Free Designated Record on Appeal - District Court of Delaware - Delaware

Case 1:07-cv-00520-SLR

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE : : ORION REFINING CORPORATION : : Debtor. : ____________________________________: : In re: : :
: FLUOR ENTERPRISES, INC. : : Plaintiff : : : v. : : ORION REFINING CORP., CYPRESS, : ASSOCIATES, LLC AS ORC : DISTRIBUTION TRUST : REPRESENTATIVES : : Defendant : : ORION REFINING CORPORATION : : Counter-Defendant : : v. : : FLUOR ENTERPRISES, INC., : : Counter-Defendant : _______________________________________:

In re:

Chapter 11 Case No. 03-11483 (MFW)

Adversary Proceeding No. 04-52447
(MFW)

[Parallel Contested Matter Under Fed.R. Bankr. P. 9024 and Fed.R. Bank. P 60(b)]

CROSS-APPELLANT FLUOR ENTERPRISES, INC.'S DESIGNATION OF RECORD AND STATEMENT OF ISSUES ON APPEAL

Pursuant to Rule 8006 of the Federal Rules of Bankruptcy Procedure, Fluor Enterprises, Inc. ("Fluor" or "Appellant") by and through its undersigned counsel, hereby designates the following items for inclusion in the record and states the issues to be presented on appeal from the Bankruptcy Court's Order, dated May 9, 2006 and entered
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by the Court on May 10, 2006 (D.I. 69), Opinion, dated May 9, 2006 and entered by the Court on May 10, 2006 (D.I. 68) and the Bankruptcy Court's Order, dated july 20, 2007 and entered by the Court on July 20, 2007 (D.I. 1912; A.D.I. 137). I. Designation of Record on Appeal Fluor designates the following record items from Adversary Proceeding No. 0452447 (MFW): Docket Nos. 1

Date 02/04/2004

Record Items Complaint by Fluor Enterprises, Inc. against Orion Refining Corporation (with attachments) Summons and Notice of Pretrial Conference Answer and Counterclaims of Orion Refining Corporation against Fluor Enterprises, Inc., filed by Orion Refining Corporation Initial Scheduling Order Answer of Fluor Enterprises, Inc. to Counterclaims, filed by Fluor Enterprises Motion for Partial Summary Judgment filed by Orion Refining Corporation (with attachments) Defendant's Opening Brief in Support of Its Motion for Partial Summary Judgment, filed by Orion Refining Corporation (with attachments) Affidavit of Richard S. Rayzor filed by Orion Refining Corporation Affidavit of Eric E. Bluth filed by Orion Refining Corporation Stipulation Extending Time to Answer Motion For Partial

02/04/2004 03/05/2004

3 4

03/08/2004 03/25/2004

5 6

04/13/2004

9

04/13/2004

10

04/13/2004

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04/13/2004

12

04/22/2004

13

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Date

Docket Nos.

Record Items Summary Judgment between Fluor Enterprises, Inc. and Orion Refining Corporation, filed by Fluor Enterprises, Inc.

05/12/2006

14

Notice of Lis Pendens (with attachments), filed by Fluor Enterprises, Inc. Fluor Enterprises, Inc.'s Motion to Strike the Affidavits of Richard S. Rayzor and Eric E. Bluth in Support of Defendant's Motion for partial Summary Judgment, filed by Fluor Enterprises, Inc. Fluor Enterprises, Inc.'s Opening Brief In Support of Its Motion to Strike, filed by Fluor Enterprises, Inc. (with attachments) Fluor's Motion for Partial Summary Judgment, filed by Fluor Enterprises, Inc. Memorandum of Law in Support of Fluor Enterprises, Inc.'s Motion for Partial Summary Judgment, filed by Fluor Enterprises, Inc. (with attachments) Plaintiff's Answering Brief in Opposition to Defendant's Motion for Partial Summary Judgment, filed by Fluor Enterprises, Inc. (with attachments) Amended Brief in Opposition to Defendant's Motion for Partial Summary Judgment, filed by Fluor Enterprises, Inc. (with attachments) Defendant's Reply Brief in Support of Its Motion for Partial Summary Judgment and Answering Brief in Response to Plaintiff's Motion for Partial Summary Judgment, filed by Orion Refining Corporation Affidavit of Steven L. Victor--filed by Orion Refining Corporation (with attachments) Supplemental Affidavit of Eric E. Bluth ­ filed by Orion

