHUR ANDERSEN

.
Art'iur ..'.f\dcrsef\ L I.'

PRIVILEGED AND CONFIDENTIAL

-_._-_..-_._..._....._----_.._..- ._"

September 1, 1999

SUltt 2~iX)

133 PPtlcr.n"L't' Stn"i:t ~L

.-\tlJnlJ CA ,lni:;.li:ò

STRICTLY CONfIDENTIAL
Gainor Medical USA, Inc.

~)'l '-::~ l'-~'h

Attn: Mark Gainor
c! 0 Lucor Holdings, LLC 2455 Peachtree Road, NE Ste. 777 Atlanta, Georgia 30326

Re: Job Arrangements for Gainor Medical USA, Inc ("GMU5A")
Dear Mark:

This letteT will confirm that GMUSA is engaging Arthur Andersen LLP (" AA") to provide

assistance in connection with certain tax matters. Based upon the engagement objectives provided below, we plan to provide timely consultations regarding tax issues which are
relevant to GMU5A. These consultations may include proposing and implementig certain tax strategies.

Ths letter sets forth the arrangements under which AA, with your consent, has agreed to proceed with any projects.

Confidentiality
It is mutually acknowledged that our work may result in communications involving GMU5A's

shareholders. other advisors and ourselves, and that such communications may include or implicate project-related materials or information. AA wil treat all such communications in the manner you intruct in order to aid in establishing and! or maintaig any privileged and confidential statu that applies (e.g., marking correspondence, memos, and schedules prepared on your behalf as "Privileged & Confidential"). Also, access to all inormation in our fies relatig to this project wil be restrcted to AA and officers of GMUSA. We wil notiy you of any reguests or needs for siich material that might come to our attention in the context of judicial or adminitrative proceedines or professional or regulatory requirements before we would dislose same as may be required under appl.cable law or rules.
Please advise us in writing of any specific steps or guidelines that you wish us to follow in this regard. While AA wil cooperate, as set forth herein, with respect to legal privilege and related doctrines, AA assumes no responsibility for any court. or tribunal's partial or entie failure to uphold any pnvilege or related doctrines.

GAINO 000006

Case 1:06-cv-21748-JEM
""

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,

.
Mark J. Gainor
Page 2

ARTHUR ANDERSEN

~
..."...

. \rtnur ..ndL'r.;~ii LLP
S~;:tt :5~)O

----~----- ----_.. -133 Pt:a(/ìtrt'l: Stri!d ~;l:. "tl~lIltJ t~.\ 3iUU.-;.1i3.tb
~(). "51' ¡-'7"h

September 1, 1999

f.ees and Related Business Terms
Based upon the combination of the tax matters that may be mvolvt'd and our experience In performing sinlllar engagements, we estimate that our total fees could be as high as 5600,000. However, we will provide you with an estimate of OUT fees on a tnmsâction by lransaction
basis. This Job arrangement will terminate upon the earlier of a change in control of CMUSA or one yc¡¡r from the date of this letter.

You may determine that a "more-Iikely-than-not" opinion letter, pursuant to the requirements
of

Internal Revenue Code Section 6662, is required from a qualified attorney with respect to one or more of the transactions that may be proposed to GMU5A. U such need develops during the course of our tax consulting, and a "more-likely-than-not" opinion letter from a qualified
attorney is unattainable, then AA shall refund any and all of its fees (excluding out of pocket

expenses) related to its tax consulting with respect to such non-opinonable transactions. It is understood that AA will not issue an opinion with respect to a transaction in the ûbspnce of a separate prior written ¡igreement relatig to that transaction.
G~ruSJ\ agrees with respect to any services, work product or other deliverables hereunder, or this engagement generally that AA's liability shall in no event exceed the fees it receives hereunder for the portion of the work giving rise to liabilty nor include any special, consequential, incidt;ntal or exemplary damages or loss (nor any lost profits, savings or
business opportunity), and GMUSA wil upon the receipt of wntten notice indemnify A A, its

