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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re: CORDILLERA GOLF CLUB, LLC, 1 dba The Club at Cordillera, Debtor. CORDILLERA GOLF CLUB, LLC, dba THE CLUB AT CORDILLERA, Plaintiff
V.

Chapter 11 Case No. 12-11893 (CSS)

Adversary Proceeding No: 12-_ __

CHERYL M. FOLEY, THOMAS WILNER, JANE WILNER, CHARLES JACKSON, MARY JACKSON, KEVIN B. ALLEN, individually and on behalf of all others similarly situated, AND ALPINE BANK Defendant.

COMPLAINT OF DEBTOR FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER SECTION 362 OF THE BANKRUPTCY CODE OR SECTIONS 105 AND 362 OF THE BANKRUPTCY CODE OR, ALTERNATIVELY, A PRELIMINARY INJUNCTION UNDER RULE 7065 OF THE BANKRUPTCY RULES

Plaintiff, Cordillera Golf Club, LLC dba The Club at Cordillera (the "Debtor" or "Plaintiff'), the debtor and debtor in possession in the above-captioned bankruptcy cases, for its Complaint for Declaratory and Injunctive Relief against the above-captioned defendants, states as follows:

The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XXXXX 1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.
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NATURE OF THE CASE 1. The Debtor seeks entry of an order extending and enforcing the automatic

stay in connection with a complaint, currently pending in state court in Colorado, to certain affiliated non-debtors named in that action or, alternatively, an order enjoining or restraining the defendant from continuing its prosecution of the pending state action. The Debtor seeks to stay or enjoin the continued prosecution of the action to: avoid the depletion of insurance proceeds, avoid potential collateral estoppel issues which would force the Debtor to participate in the action, and prevent the distraction of key officers from the critical task of administering and reorganizing the Debtor's estate. Absent enforcement and extension of the stay, or an order otherwise enjoining the prosecution of the action, the Debtor, its estate and creditors will suffer real and substantial harm. JURISDICTION AND VENUE 2. On June 26, 2012 (the "Petition Date"), the above-captioned debtor filed

its voluntary petition for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). The Debtor is authorized to continue to operate its business and manage its properties as a debtor in possession pursuant to sections 11 07(a) and 1108 of the Bankruptcy Code. 3. This Court has jurisdiction over this adversary proceeding pursuant to

sections 157 and 1334 oftitle 28 ofthe United States Code ("Title 28"). 4. This proceeding is a core proceeding pursuant to section 157(b) of Title

28. Venue in this Court is proper pursuant to sections 1408 and 1409 of Title 28. 5. The Debtor consents to the entry of final orders and judgments by this

Court on the core matters, to the extent such consent is necessary, and on non-core matters, if any.
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6.

This action is brought in accordance with Rule 7001 of the Federal Rules There exists a substantial controversy

of Bankruptcy Procedure (the "Bankruptcy Rules").

between the plaintiffs and defendant of sufficient immediacy and reality to warrant the relief requested.

THE PARTIES A. Plaintiff

7. Plaintiff, Cordillera Golf Club, LLC dba The Club at Cordillera, a debtor

in the above-captioned case, is a corporation organized under the laws of the State of Delaware, with its principal place of business in Edwards, Colorado.

B.

Defendant
8. Defendant Cheryl M. Foley ("Foley") is a resident of Colorado and is a

plaintiff in a lawsuit filed on June 20, 2011 in the District Court of the State of Colorado, County of Eagle, captioned Foley v. Cordillera Golf Club LLC, 2011 CV 552 (the "Class Action"). 9. Defendant Thomas Wilner ("T. Wilner") is a resident of Washington, D.C.

and is a plaintiff in the Class Action. 10. Defendant Jane Wilner ("J. Wilner") is a resident of Washington, D.C. and

is a plaintiff in the Class Action. 11. Defendant Charles Jackson ("C. Jackson") is a resident of Illinois and is a

plaintiff in the Class Action. 12. Defendant Mary Jackson ("M. Jackson") is a resident of Illinois and is a

plaintiff in the Class Action. 13. Defendant Kevin B. Allen ("Allen," together with Foley, T. Wilner, J.