05/14/2004

15

05/14/2004

16

05/14/2004

18

05/14/2004

19

05/14/2004

20

05/27/2004

21

06/18/2004

25

06/18/2004

26

06/18/2004

27

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Date

Docket Nos. Refining Corporation

Record Items

06/18/2004

28

Supplemental Affidavit of Richard S. Rayzor, filed by Orion Refining Corporation (with Attachments) Defendants Response to Fluor Enterprises, Inc.'s Motion to Strike, filed by Orion Refining Corporation (with attachments) Amended Affidavit of Daniel Stinger in Support of Plaintiff's Amended Answering Brief in opposition to Defendant's Motion for Partial Summary Judgment, filed by Fluor Enterprises, Inc. Reply Brief in Support of Its Motion for Summary Judgment, filed by Fluor Enterprises, Inc. (with attachments) Scheduling Order (Amended and Stipulated) signed on 10/14/2004. Order Reassigning Adversary Honorable Mary F. Walrath. Proceedings to the

06/18/2004

29

07/20/2004

33

07/20/2004

34

10/18/2004

43

06/15/2005

49

07/28/2005 10/13/2005

54 57

Order (Third Amended Stipulated Scheduling). Order Approving Stipulation to Reassign Certain Contested Matter and Adversary Proceedings to the Honorable Mary F. Walrath and Granting Related Relief. Order Approving Fourth Amended Stipulated Scheduling Order Order Approving Stipulation to Reassign Certain Contested Matter and Adversary Proceedings to the Honorable Mary F. Walrath and Granting Related Relief. Notice of Agenda of Matters Scheduled of April 10, 2006 Hearing

03/03/2006

62

03/09/2006

63

04/06/2006

65

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Date 05/10/2006

Docket Nos. 68

Record Items Opinion Granting Debtor Orion Refining Corp.'s Motion for Partial Summary Judgment and Denying Fluor Enterprises, Inc.'s Motion for Partial Summary Judgment Order Granting Debtor Orion Refining Corp.'s Motion for Partial Summary Judgment and Denying Fluor Enterprises, Inc.'s Motion for Partial Summary Judgment Notice of Appeal (AP-06-39) filed by Fluor Enterprises, Inc. (with attachments) Receipt of filing fee for Notice of Appeal Cypress Associated. LLC, as ORC Distribution Representative's Motion Pursuant To Rule 7054(A) For Express Direction For The Entry Of Judgment And Express Determination That There Is No Just Reason For Delay Cypress Associated. LLC, as ORC Distribution Representative's Opening Brief in Support of Motion Pursuant To Rule 7054(A) For Express Direction For The Entry Of Judgment And Express Determination That There Is No Just Reason For Delay Fluor Enterprises, Inc.'s Brief in Opposition to Orion Refining Corporation's Motion Pursuant to Rule 7054(a) for the Express Direction for the Entry of Judgment and Express Determination That There is No Just Reason for Delay Cypress Associated. LLC, as ORC Distribution Representative's Reply Brief In Support Of Motion Pursuant To Rule 7054(a) For The Express Direction For The Entry Of Judgment And Express Determination That There Is No Just Reason For Delay Memorandum Opinion Denying Motion for Express Determination That There is No Just Reason for Delay in Entry of Final Judgment on Counts I and IV of the

05/10/2006

69

05/19/2006

71

05/19/2006 09/06/2006

72 79

09/06/2006

80

10/02/2006

81

10/16/2006

82

11/21/2006

86

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Date

Docket Nos.

Record Items Complaint of Fluor Enterprises, Inc.

