6/21 Case Management Plan

Joint Discovery / Case Management Plan

Plaintiffs’ Position: As stated above in Plaintiffs’ Positions in paragraphs 4 and 6(a), the PSLRA discovery stay does not apply to this case and there is no reason to delay scheduling trial. Indeed, at the Rule 26(f) conference, the Parties discussed and agreed to a trial date in the summer of 2020. Accordingly, Plaintiffs respectfully request a trial on August 31, 2020, or on a date thereafter convenient to the Court and anticipate that the trial will take a total of eighty (80) hours divided evenly between the sides. Neither side has demanded a jury trial.

I’m no lawyer. Would love to hear your thoughts on this as you read it.

Also, reading the Plaintiff’s Position makes me want to puke.

16 thoughts on “6/21 Case Management Plan

  1. I am waiting to see what Ted says. Nothing makes sense in TPL land any more. I’m still holding but was hoping to get answers sooner than later. So if this is the case, will the trust hold off on buying shares until this is resolved??? I am not sure but isn’t that the argument why they haven’t bought shares since April? I may have misread or misunderstood.

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  2. could it be that if they bought in addition shares, it would increase Softvest interest in propostion to what they bought in. In addition, if they paid cash divds, there would be a tax burden on those that get them, and the trustees are not one of them with their peanuts size positions.

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  3. I’m not a legal expert but the Trustees have nothing invested so they have nothing to lose by slowing this down. On the other side HK has a business to run and will feel the pinch of TPL locking up shop for a year plus with no buybacks and limited business activities. Not sure it’s their last card to play, but is it seems like an effective one.

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  4. Is there a confirmation somewhere in writing that TPL won’t buy shares?

    It seems to me that the best way to win a vote, if there is one later, is to perform well.

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  5. It’s a good point Ezra, my comment was just based on how they have behaved thus far during the proceedings, I guess I’m making an assumption. I have not seen anything in writing about how they plan to proceed during the lawsuit in carrying out business operations and buybacks. It would be great to see something like that from TPL, but given the disclosure history I wouldn’t expect it. You’re also correct that stewarding the trust as a fiduciary, one would hope that they would not lock down business and would continue to do what’s in the best interests of the beneficiaries… but again, these guys put the douche in fiduciary so I’m skeptical they won’t just take a year off to squeeze the situation a little to their personal advantage. I keep hoping there is a way from the small guys to unite to have our voices heard as well, and in many ways I thought the vote would illustrate that united view, but perhaps there is something more that can be done to send a clear message to lay out basic principles that are agreed by most (ex. continue the buys backs, increase the communication on future planning, stop wasting our money on lawsuits). This all feels very self serving and it’s concerning that this could drag on for years. Looking forward to Ted’s view on this.

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    • I think that we need to go back and find some way to get added to the lawsuit as shareholders to not make this TPL versus Eric Oliver. It should be the ‘Shareholders versus the trustees. We should all have access to the books as detailed in Article 4. The court may have a different view of things if we all support the Softvest points in the countersuit.

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  6. This is getting more complicated. I will try to reduce this down to the key issues based on my brother’s input. There are major differences in strategy that can be seen by the two positions each side is laying out on the process for how the case should be handled.

    This legal filing is a case management plan. It maps out what each side believes to be the key issues, and outlines a process that will lead to a remedy, either an agreement of the two parties, or by the judge making ruling(s). The two positions differ substantially in the process of case should be resolved. Thats what the document is really about.

    The largest difference of opinion is over the need for discovery. The Trustees want to engage in a massive amount of information gathering (see their second filing and the scope of what they want, plus more than 24 people to depose in the HK/Softvest/Oliver camp and a process to take well into 2020.).

    The law allows for an expedited process to review a case when its obvious one side has a preponderance of both facts that support a quick decision. That is the position of HK/Softvest/Oliver, no discovery is needed, their contention is the facts speak for themselves. Indeed, they assert that discovery should be stayed pursuant to the Private Securities Litigation Reform Act of 1995 (“PSLRA”) for the simple reason that if the Judge agrees, it’s pointless to ask for anything from the defendants.

    In short, they are saying the court needs to rule on our request for dismissal of the case and if we prevail, or mostly prevail, that will significantly remove/reduce any discovery needs. They further contend the plantiffs use of a lengthy process amounts to delaying an obvious decision and is a legal strategy consistent with their delay and obfuscation techniques already seen,

    My brother’s opinion is that HK/Softvest/Oliver, as I had said in a previous posting is designed for getting this dismissed, and is going for the knockout punch. The legal strategy of the trustees is to broaden the case, muddy the waters and drag this out as long as possible.

    HK/Softvest/Oliver have filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) and a Request for Judicial Notice in support of a fast decision. The point of this Federal Rule is to permit a decision to be made when something is so clear and supported by case law, in spite of the other side that might be protesting all kinds of related and unrelated items. The courts understand that justice delayed is justice not received. The Trustees don’t want a fast decision, and their positions on the case management document is one of lengthy processes for everything.

    The Court has approved the deadlines for Plaintiffs to respond by July 15, 2019 and for Counter-Plaintiffs to file a reply by August 5, 2019. That is a good sign there are bookends of time on the motion to dismiss.

    These are key dates for the dismissal motion, and the Judge’s decision will then set the scope of what the case will be, or won’t be if much of it gets dismissed. Typical would be 2-3 weeks after the August 5th date the Judge’s written decision would be released.

    This also suggests once a decision is made on the motion to dismiss, this may drive the parties to solving it themselves, especially if major parts of the original case are removed,

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