Wilner, C. Jackson, and M. Jackson are collectively referred to herein as the "Class Plaintiffs") is a resident of Colorado and is a plaintiff in the Class Action.
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14.

Defendant Alpine Bank ("Alpine," together the Class Plaintiffs are

collectively referred to herein as the "Defendants") is Colorado banking institution and is an Intervenor-Defendant and Counterclaimant and Cross-Claimant in the Class Action.

C.

Important Non-Parties

15.

Cordillera Golf Holdings, LLC, a Delaware limited liability company

("Holdings"), is a defendant in the Class Action and is the sole Member of the Debtor. 16. Cordillera F&B, LLC, a Delaware limited liability company ("F&B"), is a

defendant in the Class Action. F&B was created for the sole purpose of holding the liquor license and liquor assets for the Debtor. Although F&B remains a defendant in the Class Action, it has been dissolved as a legal entity. 17. WFP Cordillera, LLC, a Delaware limited liability company ("WFP

Cordillera"), is a defendant in the Class Action and is the sole Member of Holdings, which it turn is the sole Member of the Debtor. 18. WFP Investments, LLC, a Delaware limited liability company ("WFP

Investments"), is a defendant in the Class Action. WFP Investments is among other things, an estate planning entity. 19. CGH Manager, LLC, a Delaware limited liability company ("CGH"), is a

defendant in the Class Action and is the Managing Member of: the Debtor, Holdings, and WFP Cordillera. 20. David A. Wilhelm, a resident of Colorado ("D. Wilhelm"), is a defendant

in the Class Action and is the sole Member of WFP Cordillera. D. Wilhelm is the Managing Member ofCGH, which in turn is the Managing Member ofthe Debtor. 21. Patrick Wilhelm, a resident of Colorado ("P. Wilhelm," together with

Holdings, F&B, WFP Cordillera, WFP Investments, CGH, and D. Wilhelm, the "Non-Debtor
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Parties"), is a defendant in the Class Action. P. Wilhelm serves as Managing Member of F&B, and as an officer and manager of the various entities described above, and is involved in development of the operating budgets of the Club, among other things.

FACTUAL BACKGROUND
A. The Debtor and the Bankruptcy Case.

22.

The Debtor is the owner and operator of The Club at Cordillera ("Club"),

a high-end golf club located in Colorado. The Club operates four 18-hole championship golf courses and a variety of related facilities. 23. The Debtor's 2010 budget estimated 50 additional membership sales in

2010, well within statistical membership absorption and matriculation rates in comparable markets. However, due to economic, industry and other circumstances beyond Debtor's control, membership sales for 2010 were not as robust as forecast. By mid-20 10, it was clear that the Club lacked the critical mass of members necessary to maintain the high level of services and operations at the Club. 24. These conditions were exacerbated by the tension with - and subsequent

litigation involving - the Debtor and the sub-group of members which resulted in significant member cancelations, loss of dues and substantial litigation costs. 25. As a result of the foregoing, the Debtor was unable to make a required

payment due to Alpine Bank by close of business on June 26, 2012. After considering other alternatives, the Debtor's management and ownership, in their reasonable business judgment, concluded that the most effective way to maximize the value of the estate for the benefit of creditors is to complete a prompt sale of the Mountain Course pursuant to section 363 of the Bankruptcy Code, subject to higher or better bids at a public auction (a "Sale Transaction").

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26.

Accordingly, on June 26, 2012, the Debtor commenced its voluntary Additional facts about the Debtor, its business operations and

Chapter 11 proceeding.

prepetition activities can be found in the Declaration of Daniel L. Fitchett, Jr. in Support of Chapter 11 Petitions and First Day Relief. 12-11893, [Dkt. No.2].
B.

