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Case 8:10-bk-16743-TA

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BUCHALTER NEMER
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JEFFREY K. GARFINKLE (SBN: 153496) BRIAN T. HARVEY (SBN: 238991) BUCHALTER NEMER A Professional Corporation 18400 Von Karman Avenue, Suite 800 Irvine, CA 92612-0514 Telephone: (949) 760-1121 Fax: (949) 720-0182 Email: jgarfinkle@buchalter.com Counsel to the Official Committee of Unsecured Creditors

UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re WESTCLIFFE MEDICAL LABORATORIES, INC., Debtor. BIOLABS, INC. Debtor. Case No. 8:10-bk-16743-TA Jointly Administered With Case No. 8:10-bk-16746-TA Chapter 11 OFFICIAL COMMITTEE OF UNSECURED CREDITORS OPPOSITION TO MOTION BY PARTHENON CAPITAL PARTNERS FOR ORDER: (1) DEEMING CLAIM ALLOWED, OR (2) GRANTING LEAVE TO FILE PROOF OF CLAIM Date: Time: Place.: April 25, 2012 10:00 a.m. 411 West Fourth Street Santa Ana, CA 92701 Courtroom 5B

Affects: All Debtors Westcliff Medical Laboratories, Inc. Biolabs, Inc. only

TO THE HONORABLE THEODOR ALBERT, UNITED STATES BANKRUPTCY JUDGE, AND TO THE DEBTOR, PARTHENON CAPITAL PARTNERS AND ALL OTHER PARTIES IN INTEREST:

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The Official Committee of Unsecured Creditors (the Committee) submits this opposition to the Motion by Parthenon Capital Partners (Parthenon) for Order (1) Deeming Claim Allowed, or (2) Granting Leave to File Proof of Claim (the Motion). For the reasons set forth herein, the Court should find that Parthenon does not hold an allowed claim against the Debtors and has not demonstrated sufficient cause justifying leave to file a claim over nineteen months after the claims bar date. Wherefore, the Committee respectfully requests that the Court deny the Motion. I. INTRODUCTION Parthenons Motion fails to provide any admissible evidence of the key factual assertions supporting its arguments for the allowance of a late filed claim. First, the Motion is devoid of any evidence supporting the validity and value of the management fees allegedly owing to Parthenon, or which of the Debtors supposedly is liable to Parthenon. Matthew Pakkala, the Debtors Chief Restructuring Officer, declares in qualified terms, that he understood Parthenon held a valid claim against the Debtors.1 Mr. Pakkala does not indicate whether he independently verified the validity of the asserted claim, whether he reviewed the contract under which this supposed claim arose, or whether he was responsible for the preparation of the schedules, and therefore has no basis to testify that the categorization of Parthenons claim as disputed was a clerical error. As a result, there is no evidence before the Court to support a conclusion that Parthenons claim was disputed in error, and therefore no basis to rule that its claim should simply be allowed despite the fact that Parthenon never filed a proof of claim. Moreover, Parthenon does not provide any evidence supporting a sufficient justification to satisfy the excusable neglect standard. All that has been presented to the Court are the selfserving and unverifiable statements of Parthenon executive Jeffrey Stein. Many of the statements constitute hearsay and as with Mr. Pakkalas declaration, are qualified with phrases such as It was my understanding2 Mr. Stein bases his assumption regarding the allowance of the claim
See Declaration of Matthew Pakkala, p. 2 (Docket # 762). See Declaration of Jeffrey S. Stein, p. 2 (Docket # 762).

