Exhibit A to Answering Brief of Daniel Crowley in
Opposition to Trustee’s Motion for Summary Judgment
Despite the requirement that the Trustee rely on undisputed admissible evidence in .
support of his motion, his Opening Brief refers to facts that are either unsupported by citation to
the record, hotly disputed, and/or inadmissible. The table below lists the facts relied upon by the
T Trustee, his citation to evidence (if any), and Crowley’s objection to the evidence and citation to
contradictory admissible evidence:
l ’ir» .°\·?5$iT ·_aud._.Citati0‘1rr3;l,‘2
Fw “r., 1 T 1 > A r itiiyiii ·
rvi, ;i;;i*> @15; s,li` I B » 1 riyi A y 4,f o‘r r16*;;::;;; :»;; 1,:ia §§zjej; ‘, ,,t ,s “» T r T t ff 91
"Crowley’s relationship with None Disputed. .
Cerberus was a central focus
of the hearing [on the First The Equity Committee objected to
Plan]." (Opening Brief at 6) Coram’s First Plan on numerous
grounds, including that Coram was
. · ‘ not insolvent, that Coram was
· prospering, that the plan improperly
· released legal claims against
Coram’s Noteholders, and that
. Crowley’s relationship with Cerberus
V created a conflict of interest that V
infected the good faith proposal of
the plan. (B20l—l8, Equity
_____“______m_ Objections to First Plan)______“_____________
“?‘On the day when Crowley A34—35, a handwritten Lacks foundation. Fed. R. Evid. 901.
was cross—examined, he was piece of paper attached Disputed.
personally represented by to Dec. 15, 2000
Phillip Warden, Esquire, Bankruptcy hearing No foundation has been or can be
from the Pillsbury Madison transcript. laid for this document. lt was
firm in California? mentioned in only one deposition,
(Opening Brief at 6) Crowley’s, and Crowley could not
identify the document. (B645-46,
Crowley April 6, 2007 Depo. at
235 :8-236:16). Indeed, Crowley
testified that he does not recall being
represented at the hearing. (Id) The
record reveals that Mr. Warden did
,_,_, file a document on behalf of
` Crowley, or utter a word at any
confirmation hearing. (B506—623)
Finally, a witness having a lawyer
present in the courtroom does not
convert that witness into a party.
394840.01 1
Case 1 :04-cv-01565-SLR Document 133-2 Filed 05/O4/2007 Page 2 of 4
·»1: ‘1~» ( 111; ¤¤d;€if¤¢i¤i1*·
114asit2l;;H¤dispur¢d ~tF ¤¤¢ 4; (Trustee.-tih S¤¤p¤rt or e T;T=nasto a4¢1¤r1iss1bt1e,ssEvide¤ce~aw ~
__’_ V g _»,_ _ I p p V`~~' p. -_ ;
"Warden also had defended None The Trustee submits no evidence to
Crowley at his deposition support this assertion. Pursuant to
prior to the hearing." Delaware Local Rule 7.1.3(c)(2), the
(Opening Brief at 7) . Trustee may not submit on reply
evidence he should have submitted in
his Opening Brief.
Moreover, this fact does not establish
that Crowley was a party to the
bankruptcy proceedings. Non-parties
regularly retain counsel when they
. are subpoenaed to testify in
i depositions.
M "Crowley wE§`§ipa¤y in None Legal conclusion. Disputed.
interest’ because, having
tiled proofs of claim in the ‘°Party of interest" is a legal term of
Coram bankruptcies, he was art under the bankruptcy code. See
a creditor of the bankruptcy ll U.S.C. § llO9(b). Moreover, the
estate." (Opening Brief at factual premise of the sentenee—that
17) Crowley was a creditor of Coram-—-is
· it wrong. Crowley was not a creditor
_ of Coram when Coram filed its
‘ bankruptcy petition. (Bl 17-99,
» Consolidated List ofA11 Creditors)
. . Indeed, he did not tile a Request for
Payment of Administrative Expenses
until December 2004, 4 years ajier
the proceedings on which the Trustee
relies in this motion. (B498-505)
"Crowley cbluuld-have had his None Legal conclusion. Disputed.
counsel participate in all of
the proceedings, much as the Since Crowley was not a party in
Noteholders did." (Opening interest, he did not have standing to
Brief at 17) participate in the bankruptcy
proceedings. See ll U.S.C. §§
ll09(b), ll28(b)
304840.01 - 2
Case 1:04-cv—O1565-SLR Document 133-2 Filed 05/O4/2007 Page 3 of 4
1 .
