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Argos Holdings Inc. v. Wilmington N.A.

United States District Court for the Southern District of New York

March 28, 2019, Decided; March 28, 2019, Filed

18cv5773(DLC)

Opinion

OPINION AND ORDER

DENISE COTE, District Judge:

Plaintiffs PetSmart, Inc. ("PetSmart") and Argos Holdings, Inc. ("Holdings") have moved pursuant to Fed. R. Civ. P. 26(c) for a protective order with respect to thirteen sets of documents on the grounds of attorney-client and work product privileges. For the reasons that follow, that motion is granted for three of the thirteen sets.

Background

The communications at issue were made by or on behalf of attorneys to three individuals, or were forwarded to those individuals by PetSmart personnel. Those three individuals hold two positions of relevance to this dispute. They are each partners in the principal investor in the plaintiffs -- the private equity firm BC Partners, Inc. ("BC Partners") -- and they also serve as members of the board of the plaintiffs' ultimate owner, which is Argos [*2]  Holdings GP LLC ("Argos GP").1 The three individuals are Raymond Svider ("Svider"), Michael Chang ("Chang"), and Fahim Ahmed ("Ahmed", together "Three Individuals"). They are three of the seven members of the Argos GP board, and exercise a majority of the votes on the board by virtue of Argos GP's LLC Agreement. In addition to being Argos GP directors, Ahmed was Vice President and Secretary of Argos GP, Chang was Vice President and Treasurer of Argos GP, and Svider was Executive Chairman of PetSmart until June 2018.

The attorneys at issue are the law firms Kirkland & Ellis LLP ("Kirkland") and Simpson Thacher & Bartlett LLP ("Simpson Thacher"). Both law firms were retained by Argos GP and related entities to advise them in connection with transactions at issue here. They were not retained by BC Partners in connection with these matters, and BC Partners was not their client. In brief, the transactions are the following.

BC Partners' acquisition of PetSmart was financed through a Credit Agreement dated March 11, 2015 ("the Credit Agreement"). Defendant and counterclaim-plaintiff Wilmington Trust, National Association ("Wilmington Trust") is the Administrative Agent under the Credit Agreement [*3]  and represents the interests of the lenders under the Credit Agreement.

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2019 U.S. Dist. LEXIS 53104 *; 2019 WL 1397150

ARGOS HOLDINGS INC. and PETSMART INC., Plaintiffs, -v- WILMINGTON NATIONAL ASSOCIATION, as Administrative Agent, Defendant, Counterclaim- Plaintiff, -v- ARGOS INTERMEDIATE HOLDCO III INC., BUDDY CHESTER CORP., BUDDY CHESTER SUB CORP., BUDDY HOLDINGS CORP. ALAN M. SCHNAID, PAULETTE R. DODSON, PAUL KEGLEVIC, PETER S. KRAVITZ, SCOTT D. VOGEL, and CEZAR M. FROELICH, Counterclaim-Defendants.

CORE TERMS

email, attorney-client, advice, personnel, entities, confidential, withhold, external, chain, disclosure, investors