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on alleged conversations with Mr. Pakkala -- with no specificity as to the specific dates these conversations took place or what was discussed during these conversations. Setting aside the fact that Mr. Pakkala appears to lack personal knowledge regarding the validity of the claim, such conversations do not excuse Parthenons obligation to comply with Court orders. The Motion does not mention or address the Notice of Claims Bar Date which clearly directed creditors to check the Debtors schedules and warned of the consequences for failing to timely file a proof of claim. Mr. Stein merely declares, I always believed that Parthenons claim would be allowed in the amount of $1,684,349.39, and accordingly, I had no reason to inspect the Debtors voluminous schedules. 3 Mr. Steins erroneous assumptions do not provide a basis for excusable neglect. It is irrelevant that a claim was listed for Parthenon on an exhibit to the Debtors Disclosure Statement. The Disclosure Statement was filed a full year after the claims bar date expired and was served on creditors solely to provide information regarding the proposed Plan of Reorganization (the Plan). Information contained in an exhibit to the Disclosure Statement does not retroactively excuse a creditor from failing to timely file a proof of claim. Moreover, the Plan does not contain a single provision providing for the allowance of Parthenons claim. On the other hand, the Plan does contain a provision which prevents any information contained in the Plan from waiving any defense the Debtors or the estates may have with respect to any claim. 4 As an insider of the Debtors, Parthenons claim is subject to strict scrutiny. Because Parthenon failed to timely file a proof of claim, its asserted claim was not subjected to the claims review process. In the case of an insider claim, the review process is even more critical to ensure independent verification of a claim that may not be closely scrutinized by the Debtors. To allow such an insider to now file a proof of claim 19 months after the claims bar date would significantly delay distributions under the confirmed Plan. In order to avoid the disruption and

Declaration of Jeffrey S. Stein, p. 2, ln. 17-19 (Docket # 762). In the event this Court determines that an evidentiary hearing is required on the Motion, the Committee intends to depose Mr. Stein. 4 Exhibit A To Order Confirming Debtors First Amended Chapter 11 Liquidating Plan of Reorganization, section D.3., p. 18, ln. 2-4 (Docket #730), attached as Exhibit A to the concurrently filed Request for Judicial Notice.

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harm that would result to those creditors who timely filed proofs of claim, the Court should deny Parthenons Motion. II. STATEMENT OF FACTS The movant Parthenon Capital Partners is an affiliate of the principal equity holders of the debtors Westcliff Medical Laboratories, Inc. and Biolabs, Inc. (the Debtors).5 The Debtors commenced these jointly administered bankruptcy cases by filing voluntary chapter 11 petitions (the Bankruptcy Petitions) on May 19, 2010 (the Petition Date). Each Bankruptcy Petition includes a Unanimous Board Resolution authorizing the bankruptcy filings. 6 The Committee is still attempting to determine whether any officers or directors of Parthenon or its affiliates were also members of the Board of Directors of the Debtors during the course of the bankruptcy cases, but it appears likely that representatives of Parthenon were active members of the Debtors Board of Directors during these cases. Moreover, it is highly likely (if not a certainty) that Parthenon selected not only Debtors counsel, but both FTI and Mr. Pakkala as CRO as well. On July 19, 2010, the Court entered an order establishing September 17, 2010 as the deadline for filing proofs of claim (the Bar Date).7 The Debtors filed and served the Notice of Claims Bar Date on July 21, 2010.8 The proof of service attached to the Notice of Claims Bar Date indicates that it was served on both Parthenon and Kirkland & Ellis, LLP (K&E). Based on certain pleadings filed with the Court, it appears that K&E also represented Parthenon while it served as special counsel to the Debtors. The Debtors application to employ K&E as special counsel discloses in vague terms that K&E currently or has formerly represented Parthenon Capital and its affiliated funds (Parthenon) in matters that do not create an adverse interest
See Declaration of Jeffrey S. Stein, p. 1, ln. 23-25 (Docket # 762). See also the Debtors Corporate Ownership Statements, attached as Exhibits B and C to the concurrently filed Request for Judicial Notice. According to the List of Equity Holders filed in the Biolabs bankruptcy case, Parthenons affiliates that own a more than 20% of the voting securities of Biolabs are Parthenon Investors II and PCIP Investors. 6 Copies of each Unanimous Board Resolution are attached as Exhibits D and E to the concurrently filed Request for Judicial Notice. 7 A copy of the Order establishing the Bar Date is attached as Exhibits F to the concurrently filed Request for Judicial Notice. 8 A copy of the relevant sections of the Notice of Claims Bar Date is attached as Exhibits G to the concurrently filed Request for Judicial Notice.
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between K&E and the Debtors with regards to K&Es proposed role as special corporate counsel to the Debtors. Parthenon is the portfolio parent of the Debtors.9 Furthermore, the Debtors amended application to employ K&E discloses that K&E rendered to Parthenon, Kessinger, FTI, and Pakkala legal services directly related to the FTC inquiry into the Debtors Sale 10 Parthenon apparently is a party to a pre-petition agreement or arrangement with one or both of the Debtors, yet it failed to file a proof of claim prior to the claims bar date of September 17, 2010 and waited over one year before attempting to address its error. On March 11, 2012, Ron Bender, counsel to the Debtors and current liquidating agent for the estates, sent an email to Jeff Garfinkle, counsel for the Committee, advising that Parthenon had failed to timely file a proof of claim. 11 Mr. Benders email states that he spoke with K&E regarding Parthenons failure to timely file a proof of claim, and was advised by K&E lawyers that Parthenon understood that their claim had been accepted by the Debtors. Thus, it appears from Mr. Benders discussions with the K&E that they did indeed represent Parthenon in relation to the Debtors case. Mr. Bender proposed that they would amend the Debtors schedules after confirmation of the Plan in order to retroactively allow Parthenons insider claim. Committee counsel strenuously objected to the proposed post-confirmation amendment of the schedules and requested that all documents related to Parthenon and the asserted insider claim be produced. To date none of these documents have been produced. On March 30, 2012, Parthenon filed its Motion to allow its claim. Parthenon, however, has still not filed a proof of claim providing any evidence supporting the alleged insider claim for management fees or even indicating against which of the Debtors it holds a claim. /// /// ///
See Application of Debtors and Debtors in Possession to Employ Kirkland & Ellis LLP as Special Corporate Counsel Pursuant to 11 U.S.C. 327 (e) and 330 (Docket # 19) at page 11 of the accompanying declaration of Ryan Bennett, attached as Exhibit H to the concurrently filed Request for Judicial Notice. 10 See Amended Application of Debtors and Debtors in Possession to Employ Kirkland & Ellis LLP as Special Corporate Counsel Pursuant to 11 U.S.C. 327 (e) and 330 (Docket # 272) at page 7, attached as Exhibit I to the concurrently filed Request for Judicial Notice 11 A copy of the email is attached as Exhibit A to the concurrently filed Declaration of Jeffrey K. Garfinkle.
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III. ARGUMENT

