Case pwb Doc 350 Filed 02/17/17 Entered 02/17/17 16:16:38 Desc Main Document Page 1 of 19

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1 Document Page 1 of 19 IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION In re: ) Chapter 11 ) ASTROTURF, LLC, ) Case No PWB ) ) Debtor. ) ) DEBTOR S SUPPLEMENTAL OBJECTION TO FIELDTURF USA, INC. AND TARKETT, INC. S MOTION FOR RELIEF FROM THE STAY AstroTurf, LLC (the Debtor ) hereby files this supplemental 1 objection (this Objection ) to FieldTurf USA, Inc. and Tarkett, Inc. s Motion for Relief from the Stay [Docket No. 260] (the Motion ). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion. In support of this Objection, the Debtor respectfully shows the Court as follows: Preliminary Statement 2 1. Since the initial hearing on the Motion, there are new factors that further support the Debtor s contention that the automatic stay must remain in place. In summary, (1) the Patent Case is now moot and there is no reason for litigation of any sort to continue against the Debtor; and (2) there are gating issues now before this Court that will determine whether FieldTurf can proceed at all, against any of its proposed new defendants in the Patent Case and those issues 1 On October 28, 2016, the Debtor filed its initial objection to the Motion [Docket No. 281] (the Initial Objection ). During the status conference on the Motion held on February 7, 2017, the Court permitted the parties to file supplemental briefs with respect to the Motion. The Initial Objection is hereby incorporated into this Objection in its entirety. 2 Capitalized terms used but not defined in this Preliminary Statement have the meanings ascribed to them below. DMSLIBRARY01\ v5

2 Document Page 2 of 19 should be decided before the Court sends the Debtor back to protracted and expensive litigation in Michigan. 2. First, the Estimation Proceeding has concluded and this Court will soon enter an order fixing FieldTurf s claim against the Debtor. 3 The Court s order fixing FieldTurf s claim will be a final determination of the claim and subject to principles of finality (e.g., res judicata and collateral estoppel). The Debtor is the only defendant in the Patent Case. Now that this Court has fixed the claim of FieldTurf, there is absolutely no reason for that litigation to continue. Notwithstanding the fixing of FieldTurf s claim pursuant to the Estimation Proceeding, the District Court in the Patent Case indicated on February 9, 2007 that, if the automatic stay is lifted, it intends to promptly decide the motions pending before it and enter a judgment in the case. Although the Patent Case can serve no further purpose, the District Court will likely mistake this Court s lifting of the automatic stay for a signal that it is appropriate, under applicable bankruptcy law, for the Patent Case to continue against the Debtor. However, a judgment against the Debtor that is at odds with this Court s order fixing FieldTurf s claim is inconsistent with Section 502(c) of the Bankruptcy Code and will lead to substantial confusion. The Debtor will be compelled to preserve its objections and appeal any such judgment the Debtor cannot be expected to sit idly by and let the judgment become final without appealing it. 4 3 As of the filing of this Objection, the parties had reached agreement on the form of order fixing FieldTurf s claim and the order has been uploaded to the Court. 4 In consultation with its professionals and advisors, the Debtor has concluded that its continued participation in the Patent Case would not adversely impact any of its creditors (except for TMA). Under the Settlement Agreement approved by the Court, the unsecured creditors in this case are entitled to a pro rata distribution from the Unsecured Creditors Pool. Because the FieldTurf litigation expenses have already exceeded $1,000,000, any expenses subsequently incurred in the Patent Case will be paid from funds that otherwise would be distributed to TMA, as the Debtor s prepetition lender (in such capacity, the Prepetition Lender ). These funds constitute the cash collateral of the Prepetition Lender and, with the Prepetition Lender s 2