The Class Action Litigation.

27.

The Class Action was filed on June 20, 2011 (the Defendants in this action

who are plaintiffs in the Class Action are referred to herein as the "Class Plaintiffs"). Although the original Complaint did not assert class action claims, the Complaint has been amended three times and now contains class claims. The Third Amended Complaint ("T AC"), which was filed on December 15, 2011, was asserted as a class action on behalf of all members of the Club who paid their 2011 annual Club dues. The TAC also raises claims on behalf of a sub-class

comprised of all Club members who purchased a specific type of membership in the Club known as a Premier Membership. 28. the TAC. 29. The claims on behalf of the class relate to the Club's (i.e. the Debtor's) The Debtor and all of the Non-Debtor Parties are named as defendants in

decision in 2011 not to open some of the golf courses and facilities due to extreme budgetary shortfalls. According to the TAC, D. Wilhelm announced in 2010 that the Club was operating at a considerable loss and that unless the Club was able to collect sufficient revenue, they would only open the courses and facilities they could afford to operate. The TAC alleges that as a result, Club members were reluctant to pay their obligatory annual membership dues in 2011, unless they received sufficient reassurances that all of the Club facilities would be opened in 2011.

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30.

The TAC alleges that as a result of these concerns, in January 2011, the

defendants announced the Club would open all of the golf and other facilities in 2011. The TAC further alleges that the class members thereafter paid their 2011 dues in reliance on these assurances. The TAC also alleges that on May 24, 2011, after the class members paid their dues, the defendants notified members that due to continuing cash flow problems, the Club would not be able to open some of the facilities after all. 31. The TAC also alleges that, in addition to these January 2011 assurances,

the Club's membership plan requires the Club to open all of the Club's facilities each year. According to the TAC, when the members joined the Club, they did so in reliance on their rights as set out in the Club's membership plan. The TAC alleges that under the membership plan, the Club members are entitled to use the Club's courses and facilities, and that the owner of the Club (i.e. the Debtor) is required to pay all operating deficits resulting from operation of the Club. As a result, the TAC alleges that the Debtor and the Club were required to open all of the Club facilities despite budget shortfalls, and even if the Debtor and Non-Debtor Parties did not provide the specific assurances in January 2011 that the Club facilities would be open. 32. Based on these facts, the TAC alleges claims for breach of contract,

promissory estoppel, false representation, constructive trust, breach of duty of good faith and fair dealing, breach of fiduciary duty, and violation of the Colorado Consumer Protection Act. The TAC seeks, among other requested relief, a return of all 2011 membership dues paid as well as the class members' membership deposits paid when they joined the Club. 33. allegations. The Debtor and the Non-Debtor Parties vigorously dispute these

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34.

The TAC also alleges claims on behalf of the sub-class, which consists of The TAC alleges that Premier

Club members who purchased a Premier Membership.

Memberships were purchased by existing golf members of the Club as an upgrade that provided additional benefits to their membership. The TAC alleges that the Debtor and Non-Debtor

Parties violated their commitment to provide these additional benefits to Premier Members. 35. The TAC also alleges that Premier Memberships in the Club are securities

within the meaning of the Colorado Securities Act, and on this basis, the TAC raises various Colorado Securities Act claims on behalf of the sub-class. The Class Plaintiffs specifically

allege the Debtor is the primary wrongdoer regarding these securities claims and they target these claims particularly at the Debtor. The TAC alleges the Debtor in particular made various misrepresentations and omissions in connection with the sale of Premier Memberships, and that the Debtor employed a device, scheme, or artifice to defraud and/or engaged in an act, practice, or course of business that operated as a fraud or deceit in connection with the sale of Premier Memberships. 36. The TAC also rmses Colorado Securities Act claims against WFP

Cordillera, Holdings, D. Wilhelm, and P. Wilhelm that are based on and derivative of the Debtor's alleged primary violation of that Act. Specifically, the TAC alleges those Non-Debtor Parties aided and abetted the Debtor's securities violations, and that they are liable for those violations as "control persons" of the Debtor. 37. Finally, the TAC also raises sub-class claims against the Debtor and Non-

Debtor Parties for breach of contract, promissory estoppel, constructive trust, fraudulent representations and omissions of fact, breach of fiduciary dury,-an-d violathrns-of-the-eulorado Consumer Protection Act.

