DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, Colorado 80202 Plaintiffs: MRP GROUP, LP, an Ontario Limited Partnership; MRP VENTURE II (GP) LP, an Ontario Limited Partnership; MRP VENTURE III (GP) LP, an Ontario Limited Partnership; MEXICO RETAIL PROPERTIES VENTURE I, L.P., a Quebec Limited Partnership; MEXICO RETAIL PROPERTIES VENTURE II L.P., an Ontario Limited Partnership; and MEXICO RETAIL PROPERTIES VENTURE III, L.P., an Ontario Limited Partnership, v. Defendant: HOUSTON CASUALTY COMPANY, a Texas corporation. COURT USE ONLY Attorneys for Plaintiff: Name(s): Address: Phone No.: FAX No.: E-mails: Jonathan G. Pray, #36576 Justin L. Cohen, #44811 Brownstein Hyatt Farber Schreck, LLP 410 Seventeenth Street, Suite 2200 Denver, CO 80202-4432 303.223.1100 303.223.1111 jpray@bhfs.com; jcohen@bhfs.com Case Number: 2014CV032699 Courtroom: COMPLAINT AND JURY DEMAND Plaintiffs, MRP Group, LP, MRP Venture II (GP) LP, MRP Venture III (GP) LP, Mexico Retail Properties Venture I, L.P., Mexico Retail Properties Venture II, L.P., and Mexico Retail Properties Venture III, L.P., (collectively, Plaintiffs ) by and through their attorneys, Brownstein Hyatt Farber Schreck, LLP, hereby assert the following complaint against Defendant Houston Casualty Company ( HCC ), and allege as follows: NATURE OF ACTION 1. This is an action for declaratory judgment brought pursuant to the Uniform Declaratory Judgments Law, COLO. REV. STAT. 13-51-101, et seq., and for damages and other appropriate relief arising out of Defendant s bad faith breach of an insurance contract.
2. At issue is Defendant s obligation to reimburse Plaintiffs for more than $6.7 million in attorneys fees and related costs incurred in connection with their defense of a Foreign Corrupt Practices Act ( FCPA ) Investigation relating to Plaintiffs activities in Mexico. 3. Plaintiffs were brought into a governmental investigation in January of 2013, when they were subpoenaed by the Securities and Exchange Commission. 4. The policy that HCC sold to Plaintiffs is one of the best on the market. Unlike many similar policies, the HCC policy provides explicit coverage for governmental investigations commenced by the issuance of a subpoena. 5. This broad language and the corresponding coverage found in the HCC policy enabled HCC to sell many insurance policies; but, upon information and belief, it also subjected HCC to numerous claims resulting from, among other things, the financial crisis. 6. Indeed, upon information and belief, as a result of the exceedingly broad language of HCC s policies, and as a result of situations outside of its control, HCC was hit with so many covered claims that it was forced to take action, including firing its lead underwriter, restructuring its claims handling activities to constrict the outflow of cash on covered claims, and hiring a slew of lawyers to implement its new claims minimization strategy. 7. MRP, unfortunately, became trapped in the middle of HCC s new claims minimization strategy. MRP presented a covered claim, namely a governmental investigation commenced by the issuance of a subpoena, but HCC balked, and through its lawyers, denied the claim. 8. The basis of HCC s denial is its supposition that, notwithstanding the clear language of the government s subpoenas, which focused on MRP s development activities in Mexico, the government was not actually investigating MRP. 9. In light of HCC s conduct, MRP was forced to defend against the government s claim without the assistance of its insurer, and as a result, to date, has paid in excess of $6.7 million in attorneys fees and costs out-of-pocket. 10. Ultimately, after extensive back-and-forth between the parties, HCC finally acknowledged limited coverage under the policy for certain defense costs incurred by MRP beginning in May 2006, following Plaintiffs execution of tolling agreements with the Department of Justice. HCC, however, has maintained its denial of coverage for the defense costs incurred from January 7 th (the date of the subpoenas) through May 2013. Moreover, despite HCC s limited acknowledgement of coverage for costs incurred after May 2013, Defendant has yet to reimburse MRP for so much as a single dollar of its defense costs. 11. A ruling from this Court is necessary to resolve the dispute between the parties. 2
