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Taubman Centers Inc – ‘SC 14D9/A’ on 7/8/03 re: Taubman Centers Inc – EX-99

On: Tuesday, 7/8/03, at 8:31am ET · Accession #: 898822-3-696 · File #: 5-42862

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 7/08/03  Taubman Centers Inc               SC 14D9/A              2:104K Taubman Centers Inc               Wachtell Lipton… Katz/FA

Amendment to Tender-Offer Solicitation/Recommendation Statement — Schedule 14D-9
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 14D9/A   Amendment No. 38                                       4     12K 
 2: EX-99       Brief of Appellants Filed by Taubman July 7, 2003     71    145K

EX-99 — Brief of Appellants Filed by Taubman July 7, 2003
Exhibit Table of Contents

Page	(sequential)	\|	(alphabetic)	Top
			Alternative Formats (Word, et al.) Acquisition, Directly or Indirectly, by Any Person Of, The A. Nature of the Case Argument A. The Purpose of the Act: The Act Is an Anti-Takeover Law that Gives Shareholders the Power to Respond Collectively to Hostile Raiders A. The Taubman UPREIT B. Course of Proceedings B. SPG's Initial Offer Conclusion C. SPG's Motion for a Preliminary Injunction C. The Undisputed Facts: No Member of the Taubman Family Acquired Ownership of, or Acquired the Power to Direct the Exercise of the Voting Power with Respect to, Any Other Family Member's Shares C. The Voting Agreements D. Disposition in the Court Below Defendants have adequately demonstrated that they will suffer irreparable harm which outweighs any potential harm to Simon if a stay is not granted Disclosure of Corporate Affiliations D. SPG's Tender Offer E. SPG's Argument that the Act Incorporates a "Deemer" Provision from the Regulations Adopted Under the Williams Act Is Wrong E. Stay of Injunction Pending Appeal E. The Bylaw Amendment F. Termination of the Voting Agreements III. The District Court Improperly Enjoined the Nonparty Shareholder-Signatories of the Voting Agreements from Voting Their Shares After the Voting Agreements Were Terminated I. Standard of Review IV. SPG Has No Standing to Bring an Action for an Alleged Violation of the Control Share Acquisitions Act Because a Hostile Tender Offeror Is Not in the Class of Persons Protected By the Act Jurisdictional Statement Statement in Support of Oral Argument Statement of Facts Statement of Issues Presented for Review Statement of the Case Summary of Argument Table of Authorities The Acquisition, Directly or Indirectly, by Any Person Of VI. The District Court Erred in Granting a Preliminary Injunction Because the Balance of Equities Weighs in Favor of Defendants, Not SPG 3. The District Court's Misinterpretation of the Act Will Preclude Shareholders from Responding Collectively to Hostile Raiders and Will Undermine Corporate Democracy
1	1st Page - Filing Submission
2	Disclosure of Corporate Affiliations
7	Table of Authorities
11	Statement in Support of Oral Argument
12	Jurisdictional Statement
13	Statement of Issues Presented for Review
16	Statement of the Case
"	A. Nature of the Case
18	B. Course of Proceedings
20	C. SPG's Motion for a Preliminary Injunction
21	D. Disposition in the Court Below
23	E. Stay of Injunction Pending Appeal
24	Statement of Facts
"	A. The Taubman UPREIT
26	B. SPG's Initial Offer
"	C. The Voting Agreements
28	D. SPG's Tender Offer
29	E. The Bylaw Amendment
30	F. Termination of the Voting Agreements
31	Summary of Argument
34	Argument
"	I. Standard of Review
35	A. The Purpose of the Act: The Act Is an Anti-Takeover Law that Gives Shareholders the Power to Respond Collectively to Hostile Raiders
38	The Acquisition, Directly or Indirectly, by Any Person Of
41	C. The Undisputed Facts: No Member of the Taubman Family Acquired Ownership of, or Acquired the Power to Direct the Exercise of the Voting Power with Respect to, Any Other Family Member's Shares
52	3. The District Court's Misinterpretation of the Act Will Preclude Shareholders from Responding Collectively to Hostile Raiders and Will Undermine Corporate Democracy
55	E. SPG's Argument that the Act Incorporates a "Deemer" Provision from the Regulations Adopted Under the Williams Act Is Wrong
60	III. The District Court Improperly Enjoined the Nonparty Shareholder-Signatories of the Voting Agreements from Voting Their Shares After the Voting Agreements Were Terminated
63	IV. SPG Has No Standing to Bring an Action for an Alleged Violation of the Control Share Acquisitions Act Because a Hostile Tender Offeror Is Not in the Class of Persons Protected By the Act
69	VI. The District Court Erred in Granting a Preliminary Injunction Because the Balance of Equities Weighs in Favor of Defendants, Not SPG
"	Defendants have adequately demonstrated that they will suffer irreparable harm which outweighs any potential harm to Simon if a stay is not granted
70	Conclusion

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 No. 03-1610
==============================================================================  
  IN THE
UNITED STATES COURT OF APPEALS
 FOR THE SIXTH CIRCUIT
--------------------------------------------------  

 SIMON PROPERTY GROUP, INC., and
SIMON PROPERTY ACQUISITIONS, INC.,
 PLAINTIFFS-APPELLEES,

v.

TAUBMAN CENTERS, INC., A. ALFRED TAUBMAN, ROBERT S. TAUBMAN,  
LISA A. PAYNE, GRAHAM T. ALLISON, PETER KARMANOS, JR.,  
WILLIAM S. TAUBMAN, ALLAN J. BLOOSTEIN, JEROME A. CHAZEN, 
and S. PARKER GILBERT,  
DEFENDANTS-APPELLANTS.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN
 SOUTHERN DIVISION

------------------------------------------  
 PROOF BRIEF OF APPELLANTS
------------------------------------------  

Joseph Aviv (P 30014)             I.W. Winsten (P 30528)                
Bruce L. Segal (P 36703)          Raymond W. Henney (P 35860)           
Matthew F. Leitman (P 48999)      Honigman  Miller  Schwartz  and       
Miro Weiner & Kramer              Cohn, LLP                             
Suite 100                         2290 First National Building          
38500 Woodward Avenue             Detroit, Michigan 48226-3583          
Bloomfield   Hills,   Michigan    Telephone: (313) 465-7000             
48303-0908                                                              
Telephone: (248) 258-1207                                               
Facsimile:  (248) 646-4021                                              
COUNSEL FOR APPELLANTS

OF COUNSEL                                                              

Wachtell, Lipton, Rosen & Katz                                          
51 West 52nd Street                                                     
New York, New York 10019                                                

 ORAL ARGUMENT REQUESTED

==============================================================================  

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DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

      Pursuant to 6th Cir. R. 26.1, Defendant-appellant  Taubman Centers,  Inc.,
makes the following disclosure:                                                 

      1.  Is  said  party  a  subsidiary  or  affiliate  of  a  publicly   owned
corporation? NO.                                                                

If the answer is YES,  list below the  identity  of the  parent  corporation  or
affiliate and the relationship between it and the named party:                  

      2. Is there a publicly owned corporation,  not a party to the appeal, that
has a financial interest in the outcome? YES.                                   

If the answer is YES,  list the identity of such  corporation  and the nature of
the financial interest:                                                         

      Westfield  America,  Inc., a corporation  controlled by Westfield  America
Trust, an Australian real estate company, together with Plaintiffs-appellees, is
a joint tender offeror in an attempted takeover of Taubman Centers,  Inc., which
attempted takeover is the subject of this litigation.                           

--------------------------------    -----------------------------               
(Signature of Counsel)                         (Date)                           

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 TABLE OF CONTENTS

                                                                  PAGE

Disclosure of Corporate Affiliations......................................i     

Table of Authorities.....................................................vi     

Statement in Support of Oral Argument....................................xi     

Jurisdictional Statement..................................................1     

Statement of Issues Presented for Review..................................2     

Statement of the Case.....................................................5     

A.  Nature of the Case...............................................5

B.  Course of Proceedings............................................7

C.  SPG's Motion for a Preliminary Injunction........................9

D.  Disposition in the Court Below..................................10

E.  Stay of Injunction Pending Appeal...............................12

Statement of Facts.......................................................13     

A.  The Taubman UPREIT..............................................13

B.  SPG's Initial Offer.............................................15

C.  The Voting Agreements...........................................15

D.  SPG's Tender Offer..............................................17

E.  The Bylaw Amendment.............................................18

F.  Termination of the Voting Agreements............................19

Summary of Argument......................................................20     

Argument.................................................................23     

I.  Standard of Review..............................................23

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II. The Alignment of a Group of  Shareholders  Is Not a "Control      
Share  Acquisition":  The District Court Improperly Enjoined  
A. Alfred  Taubman and Other  Members of the Taubman  Family  
from  Voting  Their   Previously-Owned  Stock  Based  on  an  
Erroneous  Interpretation of the Control Share  Acquisitions  
   Act............................................................24

A.  The   Purpose   of   the   Act:   The   Act   Is  an      
Anti-Takeover Law that Gives  Shareholders the Power  
       to Respond Collectively to Hostile Raiders.................24

B.  The Language of the Act: The Act Is Triggered by an       
Acquisition  of Ownership of, or the  Acquisition of  
the Power to  Direct the  Exercise of  Voting  Power  
with  Respect   to,  "Control   Shares";  a Person's  
       Previously-Owned  Shares  Are Not  "Control  Shares".......26

C.  The  Undisputed  Facts:  No  Member  of  the Taubman      
Family  Acquired   Ownership   of, or  Acquired  the  
Power to Direct  the Exercise  of the  Voting  Power  
with   Respect  to,   Any  Other   Family   Member's  
       Shares.....................................................30

D.  The   Error   Below:    The   District   Court   Has      
Misinterpreted  the Act as a Law of Forfeiture  that  
Strips  Shareholders  of the  Right  to  Vote  Their  
Previously-Owned   Shares   Whenever   Two  or  More  
Shareholders  Unite  to  Oppose a  Hostile  Takeover  
Regardless   of   Whether   There   Has   Been   Any  
       Acquisition of Voting Power................................33

1.  The Mere Presence of a Nonbinding  Agreement      
or  Understanding  Among  Shareholders  with  
Respect  to  Voting  Their  Previously-Owned  
Shares Does  Not Trigger the Act; There Must  
Be  an Actual  Acquisition  by  a  Person of  
Either  Ownership of, or the Power to Direct  
           the Voting with Respect to, Another's Shares...........35

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2.  The  District Court's Interpretation  of the      
the Act Is  Contrary  to  the  Basic  Maxims  
           of Statutory Construction..............................39

3.  The  District Court's  Misinterpretation  of      
the  Act  Will  Preclude  Shareholders  from  
Responding Collectively to  Hostile  Raiders  
           and Will Undermine Corporate Democracy.................41

E.  SPG's Argument that the Act  Incorporates a "Deemer"      
Provision  from the  Regulations  Adopted  Under the  
       Williams Act Is Wrong......................................44

F.  Even if the  Formation of a Group  Could,  in and of      
Itself, Be a Control Share Acquisition,  the Taubman  
Family as a "Group"  Received  Their  Series B Stock  
from  the  Company  in a  Transaction  that  Is  Not  
       Within the Act.............................................48

III. The  District   Court   Improperly   Enjoined  the  Nonparty       
Shareholder-Signatories   of  the  Voting   Agreements  from  
Voting  Their  Shares  After  the  Voting   Agreements  Were  
   Terminated.....................................................49

IV. SPG Has No  Standing  to  Bring  an  Action  for an  Alleged      
Violation of the Control  Share  Acquisitions  Act Because a  
Hostile  Tender  Offeror  Is  Not in the  Class  of  Persons  
   Protected By the Act...........................................52

V. The  District  Court  Improperly  Enjoined  the Company from     
Enforcing a Bylaw  Intended to Provide a Reasonable  Process  
for  Scheduling   Special  Meetings  of  Shareholders;   the  
Amendment  Was Not  Even a  Subject  of SPG's  Motion  for a  
   Preliminary Injunction.........................................54

VI. The   District   Court  Erred  in  Granting  a   Preliminary      
Injunction  Because the Balance of Equities  Weighs in Favor  
   of Defendants, Not SPG.........................................58

Conclusion..............................................................59      

iv

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Certificate of Compliance with Rule 32(a)                                       

Certificate of Service                                                          

Designation of Appendix Contents                                                

Addendum:    Relevant Statutes, Official Comments, and                          
Unpublished Decision                                  

          Michigan Control Share Acquisitions Act..............A-1

Official Comments to Indiana Control          
           Share Acquisitions Chapter...........................A-10

ATLANTIS GROUP, INC. V. ALIZAC PARTNERS,      
No. 1:90-CV-937, slip op. (W.D. Mich.         
           Dec. 5, 1991) .......................................A-35

 v

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TABLE OF AUTHORITIES

CASES                                                                           

ALEMITE MFG. CORP. V. STAFF, 42 F.2d 832 (2d Cir. 1930)..................51     

AMP INC. V. ALLIED SIGNAL CORP., 168 F.3d 649 (3d Cir.                          
1999).................................................................53  

ATLANTIS GROUP, INC. V. ALIZAC PARTNERS, No. 1:90-CV-937,                       
slip op. (W.D. Mich. Dec. 5, 1991)................................28, 29  

CALVARY HOLDINGS, INC. V. CHANDLER, 948 F.2d 59 (1st Cir.                       
1991).................................................................32  

CITIZENS FOR PRETRIAL JUSTICE V. GOLDFARB, 327 N.W.2d 910                       
(Mich. 1982)..........................................................52  

COAL OPERATORS & ASSOCS., INC. V. BABBITT, 291 F.3d 912                         
(6th Cir. 2002).......................................................52  

CTS CORP. V. DYNAMICS CORP. OF AMERICA, 481 U.S. 69 (1987).......25, 41, 44     

DETROIT FIRE FIGHTERS ASS'N V. CITY OF DETROIT, 537                             
N.W.2d 436 (Mich. 1995)...............................................52  

ECCLESTONE V. INDIALANTIC, INC., 29 N.W.2d 679 (Mich.                           
1947).................................................................38  

FLEMING V. INTERNATIONAL PIZZA SUPPLY CORP., 676 N.E.2d                         
1051 (Ind. 1997)......................................................28  