11/21/2006

87

Order Denying Motion for Express Determination That There is No Just Reason for Delay in Entry of Final Judgment on Counts I and IV of the Complaint of Fluor Enterprises, Inc. Proposed Pretrial Order Regarding Claim of Fluor Enterprises, Inc. Joint Pretrial Order (Amended) Regarding Claim of Fluor Enterprises, Inc. Transcript of Motion Hearing and Trial Before Honorable Mary F. Walrath, Held on May 7, 2007 Transcript of Motion Hearing and Trial Before Honorable Mary F. Walrath, Held on May 8, 2007 Transcript of Motion Hearing and Trial Before Honorable Mary F. Walrath, Held on May 9, 2007 Findings of Fact and Conclusions of Law and Order [Proposed By Fluor Enterprises, Inc.] Proposed Findings Of Fact And Conclusions Of Law Filed by Cypress Associates, LLC, as ORC Distribution Trust Representative, Orion Refining Corporation Orion Refining Corporation's Reply Brief To Fluor Enterprises, Inc.'s Proposed Findings Of Fact And Conclusions Of Law Response by Fluor Enterprises, Inc. to ORC distribution Trust's Proposed Findings of Fact and Conclusions of Law Findings of Fact Opinion Granting Fluor Enterprises, Inc.'s Motion for Relief Previously entered Critical Fire and Trade Vendor 6

04/23/2007

114

05/02/2007

119

06/06/2007

126

06/06/2007

127

06/06/2007

128

06/19/2007

129

06/19/2007

130

07/05/2007

133

07/05/2007

134

07/20/2007 07/20/2007

135 136

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Date

Docket Nos. Orders

Record Items

07/20/2007

137

Order GRANTING Fluor Enterprises, Inc.'s Motion for Relief from Previously entered Critical Fire and Trade Vendor Orders Motion Of Cypress Associates, LLC, As ORC Distribution Trust Representative, For An Order (I) Granting Reconsideration, In Part, Of The Court's Findings Of Fact, Opinion And Order, Each Dated July 20, 2007, And (II) Upon Reconsideration, (A) Vacating That Portion Of The Opinion And Order Authorizing Fluor Enterprises, Inc. To Recover Pre-Judgment Interest And (B) Granting Related Relief Notice of Appeal (#BAP-07-82) Filed by Cypress Associates, LLC, as ORC Distribution Trust Representative Statement Of Appellant Cypress Associates, LLC, As The ORC Distribution Trust Representative, Concerning Timing Of Filing And Service Of Its Designation Of The Items To Be Included In The Record On Appeal And Statement Of The Issues To Be Presented Cross Appeal (#BAP-07-85) by Fluor Enterprises, Inc. Motion to Intervene (A) in Adversary Proceeding No. 0452447 and (B) in Motion by Fluor Enterprises, Inc. Filed June 3, 2004 for Relief from Previously Entered Critical Fire and Trade Vendor Orders Filed by Development Specialists, Inc. Brief of Movants, Development Specialists, Inc. and Steven L. Victor, in Support of Motion to Intervene (A) in Adversary Proceeding No. 04-52447 and (B) in Motion by Fluor Enterprises, Inc. Filed June 3, 2004 for Relief from Previously Entered Critical Fire and Trade Vendor Orders Fluor Enterprise, Inc.'s Response to Motion of Cypress

07/30/2007

138

07/30/2007

139

08/09/2007

144

08/09/2007 08/13/2007

145 147

08/13/2007

148

08/13/2007

151

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Date

Docket Nos.

Record Items Associates, LLC, as ORC Distribution Trust Representative for an Order 9I) Granting Reconsideration, in Part, of the Court's Findings of Fact, Opinion and Order, Each Dated July 20, 2007 and (II) upon Reconsideration, (A) Vacating that Portion of the Opinion and Order Authorizing Fluor Enterprises, Inc. to Recover PreJudgment Interest and (B) Granting Related Relief