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38.

On June 20, 2011, the same day that the Class Plaintiffs filed their original

complaint against the Debtor and Non-Debtor Parties, those Defendants also obtained an injunction regarding the use of the funds the Club collected from the members' 2011 annual dues. The Colorado state court enjoined the Debtor and Non-Debtor parties from using those funds for any purpose other than for the necessary maintenance and operation of the Club's four golf courses and related facilities.

C.

Pending Motions/Proceedings in the Class Action.

39.

On December 2, 2011, the Class Plaintiffs sought issuance of a contempt

citation to the Debtor, D. Wilhelm, and WFP Cordillera for allegedly violating the injunction the court issued regarding use of the funds from the 2011 annual dues. The Class Plaintiffs allege that the Debtor and these other Non-Debtor Parties used the funds from the 2011 dues for a variety of purposes in violation ofthe injunction, including among other things, to pay attorneys' fees, and severance payments. The contempt hearing is currently scheduled to be heard in the Colorado District Court for Eagle County on July 20, 2012. The Debtor is a subject of the contempt hearing and it is a necessary party for the hearing to proceed. 40. On May 4, 2012, the Debtor, along with WFP Cordillera, D. Wilhelm, and

P. Wilhelm, filed a motion to dismiss the Class Action securities claims. The motion argues that the primary securities law violations alleged against the Debtor must be dismissed as a matter of law for a number of reasons. These reasons include, among other things, that Premier

Memberships do not qualify as "securities" under the Colorado Securities Act, and that the TAC failed to sufficiently allege the Debtor made any material omissions or false statements.

--------1\-il'vfo:reover, the motion to dismiss--asserts--that since the TAG failed as-a matter of lavv' to
sufficiently allege a violation of the Colorado Securities Act against the Debtor, the Securities Act claims against the other Non-Debtor Parties also must be dismissed, since any Securities Act
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liability of the Non-Debtor Parties is derivative of the Debtor's alleged liability. This motion to dismiss has been fully briefed and submitted to the court, and a decision on the motion is pending and could be issued at any time. 41. On June 15, 2012, Holdings and F&B, joined in the motion to dismiss the

TAC's Colorado Securities Act claims. 42. Two other Non-Debtor Parties, CGH and WFP Investments, have also

filed a separate motion to dismiss the claims against them in the Class Action for failure to state facts upon which relief may be granted. This motion asserts that the claims against these NonDebtor Parties must be dismissed because the TAC fails to allege any basic facts to support any claims against them. A decision on this motion is also pending. 43. There are also a variety of other pending motions in the Class Action the

resolution of which would impact the Debtor. For example, on March 21, 2012, the Debtor and the Non-Debtor Parties jointly filed a motion for a protective order regarding certain discovery requests the Class Plaintiffs propounded on Alpine Bank. Moreover, on April 24, 2012, the Plaintiff filed a Disputed Notice of Jury Trial, which relates to a dispute among the parties over the trial date. The Debtor joined with the Non-Debtor Parties in objecting to the Plaintiffs Disputed Notice. On May 30, 2012, Class Plaintiffs filed a motion to modify the case

management order to extend the period for Class Plaintiffs to complete class discovery. The Debtor joined with the Non-Debtor Parties in opposing this motion. All of these motions have been fully briefed and submitted to the court for a ruling. Resolution of these motions as to the Non-Debtor Parties could in effect also resolve them as to the Debtor. 44. Similarly, on May 25, 2012, the Debtor and the Non-Debtor Parties jointly

filed a motion for reconsideration of an order compelling them to respond to certain discovery

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and for sanctions. On June 14, 2012, Debtor and the non-Debtor Parties filed a motion to amend the answer to add an important new affirmative defense. On the same day, the Debtor and the non-Debtor Parties jointly filed a motion for protective order. These motions will be fully

briefed and submitted to the court shortly, and a ruling on each of these motions as to the NonDebtor Parties could resolve those issues as to the Debtor as well.

