Opinion
Case No. CV11-00487 EMC
11-22-2011
In re: POWER BALANCE, LLC, a Delaware limited liability company, Debtor and Debtor in Possession.
STEVEN D. ALLISON (SBN 174491) SARAH K. SHAHOLLI (SBN 254943) KATHERINE J. SANTON (SBN 265600) DORSEY & WHITNEY LLP Attorneys for Defendants POWER BALANCE, LLC
STEVEN D. ALLISON (SBN 174491)
SARAH K. SHAHOLLI (SBN 254943)
KATHERINE J. SANTON (SBN 265600)
DORSEY & WHITNEY LLP
Attorneys for Defendants POWER BALANCE, LLC
NOTICE OF PENDING CHAPTER 11 BANKRUPTCY AND NOTICE OF AUTOMATIC STAY ; ORDER RESETTING CMC
[No Hearing Set] TO: THE COURT, PLAINTIFF, AND ALL PARTIES IN INTEREST: PLEASE TAKE NOTICE that:
Power Balance, LLC, a Delaware limited liability company ("Debtor"), filed a voluntary Chapter 11 petition for relief on November 18, 2011. The case has been assigned Case No. 8:11-25982 TA and is pending before the Honorable Theodore Albert, United States Bankruptcy Judge, in the United States Bankruptcy Court for the Central District of California, Santa Ana Division. The Clerk's office of the Court is located at 411 West Fourth Street, Suite 2074, Santa Ana, California 92701-4593.
A copy of the pertinent portions of the Chapter 11 petition filed with the Court on November 18, 2011 are attached hereto as Exhibit "1" and is incorporated herein by this reference.
PLEASE TAKE FURTHER NOTICE that as a result of the above-referenced filing, pursuant to Section 362(a) of the Bankruptcy Code, each creditor of the Debtor is restrained and enjoined, as of the date of the Debtor's bankruptcy filing, from taking any of the acts, or pursuing any of the proceedings, set forth in Section 362(a) of the Bankruptcy Code, including, without limitation, the following:
• Performing any act to collect its claims against the Debtor, including telephoning or otherwise communicating with the Debtor, for the purpose of collecting such claims.
• Filing a lawsuit or continuing any existing lawsuit against the Debtor, including any relief sought pursuant to the above-referenced action.
• Enforcing any judgment against the Debtor.
• Performing any act to enforce a lien against the Debtor's property.
• Performing any act to obtain possession of property of the Debtor's bankruptcy estate or of property from the Debtor's bankruptcy estate or to exercise control over property of the bankruptcy estate.
Creditors may apply to the Bankruptcy Court for relief from the automatic stay imposed pursuant to 11 U.S.C. Section 362.
IT IS SO ORDERED THAT the CMC is reset from 12/16/11 to 6/22/12 at 9:00 a.m. A joint CMC Statement shall be filed by 6/15/12
DORSEY & WHITNEY LLP
Steven D. Allison
Sarah K. Shaholli
Katherine J. Santon
Attorneys for Defendants POWER
BALANCE, LLC
Edward M. Chen
U.S. District Judge
EXHIBIT 1
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
Name of Debtor (If Individual, enter Last, First, Middle):
Power Balance, LLC, a Delaware limited liability company
Name of Joint Debtor (Spouse) (Last, First, Middle):
All Other Names used by the Debtor in the last 6 years
(include married, maiden, and trade names):
All Other Names used by the Debtor in the last 6 years
(include married, maiden, and trade names):
Last four digits of Soc. Sec. No./Complete EIN or other Tax l.D. No.
(if more than one, state all): 27-0982433
Last four digits of Soc. Sec. No./Complete EIN or other Tax l.D. No.
(if more than one, state all):
Street Address of Debtor (Mo. 8 Street, City, State, & Zip Code):
30012 Ivy Glenn Dr., Suite 180
Laguna Niguel, CA
Street Address of Debtor (No. & Street. City, State, & Zip Code):
County of Residence or of the Principal Place of Business: Orange
County of Residence or of the Principal Place of Business:
Mailing Address of Debtor (if different from street address): Zip Code
Mailing Address of Debtor (if different from street address): Zip Code
Location of Principal Assets of Business Debtor (if different from street address above):
Type of Debtor (Form of Organization)
(Check one box.)
[] Individual (Included Joint Debtors) See Exhibit D on page 2 of this foom.
[×] Corporation (included LLC and LLP)
[] Partnership
[] Other (If debtor is not one of the above entitled, check this box and provide the information requested bolow.)
