IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: SOLYNDRA LLC, et al., Debtors.

) ) ) ) ) ) ) ) ) Chapter 11 Case No. 11-12799 (MFW) Jointly Administered

Hearing Date: Obj. Deadline:

2/22/12 @ 11:30 a.m. 2/15/12 @ 4:00 p.m.

MOTION BY WARN CLAIMANTS FOR ORDER (I) STRIKING PROPOSED RELEASES IN DIP CREDIT AGREEMENT OR, IN THE ALTERNATIVE, (II) EXTENDING FOR A PERIOD OF SIXTY DAYS NUNC PRO TUNC THE PERIOD WITHIN WHICH WARN CLAIMANTS MAY OBJECT TO THE PROPOSED RELEASES Peter M. Kohlstadt, on behalf of himself and a putative class of similarly-situated former employees of Solyndra LLC and 360 Degree Solar Holdings (collectively, the WARN Claimants), hereby files this motion (the Motion) for an order (i) striking proposed releases in the DIP Credit Agreement or, in the alternate, (ii) extending for a period of sixty (60) days nunc pro tunc the period within which the WARN claimants may object to the proposed releases1. In support of this Motion, the WARN Claimants respectfully state as follows: Preliminary Statement 1. Seeking relief under the federal bankruptcy laws did not save the Debtors business. The relief afforded by the Bankruptcy Code, including stopping unsecured creditors from pursuing their claims2 against the Debtors, was not sufficient to rehabilitate the business. The
1

If the Court is not inclined to strike the proposed releases for the reasons set forth below, but will grant an extension of the Challenge Deadline, the WARN Claimants request that the Court grant the companion Motion for 2004 Exam that will be separately filed.
2

Prior to the Petition Date, on September 2, 2011, the WARN Claimants filed a complaint in the United States District Court for the Northern District of California; Case No. C11-04403 JSC. That lawsuit was automatically stayed by reason of the bankruptcy filing.

{00008749. }

business has been offered for sale to the market and the market has spoken: Solyndra will not be sold and re-started as a going concern. The over 1,000 WARN Claimants fired pre-petition have no hope of being re-hired by Solyndra. The assets of Solyndra will be sold in one or more liquidation sales for pennies on the dollar. It appears from the news media3 that the liquidation process already has begun, not with a sale, but with Solyndras employees throwing out expensive glass tubing that originally cost Solyndra millions of dollars. 2. It is pure pretense to suggest that the liquidation of the Debtors assets under the

aegis of the Bankruptcy Court is for the benefit of general unsecured creditors. Sales proceeds have to clear a mountain of secured debt (approximately $784 million) burdening the Debtors assets before unsecured creditors see any return on their claims. Having somehow snookered the Department of Energy before the bankruptcy filing, Argonaut4 stands in line ahead of over $525 million in taxpayer money to receive the first $75 million in proceeds from the dismantling and sale of the Debtors assets. 3. The Debtors have not been operational since the Petition Date. The next six

months of these cases will be devoted to the sale of Argonauts collateral for the benefit of Argonaut. The Debtors are readying Argonauts collateral for sale and using their bankruptcy cases and this Court as a friendly forum to liquidate Argonauts collateral for Argonaut. In effect, the Debtors are burning down their house to stay warm. Unfortunately, creditors like the WARN Claimants are left out in the cold.

See Exhibit A. By destroying the glass tubing, the Debtors literally trashed an opportunity to mitigate a multimillion dollar claim against the bankruptcy estate by returning the goods to the vendor. That unnecessarily dilutes recoveries to general unsecured creditors.
4

Argonaut Ventures, LLC is the Tranche A Representative (hereinafter, Argonaut).

{00008749. }

4.

