Kogan v. Aimco Fox Chase, L.P.

193 F.R.D. 496, 2000 U.S. Dist. LEXIS 7430, 2000 WL 703815
CourtDistrict Court, E.D. Michigan
DecidedMay 30, 2000
DocketNo. 98-CV-73230-DT
StatusPublished
Cited by37 cases

This text of 193 F.R.D. 496 (Kogan v. Aimco Fox Chase, L.P.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kogan v. Aimco Fox Chase, L.P., 193 F.R.D. 496, 2000 U.S. Dist. LEXIS 7430, 2000 WL 703815 (E.D. Mich. 2000).

Opinion

ORDER APPROVING SETTLEMENT OF CLASS ACTION

ZATKOFF, Chief Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiffs’ Motion for Final Approval of Settlement in this class action and Application of Plaintiffs’ Counsel for an Award of Attorneys’ Fees and Reimbursement of Expenses. The Court gave preliminary approval to the settlement agreement on January 31, 2000. On May 22, 2000, a fairness hearing was conducted. For the reasons stated below, the settlement of the class action is APPROVED, the matter is DISMISSED WITH PREJUDICE, and the Application of Plaintiffs’ Counsel for an Award of Attorneys’ Fees and Reimbursement of Expenses is GRANTED.

II. BACKGROUND

A. THE PARTIES

This action arises out of the sale of an apartment project located in Alexandria, Virginia known as Foxehase and formerly owned by First Alexandria Associates (hereinafter “FAA”). Plaintiffs are those limited partners of FAA who did not tender their interest to AIMCO Properties after the sale of Foxehase. Defendant National Housing Partnership (hereinafter “NHP”) is the general partner of FAA. Defendant National Corporation of Housing Partnerships (hereinafter “NCHP”) is the general partner of NHP.

Apartment Investment and Management Company (hereinafter “AIMCO”) conducts substantially all of its operations through AIMCO Properties and other affiliates and [498]*498subsidiaries. Defendant AIMCO Foxchase was the ultimate purchaser of the Foxchase Property. Defendant AIMCO Holdings is the general partner of AIMCO Foxchase. Defendant AIMCO Holdings QRS is the general partner of AIMCO Holdings. It was through Defendant AIMCO Properties that AIMCO acquired the FAA limited partnership interests. Defendant AIMCO-GP is the sole general partner of AIMCO Properties. All of the named Defendant AIMCO entities are either subsidiaries of AIMCO or are controlled by AIMCO. Unless otherwise noted, the various Defendant AIMCO entities will be collectively identified as “AIMCO”.

B. THE OFFERING MEMORANDUM

In 1980, NHP, through its general partner NCHP, solicited plaintiffs and other investors by sending a copy of the private placement memorandum (hereinafter “PPM”) to select investors around the country. NHP marketed the partnership interests to sophisticated investors with a net worth in excess of $400,000.00 (exclusive of homes, home furnishings, and automobiles), and a guaranteed income stream. Attached to the PPM was the FAA Partnership Agreement (hereinafter “Partnership Agreement”) and the FAA Investor Purchase Agreement (hereinafter “Purchase Agreement”), as well as financial forecasts and projections. The PPM informed the prospective investors that the units to be purchased were subject to the terms of the Partnership Agreement and the Purchase Agreement, and admonished the investors to read both documents with care. Further, the PPM disclosed to the prospective investors the possibility that the Fox-chase Property could be sold. Indeed, the PPM projected a sale after the end of the 1999 calendar year. .

C. THE PARTNERSHIP AGREEMENT

The Partnership Agreement gave NHP authority to operate and manage the Partnership, subject to certain exceptions. The Partnership Agreement authorized NHP to “buy, own, manage, sell, lease, or otherwise acquire or dispose of all or any part of the Partnership’s assets.” It also authorized NHP to enter into transactions with affiliates, including those who “control, are controlled by, or are under common control” of any partner. Thus, NHP or an affiliate possessed the right to purchase the Foxchase Property, subject to approval.

D. THE PURCHASE AGREEMENT

The FAA Purchase Agreement set forth the terms and conditions for investment and incorporated the Partnership Agreement provisions. Each investor was required to sign the Purchase Agreement as a condition of investment.

The Purchase Agreement gave NCHP the right to receive a disposition fee in event of a sale or refinancing. If the property was sold or refinanced, then NCHP was entitled to 10% of the “gross consideration paid to the Partnership (including mortgages and other debts assumed and fees paid).” Section 9(3) of the Purchase Agreement, referred to as the “waterfall provision,” set forth the order for payment of proceeds in the event of a sale. NCHP was entitled to the first half of the fee once sufficient proceeds were set aside to pay Partnership receivables and to pay investors the “Investors Purchase Price for Units.” NCHP was entitled to the second half of the fee once sufficient money was set aside for any tax liabilities owed by investors because of the sale. Section 10 of the Purchase Agreement grants NHP a power of attorney for the individual investors to receive distributions from the partnership and disperse the funds appropriately.

E. AIMCO’S INVOLVEMENT IN THE PARTNERSHIP

AIMCO is a publicly traded real estate investment trust (“REIT”) which owns, acquires, develops and manages multifamily apartment buildings. In 1997, AIMCO and its affiliates acquired the various NHP entities through a series of integrated transactions. AIMCO first purchased a controlling interest in the property management company, NHP and thereafter merged it with' a wholly owned subsidiary. AIMCO also acquired NHP’s real estate assets through its purchase of 100% of the stock of NHP Partners, Inc. for $54.8 million. By virtue of this [499]*499purchase, AIMCO became the parent company of NCHP.

F. SALE OF THE FOXCHASE PROPERTY

After AIMCO acquired NHP, officers of the two companies met in the first quarter of 1997 to negotiate a value for the real property owned by the limited partners affiliated with NHP, including FAA. After negotiations, the officers from AIMCO and NHP valued the Foxchase Property at $110,268,270.00 (inclusive of outstanding indebtedness).

Four months later, the real estate appraiser Aaron & Wright prepared an independent appraisal of the Foxchase Property. The purpose of the appraisal was “to estimate the market value” of the Foxchase Apartments over the next twelve months. The appraised value, $110,000,000.00, was similar to the value negotiated between NHP and AIMCO.

On August 12, 1997, AIMCO published a PPM in which it offered to purchase any and all outstanding limited partnership interests in FAA. AIMCO disclosed that NHP was a subsidiary to AIMCO and NHP would sell the Foxchase Property to AIMCO if it acquired enough interests (51%) to approve the sale. AIMCO disclosed that it would purchase the Foxchase Property for $110,268,-270.00. AIMCO offered limited partners the liquidation value of their interests based upon the $110,268,270.00 negotiated value and the Aaron & Wright appraised value.

By December 1, 1997, limited partners in the Foxchase I1 Property had tendered 262 units representing 49.26% of the total outstanding Percentage Interests and limited partners in the Foxchase II Property had tendered 8.125 units, representing 3.38% of the total outstanding Percentage Interests. Accordingly, AIMCO had obtained approximately 52.4% of the limited partnership interests. Thereafter, AIMCO and NHP executed the Twenty-Eighth Amendment to the Partnership.

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193 F.R.D. 496, 2000 U.S. Dist. LEXIS 7430, 2000 WL 703815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kogan-v-aimco-fox-chase-lp-mied-2000.