3 Document Page 3 of 19 This would be a waste of the parties resources and judicial resources and would undermine, completely, the purpose of the Estimation Proceeding. Lifting the automatic stay will substantially prejudice both the Debtor and its estate. 3. Another new factor is the commencement by TMA and the Peeples of an Adversary Proceeding seeking enforcement of the Settlement Order entered by this Court. If the Court is still inclined to lift the automatic stay to permit the Patent Case to proceed against the Debtor, it should first decide the issues presented by the Adversary Proceeding (i.e., whether FieldTurf s Supplemental Complaint violates the Settlement Order). The Settlement Agreement approved by the Court was vigorously negotiated by the Debtor and the Official Committee of Unsecured Creditors (the Committee ) and resulted in a far better outcome for unsecured creditors than if the underlying issues had been fully litigated indeed, although TMA s allowed secured claim makes it the Debtor s largest creditor, the unsecured creditors (including FieldTurf) stand to receive a larger distribution from the Debtor s estate (both as a percentage of their claim and in aggregate dollars) than TMA. In exchange for the substantial value given up by TMA, the Debtor released TMA, the Peeples, and the other Released Parties. The scope and content of that release was critical to the Settlement Agreement and was expressly set forth in the Settlement Order. Because this Court retained jurisdiction with respect to the Settlement Order, it is appropriate for this Court to determine whether FieldTurf is attempting to assert claims against TMA and the Peeples that are property of the Debtor s estate and released pursuant to the Settlement Order. That issue should be decided by this Court before the Patent Case proceeds against the Debtor (if it proceeds at all). consent, may be used to pay for litigation expenses reasonably incurred by the Debtor. The payment of any such fees and expenses will in no way reduce the pool of funds available for distribution to unsecured creditors. Accordingly, absent objection by the Prepetition Lender to the use of its cash collateral, the Debtor will defend itself in the Patent Case. 3

4 Document Page 4 of Finally, FieldTurf will not be prejudiced by the maintenance of the automatic stay (and any prejudice certainly does not considerably outweigh the prejudice to the Debtor as required to warrant lifting the stay). If FieldTurf believes that it holds valid (non-released) claims against TMA and the Peeples, it is absolutely free to pursue such claims in a separate lawsuit. The Debtor is not trying to extend the automatic stay to protect its equityholders. Rather, the Debtor is simply asking that the stay be maintained to prohibit the continuation of any litigation directly against the Debtor. Subject to the limitations in the Settlement Order and applicable law, nothing prevents FieldTurf from pursuing claims against non-debtor entities. For these reasons, the Debtor respectfully requests that the Motion be denied. Background A. The Patent Case 5. In June 2010, FieldTurf commenced an action against the Debtor in the United States District Court for the Eastern District of Michigan (the District Court ), styled FieldTurf USA, Inc., et al. v. AstroTurf, LLC, Civ. Action No. 2:10-CV SJM-MJH (the Patent Case ), asserting that the Debtor infringed patent number 6,723,412 held by FieldTurf for synthetic grass meeting certain specifications. On October 9, 2015, the jury in the Patent Case rendered a verdict for FieldTurf in the amount of $30,000, AstroTurf was and remains the only defendant in the Patent Case. 7. On the Petition Date, the Debtor filed a Suggestion of Bankruptcy with the District Court, and on July 6, 2016, the District Court entered an order staying and administratively closing the Patent Case. 5 The Patent Case has not yet been reopened. 5 The District Court s order closing the Patent Case is attached to the Initial Objection as Exhibit A. 4