PARTIES 12. Plaintiff MRP Group, LP ( MRP Group ), is a limited partnership formed under the laws of Ontario, Canada, with its principal place of business located in Denver, Colorado. 13. Plaintiff MRP Venture II (GP) LP ( MRP Venture II ), is a limited partnership formed under the laws of Ontario, Canada, with its principal place of business located in Denver, Colorado. 14. Plaintiff MRP Venture III (GP) LP ( MRP Venture III ), is a limited partnership formed under the laws of Ontario, Canada, with its principal place of business located in Denver, Colorado. 15. Plaintiff Mexico Retail Properties Venture I, L.P. ( MRP Fund I ) is a limited partnership formed under the laws of Quebec, Canada, with its principal place of business in Denver, Colorado. 16. Plaintiff Mexico Retail Properties Venture II, L.P. ( MRP Fund II ) is a limited partnership formed under the laws of Ontario, Canada, with its principal place of business in Denver, Colorado. 17. Plaintiff Mexico Retail Properties Venture III, L.P. ( MRP Fund III ) is a limited partnership formed under the laws of Ontario, Canada, with its principal place of business in Denver, Colorado. 18. Defendant HCC is a corporation organized under the laws of Texas, which, on information and belief, has its principal place of business in Houston, Texas. JURISDICTION AND VENUE 19. Jurisdiction of this Court is invoked pursuant to the Uniform Declaratory Judgments Law, COLO. REV. STAT. 13-51-101, et seq, and pursuant to Rule 57 of the Colorado Rules of Civil Procedure, to determine questions of uncertainty and insecurity between the parties concerning the construction and application of an insurance policy sold by HCC and which names Plaintiffs as insureds. 20. This Court has jurisdiction over HCC because HCC: (a) negotiated and issued insurance policies in Colorado, including but not limited to the insurance policy at issue in this litigation; (b) is licensed and/or authorized to do business in Colorado; and (c) has, within the relevant time periods, done or transacted business related to the selling of insurance in Colorado. 21. Venue is proper in this Court, pursuant to Rule 98 of the Colorado Rules of Civil Procedure, because, among other things, HCC is found in the City and County of Denver. 3
FACTUAL BACKGROUND A. MRP s Development Activities in Mexico 22. MRP Group is a private equity fund, which acquires, develops and owns shopping centers in Mexico through various operating affiliates, including MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III (collectively, MRP ). MRP does business under the name Mexico Retail Properties. 23. At all times relevant to this dispute, MRP was one of the largest developers, owners and managers of retail real estate assets in Mexico. B. The Government s FCPA Investigation Against MRP 24. On January 7, 2013, the Securities and Exchange Commission ( SEC ) issued a subpoena to Mexico Retail Properties. The subpoena, styled In the Matter of Wal-Mart Stores, Inc. (FW-0378), defined Mexico Retail Properties to include all present and former subsidiaries and affiliates... and any general or limited partners thereof, including MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III. 25. The documents and information requested in that subpoena were directed at MRP s own development activities in Mexico. Specifically, among the information sought, the subpoena required production of the following materials: All financial records relating to MRP s operations. All documents concerning permitting and licensing in Mexico. All documents concerning communications sent or received by Michael Foley. All documents concerning or relating to communications with or payments to any Foreign Official in Mexico by MRP. 26. The government s request, on its face, focused on communications or payments by MRP to any foreign officials in Mexico, documents relating to permitting or licensing in connection with MRP s developments in Mexico, MRP s financial records, and communications involving Michael Foley, MRP s former director of development. 27. In short, the FCPA subpoena constituted a broad-based inquiry into MRP s development projects in Mexico. 28. Several days later, on January 11, 2013, the Department of Justice ( DOJ ) issued a nearly identical set of demands to MRP. 4
