Ctr. Partners, Ltd. v. Growth Head GP, LLC

• Citation: 957 N.E.2d 496,2011 IL App (1st) 110381,354 Ill.Dec. 180
• Decision Date: 30 August 2011
• Docket Number: No. 1–11–0381.,1–11–0381.
• Parties: CENTER PARTNERS, LTD., Urban–Water Tower Associates, Miami Associates, L.P., and Old Orchard Limited Partnership, All Illinois Limited Partnerships, Individually and Derivatively on behalf of Urban Shopping Centers, L.P., Plaintiffs–Appellees, v. GROWTH HEAD GP, LLC, Westfield America Limited Partnership, Westfield America, Inc., Westfield America Trust, Rouse-Urban, LLC, TRCGP, Inc., The Rouse Company, L.P., The Rouse Company, Rouse LLC, GGP L.P. and General Growth Properties, Inc., Defendants–Appellants (Urban Shopping Centers, L.P., Head Acquisition L.P., SPG Head GP, LLC, Simon Property Group, LP, and Simon Property Group, Inc., Defendants).
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 110381
354 Ill.Dec. 180
957 N.E.2d 496

CENTER PARTNERS, LTD., Urban–Water Tower Associates, Miami Associates, L.P., and Old Orchard Limited Partnership, All Illinois Limited Partnerships, Individually and Derivatively on behalf of Urban Shopping Centers, L.P., Plaintiffs–Appellees,
v.
GROWTH HEAD GP, LLC, Westfield America Limited Partnership, Westfield America, Inc., Westfield America Trust, Rouse-Urban, LLC, TRCGP, Inc., The Rouse Company, L.P., The Rouse Company, Rouse LLC, GGP L.P. and General Growth Properties, Inc., Defendants–Appellants (Urban Shopping Centers, L.P., Head Acquisition L.P., SPG Head GP, LLC, Simon Property Group, LP, and Simon Property Group, Inc., Defendants).

No. 1–11–0381.

Appellate Court of Illinois, First District, Second Division.

Aug. 30, 2011.

[957 N.E.2d 498]

Tabet DiVito & Rothstein (Gino L. DiVito, Karina Zabicki DeHayes,

[957 N.E.2d 499]

Brian C. Haussman, of counsel); Debevoise & Plimpton LLP, New York, NY (John S. Kiernan, Carl Riehl, William H. Taft V, of counsel), for Appellant Growth Head GP, LLC, Westfield America Limited Partnership, Westfield America, Inc., Westfield America Trust.

Grippo & Elden LLC (Lynn H. Murray, Laura K. McNally, Pei Y. Chung, of counsel); Weil, Gotshal & Manges LLP, New York, NY (David Lender, admitted pro hac vice, of counsel); Weil, Gotshal & Manges LLP, Boston, MA (Thomas C. Frongillo, admitted pro hac vice, Ardith M. Bronson, admitted pro hac vice, of counsel), for Appellant Rouse–Urban, LLC, TRCGP, Inc., The Rouse Company, L.P., The Rouse Company, Rouse LLC, GGP L.P. and General Growth Properties, Inc.

Kirkland & Ellis LLP (Jeffrey L. Willian, Alyssa A. Qualls, S. Maja Fabula, of counsel), for Appellee.OPINION Justice KARNEZIS delivered the judgment of the court, with opinion.

[354 Ill.Dec. 183] ¶ 1 Defendants Growth Head GP, LLC, Westfield America Limited Partnership, Westfield America, Inc., Westfield America Trust, Rouse–Urban, LLC, TRCGP, Inc., The Rouse Company, L.P., The Rouse Company, Rouse LLC, GGP L.P. and General Growth Properties, Inc., appeal from the circuit court's order in favor of plaintiffs Center Partners, Ltd., Urban–Water Tower Associates, Miami Associates, L.P., and Old Orchard Limited Partnership, all Illinois limited partnerships, individually and derivatively on behalf of Urban Shopping Centers, L.P., which compelled the disclosure of certain attorney-client privileged communications.¹ On appeal, defendants contend that (1) the disclosure of privileged communications during a business negotiation did not result in a subject-matter waiver of all attorney-client communications concerning the same subject matter; (2) the scope of the subject-matter waiver as determined by the court was excessive; and (3) certain communications are not discoverable because they are protected by the attorney work-product doctrine. For the following reasons, we affirm.

¶ 2 Background

¶ 3 Plaintiffs and defendants are in the business of owning and operating numerous shopping malls across the country. Due to the complex nature of the companies involved in this case, we will refer to defendants Westfield America Trust, Westfield America, Inc., Westfield America Limited Partnership and Growth Head GP, LLC, collectively as “Westfield.” We will refer to defendants Rouse–Urban, LLC, TRCGP, Inc., The Rouse Company, L.P., The Rouse Company, Rouse LLC, GGP L.P. and General Growth Properties, Inc., collectively as “Rouse.” We will refer to defendants Simon Property Group, LP, and Simon Property Group, Inc., collectively as “Simon.”

¶ 4 In 2001 and 2002, over the course of several months, Westfield, Rouse and Simon negotiated to purchase the assets of a Dutch company known as Rodamco North America, N.V. (Rodamco). One of Rodamco's assets was defendant Head Acquisition, L.P. (Head), which was the general partner of plaintiff Urban Shopping Centers, L.P. (Urban). Plaintiffs are minority limited partners of Urban. Westfield, Rouse and Simon entered into a purchase agreement with Rodamco in January 2002. [354 Ill.Dec. 184]

[957 N.E.2d 500]

On the same day, Westfield, Rouse and Simon entered into a separate joint purchase agreement with one another that concerned the allocation of Rodamco's assets and the purchase price each of them would pay. The purchase of Rodamco closed in May 2002. Also on that day, Westfield, Rouse and Simon executed an amended Head partnership agreement that included provisions allocating control over Urban's numerous mall interests among themselves.

¶ 5 Plaintiffs subsequently filed suit alleging breach of fiduciary and contractual duties related to the purchase of Rodamco's assets, specifically the acquisition of Head. Plaintiffs sought the discovery of communications between Westfield, Rouse and Simon concerning the acquisition of Head and how they agreed to operate and collect revenue from the various shopping malls owned by Urban. Westfield and Rouse acknowledged that during the negotiations leading up to the purchase of Rodamco, they shared among one another legal advice each of them received from their attorneys regarding the purchase. Westfield acknowledges specifically that they, along with Rouse and Simon, disclosed (1) their attorneys' positions on particular terms of the transaction; (2) certain communications from their attorneys in written documents; and, (3) certain legal views concerning specific aspects of the transaction and the structure for allocating control over Urban's mall interests among one another.

¶ 6 In October 2008, plaintiffs filed their first motion to compel the attorney-client communications that were disclosed among Westfield, Rouse and Simon during their negotiations to purchase Rodamco. The motion did not seek those undisclosed attorney-client communications. The circuit court granted plaintiffs' motion to compel, ordering Westfield, Rouse and Simon to produce attorney-client communications that had been shared among one another during the negotiations.

¶ 7 In April 2010, plaintiffs filed another motion to compel. This motion, which gave rise to this appeal, sought all of the attorney-client communications concerning the purchase negotiations, even those communications that were not disclosed among Westfield, Rouse and Simon. The motion requested the production of over 1,500 documents identified in defendants'...