State type of entity:
Nature of Business
(Check one box.)
[] Health Care Business
[] Single Asset Real Estate as defined in 11 U.S.C. §101(518)
[] Railroad
[] Stockbroker
[] Commodity Broker
[] Clearing Bank
[×] other
Tax-Exempt Entity
(Check one box, if applicable)
[] Debtor is a tax-exempt organization under Title 26 of the United States Code (the Internal Revenue Code).
Chapter of Bankruptcy Code Under Which The Petition is Filed (Check one box)
[] Chapter 7 [×] Chapter 11
[] Chapter 9
[] Chapter 12
[] Chapter 13
[] Chapter 15 for Recognition of a Foreign Main Proceeding
[] Chapter 15 Petition for Recognition of a foreign Nonmain Proceeding
Nature of Debts (Check one box)
[] Debts are primarily consumer debts, defined in 11 U.S.C, §101(8) as "incurred by an individual primarily for a personal, family, or house-hold purpose."
[×] Debts are primarily business debts.
Filing Fee (Check one box)
[×] Full Filing Fee attached
[] Filing Fee to be paid in installments (Applicable to Individuals only) Must attach signed application for the court's consideration certifying that the debtor is unable to pay fee except In Installments. Rule 1006(b). See Official Form 3A.
[] Filing Fee waiver requested (Applicable to chapter 7 individuals only). Must attach signed application for the court's consideration. See Official Form 3B.
Chapter 11 Debtors
Check one box:
[] Debtor is a small business as defined in 11 U.S.C. §101(5ID),
[×] Debtor is not a small business debtor as defined in 11 U.S.C. §101 (51D).
Check if:
[] Debtor's aggregate noncontingent liquidated debts (excluding debts owed to insiders or affiliates) are less than $2,343,300 (amount subject to adjustment on 01/01/13 and every three years thereafter)
Check all applicable boxes:
[] A plan is being filed with this petition
[] Acceptances of the plan were solicited prepetition from one or more classes of creditors, In accordance with 11 U.S.C. §1126(b)
Statistical/Administrative Information
[×] Debtor estimates that funds will be available for distribution to unsecured creditors.
[] Debtor estimates that after any exempt property is excluded and administrative expenses paid, there will be no funds available tor distribution to unsecured creditors.
THIS SPACE FOR COURT USE ONLY
Exhibit "A"
(To be completed if debtor is required to file periodic reports, e.g., forms 10K and 10Q) with the Securities and Exchange Commission pursuant to Section 13 or (15(d) of the Securities Exchange Act of 1934 and is requesting relief under chapter 11)
[] Exhibit A is attached and made a part of this petition.
Exhibit "B"
(To be completed if debtor Is an Individual whose debts are primarily consumer debts) I. the attorney for the petitioner named in the foregoing petition, declare that I have informed the petitioner that [he or she] may proceed under chapter 7, 11, 12, or 13 of title 11, United States Code, and have explained the relief available under each such chapter. I further certify that I have delivered to the debtor the notice required by 11 U.S .C, §342(b)
X _______________
Signature of Attorney for Debtor(s) Date
Exhibit C
Does the debtor own or have possession of any property that poses or Is alleged to pose a threat of imminent and Identifiable harm to public health or safety?
[] Yes, and Exhibit "C" is attached and made a part of this petition [×] No.
Exhibit D
(To be completed by every individual debtor. If a joint petition Is filed, each spouse must complete and attach a separate Exhibit D).
[] Exhibit D completed and signed by the debtor is attached and made a part of this petition.
If this is a joint petition:
[] Exhibit D also completed and signed by the joint debtor is attached and made a part of this petition.
Information Regarding the Debtor-Venue
(Check any applicable box)
[×] Debtor has been domiciled or has had a residence, principal place of business, or principal assets in this District for 160 days immediately preceding the date of this petition or for a longer part of such 180 days than in any other District.
[] There is a bankruptcy case concerning debtor's affiliate, general partner, or partnership pending in this District
[] Debtor is a debtor in a foreign proceeding and has Its principal place of business or principal assets in the United States in this District, or has no principal place of business or assets in the United States but Is a defendant in an action or proceeding (in a federal or state court) in this District, or the interests of the parties will be served in regard to the relief sought in this District.
Statement by a Debtor Who Resides as a Tenant of Residential Property
Check all applicable boxes
[] Landlord has a judgment against the debtor for possession of debtor's residence. (If box checked, complete the following)
_______________
(Name of landlord that obtained judgment)
_______________
(Address of landlord)
[] Debtor claims that under applicable nonbankruptcy law, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after the judgment for possession was entered, and
[] Debtor has included in this petition the deposit with the court for any rent that would become due during the 30-day period after the filing of the petition.