29. Shortly after the government initiated its investigation of MRP, on or about February 18, 2013, the DOJ requested that MRP enter into tolling agreements relating to any potential enforcement actions against Plaintiffs under the FCPA. 30. After prolonged negotiations, DOJ executed tolling agreements with MRP. These DOJ tolling agreements were effective as of February 18, 2013. 31. MRP also negotiated similar tolling agreements with the SEC. The SEC tolling agreements were effective as of April 4, 2013. 32. As is typical of most FCPA matters, MRP s defense was expensive. In order to defend itself, MRP employed a series of attorneys and consultants to review and compile information pertaining to the government s requests. 33. As of the date of this Complaint, the government s FCPA investigation is ongoing, and MRP continues to incur additional attorneys fees and related costs in response to the SEC s and DOJ s investigation of MRP. C. The HCC Insurance Policy 34. HCC sold Private Equity Professional and Management Liability Insurance Policy, Number H712-62648, to Black Creek Group LLC, an affiliate of MRP (the Policy or the HCC Policy ). 35. The Policy provides $10 million in limits of liability for Claims made during the policy period of April 20, 2012 to June 20, 2013, subject to a $350,000 self-insured retention. 36. The policy identifies Black Creek Group LLC as the Named Insured, and provides coverage for numerous affiliates as Insured Organizations, including MRP, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III. See Policy, End. 1. 37. Pursuant to Insuring Clause C: Private Equity Management Liability: The Insurer shall pay, on behalf of the Insured Organization, Loss which the Insured Organization is legally obligated to pay arising from Claims against any Insured Organization for a Wrongful Act. Policy, End. 6, Coverage C(3). 38. The Policy also obligates HCC to pay, on behalf of the Insured Organization for Loss which the Insured Organization pays as indemnification to any Insured Person arising from a Claim for a Wrongful Act. Id., Coverage C(2). 39. The term Claim is defined to expressly include governmental investigations after service of a subpoena, and tolling agreements: 5
(1) any written demand for monetary or non-monetary damages or injunctive relief against an Insured alleging a Wrongful Act...; (2) any civil, criminal, administrative or regulatory investigation by a federal, state, local, foreign or offshore governmental authority... but only after service of a subpoena, receipt of a Wells Notice, receipt of a target letter... or receipt of a notice of investigation, SEC Form 1662, a civil investigative demand, a search warrant or other similar document; (3) any criminal proceedings against any Insured for a Wrongful Act commenced by the return of an indictment or the filing of an information (or similar document), including any appeal therefrom. (4) a written agreement with any Insured to toll any applicable statute of limitations prior to the commencement of any judicial, administrative, regulatory or arbitration proceeding involving a Wrongful Act. Policy, Section II, Definitions B. Claim (as amended by End. 4) (emphasis added). 40. Wrongful Act, in turn, is defined to include virtually any error, misstatement, or omission: [a]ny actual or alleged breach of duty, neglect, error, misstatement, misleading statement, omission or act committed or attempted, or allegedly committed or attempted... by the Insured Organization or any Insured Person in their respective capacities as such, or any matter claimed against them solely by reason of their status as and [sic] Insured Person. Policy, Section II, Definitions V. Wrongful Act (as amended by Endorsement 4). 41. Loss includes damages (including pre and post judgment interest), settlements and Defense Costs incurred by any Insured. Id. at Section II, N (as amended by End. 4). 42. Defense Costs mean reasonable and necessary legal fees and expenses... incurred by the Insureds in defense of a Claim. Id. at Section II (D) (as amended by End. 6). HCC is obligated to pay MRP s Defense Costs at least once every ninety (90) days. Id. at Section V(G) (as amended by End. 4). D. MRP s Claim for Insurance Coverage Under the HCC Policy 43. Notice of the SEC subpoenas and DOJ demands were timely tendered to HCC. 6
44. On January 30, 2013, the agent who placed coverage, Thompson Flannigan, wrote HCC in effort to secure Defendant s consent to the lawyers chosen by MRP to defend against the Claim. The agent stated: I know you are probably just getting situated on this matter, but wanted to send the proposed attorney s and their billing rates. Please let me know if you have a moment to discuss. 45. HCC did not respond to this request for consent to defend the government s Claim. 46. Instead, approximately two weeks later, on February 13, 2013, HCC denied the Claim outright. Although HCC acknowledged that the subpoenas constituted a Claim against MRP under the Policy, and despite the clear nature of the government s requests which focused on MRP s development activities, HCC declared that the government was not really concerned with MRP s conduct. HCC concluded that the government was more interested in someone other than in MRP, and, therefore, abandoned its insureds. 