GRANNY GOOSE FOODS, INC. V. TEAMSTERS LOCAL NO. 70, 415                         
U.S. 423 (1974).......................................................51  

HADIX V. JOHNSON, 182 F.3d 400 (6th Cir. 1999)...........................23     

HERITAGE BANK V. REDCOM LAB., INC., 250 F.3d 319 (5th                           
Cir. 2001)............................................................55  

vi

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IN RE MCI TELECOMM. COMPL., 596 N.W.2d 164 (Mich. 1999)..................40     

KLAUS V. HI-SHEAR CORP., 528 F.2d 225 (9th Cir. 1975)....................51     

MENTOR GRAPHICS CORP. V. QUICKTURN DESIGN SYSTEMS INC.,                         
728 A.2d 25 (Del. Ch.), AFF'D ON OTHER GROUNDS,                           
QUICKTURN DESIGN SYSTEMS INC. V. SHAPIRO, 721 A.2d 1281                   
(Del. 1998)...................................................55, 56, 57  

MICHIGAN BELL TEL. CO. V. ENGLER, 257 F.3d 587 (6th Cir.                        
2001).................................................................58  

NIXON V. KENT COUNTY, 76 F.3d 1381 (6th Cir. 1996).......................23     

SEC V. SAVOY INDUS., INC., 587 F.2d  1149 (D.C. Cir. 1978)...............45     

SNELLMAN V. RICOH CO., 836 F.2d 528 (Fed. Cir. 1987).....................55     

TRYC V. MICHIGAN VETERANS' FACILITY, 545 N.W.2d 642                             
(Mich. 1996)..........................................................39  

UNITED STATES V. O'HAGAN, 521 U.S. 642 (1997)............................44     

YOUNG V. GENERAL ACCEPTANCE CORP., 770 N.E.2d 298 (Ind.                         
2002).................................................29, 37, 38, 39, 48  

ZENITH RADIO CORP. V. HAZELTINE RESEARCH, INC., 395 U.S.                        
100 (1969)............................................................51  

STATUTES                                                                        

15 U.S.C.ss.78c(a)(9)....................................................40     

15 U.S.C.ss.78m(d)...................................................44, 45     

15 U.S.C.ss.78m(d)(3)....................................................40     

15 U.S.C.ss.78m(e).......................................................44     

15 U.S.C.ss.78m(g)(3)....................................................40     

 vii

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15 U.S.C.ss.78n(d)...................................................44, 45     

15 U.S.C.ss.78n(e).......................................................45     

15 U.S.C.ss.78n(f).......................................................45     

28 U.S.C.ss.1292(a)(1)....................................................1     

28 U.S.C.ss.1332(a).......................................................1     

Ind. Code ss.23-1-17-5....................................................28    

Mich. Comp. Laws ss.450.1790-.1799..................................xi, 6       

Mich. Comp. Laws ss.14.302(b).............................................39    

Mich. Comp. Laws ss.205.256(k)............................................39    

Mich. Comp. Laws ss.287.571(j)............................................40    

Mich. Comp. Laws ss.328.215(2)............................................40    

Mich. Comp. Laws ss.400.272(c)............................................40    

Mich. Comp. Laws ss.442.311(h)............................................40    

Mich. Comp. Laws ss.442.321(e)............................................40    

Mich. Comp. Laws ss.445.2051(b)...........................................40    

Mich. Comp. Laws ss.450.1108(2)...........................................40    

Mich. Comp. Laws ss.450.1790(2)...........................................25    

Mich. Comp. Laws ss.450.1791(1)...................................25, 27, 36    

Mich. Comp. Laws ss.450.1791(2)...........................................47    

Mich. Comp. Laws ss.450.1791(4)(c)....................................38, 39    

Mich. Comp. Laws ss.450.1792(a)...........................................41    

Mich. Comp. Laws ss.450.1794..............................................26    

Mich. Comp. Laws ss.450.1798..............................................26    

  viii

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Mich. Comp. Laws ss.450.1798(1)...........................................25    

Mich. Comp. Laws ss.450.1798(2)(b)........................................40    

Mich. Comp. Laws ss.691.1571(k)...........................................40    

Mich. Comp. Laws ss.8.3a..................................................40    

Official Comments to Ind. Code ss.23-1-42-1 (West 1989)...............27, 28    

Official Comments to Ind. Code ss.23-1-42-3 (West 1989)...............38, 41    

REGULATIONS                                                                     

17 C.F.R. 240.13d-3(a)...................................................32     

17 C.F.R. 240.13d-4..................................................17, 32     

17 C.F.R. 240.13d-5(b)(1)................................................45     

RULES                                                                           

E.D. Mich. LR 7.1(c)(2)..................................................54     

Fed. R. Civ. P. 12(b)(6)..................................................8     

Fed. R. Civ. P. 65(a)(1).................................................51     

Fed. R. Civ. P. 7(b)(1)..................................................54     

OTHER AUTHORITIES                                                               

MICHIGAN CORPORATION LAW & PRACTICE......................................50     

Peter M. Fass et al., REAL ESTATE INVESTMENT TRUSTS                             
HANDBOOK (2003 ed. West Group 2002)...................................13  

Stephen H. Schulman et al., MICHIGAN CORPORATION LAW &                          
PRACTICE (2003).......................................................25  

  ix

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 STATEMENT IN SUPPORT OF ORAL ARGUMENT

      This   case   involves   an   effort   by  a   hostile   tender   offeror,
Plaintiff-appellee    Simon   Property    Group,    Inc.,   to    disenfranchise
Defendant-appellant  A. Alfred Taubman,  the founder and largest  shareholder of
Taubman  Centers,   Inc.,  as  well  as  members  of  his  family  and  nonparty
shareholders,  to preclude  them from voting on matters that will  determine the
fate of the company that Mr.  Taubman  founded.  The  principal  issue on appeal
involves the statutory  interpretation  of the Control Share  Acquisitions  Act,
Mich. Comp. Laws ss.ss.450.1790-.1799. The district court interpreted the act IN
an unprecedented manner that would strip shareholders of the power to vote their
own shares whenever they collectively  announce their intent to oppose a hostile
tender offer. The outcome of this appeal will significantly impact the rights of
the parties,  as well as the  shareholders  of other  publicly  traded  Michigan
corporations.  Appellants  respectfully  submit that oral  argument will greatly
assist the Court in its review of the act,  the issues on appeal,  and the facts
in the record.                                                                  

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JURISDICTIONAL STATEMENT

      Subject matter jurisdiction in the district court was founded on diversity
of citizenship under 28 U.S.C. ss.1332(a). The matter in controversy exceeds the
sum or value of $75,000,  exclusive of interest and costs,  and  Plaintiffs  and
Defendants are citizens of different States.                                    

      Jurisdiction in this Court is founded on 28 U.S.C. ss.1292(a)(1).  This is
an appeal from an  interlocutory  order of the United States  District Court for
the Eastern District of Michigan,  The Honorable  Victoria A. Roberts presiding,
issued on May 8, 2003, granting Plaintiffs a preliminary injunction.            

     Defendants-appellants timely filed their Notice of Appeal on May 9, 2003.

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STATEMENT OF ISSUES PRESENTED FOR REVIEW  

      1.   Whether   the  district   court   wrongfully   enjoined  the  largest
shareholder  of  Taubman  Centers,  Inc.,  A.  Alfred  Taubman,  as  well as Mr.
Taubman's children and partners,  from voting their  previously-owned  shares of
Taubman Centers stock,  representing 30.7% of the company's voting power, on the
ground that their collective alignment against a hostile takeover was a "control
share acquisition" of their previously-owned shares?                            
Defendants-appellants say:    Yes.                                  

      2.   Whether      the     district     court      wrongfully      enjoined
shareholder-signatories of voting agreements entered into with Robert S. Taubman
in November 2002 from voting their own shares of Taubman  Centers  stock,  which
represent  2.9% of the  company's  voting  power,  despite  the fact that  these
signatories  are not parties to this action and despite the fact that the voting
agreements were terminated?                                                     
Defendants-appellants say:    Yes.                                  

      3.   Whether,  even if the district court's  interpretation of the Control
Share  Acquisitions  Act were  correct,  it  nevertheless  should have  rejected
Plaintiffs' claims under the act because the members of the Taubman family, as a
"group,"                                                                        

2 

EX-99 14th Page of 71 TOC 1st Previous Next ↓Bottom Just 14th
acquired their original-issue  shares in 1998 in a transaction  that was  exempt
from the act?                                                                   
Defendants-appellants say:    Yes.                                  

      4.   Whether  the district court should have rejected  Plaintiffs'  claims
under  the  Control  Share   Acquisitions  Act  for  lack  of  standing  because
Plaintiffs,  as  hostile  tender  offerors,  are  not in the  class  of  persons
protected by the act and therefore may not sue to enforce the act?              
Defendants-appellants say:    Yes.                                  

      5.   Whether the district court  improperly  enjoined Taubman Centers from
enforcing  a  bylaw  amendment  intended  to  provide  an  orderly  process  for
scheduling shareholders' meetings where the amendment was never made the subject
of Plaintiffs' motion for a preliminary injunction,  and where the amendment was
adopted  by the board of  directors,  in the  proper  exercise  of its  business
judgment, to fill a gap in the company's bylaws, which permitted shareholders to
call a special  meeting,  but did not specify that the board would determine the
time, place, and record date for the meeting?                                   
Defendants-appellants say:    Yes.                                  

3 

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      6.   Whether the district court erred in finding that the balance of harms
favored  the grant of a  preliminary  injunction  because the  injunction  would
permit  Plaintiffs  to take over  Taubman  Centers in a manner that could not be
undone if Defendants prevail at trial?                                          
Defendants-appellants say:    Yes.                                  

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 STATEMENT OF THE CASE

 A. NATURE OF THE CASE

      This  is  an  appeal  of  an  extraordinary  preliminary  injunction  that
disenfranchises   shares   representing   33.6%   of   the   voting   power   of
Defendant-appellant  Taubman  Centers,  Inc., a Michigan  corporation  ("Taubman
Centers" or the  "Company").  The action in the court below is part of an effort
by  Plaintiffs-appellees,  Simon  Property  Group,  Inc.,  and  its  acquisition
subsidiary, Simon Property Acquisitions, Inc. (collectively, "SPG"), to effect a
hostile takeover of Taubman Centers.  After SPG's takeover offer was rejected as
inadequate by the Company's board of directors (the "Board"), SPG commenced this
action in the United States District Court for the Eastern  District of Michigan
on  December 5, 2002.  The action,  brought  against  Defendants-appellants,  A.
Alfred  Taubman (the  founder of the Company who owns or controls  approximately
30% of its voting power), the Company,  and the members of the Board,  sought to
enjoin Mr. Taubman and members of his family from voting to oppose SPG's hostile
takeover of Taubman Centers.  (SEE, e.g., R.1, Compl. P. 52, J.A. ___.) The case
was assigned to The Honorable Victoria A. Roberts.                              

      The  district  court  granted  SPG's motion for a  preliminary  injunction
because the members of the Taubman  family,  owning or controlling  30.7% of the
Company's voting power,  publicly announced their collective opposition to SPG's

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hostile  takeover,  and because  Defendant-appellant  Robert S. Taubman,  alone,
entered  into  voting  agreements  with three  shareholders  owning  2.9% of the
Company's  voting power,  although the voting  agreements  were  terminated long
before the district court granted the  preliminary  injunction.  The preliminary
injunction rests on an unfounded and unprecedented interpretation of the Control
Share  Acquisitions  Act, Mich.  Comp. Laws  ss.ss.450.1790-.1799  (the "Control
Share  Acquisitions  Act" or the  "Act")  (Addendum  at A-1 to A-9),  a  statute
designed to protect  Michigan  companies  from hostile  takeovers.  The district
court    construed   this    anti-takeover    legislation   to   authorize   the
disenfranchisement  of  longstanding  shareholders  who  collectively  decide to
oppose a hostile tender offer.                                                  

      The district court's  interpretation of the Act, if allowed to stand, will
undermine  shareholder  democracy  well beyond the takeover  context.  Under the
district court's interpretation,  if two longstanding shareholders,  each owning
11% of a company's  voting  power,  collectively  agree to support or oppose any
matter  of   company   business,   they  will  lose  the  right  to  vote  their
previously-owned  shares, a punitive  consequence that the Michigan  Legislature
never could have intended.  The district court's  interpretation of the Act will
deter shareholders of Michigan  corporations from communicating with one another
concerning  important  corporate  matters  for fear of losing  the right to vote
their stock.                                                                    

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      Equally  unprecedented,  the district  court also  enjoined the Board from
enforcing  a  bylaw  amendment  intended  to  provide  an  orderly  process  for
scheduling special meetings of shareholders by filling in a gap in the Company's
existing bylaws. SPG did not even move for this relief.                         

B. COURSE OF PROCEEDINGS

      SPG's complaint focused primarily on certain actions taken by the Board in
1998,  four years before SPG ever  acquired any share of Company  stock.  In its
principal  claim, SPG alleged that the Taubman family members' receipt of shares
of voting stock in 1998, representing approximately 30.7% of the voting power of
the Company (the "30.7% Shares"),  was a "control share  acquisition"  under the
Control Share  Acquisitions Act. (SEE Compl.,  "First Claim For Relief" at P. P.
53-61,  J.A. ___.) Under the Act, if the  original-issue  shares received by Mr.
Taubman  and the other  members of his family  were,  as SPG  alleged,  "control
shares" acquired in a "control share acquisition," the shares could not be voted
without the prior approval of the  disinterested  shareholders.  (SEE ID. P. 43,
J.A. ___.)                                                                      

      In its "Second Claim For Relief," SPG alleged that,  when Robert  Taubman,
in response to SPG's  hostile  efforts,  entered  into  voting  agreements  (the
"Voting  Agreements")  with three  friends on November 14, 2002, he acquired the
power to vote their  shares,  equal to 2.9% of the  Company's  voting power (the
"2.9% Shares"),  in a "control share  acquisition."  (SEE ID. P. P. 62-71,  J.A.
___.) Although                                                                  

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SPG did not join the owners of these  shares as party  defendants,  SPG  claimed
that the 2.9%  Shares  could  not be voted  without  the prior  approval  of the
disinterested shareholders. (SEE ID. P. 70, J.A. ___.)                          

