Corvex Management LP et al v. Commonwealth REIT et al

MOTION for Temporary Restraining Order

D. Mass.March 14, 2013

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CORVEX MANAGEMENT LP and RELATED FUND MANAGEMENT, LLC, Plaintiffs, -against- COMMONWEALTH REIT, BARRY M. PORTNOY, ADAM D. PORTNOY, JOSEPH L. MOREA, WILLIAM A. LAMKIN, and FREDERICK N. ZEYTOONJIAN, Defendants. Civil Action No. 13-cv-10475 APPLICATION FOR LIMITED TEMPORARY RESTRAINING ORDER Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs Corvex Management LP and Related Fund Management, LLC respectfully apply for entry of a limited Temporary Restraining Order against Defendants Commonwealth REIT, Barry M. Portnoy, Adam D. Portnoy, Joseph L. Morea, William A. Lamkin, and Frederick N. Zeytoonjian (‘Defendants”), for the sole and narrow purpose of enjoining the arbitration proceeding initiated by Defendants on March 4, 2013. Absent a ruling from this Court by March 19, 2013,1 on this limited and temporary request for relief, Plaintiffs will be forced to participate in the arbitrator selection process, or forfeit this right to Defendants. Plaintiffs respectfully request that the Court institute a schedule such that opposition papers, if any, be due by March 18, 2013. 1 Based on the American Arbitration Association’s date of receipt of Defendants’ arbitration demand, the arbitrator selection deadline would be March 20, 2013. However, Plaintiffs received the demand a day earlier and therefore, out of an abundance of caution, seek relief by March 19, 2013. Case 1:13-cv-10475-DJC Document 23 Filed 03/14/13 Page 1 of 4 -2- RELIEF REQUESTED 1. Plaintiffs incorporate and reallege in full their Memorandum of Law in Support of Motion for Limited Temporary Restraining Order. 2. Plaintiffs request entry of an Order (1) temporarily enjoining and restraining, until after the Court has had an opportunity to hold a hearing and rule on Plaintiffs’ Motion to Stay Arbitration, Defendants from pursuing the arbitration of this matter in any way; (2) temporarily enjoining and restraining, until after the Court has had an opportunity to hold a hearing and rule on Plaintiffs’ Motion to Stay Arbitration, Defendants from continuing with the arbitrator selection process in furtherance of arbitration of this matter; (3) staying the arbitrator selection process and arbitration proceedings pending before the American Arbitration Association and captioned CommonWealth REIT, et al. v. Corvex Management LP, Case No. 11 512 00295 13. 3. Plaintiffs are likely to succeed on the merits of their Motion to Stay Arbitration. 4. Plaintiffs will be irreparably harmed if they are required to participate in an arbitration proceeding to which they never agreed. 5. Plaintiffs have demonstrated that the balance of equities tips decidedly in their favor. 6. Public policy favors granting the temporary restraining order requested by Plaintiffs. 7. Accordingly, Plaintiffs respectfully request that the Court enter a temporary restraining order and stay of arbitration, as described above; that a preliminary injunction and continued stay be entered, after notice to Defendants and a hearing, as described above; that a permanent injunction and stay be entered, upon final resolution of the arbitrability of this action; and that such other and further relief, at law or in equity, as the Court may deem appropriate, be granted. Case 1:13-cv-10475-DJC Document 23 Filed 03/14/13 Page 2 of 4 -3- CERTIFICATION PURSUANT TO L.R. 7.1(A)(2) Gibson, Dunn & Crutcher LLP certifies that it has contacted opposing counsel in an effort to resolve or narrow the issues but that such efforts were unsuccessful. REQUEST FOR ORAL ARGUMENT Plaintiffs respectfully request a hearing and an opportunity for oral argument on this Application. DATED: March 14, 2013 ROBINS, KAPLAN, MILLER & CIRESI L.L.P. By: /s/ David E. Marder David E. Marder (552485) 800 Boylston Street 25th Floor, Prudential Tower Boston, MA 02199-7080 demarder@rkmc.com Tel: 617-267-2300 Fax: 617-267-8288 GIBSON, DUNN & CRUTCHER LLP Adam H. Offenhartz (admitted pro hac vice) Aric H. Wu (admitted pro hac vice) 200 Park Avenue New York, New York 10166 aoffenhartz@gibsondunn.com awu@gibsondunn.com Tel: 212-351-4000 Fax: 212-351-4035 Attorneys for Plaintiffs Corvex Management LP and Related Fund Management, LLC Case 1:13-cv-10475-DJC Document 23 Filed 03/14/13 Page 3 of 4 -4- CERTIFICATE OF SERVICE The undersigned hereby certifies that copies of the above document filed through the CM/ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on March 14, 2013. Courtesy copies were also sent via electronic mail and first class mail, postage prepaid to: ROBERT S. SAUNDERS Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square 920 N. King Street Wilmington, DE 19801 JAMES R. CARROLL Skadden, Arps, Slate, Meagher & Flom LLP One Beacon Street Boston, MA 02108 /s/ David E. Marder ____________________________________ David E. Marder ROBINS, KAPLAN, MILLER & CIRESI L.L.P. 800 Boylston Street 25th Floor, Prudential Tower Boston, MA 02199-7080 617-267-2300 demarder@rkmc.com ATTORNEY FOR PLAINTIFFS Case 1:13-cv-10475-DJC Document 23 Filed 03/14/13 Page 4 of 4