FFS ‘*Aa Uudisputed=I r_. A _— . <· jj Undisputedrlmctt » ;3i; g,;»,i,; __aA i gi,g§;,ee; g . _ _ . »-; ’»»_» if W
“[A]s Coram’s CEO and the None Legal conclusion. Disputed.
sponsor of both the First Plan .
and the Second Plan, Crowley never personally sponsored
1 Crowley’s interests were any Plan. The First Plan was
totally aligned with Cora1n’s proposed by Coram after a vote by
interests" (Opening Brief at Coram’s Board of Directors, of
16) which Crowley was but one member.
(B95—97, Aug. 7, 2000 board
minutes) The Second Plan was
prepared and presented by a Special
Committee of Coram’s Board of
Directors, from which Crowley was
explicitly excluded. (D.I. l, Cmplt., ll
_ _ 38; D.I. 127, Crowley Summary
Judgment Decl., il 11; b219, Dec. 28,
2000 board minutes; B343-48
Second Disclosure Statement at 27-
A 32.) -
· Moreover, Crowley’s interests were
not aligned with Coram’s interests.
· Following the guidance of the Goldin
t . Report, Coram’s Special Committee
proposed a plan that would have .
required Crowley to forfeit $7.5
million in bonus compensation the
Independent Committee
acknowledged Crowley was owed.
(B347, Second Disclosure Statement
at 3 l)
"Crowley’s conflict of None Disputed.
interest was a critical issue
explored at the hearing [on As with the First Plan, the Equity
the Second Plan]." (Opening Committee opposed the Second Plan
Brief at 9) for numerous reasons, including that
Coram was not insolvent, and that
the plan was not proposed in good
faith. (B4l9—48, Equity Committee
Objections to Second Plan)
204040.01 3
Case 1 :04-cv-01565-SLR Document 133-2 Filed 05/O4/2007 Page 4 of 4
"gg.f§> {1 1Tr
‘°Coram vigorously litigated None Disputed.
its position that Crowley did .
not have a conflict through In its response to the Equity
testimony, briefing, and Committee’s objections Coram never
argument? (Opening Brief discussed or argued whether Crowley
at 18.) had or had not breached a fiduciary
duty. (B449-80, Debtors Response to
Equity Committee’s Objection to
Second Plan). Rather, Coram argued
1 that the Second Plan should be
’ approved notwithstanding Crowley’s
` relationship with Cerberus. (Id)
"Crowley continued to be None Disputed. mm
A separately represented by the ·
Pillsbury firm in comiection Crowley was a witness at the 1 ·
with the Coram bankruptcy confirmation hearing, not a party.
» matter [during the hearing on No one from Pillsbury filed a
2 the Second Plan]." (Opening document on behalf of Crowley, or
Brief at 9.) uttered a word on behalf of Crowley 1
at any confirmation hearing. (B506-
623).
"Between January 2001 and A53 (single page Lacks foundation, Fed. R. Evid. 901.
December 2001, Crowley document titled Disputed.
personally paid $203,595 in “Attorney Fees
legal fees to the Pillsbury lncurred by DHS When this document was showed to
firm for its representation of Related to Coram Crowley at his deposition, he could
him relating to Coram." Bankruptcy") not identify it or authenticate it.
(Opening Brief at 9.) (B647, Crowley April 16, 2007 depo
at 254:8-18) Moreover, even if it 1
were admissible, it does not prove
that Crowley was a party to the
bankruptcy proceedings. A witness
hiring lawyer does not make that
witness a party.
The facts listed in the table above are the only facts referred to in the Trustee’s Opening
Brief that are offered to establish the predicate elements of collateral estoppel. By failing to
offer undisputed admissible evidence that proves the elements of collateral estoppel, the Trustee
necessarily fails to meet his burden of proof on summary judgment and his motion must be
denied.
394840.01 4
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms