Case LSS Doc 246 Filed 12/28/15 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE.

Transcription

1 Case LSS Doc 246 Filed 12/28/15 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: MILLENNIUM LAB HOLDINGS II, LLC, et, 1 Debtors. Chapter 11 Case No (LSS) (Jointly Administered) DESIGNATION OF RECORD AND STATEMENT OF ISSUES ON APPEAL PURSUANT TO FED. R. BANKR. P. 8009(a) Pursuant to Fed. R. Bankr. P. 8009(a), the Opt-Out Lenders, as defined in the Supplemental Verified Statement of Lowenstein Sandler LLP and Whiteford, Taylor & Preston LLP [D.I. 123], hereby submit their designation of the record on appeal and statement of issues on appeal in connection with their appeal from the Findings of Fact, Conclusions of Law and Order (I) Approving the (A) Prepetition Solicitation Procedures, (B) Forms of Ballots, (C) Adequacy of Disclosure Statement Pursuant to Sections 1125 and 1126(c) of the Bankruptcy Code, and (D) Form and Manner of Notice of Combined Hearing and Commencement of Chapter 11 Cases, and (II) Confirming the Prepackaged Joint Chapter 11 Plan of (the Confirmation Order ) [D.I. 195] and respectfully state as follows: 1 The Debtors and the last four digits of their respective taxpayer identification numbers are as follows: Millennium Lab Holdings II, LLC (5299); Millennium Health, LLC (5558) ( Millennium ); and RxAnte, LLC (0219). The Debtors address is Via Tazon, San Diego, California /3 12/28/

2 Case LSS Doc 246 Filed 12/28/15 Page 2 of 8 DESIGNATION OF THE RECORD ON APPEAL The Opt-Out Lenders hereby designate the following pleadings and other documents as the record on appeal: ITEM NO. FILING DATE ECF DOC. NO. 1 11/10/ /10/ /10/ /10/ /12/ PLEADING / DOCUMENT Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et Offering Memorandum and Solicitation Statement for Out-of-Court Transaction and Disclosure Statement for Prepackaged Plan of Reorganization Debtors Motion Under 11 U.S.C. 105, 365, 1125, 1126, 1128, and 1129 and Fed. R. Bankr. P. 2002, 3017, 3018, 3020, 6004, and 9019, and Del. Bankr. L.R for Order (I) (A) Approving Prepetition Solicitation Procedures and (B) Approving Procedures for Determining Adequacy of Disclosure Statement and Considering Confirmation of Plan; (II) (A) Approving Adequacy of Disclosure Statement and (B) Confirming Plan of Reorganization; (III) Authorizing Assumption of USA Settlement Agreements and Restructuring Support Agreement; and (IV) Granting Related Relief Declaration of James Daloia of Prime Clerk LLC Regarding the Solicitation of Votes and Tabulation of Ballots Cast on the Prepackaged Joint Plan of Order Pursuant to 11 U.S.C. 105, 365, 1125, 1126, 1128, and 1129 and Fed. R. Bankr. P. 2002, 3017, 3018, 3020, 6004, and 9019, and Del. Bankr. L.R (I) Approving Procedures for Determining Adequacy of Disclosure Statement and Considering Confirmation of Plan; and (II) Scheduling Hearing on Assumption Order 6 11/13/ Transcript of Hearing Held 11/12/ /25/ /1/ /4/ Plan Supplement for the Prepackaged Joint Plan of Second Plan Supplement for the Prepackaged Joint Plan of Memorandum of Law of the Opt-Out Lenders in Opposition to (I) Approval of the Disclosure Statement, (II) Approval of the Class 2 Ballot, and (III) Confirmation of the Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, et -2-

