you
okay good morning everyone we will start the BlockFi I guess BlockFi calendar
this morning those are the only matters I have on we are hearing the matter
remotely so the usual rules apply if you wish to be heard please raise your hand
and I will do my best to spot you and hear from you my understanding is the
pending motion to intervene has been resolved the JPL's motion to intervene I
believe an order a proposed order was sent so mr. Bernard I see your hand
raised yes your honor Richard Bernard a favorite drinker on behalf of the joint
provisional liquidators yes yesterday afternoon towards the end of the day we
came to agreement on the form of order with the US government it's been
circulated I don't think the committee has any issue with it and I know the
debtor signed off on a prior version of that form of order and we've submitted
it informally to your honor through your chambers email but we understand that
there's a more formal process to submit an agreed order all right miss
Dorskin did you want to be heard yes your honor
Sharon Dorskin from Brown government for the committee we have no objection to
the JPL intervention and no comments to the order that was circulated to us and
it will be submitted that's fine so I'm happy to look at the order and if there
are any concerns I assume parties will reach out for for for the court that
leaves us with I believe two matters that are contested the motion by the
lead plaintiff or proposed lead plaintiff Cameron Wyatt to revise the
prior orders of the court with respect to the proposed class action matter and
the contested motion to stay the adversary proceeding with the United
States pending a determination of the motion to withdraw the reference miss
Chavez let me hear from you thank you good morning your honor Jordan Chavez
along with Amy Furness of Haynes and Boone on behalf of the block side debtors
good morning I good morning I agree with you your honor those are the only two
remaining matters that on the agenda if it's okay with your honor before we take
up those matters I would like to just take a moment to briefly address the
data privacy issue that arose over the last few days I think that'd be
appropriate thank you thanks your honor we were notified by
crawl that through a stem swapping attack on an employee's mobile phone they
fell victim to a data breach resulting in a leak of personal information of the
block by creditors including the name address and emails and phone numbers the
type of information that block I would have provided to crawl for the creditor
matrix and for servicing purposes call is still conducting a more thorough
investigation but block by took immediate action along with coordinating
with the committee and crawl to provide the relevant communication to the
affected parties along with discussions with the US trustee and the relevant
regulatory and government authorities I did just want to confirm on the record
that blocked by was not the subject of the attack and that its system is still
secure all right that's good to hear it's frightening that this information
is so readily available through such what would seem
facile ways of getting of accessing through a telephone it's it's alarming
in so many respects but I'm glad that the debtor and all the debtors that are
involved these cases are taking the proper steps does anybody else wish to
comment on it all right let me turn to debtors counsel is there a preference
for which matter to be heard first yes your honor I think we would propose
taking up the green adversary first which will be handled from our end by
mr. Nag alright thank you then let me turn to let me have appearances on the
green on this matter your honor Michael Etkin Lowenstein Sandler on behalf of
the proposed lead plaintiff mr. Wyatt and go with me as my colleague Michael
Papandrea as well as Brian Kalandra who is proposed lead counsel in connection
with the class to action representing mr. Wyatt all right it is your motion why
don't you proceed then thank you your honor just a couple of observations at
the outset first of all we are requesting extremely narrow relief from
the existing injunction that was entered back in April we simply want the
district court or courts to be able to rule with respect to the pending lead
plaintiff motions and issue an order with respect to those motions there have
been no objections by the council on behalf of the plaintiffs that executed
the stipulation we know that mr. Green has about mr. Green's council has advised
us that they support the motion that's that's before your honor today in
addition we have not seen any objection by the creditors committee with respect
to the individual defendants who are the beneficiaries of the injunction and have
been referenced by counsel for the debtors there's been no objection filed
by them and in fact it's worthy of note that there actually was no declaration
filed by any of these non-debtor defendants the individuals regarding
the so-called impact on them and whether they even intend to try to take a
position with respect to the lead plaintiff motions they have not weighed
in at all you would think your honor that if there's an allegation that that
they would drop everything with respect to their responsibilities to the debtor
and focus their entire attention on lead plaintiff motions where they actually
have no standing to weigh in at all it's it's a bit beyond the pale another
observation that's important your honor is the claims that are asserted in the
class action those claims are claims in connection with the purchase or sale of
a security in this case the BIA's are alleged to be securities covered by the