D.

The Class Action Must be Stayed as to All De{endants.

45. As of the Petition Date, the Class Action was automatically stayed against

the Debtor. On June 27, 2012, the Debtor filed an Advice of Bankruptcy in the Class Action to notify the Colorado state court, the Class Plaintiffs, and the Non-Debtor Parties of the commencement of the Debtor's bankruptcy proceeding and the automatic stay. 46. Notwithstanding that (1) the Debtor, as the owner of the Club, is the

primary defendant in the Class Action, and (2) for the Non-Debtor Parties to be found liable for the Class Action claims for violation of the Colorado Securities Act, the Debtor must first be found liable as the primary violator, counsel for the Class Plaintiffs has notified counsel for the Debtor and Non-Debtor Parties that the Class Plaintiffs intend to proceed against the Non-Debtor Parties despite the stay as to the Debtor. However, continuing to litigate the claims against the Non-Debtor Parties without the Debtor will materially prejudice the Debtor's right to defend itself as the claims and issues involving the Debtor are closely linked to, and even identical to, the claims and issues involving the Non-Debtor Parties. Moreover, as to the Colorado Securities Act claims, it is absolutely impossible as a matter of law for the claims against the Non-Debtor Parties to proceed without establishing the liability of the Debtor. Thus, the Debtor must

participate in the Class Action 01 risk having liability established without being present to defend itself. Accordingly, it is necessary that the Class Action be stayed as to the Debtor and the NonDebtor Parties.
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47.

Additionally, many of the Non-Debtor Parties are directly or indirectly

involved in the day to day management of the Debtor's business operations and are necessary to the success of the Debtor's reorganization. The Debtor sought to retain a Chief Restructuring Officer (the "CRO") as part of its first day pleadings. However, at the request of the United States Trustee (the "U.S. Trustee"), the application to employ the CRO was sought by way of noticed motion which will be heard on July 27, 2012. Therefore, the existing management of the Debtor, many of whom are Non-Debtor Parties, must remain focused on the reorganization efforts, at a minimum, through the appointment of the CRO. 48. Continued prosecution of the Class Action (notwithstanding that the

Debtor is a necessary party) will require significant attention of the Non-Debtor Parties (who have not been relieved of their managerial duties over the Debtor) and distract them from the critical task at hand: a successful reorganization of the Debtor for the benefit of all creditors, which could include the Class Plaintiffs in the extremely unlikely event they can establish any claims against the Debtor.
COUNT I Extension of the Automatic Stay of 11 U.S.C. 362(a) to the Non-Debtor Parties (Declaratory Relief)

49.

The Debtor repeats and realleges the allegations contained in all preceding

paragraphs as though fully set forth herein. 50. This Court has the power, pursuant to 11 U.S.C. 105(a), to issue any

order, process of judgment that is necessary or appropriate to carry out the provisions of the Bankruptcy Code. 51. Section 362(a) of the Bankruptcy Code prohibits the commencement or

continuation of any actions against a debtor that were or could have been commenced prior to the
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bankruptcy filing, or which seek to recover for any claim that arose prior to the commencement of the bankruptcy case. Thus, notwithstanding the fact that the Class Action is stayed or

otherwise enjoined as against the Debtor, it is not automatic stayed or enjoined with respect to the Non-Debtor Parties. 52. Section 362(a)(3) of the Bankruptcy Code prohibits the commencement or

continuation of any act to obtain possession or exercise control over the property of the debtor's estate. Continued prosecution of the Class Action may deplete insurance coverage for the

