Case 1:12-cv-00292-RM-KMT Document 256 Filed 05/05/17 USDC ... · civil action no. 1:12-cv-00292-rm-kmt in re molycorp, inc. securities litigation declaration of michaels. etkin on

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:12-cv-00292-RM-KMT

In re MOLYCORP, INC. SECURITIES LITIGATION

DECLARATION OF MICHAELS. ETKIN ON BEHALF OF LOWENSTEIN SANDLER LLP IN SUPPORT OF APPLICATION FOR AWARD OF ATTORNEYS' FEES AND

EXPENSES

32252/2

04/13/2017 47786538.3

Case 1:12-cv-00292-RM-KMT Document 256 Filed 05/05/17 USDC Colorado Page 1 of 8

I, MICHAEL S. ETKIN, declare as follows:

1. I am a partner in the law firm of Lowenstein Sandler LLP ("Lowenstein"). I am

submitting this declaration in support ofLowenstein's application for an award ofattomeys' fees for

services rendered as bankruptcy counsel to Lead Plaintiffs and the class in the above-entitled action.

My professional biography and the identification and background of Lowenstein and its Bankruptcy,

Financial Reorganization, and Creditors' Rights practice group are attached hereto as Exhibit A.

2. Lowenstein served as bankruptcy counsel for Lead Plaintiffs in connection with the

chapter 11 bankruptcy cases ofMolycorp, Inc. and its affiliated chapter 11 debtors (the "Molycorp

Chapter 11 Cases"), filed in the United States Bankruptcy Court for the District of Delaware (the

"Bankruptcy Court") and captioned as In re Molycorp, Inc., et al., Lead Case No. 15-11357 (Bankr.

D. Del. 2015).

3. The information in this declaration regarding Lowenstein' s time and services is taken

from time and expense printouts and supporting documentation prepared and maintained by

Lowenstein in the ordinary course of business. I am the partner who oversaw and/or conducted the

day-to-day activities in connection with the Molycorp Chapter 11 Cases. I have reviewed the time

and expense printouts (and backup documentation where necessary or appropriate) in connection

with the preparation of this declaration. The purpose of this review was to confirm both the

accuracy of the entries on the printouts as well as the necessity for, and reasonableness of, the time

and effort committed to this litigation and the Molycorp Chapter 11 Cases. As a result of this

review, I believe that the time reflected in Lowenstein's lodestar calculation for which payment is

sought as set forth in this declaration are reasonable in amount and were necessary to preserve,

protect, and advance the rights of Lead Plaintiffs and the class in this litigation from the potentially

adverse impact of the Molycorp Chapter 11 Cases and to facilitate the continued prosecution and

resolution of this litigation.

-1-


4. The total number of hours spent on this litigation by all Lowenstein personnel is

409.5. The lodestar amount for attorney time based on Lowenstein's current hourly rates is

$280,033.00, less a $25,000 retainer received at the outset of Lowenstein's engagement, for a net

lodestar of$255,033.00. The hourly rates used in computing the lodestar amount are the usual and

customary rates set by the firm for each individual. A breakdown of the lodestar is as follows:

Etkin, Michael S. Partner 133.2 930.00 $ 123,876.00 Behlmann, Andrew D. Counsel 226.4 575.00 130,180.00 Jesse, Eric Counsel 1.4 550.00 770.00 Stefanelli, Nicole Counsel 27.7 610.00 16,897.00 Fulfree, Nicole Associate 18.8 400.00 7,520.00

2.0 395.00 790.00 409.5 $ 280,033.00

Retainer Received 25,000.00 Net Lodestar $ 255,033.00

5. Set forth below is a brief description of the services rendered by each person for

whom fees are claimed and a summary of their relevant qualifications and experience.

(a) I am a partner at Lowenstein and have practiced in the fields of bankruptcy,

business insolvency, bankruptcy litigation, and commercial litigation for nearly thirty-nine years. I

have represented numerous securities class action plaintiffs and classes in the complex chapter 11

bankruptcy cases of public securities issuer defendants. During the course of this action, I monitored

the Molycorp Chapter 11 Cases, reviewed relevant bankruptcy pleadings to assess their impact on

Lead Plaintiffs' ability to continue to prosecute this litigation against all defendants, reviewed and

revised drafts of pleadings prepared by Lowenstein attorneys on behalf of Lead Plaintiffs, consulted

continuously with lead counsel, and prepared for and appeared at relevant Bankruptcy Court

Ms. Stefanelli and Mr. De Leo left Lowenstein in February 2017 and September 2016, respectively. Accordingly, the hourly rates reflected herein are their hourly rates in effect at the time of their departure from the firm.

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hearings, including the multi-day trial regarding confirmation of the chapter 11 plan of

reorganization (the "Molycorp Plan"). I billed 133.2 hours during the course of this litigation.