5 Document Page 5 of On August 8, 2016 just three days before the contested sale hearing in this bankruptcy case FieldTurf filed a motion in the District Court to reopen the Patent Case and file a supplemental complaint (the Motion to Reopen ). The Motion to Reopen included a copy of FieldTurf s supplemental complaint (the Supplemental Complaint ), which sought to add TMA and the Debtor s other equityholders (i.e., William B. Peeples and George T. Peeples (the Peeples )) as defendants to the Patent Case and assert alter ego and veil piercing claims against those defendants. 6 FieldTurf s counsel has effectively conceded that the Supplemental Complaint is inconsistent with this Court s order approving the Settlement Agreement. (See Hr g Tr. Nov. 1, 2016, at p. 45:13 14.) 7 FieldTurf has never demonstrated to this Court that it can articulate claims against TMA and the Peeples that would resolve the problem. B. Settlement Agreement and Settlement Order 9. On August 31, 2016, the Court entered its Order Authorizing and Approving Settlement Agreement [Docket No. 224] approving the Settlement Agreement (attached as Exhibit A to the Settlement Order, the Settlement Agreement ) by and among the Debtor, the Committee, Textile Management Associates, Inc. ( TMA ), and certain other related parties (together with TMA, the Other Sellers ). The Settlement Order, which incorporated the Settlement Agreement, provided for the following (among other things): The Committee withdrew its opposition to the Debtor s proposed sale. Sale proceeds in the amount of $13,500,000 less the costs and expenses of objecting to the FieldTurf claim (in an amount not to exceed $1,000,0000) will be set aside for distribution to unsecured creditors (the Unsecured Creditors Pool ) 6 The Motion to Reopen constituted an intentional and willful violation of the automatic stay because it was an action to continue pending litigation against the Debtor. 7 Excerpts from the November 1, 2016 hearing transcript are attached hereto as Exhibit A. 5

6 Document Page 6 of 19 and the Unsecured Creditors Pool will be the sole source of recovery for unsecured creditors (including FieldTurf) in this case. All remaining sale proceeds will be used to pay all valid administrative claims, 503(b)(9) claims, and priority claims. The proceeds remaining after those payments will be distributed to TMA on account of its prepetition secured claim of $37,250,00 (which is deemed allowed and not subject to objection). The release by the Debtor and its estate of the Other Sellers and certain other released parties (collectively, the Released Parties ) of all claims (the Released Claims ), including alter ego and veil piercing claims that are common to all creditors of the Debtor s estate and therefore could be asserted by the Debtor or its estate against any or all of the Released Parties (the General Alter Ego Claims ). 10. The Settlement Order further provided that: (a) the General Alter Ego Claims are property of the Debtor s estate and constitute Released Claims; and (b) claims against the Released Parties that are personal and specific to a particular creditor, including alter-ego claims that could be asserted by a particular creditor but excluding General Alter Ego Claims (collectively, Specific Claims ) are not property of the Debtor s estate and belong to the creditor that can assert such claims. C. Claim Estimation and Allowance Proceeding 11. On September 12, 2016, the Debtor and the Committee filed (as required by the Settlement Agreement) a joint motion seeking entry of an order requiring the estimation of FieldTurf s claim pursuant to Section 502 of the Bankruptcy Code [Docket No. 229] (the Estimation Motion ). 6

7 Document Page 7 of FieldTurf did not object to the Estimation Motion, and on September 22, 2016, the Court entered an Order Appointing a Special Purpose Examiner to Conduct and Make Recommendations Regarding the Estimation of the Claim of FieldTurf USA, Inc. and Tarkett, Inc. and Establishing Other Related Procedures, which established procedures for the estimation of FieldTurf s claim and appointed the Honorable Stanley Birch as a Special Purpose Examiner to estimate FieldTurf s claim (the Estimation Proceeding ) [Docket No. 241]. 13. On February 1, 2017, the Special Purpose Examiner submitted his report on the estimation of FieldTurf s claim [Docket No. 334]. No objections have been filed with respect to the report, and the objection deadline has expired. The parties have reached agreement on a form of order estimating and allowing FieldTurf s claim in the amount of $30,648,721 (the Claim Allowance Order ). The Claim Allowance order has been uploaded to the Court for entry, but as of the filing of this Objection it has not yet been entered. Legal Standard 14. When a debtor files a bankruptcy petition, an automatic stay applies to prevent, among other things, the continuation of a judicial action or proceeding that was commenced before the filing of the bankruptcy petition. 11 U.S.C. 362(a)(1). The stay also applies to any attempt to obtain possession of estate property or exercise control over estate property, as well as to attempts to... assess... a claim against the debtor that arose before the bankruptcy case commenced. See The Disciplinary Board of the Sup. Ct. of Pennsylvania v. Fiengold (In re Fiengold), 730 F.3d 1268, 1276 (11th Cir. 2013) (citing 11 U.S.C. 362(a)(3) and (6)). 15. A bankruptcy court may grant relief from the automatic stay for cause (see 11 U.S.C. 362(d)); the term cause is neither defined in Section 362(d) nor in other provisions of the Bankruptcy Code. In re Fiengold, 730 F.3d at