07/20/2007

137

Order Granting Fluor Enterprises, Inc.'s Motion for Relief from Previously entered Critical Fire and Trade Vendor Orders Notice of Appeal 9#BAP-07-82) filed by Cypress Associates, LLC, as ORC Distribution Trust Representative (with attachments) Clerk's Notice Regarding Filing of Appeal Statement of Appellant Cypress Associates, LLC, as the ORC Distribution Trust Representative, Concerning Timing of Filing and Service of its Designation of the Items to be Included in the Record on Appeal and Statement of issues to be Presented Cross Appeal (#BAP-07-85) filed by Fluor Enterprises, Inc. Clerk's Notice Regarding Filing of Cross Appeal (#BAP07-85) Receipt of Filing Fee for Cross Appeal

07/30/2007

139

08/02/2007 08/09/2007

142 144

08/09/2007

145

08/13/2007

150

08/14/2007

152

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Fluor designates the following record items from the main bankruptcy proceeding, No. 03-11483(MFW):

Date 05/14/2003

Docket Nos. 13

Record Items Motion to Pay Critical Trade Vendor Claims Debtor's Motion for Authority to Pay Prepetition Obligations of Certain Critical Vendors and Service Providers Pursuant to Sections 105(a) and 363(b) of the Bankruptcy Code filed by Orion Refining Corporation Motion to Pay Critical Trade Vendor Claims Debtor's Motion for Authority to Pay Certain Fixed, Liquidated and Undisputed Prepetition Claims of Fire Vendors, Mechanics and Materialmen filed by Orion Refining Corporation Order Authorizing the Debtor to Pay Prepetition Obligations of Certain Critical Vendors and Service Providers Pursuant to 11 U.S.C. Sections 105(a) and 363(b) signed in Court on 5/15/2003 Order Authorizing the Debtor to Pay Certain Fixed, Liquidated and Undisputed prepetition Claims of Fire Vendors and Mechanics and materialmen Pursuant to 11 U.S.C. Sections 105(a) and 363(b) signed in Court on 5/15/2003 Response to Debtor's Motion for Authority to Pay Certain Fixed, Liquidated and Undisputed Prepetition Claims of Fire Vendors, Mechanics and Materialmen, filed by Fluor Enterprises, Inc. Limited Objection to Final Order (I) Authorizing Debtor in Possession to (A) Obtain Postpetition Financing From General Electric Capital Corporation, as Agent, Pursuant to 11 U.S.C. Sections 105, 361, 362, 364(c)(1), 364(c)(2) 364(c)(3) and 364(d)(1), and (B) Utilize Cash Collateral Pursuant to 11 U.S.C. Section 363, (II) Granting Liens and Super-Priority Claims, and (III) Granting Adequate Protection to Prepetition Secured Lenders (related

05/14/2003

14

05/15/2003

37

05/15/2003

38

06/02/2003

156

06/02/2003

157

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Date

Docket Nos.

Record Items document 41) signed in Court, filed by Fluor Enterprises, Inc.

06/05/2003

204

Final Order Authorizing the Debtor to Pay Prepetition Obligations of Certain Critical Vendors and Service Providers -Order Signed in Court on 6/5/2003 Final Order Authorizing the Debtor to Pay Certain Fixed, Liquidated and Undisputed Prepetition Claims of Fire Vendors, Mechanics and Materialmen -Order Signed in Court on 6/5/2005 Transcript of Hearing held on May 15, 2003 Transcript of Hearing held on June 5, 2003 Motion for Relief from Previously Entered Critical Fire and Trade Vendor Orders, filed by Fluor Enterprises, Inc. (with attachments) Motion to Allow Application Of Fluor Enterprises, Inc. To Transfer Adjudication Of Fluor Enterprises, Inc.'s Motion For Relief From Previously Entered Critical Fire And Trade Vendor Orders To The Honorable Mary F. Walrath, filed by Fluor Enterprises, Inc. Objection Of Orion Refining Corporation To Application Of Fluor Enterprises, Inc. To Transfer Adjudication Of Fluor Enterprises, Inc.'s Motion For Relief From Previously Entered Critical Fire And Trade Vendor Orders To The Honorable Mary F. Walrath, filed by Orion Refining Corporation Transcript of hearing held on September 14, 2004 before the Honorable Charles G. Case, II Objection to Fluor Enterprises, Inc.'s Motion for Relief from Previously Entered Critical Fire and Trade Vendor Orders Filed by Cypress Associates, LLC, as ORC Distribution Trust Representative

