Gainor v. Sidley, Austin, Brow

Filing 67

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

Gainor v. Sidley, Austin, Brow

Doc. 67 Att. 1

Case 1:06-cv-21748-JEM

Document 67-2

Entered on FLSD Docket 05/22/2007

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EXHIBIT "I"

Dockets.Justia.com

Case 1:06-cv-21748-JEM

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami DÍvision

Case No. 06-21748 CIV-MARTINEZIANDSTRA
MARK J. GAINOR and ELYSE GAINOR,
Plaintiffs,
v.

SIDLEY AUSTIN LLP, et al.
Defendants.

/
DE

CLARA TION OF MICHAEL S. MAR

I, MICHAEL S. MARX, declare and state as follows:

I have personal knowledge ofthe facts stated in this declaration. I make this declaration in
support of my Motion to Dismiss for Lack of Personal Jurisdiction.
1. I am a resident of the state of Georgia and have been a Georgia resident since

1995.
2. I have never been a citizen, domiciliar, or resident of the State of

Flonda.

3. I have been a licensed Certified Public Account in the state of

Georgia since

November 2000.
4. From approximately September 1996 thorough approximately August 2000, I

worked in the Atlanta, Georgia offce of Arhur Andersen LLP ("Andersen"). I began as a Staff
Accountant in September 1996 and was a Tax Manager at the time of my departure in August
2000.
5. I also worked at Andersen's Atlanta office as a Tax Manager from approximately

January 2002 through approximately May 2002.

Case 1:06-cv-21748-JEM

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6. From May 2002 to the present, I have continued to work for accounting firms in
Atlanta, Georgia. I curently work in the Atlanta office of Deloitte & Touche USA LLP as a

Senior Tax Manager.
7. I have never worked or maintained an offce in the State of Florida, and I have

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

my services in the State of Florida.
9. I do not own or lease property in Florida, and do not maintain any ban accounts

in the State of Florida.

10. I began working on Mark Gainor's account at Andersen in or about 1999. At that

time, I was a Senior Staff Accountant. Later in 1999, I was promoted to Tax Manager.
11. In the fall of 1999, Gainor engaged Andersen to assist in the strctuing 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. At the time he elected to engage in the Gainor Strategy, Gainor was a Georgia

resident who owned or controlled several Georgia entities.
13. Gainor elected to retain Andersen through two of

those, Gainor Medical USA,

Inc. ("Gainor Medical") and Bryan Medical Inc. ("Bryan") Attached as Exhibits A and B
respectively are the job arrangement letters for Gainor Medical and Bryan, both of which had
their principal place of business in Atlanta.
14. Prior to Gainor electing to engage in the Gainor Strategy, I provided him with a

schedule of

fees that could be incurred during the implementation of

the strategy. Attached as

- 2-

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Exhibit C is one such set of set of schedules. The fax cover sheet and fax number reflects that
these schedules were faxed to Gainor's home in the Atlanta area.
15. 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.
my recollection, all of

16. To the best of

my meetings with Gainor regarding the

structure and implementation of the Gainor Strategy occurred in the State of 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. 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 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.

-3-

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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 Flonda,
Rachlin Cohen & Holtz.
26. I made one trip to Florida in February 2000 to assist in transitioning Gainor's tax

preparation and accounting work from Andersen to Rachlin Cohen & Holtz.
27. Prior to completing this transition, however, Gainor decided to have Andersen

prepare his 2000 federal and Georgia state income tax returns.
28. I assisted in the preparation of these federal and Georgia state income tax returns.

These returns were prepared in Andersen's Atlanta offce and mailed them to Gainor in Florida

for his review and fiing.
29. I occasionally spoke with Gainor when he was a resident in Flonda. The purpose

of

these calls was to facilitate the transition of

Gainor's accounting work to Rachlin Cohen &

Holtz and the preparation of

Gainor's federal and Georgia state income tax retus.

30. Apart from the February 2000 meeting to transition the tax preparation work from

Andersen to Rachlin Cohen & Holtz I did not ever travel to Florida to meet with Gainor in

connection with the Gainor Strategy or the preparation of his tax retus. I may have briefly met
with Gainor on or more subsequent occasions in Florida, but these subsequent visits were not
related to the structuring or implementation of the Gainor Strategy or the preparation of his tax
returns.
3 i . I never worked on the preparation of any subsequent tax returns for Gainor or any

of his affiiated entities and never prepared or worked on any Florida state tax retus for Gainor
or any of his affiiated entities.

- 4-

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32. If

I were req to defen myelfin the co of

Florida in connection with ths

lawsuit, it could caus my famy

and me substatil hahip and inconvenence. including the

disnption of my acuntig pratice.
I declar unde penty of peur puruat to the laws of

the State of Gergia and the

United States that th foregoing is tre and corr an tht th Delaraton was executed on
May 11 2007 in Atlanta Gerga.

rr J~
Michael S. Mar

- 5-

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EXHIBIT" A"

Case 1:06-cv-21748-JEM
~,

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~.