8 Document Page 8 of There is no set list of circumstances that a bankruptcy court is required to consider in evaluating whether 362(d)(1) cause exists to lift the automatic stay. Id. at Courts look to a variety of case-specific factors, including (1) whether the debtor has acted in bad faith; (2) the hardships imposed on the parties with an eye towards the overall goals of the Bankruptcy Code ; and (3) pending state court proceedings. Id. (internal citations omitted); see also In re Brown, 311 B.R. 409, (E.D. Pa. 2004) ( Unsecured creditors are generally entitled to relief from an automatic stay only in extraordinary circumstances. ). 17. Where a non-debtor party seeks to modify the automatic stay to permit the continuation of pending litigation against the debtor, courts in this jurisdiction typically consider: (a) [whether] any great prejudice to either the bankruptcy estate or the debtor will result from continuation of a civil suit, (b) [whether] the hardship to the [non-bankruptcy party] by maintenance of the stay considerably outweighs the hardship of the debtor, and (c) [whether] the creditor has a probability of prevailing on the merits of his case. In re Video Cassette Games, Inc., 108 B.R. 347, 349 (Bankr. N.D. Ga. 1989) (Drake, J.) (citing In re Pro Football Weekly, 50 Bankr. 824, 826 (N.D. Ill. 1986)). Argument A. New Developments in the Debtor s Bankruptcy Case Warrant Maintaining the Automatic Stay. 18. There are multiple new developments in this bankruptcy case that warrant maintaining the automatic stay with respect to the Patent Case. First, the automatic stay should remain in place because the determination and allowance of FieldTurf s claim now renders the Patent Case moot yet in a status conference held in the Patent Case on February 9, the District Court indicated that it intends to issue a judgment against the Debtor once the stay is lifted. Second, TMA and the Peeples have commenced an Adversary Proceeding seeking entry of a 8

9 Document Page 9 of 19 judgment against FieldTurf that, among other things, enforces the Settlement Agreement and enjoins FieldTurf from asserting Released Claims against TMA and the Peeples. Third, having effectively conceded that its current Supplemental Complaint is barred, FieldTurf still has not shown this Court a new Supplemental Complaint or otherwise articulated claims against TMA and the Peeples that are not released by the Settlement Agreement. Fourth, FieldTurf still has not taken steps to bring suit against TMA and the Peeples in an action that does not include the Debtor as it could do at any time without any further action by the Court. 1. The automatic stay should remain in place because the Patent Case is now Moot, and, notwithstanding the final determination and allowance of FieldTurf s claim by this Court, the District Court intends to enter a judgment against the Debtor. 19. There is absolutely no reason for the Patent Case to continue. The Debtor is the only defendant in that litigation, and the Debtor s liability with respect to FieldTurf s claim has now been fixed. This Court will soon enter an order allowing FieldTurf s claim in the amount recommended by the Special Purpose Examiner. This order will have the same effect as any other order of a court of competent jurisdiction and principles of finality apply, including the principles of res judicata and collateral estoppel. 4 Collier on Bankruptcy (emphasis added). There is nothing more for the District Court to do in connection with the Patent Case. 20. Contrary to the final determination by this Court of the Debtor s obligations to FieldTurf, the District Court has recently indicated that it still intends to enter a judgment in FieldTurf s suit against the Debtor. If a contrary judgment is entered, it will lead to substantial confusion and an unnecessary waste of the parties resources and judicial resources. If this Court lifts the automatic stay, the Debtor will be compelled to file pleadings with the District Court: (a) explaining that the Claim Allowance Order is a final order and is conclusive with respect to the Debtor s liability to FieldTurf with respect to the claims asserted in the Patent Case; (b) 9