3 Case LSS Doc 246 Filed 12/28/15 Page 3 of 8 ITEM NO. FILING DATE ECF DOC. NO /4/ /7/ /7/ /7/ /7/ /7/ /9/ /9/ /9/ /9/ /9/ /9/ /9/ /9/ PLEADING / DOCUMENT Supplemental Verified Statement of Lowenstein Sandler LLP and Whiteford, Taylor & Preston LLP Pursuant to Bankruptcy Rule 2019 United States Trustee s Objection to Confirmation of the Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et Response of Debtors to Voya Objection to Confirmation of Proposed Chapter 11 Plan Compendium of Unreported Authorities With Respect to Debtors Response to Voya Objection to Confirmation of Proposed Chapter 11 Plan Declaration of David S. Kurtz in Support of (I) Confirmation of the Debtors Plan and (II) Debtors Response to Voya Objection to Confirmation of Debtors Chapter 11 Plan Joinder of James Slattery in Support of Confirmation of the Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et Declaration of Ray Garson in Support of Confirmation of Debtors Chapter 11 Plan Declaration of Thomas Ewald in Support of Confirmation of Debtors Chapter 11 Plan Declaration of William Brock Hardaway in Support of (I) Confirmation of the Debtors Plan and (II) Debtors Response to Objection of the United States Trustee to Confirmation of Proposed Chapter 11 Plan Memorandum of Law in Support of Entry of an Order Confirming the Amended Prepackaged Joint Plan of Declaration of George D. Pillari in Support of Confirmation of Debtors Chapter 11 Plan Supplemental Memorandum of Law of the Opt-Out Lenders in Opposition to (I) Approval of the Disclosure Statement, (II) Approval of the Class 2 Ballot, and (III) Confirmation of the Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, et Third Plan Supplement for the Amended Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et Notice of Filing of Redacted Copy of the Complaint in the Civil Action Styled as ISL Loan Trust, et v. TA Associates Management, L.P., et, Case No. 1:15-cv (D. Del.) -3-

4 Case LSS Doc 246 Filed 12/28/15 Page 4 of 8 ITEM NO. FILING DATE ECF DOC. NO /9/ PLEADING / DOCUMENT Amended Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et 25 12/11/ Transcript of Hearing Held 12/10/ /14/ Letter Regarding Form of Proposed Confirmation Order 27 12/14/ Confirmation Order (as defined above) 28 12/14/ Notice of Appeal of the Confirmation Order 29 12/14/ /14/ /14/ Opt-Out Lenders Emergency Motion for Certification of Direct Appeal to the United States Court of Appeals for the Third Circuit Pursuant to 28 U.S.C. 158(d)(2) Motion of the Opt-Out Lenders for Stay Pending Appeal of Order Confirming Amended Prepackaged Joint Plan of Motion to Shorten Notice for (I) Opt-Out Lenders Emergency Motion for Certification of Direct Appeal to the United States Court of Appeals for the Third Circuit Pursuant to 28 U.S.C. 158(d)(2) and (II) Motion of the Opt-Out Lenders for Stay Pending Appeal of Order Confirming Amended Prepackaged Joint Plan of 32 12/15/ Transcript of Hearing Held 12/11/ /15/ Receipt of Filing Fee for Notice of Appeal 34 12/15/ Order Temporarily Staying Confirmation Order 35 12/16/ /16/ /16/ Order Under 11 U.S.C. 102(1) and 105(a), Fed. R. Bankr. P and Bankr. D. Del. L.R (e) Shortening Notice (I) Scheduling Status Conference on Opt-Out Lenders Emergency Motion for Certification of Direct Appeal to the United States Court of Appeals for the Third Circuit Pursuant to 28 U.S.C. 158(d)(2) and (II) Scheduling Hearing on Motion of the Opt-Out Lenders for Stay Pending Appeal of Order Confirming Amended Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et Ad Hoc Consortium of Secured Lenders Objection to Voya s Motion for Stay Pending Appeal of Confirmation Order Debtors Opposition to Voya s Motion for Stay Pending Appeal of Confirmation Order 38 12/16/ Declaration of Service re: D.I /16/ Declaration of Service re: D.I /16/ Declaration of Service re: D.I. 202, 203, 204,