.
September 1. 1999

ARTHUR ANDERSEN

.
,\ri~ur ..'.l1tkr"en L.J.l'
SUHt 2:;00
133 !"\',Hr,u'i'e :;tn~..-"I ~L

PRIVILEGED AND CONFIDENTIAL

:\llJlltJ CA ì(I.~\1:i.l~4ri

STRICTLY CONfIDENTIAL
Gainor Medical USA. Inc.

~Ùl ;.,~x 1 . ~-r

Attn: Mark Gainor c/o Lucor Holdings, LLC
2455 Peachtree Road, NE Ste. 777

Atlanta, Georgia 30326
Re: Job Arrangements for Gainor Medical USA. Inc. ("GMUSA")
Dear Mark:

This letter will confirm that GMUSA is engaging Arthur Andersen LLP (" !\A") to provide

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

This 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 will treat aU such communications in the manner you intruct in order to aid in establishing and! or mainta.g 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 files relatig to this project wil be restrcted to AA and officers of GMUSA. We wil notiy you of
any requests or needs for such material Uiat might come to our attention in Uie context of
judicial or admitrative proceedings or professional or regulatory requirements before we

would dislose same as may be required under applicable law or ru les.
Please advise us in writing of any specific steps or guidelines that you wish us to follow in this
regard. vVhile AA wiU cooperate. as set forth herein. with respect to legal privilege and relateu

doctrines. AA assumes no responsibilty for any cowtyr tribunal's partial or entire 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 i\ndL'r~t!n LLP

September 1, 1999

Sc" tc 2~'.O

133 ltai.htrt'L1 Strl!t.a \;E . \tl¿\llJ \,,;.\ .ì¡tJU3~ ltli6
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f.ees and Related Business Terms
Based upon the combination of the tax matters that may be involvpd and our experience in performing sinl1lar engagements, we estimate that our total fees could be as hieh JS 5600,000. However. we will provide you with an estimate of our fees on a trdrisactiOrl by transaction basis, This Job arrangement wil terminate upon the t;arlier of a change in mntrol of GMUSA or
one ye;.r from the date of this letter.

You may determine that a "more-likely-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 GMUSA, If such need develops during the course of our tax consulting, and a "more-likely-than-not" opinion letter from a qualified
attorney is umittainable. 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 wil not issue an opinion with respect to a transaction in the absence of il separate prior written agreement relatig to that transaction.
G1fUSA 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. incidi;ntal or exemplary damages or loss (nor any lost profits. savings or
business opportunity), and GMUSA wil upon the receipt of written notice indemniy A A. its

affiliates and their partners, principals and personnel againt all costs. fees, expense. damages and liabilties (including defense costs) associated with any third-party clai arising from or relating to any such services, work product or deliverables that are used or disclosed to otIiers.
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 fomi of negligence, intentional tort, strct liability or otherwise) and whether or not I\A was advised of the possibilty of the damage or loss asserted. Such terms shall also
continue to apply after any termtion of this agreement and during the period of any dispute

between Ùie parties.

This letter sets forth the entire understanding between the parties regarding the subject matter here addressed and supersedes all prior agreements, arrangements and communications, wheth"r 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. lliis letter may not be modified or amended except by the mutual written agreement of both parties. 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

Case 1:06-cv-21748-JEM

Document 67-2

Entered on FLSD Docket 05/22/2007

Page 10 of 26

,"

""'\

.
Mark J. Gainor
Page 3

ARTHUR ANDERSEN

.

September L 1999

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

Please sign in the space provided below on the attached duplicate origial to indicate GMUSt\'s agreement with the ¡¡rri.mgements described herein. Please return a signed copy of this letter to
us. If you should have any questions regarding this arrangement, please contact me at (404)

223-7107.

Very truly yours,

ARTHUR ANDERSEN LLP ; ~..

By0:c:!:ø0rti2f / -Ag¡:f._d:

By:

Date:

GAINO 000008

Case 1:06-cv-21748-JEM

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Entered on FLSD Docket 05/22/2007

Page 11 of 26

EXHIBIT "B"

Case 1:06-cv-21748-JEM

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I

~~

ARTHUR ANDERSEN

~
,\rrhur ..\rJei"",n i.Ll
Suiti.' 25Ut;

PRIVILEGED AND CONFIDENTlAL

September 1. 1999

ì~': Pi.'Jáitrci. Srri"i.\l \.1:.
:\t:Jnta 1,;..; )ìY;¡1.\ ì~~h .1 ;i.l h:i8 : -~h

STRICTLY CONFIDENTIAL
Bryan ìvledical ¡nc
Attn: ~fark C¡¡innr

¡! 0 Lucur Holdings, LLC 2455 Pl'aditrl'l' Riiad, 1\E Sll. 777 Atlanta, Ceorgia :-0:26
Re: Job Arrangements for Bryan MedicaL. ¡nc. ("Bryan")