10 Document Page 10 of 19 urging the District Court to refrain from entering any judgment against the Debtor that is contrary to the Claim Allowance Order; and (c) requesting that the District Court dismiss the Patent Case against the Debtor as moot. 21. In light of the final determination of FieldTurf s claim against the Debtor, the District Court should refrain from entering judgment and should dismiss the Patent Case as moot. However, the District Court may mistakenly view this Court s lifting of the stay as a signal that, under bankruptcy law, it is appropriate for the Patent Case to continue against the Debtor and for a judgment against the Debtor to be entered. If the District Court enters a judgment that is contrary to the Claim Allowance Order, the Debtor will be compelled to preserve its objections and appeal that order to the United States Court of Appeals for the Federal Circuit and argue, among other things, that this Court s Claim Allowance Order constitutes the final determination with respect to the Debtor s obligations to FieldTurf. This will completely undermine the purpose of the Estimation Proceeding, which was to avoid a lengthy and costly appeal process. 22. The parties (including FieldTurf) agreed to the estimation of the FieldTurf claim pursuant to the procedures established by the Court. But now FieldTurf wants a second bite at the apple. The purpose of the Estimation Proceeding was to provide a less time-consuming and less expensive process to establish the value of FieldTurf s claim. FieldTurf s attempt to reopen the Patent Case and pursue its claim against the Debtor in the District Court is completely at odds with that purpose. 23. FieldTurf has argued that it only intends to proceed on its alter ego claims against non-debtor entities. (See Hr g Tr. Nov. 1, 2016, at p. 46:9 10 ( Mr. McGuire:... What we re looking to do here is to proceed on these alter ego claims, to simply proceed on those, okay, 10

11 Document Page 11 of 19 Judge? ).) But this is inconsistent with the procedural posture and the practical realities of the Patent Case. The Debtor is the only defendant in the Patent Case. The District Court has indicated that, if the automatic stay is lifted, it intends to promptly enter a judgment and rule on other motions pending before that Court pertaining to the Debtor. 24. Now that the FieldTurf claim has been fixed, there is no reason for that litigation to proceed; it is entirely inappropriate for there to be dueling determinations of the Debtor s liability to FieldTurf. If the Patent Case proceeds against the Debtor, it will only lead to confusion, unnecessary expense, and waste of judicial resources. 2. The automatic stay should remain in place because there is an Adversary Proceeding pending before this Court seeking enforcement of the Settlement Order. 25. In addition to being moot and unnecessary, any further proceedings in the Patent Case are completely inconsistent with the terms of the Settlement Agreement. The Debtor was an active participant in the mediation conducted by Judge Hagenau, and the Debtor s efforts produced an excellent result for the unsecured creditors in this case (including FieldTurf). Indeed, the unsecured creditors (whose collective claims, including the FieldTurf claim, are substantially less than the allowed secured claim of TMA) will receive distributions from the Debtor s estate that are substantially more than the distributions that TMA, as the prepetition secured lender, is expected to receive. TMA gave up substantial value in exchange for the releases set forth in the Settlement Agreement. The Debtor owes fiduciary duties to its creditors (the largest of which is TMA) and has every right to enforce the terms of the Settlement Agreement and to take actions to ensure that the Settlement Agreement is not violated. 26. The Supplemental Complaint filed in the District Court with FieldTurf s Motion to Reopen asserts claims that, as FieldTurf acknowledges, have been released by the Debtor, are property of the Debtor s estate, and are not property of FieldTurf. At hearings before this Court, 11