[] Debtor certified that he/she has served the Landlord with this certification. (11 U.S.C. §362(1).
Signature(s) of Debtor(s) (Individual/Joint)
I declare under penalty of perjury that the information provided in this petition is true and correct. [If petitioner is an individual whose debts are primarily consumer debts and has chosen to file under chapter 7] I am aware that I may proceed under chapter 7, 11, 12 or 13 of title 11, United States Code, understand the relief available under each such chapter, and choose to proceed under chapter 7. [IT no attorney represents me and no bankruptcy petition preparer signs the petition) I have obtained and read the notice required by 11 U.S.C. §342(b).
I request relief in accordance with the chapter of the title 11, United States Code, specified in this petition.
X _______________
(Signature of Debtor)
_______________
(Signature of Joint Debtor)
Telephone and Fax Number (If not represented by attorney)
Signature of a Foreign Representative of a Recognized Foreign Proceedings
I declare under penalty of perjury that the information provided in this petition Is true and correct, that I am the foreign representative of a debtor in a foreign main proceeding, and that I am authorized to file this petition. (Check one box)
[] I request relief in accordance with chapter 15 of title 11, United States Code. Certified copies of the documents required by 11 U.S.C. §1515 are attached.
[] Pursuant to 11 U.S.C. §1515,1 request relief in accordance with the chapter of title 11 specified in this petition, A certified copy of the order granting recognition is attached
X _______________
(Signature of Foreign Representative
_______________
(Printed Name of Foreign Representative
Signature of Attorney
Signature of Attorney for Debtor(s)
Garrick A. Hollander
Printed Name of Attorney for Debtor
Winthrop Couchot Professional Corporation
Firm Name
660 Newport Center Drive. 4th Floor
Newport Beach, CA 92660
Telephone: 949-720-4100
Date: November 18, 2011 Bar No. 166316
Signature of Debtor (Corporation/Partnership)
I declare under penalty of perjury that the information provided in this petition is true and correct, and that I have been authorized to file this petition on behalf of the debtor.
The debtor requests relief in accordance with the chapter of title 11, United States Coder specified In this petition.
Signature of Authorized Individual
Henry G. Adamany Jr
Printed Name of Authorized Individual
Chairman
Title of Authorized Individual
Signature of Non-Attorney Petition Preparer
I declare under penalty of perjury that (1) I am a bankruptcy petition preparer as defined in 11 U.S.C. § 110; (2) I prepared this document for compensation and have provided the debtor with a copy of this document and the notices and information required under 11 U.S.C. §§110(b), 110(h). and 342(b); and (3) if rules or guidelines have been promulgated pursuant to 11 U.S.C. §110(h) setting a maximum fee for services chargeable by bankruptcy petition preparers, I have given the debtor notice of the maximum amount before preparing any document for filing 1oi a debtor or accepting any Fee from the debtor, as required in that section. Official Form 19B is attached.
Printed Name and title, if any, of Bankruptcy Petition Preparer
Social Security number (If the bankruptcy petition preparer Is not an Individual, stale the Social Security number of the officer, principal, responsible parson or partner of the bankruptcy petition preparer.) (Required by 11 U.S.C, §110.)
Address
X_______________
Signature of Bankruptcy Petition Preparer or officer, principal, responsible person, or partner whose social security number Is provided above.
Names and Social Security numbers for all other individuals who prepared or assisted in preparing this document unless the bankruptcy petition preparer is not an individual.
If more than one person prepared this document, attach additional sheets conforming to the appropriate official form for each person.
A bankruptcy petition preparer's failure to comply with the provision of title 11 and the Federal Rules of Bankruptcy Procedure may result in fines or imprisonment or both 11 U.S.C. § 156.