47. HCC s denial of coverage ignored the plain language of both the HCC Policy and the government s subpoenas and document requests. 48. Given this wrongful denial, MRP had no choice but to defend the government s Claim, and to pay for such defense without the help or assistance of HCC. 49. Despite being abandoned by its insurer, MRP continued to cooperate with HCC, and continued to provide HCC with information. Indeed, on June 5, 2013, following execution of the DOJ tolling agreements, MRP wrote to HCC providing copies of the agreements and challenging HCC s denial of coverage. MRP explained that, contrary to HCC s baseless determination that the government was not interested in MRP s conduct, the SEC and DOJ was investigating MRP for its own potential wrongdoing. This was clear from the very nature of the documents and information requested, which focused on MRP s financial records, MRP s operations in Mexico, and MRP s permitting and licensing activities in Mexico. Likewise, the government focused its requests on all documents and communications by Michael Foley, MRP s Chief Development Officer in Mexico. Finally, and perhaps most telling, the government sought documents relating to payments by MRP to any foreign officials in Mexico. 50. Indeed, MRP pointed out to HCC that the tolling agreements, which the government requested shortly after the subpoenas were issued, confirmed the fact that the Government was looking into potential Wrongful Acts by MRP. 51. Three-and-a-half months later, HCC finally responded. HCC maintained its position that the SEC subpoenas and DOJ requests were not covered Claims under the Policy. HCC summarily stated that nothing in the SEC subpoenas or the Voluntary Requests for Documents... indicates that the Government was seeking anything other than records in the Insured s possession relating to [some other entity]. HCC declared that it would not cover MRP s Defense Costs incurred as a result of the subpoenas without a case directly on point. In other words, HCC required MRP to provide case law addressing the precise factual issue at hand before HCC would honor the clear and unambiguous terms of its contract. 7
52. HCC did, however, suggest that it would provide some coverage under the Policy from the date the DOJ tolling agreements were signed, on May 6,, 2013. According to HCC, when the tolling agreements were executed, only then did MRP suddenly become a target of the government s investigation. Upon information and belief, HCC took this position solely out of self-interest and for personal financial gain, knowing that FCPA claims are front-end loaded, and that by denying coverage until May 2013, HCC could potentially avoid liability for significant legal fees incurred by MRP early in defense of a matter that was, by HCC s own admission, a Claim under the policy. Notwithstanding HCC s concession, as of the date of this complaint, HCC has not reimbursed MRP for any of its Defense Costs. 53. Because of HCC s initial denial of coverage, MRP was forced to defend against the FCPA action as a reasonable uninsured, and has paid for its defense costs out-of-pocket. To date, MRP has incurred more than $6.7 million in defense costs as a result of the government s Claim against MRP, and continues to incur additional fees in connection with its ongoing defense of the Government s Claim. Despite repeated demands by MRP, HCC has paid none of these costs. 54. HCC, by refusing to pay what it owes under the Policy, forced MRP to file this lawsuit. HCC was aware, or should have been aware, that MRP would incur attorneys fees and related costs as a result of their wrongful and tortious denial of coverage, and MRP s attorneys fees expended in this action are a foreseeable result of HCC s wrongful breach of the Policy FIRST CAUSE OF ACTION (Declaratory Judgment) 55. Plaintiffs repeat and re-allege the allegations set forth in Paragraphs 1 through 54 as if fully set forth herein. 56. As a result of the government s FCPA investigation, MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III, have incurred substantial costs and expenses, including attorneys fees, in defense of the government s FCPA Claim, and continue to incur additional costs and expenses. 57. The terms and conditions of the HCC Policy obligate HCC to reimburse and indemnify Plaintiffs for all Loss, including Defense Costs, which Plaintiffs incur in connection with the FCPA Claim, excess of the Policy s $350,000 self-insured retention, up to the Policy s $10 million limit of liability. 58. To date, despite demands by Plaintiffs for reimbursement under the Policy for Defense Costs incurred in connection with the FCPA investigation, HCC has refused to pay Plaintiffs for any of their Loss arising out of the underlying claim. 59. Plaintiffs, MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III have fully satisfied all relevant terms and conditions precedent to coverage under the HCC Policy, or such terms and conditions have been waived by HCC or no longer apply. 8