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A.

Parthenon Has Not Demonstrated Excusable Neglect In the seminal case of Pioneer Investment Services. v. Brunswick Associates Limited

Partnership, the Supreme Court established the following standard for determining excusable neglect: This leaves, of course, the Rule's requirement that the party's neglect of the bar date be "excusable." It is this requirement that we believe will deter creditors or other parties from freely ignoring court-ordered deadlines in the hopes of winning a permissive reprieve under Rule 9006(b)(1). With regard to determining whether a party's neglect of a deadline is excusable, we are in substantial agreement with the factors identified by the Court of Appeals. Because Congress has provided no other guideposts for determining what sorts of neglect will be considered "excusable," we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include, as the Court of Appeals found, the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). Applying this standard, the Ninth Circuit Court of Appeals held that, Although the Court in Pioneer recognized that "excusable neglect" is a flexible, equitable concept, the Court also reminded us that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect. Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir. 1994). In fact, in finding excusable neglect the Supreme Court in Pioneer based its ruling on a determination that the bar date notice in that case was ambiguous. The Court held: We agree with the court that the peculiar and inconspicuous placement of the bar date in a notice regarding a creditors['] meeting," without any indication of the significance of the bar date, left a "dramatic ambiguity in the notification. Ibid. This is not to say, of course, that respondents' counsel was not remiss in failing to apprehend the notice. To be sure, were there any evidence of prejudice to petitioner or to judicial administration in this case, or any indication at all of bad faith, we could not say that the Bankruptcy Court abused its discretion in declining to find the neglect to be excusable. In the absence of such a showing, however, we conclude that the unusual form of notice employed in this case requires a finding that the neglect of respondents counsel was, under all the circumstances, excusable. Pioneer, 507 U.S. at 398-399. 6
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Unlike the bar date notice in Pioneer, the Notice of Claims Bar Date12 in this case was the model of clarity. In clear-cut language the notice stated: If your claim or interest is not listed on the Schedules or is scheduled as disputed, contingent, unliquidated or unknown, or you disagree with the amount or description scheduled for your claim or interest, you must file a proof of claim or interest. And in bold font the notice went on to warn: Failure of a creditor or interest holder to file timely a proof of claim or interest on or before the deadline may result in disallowance of the claim or interest or subordination under the terms of a plan of reorganization without further notice or hearing. The proof of service attached to the Notice of Claims Bar Date indicates that the notice was served on Parthenon and its counsel K&E. The Motion and accompanying declarations do not address the precise instructions and warnings set forth in the Notice of Claims Bar Date, nor do they provide a credible justification for Parthenons failure to comply with such an unambiguous notice, which was clearly within the reasonable control of the movant. See Pioneer, 507 U.S. at 395. Mr. Stein merely declares that he assumed the claim was not listed as disputed. Mr. Steins assumptions, however, do not excuse Parthenon from reviewing the schedules as advised by the Notice of Claims Bar Date. See Midland Cogeneration Venture L.P. v. Enron Corp. (In re Enron Corp.), 419 F.3d 115, 123 (2d Cir. N.Y. 2005)([T]he equities will rarely if ever favor a party who fails to follow the clear dictates of a court rule," and "that where the rule is entirely clear, we continue to expect that a party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test.); see also In re Kmart Corp., 381 F.3d 709, 715 (7th Cir. Ill. 2004)(refusing to allow late filed claim under excusable neglect theory because failure to timely file was avoidable and within claimants control). In the present case, such neglect is even more egregious in view of the sophistication of the party asking to file the late claim. Parthenon is an enormous and sophisticated private equity firm that boasts on its website that it has $2.2 billion of capital under management. Parthenons apparent counsel, K&E, is not only one of the premier firms in the country, but recognized by
12