affiliates and their partners, principals and personnel againt all costs, fees, expense, damages and liabilities (including defense costs) associated with any third-party claim arising from or relating to any such services, work product OT deliverables that are used or disclosed to others,
or this engagement. The foregoing terms are intended to apply to the extent not contrary to applicable law, regardless of the grounds or nature of any claim asserted (including contract,

statute, any form of negligence, intentional tort. strct liabilty or otherwise) and whether or not AA was advised of the possibilty of the damage or loss asserted. Such terms shall also continUt' to apply after any termtion of this agreement and during the period of any dispute
between the parties.

This letter sets forth the entie understanding between the parties regarding the subject matter here addressed and supersedes all prior agreements, arrangements and conuunicatians, whether oral or written. with respect to such subject matter. No other agreements, representations, warranties or other matters, whether oral or written shall be deemed to bind the parties hereto with respect to such subject matter. This letter may not be modified or
amended t'xccpt by the mutual written agreement of both partes. Nonenforcement or delay in

enforcement of any right shall not be constred as a waiver of such right, and a waiver of a

GAINO 000007

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.~"

....

.
Mark j. Gainor
Page 3

ARTHUR ANDERSEN

.

September 1, 1999

right in a given case shall not be construed as a waiver oí the same or similar right in any other
case.

Please sign in the space provided below on the attached duplicate origial to indicate GMUS,\'s
agreement with the arr,;ngements described herein. Please retum a signc!d copy of this Jetter to
us. If you should have any questions reg¡¡rding this arrangement, please contact me at (404)

223-7107

Vi.ry truly yours,

AR~HUR ANDERSEN LLP ; (

Byfec:! ~0 r¡i ': / -6.grggSI:

By:

Date:

GAINO 000008

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EXHIBIT "B"

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I

~iI

ARTHUR ANDERSEN

~
,\rthur ..\,Jer't'r1 LLI'
SUlk 250\1
ì 33 P('Jditrci.' Strvl.~t \,1: ..\~:.:nt3 i,~A ),;¡¡..; ì~.~h .Hi.l i..;P. : --h

PRIVILEGED AND CONFIDENTIAL

September L 1999

STRICTLY CONFrDENTlAT.
Bryan lvledic11 Inc Altn: \-Lirk Cainor c/o Lucor Holdings, LLC 2455 PpilditTl'(' Ruad, ì\E Ste. 777 Atlilnta, Ceorgia L0326
Re: Job Arrangements for Bryan MedicaL, rnc. ("Bryan")

Dear Mark:
This letter will confirm that Bryan is engabriny, Arthur .Andersen L.LP (" AA") to provide assistance in connection with certain lax mdtters. Based upon the engagement objectives

provided below, we plan to provide timely consultations regarding tax issues which are
relevant to Bryan. These consultations may include proposin!~ and implementing certain tax

strategies.

This letter sets forth the arrangement.; under which AA, with your consent, has ap;reed to proceed with any projects.
rQ!!fütenti.¡tli!Y

It is mutually acknowledged that our work may result in communicatioll'i involving Bryan's

shareholders, other advisors and ourselves, and that such coinUTcations may include or implicate project-related materials or inormation. AA wil treat all such communications in
the manner you instrct in order to aid in establishing and! or maintaining any privileged dIld

confidential status that applies (e.g., marking correspondence, memos, and schedules prepared
on your behalf as "Prvileged & Confidential"), Also, access to all information in llUT files relatig to t,1¡is project wil be restrctE'd to AA and officers of Bryan. We wil notify you of any

requestt; or needs for such material that might come to our attention in the context of judicial or administrabve proceedings or professional or regulatory requirements before we would disclose same as may be required under applic¡ible law or rules.