The prospect of the Debtors using their bankruptcy cases to sell Argonauts

collateral with the sales proceeds going to Argonaut invites the question whether these cases should end their tenure in chapter 11 now with the liquidation of Argonauts collateral being completed either in chapter 7 or outside the bankruptcy court. Put another way, is a legitimate chapter 11 purpose being served when the Court is used to oversee a federal foreclosure of Argonauts collateral, with benefits. The WARN Claimants submit those benefits redound only to a very limited subset of the Debtors creditor and non-creditor body; i.e. Argonaut, the Prepetition Secured Parties, chapter 11 professionals and any insider who is seeking to be released from potential liability. 5. One obvious benefit conferred upon Argonaut from the continuation of these

cases in chapter 11 is the use of Court as a forum to conduct the sale of Argonauts collateral. Outside the bankruptcy court, the sale of a secured partys collateral is less certain and potentially problematic. Sales must be conducted in a commercially reasonable manner, which may lead to disputes after the fact. Assets sales outside bankruptcy also do not cut off certain types of claims (e.g. successor liability, product liability and environmental claims). In bankruptcy, Argonaut has access to a federal court that blesses each sale. Its collateral is cleansed by court order, permitting sales free and clear of all liens, claims, encumbrances and interests. Purchasers will pay a premium to acquire assets pursuant to a court order, and that premium goes to Argonaut. The Court should not permit Argonaut to commandeer the chapter 11 process to advance its own interests. If Argonaut wants to rent the courtroom, it should pay for it.

{00008749. }

6.

An additional benefit that non-Debtors seek from this Court is gratuitous releases.

The releases are contained in the DIP Credit Agreement and DIP Financing Order. Specifically, the Debtors agreed to the following: a. The Releasing Parties are the following persons/entities: (i) the Debtors, each in their own right; (ii) the Debtors, on behalf of their bankruptcy estates (i.e. all avoidance and other actions entrusted to the debtors in possession as fiduciary and caretaker for those causes of action for the benefit of creditors); (iii) all of the Debtors successors and assigns (e.g., any chapter 7 trustee subsequently appointed and potentially the Committee/any third party if avoidance actions later are assigned); and (iv) the Debtors Subsidiaries5 and any Affiliates6 and any Person7 acting for and on behalf of, or claiming through them. b. The scope of the releases includes any and all past, present and future actions, causes of action, demands, suits, claims, liabilities, Liens, lawsuits, adverse consequences, amounts paid in settlement, costs, damages, debts, deficiencies, diminution in value, disbursements, expenses, losses and other obligations of any kind or nature whatsoever, whether in law, equity or otherwise (including,
Section 12 of the DIP Agreement defines Subsidiary to mean: with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a qualifying share of the former Person shall be deemed to be outstanding, provided that in the event that a foreign insolvency proceeding is commenced as to any Subsidiary, such entity shall no longer be considered a Subsidiary for purposes of this Agreement.
5

Section 12 of the DIP Agreement defines Affiliate to mean: as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that person. For the purposes of this definition, control (including with collective meanings, the terms controlling, controlled by and under common control with), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
6

Section 12 of the DIP Agreement defines Person to mean any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate or government agency.
7

{00008749. }

without limitation, those arising under Sections 541-550 of the Bankruptcy Code and interest or other carrying costs, penalties, legal accounting and other professional fees and expenses, and incidental, consequential and punitive damages payable to third parties), whether known or unknown, fixed or contingent, direct, indirect, or derivative, asserted or unasserted, foreseen or unforeseen, against any of the released parties, whether held in a personal or representative capacity. c. Section 10.14(b) of the DIP Credit Agreement proposes to release the Released Pre-Petition Parties who are defined to include: (i) the Pre-Petition Lenders; (ii) all of the Pre-Petition Lenders past and present officers, directors, servants, agents, attorneys, assigns, parents, subsidiaries, and each Person acting for or on behalf of any of them. The Prepetition Secured Parties are defined as: (i) the Prepetition Tranche A Term Loan Facility Representative, (ii) Prepetition Tranche A Lenders, (iii) the Prepetition Tranche B/D Agent, (iv) the Prepetition Tranche B/D Lenders, (v) the Prepetition Tranche E Agent and (vi) the Prepetition Tranche E Lenders. 7. The day before the Petition Date creditors of these Debtors were armed with a

wide array of state law remedies intended to protect them in the event, among other things, the debtors transferred assets for less than reasonable equivalent value or the debtors inappropriately released a person or entity from an obligation or liability owed to them. On the Petition Date, by operation of bankruptcy law, the creditors were forced to cede standing and authority to prosecute their creditor rights to the Debtors, as debtors in possession. The Debtors were vested with, and became the exclusive caretaker for, the creditors rights. 8. But on the Petition Date, the Debtors in possession, now acting in their caretaker

capacity, agreed to release the Prepetition Secured Parties from any and all liability for claims possessed by the Debtors, their estates, their Subsidiaries, their Affiliates, and any person acting for and on behalf of, or claiming through them. The proposed releases of the Prepetition Secured Parties set forth in section 10.14(b) of the Credit Agreement should be denied for a number of reasons without requiring the WARN Claimants (whose counsel is working without