federal securities laws and as I'm sure the court is aware under section 510 B
of the code those types of claims are statutorily subordinated so those
claims would not be entitled to a distribution under the plan the proposed
plan and I don't know that whether anyone has even filed a claim against
the debtor in the bankruptcy proceeding the debtors are obviously not parties to
the class actions those class actions were filed after the petition date so
there's no impact on the debtors with respect to the class actions altogether
of course that doesn't that assume that we're dealing with securities I mean
that's just not such a given given the cases that have come down recently no
no question your honor that's that's an issue that the district court will have
to wrestle with down the road but in terms of what's before you today if
they're not securities then there are no federal securities claims and and the
class actions fail on the merits so excuse me so you know that's not that's
not a today issue and if if there is a resolution of that issue that the BIAs
are not securities then there are no federal securities claims so that's
that's that's really the bottom line and your observation is is correct your
honor as I indicated there's a very limited purpose to our motion but the
debtors have put in front of you a parade of horribles that I'd like to
address briefly I know they're addressed in the briefing but I think it's
important to point some of them out first of all even dating back to the
debtors opposition to the motion to shorten time the debtors who again are
not parties to the class action and there are no claims certainly asserted
by our client we don't know whether there are any other claims asserted
based upon the violations of the securities laws but the debtors take the
position that somehow the district courts deciding the lead plaintiffs
motions would force the debtors to participate in the class action lawsuits
and forfeit their due process rights now those are lofty words your honor but
there's no explanation as to the basis for that kind of her pervoli there simply
is no impact on the debtor and the debtors due process rights are not put
into play by virtue of this court granting the very limited release that
we're seeking second they take the position back then and in their
opposition that we're looking to solve a problem that doesn't exist with respect
to representation of putative class members they claim that the creditors
committee is already representing these class members with respect to the claims
asserted in the class action well the problem with that your honor it ignores
the distinction between the status of those individuals as holders of the IAs
and with respect to that status yes they are general unsecured creditors
and part of the creditors committee's constituency but with respect to the
subordinated claims that are asserted in the class action which may or may not
have even been asserted in the chapter 11 cases and even if they were they
would not be entitled to any distribution by virtue of that
subordination the creditors committee doesn't represent their interests with
respect to those claims that would be an interest that would be represented by a
court appointed lead plaintiff and we're just looking to get to that point where
there is a court appointed lead plaintiff who has certain responsibilities
and fiduciary obligations to individual class members regardless of whether a
class has been certified or not and is empowered to take certain positions with
respect to the class again even even in advance of certification but and your
honor what what's looming now and why the motion was made is a confirmation
objection deadline of September 11th at a confirmation hearing on September 26th
and to the extent the class is and their claims in the class action are in need
protection and to the extent that a position needs to be taken we believe
it's critical that a lead plaintiff be appointed now the debtors also harp on
the fact that there's no guarantees as district courts will rule on time well
we get that that's a risk we don't know what the district courts are going to do
and what the orders are going to say and whether mr. Wyatt will in fact be
appointed by the district court but one thing is for certain if the district
court is precluded from even considering the motions and the relief that we're
requesting is not granted then there will be no a court appointed lead
plaintiffs who's in a position to take a position with respect to the plan and
confirmation whatever that might be simply put your honor mr. Wyatt or any
lead plaintiff that's appointed would be handcuffed by virtue of not having the
imprimatur of an article 3 court in terms of an order appointing him or some
other individual to assume the role of a lead plaintiffs order the appointment
of lead plaintiffs chosen counsel and put them in a position to act in the
bankruptcy proceeding but let me ask you mr. Ecken if I were to grant the relief
to allow the process to go forward is the logical next motion on shortened
time going to be judge the district court hasn't decided the motion for lead
plaintiffs yet we need to adjourn the confirmation hearing and this process to
allow the lead plaintiff to to be appointed and to be be the position to
participate at the confirmation hearing is going to follow well I don't know
your honor said you know thanks for pointing out an option to me with
respect to this but I doubt I needed to point that out but you know I to be
frank with the court I don't know that that that that that's something that we
would entertain I think the first thing that we would do if the court were to