06/05/2003

205

06/06/2003 06/20/2003 06/03/04

245 300 1283

06/03/2004

1285

06/17/2004

1314

09/24/2004

1486

06/06/2006

1788

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Date 07/03/2006

Docket Nos. 1794

Record Items Reply to Opposition of ORC Distribution Trust to Motion by Fluor Enterprises, Inc. for Relief from Previously Entered Critical Fire Vendor and Trade Vendor Orders and Request for Comprehensive Scheduling Order Filed by Fluor Enterprises, Inc. Transcript Of Hearing Before The Honorable Mary F. Walrath, Held on July 7, 2006 Certification of Counsel Regarding Order Relating to Fluor Enterprises, Inc.'s Motion for Relief From Previously Entered Critical Fire and Trade Vendor Orders Filed by Fluor Enterprises, Inc. Certification of Counsel Regarding The Debtor's Proposed Order Relating To Fluor Enterprises, Inc.'s Motion For Relief From Previously Entered Critical Fire And Trade Vendor Orders Filed by ORC Distribution Representative Reply to Debtor's Certification of Counsel Regarding the Debtor's Proposed Order Relating to Fluor Enterprises, Inc.'s Motion for Relief From Previously Entered Critical Fire and Trade Vendor Orders Filed by Fluor Enterprises, Inc. Order (REVISIONS BY THE COURT) Relating to Fluor Enterprises, Inc.'s Motion for Relief From PreviouslyEntered Critical Fire and Trade Vendor Orders Motion For Summary Enterprises, Inc. Judgment Filed by Fluor

07/13/2006

1802

07/19/2006

1804

07/19/2006

1805

07/20/2006

1806

07/27/2006

1811

10/23/2006

1833

11/22/2006

1837

Brief in Opposition to the Motion by Fluor Enterprises, Inc. for Summary Judgment Filed by ORC Distribution Representative Affidavit of Thomas W. Briggs, Jr. Regarding Brief in Opposition to the Motion by Fluor Enterprises, Inc. for Summary Judgment Filed by ORC Distribution

11/22/2006

1838

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Date

Docket Nos. Representative

Record Items

11/22/2009

1839

Affidavit of Steven L. Victor Regarding Motion by Fluor Enterprises, Inc. for Summary Judgment Filed by ORC Distribution Representative The Compendium of Unreported Decisions Cited In The ORC Distribution Trust Representative's Brief in Opposition to The Motion By Fluor Enterprises, Inc. for Summary Judgment filed by ORC Distribution Representative Reply to Brief in Opposition to Its Motion for Summary Judgment Filed by Fluor Enterprises, Inc. Emergency Supplement to Reply to Brief in Opposition to Motion for Summary Judgment, in order to Present Newly Produced Documents Filed by Fluor Enterprises, Inc. Affidavit of Kevin J. Mangan Regarding Emergency Supplement to Reply to Brief in Opposition to Motion for Summary Judgment, in order to Present Newly Produced Documents Filed by Fluor Enterprises, Inc. Motion for Leave To File Response to Fluor Enterprises' Emergency Supplement to Present Newly Produced Documents Regarding Brief in Opposition to Motion for Summary Judgment Filed by ORC Distribution Representative Hearing Order Granting Motion of the ORC Distribution Trust Representative for Leave to File Response to the Emergency Supplement to Reply by Fluor Enterprises, Inc. to Brief in Opposition to Fluor's Motion for Summary Judgment to Present Newly Produced Documents Order Denying Motion For Summary Judgment Filed by Fluor Enterprises