+-----------------------------------------------------------------------------+ ¦Attorney or Party Name, Address, Telephone & FAX Numbers, and ¦ ¦ ¦California State Bar Number ¦ ¦ ¦ ¦ ¦ ¦Marc J. Winthrop - State Bar No. 63218 ¦ ¦ ¦ ¦ ¦ ¦Garrick A. Hollander - State Bar No. 166316 ¦ ¦ ¦ ¦ ¦ ¦WINTHROP COUCHOT PROFESSIONAL CORPORATION ¦ ¦ ¦ ¦ ¦ ¦660 Newport Center Drive, Fourth Floor ¦FOR COURT USE¦ ¦ ¦ONLY ¦ ¦Newport Beach, CA 92660 ¦ ¦ ¦ ¦ ¦ ¦Telephone: (949) 720-4100/Facsimile: (949)720-4111 ¦ ¦ ¦ ¦ ¦ ¦[×] Attorney tor: Debtor ¦ ¦ +---------------------------------------------------------------¦ ¦ ¦UNITED STATES BANKRUPTCY COURT ¦ ¦ ¦ ¦ ¦ ¦CENTRAL DISTRICT OF CALIFORNIA ¦ ¦ +---------------------------------------------------------------+-------------¦ ¦In re: ¦CASE NO.: ¦ ¦ ¦ ¦ ¦POWER BALANCE, LLC ¦CHAPTER: 11 ¦ ¦ ¦ ¦ ¦Debtor.(s). ¦ADV. NO.: ¦ +-----------------------------------------------------------------------------+
ELECTRONIC FILING DECLARATION
(CORPORATION/PARTNERSHIP)
[×] Petition, statement of affairs, schedules or lists
[×] Amendments to the petition, statement of affairs, schedules or lists
[×] Other: _______________
Dated Filed: concurrently
Dated Filed: _____________
Dated Filed:_____________
PART 1 - DECLARATION OF AUTHORIZED SIGNATORY DEBTOR OR OTHER PARTY
I, the undersigned, hereby declare under penalty of perjury that: (1) I have been authorized by the Debtor or other party on whose behalf the above-referenced document is being filed (Filing Party) to sign and to file, on behalf of the Filing Party, the above-referenced document being filed electronically (Filed Document); (2) J have read and understand the Filed Document; (3) the information provided in the Filed Document is true, correct and complete; (4) the "/s/," followed by my name, on the signature lines for the Filing Party in the Filed Document serves as my signature on behalf of the Filing Party and denotes the making of such declinations, requests, statements, verifications and certifications by me and by the Filing Party to the same extent and effect as my actual signature on such signature line(s); (5) I have actually signed a true and correct hard copy of the Filed Document in such places on behalf of the Filing Party and provided the executed hard copy of the Filed Document to the Filing Party's Attorney; and (6) I, on behalf of the Filing Party, have authorized the Filing Party's attorney to File the electronic version of the Filed Document and this Declaration with the United States Bankruptcy Court for the Central District of California.
______________________________
Signature of Authorized Signatory of Filing Party
Henry G. Adamany Jr., Chairman
Printed Name and Title of Authorized Signature of Filing Party
PART II - DECLARATION OF ATTORNEY FOR SIGNING PARTY
We, the undersigned Attorney for the Filing Party, hereby declare under penalty of perjury that: (1) the "/s/," followed by my name, on the signature lines for the Attorney for the Filing Party in the Filed Document serves as my signature and denotes the making of such declarations, requests, statements, verifications and certifications to the same extent and effect as my actual signature on such signature lines; (2) an authorized signatory of the Filing Party signed the Declaration of Authorized Signatory of Debtor or Other Party before I electronically submitted the Filed Document for filing with the United States Bankruptcy Court for the Central District of California; (3) I have actually signed a true and correct hard copy of the Filed Document in the locations that arc indicated by "Isl," followed by my name, and have obtained the signature of the authorized signatory of the Filing Party in the locations that are indicated by "Isl," followed by the name of the Filing Party's authorized signatory, on the true and correct hard copy of the Filed Document; (4) I shall maintain the executed originals of this Declaration, the Declaration of Authorized Signatory of Debtor or Other Party, and the Filed Document for a period of five years after the closing of the case in which they are filed; and (5) I shall make the executed originals of this Declaration, the Declaration of Debtor(s) or Other Party, and the Filed Document available for review upon request of the Court or other parties.
________
Marc J. Winthrop
________
Garrick A. Hollander
CERTIFICATE OF SERVICE
I, Katherine J. Santon, hereby certify and declare as follows:
I am over the age of 18 years and not a party to the within action. My business address is 600 Anton Blvd., Ste. 2000, Costa Mesa, CA 92626. On November 22, 2011, I caused service of the following document(s) on counsel for all parties to this action by electronically filing the document(s) with the Clerk of the District Court using its ECF System, which electronically notifies them. The document(s) served include:
NOTICE OF PENDING CHAPTER 11 BANKRUPTCY AND NOTICE OF
AUTOMATIC STAY
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this 22nd day of November, 2011, at Costa Mesa, California.
Katherine J. Santon