(b) Andrew Behlmann is Counsel at Lowenstein and has practiced in the fields of

bankruptcy and business insolvency for over seven years. Mr. Behlmann reviewed relevant

pleadings in the Molycorp Chapter 11 Cases, drafted Bankruptcy Court pleadings on behalf of Lead

Plaintiffs, negotiated modifications to the Molycorp Plan to resolve key issues that threatened to

preclude the continued prosecution of this litigation against most or all defendants, appeared at

several Bankruptcy Court hearings, and oversaw research and drafting efforts by other Lowenstein

lawyers in the preparation of various motions and objections to pleadings filed in the Molycorp

Chapter 11 Cases. Mr. Behlmann billed 226.4 hours during the course of this litigation.

(c) Eric Jesse is Counsel in Lowenstein's Insurance Recovery Group and has

practiced in the field of commercial litigation for over seven years. Mr. Jesse reviewed certain of the

Defendants' directors' and officers' insurance policy documents and provided advice on provisions

relevant to the litigation and the Molycorp Chapter 11 Cases. Mr. Jesse billed 1.4 hours during the

course of this litigation.

(d) Nicole Stefanelli was Counsel at Lowenstein until February 2017 and has

practiced in the fields of bankruptcy and business insolvency for over eight years. Ms. Stefanelli

researched legal issues related to class certification under Bankruptcy Rule 7023 and drafted portions

ofa motion to certify a class for purposes of voting on the Molycorp Plan. Ms. Stefanelli billed27.7

hours during the course of this litigation.

( e) Nicole Fulfree is an Associate at Lowenstein. Ms. Fulfree researched legal

issues pertaining to class certification under Bankruptcy Rule 7023, assisted in final drafting of Lead

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Plaintiffs' 40-page objection to confirmation of the Molycorp Plan, and drafted certain procedural

pleadings in connection therewith. Ms. Fulfree billed 18 .8 hours during the course of this litigation.

(f) Anthony De Leo was an Associate at Lowenstein until September 2016. Mr.

De Leo drafted procedural pleadings in connection with a discrete issue in the Molycorp Chapter 11

Cases and billed 2.0 hours during the course of this litigation.

6. Expenses incurred by Lowenstein were reimbursed by lead counsel when invoiced

during the course of this litigation. Accordingly, Lowenstein is not seeking an award of expenses.

day of April, 2017 at Roseland, New Jersey.

-4-


CERTIFICATE OF SERVICE

I hereby certify that on May 5, 2017, I authorized the electronic filing of the foregoing with

the Clerk of the Court using the CM/ECF system which will send notification of such filing to the

e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I

caused to be mailed the foregoing document or paper via the United States Postal Service to the non-

CM/ECF participants indicated on the attached Manual Notice List.

I certify under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on May 5, 2017.

s/ Trig R. Smith TRIG R. SMITH

ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: 619/231-1058 619/231-7423 (fax) E-mail: [email protected]


Mailing Information for a Case 1:12-cv-00292-RM-KMT Molycorp Shareholder Group

et al v. Molycorp, Inc. et al

Electronic Mail Notice List

The following are those who are currently on the list to receive e-mail notices for this case.

• Matthew Alpert

[email protected]

• Stephen M. Baldini

[email protected],[email protected],[email protected],stephen-baldini-

[email protected],[email protected]

• Jeffrey Allen Berens


• David Adam Berger

[email protected]

• Ryan Edward Blair


• Brian Thomas Carney

[email protected],[email protected],brian-carney-

[email protected],[email protected],[email protected]

• Koji F. Fukumura


• Jonah H. Goldstein


• Tor Gronborg


• John Jay Gross


• Leslie J. Hughes

[email protected],[email protected],[email protected],[email protected],[email protected],[email protected],[email protected]

• Stephen Kirk Ingebretsen

[email protected],[email protected],[email protected],[email protected],[email protected]

• Geoffrey C. Jarvis


• Gregory J. Kerwin

[email protected],[email protected],[email protected],[email protected]

• Peter George Koclanes


• Allison Kaye Kostecka


• Meredith Leigh Lambert


• Charles Walter Lilley

[email protected]

• Joshua Angelo Materese


• Kim Elaine Miller


Page 1 of 2Case 1:12-cv-00292-RM-KMT Document 256 Filed 05/05/17 USDC Colorado Page 7 of 8

• Matthew L. Mustokoff


• Jeffrey S. Nobel


• Sarah Emily Phillips


• Jamie Somoza Raghu

[email protected]

• Nicole Susan Schram


• Kevin S. Sciarani


• Trig Randall Smith


• Benjamin James Sweet

[email protected],[email protected],[email protected],[email protected],[email protected]

• The Allen Group

[email protected]

• United States Securities and Exchange Commission

[email protected]

• Jeffrey Mark Villanueva


• Daniel F. Wake


• Regis C. Worley , Jr

[email protected]

• Jonathan D.K. Youngwood

[email protected]

Manual Notice List

The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing).

You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these

recipients.