Debtor's estate. 53. In the Class Action, the Debtor is, in fact, the real party in interest to the

litigation. As detailed herein, each of the Class Plaintiffs' claims requires establishing a primary violation of the Debtor prior to determining the liability, if any, of the Non-Debtor Parties. Accordingly, due to the nature of the claims in the Class Action, the Debtor will be forced to appear and defend against the claims in order to protect its own interests. Further, the Class Action exposes the Debtor to potential indemnification obligations as well as the threat of collateral estoppel and imputed admissions. Thus, failure to appear and defend could have irreparable adverse consequences on the Debtor's estate. The continued prosecution of the Class Action will also require the Debtor with limited administrative and financial resources to engage in extensive, time consuming and costly discovery and litigation. 54. Moreover, the continued prosecution of the Class Action against the Non-

Debtor Parties will distract the current managers of the Debtor from the task of reorganizing the Debtor during the critical first thirty days of the Debtor's bankruptcy case. Indeed, at the request of the U.S. Trustee for the District of Delaware, the Debtor has sought Court approval of its CRO by way of a noticed motion, rather than pursuant to a first day motion. Accordingly, for at least

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the first thirty (30) days of the Debtor's bankruptcy case, existing management of the Debtor, including many of the Non-Debtor Parties and management of the Non-Debtor Parties, will be intimately involved in the Debtor's restructuring. Thus, continued prosecution of the case will

cause irreparable harm to the Debtor's ability to reorganize by distracting key personnel and depleting assets ofthe Debtor's estate. 55. The automatic stay prov1s10ns imposed by section 362(a) of the

Bankruptcy Code should be extended to prevent the continued prosecution of the Class Action with respect to the Non-Debtor Parties, insofar as such litigation, in effect, amounts to an action against the Debtor and, moreover, is ultimately an act to obtain possession of property from the Debtor's estate. 56. Under these circumstances, the extension of the automatic stay to the Non-

Debtor Parties pursuant to sections 105(a) and 362 ofthe Bankruptcy Code is warranted. If the automatic stay is not extended to stay the Class Action as against the Non-Debtor Parties, or if the Class Action is not otherwise enjoined, the Debtor and its estate will be irreparably harmed and the purposes and policies of the Bankruptcy Code will be frustrated because, among other reasons, the continued prosecution of the Class Action would: A. Debtor's assets;
B.

violate section 362(a) of the Bankruptcy Code by depleting the

subject the Debtor to potential indemnification claims; potentially subjecting the Debtor to substantial and prejudicial

C.

collateral estoppel, which will compel the Debtor to monitor and participate in the Class Action, including engaging in extensive discovery, resulting in substantial costs to the Debtor's estate; and

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D. 57.

result in commencement of similar actions in multiple forum.

There exists a substantial controversy between the Plaintiffs and the

Defendants of sufficient immediacy and reality to warrant the issuance of a declaratory judgment under 28 U.S.C. 2201. A prompt judicial determination of the respective rights and duties of the parties in these respects is necessary and appropriate.
COUNT II Enjoining the Class Action Pursuant to 11 U.S.C. lOS( a) or, Alternatively, Rule 7065 of the Federal Rules of Bankruptcy Procedure (Injunctive Relief)

58.

The Debtor repeats and realleges the allegations contained in all preceding

paragraphs as though fully set forth herein. 59. The Court has the power to the stay the action under section 105(a) of the

Bankruptcy Code. Section 105(a) provides, in relevant part, that the Court may "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." 11 U.S.C. 105(a). The authority granted by section 105(a) of the Bankruptcy Code "includes the power to issue injunctions staying litigation in other courts." 60. Section 105 injunctions are governed by the well-known four-factor

mqmry govemmg the entry of an injunction under Rule 65 of the Federal Rules of Civil Procedure made applicable herein by Rule 7065 ofthe Federal Rules of Bankruptcy procedure:
(1)

the likelihood of the plaintiffs success on the merits; whether plaintiff will suffer irreparable injury without the injunction; the harm to others which will occur if the injunction is granted; and .vhether the injunction would serve the public interest. In the bankruptcy setting, however, "the four considerations applicable to

(2)
(3)

(4) 61.

preliminary injunctions are factors to be balanced and not prerequisites that must be satisfied."
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62.