Please advise us in writing of any speciiic steps or guidelines that you wish us to follow in this regard. While AA will cooperate, as set forth herem, with respect to legal privilege and related doctnnes, A.A. assumes no responsibili:y for any court or tribunal's partial or entire failure to

upliiild dny privilege or related doctrr¡es. '

GAINO 000003

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.
Mark r. Gainor
Page 2

ARTHUR ANDERSEN

.

5eptembeT 1. 1999

Fees and Related Business Terms
Based upon the combination of the tax matters that may be involved and our experience in performing similar engagements, Wf' ('siimate that our total fees could be as high as $600,000. However, we wil pn..wide you with iln ~stimate of our fees on a trilnsaction by transaction
basis. This job arrangement will terminate upon the earlier cf a change in control of Bryan or one year from the date of this letter.

You may determie that a "more-likely-than-not" opinionlelter, pursuant to the requirements of Internal Revenue Code Section 6662, is required from a qualified attorney with respect to one
or morf' of the transactions that may be proposed to Bryan. If such need develops during the course of our tax consultig, and a "more-likely-than-nor" opinion letter from a qualified attorney is unattainable, then AA shall rerund any anel ¡¡ll uf iLs fees (pxcluding out of pocket able transactlons. It is i~xpenses) related to its tax consulting will respect to such non-opinion

understood that AA will not issue an opinion with respect to a transaction in the absence of ä ~;eparate prior wTitten agreement relating to that transaction

Bryan agrees with respect to any services, work product or other ddiverables hereunder, or this engagement generally that AA's liability shaIl in n() event exceed the fees it receives hereunder for the portion of the work giving rise to liabilty nor include any speciaL consequentiaL incidentalor exemplary damages or loss (nor ilny lost profits, savings or business opportunity),

and Bryan wil upon the receipt or written notice indemn AA, it" affilates and their partners, principals and personnel againt all costs, fees, expense, damages and liabilties (includig defense costs) associated with any thrd-party claim arising from or relating to any such services, work product or deliverables that are used or disclosed to others, or ths engagement. The foregoing terms are intended to apply to the extent not contrary to applicable law, regardless of the grounds or nature of any claim asserted (induding contract, statute, any form of negligence, intentional tort, strct liability or otherwise) and whether or not AA was adviseu of the possibility of the damage or loss asserted. Such terms shall also contiue to apply after
any termination of this agreemeI'.t and during the penod of any dispute bctwepn thp parties.
This letter sets forth the entire understandmg between the parties regarding the subject matter

here addressed and supersedes all prior agreements, arrangements and corrunc~tions, whether oral or written, with respect te such subject matter. No other agreements, representations, warranties or other matters, whether oriÚ or written shall be deemed to binJ :he parties hereto with respect to such subject matter. This letter imy not be modified or
amended except by :ht' mutual written agreement of both parties. Nonenforcement or delil\" in
\:'nforcement of anv r1ght shdll not he n1rs!ri'd as â waiver of such right, and a waiver of a

GAINO 000004

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'\

.
Mark J. Gainor
Page 3

ARTHUR ANDERSEN

.
:\nhu! .-\~~krSèn U.P
Su: tL' 2:~iJLÌ

September 1, 1999

lJ3 Pt'd~ :ìtrn' :;tft'i.:! :-F. ,Ülant,l c:\ d~i.))il:' ¡ì'.lo
-il)'l t:3~ L ;7~

right in a given case shall not ht' constred as a waiver of the same or similar right in any other case.

Please sign in the space provided below on the attached duplicate original to imlicate Bryan's
agreement with the arrangements described herein. Please rt,tum a signed copy of this letter to us. If you should have any questions regarding this arrangement, please contact me ill (404) 22:)-ï107.

Very truly yours,

ARTH,UR ANDERSEN LLP,. ('

( ~'C !~' ~~.-' (' 'BLy- i ,0-1 'ý Mo2s¡I__
Wesley G. 'hei el
Agreed:

By:

Date:

GAINO 000005