{00008749. }

compensation) to devote further resources investigating the scope, nature and appropriateness of the proposed releases. First, the broad scope of releases sought by these Debtors as part of DIP Financing is far from the norm where typically one DIP lender agrees to make a new loan post-petition and seeks a release in consideration of providing that new loan to the Debtors. In those cases, the relief sought is straightforward, and the relevant inquiry is limited to a solitary entity. These cases are far from the norm. Here, the DIP Lender8 is not a prepetition lender. In addition, a large number of ill-defined Prepetition Secured Parties seek to artificially graft themselves into the bankruptcy process for the purpose of obtaining a free release. For example, why should the unidentified past officer of a parent or subsidiary of a Prepetition Lender be released by the bankruptcy estate? The scope of the proposed releasors and releasees is patently overbroad. It will take substantial discovery just to ascertain what persons/entities fall within the scope of the proposed releasors and releasees. Second, the Debtors should not be permitted to abandon their caretaker role with respect to avoidance actions on negative notice with no disclosure as to who the releasors are, who the releasees are, their relationship to the Debtors, what potential causes of action the Debtors are releasing, whether the Debtors have performed any diligence whether the estates have any claim against the releasees and any transfers they received prepetition. The DIP Financing Motion makes no such disclosure. The Debtors cannot simply abdicate their fiduciary duties and their affirmative duties to creditors pursuant to 1107(a) and 1106(a)(3). While it is understood that the Debtors may have to make concessions in order to obtain financing, the proposed releases go too far. Third, the scheme proposed by the Debtors effectively reverses the burden. Instead of the proposed releasees having to demonstrate their entitlement to a release, creditors, already owed substantial amounts, are forced to expend further resources to try and find out who the Debtors, in their caretaker capacity, and as fiduciaries, agreed to release on the Petition Date. Fourth, except for Argonaut, which has a first lien position, the Prepetition Secured Parties that hold second or lower tier lien positions most likely do not possess secured claims. There is no basis or consideration for unsecured creditors to be released in connection with DIP Financing. Fifth, the releases should not be prospective in nature. These cases may end up in chapter 7 so it is imprudent to bind a chapter 7 trustee before his or her appointment. Sixth, absent the consent of the Releasing Parties, or perhaps certain extraordinary situations arising in the context of a plan of reorganization (with factors not present here), there is no consideration or basis for this Court to grant the requested releases.
8

The DIP Lender is the entity AE DIP 2011, LLC.

{00008749. }

9.

The requested releases highlight the fact that these bankruptcy cases are being

administered for the benefit of parties other than general unsecured creditors. Given that the Debtors are not entitled to a discharge of any debt,9 why should this Court extend its imprimatur to non-Debtors to obtain releases? None of the persons/entities lining up for a release has filed a bankruptcy petition, yet they all seek affirmative relief from this Court that is greater than it can grant to the Debtors. This Courts time is a resource that should not be consumed with litigation over whether insiders and others are entitled to releases when the Debtors themselves are not even entitled to a discharge. 10. Adopting the parlance of certain academics, these cases may be described as the

secured party in possession, as opposed to the norm, the debtor in possession. Argonaut continues to fund the salaries of the remaining employees, and will sponsor the payment of bonuses for certain Eligible Employees to have them prepare Argonauts collateral for sale, all for the purpose of enhancing the value of Argonauts collateral. Argonaut alone receives that benefit. Jurisdiction 11. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and

1334. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2). 12. The predicates for the relief requested herein are 11 U.S.C. 105(a) and the DIP

Financing Order.
9

Section 1141(d)(3) of the Bankruptcy Code provides that the confirmation of a plan does not discharge a debtor if the plan provides for the liquidation of all or substantially all of the debtors estate, the debtor does not engage in business after consummation of the plan and the debtor would be denied a discharge if the case were a case under chapter 7 of the Bankruptcy Code. The Debtors are corporate entities and are not entitled to a discharge under section 727(a)(1) which provides: The court shall grant the debtor a discharge, unless - the debtor is not an individual.