12 Document Page 12 of 19 FieldTurf s counsel described the Supplemental Complaint as a draft (See Hr g Tr. Nov. 1, 2016, at p. 45:9 20), but the Supplemental Complaint was signed by FieldTurf s counsel and filed with the District Court as an exhibit to its Motion to Reopen. FieldTurf has not come forward with a new Supplemental Complaint that it could file consistent with the Settlement Agreement. 27. In light of this, TMA and the Peeples have appropriately commenced an Adversary Proceeding in this Court (Case No ) seeking, among other things, an order enjoining FieldTurf from asserting any type of veil-piercing or alter-ego claims against TMA unless this Court first determines that such claims are not General Alter Ego Claims (the Adversary Proceeding ). 28. The scope and content of the Released Claims was critical to the Settlement Agreement and the Debtor s ability to extract substantial value from the Other Sellers for the benefit of the unsecured creditors. As noted above, the Debtor vigorously negotiated and brokered a settlement among the Debtor, the Committee, TMA and the Other Sellers, and the terms of the Settlement Agreement are extremely favorable to the unsecured creditors (including FieldTurf) as they will likely receive close to 40% of their claims. As demonstrated by testimony from the Committee s financial advisor, this is a substantially better result than the unsecured creditors would have achieved had they contested the sale and pursued claims against TMA and the Other Sellers. To obtain this result, the Debtor agreed to release the Released Claims and the Settlement Order clearly retained jurisdiction with respect to the Settlement Agreement. 29. If the Court, notwithstanding the other arguments set forth herein, is inclined to lift the automatic stay and allow the Patent Case to proceed, the Court should wait until it rules on the pending Adversary Proceeding. Whether FieldTurf has a claim at all to pursue in 12

13 Document Page 13 of 19 Michigan is a fundamental gating issue. Restarting the Patent Case in Michigan before that issue is decided puts the cart before the horse. B. The applicable factors clearly weigh in favor of maintaining the automatic stay. 30. In light of the foregoing and the other arguments set forth in the Initial Objection, the factors enumerated in Judge Drake s decision in the Video Cassette Games, Inc. case clearly and strongly weigh in favor of leaving the automatic stay in place. The first factor presented by that opinion is whether any great prejudice to either the bankruptcy estate or the Debtor will result from the continuation of the civil suit. In re Video Cassette Games, Inc., 108 B.R. at 349 (emphasis added). Accordingly, the Court should not only consider the impact of lifting the automatic stay on the estate, but must also consider the impact on the Debtor. As noted above, the District Court has indicated that it intends to enter a judgment. If that judgment is adverse to the Debtor and contrary to this Court s Claim Allowance Order, the Debtor will not allow such a judgment without opposition, including an appeal. The Debtor is the only defendant in the Patent Case and, in light of the duties it owes to its creditors, cannot allow a jurisdictional appellate deadline to pass without challenging any action that is inconsistent with the Settlement Agreement and the estimation of FieldTurf s claim. Of course, the Estimation Proceeding was designed to obviate the need for a long appeal related to the claims asserted in the Patent Case. However, if the Court lifts the stay, the District Court s comments now make clear that the Debtor will face continued, lengthy litigation over the very claims that have already been estimated and fixed (in full, including the estimated impact of an appeal) per the agreed procedure of all the parties. The Debtor strongly opposes this duplicative, unnecessary, and unfair result. 31. The second factor courts consider is whether maintaining the automatic stay will cause hardship to the non-debtor that considerably outweighs the prejudice to the Debtor. 13

14 Document Page 14 of 19 FieldTurf will not suffer any material hardship if the automatic stay remains in place. If FieldTurf believes that it holds valid claims against the Debtor s equityholders, it is absolutely free to pursue such claims in a separate lawsuit that does not include the Debtor as a party. There is no demonstrated critical need for FieldTurf to pursue its claims in the Patent Case. 8 The Debtor is not trying to extend the automatic stay to protect its equityholders. Rather, the Debtor is simply asking that the stay be maintained to prohibit the continuation of any litigation directly against the Debtor. Indeed, if FieldTurf believes that it really holds valid, non-released claims against TMA and the Peeples, it is puzzling that FieldTurf has not yet commenced litigation directly against those parties. Accordingly, any hardship to FieldTurf from the maintenance of the automatic stay is both minimal and self-inflicted and certainly does not considerably outweigh the prejudice to the Debtor. 32. The third factor in the analysis is whether FieldTurf has a probability of prevailing on the merits in the Patent Case. As noted above, the Estimation Proceeding has resulted in a fixed and final determination of the Debtor s obligations to FieldTurf. FieldTurf agreed to this process and is not entitled to a second bite at the apple before the District Court. If probability of success were measured with respect to FieldTurf s alleged claims against the Debtor s equityholders, that too would fall far short. FieldTurf s only articulated alter ego claim is admittedly a general claim that is barred. Even if it had a claim to assert, the Committee s prior investigation of alter ego claims produced no information suggesting such claims had value. Accordingly, the third factor clearly favors maintaining the stay. 8 As a result of the pre-petition litigation, the District Court is, of course, intimately familiar with the issues related to FieldTurf s patent infringement claims. But in light of the final determination of FieldTurf s claim against the Debtor, those issues have been resolved and are no longer relevant. The District Court does not have any specialized familiarity with the alter ego and veil piercing allegations and issues raised by FieldTurf in the Supplemental Complaint, and the District Court would (like any other court) be considering those issues for the first time. 14

