Case BLS Doc 724 Filed 11/30/18 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) )

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1 Case BLS Doc 724 Filed 11/30/18 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: JMO Wind-Down, Inc. ) ) ) ) ) ) ) ) Chapter 11 Case No (BLS) (Jointly Administered) Re D.I.: 720, 721, 722, and 723 REPLY TO OBJECTIONS TO MOTION FOR CHARGING LIEN The Bifferato Firm, P.A. ( Bifferato ) and Dentons US LLP ( Dentons ), by and through the undersigned counsel, hereby respond to the JMO Winddown Liquidating Trust s Objection to Motion for Charging Lien Filed by The Bifferato Firm, P.A. and Dentons US LLP, and all joinders thereto. In support of their response, Bifferato and Dentons asserts the following: 1. The error in the Trust s objection is that it ignores the equitable nature of a charging lien and assumes that money must be flowing to the client has not paid his or her attorneys fees and costs. The cases in fact do not stand for the latter proposition. 2. A charging lien is an equitable right to have costs advanced and attorney s fees secured by the judgment entered in the suit wherein the costs were advanced and the fee earned. Decembre v. Perdue Farms,2017 WL (July 25, 2017) quoting Katten Muchin Rosenman LLP v. Sutherland, 153 A.3d 722, 726 (Del. 2017). There is no precedent that suggests that a charging lien may only attach to funds being paid to a non-paying client. 3. It is quite arguably more equitable that the proceeds being paid by the non-compliant party be subject to being liened, particularly in a court of equity that will determine the reasonableness of the settlement under FRBP 9019.

2 Case BLS Doc 724 Filed 11/30/18 Page 2 of 4 4. The language in the Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem l Hosp., Inc., 36 A.3d 336, 340 (Del. 2012) cited in both movants pleadings and the Liquidating Trusts Objection that refers to funds recovered for the client, was specific to that case in which the firm recovered on a personal injury claim and the plaintiff law firm asserted its rights to a contingency fee. That does not create a legal precedent that lawyers who represent defendants for years are not entitled to payment from their client who will be paying into a settlement. 5. As the Liquidating Trust correctly points out, there must be a fund to which the lien can attach. Citing Ramunno & Ramunno, P.A. v. Potter, 2016 WL , at *2-3 (Del. Super. May 10, 2016), the Liquidating Trustee quotes More simply, the action is directed against the fund, and in order to succeed, there much be a fund to which the lien can attach. This is precisely the reason why Rule 9019 and 11 U.S.C 105 provide the basis for the lien to attach to the anticipated settlement fund in this case. 6. The Liquidating Trust also points out that movants do want a direction that their outstanding fees and costs be paid by Mattes prior to the distribution of any settlement proceeds or in addition to any settlement proceeds. 7. All of the equities weigh in favor of the imposition of a lien on any funds that this Honorable Court approves as part of any settlement. 8. There has been and cannot now, after so many years, be any objection to the validity and reasonableness of the pending fees. Indeed, both Bifferato and Dentons have been repeatedly promised payment of all outstanding fees and costs by Mr. Mattes. (See Affidavits of Charles Dorkey, III and Ian Connor Bifferato, attached hereto as Exhibits A and B respectively.)

3 Case BLS Doc 724 Filed 11/30/18 Page 3 of 4 9. While Dentons and Bifferato would like to avoid the necessity of asserting a lien and trust that the firms will be paid, time has run out and past history has not provided either firm with a basis upon which to rely on representations that payment is forthcoming. 10. There are no authorities that require that fund that is to be attached is a fund that is coming to or for the benefit of the non-paying client. In equity, such a conclusion would not make sense because it would create an artificial distinction between the value of legal services provided by counsel for plaintiff versus counsel for the defendant. Again, if a defendant is paying money into a fund for a settlement as the case law describes as necessary, the equity clearly lie in favor of the imposition of a charging lien for the attorneys who spent years and advanced thousands of dollars for that party. To suggest otherwise, would be to assert that counsel to a defendant in which a settlement fund is created should be required to provide their services and advance funds with no remuneration, while plaintiffs counsel are entitled to an entirely different standard. 11. Even the Decembre v. Perdue Farms decision found the basis for not imposing a charging lien was only the lack of a fund to which the lien could attach. It would be entirely inequitable to allow the Liquidating Trust and other parties to benefit from the representation provided by counsel for Mr. Mattes, at the expense of those counsel. We expect that counsel for the Trust will be seeking fees for their services. Those fees would come directly at the expense of counsel for Mr. Mattes if an appropriate charging line is not imposed on any settlement of the pending litigation. 12. Again, as the Liquidating Trustee points out, the parties in the final stages of documenting the settlement among the parties. The issuance of a charging lien in advance of the finalization of the settlement documents and in advance of a F.R.B.P.