sign an order and hopefully sign it quickly allowing us to go forward is to
advise the district courts that they can now decide the lead plaintiff motions
and that and point out the schedule with respect to confirmation and try to get
them to to issue an order quickly your honor as as you know you know I'm
somewhat familiar with the fast-moving train of a confirmation process and
the danger of trying to step in front of that train so you know I don't know that
we would take that step I think that our preference would be to advise the
district court quickly advise the district court that that timing is an
issue and important and and hopefully get his decision out of them in advance
of the objection deadline which is obviously why we moved on short notice
in the first place and certainly advance of in advance of the confirmation
hearing and you know to the extent that doesn't happen but we would have to weigh
our options fair enough
your honor this is not an attempt to push the class actions forward to anyone's
detriment there there there would be no merits determinations here the
individual defendants obviously don't care by virtue of the fact that they did
not weigh in at all on the motion and that they did not even execute a
declaration with respect to the factual allegations in the debtors in the
debtors opposition so the issue of whether the individual defendants hair
will be put on fire by virtue of a district court deciding a lead plaintiff
motion I just don't think that there's any substance to that kind of argument
now the debtors also argue that likely previewed in their objection to the
motions a shortened time that's the same considerations that would support
excuse me the same considerations that would support the injunction in the
first place are at play with respect to the limited relief that we're that we're
requesting well you know leaving aside the merits of those arguments from mr.
why its perspective as well as the extent to which those arguments support a
preliminary injunction regarding all other activity in the class actions
which is not the subject of our motion they certainly have nothing to do with
what we're asking the court to do and let me just get into that you know
briefly mr. Wyatt inherited the stipulated injunction order it's not a
complaint your honor it's just a fact and it it does contemplate that the
district court I'm talking about the stipulated order it contemplates that
the district court can enter certain unidentified orders and it does not
expressly prohibit the district court from entering orders with respect to the
lead plaintiff motion but here we are we're not taking that position on the
merits were in front of your honor asking for relief let's talk about each
of the three issues that the debtors raise the collateral estoppel
evidentiary prejudice I'm lost with respect to that one your honor I don't
know what the relief that we're requesting would have to do with respect
to any residue to Conor collateral estoppel evidentiary prejudice on a
debtor that's not a defendant in the class action where there are no claims
against the debtor and even if there were those claims would be subordinated
and not entitled to a distribution under the current version of the plan so I'm
at a loss to know where where that's coming from with respect to the impact
on the individual defendants we're still at the company and who are performing
services for the company again I've raised this issue the papers deal with
the issue the idea that they're going to drop everything and focus their
attention on the district court deciding these lead plaintiff motions just makes
no sense and there's no evidentiary support for it so again I don't know how
that figures in as a as a reason for the court to deny the limited relief that
we're requesting and lastly your honor they focus on their indemnification
obligations a couple of things to say about that and we do raise that in our
reply number one the indemnification or with respect to a claim against these
individuals that's based upon the purchase or sale of a security is
likewise subordinated under 510 B so those indemnification claims when you
look at the code clearly would not be entitled to a distribution the debtors
may point out although there didn't in their papers that that the debtors
assumed certain indemnification obligations under the terms of the plan
well there's a carve-out with respect to those indemnification obligations your
honor as it relates to gross negligence fraud willful misconduct those are the
claims that are asserted in the class action so to the extent that that that
the that the class would be successful with respect to the claims those claims
on their face would not be carved out of any indemnification obligations and
lastly your honor with respect to the somewhat newly minted settlement with
the committee several of those key defendants have waived their
indemnification claims against the debtor in any event under the terms of
that settlement agreement so in terms of indemnification you run oh and of course
there is insurance with respect to those claims as well so in terms of those
arguments your honor there's really there's really no substance to them
certainly as they relate to the relief that we're requesting in connection with
the motion the debtors also reason their opposition that the selection of lead
plaintiffs is complex and time-consuming well I I've had the opportunity over
the years to be involved in that process where there's an intervening bankruptcy
and I haven't seen that it's competitive process it may be complex as between