60. An actual and justiciable controversy exists between Plaintiffs and HCC regarding the obligations of HCC under the Policy to indemnify MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III, for Defense Costs incurred by Plaintiffs in connection with the FCPA Claim. 61. A declaratory judgment will terminate the controversy between Plaintiffs and HCC regarding the obligations of HCC under the Policy to indemnify MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II, and MRP Fund III, for Defense Costs incurred by Plaintiffs in connection with the FCPA Claim. SECOND CAUSE OF ACTION (Breach of Contract) 62. Plaintiffs repeat and re-allege the allegations set forth in Paragraphs 1 through 61 as if fully set forth herein. 63. The HCC Policy constitutes a valid and enforceable contract between Plaintiffs, MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III and HCC. 64. Plaintiffs, MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III are each Insureds under the HCC Policy. 65. Plaintiffs, MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III, have fully satisfied all relevant terms and conditions precedent to coverage under the HCC Policy, or such terms and conditions have been waived by HCC or no longer apply. 66. The FCPA investigation, beginning with the SEC s subpoenas to MRP Group dated January 7, 2013, constitutes a covered Claim under the HCC Policy. 67. Plaintiffs, MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II, and MRP Fund III have, to date, incurred in excess of $6.5 million in Defense Costs, including reasonable attorneys fees and related costs, in defense of the covered FCPA Claim. 68. HCC is obligated, pursuant to the terms of the HCC Policy, to pay Plaintiffs Defense Costs no later than ninety (90) days after such fees and costs are incurred. 69. Despite demands by Plaintiffs for payment of their attorneys fees and related costs, HCC has, to date, refused to acknowledge coverage for such Loss or has otherwise refused to pay Plaintiffs for such Loss, in breach of the terms of the HCC Policy. 70. As a direct and proximate result of HCC s breach of its insurance Policy, Plaintiffs, MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III have sustained substantial damages, including but not limited to legal fees and costs incurred in defense of the FCPA Claim. 9
THIRD CAUSE OF ACTION (Common Law Bad Faith Breach of Insurance Contract) 71. Plaintiffs repeat and re-allege the allegations set forth in Paragraphs 1 through 70 as if fully set forth herein. 72. HCC owed duties to MRP Group, MRP Venture II, MRP Venture III, MRP Fund I, MRP Fund II and MRP Fund III, under HCC s implied covenant of good faith and fair dealing, wherein HCC covenanted that it would deal with Plaintiffs fairly and honestly, and do nothing to impair, hinder, or injure Plaintiffs rights to receive benefits under the HCC Policy. 73. HCC s duty of good faith and fair dealing applies to HCC s conduct in the adjustment of Plaintiffs Claim under the HCC Policy, as well as HCC s conduct in this litigation. 74. HCC s conduct fell below the applicable insurance industry standards established by custom, practice and statutory and common law when handling claims against an insured in violation of its duties of good faith and fair dealing, rendering HCC liable in tort for bad faith breach of insurance contract for all damages proximately caused to Plaintiffs, regardless of the HCC Policy limits. 75. HCC s acts in breach of its duties of good faith and fair dealing include, among others and without limitation: a. Failing to fulfill its fundamental duty to conduct prompt, reasonable, diligent, and objective factual investigations concerning coverage for the underlying governmental investigation; b. Unreasonably refusing to defend Plaintiffs, or to otherwise reimburse or advance Plaintiffs Defense Costs, with respect to the underlying governmental Claim; c. Failing to provide a reasonable explanation for the denial of Plaintiffs claim for coverage; d. Forcing Plaintiffs to pursue litigation in order to enforce their rights under the HCC Policy to obtain insurance coverage and proceeds to which they were legally entitled pursuant to the HCC Policy; e. Preferring its interests above those of its insureds; and f. Other conduct to be revealed during this litigation. 76. As a proximate result of HCC s actions, as described above, Plaintiffs are entitled to all damages recoverable in tort in amounts to be proven at trial and punitive damages to punish and make an example of HCC. 10