      In the  remaining  three claims for relief in its  complaint,  SPG alleged
various  breaches of fiduciary duty by the Board relating to both the 1998 stock
issuance and the Board's 2002  rejection of SPG's hostile  offer as  inadequate.
(SEE ID. P. P. 72-92, J.A. ___.)                                                

      On December 16,  2002,  Defendants  filed a motion to dismiss  SPG's First
Claim for Relief  under Fed. R. Civ.  P.  12(b)(6)  because  the  Control  Share
Acquisitions  Act  does not  apply  to  original-issue  shares  received  from a
corporation.  (R.6, Defs.' Mot to Dismiss,  J.A. ___.) In addition to responding
to the motion to dismiss,  SPG filed,  on December  26, 2002,  without  leave of
court,  a first amended  complaint,  adding to its First Claim for Relief a new,
alternative claim under the Control Share Acquisitions Act.                     
(R.19, First Am. Compl.P.P. 67-68, J.A. ___.)                                   

      Now, as well as claiming that the Taubman  family had acquired their 30.7%
Shares in a "control share  acquisition"  in 1998, SPG claimed that, in 2002, in
response to SPG's tender offer,  the members of the Taubman family then formed a
"group,"  with the holders of the 2.9% Shares.  SPG further  claimed that all of
the shares previously held by each member of the Taubman family were acquired by

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the new  "group"  in a new  "control  share  acquisition,"  such that the family
members  should no longer be permitted to vote their own shares.  (SEE ID. P. P.
30-32, 67-68, J.A. ___.) SPG also added allegatioNS  challenging an amendment to
the Company's  bylaws intended to provide an orderly process for calling special
meetings of shareholders, adopted by the Board on December 20, 2002. (SEE ID.   
P.P. 55-56, 84, 86, J.A. ___.)                                                  

      On January 22,  2003,  the  district  court  issued an Order  granting the
Defendants'  motion to dismiss SPG's claim that the Taubman  family's receipt of
the 30.7% Shares in 1998 was a control share  acquisition.  (R.33,  Order,  J.A.
___.)                                                                           

 C. SPG'S  MOTION FOR A  PRELIMINARY  INJUNCTION

      On January  31,  2003,  SPG filed a motion for a  preliminary  injunction.
(R.37, SPG Pls.' Mot. for a Prelim.  Inj.  ("SPG's Mot."),  J.A. ___.) SPG based
its motion on its new  "group"  theory  and sought to enjoin the  members of the
Taubman  family from voting their  shares.  (R.35,  Mem. of Law in Supp.  of SPG
Pls.' Mot. for a Prelim. Inj. ("SPG Mem.") at 20-24, J.A. ___.)                 

     SPG  did  not  request  in  its  motion  or   supporting   memoranda  any
preliminary  injunction with respect to the bylaw  amendment.  (SEE R.37, SPG's 
Mot at 2,  J.A. ___;  SPG Mem.  at 25,  J.A.  ___;  R.70,  Reply Mem. of Law in 
Supp.  of SPG Pls.' Mot.  for a Prelim.  Inj.  ("SPG  Reply  Mem.") at 15, J.A. 
___.)  Indeed,  in its  memoranda,  SPG listed and  specifically  described the 
"issues  presented,"  none of                                                   

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which made any mention of the bylaw amendment.  (See SPG Mem. at viii, J.A. ___;
SPG Reply Mem. at x-xi, J.A. ___.)                                              

 D. DISPOSITION IN THE COURT BELOW

      On May 1, 2003,  the district  court  issued and  published on the court's
official website an Opinion and Order (the "Order")  addressing SPG's motion for
a preliminary injunction.  (R.87, Order, J.A. ___.) The court dismissed for lack
of  standing  SPG's  claims of breach of  fiduciary  duty  based on the  Board's
actions in 1998.  (SEE ID. at 1-2,  41, J.A.  ___.) The court also held that SPG
had failed to rebut the presumption  that the Board had "acted in good faith and
in accordance  with its fiduciary  obligations in rejecting the  Simon/Westfield
offer in 2003." (ID. at 2, J.A. ___.)                                           

      Nevertheless, the court held that "[t]he 33.6% controlling block of shares
obtained by  Defendant  Robert  Taubman via voting  agreements  constitutes  the
formation of a group under the Michigan  Control Share  Acquisitions  Act," (SEE
ID. at 2,  J.A.  ___),  and the  court  enjoined  the  voting  of "those  shares
represented in the voting  agreements."  (ID. at 42, J.A. ___.) In a footnote to
the Order, District Judge Roberts suggested that she did not intend to sterilize
the Taubman family members' previously-owned 30.7% Shares, ruling as follows:   

  Except as  otherwise  limited  by  the  requirements  of the
  Michigan Control Shares Acquisitions Act, the parties to the
  voting agreements are not  precluded  from  voting any other
  shares  that they then or now hold which  were not  included
in the voting  agreements.                                

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THE  TAUBMANS  ARE,  likewise,  ENTITLED  TO VOTE ANY SHARES THAT     
THEY HELD PRIOR TO ROBERT TAUBMAN'S  VOTING  AGREEMENT  CONTRACTS     
or that they have since acquired.                                     

(ID. at 42 n.26, J.A. ___ (emphasis added).)                                    

      The court also  enjoined  enforcement  of the Company's  bylaw  amendment.
Despite SPG's never having moved for any relief as to the bylaw  amendment,  the
court ruled that the Board had "not offered a compelling  justification" for the
amendment. (ID. at 35, J.A. ___.)                                               

      On May 2, 2003,  after  substantial  publicity and disagreement as to what
the court ruled, the court withdrew the Order from the district court's official
website. Then, on May 8, 2003, Judge Roberts issued an Amended Opinion and Order
(the "Amended Order") that  "supercede[d]"  her May 1, 2003,  Order.  (R.89, Am.
Order at 1, J.A.  ___.) The  Amended  Order  contains  a  substantially  revised
discussion with respect to SPG's Control Share  Acquisitions  Act claim,  but it
made no substantive  changes to the other parts of the initial  Order.  (SEE Am.
Order, J.A. ___.)                                                               

      In the Amended Order, the district court concluded that the Taubman family
formed a "group" when the family  members  announced  their  intention to oppose
SPG's tender offer, and that the group then "acquired `control shares' after its
formation,  empowering  the group to direct the  exercise of 33.6% of the voting
power with respect to issued and outstanding  shares." (ID. at 42-43, J.A. ___.)

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Judge  Roberts  ordered that "NONE of the 33.6%" shares of stock held by members
of the  Taubman  family  and  by  the  parties  to  the  then-terminated  Voting
Agreements  "can be voted." (ID. at 48, J.A. ___ (emphasis  added).)  Thus,  the
court enjoined  longstanding  shareholders  of Taubman Centers from voting their
shares in  opposition  to SPG's  hostile  takeover or with  respect to any other
matter subject to a shareholder vote.                                           
(SEE ID., J.A. ___.)                                                            

E. STAY OF INJUNCTION PENDING APPEAL

     On May 9, 2003,  Defendants filed a Notice of Appeal,  (SEE R.96,  Notice
of  Appeal,  J.A. ___),  and moved in the  district  court  for a stay  pending 
appeal.  (SEE R.90,  Defs.' Mots. to Suspend Inj. Pend.  Appeal,  J.A. ___.) On 
May 20, 2003,  the district  court issued an Order Granting Stay of Preliminary 
Injunction  (the "Stay  Order").  (SEE R.101,  Stay Order,  J.A. ___.)  Despite 
earlier having granted SPG's motion for a preliminary  injunction,  in granting 
the stay  pending  appeal,  the  district  court  found that  "Defendants  have 
adequately   demonstrated   that  they  will  suffer   irreparable  harm  which 
outweighs  any potential  harm to Simon if a stay is not  granted."  (ID. at 7, 
J.A.  ___.)  Accordingly,  the court found that "the  balance of harms weigh in 
favor of Defendants."  (ID. at 8, J.A. ___.)                                    

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STATEMENT OF FACTS

 A. THE TAUBMAN UPREIT

      Taubman  Centers  is  a  publicly  traded  Michigan  corporation  that  is
qualified  as a real  estate  investment  trust  ("REIT").  It was founded by A.
Alfred  Taubman to be an investment  partner in The Taubman Realty Group Limited
Partnership ("TRG"). (SEE R.55, Ex. 2 (Taubman Centers Prospectus dated Nov. 20,
1992 ("1992  Prospectus")) at 2-3, J.A. ___.) Taubman Centers' sole asset is its
partnership interest in TRG. TRG, in turn, is an operating partnership that owns
21  shopping  centers  and  engages in a full range of real  estate  activities,
including the acquisition, development, and management of shopping centers. (SEE
ID. at 1-2.)1                                                                   

      Taubman Centers' articles of incorporation include an ownership limit (the
"Ownership  Limit") that prohibits any person from owning more than 8.23% of the
value of Taubman Centers'  outstanding capital stock. (SEE R.55, Ex. 9 (Restated
Arts. of Incorp. of Taubman Centers ("Articles")),  art. III,  ss.ss.2(d)(ii)(a)
(p.15),  2(d)(i)  (pp.  11,  15),  J.A.  ___.) The  Ownership  Limit can only be
modified by an amendment to the Articles.  (SEE 1992  Prospectus at 80-82,  J.A.
___;  R.55, Ex. 10                                                              

___________                                                                     
1 TRG and Taubman Centers, together, formed an investment vehicle that has since
come to be known as an umbrella  partnership real estate  investment trust or an
"UPREIT." (SEE R.55, Ex. 1 (Peter M. Fass et al., REAL ESTATE  INVESTMENT TRUSTS
HANDBOOK  (2003 ed. West Group 2002)) at 697-98 & n.2, J.A.  ___.)              

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(1996 Proxy Statement) at 19-20,  J.A. ___.) This requires a two-thirds' vote of
the shareholders. (SEE Articles, art. III, ss.2(b) (p. 2), J.A. ___.)           

      In 1998, as part of an overall  restructuring  of Taubman Centers and TRG,
the  control  and  governance  of TRG was moved  from TRG (where it resided in a
committee of its partners) to the Taubman  Centers Board.  In light of the shift
in  governance,  the Board  created a new class of voting  stock,  the  Series B
Non-Participating  Convertible  Preferred  Stock (the  "Series B Stock"),  to be
issued to the partners of TRG to ensure that the partners would continue to have
a voice in the control and governance of TRG  proportionate  to their  ownership
interests  in  TRG.  The  Series  B Stock  was  allocated  to the TRG  partners,
including,  A. Alfred Taubman and other members of the Taubman family,  in equal
proportion to their  respective  partnership  interests,  enabling them "to vote
alongside of the  shareholders on matters  presented to the  shareholders of the
Corporation  for a vote." (SEE R.56,  Ex. 21 (Mins.  of Special Joint Meeting of
Bd. & Partnership  Comm.,  Aug. 17, 1998 ("1998  Mins.")) at 5, J.A. ___.)2 This
"flow-through" voting structure is common among UPREITs. (SEE R.56, Ex. 22 (Dep.
of SPG                                                                          

__________                                                                      
2 At the same time,  Taubman  Centers amended its articles of  incorporation  to
mandate that a majority of the Board must be  independent  of  management.  (SEE
Articles,  art.  III,  ss.2(c)(ii)(h)  (p. 10),  J.A. ___; 1998 Mins. at 7, J.A.
___.)                                                                           

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director G. William  Miller) at 67, J.A. ___;  R.56,  Ex. 23 (Decl.  of James J.
Hanks, Jr.) P. P. 6, 7, J.A. ___.)3                                             

B. SPG'S INITIAL OFFER

     SPG is the largest retail  shopping mall REIT in the United States,  with
249  shopping  centers.  (SEE  R.41,  SPG  2d  Am.  Compl. P. 1,  J.A. ___.)  On
October 16,  2002,  SPG  initiated  a proposal  to acquire all of the  publicly 
traded  stock of Taubman  Centers for $17.50 a share.  (SEE R.56,  57, Exs. 36, 
37 (letters  from David Simon to Robert  Taubman  dated Oct. 16 and 22,  2002), 
J.A. ___.)  On  October  28,  2002,  after  considering  the  advice  of  their 
financial  adviser,  Goldman  Sachs & Co., as to the  present  and  prospective 
value of the Company,  the Board  unanimously voted to reject SPG's unsolicited 
offer.  (SEE,  E.G.,  R.57, Ex. 39 (Mins. of Special  Meeting of Bd.,  Oct. 28, 
2002) at 3-4, J.A. ___.)                                                        

C. THE VOTING AGREEMENTS

     On November  14,  2002,  Robert S.  Taubman,  individually,  entered into
three voting agreements with three friends,  Max M. Fisher,  John Rakolta,  Jr. 
(and Mr.                                                                        

__________                                                                      
3  Thus,  A.  Alfred  Taubman,  who  holds  or  controls  an  approximately  30%
partnership  interest  in TRG  (through  several  entities  controlled  by him),
received  (through  these same  entities)  24,049,838  shares of Series B Stock,
equal to approximately 30% of the voting power of the Company.  (SEE R.53, Decl.
of Gerald R. Poissant P. 3, J.A.  ___.)                                         

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Rakolta's family members),  and Robert C. Larson.  (SEE R.57,  Ex. 41 (Schedule 
13D/A  filed  Nov.  15,  2002  ("November   Schedule   13D/A")),   at  Item  5, 
J.A. ___.)  Under the Voting  Agreements,  Robert  Taubman,  individually,  was 
conferred  the  power to vote the  shares of  common  stock and  Series B Stock 
owned by Messrs. Fisher,  Larson, and Rakolta,  roughly 2.9% of the outstanding 
shares of Taubman  Centers.  (SEE ID.,  J.A. ___.) As a result,  Robert Taubman 
had the  power to vote just over 5% of the  shares of common  stock.  (SEE ID., 
J.A. ___.)                                                                      

     As reported in the November  Schedule 13D/A,  Robert Taubman entered into
the Voting  Agreements "for the purposes of preventing an unsolicited  takeover 
of the Company."  (ID. at Item 4,  J.A. ___.) As also  reported,  with the 2.9% 
voting power given to him by the Voting  Agreements,  Robert Taubman,  together 
with the other members of the Taubman  family,  controlled  33.6% of the voting 
stock of the Company.  (SEE ID., J.A. ___.)                                     