those vying for the role with respect to lead plaintiff motions but there's
nothing before the court that supports the conclusory allegation that that the
process is complex and time-consuming and frankly your honor if if the district
court believes that they'll act accordingly but they need to be given
the opportunity to make a decision on that in the first instance and and
that's why we're here finally your honor the debtors take the position that well
by virtue of the terms of the stipulated injunction once the plan goes effective
you can do whatever you want so no bit no big deal you know the problem is that
there are issues that the plan creates these of the third party releases an
issue that this court many courts have been wrestling with for quite some time
and at the end of the day if if the plan is confirmed without the participation
of a court appointed fiduciary on behalf of class of class members 30 days after
the effective date will come and those claims that are the subject of the class
action could be wiped out or severely eviscerated under the terms of a plan
so you know why we appreciate the injunction is automatically terminated
at that point in time that's that's going to be much too late with respect to
that issue as well as other issues that may exist under the plan that may
require some involvement by a court appointed lead plaintiff so your honor
the idea that there's no harm in waiting until then really you know doesn't
provide what's required and avoid the prejudice that would happen without an
appointment by the district court so with that your honor we would urge the
court to grant the motion and allow us the opportunity to advise the district
court that they are free to make a decision and hopefully they will make it
quickly and and whoever the court appointed lead plaintiff and their and
their counsel are would have the opportunity to weigh in with respect to
the confirmation process all right thank you mr. Etkin let me turn to miss
Furness thank you your honor mr. Etkin the loss is over one significant issue
here there are two cases we have the Green matter and the Ellis matter one is
in New Jersey one is in Massachusetts mr. Etkin didn't address it today they
didn't address it on their reply but consolidation and whether there are two
cases that go forward at the exact same time in two different courts based on
more or less the same actions has to be decided first the PSLRA says that quote
if any party has thought to consolidate those actions for pretrial persons or
for trial that has to be heard before the lead plaintiff process first
sometimes mr. Etkin used district court sometimes he used district court and we
believe that this entire issue was ignored simply because it goes back to
the original issues that we brought before this court in April of this year
the defendant in the class action purported class actions have every right
to participate and weigh in on that consolidation the PSLRA says any party
that a rule of civil procedure allows any party to address consolidation that
must be heard first to the extent it hasn't been filed it's because this
court stipulation allowed the lead plaintiff motions to be filed and said
nothing else that's where we are that's where it stopped so the idea that
there's absolutely no harm here and a harm that we identified in April have
gone away now is absurd and without basis the same concerns that we presented
previously one for indemnification and two for divided times of our offices and
directors still exist today as far as evidentiary and substance on that we
presented that with the original TRO application your honor you've got it in
the file and if they have to turn their attention to matters such as these again
in which descendants have the absolute right to participate they won't be
focused on the debtors during this incredibly crucial time we have less
than a month prior to the confirmation of the plan mr. I can talk a lot about
the indemnification provision and why that doesn't matter as it relates and
to the debtors concern with this moving forward but your honor I'm you know this
mr. White's council seems to have ignored it the plan hasn't been confirmed
right so to the extent anyone in the officers and directors have waived their
right to indemnification in the plan that's not confirmed yet and until that
is it is a concern for the debtors and we are entitled to have the full focus of
our officers and directors as far as what the debtors can do on the lead
plaintiff or excuse me as far as what the descendants can do on the lead
plaintiffs process in each of the two district courts again that we're talking
about it's not necessary that this court make a decision related to that instead
we presented the court with cases that clearly say defendants can and do
participate in both the lead plaintiff process whether the plaintiff is
adequate and the lead counsel process whether these district courts again two
of them in both New Jersey and Massachusetts actually take the
arguments of those defendants or not if not before this court they can
participate whether the participation leads the court to review those things
or not again it is that participation that deprives the debtors of their
officers and directors time during a very very crucial moment in these
bankruptcy cases mr. Wyatt and the proposed class have demonstrated
absolutely no irreparable harm here it is their duty to come here with good
cause there's no evidentiary basis you heard mr. I can argue that repeatedly as
far as the debtors but again we presented the evidentiary basis which is
before this court and we came to argue for the TRO and we got the stipulation