FOURTH CAUSE OF ACTION (Statutory Bad Faith) 77. Plaintiffs repeat and re-allege the allegations set forth in Paragraphs 1 through 76 as if fully set forth herein. 78. Pursuant to C.R.C.A. 10-3-1115, an insurer may not unreasonably delay or deny payment of a claim for benefits under an insurance policy. 79. Here, notwithstanding the fact that Plaintiffs timely tendered their claim for benefits relating to the underlying governmental investigation in January 2013, and despite the fact that the claim is undoubtedly covered under the terms and conditions of the HCC Policy, HCC is yet to acknowledge coverage for, or otherwise pay, Plaintiffs claim. 80. HCC s denial and/or delay in paying Plaintiffs claim is without reasonable basis. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request judgment on the First Cause of Action, including: (a) an order declaring, pursuant to the terms of the Policy, that HCC is liable for all sums that Plaintiffs have incurred, and will in the future incur, in connection with MRP s defense of the FCPA investigation, including attorneys fees and related costs, beginning no later than January 7, 2013, when the SEC served MRP with subpoenas in connection with the FCPA matter, and until and if the Policy s $10 million limits of liability are exhausted; (b) all other foreseeable damages resulting from HCC s wrongful denial of coverage, including, but not limited to MRP s attorneys fees and related costs incurred in prosecuting this action against HCC. WHEREFORE, Plaintiffs request judgment on the Second Cause of Action, including: (a) an award of money damages against HCC, with pre-judgment and post judgment interest, in an amount to be determined, that fully compensates MRP for all sums they have paid, or will pay, in connection with MRP s defense of the FCPA investigation; (b) all other appropriate relief to compensate MRP for its damages incurred as a result of HCC s wrongful breach of contract, including but not limited to MRP s attorneys fees and related costs incurred in prosecuting this action against HCC. WHEREFORE, Plaintiffs request judgment on the Third Cause of Action, including: (a) all benefits due under the HCC Policy and other damages foreseeably resulting as a consequence of HCC s breach of the insurance contract; (b) all other recoverable compensatory damages in amounts to be proven at trial; 11
(c) (d) (f) attorneys fees, costs and expenses incurred herein; all interest, statutory and moratory, permitted by law; and such other and further relief as the Court deems just and proper. WHEREFORE, Plaintiffs request judgment on the Fourth Cause of Action, including: (a) all benefits due under the HCC Policy and other damages foreseeably resulting as a consequence of HCC s breach of the insurance contract; (b) (c) (d) all other recoverable compensatory damages in amounts to be proven at trial; attorneys fees, costs and expenses incurred herein; all interest, statutory and moratory, permitted by law; (e) two times the benefits owed by HCC to Plaintiffs relating to the governmental Claim under the HCC Policy; (f) such other and further relief as the Court deems just and proper. WHEREFORE, Plaintiffs request judgment with respect to all causes of action, including: (a) an award for MRP s reasonable attorneys fees, costs and disbursements incurred in prosecuting this action; (b) an award of pre-judgment and post-judgment interest; (c) an award for further relief, including injunctive relief, as becomes necessary or proper after the declaration of rights has been made by the Court; and (d) and proper. an award for such other, further and different relief as this Court may deem just JURY DEMAND DEMAND IS MADE THAT ALL ISSUES AS ALLOWED BY LAW TO BE TRIED TO A JURY OF SIX. 12
Respectfully submitted this 10th day of July, 2014. Plaintiffs Address: 1530 16th Street, Suite 500 Denver, Colorado 80202 011746\0019\11433337.1 BROWNSTEIN HYATT FARBER SCHRECK, LLP (Original on file at offices of Brownstein Hyatt Farber Schreck, LLP, pursuant to C.R.C.P. 121, 1-26) By: s/jonathan G. Pray Jonathan G. Pray, #36576 Justin L. Cohen, #44811 ATTORNEYS FOR PLAINTIFFS MRP Group LLP; MRP Venture II (GP) LP; MRP Venture III (GP) LP; Mexico Retail Properties Venture I, L.P.; Mexico Retail Properties Venture II, L.P.; and Mexico Retail Properties Venture III, L.P. 13