      Notably,  no member of the Taubman  family  other than Robert  Taubman was
given the power to vote the 2.9% Shares covered by the Voting Agreements, and no
Taubman family member, including Robert Taubman,  acquired the power to vote any
other family member's shares. (SEE ID. at Item 5; J.A. ___.) Moreover, to ensure
that no one could  misconstrue  the November  Schedule 13D/A to suggest that any
member of the  Taubman  family  had  acquired  any  voting  or other  beneficial
interest  in any  other  family  member's  shares,  in the  Schedule  13D/A,  as

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expressly authorized by SEC Rule 13d-4, 17 C.F.R.  240.13d-4,  "[e]ach member of
the Taubman Family disclaim[ed] beneficial ownership of any shares . . . held by
any other member of the Taubman  Family."  (November  Schedule  13D/A at Item 5,
J.A. ___.)                                                                      

 D. SPG'S TENDER OFFER

      On December 5, 2002, SPG commenced a tender offer (the "Tender  Offer") to
buy all of the outstanding shares of common stock of Taubman Centers for $18 per
share. (SEE R.57, Ex. 43 (Tender Offer), J.A. ___.) The Tender Offer was subject
to a number of conditions,  including that the Ownership  Limit in the Company's
Articles since 1992 be removed.  (SEE ID. at 8-12, J.A. ___.)4 The same day, SPG
filed the present  action to strip the  members of the  Taubman  family of their
voting  rights so that they  could not vote  against  the  removal  of the stock
ownership limit. (SEE ID. at 10, J.A. ___;                                      
Compl., J.A. ___.)                                                              

      On December 10, 2002, the Board met with senior management, legal counsel,
and  Goldman,  Sachs & Co.  The  Board  determined  that the  tender  price  was
inadequate and that it was not the right time to sell the business. As disclosed

__________                                                                      
4 On January 15,  2003,  SPG brought in as its tender  offer  partner  Westfield
America,  Inc., a corporation  controlled by an Australian  real estate company,
increased  the tender offer price to $20 a share,  and  extended the  expiration
date of the Tender Offer.  In fact, SPG has extended the expiration  date of the
Tender Offer on five different occasions.  (SEE, E.G., R.95, Ex. A (SPG Schedule
14A Prelim. Proxy Statement dated May 12, 2003) at 2-3, J.A. ___.)              

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in the SEC Schedule  14D-9 filed by Taubman  Centers,  the Board  considered the
advice of  Goldman,  Sachs & Co. that the offer was  inadequate,  as well as the
Board's belief that a number of the Company's  properties are at early stages in
their  development  cycle and that the current  stock price does not reflect the
value of these assets or their  growth  potential.  (SEE R.57,  Ex. 46 (Schedule
14D-9 dated Dec. 11,  2002) at 14-16  (listing 13 reasons for  rejection),  J.A.
___.)                                                                           

E. THE BYLAW AMENDMENT

     On December 18, 2002,  counsel for the Board  recommended  that the Board
adopt an  amendment  to the  Company's  bylaws  to  enable  the Board to fairly 
regulate the process of calling a special  meeting if the  requisite 25% of the 
shareholders  requested a meeting.  (SEE R.90,  Br. in Supp.  of Defs.' Mot. to 
Suspend Inj.  Pend.  Appeal,  Ex. A (Mem.  to Bd. from  Counsel  dated Dec. 18, 
2002) at 2-3,  J.A. ___.)  Prior to the amendment,  the bylaws were  incomplete 
in that they permitted  shareholders  holding 25% of the voting power to call a 
special meeting,  but did not specify who would determine the time,  place, and 
record date for the  meeting.  (SEE  Supp. R.  ___,  letter from Bruce L. Segal 
to clerk  dated May 1,  2003,  with  marked  copy of  Restated  Bylaws,ss.1.03, 
J.A. ___.)5  Under the                                                          

__________                                                                      
5 This marked copy of the bylaws was furnished to the court on May 1, 2003,  two
months after the close of briefing, five weeks after oral argument, and the same
day as the district  court's initial  opinion,  when Judge Roberts's clerk asked
defense counsel to fax to chambers a copy of the bylaw amendment.               

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proposed bylaw, if the requisite number of shareholders  (unchanged from the old
bylaw)  request  a special  meeting,  the  Board  must,  within 10 days from the
receipt and  verification  of the  request,  fix a record date and set a meeting
date not sooner than 30 nor later than 90 days afterward. (SEE ID., J.A. ___.)  

     On December 20, 2002,  the Board met to consider the proposed  amendment.
The Board  reviewed  counsel's  memorandum  and received the further  advice of 
counsel that (i) the amendment  was  "intended  only to create an orderly Board 
controlled  process for holding a shareholder  meeting," (ii) the amendment was 
"not  intended to inhibit  the  shareholder  voting  process or the ability for 
the  shareholders  to  request  that  a  meeting  be  called,"  and  (iii)  the 
"provisions  are quite common and are the usual  mechanics  for  publicly  held 
companies  with respect to the holding of  meetings."  (R.90,  Ex. B (Mins.  of 
Meeting of Bd., Dec. 20, 2002) at 2-3,  J.A. ___.)  Following  discussion,  the 
Board adopted the proposed bylaw amendment.  (SEE ID. at 3, J.A. ___.)          

F. TERMINATION OF THE VOTING AGREEMENTS 

      On  January 28, 2003,  Robert Taubman and  the  other  signatories  to the
Voting  Agreements  terminated them. As of that date, the Voting Agreements were
no longer in force or  effect,  and  Robert  Taubman  no longer  has any  right,
agreement,  arrangement,  or  understanding  to vote or  direct  the  voting  of
anyone's                                                                        

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shares other than his own. (SEE R.57, Ex. 42 (Schedule 13D/A filed Jan. 28, 2003
("January  Schedule 13 D/A"), at Item 4, J.A. ___.)                             

      In reporting the termination of the Voting  Agreements, the members of the
Taubman family  reiterated that none of them ever owned or had the right to vote
any  other  family  member's  shares:                                           

Neither  in connection  with the  Voting  Agreements nor  at any time 
since  the Series B  Preferred shares  were  issued  in 1998  has any 
member  of  the  Taubman  Family  ever  acquired  or  possessed   the 
authority to vote any of the other members' shares. Moreover, neither 
in connection with the Voting Agreements  nor in any other connection 
since 1998 did any member of the Taubman Family acquire  any interest 
in or power over the Series B  Preferred shares or Common Stock owned 
by  any other  member of  the Taubman  Family and  there has  been no 
change  in any  of the  relationships between or among the members of 
the  Taubman Family  with respect  to either  the Series B  Preferred 
shares  or the  Common Stock since the Series B Preferred shares were 
issued in 1998.                                                       

(ID., J.A. ___.)                                                                

 SUMMARY OF ARGUMENT

ISSUE 1                                                                         

      The Control Share Acquisitions Act does not strip existing shareholders of
the right to vote their  previously-owned  shares when they  collectively  voice
their position on a corporate matter, such as a proposed takeover.  The Act only
applies to shares over which an  acquiring  person has acquired the actual power
in fact to direct  the vote.  Here,  no member of the  Taubman  family  has ever
acquired the power to direct the voting of any other family member's shares. The
district  court                                                                 

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erred in  enjoining  the  members of the Taubman  family  from voting  their own
individual,  previously-owned  shares (the 30.7%  Shares)  merely  because  they
jointly  announced  their  opposition  to the SPG hostile  takeover  and because
Robert S. Taubman alone entered into voting agreements with nonparty,  nonfamily
shareholders,  giving him alone the power to vote the 2.9% Shares.              

ISSUE 2                                                                         

      When an  existing shareholder  regains the power to vote his own shares in
his unfettered discretion,  these shares cease to be "control shares" subject to
the Act. Here, the unrefuted  evidence shows that,  after the voting  agreements
were  terminated,  no one other than the nonparty  owners of the 2.9% Shares had
the power to direct the voting of these shares. Accordingly,  the district court
should not have enjoined the voting of these shares.  Moreover, SPG did not name
the owners of the 2.9%  Shares as  party-defendants  or give them  notice of the
motion for a preliminary injunction.  Therefore, the district court never gained
jurisdiction over these shareholders and had no power to enjoin them from voting
their own shares.                                                               

ISSUE 3                                                                         

      Even if the district  court  were  correct  that the mere  formation  of a
"group"  may trigger the Act, it is  undisputed  that the Taubman  family,  as a
"group,"  received  their  shares (the 30.7%  Shares)  from the Company in 1998.
Because  the                                                                    

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acquisition of original-issue  shares is not a "control share acquisition" under
the Act,  the district  court  should not have  enjoined the voting of the 30.7%
Shares.                                                                         

ISSUE 4                                                                         

      The Act is an  anti-takeover  law  intended  to protect shareholders  from
hostile  raiders such as SPG. SPG is not in the class of plaintiffs that the Act
was intended to benefit,  and therefore it has no standing to sue under the Act.

ISSUE 5                                                                         

      A  party is  not  entitled to injunctive relief that it never requested in
its motion for a preliminary  injunction or supporting memoranda.  Here, SPG did
not move for any relief with respect to the bylaw amendment or even refer to the
bylaw in its "issues  presented."  Moreover,  the bylaw amendment was adopted by
the  Board  to fill a gap in the  Company's  existing  bylaws,  which  permitted
shareholders to call a special meeting, but did not specify that the Board would
determine  the time,  place,  and record date for the meeting.  The amendment is
consistent  with the  bylaws  of other  publicly-traded  companies  and has been
approved by the Chancery Court of Delaware,  even when adopted in the midst of a
takeover  contest.  Accordingly,  the district  court  should not have  enjoined
Taubman Centers from  implementing its bylaw amendment.                         

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ISSUE 6                                                                         

      The preliminary injunction destroys, rather than preserves, the status quo
pending  a trial on the  merits  because  it would  permit  SPG to take over the
Company in a manner that could not be undone if Defendants prevail at trial. The
district court explicitly  recognized this when it granted Defendants' motion to
suspend  the  injunction  pending  appeal  on the  ground,  among  others,  that
"Defendants have adequately  demonstrated that they will suffer irreparable harm
which  outweighs  any potential  harm to Simon if a stay is not  granted."  (Am.
Order at 7, J.A. ___.)                                                          

ARGUMENT  

I.

STANDARD OF REVIEW

      This Court  "review[s]  the  decisions  of the district  court  concerning
questions of statutory  interpretation  de novo." NIXON V. KENT COUNTY,  76 F.3d
1381, 1386 (6th Cir. 1996).  "`In determining  whether the district court abused
its  discretion [in granting a preliminary  injunction],  we review the district
court's  findings of fact for clear error and its legal  conclusions  DE NOVO.'"
HADIX V. JOHNSON, 182 F.3d 400, 404 (6th Cir. 1999) (citation omitted).         

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 II.

THE  ALIGNMENT  OF  A  GROUP  OF  SHAREHOLDERS  IS  NOT  A
"CONTROL   SHARE   ACQUISITION":    THE   DISTRICT   COURT
IMPROPERLY  ENJOINED A. ALFRED  TAUBMAN AND OTHER  MEMBERS
OF THE TAUBMAN  FAMILY FROM VOTING THEIR  PREVIOUSLY-OWNED
STOCK BASED ON AN ERRONEOUS  INTERPRETATION OF THE CONTROL
SHARE ACQUISITIONS ACT                                    

      The district court has interpreted the Control Share Acquisitions Act as a
law  of  forfeiture  that  strips  the  right  of  shareholders  to  vote  their
previously-owned  stock any time they collectively decide to oppose or support a
tender offer or any other corporate action.  This result is both antithetical to
the intent of the Act and unsupportable by the language of the Act. Indeed,  the
court's  interpretation of the Act  discriminates  against people who unite as a
group to oppose a hostile  takeover  and,  in a twist of logic,  results  in the
forfeiture of votes of the very people the Act is intended to protect.          

     A. THE PURPOSE OF THE ACT: THE ACT IS AN  ANTI-TAKEOVER
        LAW  THAT  GIVES  SHAREHOLDERS  THE POWER TO RESPOND
COLLECTIVELY TO HOSTILE RAIDERS             

      The Act is an  anti-takeover  law that  regulates  the  voting  rights  of
persons who acquire "control shares" in Michigan companies.  In essence,  when a
person  acquires  either shares or the power to direct the voting of shares in a
Michigan  corporation,  if the  newly-acquired  voting power,  when added to the
voting power previously held by that person, would give that person voting power
exceeding any                                                                   

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of three statutory thresholds,  the newly-acquired "control shares" will have no
right to vote without the approval of the disinterested shareholders.  SEE Mich.
Comp.  Laws  ss.ss.450.1790(2),   .1791(1),   .1798(1).  Thus,  the  Act  places
substantial hurdles in the way of hostile raiders who seek to acquire control of
a Michigan corporation. SEE Stephen H. Schulman et al., MICHIGAN CORPORATION LAW
& PRACTICE 295 (2003).                                                          

      The "control share" approach to anti-takeover  regulation was pioneered by
the State of Indiana,  SEE CTS CORP. V. DYNAMICS  CORP. OF AMERICA,  481 U.S. 69
(1987) (upholding  constitutionality of Indiana control share acquisitions act),
and Indiana's  control share  acquisitions  statute  served as the model for the
Michigan  act. SEE  Schulman,  SUPRA,  at 295. The purpose of the control  share
acquisitions  statute  is to protect  EXISTING  shareholders  from the  coercive
effect of hostile takeovers. CTS CORP., 481 U.S. at 83. It does this by allowing
shareholders to "evaluate the fairness of the offer collectively." ID. at 84.   