5 Case LSS Doc 246 Filed 12/28/15 Page 5 of 8 ITEM NO. FILING DATE ECF DOC. NO /17/ /17/ /18/ PLEADING / DOCUMENT Reply in Further Support of the Opt-Out Lenders Motion for Stay Pending Appeal of Order Confirming Amended Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et Notice of Hearing (Continued) Regarding Motion of the Opt-Out Lenders for Stay Pending Appeal of Order Confirming Amended Prepackaged Joint Plan of Order Denying Motion of the Opt-Out Lenders for Stay Pending Appeal of Order Confirming Amended Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et 44 12/21/ Transcript of Hearing Held 12/17/ /21/ Transcript of Hearing Held 12/18/ /21/ /22/ /28/ Debtors Opposition to Voya s Motion to Certify Direct Appeal to the Third Circuit Court of Appeals Notice of Hearing Regarding Opt-Out Lenders Emergency Motion for Certification of Direct Appeal to the United States Court of Appeals for the Third Circuit Pursuant to 28 U.S.C. 158(d)(2) Reply in Further Support of Opt-Out Lenders Emergency Motion for Certification of Direct Appeal to the United States Court of Appeals for the Third Circuit Pursuant to 28 U.S.C. 158(d)(2) The Bankruptcy Court has scheduled a hearing on the Opt-Out Lenders Emergency Motion for Certification of Direct Appeal to the United States Court of Appeals for the Third Circuit Pursuant to 28 U.S.C. 158(d)(2) (the Certification Motion ) [D.I. 203] for December 30, 2015 at 11:00 a.m. (ET), after the date this designation and statement is due pursuant to Fed. R. Bankr. P Accordingly, the Opt-Out Lenders reserve the right to supplement the foregoing designation of the record on appeal as appropriate following the hearing on the Certification Motion. -5-

6 Case LSS Doc 246 Filed 12/28/15 Page 6 of 8 STATEMENT OF THE ISSUES ON APPEAL The Opt-Out Lenders hereby state the following as the issues on appeal pursuant to Fed. R. Bankr. P. 8009(a)(1)(A): 1. Can Bankruptcy Courts exercise related to jurisdiction over a non-debtor s direct claims against other non-debtors for fraud and other willful misconduct on the basis of contractual indemnification agreements by the debtor of the other non-debtors that expressly and/or as a matter of law preclude indemnification for acts of fraud, wilfull misconduct, and violations of the Racketeer Influenced and Corrupt Organization (RICO) Act? 2. Do Bankruptcy Courts have the authority to release a non-debtor s direct claims against other non-debtors for fraud and other willful misconduct without the consent of the releasing non-debtor? 3. Assuming arguendo that Bankruptcy Courts do have authority to release a nondebtor s direct claims against other non-debtors for fraud and other willful misconduct without the consent of the releasing non-debtor, what standard of law governs the approval of such releases where no consideration is paid for the release? 4. Can services performed by a debtor s directors, officers, and employees in connection with the debtor s reorganization constitute a financial contribution to the debtor s estate? 5. Can a financial contribution made by a non-debtor to a debtor s estate be a financial contribution also made on behalf of other, and otherwise non-contributing, nondebtors? 6. Assuming arguendo that the Bankruptcy Court (a) properly determined that it had subject-matter jurisdiction and legal authority to release the non-debtor Opt-Out Lenders direct -6-

7 Case LSS Doc 246 Filed 12/28/15 Page 7 of 8 claims against other non-debtors for fraud and other willful misconduct without the Opt-Out Lenders consent and (b) applied the correct legal standard to its review of such releases, did the Bankruptcy Court err in concluding that the facts of this case warranted such a release? [ signature page follows ] -7-

8 Case LSS Doc 246 Filed 12/28/15 Page 8 of 8 Dated: December 28, 2015 Respectfully Submitted, LOWENSTEIN SANDLER LLP Sheila Sadighi Sharon L. Levine Andrew Behlmann 65 Livingston Avenue Roseland, New Jersey Tel: Fax: slevine@lowenstein.com ssadighi@lowenstein.com abehlmann@lowenstein.com Counsel to the Opt-Out Lenders 2 WHITEFORD, TAYLOR & PRESTON LLC /s/ Christopher M. Samis Christopher M. Samis (Del. Bar No. 4909) L. Katherine Good (Del. Bar No. 5101) The Renaissance Centre 405 North King Street, Suite 500 Wilmington, Delaware Tel: Fax: csamis@wtplaw.com kgood@wtplaw.com Delaware Counsel to the Opt-Out Lenders 2 As to all of the Opt-Out Lenders other than Axis Specialty Limited, which is represented in this matter solely by Whiteford, Taylor & Preston LLC. -8-