The Notice of Claim Bar Date was filed on July 21, 2010 (Docket # 180).

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many for its sophisticated bankruptcy practice. As a result, Parthenon has failed to provide a justifiable reason for the delay. See Pioneer, 507 U.S. at 395. The other Pioneer factors also weigh in favor of denying the Motion. The deadline to file proofs of claim expired 19 months ago. Thus, the length of delay factor weighs heavily against granting the motion. Finally, the distributions to those creditors who timely filed proofs of claim would be delayed and reduced if Parthenon is allowed to file a proof of claim at this late date. See In re Intelligent Med. Imaging, 262 B.R. 142, 145-146 (Bankr. S.D. Fla. 2001)(In denying a motion to allow a late filed claim the court held, [A]pplying the Pioneer test, courts place the greatest weight on whether any prejudice to the other parties will occur by allowing a late claim. [citation omitted] There is no prejudice when all the parties can be placed in the same situation that they would have been in if the error had not occurred. In the instant case, allowing [creditors] late-filed claim would cause no prejudice to the [d]ebtor, as the case has resulted in the confirmation of a liquidating plan. However, the claim would produce substantial prejudice to the other creditors in the case, in that it would greatly reduce the distribution to unsecured creditors.)(citations omitted). Moreover, the failure of Parthenon to comply with the Notice of Claims Bar Date and timely file a proof of claim has allowed it to avoid any meaningful review of its alleged claim. A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts. Pepper v. Litton, 308 U.S. 295, 306 (1939); Brewer v. Erwin & Erwin, P.C., 942 F.2d 1462, 1465 (9th Cir. 1991); In re Siller, 427 B.R. 872, 881 (Bankr. E.D. Cal. 2010); Thai Ming Chiu v. Li (In re Demas Wai Yan), 2011 Bankr. LEXIS 4331, *15 (9th Cir. BAP July 11, 2011);Fabricators Inc. v. Technical Fabricators, Inc., 926 F.2d 1458, 1465 (5th Cir.1991). Parthenon is an affiliate of the Debtors principal equity holders (who are insiders), however there is no evidence before the Court that Parthenons claim has been rigorously scrutinized. Mr. Pakkalas declaration makes qualified statements such as I understand that approximately $1,684,349.39 remained owing from the Debtor to Parthenon, I understood throughout these cases that Parthenon held valid claims against the Debtors, and All of these