      As the Supreme Court  explained,  "The  principal  result of the Act is to
grant  shareholders  the power to  DELIBERATE  COLLECTIVELY  about the merits of
tender  offers."  ID.  at 82 n.7  (emphasis  added).  Thus,  the  control  share
acquisitions  law  "afford[s]  shareholders,  when a takeover  offer is made, an
opportunity  to  decide  collectively  whether  the  resulting  change in voting
control of the  corporation,  as they perceive it, would be  desirable."  ID. at
91-92.                                                                          

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B.   THE  LANGUAGE OF  THE ACT:  THE ACT IS TRIGGERED  BY AN
     ACQUISITION  OF  OWNERSHIP  OF, OR THE  ACQUISITION  OF
     THE POWER TO  DIRECT THE  EXERCISE OF VOTING POWER WITH
     RESPECT TO,  "CONTROL  SHARES";  A PERSON'S PREVIOUSLY-
OWNED SHARES ARE NOT "CONTROL SHARES"             

     Under the Act,  "control shares" acquired in a "control share  acquisition"
only have voting rights if authorized by the remaining  shareholders.  SEE Mich.
Comp. Lawsss.ss.450.1794,  .1798. "Control shares" means shares that have voting
power that,                                                                     

WHEN  ADDED  TO ALL  OTHER  SHARES . . . OWNED  BY A  PERSON OR  IN 
RESPECT TO  WHICH THAT  PERSON MAY EXERCISE OR DIRECT THE  EXERCISE 
OF  VOTING  POWER, would  entitle that  person,  immediately  after 
acquisition of the shares, directly or indirectly, alone or as part 
of a group, to exercise or direct the  exercise of the voting power 
. . . within any of the following ranges of voting power:           

(a) 1/5 or more but less than 1/3 of all voting power.    

   (b) 1/3 or more but less than a majority of all voting power.

(c) A majority of all voting power.                       

ID. ss.450.1790(2) (emphasis added).                                            

      Thus, the shares  previously held by a person, or by a group of people who
decide to act  together,  establishes  the base level  from  which to  determine
whether  newly  acquired  shares are  "control  shares."  If the  newly-acquired

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shares,  when added to the base level, fall within one of the three ranges,  the
newly-acquired  shares are "control shares," and they will be subject to the Act
if they were acquired in a "control share acquisition."                         

A "control share acquisition," in turn, means                       

the  ACQUISITION,  directly  or  indirectly,  by  any  person  of   
OWNERSHIP OF, OR THE POWER TO DIRECT THE EXERCISE OF VOTING POWER   
WITH RESPECT TO, issued and outstanding control shares.             

ID. ss.450.1791(1) (emphasis added).                                            

      Significantly,  if a  person  holds  shares  of stock  prior  to  making a
"control share  acquisition,"  these previously owned shares are counted as base
level shares, but they are NOT "control shares" under the Act:                  

"`[C]ontrol  shares' are not `all shares' owned by the  acquiring   
person,  but  only the shares  acquired  in  the  `control  share   
acquisition'  . . . that,  when  added to  the acquiring person's   
pre-acquisition  holdings, put the  person over one  of the three   
specified thresholds of voting power."                              

Schulman,  SUPRA, at 297-98 (ellipsis in original) (quoting Official Comments to
Ind. Code ss.23-1-42-1 (West 1989)).                                            

      The result is the same when several  shareholders  unite to make a control
share  acquisition.  As explained  in the Official  Comments to the Indiana act,
"whether the  acquisition is made by one person or by two or more persons acting
cooperatively  or in  concert,  will not  affect  application  of the  Chapter."
Official                                                                        

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Comments to Ind. Code  ss.23-1-42-1  (West 1989)  (Addendum at A-13).6 Thus, the
shares  previously-owned  by the  members of the group are counted as base level
shares,  and any new  shares  acquired  by the group  members  will be  "control
shares"  if,  when  added  to  the   members'   previously-owned   shares,   the
newly-acquired  shares would entitle the members to exercise voting power within
one of  the  three  ranges  of  voting  power.  The  individual  group  members'
previously-owned  shares  are  not  "control  shares"  under  the  Act.  SEE ID.
("pre-acquisition holdings" are not "control shares") (A-12).                   

     This  very  issue  was  addressed  in  ATLANTIS  GROUP,  INC.  V.  ALIZAC
Partners,  No.  1:90-CV-937,  slip op. (W.D.  Mich. Dec. 5, 1991) (op.  denying 
prelim.  injs.)  (Addendum at A-35).  In  ATLANTIS,  three  shareholders,  each 
with  roughly 9% of the voting  power of the  company  (for a total of 28.09%), 
allegedly  formed a group and then, as a group,  acquired an  additional  1.67% 
of the  voting  power.  SEE ID.  at 3  (A- 37).  The court  found  that  "[t]he 
statute's  provisions are only triggered by an ACQUISITION of control  shares," 
ID. at 10  (underline  in original)  (A-44),  and it                            

__________                                                                      
6 By statute,  the Official Comments to the Indiana Business Corporation Law may
be "used as a guide in [the] construction and application" of the statute.  Ind.
Code ss.23-1-17-5.  The Supreme Court of Indiana "recognize[s] these comments as
authoritative."  FLEMING V.  INTERNATIONAL  PIZZA SUPPLY Corp., 676 N.E.2d 1051,
1054 n.5 (Ind.  1997).  Because of the Michigan  Act's close  similarity  to the
Indiana statute,  the Official Comments provide a "useful interpretive guide" to
the  Michigan  Act.  Schulman,  SUPRA,  at 295  (2003).                         

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rejected the plaintiffs' argument that the defendant's  previously-owned  shares
were "control shares" subject to the Act. Instead,  the court held:             

Finally,  the only  acquisition  of control shares that has occurred  
is  the 1.67%  increase in stock  defendants  have  purchased  since  
April  of  1991.  Compare  Comments  to  Section  23-1-42-1  of  the  
Indiana  Business  Corporation  Law (stating that control shares are  
only the shares  acquired  in the  control  share  acquisition).  If  
any shares are divested  under the  Act, divestment would be limited  
to those 1.67 percent of shares . . . .                               

ID. at 10-11 (A-44 to A-45).                                                    

      The Supreme  Court of Indiana has  expressly  recognized  that the Indiana
act, too, applies only to newly-acquired shares and does NOT require shareholder
approval to vote previously-owned shares:                                       

The effect of the  application of  the statute is NOT TO DISABLE ALL  
SHARES OWNED BY THE  ACQUIRER.  Rather it  prevents  only the voting  
of the shares acquired in the control share acquisition,  i.e.  only  
the shares in the regulated  transaction are  prevented from  voting  
until the  remaining shareholders  approve.                           

YOUNG  V.  GENERAL   ACCEPTANCE   CORP.,   770  N.E.2d  298,  301  (Ind.  2002) 
(interpreting the Indiana act) (emphasis added).                                

      The effect of the Act is readily apparent. If one person who owns 18% of a
company's  stock  acquires  either an additional 3% of the stock or the power to
direct the voting of an additional 3% of the stock, only that  newly-acquired 3%
will have no voting rights  (unless voting rights are conferred by the remaining
shareholders).  Likewise,  because  the Act  determines  whether  newly-acquired

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shares  are  "control  shares"  based on the  voting  power  already  held by an
acquiring person acting "alone or as part of a group" (the base level), if three
people  who  each  own 6% of a  company's  voting  stock  unite  as a group  and
individually or collectively  acquire an additional 3% of the stock or the power
to direct the voting of an additional 3% of the stock, only that  newly-acquired
3% will have no voting rights.                                                  

   C.   THE UNDISPUTED  FACTS:  NO  MEMBER OF THE TAUBMAN FAMILY
        ACQUIRED OWNERSHIP  OF, OR ACQUIRED  THE POWER TO DIRECT
        THE  EXERCISE  OF  THE  VOTING  POWER WITH  RESPECT  TO,
ANY OTHER  FAMILY  MEMBER'S SHARES              

      It is clear that there must be an  "acquisition"  of  "control  shares" to
trigger the Act, and if the Act is triggered, only the "control shares" acquired
in the "control  share  acquisition"  are precluded  from voting.  In this case,
however,   the  district  court  concluded  that  the  Taubman  family  members'
previously-owned  shares of Company stock are "control  shares,"  (Am.  Order at
2-3, J.A. ___),  even though there is no evidence  whatsoever that any member of
the Taubman  family ever acquired  ownership of, or acquired the power to direct
the voting with respect to, any other family member's shares.  Neither the 30.7%
Shares nor the power to vote these shares has ever changed  hands.  The power to
vote these shares  resides,  and has always  resided,  in the individual  family
members that own them.                                                          

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      The  district  court  described  the  November   Schedule  13D/A  as  "the
proverbial  smoking gun." (Am. Order at 37, J.A. ___.) But,  notably,  the court
never  found that any member of the  Taubman  family had  acquired  the power to
direct the voting of any other family member's  shares.  Indeed,  the ONLY thing
that the Schedule 13D/A  establishes is the undisputed  fact that Robert Taubman
alone had acquired the right to vote three  non-family  members'  shares through
the three Voting Agreements. (SEE November Schedule 13 D/A at Item 4 (the Voting
Agreements  grant "the sole and  absolute  right to vote their shares on any and
all  matters  that come  before  the  shareholders  of the  Company to Robert S.
Taubman"), J.A. ___.)                                                           

     There is nothing in the Schedule  13D/A to suggest that any Taubman  family
member had acquired either  ownership of, or the power to direct the voting with
respect to, any other family  member's  shares.  To the  contrary,  the Schedule
13D/A  expressly  states that  "[e]ach  member of the Taubman  Family  disclaims
beneficial ownership of any shares of Common Stock, Series B Preferred Stock and
Units held by any other  member of the  Taubman  Family."  (ID.  at Item 5, J.A.
___.) When  read in  conjunction with  the definition  of "beneficial  owner" in

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SEC Rule 13d  (pursuant to which the Schedule  13D/A was filed),7 the meaning of
this disclaimer is clear: No member of the Taubman family has any power,  direct
or  indirect,  to vote,  or to direct the voting of, any other  family  member's
shares.8                                                                        

      The only other evidence in the record of who may vote or direct the voting
power of the individual  Taubman family members' shares is the January  Schedule
13D/A,  and this  Schedule  further  refutes  the notion  that any member of the
Taubman  family  can vote or direct  the  voting of any  other  family  member's
shares.  (SEE January  Schedule 13D/A at Item 4, J.A. ___.) In fact, the January
Schedule 13D/A declares  unequivocally that no family member has or ever had the
power to vote any  other  family  member's  shares:                             

     o    No family member "ever acquired or possessed the authority to vote any
of the other members' shares."                              

     o    No  family  member "acquire[d]  any  interest  in  or  power over  the

__________                                                                      
7 Rule 13d-3  defines a  "beneficial  owner" of a security  as "any  person who,
directly  or  indirectly,  through  any  contract,  arrangement,  understanding,
relationship, or otherwise has or shares . . . [v]oting power which includes the
power  to  vote,  or  to  direct  the  voting  of,  such  security."  17  C.F.R.
240.13d-3(a).                                                                   

8 Under SEC Rule 13d-4,  when an SEC  Schedule is filed with such a  disclaimer,
the Schedule  "shall not be construed as an admission  that such person is . . .
the  beneficial  owner of any  securities  covered by the  statement." 17 C.F.R.
240.13d-4.  SEE CALVARY HOLDINGS, INC. V. CHANDLER, 948 F.2d 59, 64-65 (1st Cir.
1991) (expressly  recognizing  that, under Rule 13d-4, when a person who files a
Schedule 13D  "claim[s]  not to be a beneficial  owner," the filing will "not be
construed as an admission of beneficial ownership").                            

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          Series B Preferred shares or Common Stock owned by any other member of
the Taubman  Family."                                       

(ID.,  J.A.  ___.)                                                              

      Although the district court characterized the January Schedule 13D/A as an
effort to "`unring the bell,'" (Am. Order at 43, J.A. ___), there was nothing to
"unring" in regard to the Taubman family members' 30.7% Shares. No member of the
Taubman  family  ever had or acquired  ownership  of, or the power to direct the
voting of, any other family member's shares. Accordingly, the individual Taubman
family members' shares were not, and could not be, "control  shares" acquired in
a "control  share  acquisition."                                                

   D.   THE ERROR BELOW: THE DISTRICT COURT HAS MISINTERPRETED THE
        ACT AS A LAW OF FORFEITURE THAT STRIPS SHAREHOLDERS OF THE
        RIGHT TO VOTE THEIR  PREVIOUSLY-OWNED  SHARES WHENEVER TWO
        OR MORE  SHAREHOLDERS UNITE  TO OPPOSE A HOSTILE  TAKEOVER
        REGARDLESS  OF WHETHER THERE  HAS BEEN  ANY ACQUISITION OF
VOTING POWER                                      

      Despite the  undisputed  evidence  that no one other than each  individual
member of the  Taubman  family  has the power to direct the voting of his or her
own  individual  shares,  the  district  court held that each of the  individual
Taubman family members' previously-owned shares are "control shares" stripped of
their vote  simply by virtue of the fact that  "[t]he  Taubman  family  formed a
group for the purpose of exercising  voting power to block the Simon  takeover."
(Am.  Order at 2-3, J.A.  ___.) This holding  appears to be based on the court's
ASSUMPTION that,                                                                

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when  shareholders  unite as a  group,  the  "group,"  as a  separate  "person,"
IMPLIEDLY  acquires  the  power to direct  the  voting  of each  group  member's
preexisting shares. (SEE ID. at 42-43, J.A. ___.)                               

      In essence,  the district court penalized A. Alfred Taubman,  who controls
30% of the  Company's  voting  stock,  and the members of his family,  for doing
nothing more than announcing their collective  opposition to SPG's tender offer.
This,  even though no other member of the Taubman family has any power to direct
the voting of Mr.  Taubman's  shares,  and even  though  Mr.  Taubman is free to
change his mind at any time and vote in favor of the SPG offer.                 

      Under the  district  court's  unprecedented  interpretation  of the Act, a
shareholder  who owns 18% of a company's  stock may acquire an  additional 3% of
the stock and still have the right to vote his existing 18%, and he will have to
seek  approval  only  to vote  the  newly-acquired  3%.  But a  group  of  three
shareholders,  who each hold 6% of the stock and who deliberate collectively and
express a common intent to oppose a proposed tender offer,  will, if any of them
acquires an additional 3% of the stock, lose ALL of their voting rights, both in
their preexisting                                                               

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shares  (6%  each)  and in the  newly-acquired  3%.  This is not  what  the law 
intended, and this is not what it says.                                         

1.   THE  MERE  PRESENCE  OF  A  NONBINDING  AGREEMENT  OR
     UNDERSTANDING  AMONG  SHAREHOLDERS  WITH  RESPECT  TO
     VOTING THEIR PREVIOUSLY-OWNED SHARES DOES NOT TRIGGER
     THE  ACT;  THERE  MUST BE AN  ACTUAL ACQUISITION BY A
     PERSON OF EITHER OWNERSHIP OF, OR THE POWER TO DIRECT
THE VOTING WITH RESPECT TO, ANOTHER'S SHARES    

The Official Comments to the Indiana act are clear:                 

In each case, the relevant  inquiry is whether one or more ACQUIRING
PERSONS  HAVE  ACQUIRED  sufficient  practical  ability  in fact "to
exercise or direct the exercise of the voting power . . . ."        