15 Document Page 15 of For these reasons and the other arguments presented in the Initial Objection, the Video Cassette Games, Inc. factors clearly weigh in favor of maintaining the automatic stay with respect to the Patent Case. Conclusion For the foregoing reasons, the Debtor respectfully requests that the Court deny the Motion and grant such further and other relief as the Court deems just and proper. [Remainder of the page intentionally blank.] 15

16 Document Page 16 of 19 Dated: February 17, 2017 Atlanta, Georgia Respectfully submitted, KING & SPALDING LLP /s/ Paul K. Ferdinands Paul K. Ferdinands Georgia Bar No Mark. M. Maloney Georgia Bar No Jeffrey R. Dutson Georgia Bar No Peachtree Street Atlanta, Georgia Telephone: (404) Facsimile: (404) COUNSEL FOR THE DEBTOR IN POSSESSION

17 Document Page 17 of 19 Exhibit A November 1, 2016 Hearing Transcript Page 45 and Page 46 DMSLIBRARY01\23906\

18 Document Page 18 of this in a minute. There just isn t any harm to the debtor in connection with allowing us to do that. Therefore, our rights against TMA and these other parties should not be impaired as a result of that. Secondly, as to the claims against TMA themselves, we are very happy to have the stay of relief order insofar as it involves these parties specify that we re only allowed to proceed on specific alter ego claims and not general alter ego claims. The draft complaint that Mr. Aho spent time going through was prepared well before the Court had ruled on the notion of general versus specific under Georgia law which is different Michigan law and the application of you know -- and those claims being released as part of the settlement. That complaint isn t the complaint that we ll be filing. It is 90 percent done being modified to fit within the strictures of what is and isn t permitted pursuant to this Court s order. THE COURT: So this is the draft complaint that was filed in August? MR. McGUIRE: Exactly, Your Honor. THE COURT: Okay. MR. McGUIRE: The one that we filed now would be different. It would be tailored to the rulings that Your Honor made in August to make sure that we re only pursuing the specific alter ego claims that we are permitted to bring. It would not include the general alter ego claims which are the

19 Document Page 19 of subject of the settlement. Easy peasy. That is what we will do. We are not looking to bring any claims that have been released. It will be different complaint. So case could be brought. Case could have continued if it had been brought. Will not involve property of the estate. There s no reason not to proceed against TMA against there s harm to the debtor. There s no reason. No reason. And there is no harm to the debtor here. Let me explain why. What we re looking to do here is to proceed on these alter ego claims, to simply proceed on those, okay, Judge? Everyday that goes by, the parties involved, they ve sold their main assets, people leave, people move on, documents dissipate. Every day that goes on, our case gets a little bit tougher to bring. So we think we should be allowed to proceed now. THE COURT: That brings me back to my -- if it s -- you know why not file it somewhere else? Avoid this problem. MR. McGUIRE: We don t think we should have to, Judge. Why not let us proceed here? We ve got every right to proceed here. There s no reason for us not to. We should be allowed to proceed in the forum of our selection unless there s a compelling reasons not to against these non-debtor parties. These are non-debtor parties that we re talking about here. There s no reason for us not to proceed. As to the debtor, Your Honor, the estimation

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