{00008749. }

Relevant Factual Background 13. On September 5, 2011 (the Petition Date), the Debtors commenced these cases

by filing voluntary petitions for relief under chapter 11 of the Bankruptcy Code. The WARN Claimants File the Adversary Proceeding Asserting the WARN Claims 14. Immediately following the Petition Date, the WARN Claimants, on September 6,

2011, commenced an adversary proceeding styled Peter M. Kohlstadt, on behalf of himself and all others similarly situated, v. Solyndra LLC and 360 Degree Solar Holdings, Inc., Adv. Pro. No. 11-53155 (the Adversary Proceeding). The Adversary Proceeding is a Class Action Adversary Proceeding Complaint that seeks relief, inter alia, under the Federal WARN Act, the California WARN Act and the California Labor Code. The Adversary Proceeding also seeks certification of the Adversary Proceeding as a class action. There are in aggregate approximately 1,100 terminated employees that comprise the putative class. The putative class holds WARN Act claims for 60 days backpay and benefits in the approximate amount of $24 million and unpaid accrued vacation claims in the approximate amount of $7 million (collectively, the WARN Claims). Pursuant to a Stipulation Extending Time for Debtors to Respond to

Complaint [Adv. Dkt. No. 9; filed 10/21/11], the WARN Claimants and Debtors agreed to extend the response/answer deadline and plaintiffs time to amend its complaint. The WARN Claimants Each Possess Direct Claims Against the Debtors and Their Estates 15. Even though the WARN Claimants have not yet been certified as a class, primary

counsel to the WARN Claimants presently represents over two hundred (200) of the WARN Claimants in their individual capacity as creditors in these cases. As former employees of the Debtors, the WARN Claimants vacation claims are subject to the appropriate statutory cap, the amounts earned in the 180 days prior to the Petition Date. See 507(a)(4). Because the

{00008749. }

amounts owed have not been paid, these former employees hold direct, non-WARN claims against the Debtors and their estates. The Debtors No Longer Are Operating Their Business and are Liquidating their Assets 16. The Debtors are in possession of their property as debtors in possession but are

not, upon information and belief, operating their business as a going concern. Instead, they are conducting the liquidation of their assets. No trustee or examiner has been appointed in the Debtors chapter 11 cases. On September 15, 2011, the Office of the United States Trustee appointed a committee of unsecured creditors (the Committee). The Committee has retained counsel and a financial advisor. The Debtors Seek Approval of DIP Financing 17. On September 6, 2011, the Debtors filed a Motion for entry of an order

authorizing the Debtors to (a) incur post-petition, priming secured financing pursuant to the terms of a $4,000,000.00 Senior Secured, Superpriority Debtor in Possession Term Loan, Guaranty and Security Agreement, (b) use cash collateral in which the Debtors prepetition lenders may have an interest and (c) provide adequate protection to such lenders (the DIP Motion) [Dkt. No. 12]. Exhibit B to the DIP Motion is the DIP Credit Agreement (the DIP Agreement). The DIP Agreement provides, inter alia, that the rights and obligations of the parties shall be governed by the laws of the state of New York without regard to conflict of laws principles. DIP Agreement at 9.1. The DIP Agreement fails to identify the term Lender. See DIP Agreement at 11.1; Preamble. The Releases Agreed to By the Debtors as Part of DIP Financing 18. Section 10.14(a)(b) of the DIP Agreement requires the Debtors to agree to release

the DIP Lender and the Released Pre-Petition Parties.