Official  Comment to Ind.  Code  23-1-42-1  (emphasis  added)  (quoting  Indiana
statute) (Addendum at A-13).  Nevertheless,  instead of inquiring whether one or
more persons had "acquired  the PRACTICAL  ABILITY IN FACT to exercise or direct
the exercise" of voting power,  the district court appears to have ASSUMED that,
whenever a group of  shareholders  have "an  agreement or  understanding,"  (Am.
Order at 38, J.A. ___),  the "group"  acquires the power to direct the voting of
the shares of each individual shareholder. This is simply not so.9              

__________                                                                      
9 The district  court's  assumption that "an agreement or  understanding"  among
shareholders  is  sufficient  to  trigger  the Act,  even in the  absence  of an
ACQUISITION IN FACT of the power to direct the exercise of voting power,  may be
an  error  of   grammatical   construction.   In  describing  a  "control  share
acquisition," the court determined that a "control share  acquisition"          
                                                                 [fn. continued]

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      Contrary to the district court's assumption,  the Act is not triggered any
time  shareholders  have "an agreement or understanding to exercise voting power
within one of the three ranges of voting power  enumerated in the statute." (Am.
Order at 38,  J.A.  ___.)  If it were,  whenever  shareholders  deliberating  in
advance of a meeting  reach an  understanding  as to how they would vote,  these
shareholders would lose the right to vote their previously-owned shares, even if
none of them gave any other the power to vote his shares and even though each of
them could change his mind at any time.                                         

      Examples  given in the Official  Comments to the Indiana act make it clear
that an informal  agreement or  understanding  is not  sufficient to trigger the
act. Rather, as the Official Comments explain,  the act "cover[s],  for example,
shares owned by a subsidiary of the acquiring  person,  or shares that are owned
by an  unrelated  person but AS TO WHICH THE  ACQUIRING  PERSON HAS  CONTRACTUAL
RIGHTS TO                                                                       

__________                                                                      
means one of two things - either the "acquisition, directly or        
indirectly,  by any  person of  ownership of . . . issued  and        
outstanding  control  shares . . . ." or ". . . the  power  to        
direct the exercise  of voting  power  with respect to, issued        
and outstanding control shares."                                      

(Am. Order at 39 (ellipses in original), J.A. ___.)                             
Apparently,  the court failed to recognize that in the statutory definition of a
"control share acquisition," the introductory clause, "the acquisition, directly
or  indirectly,  by any person of,"  modifies EACH of the following two clauses,
"ownership  of," and "the  power to direct the voting  power with  respect  to."
Mich.  Comp. Laws  ss.450.1791(1).                                              

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DIRECT  THEIR  VOTING."  Official  Comments to Ind.  Code  23-1-42-1  (emphasis 
added) (Addendum at A-13).                                                      

     This very point was made this past year by the  Supreme  Court of Indiana
in YOUNG  V.  GENERAL  ACCEPTANCE  CORP.,  770  N.E.2d  298  (Ind.  2002).  The 
supreme court focused on the distinction  between an irrevocable  proxy,  which 
gives an  acquiring  person the power to direct  the  voting of  shares,  and a 
revocable proxy, which does NOT.                                                

      In YOUNG,  the founding  family  shareholders,  who  controlled 70% of the
voting  power,  entered  into a  voting  agreement  with  an  outside  investor,
requiring  the  founding  family  to vote for two  directors  designated  by the
outside investor, and requiring the investor to vote for one director designated
by the founding family. SEE ID. at 299-300.  Finding that the parties' agreement
had given the outside  investor  the power to direct the voting of the  founding
family's  shares  and  therefore  was a  control  share  acquisition,  the court
explained  that the Indiana act applied only to  irrevocable  proxies and not to
revocable proxies,  where the owner retains the ultimate right to direct how the
shares will be voted:                                                           

Because  Conseco  GAVE  VALUE for the right  to direct the voting   
of  these shares,  the  Stockholders  Agreement  granted  a proxy   
"coupled  with an interest" and not a revocable proxy of the kind   
typically solicited for shareholder meetings of public companies.   
Unlike a revocable                                                  

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proxy, this constituted an acquisition of the "power to direct      
the  voting" for  the Board  and is  therefore subject  to the      
[control share acquisitions] statute.                               

ID. at 302 (emphasis added; citation omitted).                                  

     The  Supreme  Court of  Indiana  therefore  held  that the  stockholders'
voting  agreement was a "control share  acquisition"  because the  "commitments 
to  vote  .  .  .  were  given  for   consideration   and  became   enforceable 
obligations,"  equivalent  to an  irrevocable  proxy.  ID. The court  explained 
that, had the shareholders  merely exchanged  revocable  proxies,  i.e., voting 
understandings  without  consideration,  the control share acquisitions statute 
would not have been  triggered,  for a  revocable  proxy  does not  confer  the 
"power to direct the  exercise of voting  power"  since the owner of the shares 
"retains  ultimate  control  over  the  exercise  of the  voting  power  of the 
shares."  ID. (quoting Official Comments to Ind. Code ss.23-1-42-3).            

     The law with respect to revocable and irrevocable  proxies is the same in
Michigan.  SEE ECCLESTONE V.  INDIALANTIC,  INC., 29 N.W.2d 679,  682-83 (Mich. 
1947).  And,  if  anything,  the  Michigan  Act is even  more  clear  than  the 
Indiana  statute in excluding  nonbinding  alignments and  understandings  from 
its trigger and  requiring an actual  acquisition.  Unlike the Indiana act, the 
Michigan  Act   expressly   provides  that  voting  power   obtained   "without 
consideration"  "does  not  constitute  a  control  share  acquisition."  Mich. 
Comp. Laws ss.450.1791(4)(c).                                                   

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      Here,  no Taubman  family member has the power to direct the voting of any
other family member's  shares,  and no Taubman family member "gave value for the
right to direct the voting" of any other  family  member's  shares.  YOUNG,  770
N.E.2d at 302.  Thus, any  understanding  among the Taubman family members as to
the voting of their 30.7% Shares was not an "enforceable  obligation" and "d[id]
not constitute a control share acquisition." Mich. Comp. Laws ss.450.1791(4)(c).

2.   THE  DISTRICT  COURT'S  INTERPRETATION  OF THE ACT IS
     CONTRARY   TO   THE   BASIC   MAXIMS   OF   STATUTORY
CONSTRUCTION                                    

        The district  court's  construction  of the Act is contrary to the maxim
that, "when a statute  specifically  defines a given term, that definition alone
controls."  TRYC V.  MICHIGAN  VETERANS'  FACILITY,  545 N.W.2d 642,  646 (Mich.
1996). Ignoring this basic principle, the district court concluded,  without any
explanation, that "a group . . . is a `person' within the meaning of the Control
Share Act" and thus could acquire control  shares.  (Am. Order at 42, J.A. ___.)
This  conclusion  was  necessary to the court's  holding that the formation of a
group is itself a "control share acquisition," as the Act applies only to shares
acquired "by any person" that would  "entitle that person" to exercise or direct
voting  power within  specified  ranges.  Mich.  Comp.  Laws  ss.ss.450.1791(1),
..1790(2).                                                                      

     Michigan law is replete with  statutes  that define the term  "person" as
including a "group." SEE,  E.G.,  Mich.  Comp.  Laws ss.ss.14.302(b);           
205.256(k);                                                                     

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287.571(j);  328.215(2);   400.272(c);  442.311(h);  442.321(e);   445.2051(b); 
691.1571(k).  The Business  Corporation  Act,  however,  and the Control  Share 
Acquisitions  chapter,  in  particular,  is NOT one of these  laws.  SEE  Mich. 
Comp.  Laws ss.450.1108(2)   (definition  of  "person").   The  fact  that  the 
Legislature  did not  include  a  "group"  in this  definition  or adopt a more 
expansive  definition  in the Control  Share  Acquisitions  Act  precludes  the 
district court from judicially imposing its expanded definition.10              

     The  district  court's  construction  of the Act is also  contrary to the
equally  basic  maxim that  "every  word of a statute  should be read in such a 
way as to be  given  meaning,  and a court  should  avoid a  construction  that 
would  render  any  part of the  statute  surplusage  or  nugatory."  IN RE MCI 
TELECOMM. COMPL., 596 N.W.2d 164, 175-76 (Mich. 1999).                          

      Under the Act, control shares acquired in a control share acquisition have
only those voting rights granted by a resolution  approved by a majority vote of
the  shares,  "excluding  all  interested  shares."  ID.  ss.450.1798(2)(b).  In
defining                                                                        

__________                                                                      
10 Under Michigan law, all words and phrases are to be "construed and understood
according to the common and approved usage of the language."  Mich.  Comp.  Laws
ss.8.3a.  Plainly recognizing that the word "person" does not COMMONLY include a
"group," SEE, E.G., 15 U.S.C.  ss.78c(a)(9),  the Congress, in the Williams Act,
expressly provided that a "group shall be deemed a `person'" for purposes of the
reporting  requirements.  15  U.S.C.   ss.ss.78m(d)(3),   (g)(3).  The  Michigan
Legislature  included  no  such  provision  in  the  Business  Corporation  Act,
generally, or in the Control Share Acquisitions Act, in particular.             

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"interested shares," the Legislature used a broader definition than for "control
shares,"  and it included  all shares of "[a]n  acquiring  person or member of a
group" as to which he may  "exercise  or direct the exercise of the voting power
of  the  corporation."  ID.  ss.450.1792(a).   Thus,  "[a]n  acquiring  person's
`interested  shares' include BOTH any `control  shares' acquired in the `control
share  acquisition'  AND any shares it owned  prior to the  acquisition.  . . ."
Official Comments to Ind. Code ss.23-1-42-3 (emphasis added) (Addendum at A-18).
But,  if a group  member's  previously-owned  shares  themselves  become (as the
district court held) "control shares" upon the formation of a group, there would
be no need for this broader definition of "interested  shares" since the group's
shares already would be "control shares" and thus automatically be excluded from
voting.                                                                         

3.   THE DISTRICT COURT'S MISINTERPRETATION OF THE ACT WILL 
    PRECLUDE SHAREHOLDERS FROM RESPONDING  COLLECTIVELY TO
    HOSTILE RAIDERS AND WILL UNDERMINE CORPORATE DEMOCRACY

      The Act is intended to enable shareholders to deliberate  collectively and
unite in their response to a hostile tender offer. SEE CTS CORP., 481 U.S. at 82
n.7. But the forfeiture of preexisting voting rights, such as that caused by the
district  court's   interpretation   of  the  Act,  will  effectively   preclude
shareholders  from  doing  so.  Under the  court's  interpretation,  if  several
shareholders  who  collectively  own more than 20% of a company's  stock meet in
advance  of a vote and  announce  that they are of the same mind in  opposing  a
hostile offer, these shareholders will be                                       

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precluded  from  voting  unless and until the  remaining  shareholders,  who may
include the hostile offeror, restore their voting rights. This, even though each
of the opposing  shareholders  retains full and complete control of the right to
vote  his or her own  stock.  Thus,  shareholders  cannot  collectively  discuss
proposed takeovers and other corporate actions and make decisions as to how they
should vote  without  losing their right to vote as soon as they agree that they
have a unity of interest  in voting one way or  another.                        

      Even worse havoc would  result in  companies where the board  members have
shareholdings that individually or cumulatively exceed the 20% range (as was the
case with Taubman  Centers just before A. Alfred Taubman  retired from the Board
in 2001). These board members would be precluded from responding to any proposed
takeover  because,  as soon as they  acted as a unified  "group"  with a plan to
oppose,  or even to favor,  the  takeover,  each of them would lose the right to
vote his or her individual shares. Rather than protecting existing shareholders,
such a result would have the  consequence  of promoting  hostile and  unfriendly
takeovers of Michigan  corporations  and would render the  shareholders of these
corporations powerless to collectively defend themselves.                       

      If the Act is left as  interpreted  by the  district  court, it will  have
severe consequences for shareholder democracy in non-takeover contexts, as well,
because  shareholders  will  lose the right to  deliberate  and vote on the most
basic                                                                           

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aspects  of  corporate   governance.   Shareholders   have  the  right  to  vote
collectively on a variety of corporate matters, including election of directors,
amendment  of the  articles  of  incorporation,  mergers and  combinations,  and
dissolution.  But if existing  shareholders lose the right to vote whenever they
together  determine to propose or respond to any type of corporate action,  they
will  lose all power to unite to  implement  or oppose  corporate  changes.     

      The  district  court's  interpretation  of the Act  would  create  a truly
pernicious trap for shareholders. For example, if a group of 11 shareholders who
each hold 2% of a company's  stock  collectively  decide they want to nominate a
director  to  replace an  incumbent,  they will lose the right to vote for their
nominee  because,  in making the  nomination,  they "formed a group" with voting
power  in  excess  of  the  20%  range.                                         

      The result is even more absurd in corporations, such as the Company, which
permit shareholders with 25% of the shares entitled to vote to request a special
meeting  without  petitioning the court.  In that case,  while the  shareholders
could collectively  request a special meeting, by the very act of doing so, they
would lose the right to vote at the meeting. This makes no sense and is contrary
to the  fundamental  principles of shareholder  (or any kind of)  democracy.    

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  E.   SPG'S  ARGUMENT  THAT  THE  ACT  INCORPORATES  A "DEEMER"
       PROVISION FROM THE REGULATIONS ADOPTED UNDER THE WILLIAMS
ACT IS WRONG                                      

      In the district court, SPG argued that the Act incorporates, SUB silentio,
a "deemer" provision from SEC Rule 13d adopted under the Williams Act, 15 U.S.C.
ss.ss.78m(d)-(e), 78n(d)-(f). As argued by SPG's counsel:                       

[T]he  linchpin  of the 13D  argument  is what I  have  called  the 
Deemer provision.  It is a provision set forth and it's on Appendix 
page 1418  in the 13D  Regulations and it says  essentially  when a 
group is formed,  the group and all its  members are deemed to have 
acquired  the shares of all other members.                          