Dear Mark:

This letter will confirm that Bryan is engaging Arthur .Andersen LLP ("AN) to provide assistance in connection with certain tax matters. Based upon the engagement objectives provided below, we plan to provide timely cünsultations regarding tax issues which are relevant to Bryan. These consultations may include proposing and implementing certain tax strategies,
This letter sets forth the arrangements under which AA, with your cons.'nt, has ap;reed to proceed with any projects.
Ç.QntifteJ1.U~.my:

It is mutually acknowledged that our work may result in communicat1on.'i involving Bry.in's shareholders, other advisors and ourselves, and that such commurúca!Íons 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 üstablishing and! or maintaining any privileged and

confidential status that applies (e.g" marking correspondence, memos, and schedules prepared on your behalf as "Privileged & Confidential"). Also, access to aU inormation in llUf files relatig to tl)is project wil be restrctpd to AA and officers of Bryan. We wil notify you of any requests or needs for such material that might come to our attention in the context of judicial or administrabve proceedings or professional or regulatory requirements berore we would disclose same as lly be required under applicable law or rules,
Please advise us in writing of any specific steps or guidelines that you wish us to follow in this regard. While i\/\ will coopenite, as set forth herem, with respect to leg;il privilege and related doctrines, :\1\ assumes no responsibili:y for any court or tribunal's partial or entire failure to

u pJiiiid any privilege or related doctr'1es. '

GAINO 000003

Case 1:06-cv-21748-JEM

Document 67-2

Entered on FLSD Docket 05/22/2007

Page 13 of 26

.,
Mark J. Gainor
Page 2

ARTHUR ANDERSEN

.

September 1, 1999

Fees and Related Business...cnn-Based upon the combination of the tax matters that may be involved and our experience in performing similar engagements, WI' ('slimatP that our total feps muld be as high as $600,000. However, we wil pn..wide you with em estimate of our fees on a trilnsaction by transaction
basis. This job arrangement wil terminate upon the earlier Gf a change in control of Bryan or one year from t"e date of this letter.

You may detcrnúe that a "more-likely-than-not" opinion leller, pursuant to the requirements

of Internal Revenue Code Section 6662, is required from a qualified attorney with respect to one
or morp of the transactions that may be proposed to Bryan. If such need develops Juring the

course of our tax consulting, and a "more-likely-than-nor" opinion letter from a qualuied attorney is unattainable, then AA shall refund any and all uf ib fees (excluding out of pocket i~xpenses) related to its tax consulting with respect to such non-opinionabJe transactions. It is
transaction in the absence of a
understood that AA wil not issue an opinion with respect to a

separate prior written 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 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.
incidental

or exemplary damges or loss (nor ¡my lost profits, savings or business opportunity),

and Bryan wil upon the receipt of written notice indemny AA. its affilates and their partners, principals and personnel against 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 (including contract, statute, any form of negligence, intentional tort, strct liabilty or otherwise) and whether or not AA was advised of the possibility of the damage or loss asserted. Such terms shall also continue to apply after
any termiation of this agreement and during the penod of any dispute betwefèn the partÌl's.

This letter sets forth the entire understandmg between the parties regardir.g the subject matter here addressed and supersedes all prior agreements, arrangements and corrurCGltions, whether oral or written. with respect to such subject matter. No other agreement~, 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 except by :he mutual written agreement of both parties. Nonenforcement or dela\' in
i:'ntorcement of any right shall not be constred as â waiver of such right, and a waiver of a

GAINO 000004

Case 1:06-cv-21748-JEM
\

Document 67-2

Entered on FLSD Docket 05/22/2007

Page 14 of 26

.
AARTHUEN NDERS R
Mark J. Gainor
Page 3

.
Ari~ur .-\~dèrSç'n LU'
___.____ _, .._._.__. ______...___..__..__.0__'. SU:tè 2:,00 133 f't'.i, :îtn'i. :;irt't.'I. ~t .\rliHìtrl C;..\ ~d31); li'.lri
4i).l hSK L ;;r-

September 1, 1999

right in a given case shall not be constred as a waiver of the same or similar right in any other
Cä~e.

Please sign in the space provided below on the attached duplicate original to indicate' !3rYdn.s agreement with the arrangements described herein. Please return a signed copy of this letter to

us. If you should have any que:;tìons regarding this arrangement, please contact me i1t (404)
223-7107.

Very truly your:;,

ARTH.VR ANDE~SEN LLP/ . ç

J .. l. - Z; t.l" ~~ /... By~~-c J.:l' _.-" . .
Wesley G. ihei el

Aireed:

By:

Date:

GAINO 000005

Case 1:06-cv-21748-JEM

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EXHIBIT "C"

Case 1:06-cv-21748-JEM

Document 67-2

Entered on FLSD Docket 05/22/2007
No, 2626 P, 2

Page 16 of 26

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