{00008749. }

The WARN Claimants Object to DIP Financing 19. On September 23, 2011, the WARN Claimants filed a Limited Objection to the

DIP Motion. On September 27, 2011, the Court entered the Final Order (I) Authorizing the Debtors to (A) Obtain Postpetition Secured Financing and (B) Utilize Cash Collateral, (II) Granting Liens and Superpriority Administrative Expense Status, (III) Granting Adequate Protection, and (IV) Modifying the Automatic Stay [Dkt. No. 161] (the DIP Financing Order). The DIP Financing Order provides as follows: a. The Lender or DIP Lender is defined as AE DIP 2011, LLC, DIP Financing Order at p.2; b. In the event of any inconsistency between the terms and conditions of the DIP Financing Documents and of this Final Order, the provisions of this Final Order shall govern and control;11 DIP Financing Order at 23(a); and c. Section 9 of the DIP Financing Order12 expressly preserves the right of the WARN Claimants to, among other things, object to the proposed
11

Pursuant to this provision, the DIP Lender is AE DIP 2011, LLC notwithstanding anything to the contrary in the DIP Credit Agreement or any other document or pleading.
12

Section 9 of the DIP Financing Order provides as follows: Nothing in this agreement shall prejudice the rights the Committee or Peter M. Kohlstadt, on behalf of himself and a class of similarly-situated former employees of the Debtors, to the extent he has requisite standing (Kohlstadt), may have to object to or challenge the findings herein and the Debtors Stipulations in Paragraph F (and its subsections) of this Final Order. Accordingly, during the Challenge Period, the Committee and, to the extent he has standing, Kohlstadt, may, without limitation, object to or challenge (i) the validity, extent, perfection or priority of the mortgage, security interests and liens of the Prepetition Secured Parties in and to the Prepetition Collateral of the Debtors, (ii) the validity, allowability, priority, status or amount of the Prepetition Obligations, or (iii) any releases provided in the Debtors Stipulations or the DIP Credit Agreement for the benefit of the Prepetition Secured Parties, each in their capacity as such. [] The Committee and, to the extent he has standing, Kohlstadt, must commence an adversary proceeding raising such objection or challenge [] within (a) 75 days following the date the U.S. Trustee formed the Committee, (b) such later date consented to in writing by the Prepetition Tranche A Term Loan Facility Representative, the Prepetition Tranche B/D Agent, and/or the Prepetition Tranche E Agent, as applicable (the Challenge Period), or (c) such later date ordered by the Court for Cause shown, provided, however, that the Committee or, to the extent he has standing, Kohlstadt, shall seek an expedited hearing in connection with any request to the Court to extend the Challenge Period for cause. The date that is the next calendar day after the termination of the Challenge Period, in the event that no objection or challenge is raised during the Challenge Period, shall be referred to as the Challenge Period Termination Date.

{00008749. }

10

releases of the Prepetiton Secured Parties set forth in section 10.14(b) of the DIP Credit Agreement. DIP Financing Order at 9. Relief Requested 20. By this Motion, the WARN Claimants request an Order: (i) striking section

10.14(b) of the DIP Credit Agreement to the extent it seeks to release the Released Secured Parties or, in the alternate, (ii) extending for sixty (60) days nunc pro tunc the period within which the WARN Claimants may object to the proposed Releases. If the proposed releases are not struck, but the Challenge Deadline is extended, the WARN Claimants also request that the Court grant their companion Motion for a 2004 Exam. Bases for Relief The WARN Claimants Have Standing as Creditors of the Debtors and Their Estates 21. As noted above, primary counsel to the WARN Claimants represents over two

hundred (200) of the WARN Claimants individually, as former employees of the Debtors. These former employees possess direct, non-WARN claims against the Debtors for such claims as vacation, severance and sick leave. These claims may be entitled to priority status or may be general unsecured non-priority claims. By reason of these direct claims, however, it is beyond cavil that the WARN Claimants have standing to pursue the relief requested herein, including discovery pursuant to Rule 2004. The WARN Claimants also are Parties in Interest Pursuant to 1109(b) 22. Alternately, the WARN Claimants have standing under section 1109(b) of the

Bankruptcy Code, which provides that [a] party in interest, including a creditor, an equity security holder, or any indenture trustee, may appear and be heard on any issue in a case under this chapter. 11 U.S.C. 1109(b). The fundamental premise underlying section 1109 of the Bankruptcy Code is that parties with an economic interest in a proceeding should have a say in