(Tr.  Mar.  21, 2003,  at 105,  J.A.  ___.)  Essentially,  under SPG's  "deemer"
argument,  shareholders would forfeit the right to vote their preexisting shares
whenever the Williams Act provides that they have formed a "group."             

      SPG's  argument  is  specious.  The  Williams  Act and the  Control  Share
Acquisitions Act are different  statutory schemes with very different  purposes.
The  Williams  Act is a disclosure  statute.  SEE CTS CORP.,  481 U.S. at 79. In
adopting  the  Williams  Act,  "Congress  sought  to  ensure  that  shareholders
`confronted  by a cash tender  offer for their stock  [would] not be required to
respond without adequate  information.'" UNITED STATES V. O'HAGAN, 521 U.S. 642,
667 (1997)  (citation  omitted).  Under the SEC regulations to the Williams Act,
whenever  two or more  persons  form a  group  for the  purpose  of  "acquiring,
holding,  voting or disposing of" shares, the group is expressly "deemed to have
acquired beneficial                                                             

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ownership, for purposes of Sections 13(d) and 13(g) of the [Securities Exchange]
Act . . . of all equity securities of that issuer beneficially owned by any such
persons." 17 C.F.R. 240.13d-5(b)(1). Under the regulations, a "group" is defined
broadly as being formed by "any"  non-contractually  binding  "understanding" or
"other arrangement," "emphasiz[ing] the notion that concerted action need not be
formalized or express." SEE SEC V. SAVOY INDUS., INC., 587 F.2d 1149, 1163 (D.C.
Cir. 1978).  Beneficial  owners,  in turn,  must report certain  transactions to
ensure that the public has  knowledge of changes in either  voting or investment
power. SEE 15 U.S.C. ss.ss.78m(d),(e),  78n(d)-(f).                             

      Unlike SEC Rule 13d-5, which contains  express  language  mandating that a
group is  "deemed  to have  acquired"  the  beneficial  ownership  of the  group
members' registered  securities,  the Control Share Acquisitions Act contains no
such  language,  and it does not  incorporate  Rule 13d-5's  "deemer"  language,
either expressly or by implication.  SPG, however,  argues that the Michigan Act
does incorporate Rule 13d-5's  "deemer"  language.  SPG's argument is based on a
single  reference to the 13d-5  regulation  in a comment to the Indiana law that
notes a similarity  between the aggregation rule for determining  whether shares
acquired  are  "control  shares"  and the  "group"  approach  in the  securities
regulation:                                                                     

Similarly,  the  acquisition of  control shares  may be "directly     
or indirectly,  alone or as  part of a group" - meaning  that the     
legal form of the acquisition, or whether the acquisition is made     
by one person or by two or more persons acting  cooperatively  or     
in  concert,  will  not                                               

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affect application of the Chapter.  This is SIMILAR to the "group"    
approach adopted by the  Securities and  Exchange Commission under    
the  Securities Exchange  Act of  1934.  See Reg. 13d-5, 17 C.R.R.    
[sic] ss.240.13d-5.                                                   

Official Comments to Ind. Codess.23-1-42-1 (emphasis added) (Addendum at A-13). 

      Contrary to SPG's creative  extrapolation,  this comment  simply  explains
that the Act applies  equally to a person who alone acquires  "control  shares,"
and to a person who is part of a group and acquires "control shares." It remains
a prerequisite  that the person actually acquire the shares or the power to vote
them.  If he does,  the  newly-acquired  shares or voting  power that causes the
person,  "alone or as part of [the]  group,"  to exceed  one of the Act's  three
ranges of voting power will be "control shares."                                

      Indiana's  Official Comments make clear that  PREVIOUSLY-OWNED  shares are
not control shares. SEE Official Comment to Section 23-1-42-1  ("Control shares"
are not "all shares" owned by the acquiring person, but only the shares acquired
in the "control share  acquisition")  (Addendum at A-12). The Official  Comments
also make it clear  that this  principle  is the same  REGARDLESS  of whether an
acquiring  person  is  acting  alone  or as  part  of a  group:  "[W]hether  the
acquisition is made by one person or by two persons acting  cooperatively  or in
concert, will not affect the application of the Chapter." ID. (A-13).           

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      If the Indiana  Legislature  intended to treat  persons  acting as a group
differently than individual  shareholders,  it certainly could have incorporated
the  "deemer"  rule from SEC Rule 13d-5 into the  Indiana  law to make the group
members'  previously-owned  shares subject to a forfeiture of voting rights. But
neither the Indiana law nor the Indiana comments do any such thing.             

      Likewise,  it would  have been  simple  for the  Michigan  Legislature  to
include the  phrase,  "deemed to have been  acquired,"  in the  definition  of a
"control  share  acquisition"  had it intended to  incorporate  into the Act the
concept  of a "deemed"  acquisition.  In fact,  the  Legislature  did  utilize a
"deemed  acquisition"  concept in the very next subsection of the Act: To ensure
that multiple acquisitions  occurring within a 90-day period or made pursuant to
a plan to acquire  control  shares do not escape  the  definition  of a "control
share acquisition," the Legislature  specifically  provided that shares acquired
in  these  circumstances  are  "CONSIDERED  TO HAVE  BEEN  ACQUIRED  in the same
transaction." Mich. Comp. Laws ss.450.1791(2) (emphasis added).                 

      Plainly,  the  Legislature  knew how to use "deemer"  language  when it so
intended.  But there is no "group/deemer"  language in the Act's definition of a
"control share  acquisition,"  and there is no basis for the Court to graft into
the Act a Federal  law  "deemer"  concept  that the  Legislature  itself did not
include.                                                                        

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    F.   EVEN IF THE FORMATION OF A GROUP COULD, IN AND OF ITSELF,
         BE  A  CONTROL  SHARE  ACQUISITION,  THE  TAUBMAN  FAMILY
         AS  A "GROUP" RECEIVED  THEIR  SERIES B  STOCK  FROM  THE
   COMPANY IN A TRANSACTION THAT IS NOT WITHIN THE ACT

      Even assuming,  ARGUENDO,  that the formation of a group could,  in and of
itself,  be a "control share  acquisition,"  the Taubman  family,  as a "group,"
received  their  Series B Stock  directly  from the  Company  in 1998,  and this
acquisition was not within the Act. SEE YOUNG, 770 N.E.2d at 301  ("[o]riginally
issued  shares  . . . by  definition,  are  not  subject  to the  control  share
statute").  Thus, even though the 1998 stock issuance gave A. Alfred Taubman 30%
of the voting power of the Company,  as the district court has previously  held,
"the issuance of Series B stock to the Taubman family in 1998 was not a `control
share  acquisition'  within the meaning of the Control Share Act." (Am. Order at
36, J.A. ___.)                                                                  

      In SPG's own complaint, SPG itself recognizes that the Taubman family AS A
GROUP acquired its shares in 1998.  (SEE,  E.G.,  R.41, SPG 2d Am. Compl.  P. 43
(issuance  in 1998 of "Series B Preferred  Stock  purported  to give the Taubman
family virtual veto power over major transactions concerning the Company and, in
particular,  unsolicited  takeover  attempts"),  J.A.  ___;  P.  44  ("Series  B
Preferred Stock  purported to increase the Taubman  family's voting power in the
Company from less that 1% to 30%"),  J.A. ___; P. 48 ("acquisition of the Series
B  Preferred  Stock by the Taubman  family [in 1998] . . . was a `control  share
acquisition'"),                                                                 

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J.A.  ___.)  Indeed,  the  members  of the  Taubman  family  have  characterized
themselves as a "group" since Taubman  Centers was formed in 1992.  (SEE,  E.G.,
1992  Prospectus  at 2 (defining  the  "Taubman  Group" as  including  A. Alfred
Taubman,  certain members of his family, and certain key executives),  J.A. ___;
Articles,  art. VI (excluding A. Alfred  Taubman "or any member of his Immediate
Family" from the definition of an "Independent Director"), J.A. ___.)           

      Thus,  even if the  formation  of a group  could,  in and of itself,  be a
control share acquisition, the Taubman family as a "group" acquired their Series
B Stock in 1998 in a  transaction  exempt  from the Act,  and,  since that time,
there  has been no  change  of  control  with  respect  to any of these  shares.
Accordingly,  even  if the  district  court's  interpretation  of the  Act  were
correct, the members of the Taubman family cannot be enjoined under the Act from
voting their previously-owned, original-issue 30.7% Shares.                     

III.

THE  DISTRICT  COURT  IMPROPERLY   ENJOINED  THE  NONPARTY
SHAREHOLDER-SIGNATORIES  OF  THE  VOTING  AGREEMENTS  FROM
VOTING  THEIR  SHARES  AFTER THE  VOTING  AGREEMENTS  WERE
TERMINATED                                                

      There  is no  basis  to  enjoin  the  nonparty  owners  of  Company  stock
previously  covered by the Voting  Agreements  from voting their own 2.9% Shares
after the Voting  Agreements were terminated.  "Since the definition of 'control
shares' is tied to whether such shares would . . . put an acquiring  person over
one                                                                             

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of the three statutory  thresholds of voting power, SUCH SHARES WILL CEASE TO BE
`CONTROL SHARES' IN THE HANDS OF A SUBSEQUENT OWNER who thereafter  obtains them
from the  acquiring  person . . . ." Official  Comments to Ind.  Code  23-1-42-1
(emphasis added) (Addendum at A-12).                                            

     Thus, as  explained  in  MICHIGAN  CORPORATION  LAW  &  PRACTICE,  when  an
existing  shareholder  regains the right to vote his own shares,  the Act is not
implicated:                                                                     

This leaves open  whether the owner of the shares  regains his        
voting  rights after  an irrevocable proxy  terminates.  There        
seems to be no reason in the policy or under the definition of        
control share  acquisition to deprive  the owner of his voting        
rights in shares that he continuously owned.                          

Schulman,  SUPRA,  at 302.1 n.84a.  In this case, the undisputed  evidence shows
that the Voting Agreements have been terminated, and the shareholder-signatories
to these  agreements  are free to vote as they  wish the  stock  that  they have
continuously owned. (SEE January Schedule 13D/A at Item 4, J.A. ___.)           

      Aside from having no textual or policy  basis under the Act,  the district
court  improperly  enjoined  the  nonparty  shareholders  from voting their 2.9%
Shares because it had not gained personal  jurisdiction  over them and they were
not  afforded  notice and an  opportunity  to be heard  before  the  preliminary
injunction  was issued.  Persons who are not before the court are not subject to
the court's  injunctive  power.  SEE ZENITH RADIO CORP. V.  HAZELTINE  RESEARCH,
INC., 395 U.S.                                                                  

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100, 110 (1969) (finding  injunction  improper against a nonparty due to lack of
personal  jurisdiction);  ALEMITE MFG. CORP. V. STAFF, 42 F.2d 832, 833 (2d Cir.
1930) (court may not enjoin nonparties).                                        

     If SPG wished to enjoin  the  owners of the 2.9%  Shares  from  voting,  it
should have named and served  them as party  defendants.  SEE KLAUS V.  HI-SHEAR
CORP.,  528 F.2d 225,  234-35  (9th Cir.  1975)  (vacating  an  injunction  that
precluded two  shareholders  from voting,  where one of the shareholders was not
named as a party, and neither was given notice of the injunction  hearing).  SEE
ALSO Fed.  R. Civ.  P.  65(a)(1)  ("No  preliminary  injunction  shall be issued
without notice to the adverse  party.");  GRANNY GOOSE FOODS,  INC. V. TEAMSTERS
LOCAL NO. 70, 415 U.S.  423, 433 n.7 (1974) ("The notice  required by Rule 65(a)
before a  preliminary  injunction  can  issue  implies  a  hearing  in which the
defendant is given a fair  opportunity to oppose the  application and to prepare
for such opposition.").                                                         

      The  preliminary  injunction  preventing  the nonparty  owners of the 2.9%
Shares from voting as they see fit the stock that they have  continuously  owned
deprives  these  nonparties  of the due process of law.  The  injunction  should
therefore be dissolved.                                                         

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 IV.

SPG HAS NO  STANDING  TO BRING AN  ACTION  FOR AN  ALLEGED
VIOLATION OF THE CONTROL SHARE  ACQUISITIONS ACT BECAUSE A
HOSTILE  TENDER  OFFEROR  IS NOT IN THE  CLASS OF  PERSONS
PROTECTED BY THE ACT                                      

      The  district  court's  injunction  must be dissolved  for the  additional
reason that, as a hostile bidder,  SPG has no standing to sue under the statute.
The Act does not  purport  to confer  standing  on, or provide a cause of action
for, tender offerors.  To the contrary,  control share acquisition  statutes are
aimed at  restraining,  not empowering,  those in SPG's position.  This district
court's  decision is the first reported case allowing a hostile  acquirer to use
such a statute to facilitate its hostile acquisition.                           

      Under  Michigan law, "when [a] statute . . . [was] not intended to benefit
or protect the plaintiffs,  i.e., for their especial benefit, they lack standing
to sue."  DETROIT FIRE  FIGHTERS  ASS'N V. CITY OF DETROIT,  537 N.W.2d 436, 443
(Mich. 1995) (Riley, J., concurring).  SEE ALSO CITIZENS FOR PRETRIAL JUSTICE V.
GOLDFARB,  327 N.W.2d 910,  916 (Mich.  1982) ("a  plaintiff  must belong to the
class for whose  protection  the law was passed and suffer an injury the statute
was  designed  to  prevent").  This is also  the law of this  Circuit.  SEE COAL
OPERATORS & ASSOCS., INC. V. BABBITT, 291 F.3d 912, 916 (6th Cir. 2002) (to have
standing,  "in statutory cases,                                                 

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the plaintiff's claim must fall within the 'zone of interests'  regulated by the
statute in  question").                                                         

      The general purpose of control  share  statutes is to "protect  businesses
from certain abusive and manipulative  practices of corporate raiders." AMP INC.
V. ALLIED SIGNAL CORP.,  168 F.3d 649, 651 (3d Cir. 1999) (emphasis  added).  As
the district court itself  recognized,  the Control Share Acquisitions Act is an
anti-takeover  law. (SEE Am. Order at 38, J.A. ___.) The history of the Michigan
Act indicates that the Legislature  was concerned about "a takeover's  effect on
shareholders  and local  economic  stability"  and  believed  that the Act would
provide  "a  mechanism  that  public  corporations  could use  against  takeover
attempts."  (R.57, Ex. 64 (House  Legislative  Anal.  Section,  H.B. 4907 & 4936
(Mar.  18,  1988)) at 1, J.A. ___; SEE ALSO R.57,  Ex. 65 (Senate  Fiscal Agency
Bill Anal., H.B. 4907 (S-1) & 4936 (S-1) (Feb. 18, 1988)) at 1, J.A. ___.)      

