Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01258-LTB-BNB

Document 127

Filed 09/21/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:04-cv-1258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. OPPOSITION TO COLLEGE PARTNERSHIP, INC.'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL REPLY IN SUPPORT OF MOTION FOR SUPERSEDEAS BOND Plaintiff Student Marketing Group, Inc. ("SMG"), by and through its undersigned counsel, files this Opposition to College Partnership, Inc.'s ("CPI's") Motion for Leave to File Supplemental Reply in Support of Motion for Supersedeas Bond. In support of CPI's Motion for Leave to file Supplemental Reply in Support of Motion for Supersedeas Bond ("Motion for Leave"), CPI asserts that SMG has raised a new issue in its Supplemental Response that CPI has not had the opportunity to address. This assertion is incorrect and misses the mark. As discussed in SMG's Supplemental Response, CPI knew and has known that CPI's financial position is an issue with respect to CPI's Motion for Supersedeas Bond. Despite this awareness, CPI has repeatedly chosen not to supply the Court with new or updated financial information. CPI should have made a full disclosure of its financial condition to the Court long ago, in its original motion, and certainly should have done so in its Reply. Because CPI has continued in its failure to provide complete and updated

Case 1:04-cv-01258-LTB-BNB

Document 127

Filed 09/21/2005

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financial information, CPI should not now be permitted to "explain" the recent SEC filing which contains information that CPI should have disclosed to the Court in the first instance. Moreover, CPI's assertion that the media credits "are not liquid assets" likewise misses the point. The media credits are certainly assets that CPI, by virtue of its SEC filing, publicly asserts enhance CPI's financial condition ­ by more than $4 million. The very fact that CPI has recently entered into such an arrangement demonstrates that CPI has enough resources to encourage a third party to invest millions of dollars into CPI, notwithstanding CPI's alleged precarious financial situation. In an attempt to minimize the filings associated with CPI's Motion for Approval of Supersedeas Bond, SMG provided CPI with a detailed email explaining why SMG opposed CPI's Motion for Leave. Although SMG requested CPI to attach SMG's detailed email response if CPI chose to file another paper notwithstanding SMG's objection, CPI did not do so. Accordingly, attached hereto is the email exchange between counsel further explaining SMG's position on the appropriateness of CPI's filing and the reasons why an interest in the media credits in a company about which SMG knows little is not adequate protection of SMG's judgment.

Dated: September 21, 2005

Respectfully submitted: s/R. Daniel Scheid ______________ LEWIS SCHEID LLC R. Daniel Scheid River Point Building 2300 Fifteenth Street, Suite 320 Denver, CO 80202 Telephone: (303) 534-5040 Facsimile: (303) 534-5039 KIRKPATRICK & LOCKHART

Case 1:04-cv-01258-LTB-BNB

Document 127

Filed 09/21/2005

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NICHOLSON GRAHAM LLP Patrick J. McElhinny, Esquire Dianna S. Karg, Esquire 535 Smithfield Street Henry W. Oliver Building Pittsburgh, PA 15222 Telephone: (412) 355-6500 Facsimile: (412) 355-6501 Counsel for Plaintiff, Student Marketing Group, Inc.

Case 1:04-cv-01258-LTB-BNB

Document 127

Filed 09/21/2005

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of September, 2005, I electronically filed the foregoing Student Marketing Group, Inc.'s OPPOSITION TO COLLEGE PARTNERSHIP, INC.'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL REPLY IN SUPPORT OF MOTION FOR SUPERSEDEAS BOND with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Rosemary Orsini, Esquire Brian Matise, Esquire BURG, SIMPSON, ELDREDGE, HERSH, JARDINE, P.C. [email protected] [email protected]

s/Claudia Cooper