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discussions assumed that Parthenons claim was valid (emphasis added). 13 However, Mr. Pakkalas fiduciary duty as the Chief Restructuring Officer is to rigorously scrutinize the Parthenon claim. Thus, not only is it improper for him to expend estate resources supporting a claim of an insider, but Mr. Pakkalas declaration reveals he has not even independently reviewed Parthenons claim before providing a declaration in support of its allowance. Given Mr. Pakkalas lack of personal knowledge regarding the validity of Parthenons claim, his declaration should be disregarded by the Court. The Motion does not provide any other evidence regarding the validity of the Parthenon claim or the statements asserting that the claim was scheduled as disputed in error. For all of these reasons, the Motion should be denied. B. The Plan of Reorganization Does Not Provide for the Allowance of Parthenons Claim It is irrelevant that a claim was listed for Parthenon on Exhibit 1 to the Debtors Disclosure Statement. The Disclosure Statement was filed and served a full year after the claims bar date expired. Moreover, the schedule attached as Exhibit 1 merely lists estimates of allowed claims. Such information was provided to allow creditors to evaluate feasibility, the liquidation analysis and possible distributions under the Plan, not to absolve a creditor from failing to timely file a proof of claim. The Motion fails to point to any provision of the Plan allowing Parthenons claim, 14 and actually ignores the provision of the Plan which specifically prohibits such a deemed allowance. Section D.3. provides, Nothing contained in this Plan shall constitute a waiver or release by the Debtors or these estates of any rights of setoff or recoupment, or of any defense, the Debtors or these estates may have with respect to any claim. 15 As a result, the Court should not deem the Parthenon claim allowed. C. There Are Numerous Troubling and Unanswered Questions The Committee has a fiduciary duty to investigate the extraordinarily troubling facts raised by the Motion and the behind the scenes communications apparently taking place between
See Declaration of Matthew Pakkala, p. 2 (Docket # 762). In fact, the Motion at p. 3, ln. 21-22 misleads the Court by stating the Plan, like the Disclosure Statement, lists the Parthenon claim as allowed. The Plan does not include any such list of allowed claims. 15 Exhibit A To Order Confirming Debtors First Amended Chapter 11 Liquidating Plan of Reorganization, section D.3., p. 18, ln. 2-4 (Docket #730).
14 13

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the liquidating agent, counsel to the Debtors and the liquidating agent, Parthenon and K&E. Before the Motion can be granted, it must be disclosed what acts were taken and what involvement Parthenon had in the bankruptcy proceedings between the Petition Date and the Bar Date. Furthermore, the scope of K&Es representation of Parthenon must be fully disclosed. For instance, why upon discovering the problem with Parthenons claim did Mr. Bender first contact K&E? Even more troubling, why did the liquidating agent simply propose to amend the schedules after confirmation of the Plan in order to retroactively allow an insider claim that was not properly filed prior to the claims bar date? Finally, who discovered and when was it discovered that the Parthenon claim was listed as disputed? These unanswered questions raise serious concerns regarding the post-confirmation administration of these cases. For instance, the disclosure of Parthenons significant insider claim prior to the claims bar date could have impacted and altered the direction of the bankruptcy case and the Committees response to a number of critical issues, including plan confirmation, substantive consolidation and subordination under 11 U.S.C. Section 510(b). Moreover, two of the Pioneer factors to be considered in determining whether to allow the filing of a late claim are (1) the reason for the delay and whether the delay was beyond the reasonable control of the person whose duty it was to perform, and (2) whether the creditor acted in good faith. As

demonstrated above, Parthenons reason for the delay does not allow it to file a late claim, and such delay was not beyond the reasonable control of Parthenon. But if the listing of the claim as disputed was discovered prior to confirmation of the plan (and clearly it was discovered well before the entry of the order confirming the Plan), was it reasonable for Parthenon to delay filing a motion to allow the claim until after confirmation? And under such circumstances, has Parthenon demonstrated the required good faith? Based on these troubling facts just now coming to light after confirmation of the Plan, the Court should deny the Motion, or in the alternative continue the hearing so the Committee may have the opportunity to conduct discovery. However, given the harm and delay to those creditors who timely filed proofs of claim that would result from the time and expense necessary to /// 10
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investigate these issues, the Committee strongly encourages the Court to simply deny the Motion so distributions can move forward under the Plan. IV. CONCLUSION For the foregoing reasons, the Committee respectfully requests that the Court deny Parthenons Motion. In the alternative, the Committee requests that the Court continue the hearing on the Motion and schedule an evidentiary hearing so the Committee may have the opportunity to challenge the unverified factual allegations made in support of the Motion.

Dated: April 11, 2012

BUCHALTER NEMER, A Professional Corporation

By

/s/ Jeffrey K. Garfinkle JEFFREY K. GARFINKLE Counsel to the Official Committee of Unsecured Creditors

BN 11369127v3

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