      As a hostile  tender  offeror, SPG is  plainly not in the class of persons
for whose benefit the Act was adopted. It would turn the law on its head if SPG,
the hostile bidder, could use the Act to strip shareholders of the right to vote
because they have  collectively  decided to oppose the offer.  Accordingly,  SPG
lacks standing to sue under the Act.                                            

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  V.

THE   DISTRICT  COURT  IMPROPERLY  ENJOINED  THE COMPANY  
FROM ENFORCING A BYLAW INTENDED  TO PROVIDE A REASONABLE  
PROCESS FOR SCHEDULING SPECIAL MEETINGS OF SHAREHOLDERS;  
THE  AMENDMENT  WAS  NOT EVEN A SUBJECT OF SPG'S  MOTION  
FOR A PRELIMINARY INJUNCTION                              

      The injunction  against the  enforcement of the Company's  bylaw amendment
was wrongfully  granted for two reasons.  First,  SPG never moved for injunctive
relief  with  respect to the bylaw  amendment.  The mere fact that SPG prays for
relief on this issue,  along with a variety of other issues, in its COMPLAINT is
not adequate to make this relief, SUB SILENTIO,  the subject of its MOTION for a
preliminary injunction.                                                         

     Under Rule 7(b)(1),  a motion "shall state with  particularity  the grounds
therefor,  and shall set forth the  relief or order  sought."  Fed.  R. Civ.  P.
7(b)(1).  SPG's motion for a preliminary  injunction  did not seek any relief in
regard to the bylaw  amendment.  (SEE SPG's Mot. at 2, J.A. ___; SPG Mem. at 25,
J.A. ___; SPG Reply Mem. at 15, J.A. ___.) Similarly, under the applicable local
rule, a brief  supporting a motion "must,  at the  beginning,  contain a concise
statement of the issues presented." E.D. Mich. LR 7.1(c)(2).  Yet, here, SPG did
not include in the  "Statement of the Issues  Presented"  in its two  supporting
memoranda of law any mention  whatsoever of the bylaw amendment.  (SEE SPG. Mem.
at viii,  J.A.  ___; SPG Reply Mem. at x-xi,  J.A.  ___.) SPG  therefore was not
entitled to the                                                                 

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injunctive relief granted. SEE HERITAGE BANK V. REDCOM LAB., INC., 250 F.3d 319,
328  (5th  Cir.  2001)  ("An  injunction,  however,  cannot  issue  outside  the
parameters  of the  request.");  SNELLMAN V. RICOH CO.,  836 F.2d 528, 532 (Fed.
Cir. 1987) (Rule 7(b)(1) requires party to specify relief sought).              

      Second, the district court should have respected the business  judgment of
the Board. In MENTOR  GRAPHICS CORP. V. QUICKTURN  DESIGN SYSTEMS INC., 728 A.2d
25 (Del. Ch.), AFF'D ON OTHER GROUNDS, QUICKTURN DESIGN SYSTEMS INC. V. SHAPIRO,
721 A.2d 1281,  1288 (Del.  1998),  the  Chancery  Court of Delaware  rejected a
challenge to a bylaw  amendment  passed in the midst of a takeover  contest very
similar to the bylaw  amendment  adopted by the Board in this case.  In adopting
the  amendment,  the Quickturn  board was responding to a concern that the bylaw
was incomplete because it "permitted stockholders having the requisite number of
voting shares to call a special  stockholders  meeting `at any time,' yet failed
to  specify  who  would  determine  the time,  place,  and  record  date for the
meeting." ID. at 40. This "lacuna"  would have allowed a hostile bidder "to call
a special meeting on minimal notice, and thereby force Quickturn's  shareholders
to decide which director slate should be elected without adequate time to become
properly  informed."  ID.  In  response,  the  Quickturn  board  adopted a bylaw
amendment  providing  that the  BOARD  would  determine  the time and place of a
requested  meeting and  mandating a                                             

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90 to 100-day  period of delay for holding a meeting  after the  validity of the
request was determined. SEE ID. at 38-39.                                       

Addressing the standard of review, the court explained:               

  In   deciding  whether  the  By-Law   Amendment  falls  within
a  range  of  reasonable  responses,   the  guiding   principle  is   
reasonableness, not perfection.  So long as a reviewing Court finds   
that  the defensive  measure (assuming  it is  neither coercive nor   
preclusive)  was objectively  reasonable when  adopted, the measure   
must be upheld  even if hindsight  later reveals other choices that   
arguably  were better  or wiser.  Although a  determination of this   
kind is  fact  specific  and  not  constrained  by  any  prescribed   
formula, among the factors  the  Court  must  consider  is  whether   
the challenged defensive response "is a statutorily authorized form   
of business decision that a board of directors may  routinely  make   
in a  non-takeover  context," and whether the response "was limited   
and  corresponded in degree or magnitude to the degree or magnitude   
of the threat."                                                       

ID. at 40 (footnotes and citations omitted).                                    

     The  court found that the bylaw  amendment  represented  "a reasoned,  good
faith  effort  by the  board to  select a delay  period  that  will  remedy  the
information problem without improperly  deterring a dissenting  shareholder from
exercising  its right to wage a proxy  contest."  ID. at 41.  The court  further
found that "advance notice by-laws  mandating a 90-day minimum period of advance
notice,  are  commonplace."  ID. at 42.  Therefore,  the court  upheld the bylaw
amendment. ID. at 43.                                                           

      These very  reasons  approved by the Chancery  Court of Delaware  were the
reasons that the Board in the present case relied on in adopting the  challenged

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bylaw  amendment.  The prior  bylaw gave  shareholders  owning 25% of the voting
power the ability to call a special  meeting,  but the bylaw did not specify who
would  determine the time,  place,  and record date for the meeting.  Faced with
this lack of specificity,  the Board received and acted on the advice of counsel
that (i) the amendment would not  substantively  interfere with the right of the
shareholders  to call a special  meeting,  (ii) the  amendment  would  create an
orderly process for holding shareholder  meetings,  (iii) the amendment would be
consistent  with,  but more  clear  and less  subject  to  dispute  than,  other
provisions  already in the  Company's  bylaws and in Michigan  law, and (iv) the
process to be adopted is common among publicly held companies. (SEE R. 90, Ex. A
(Mem.  to Bd. from counsel  dated Dec. 18,  2002),  at 2-3,  J.A. ___; ID. Ex. B
(Mins. of Meeting of Bd. Dec. 20, 2002) at 2-3, J.A. ___.)                      

      As in MENTOR  GRAPHICS,  the bylaw  amendment  adopted  by the Board was a
reasoned,  good faith effort to remedy the gap in the Company's  bylaws  without
deterring the right of  shareholders  to call a special  meeting.  The amendment
simply ensures that the Board and the  shareholder  body will have adequate time
to  disseminate  and  consider  information  and proxy  material in advance of a
special  meeting.  This is certainly a proper  exercise of the Board's  business
judgment,  and the district court's injunction against  enforcement of the bylaw
amendment should be dissolved.                                                  

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 VI.

THE  DISTRICT   COURT  ERRED  IN  GRANTING  A  PRELIMINARY
INJUNCTION  BECAUSE  THE  BALANCE  OF  EQUITIES  WEIGHS IN
FAVOR OF DEFENDANTS, NOT SPG                              

      "`[T]he  purpose of a  preliminary  injunction  is merely to preserve  the
relative  positions  of the  parties  until a trial on the merits can be held.'"
MICHIGAN BELL TEL. CO. V. ENGLER,  257 F.3d 587, 592 (6th Cir.  2001)  (citation
omitted). Yet, rather than preserving the status quo, the preliminary injunction
granted  by the  district  court  irrevocably  alters  the  status  quo and will
irreparably  harm   Defendants.   In  fact,  the  district  court,  in  granting
Defendants'  motion  to  suspend  the  injunction   pending  appeal,   expressly
recognized that the balance of harms weighs in favor of Defendants, not SPG:    

 Defendants  have  adequately  demonstrated   that  they  will  suffer
 irreparable  harm  which   outweighs  any  potential  harm  to  Simon
if a stay is not granted.                                           

      . . .  Without  a stay and  presuming that  Simon is  successful
 in calling and in the  outcome of a special  meeting to amend the TCI
 Articles  of Incorporation,  the parties  agree that  Simon would  be
 free to move forward with its takeover bid.  It could then effectuate
 a  merger  within  a short  period of  time after  the  Articles  are
 amended  in its  favor.  This  would result  in a change of ownership
 through  the purchase  of shares from numerous  shareholders  who are
 not  parties to  this action.  . . . Clearly  the status quo would be
irreversibly  altered if the tender  could not be undone.           

      . . . Most  obviously,  Defendants  could be  forced to  put TCI
 up for sale by soliciting other bidders or holding an auction.  Simon
 says  that it  is entitled  to force  Defendants'  hand at  this time
  and in this manner; otherwise it will lose the benefit of its victory.

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      Simon's  argument ignores  the  fact  that  the  Court's  ruling
       is  preliminary,  not  final,  and  is  intended only to preserve
       Simon's  rights  until a final decision on the merits.  . . . For
       these reasons,  the  Court finds that the balance of harms weighs
in favor of Defendants.                                   

(R.101, Stay Order at 7-8, J.A. ___.)                                           

      In staying  the  preliminary  injunction,  the  district  court  correctly
recognized  that the radical relief it had granted SPG -  disenfranchisement  of
33.6% of the voting power of a major Michigan  corporation on a truncated  paper
record - would  likely  result  in the sale of the  Company  and  should  not be
imposed until the final outcome of this case.  This same  reasoning  should have
prevailed in the first  instance and  counseled  against  granting a preliminary
injunction before a trial on the merits.                                        

CONCLUSION

      The Control  Share  Acquisitions  Act is triggered  only when an acquiring
person  ACQUIRES  the actual  power in fact to direct  the  voting of  another's
shares.  Such an  acquisition  did not  occur in this  case.  In  addition,  the
adoption of the bylaw  amendment was a proper  exercise of the Board's  business
judgment.                                                                       

      Defendants  respectfully  ask the Court to reverse the  Amended  Order and
dissolve the  preliminary  injunction  granted by the district court because (i)
the district  court's  construction of the Act is wrong as a matter of law, (ii)
the  district  court  never  gained  personal  jurisdiction  over  the  nonparty
signatories  to the  voting                                                     

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agreements,  (iii) SPG never moved for injunctive  relief in regard to the bylaw
amendment,  and the  amendment  was a proper  exercise of the  Board's  business
judgment, and (iv) the balance of harms weighs in favor of Defendants, not SPG. 

 Respectfully submitted,

By: /s/ Joseph Aviv 
                           -----------------------------------------
         Joseph Aviv (P 30014)
            Bruce L. Segal (P 36703)
                Matthew F. Leitman (P 48999)
        Miro Weiner & Kramer
Suite 100   
         38500 Woodward Avenue
                         Bloomfield Hills, Michigan 48303-0908
             Telephone: (248) 258-1207
             Facsimile: (248) 646-4021

          I.W. Winsten (P 30528)
OF COUNSEL                        Raymond W. Henney (P 35860)                   
                           Honigman  Miller Schwartz and Cohn, LLP
Wachtell, Lipton, Rosen & Katz    2290 First National Building                  
51 West 52nd Street               Detroit, Michigan 48226-3583                  
New York, New York 10019          Telephone: (313) 465-7000                     

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Dates Referenced Herein and Documents Incorporated by Reference

		Referenced-On Page
This ‘SC 14D9/A’ Filing	Date	First	Last	Other Filings

Filed on:	7/8/03
	5/20/03	23
	5/12/03	28		PRRN14A, SC 14D9/A, SC TO-T/A
	5/9/03	12	23	8-K, DEFA14A, DFAN14A, SC 14D9/A, SC TO-T/A
	5/8/03	12	22
	5/2/03	22		DEFA14A, DFAN14A, SC 14D9/A, SC TO-T/A
	5/1/03	21	29	DEFA14A, DFAN14A, SC 14D9/A, SC TO-T/A
	3/21/03	55		PREC14A, SC TO-T/A
	1/31/03	20		SC 14D9/A
	1/28/03	30	31	SC 13D/A, SC 14D9/A
	1/22/03	20		SC 13G/A, SC 14D9/A, SC TO-T/A
	1/15/03	28		SC 14D9/A, SC TO-T/A
	12/26/02	19
	12/20/02	20	68	PREC14A, SC 14D9/A
	12/18/02	29	68
	12/16/02	19		PREC14A, SC TO-T/A
	12/11/02	29		SC 14D9
	12/10/02	28
	12/5/02	16	28	PREC14A, SC TO-T
	11/15/02	27		SC 13D/A
	11/14/02	18	26
	10/28/02	26
	10/16/02	26
	8/17/98	25
	11/20/92	24
				List all Filings

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Filing Submission 0000898822-03-000696 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

Taubman Centers Inc – ‘SC 14D9/A’ on 7/8/03 re: Taubman Centers Inc – EX-99

On: Tuesday, 7/8/03, at 8:31am ET · Accession #: 898822-3-696 · File #: 5-42862

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Amendment to Tender-Offer Solicitation/Recommendation Statement — Schedule 14D-9Filing Table of Contents

EX-99 — Brief of Appellants Filed by Taubman July 7, 2003Exhibit Table of Contents

Dates Referenced Herein and Documents Incorporated by Reference

Amendment to Tender-Offer Solicitation/Recommendation Statement — Schedule 14D-9
Filing Table of Contents

EX-99 — Brief of Appellants Filed by Taubman July 7, 2003
Exhibit Table of Contents