11/22/2006

1840

12/05/2006

1843

12/08/2006

1845

12/08/2006

1846

12/11/2007

1847

12/18/2006

1852

12/21/2006

1854

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Date 12/28/2006

Docket Nos. 1856

Record Items Transcript of Hearing held on December 12, 2006 before the Honorable Mary F. Walrath Findings of Fact and Conclusions of Law Opinion GRANTING Fluor Enterprises, Inc.'s Motion for Relief from Previously entered Critical Fire and Trade Vendor Orders Order GRANTING Fluor Enterprises, Inc.'s Motion for Relief from Previously entered Critical Fire and Trade Vendor Orders Motion to Approve Order (I) Granting Reconsideration, In Part, Of The Court's Findings Of Fact, Opinion And Order, Each Dated July 20, 2007, And (II) Upon Reconsideration, (A) Vacating That Portion Of The Opinion And Order Authorizing Fluor Enterprises, Inc. To Recover Pre-Judgment Interest And (B) Granting Related Relief Filed by Cypress Associates, LLC, as ORC Distribution Trust Representative Notice of Appeal (BAP-07-81). Filed by Cypress Associates, LLC, as ORC Distribution Trust Representative Cross Appeal (BAP-07-84). Filed by Fluor Enterprises, Inc. Statement Concerning Timing Of Filing And Service Of Designation Of Items To Be Included In The Record On Appeal And Statement Of The Issues To Be Presented Filed by Cypress Associates, LLC, as ORC Distribution Trust Representative Motion to Intervene (A) in Adversary Proceeding No. 0452447 and (B) in Motion by Fluor Enterprises, Inc. Filed June 3, 2004 for Relief from Previously Entered Critical Fire and Trade Vendor Orders Filed by Development Specialists, Inc. 13

07/20/2007 07/20/2007

1910 1911

07/20/2007

1912

07/30/2007

1913

07/30/2007

1914

08/09/2007

1917

08/09/2007

1919

08/13/2007

1921

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Date 08/13/2007

Docket Nos. 1922

Record Items Brief in Support of Motion to Intervene (A) in Adversary Proceeding No. 04-52447 and (B) in Motion by Fluor Enterprises, Inc. Filed June 3, 2004 for Relief from Previously Entered Critical Fire and Trade Vendor Orders Filed by Development Specialists, Inc., Response to Motion of Cypress Associates, LLC as ORC Distribution Trust Representative, for an Order (I) Granting Reconsideration in Part of the Court's Findings of Fact, Opinion and Order Each Dated July 20, 2007 and (II) Upon Reconsideration (A) Vacating that Portion of the Opinion and Order Authorizing Fluor Enterprises, Inc. to Recover Pre-Judgment Interest and (B) Granting Related Relief Filed by Fluor Enterprises, Inc.

08/13/2007

1924

II.

Statement of Issues 1. Whether the Bankruptcy Court erred in granting the Motion for Partial

Summary Judgment filed by Orion Refining Corporation. 2. Whether the Bankruptcy Court erred in denying the Motion for Partial

Summary Judgment filed by Fluor Enterprises, Inc. 3. Whether the Bankruptcy Court erred in ruling that Fluor does not have a

claim of privilege under the Louisiana Private Works Act. 4. Whether the Bankruptcy Court erred in ruling that Fluor waived its claim

of privilege under the Louisiana Private Works Act pursuant to section 5.6 of the Master Service Agreement ("MSA"). 5. Whether the Bankruptcy Court erred in ruling that section 5.6 of the MSA

is enforceable notwithstanding the Debtors' fraudulent activity.

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6.

Whether the Bankruptcy Court erred in failing to impose a constructive

trust for the benefit of Fluor.

Respectfully submitted, Fluor Enterprises, Inc. By its attorneys, Dated: August 20, 2007 ____/s/ Francis A. Monaco, Jr.__ Francis A. Monaco, Jr. (#2078) Kevin J. Mangan (#3810) Womble Carlyle Sandridge & Rice, PLLC 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801 (302) 252-4340 And Charles R. Penot, Jr. Middleberg Riddle & Gianna 201 St. Charles Avenue, 31st Floor New Orleans, LA 70170 (504) 525-7200 Joseph B. C. Kluttz Kennedy Covington Hearst Tower, 47th Floor 214 North Tryon Street Charlotte, NC 28202 (704) 331-7485

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