Here, for the reasons discussed below, all of these factors weigh heavily in

favor of this Court issuing an injunction pursuant to section lOS(a) of the Bankruptcy Code. 63. First, with respect to a likelihood of success on the merits, bankruptcy

courts have equated this factor with a probability of a successful reorganization. The Debtor is highly likely to achieve that success. 64. Second, Plaintiff will suffer irreparable harm without the issuance of an

injunction. The Class Action exposes the Debtor to possible claims for indemnification, as well as threats of collateral estoppel and imputed admissions. As such, continuation of the action will force the Debtor to appear and defend against the Class Action, and thereby cause a dissipation of the estate's assets. Moreover, the Class Action may dissipate the available insurance proceeds for the defense of the Debtor, and distract the Non-Debtor Parties, many of whom are necessary to the administer the Debtor's estate. Thus, prosecution of the Class Action is allowed to

continue the Debtor's estate and creditors will suffer irreparable harm. 65. Third, the balance of the harms weighs heavily in favor of this Court As stated above, the Debtor

issuing an injunction enjoining prosecution of the Class Action.

will suffer significant harm if the Class Action proceeds during the course of the reorganization process. On the other hand, Class Plaintiffs will suffer little or no harm if an injunction is granted. An injunction will not prevent the plaintiffs in the Class Action from asserting their claims; rather it will merely postpone the prosecution of its claims for the duration of the stay. 66. Fourth, granting an injunction will serve the public interest by providing a

single forum to address the claims of all creditors, facilitating the successful reorganization of the Debtor's estate, and expediting administration of the Debtor's estate. A stay ofm injunction against the continued prosecution of the Class Action will enable the Debtor's to maximize the

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value of its estate for the benefit of all creditors, and distribute those assets in accordance with the statutory mandate of the Bankruptcy Code. 67. Absent immediate injunctive relief staying the Class Action, the Debtor's

estate and its creditors will suffer irreparable harm.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray for judgment as follows:

A.

for a declaration that the Class Action should be and is stayed pursuant to

section 362(a) of the Bankruptcy Code as that action relates to the Debtor and Non-Debtor Parties for the duration of the stay; or
B.

alternatively, for an injunction pursuant to sections 105(a) and 362(a) of

the Bankruptcy Code barring the continued prosecution of the Class Action, or the commencement of any action or proceeding of any nature whatsoever by the Defendants, as against the Debtor and Non-Debtor Parties for the duration of the stay; or C. alternatively, for a preliminary injunction pursuant to Rule 7065 of the

Bankruptcy Rules barring the continued prosecution of the Class Action, or the commencement of any action or proceeding of any nature whatsoever by the Defendants or any other party, as against the Debtor and Non-Debtor Parties for the duration of the stay; and D. just and proper. for such other and further legal and equitable relief as this Court deems

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Dated: Wilmington, Delaware July 2, 2012

FOLEY & LARDNER LLP Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Erika Morabito (VA No. 44369) 402 West Broadway, Suite 2100 San Diego, California 9210 1 Telephone: (619) 234--6655 Facsimile: (619) 234-3510 -andYOUNG CONAWAY STARGATT & TAYLOR, LLP Is/ Donald J Bowman Jr. Michael R. Nestor (No. 3526) Joseph M. Barry (No. 4221) Donald J. Bowman, Jr. (No. 4383) Kenneth J. Enos (No. 4544) Rodney Square 1000 N. King Street Wilmington, Delaware 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 Proposed Counsel for Debtor and Debtor-in-Possession

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