{00008749. }

11

how such proceedings reach resolution. See 7 Collier on Bankruptcy P 1109.01 (15th ed. rev. 1996) (The general theory behind this section is that anyone holding a direct financial stake in the outcome of the case should have an opportunity to participate in the adjudication of any issue that ultimately shape the disposition of his or her interest) (emphasis added); In re Ionosphere Clubs, 101 B.R. 844, 849 (Bankr. S.D.N.Y. 1989) (holding that while the term party in interest should be construed broadly, the party requesting standing must either be a creditor of a debtor to invoke the courts jurisdiction or be able to assert an equitable claim against the estate). 23. As noted, the WARN Claimants filed their Adversary Proceeding that seeks, inter

alia, a first priority administrative expense claim against the Debtors for the sum of their unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other COBRA benefits, for the 60 days that would have been covered and paid under the then applicable employee benefit plan had that coverage continued for that period. The adversary complaint remains extant; the Debtors have not yet moved to dismiss or filed an answer denying any of the allegations contained therein. The plaintiff has reserved the right to further amend the Complaint. There can be no good faith dispute that the WARN Claimants have a pecuniary interest in the outcome of these chapter 11 cases. There is No Authority under the Bankruptcy Code for the Debtors to Abandon Their Role as Caretaker of the Avoidance Actions and Give Free Releases to the Prepetition Secured Parties 24. The Debtors agreement to release, inter alios, the Prepetition Secured Parties

must be denied. The scope of the relief requested cannot be understated. The Debtors, their Subsidiaries, Affiliates and others are releasing broad claims. The beneficiaries are the

Prepetition Secured Parties, their Subsidiaries and Parent entities and a host of other parties.

{00008749. }

12

The proposed release of the Prepetition Secured Parties is not permissible in the procedural context in which the releases are being sought. 25. There is no meaningful disclosure or consideration attendant to the request. The

Debtors should not be permitted to abdicate their caretaker role on negative notice. The mere elapse of time does not justify the entry of a release. 26. The broad definitional scheme built into the releases may result in a gotcha

moment. That is, when a party is sued on an avoidance action it argues that it falls within the broad scope of the releases. As caretakers, the Debtors cannot agree to a broad swath of releases and then put up roadblocks13 when parties in interest seek information that the Debtors, as fiduciaries, have an affirmative duty to provide14. If the Debtors fail to abide by their caretakers duties, they are, in effect, aiding and abetting Argonaut and the Prepetition Secured Parties in hijacking the administration of these chapter 11 cases! 27. The proposed release of Prepetition Secured Parties for no consideration is not in

anyones best interests, except the releasees. Such releases may foreclose the potential for substantial recoveries by these estates. Unless the Court strikes the proposed releases, the WARN Claimants need additional time to take a 2004 exam of the Debtors and third parties, as appropriate15. Reservation of Rights
13

See Klein Aff.

14

See11 U.S.C. 1106(a)(1), which incorporates 11 U.S.C. 704(a) (7)(unless the court orders otherwise, the trustee shall furnish such information concerning the estate and the estates administration as is requested by a party in interest).
15

The WARN Claimants also are filing a Motion for a 2004 Exam. The relief requested by this Motion and the Motion for a 2004 Exam are supported by the Affidavit of Julia Klein which details the WARN Claimants frustration in trying to obtain information and documents relative to its inquiry as to the appropriateness of the releases. The Klein Affidavit is filed under seal.

{00008749. }

13

28.

The WARN Claimants expressly reserve their right to seek discovery, including

pursuant to Bankruptcy Rule 2004. The discovery sought is without prejudice to any discovery that may be sought in connection with the Adversary Proceeding or otherwise. No Prior Request 29. No previous request for the relief sought herein has been made to this Court or

any other court. Conclusion For the reasons set forth above, the WARN Claimants respectfully request that the Court enter an Order granting the relief requested herein and such other and further relief as the Court deems just and proper.

Respectfully Submitted, Dated: January 31, 2012 Wilmington, Delaware THE ROSNER LAW GROUP LLC /s/ Frederick B. Rosner Frederick B. Rosner (DE #3995) Julia B. Klein (DE #5198) 824 Market Street, Suite 810 Wilmington, DE 19801 Telephone: (302) 777-1111 -- and Jack A. Raisner Ren S. Roupinian OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Counsel to Peter M. Kohlstadt and the putative class of WARN Claimants

{00008749. }

14