agreed to by mr. Green's counsel mr. Ellis's counsel there's been absolutely
nothing presented no doubt no declaration or anything on behalf of
mr. Wyatt or this purported lead plaintiff there's nothing to show
irreparable harm and again going back and I'm confident you've read our
briefing but there is no standing in this bankruptcy for purported class
counsel purported plaintiff in a class action against non debtors we presented
you your honor with a diner G case there's another case out of the Eastern
District of Virginia that goes to the exact same analysis somebody as a lead
plaintiff in a securities litigation did not provide any authorization for them
to come in to the bankruptcy cases it doesn't provide them any status to come
into the bankruptcy case of being a lead plaintiff in one type of litigation is
not close tantamount to a blanket consent to any litigation the class
council may wish to pursue and so there's they've admitted they have no
claims here there's no place here for someone who has been designated as lead
plaintiff solely in a one of two district courts related to a PSLRA action
to come to this court without further authorization further moving asking for
this court to clarify or classify a class certified class and there's just
absolutely no basis so again because there's no basis there's no irreparable
harm that they've shown or can show in this case especially considering again
when the last month before confirmation and stipulation by some terms expires 30
days after confirmation of the plan as far as mr. Etkins argument that certain
and as these purported class members have you know a basis to object to
confirmation they can't they're more than welcome to mr. Wyatt clearly have
counsel and each one of them can come to this court and object to the
confirmation in whatever way they feel it's just not appropriate here for a
class action in addition mr. Etkins said that these folks have claims that quote
could be wiped out or eviscerated that's simply not true your honor the plan
includes an opt-out these folks received the disclosure statement that discusses
and explains the opt-out provision of those releases and so if the individuals
want to opt out they can it's possible mr. Wyatt have counsel he can do it I
also point the court again to the delay mr. Wyatt has shown in April the
stipulation was entered into by Green Councils Green Council and Alice's
Council the lead plaintiff motions were filed in May and defrauded three months
to come to this court to ask for something else to go forward they asked
for it on an emergent basis simply one month before confirmation again your
honor this is their burden they presented no evidence to you there is no
irreparable harm here these individuals have the same rights that they have with
or without mr. Wyatt being appointed a class counsel and at the end of the day
this harms the debtors because our officers and directors attention will be
focused on other matters at a time when we really need to have their attention
focused here as we move towards confirmation in less than a month thank
you thank you thank you mr. Burness mr. Calandra I see your hand raised first
thank you your honor I just wanted to as the purported lead count or proposed
lead counsel in the class actions I just wanted to speak to the issues about
consolidation that were just raised which really are meritless it's the same
movements in both New Jersey and Massachusetts with the same
certifications so the same lead plaintiff is going to be selected in each
the one with the greatest losses which we submit is mr. Wyatt and there will be
nothing having to do with consolidation that goes forward under the terms of
the relief that we're looking for and it was a nice bit of three card Monte that
council was trying to play with the nature of how consolidation must be
must be addressed under the PSL array but there is nothing in the PSL array
that says consolidation must happen before a lead plaintiff is selected it's
just that if a party wants consolidation they need to move forward and I can
represent that none of the filers again are all the same in both both actions
are going to be seeking consolidation under the very limited relief that we
are seeking counsel for the debtors also brought up the cases purporting to allow
people like people like defendants in the current cases to weigh in on the
lead plaintiff motion as you saw in our papers your honor those cases are simply
not there number one a minority of cases number two are not relevant here there
is nothing wrong with notice there's nothing wrong with the certifications and
there certainly is no issue regarding loss causation in the case against
Twitter the defendants pointed out that the proposed lead plaintiffs the
movements could not have experienced any losses because they sold before the
corrective disclosure here everyone held through the corrective disclosure which
was blocked by his decision to file for bankruptcy so there is absolutely no
role they have to play and I would suggest if they do try to play a role it
would be it would be specious because they just there is just nothing that
they can do and finally your honor I wanted to say that the debtors emphasize
again and again that they don't want their officers and directors to be
distracted their officers and directors are seeking to release these claims they
are focused at least in part on their own personal matters in this bankruptcy
and allowing this very small step to go forward would require absolutely no
further attention on their part and certainly no greater distraction or
focus on themselves that they've already expressed thank you mr. Kalandra mr.