4 Case BLS Doc 724 Filed 11/30/18 Page 4 of motion is critical. The existence of a lien on the settlement fund will affect how the parties finalize the settlement. Objection to a forthcoming F.R.B.P motion, and request for a charging lien at that time will be too late for the parties and the movants. WHEREFORE, Bifferato and Dentons respectfully request that this Honorable Court issue an order imposing a charging lien on any settlement funds in any litigation involving a settlement between the Liquidating Trust and Mr. Mattes, regardless of the source of those funds, in order based on an in camera review of counsel s fees. Respectfully submitted, Dated: November 30, 2018 THE BIFFERATO FIRM, P.A. /s/ Ian Connor Bifferato Ian Connor Bifferato (I.D. No. 3273) Kimberly L. Gattuso (I.D. No. 3733) 1007 N. Orange Street, 4th Floor (302) cbifferato@tbf.legal kgattuso@tbf.legal -and- DENTONS US LLP Charles E. Dorkey III Ulyana Bardyn 1221 Avenue of the Americas New York, New York Telephone: (212) charles.dorkey@dentons.com ulyana.bardyn@dentons.com

5 Case BLS Doc Filed 11/30/18 Page 1 of 6 EXHIBIT A

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11 Case BLS Doc Filed 11/30/18 Page 1 of 3 EXHIBIT B

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14 Case BLS Doc Filed 11/30/18 Page 1 of 3 CERTIFICATE OF SERVICE I, Ian Connor Bifferato, hereby certify that on this 30 th day of November, 2018, a copy of the foregoing Reply to Objections to Motion for Charging Lien was caused to be served on the attached service list via CM/ECF and U.S. Mail. /s/ Ian Connor Bifferato Ian Connor Bifferato (#3273)

15 Case BLS Doc Filed 11/30/18 Page 2 of 3 Andrew S. Dupre, Esquire Kate Roggio Buck, Esquire Alexander M. Krischik, Eqsuire McCarter & English LLP Renaissance Centre 405 N. King Street, 8th Floor Manny A. Abascal, Esq. Andrew R. Gray, Esq. Ted A. Dillman, Esq. Faraz R. Mohammadi, Esq. Latham & Watkins, LLP 355 South Grand Avenue, Suite 100 Los Angeles, CA J Jackson Shrum, Esq. Jack Shrum, P.A. One Commerce Center 1201 N. Orange Street, Suite 502 William P. Bowden, Esq. Catherine A. Gual, Esq. Peter H. Kyle, Esq. Ashby & Geddes 500 Delaware Avenue, 8th Floor P.O. Box 1150 Wilmington, DE Michael Busenkell, Esq. Margaret F. England, Esq. Gellert Scali Busenkell & Brown, LLC 1201 North Orange Street, Suite 300 Christopher C. Cooke, Esq. Patrick Murphy, Esq. Murphy Cooke Kobrick LLP 177 Bovet Road, Suite 600 San Mateo, CA Michael R. Nestor, Esq. Elena C. Norman, Esq. Young Conway Stargatt & Taylor, LLP Rodney Square 1000 North King Street Eric D. Schwartz, Esq. Andrew R. Remming, Esq. Susan Wood Waesco, Esq. Lauren Neal Bennett, Esq. Morris, Nichols Arsht & Tunnell, LLP 1201 North Market Street, 16th Floor P.O. Box 1347 Wilmington, DE Michael L. Bernstein, Esq. Arthur Luk, Esq. Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC Todd C. Schiltz, Esq. Ryan T. Costa, Esq. Drinker Biddle & Reath LLP 222 Delaware Avenue, Suite 1410 George W. Shuster, Jr., Esq. Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, NY Christopher A. Ward, Esq. Shanti M. Katona, Esq. Polsinelli PC 222 Delaware Avenue, Suite 1101

16 Case BLS Doc Filed 11/30/18 Page 3 of 3 Randye B. Soref, Esq. Polsinelli PC 2049 Century Park East, Suite 2900 Los Angeles, CA Mit S. Winter, Esq. Polsinelli PC 900 W. 48th Place, Suite 900 Kansas City, MO Adam G. Landis Kimberly A. Brown James S. Green, Jr. Landis Rath & Cobb LLP 919 Market Street, Suite 1800 James P. Martin, Esq. Polsinelli PC 100 S. Fourth St., Suite 1000 St. Louis, MO David L. Buchbinder, Esq. Office of the US Trustee J. Caleb Boggs Federal Building Suite 2207 Leo D. Plotkin, Esq. Levy, Small & Lallas 815 Moraga Drive Los Angeles, CA Michael Duggan, Esquire Marks O Neill O Brien Doherty Kelly 300 Delaware Avenue,Suite 900