Case 15-12284-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. 15-12284 (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 16981 Via Tazon, San Diego, California 92127. 31170/3 12/28/2015 41533471.3
Case 15-12284-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 11/10/2015 14 2 11/10/2015 15 3 11/10/2015 16 4 11/10/2015 17 5 11/12/2015 60 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. 3017-1 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. 3017-1 (I) Approving Procedures for Determining Adequacy of Disclosure Statement and Considering Confirmation of Plan; and (II) Scheduling Hearing on Assumption Order 6 11/13/2015 73 Transcript of Hearing Held 11/12/2015 7 11/25/2015 114 8 12/1/2015 115 9 12/4/2015 122 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-
Case 15-12284-LSS Doc 246 Filed 12/28/15 Page 3 of 8 ITEM NO. FILING DATE ECF DOC. NO. 10 12/4/2015 123 11 12/7/2015 130 12 12/7/2015 131 13 12/7/2015 132 14 12/7/2015 134 15 12/7/2015 136 16 12/9/2015 169 17 12/9/2015 170 18 12/9/2015 171 19 12/9/2015 172 20 12/9/2015 173 21 12/9/2015 174 22 12/9/2015 179 23 12/9/2015 181 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- 01138 (D. Del.) -3-
Case 15-12284-LSS Doc 246 Filed 12/28/15 Page 4 of 8 ITEM NO. FILING DATE ECF DOC. NO. 24 12/9/2015 182 PLEADING / DOCUMENT Amended Prepackaged Joint Plan of Reorganization of Millennium Lab Holdings II, LLC, et 25 12/11/2015 190 Transcript of Hearing Held 12/10/2015 26 12/14/2015 194 Letter Regarding Form of Proposed Confirmation Order 27 12/14/2015 195 Confirmation Order (as defined above) 28 12/14/2015 202 Notice of Appeal of the Confirmation Order 29 12/14/2015 203 30 12/14/2015 204 31 12/14/2015 205 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 12/15/2015 206 Transcript of Hearing Held 12/11/2015 33 12/15/2015 207 Receipt of Filing Fee for Notice of Appeal 34 12/15/2015 209 Order Temporarily Staying Confirmation Order 35 12/16/2015 211 36 12/16/2015 212 37 12/16/2015 213 Order Under 11 U.S.C. 102(1) and 105(a), Fed. R. Bankr. P. 9006 and Bankr. D. Del. L.R. 9006-1(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 12/16/2015 215 Declaration of Service re: D.I. 122 39 12/16/2015 216 Declaration of Service re: D.I. 174 40 12/16/2015 217 Declaration of Service re: D.I. 202, 203, 204, 205-4-
Case 15-12284-LSS Doc 246 Filed 12/28/15 Page 5 of 8 ITEM NO. FILING DATE ECF DOC. NO. 41 12/17/2015 220 42 12/17/2015 224 43 12/18/2015 227 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 12/21/2015 231 Transcript of Hearing Held 12/17/2015 45 12/21/2015 232 Transcript of Hearing Held 12/18/2015 46 12/21/2015 234 47 12/22/2015 236 48 12/28/2015 243 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. 8009. 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-
Case 15-12284-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-
Case 15-12284-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-
Case 15-12284-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 07068 Tel: 973-597-2500 Fax: 973-597-2400 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 19801 Tel: 302-353-4144 Fax: 302-661-7950 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-