gold your hand is raised good morning your honor Dan Gold from Sherman and
Sir I represent the individual individual defendants in this security
class actions I've been did thank you for letting us be heard we did not file a
formal objection simply because the debtors are covering the issues and
duplicate of paper did not seem to benefit the court and use the waste of
the trance fees we want to address we do have a role to play in the lead
plaintiff process where there are issues it is appropriate for us to weigh in and
in particular the consolidation issue is it is a key one we do have the two
cases the lead plaintiffs may not intend to be playing the music may not intend
to move for consolidation that doesn't mean the defendants do not intend to be
so at the appropriate time we can't have our two different lead plaintiffs
appointed on behalf of the same class and two different courts there needs to
be a degree of coordination and consolidation between the two courts the
defendants have an interest and a role and important role to play and making
sure that that happens and what I'm hearing from from at least one lead
plaintiff movement is that we are now going to be forced to engage with six or
seven individual clients to move on an expedited basis to get that coordination
and consolidation among the courts taking away from the roles of them they
don't have to play with with the debtors all right thank you mr. gold mr.
Kalandra again your honor that's just simply not true if they want to move
for consolidation in their papers they suggested that they would resist any
consolidation motion but the there is nothing that defendants need to do with
regard to a lead plaintiff motion in this case because they could only object
to perhaps loss causation certification and notice and none of those they don't
suggest that they are an issue because they are not and there won't be any need
to wrangle multiple people under the release of the very narrow release that
we are seeking will be the same lead plaintiff ordered in both cases and they
will be dealing with exactly one lead plaintiff hopefully thank you all right
thank you and finally miss verness thank you thank you your honor briefly mr.
Kalandra seems awfully confident in what I think are opinions of what a court may
or may not do while he thinks that no matter what argument mr. gold's clients
have they will fail that's not for this court to decide mr. Kalandra mr. Atkin
have you know come to the court and said well debtors didn't present anything
that shows the notice are wrong that or this is not an adequate plaintiff it's
not the debtors job the debtors aren't a defendant in that case we're not
required to do that the point is your honor mr. Kalandra cannot absolutely say
that he can't guarantee that the court won't allow the defendants to do
something in addition you also have not heard in which we do believe is
significant that you pointed out they have not committed to this being it this
is not it your honor simply doing this is not going to be the end of this the
reason they've asked for the reason they think they have irreparable harm is that
they can come in again with a month prior to confirmation to ask this court
for further things for example delay of the confirmation hearing and again your
there is no irreparable harm each of these individuals in this purported
class can do what they want to do to protect themselves the disclosure
statement allows and gives everyone the information the plan allows an opt-out
for the releases there's no irreparable harm hearing your honor we would just
respectfully request that you deny the release requested by mr. Wyatt
all right thank you all your honor can I make one last point and I I apologize
for the free-for-all but miss Frenes keeps talking about irreparable harm I
think the standard is a good cause and injecting an irreparable harm standard
into this is just not correct we believe the good cause is is is obvious given
the timing we've set it out if the individual defendants wanted to weigh in
about consolidation they should have filed papers they didn't if they want
the cases consolidated they can come in and file a motion tomorrow for limited
relief from the injunction that's up to them but as mr. Kalandra pointed out
consolidation is not is not the issue before the court and none of us can
presuppose what the district court will say or do with respect to the lead
plaintiff motions this is all about giving the district courts the
opportunity to weigh in and what they do what they say what orders they entered
and when they what orders they enter and when they enter them you know that's
going to be up to them and and we'll have to deal with the consequences of
that all right thank you thank you mr. Etkin well argued I appreciate the
