For these reasons, the Court holds that Defendant’s 12(c) motion triggers the automatic discovery stay of the PSLRA. The Court therefore ORDERS that all discovery and other proceedings in this matter are STAYED until Defendant’s motion for judgment on the pleadings is resolved. Additionally, fourteen days after the Court enters its ruling on the Defendant’s motion, the parties shall file a joint proposed discovery schedule. Requests for additional affirmative relief, such as relief from the stay, shall be made by motion.
See docs labeled 6/25.
White card asks court for 1) immediate confirmation of Oliver as Trustee and 2) an injunction on Trustee activity in the absence of Oliver.
It is unclear to me why these two requests weren’t filed immediately post election or along with the countersuit. It looks like the time requested for trial (1yr from now) was cause to get moving.
Discovery sounds like it’s terrible so far.
I think a risk now is that the blue ribbon commission gets together and converts to a C-Corp very quickly and in doing so installs a very insular board. Maybe I’m crazy but (as we’ve seen) stranger things have happened.
From Press release. Highlighting mine:
“In order to bring the Court case to a prompt resolution, the Investor Group has filed with the United States District Court for the Northern District of Texas a request for a declaratory judgment that (1) the vote at the May 22, 2019 special meeting was valid and Mr. Oliver has been duly elected a TPL Trustee, and (2) David Barry has never been duly elected a TPL Trustee, among other things. To prevent any further abrogation of TPL shareholders’ rights in connection with the May 2019 election, the Investor Group has also requested that the Court issue a preliminary injunction prohibiting Mr. Barry and Mr. Norris from taking any action on TPL’s behalf without Mr. Oliver’s participation as a fully empowered Trustee. The Investor Group has also requested that the Court schedule the hearing on their motion for August 5, 2019, or as soon thereafter as the Court is available. The Court filings are available here: https://horizonkinetics.com/tpl/.
“On June 14, 2019, Mr. Barry and Mr. Norris issued a press release stating they were “obliged to remind shareholders that the proxy solicitation is suspended while the litigation is pending.” One week later, their counsel requested, in a Court filing, a trial on the merits of the lawsuit not commence until at least August 31, 2020. These recent statements – in addition to the daunting discovery requests served last week by Incumbents’ counsel on the Investor Group, including Eric Oliver’s son and Allan Tessler’s two daughters – make clear TPL’s true motivations behind its lawsuit: (1) intimidate the Investor Group, (2) impose on over 15,000 shareholders at least a year-long delay, and (3) incur the costs of protracted litigation. All of these nefarious tactics were taken in an effort to dodge the shareholders’ election of Mr. Oliver as Trustee. In the meantime, the Incumbents continue to illegally manage TPL without the necessary checks Mr. Oliver would bring as a duly elected Trustee. All TPL shareholders should be aligned in asking TPL management to fully cooperate in the prompt resolution of these matters.”
From court docs on injunction:
Counterclaim Plaintiffs also respectfully move for the issuance of a preliminary injunction that:
1. Either (i) prohibits Counterclaim Defendants from taking any action on TPL’s behalf without Mr. Oliver’s participation as a fully empowered trustee; or (ii) prohibits Counterclaim Defendants from any further unauthorized postponement of the election by requiring the previously scheduled May 22, 2019 special meeting of shareholders be reconvened within five days of entry of the injunction to allow any additional votes to be cast and the official results be confirmed and announced by TPL via press release or securities filing; and
2. Prohibits Mr. Barry from directly or indirectly taking any action on TPL’s behalf until a new election can be held pursuant to the requirements of TPL’s Declaration of Trust.
As explained in the accompanying memorandum of law, the disputes between Incumbents and TPL’s shareholders are ripe for swift resolution by declaratory judgment because the key facts underlying the disputes are uncontroverted. In addition, all four relevant factors weigh in favor of the issuance of interim injunctive relief: Counterclaim Plaintiffs are substantially likely to prevail on the merits; they and other TPL shareholders will suffer irreparable harm if the preliminary injunction does not issue; the balance of harm weighs in their favor; and issuance of preliminary injunction will serve the public interest.
A far more important issue, though, is that the rules of the Charter you constructed require, among other philosophically interesting conditions, that the Committee members deliberate this topic in secret. Nor may they release any information, even after the conclusion of the Committee’s work, without your approval. Yet, that is contrary to the well and universally accepted principles of responsible and ethical corporate governance.
Sounds like the HK rep was being invited to a mob hit.
Questionnaire part 2 in the making if HK declines. “But we asked if you wanted to participate??”
Mayor Larry Vaughn of Amity Island forms committee to explore nuisance fish.
Venezuelian President Maduro calls for fair and honest elections.
In all seriousness, while this appears to be a step in the right direction, this is a troll attempt.
McGinnis is on record as being Blue card friendly. Cook is being put into the position to vote himself out of a potetional job (though he already lost the election). This lineup is so obviously preposterous (4 out of 5 house votes), that one has to conclude the goal of this press release was to antagonize the “dissidents” and holders that actually have capital at stake. You know, more than 300 shares.
If they really cared about C-corp they would put it to a shareholder vote immediately.
The Conversion Exploration Committee will evaluate, from a corporate, corporate governance, tax, accounting and business perspective, whether the Trust should be converted into a C-corp or, in the alternative, whether the Trust should remain a business trust (with potential amendments to the declaration of trust). The Conversion Exploration Committee will begin its work this week. While the process is expected to take several months, the Conversion Exploration Committee will make a recommendation to the Trust as soon as practicable.
The members of the Conversion Exploration Committee are:
- John R. Norris III, incumbent Trustee
- David E. Barry, incumbent Trustee
- Four-Star General Donald Cook, USAF (Ret.)
- Dana McGinnis, Founder and Chief Investment Officer of Mission Advisors, one of the Trust’s largest shareholders
The Trust also invites Horizon Kinetics to designate a person of its choosing as the fifth member of the Conversion Exploration Committee.
See Ted’s excellent reply to the last post for context around 12c in this case. Highligting is mine.
Experienced practitioners are familiar with Federal Rule of Civil Procedure 12, which provides for various pretrial motions to challenge the opposing party’s pleadings and to assert other defenses and objections. If asking attorneys what type of pretrial challenges they consider to be part of their arsenal of motions challenging the adequacy of the pleadings, their response likely would be limited to motions to dismiss for failure to state a claim, motions to strike, or motions for summary judgment. Rule 12(c) motions—allowing a party to move, after the pleadings are closed, for judgment on the pleadings—are often overlooked. Practitioners, however, should consider and incorporate Rule 12(c) motions into their litigation strategies.
Motions for judgment on the pleadings are essentially trials on the pleadings. Rule 12(c) was designed to prevent the piecemeal process of judicial determination that prevailed under the old common law practice.2 It allows for a decision on the merits of the claims based upon the pleadings in special circumstances, such as when the parties do not dispute the facts in the pleadings. Thus, Rule 12(c) motions can help dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. Because a motion for judgment on the pleadings can highlight for the court its ability to resolve the case, merely by examining the initial papers,3 its use can mean the difference between unnecessarily protracted litigation and a prompt resolution of the dispute. As one author described a winning motion practice, albeit in the context of summary judgment:
[w]ith one successful roll of the . . . dice, an attorney can win the trial-court round, put an opponent on the defensive, save time and money that would be spent in court, and emerge a hero to the client. Used correctly and shrewdly, [a dispositive motion] is a lethal weapon that can resolve lengthy, expensive, and exhausting litigation years before a case reaches the trial stage.4
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.