movements transparency and candor in coming to the court it's clear the
purposes that would be served by the court modifying the stipulated adjunction
and order that's already in place I agree with mr. Etkin the standard is
cause is there cause to do so where I disagree is that I don't find cause I
don't find any change in circumstances from when mr. Trey green and mr. Anthony
LS from pronouncing correctly stipulated and agreed that for an essentially an
exchange the opportunity to file the motions in advance of a deadline to do
so and how important that was and the acknowledgement that their efforts
cannot and should not impair the efforts of this debtor to reorganize those
efforts included a hotly contested mediations several hotly contested
mediation settlement settlements proceedings in front of mediators also
in which the court took part in which has not been completed because there has
been no confirmation of any plan yet the agreement that mr. Green and mr. Ellis
acknowledged and through their stipulation was to allow the process to
go forward not to restrain or handcuff the necessary participants so that it
would impair and the insiders that it would impair the reorganization and we
are on the cusp of a plan I don't know if the plans being going to be confirmed I
don't know what the voting is going to be but we are on the cusp of having that
I believe it's scheduled for September 26 certainly the prospects of a plan
that would impact the claims of mr. Green and mr. Ellis were contemplated
when the when the stipulation was agreed to there is no prejudice to either those
defendants who were put in this adversary with the plaintiffs or mr.
Wyatt in participating further in the chapter 11 process without a court
appointed fiduciary on their behalf indeed that's where I disagree to the
language it's been in the brief that class members should have a court
appointed fiduciary for purposes of this chapter 11 these individuals these class
members these proposed lead plaintiffs have counsel and even without counsel
they have the ability to represent their interests and take issue with any
aspects of the proposed plan that impacts and pairs their rights indeed
and all counsel knows that there are opportunities apart from having a court
designated by Dushi area as part of the class creditors often format hot
committees and and retain counsel to to get themselves involved in the case and
there's no surprise that we're at confirmation that that was contemplated
the in the three months between the time the stipulation was entered that that
was the opportunity I don't find cause I understand that mr. Ellis and mr. Green
may consent to the motion to modify the stipulate injunction but that would
operate as a back door for them to agree and allow it another party to come in to
get more relief than they requested in the stipulation and again I see no
prejudice it's not an issue of irreparable harm but the plan is an opt-out
plan but more importantly these plaintiffs in the class action have an
opportunity to engage with this court with respect to the merits of the plan
and the process in the class action can proceed along the lines of the stipulated
injunction what I will do to make sure because we don't know what happens on
September 26th if there are other delays and I would agree that the class actions
can't be delayed and terminably the debtor is supposed to have an opportunity
to confirm a plan they have that opportunity on September 26 so I will
carry the motion to September 26 and to see if it looks like the plan process is
being retarded if there aren't votes or if there are certainly questions as to
whether there is a viable plan then I think the court should take another look
at letting these plaintiffs proceed in either of the courts or where the class
actions are pending but the agreement in effect and the courts and in
the court's view the proper basis to enter the stipulated injunction
haven't changed and the circumstances haven't changed and the potential impact
and the potential impairment of the ability to pursue a reorganization
and the mechanics involved in reorganizing warrant did I well not
granting the relief today but simply carrying the motion to September 26 so
I'm not going to enter an order unless unless plaintiffs wish well it's
movements wish for me to enter an order denying it out my inclination is to
simply carry the matter to September 26 as the reckon does that do you prefer a
denial I'm trying to save you time to having to refile in case the
circumstances change well I understand your honor and we appreciate that and
and we'll we'll live with carrying the motion to the 26th all right thank you
counsel you're welcome to stay on for another interesting argument or you may
be excused thank you your honor thank you thank you all