• (No manual recipients)

Page 2 of 2Case 1:12-cv-00292-RM-KMT Document 256 Filed 05/05/17 USDC Colorado Page 8 of 8

EXHIBIT A

Case 1:12-cv-00292-RM-KMT Document 256-1 Filed 05/05/17 USDC Colorado Page 1 of 29

Practice

· Michael S. Etkin Partner

Tel 973.597.2312 Fax 973.597.2313 E-mail: [email protected]

Lowenstein Sandler

A senior bankruptcy practitioner and commercial litigator, Mickey brings significant experience to his practice, which focuses on complex business reorganizations, investor litigation in a bankruptcy context, and high-stakes Chapter 11 issues. Mickey is consistently recognized by Chambers USA as "a strong lawyer," "fantastic," "very plugged-in," and "instrumental in providing tactical advice," noting his skill in "anticipating all the key issues that are likely to arise." Clients have commended his "technical knowledge, attention to detail, and honest and straightforward legal advice."

A key member of the firm's successful bankruptcy and complex business litigation groups, Mickey has represented debtors, trustees, creditors, and investors in a variety of noteworthy bankruptcies and bankruptcy-related litigation. He currently represents a number of institutional shareholder and investor interests in several large and complex Chapter 11 proceedings, including Sun Edison, SandRidge Energy, Lehman Brothers, Arch Coal, Peabody Energy, Nortel, RCS Capital, and SFX Entertainment, among others. He also represents debtors and purchasers in acquisitions of assets of Chapter 11 and Chapter 7 bankruptcy estates.

In addition, Mickey represents major energy companies in connection with bankruptcy proceedings involving their customers and counterparties. He has been invited to speak before financial institutions, bar association groups, and credit associations regarding the rights of counterparties to derivatives and other energy-related contracts in a bankruptcy context, including cutting-edge issues emerging from the Lehman Brothers Chapter 11 and SIPC proceedings. Mickey also is routinely asked to speak at programs discussing the rights of securities fraud claimants and class action plaintiffs in a Chapter 11 context and on the interplay between bankruptcy law and product liability litigation.

Education

• St. John's University School of Law (J.D., 1978), with honors • Boston University (S.S., 1975), cum laude

Affiliations

• American Bar Association • New Jersey State Bar Association • New York State Bar Association • American Bankruptcy Institute • International Energy Credit Association

\V V',} \V, ! 0 Vie. n St;.; i n , CO tl l


Articles/Interviews Featuring Michael S. Etkin

2

• Michael S. Etkin is quoted in The Street about the implications of the Chapter 11 filing of Westinghouse Electric Co., including the impact on its parent company, Toshiba. The Street, March 30,2017

• Michael S. Etkin is quoted in Law360 regarding the decision by the bankruptcy court in the Fisker Automotive chapter 11 case Law 360, January 11, 2017

• Michael S. Etkin comments in Law360 about the U.S. Trustee's objection to confirmation of the plan of reorganization in the Caesars' Chapter 11 case Law360, January 4, 2017

• Michael S. Etkin is mentioned in Reorg Research regarding the approval of the SFX Entertainment debtors' disclosure statement. Reorg Research, September 29, 2016

• Michael S. Etkin is quoted in Law360 from oral argument during the Chapter 11 bankruptcy proceedings of Molycorp. Law360, March 16, 2016

• Michael S. Etkin is quoted in Law360 regarding certain disclosure issues and the Chapter 11 plan in rare earth miner Molycorp lnc.'s bankruptcy proceedings. Law360, March 8, 2016

• Michael S. Etkin comments on the bankruptcy court's recent decision regarding the enforceability of the GM Chapter 11 sale order to enjoin certain claims associated with the well-publicized ignition switch defect in General Motors products. Turnarounds & Workouts, June 2015

• Michael S. Etkin discusses the status of the restructuring landscape and factors affecting change in the year ahead in the March issue of the Turnarounds & Workouts newsletter. Turnarounds & Workouts, March 2015

• Michael S. Etkin comments in Debtwire regarding a recap of restructuring in 2014, and anticipated trends and issues to look for in 2015. Debtwire, January 2, 2015

• Michael S. Etkin is featured and recognized in IECA Insights, the newsletter of the International Energy Credit Association. /EGA Insights, November 2014

• Michael S. Etkin was quoted in Law360 from his oral argument before the Delaware Bankruptcy Court in connection with the objection of defrauded purchasers in the Chapter 11 liquidating plan for Furniture Brands International Inc. Law360, July 14, 2014

• Michael S. Etkin is quoted in the National Law Journal as objecting to the proposed scheduling order in the General Motors Bankruptcy case relating to the ignition switch litigation and claims. The National Law Journal, May 15, 2014

• In Law360, Michael S. Etkin and Michael Savetsky are highlighted for representing Kenneth Freeling, a former partner at the law firm Dewey & LeBouef LLP, in connection with that firm's Chapter 11 liquidation proceeding. Law360, February 13, 2013

• Michael S. Etkin comments on non-debtor third-party releases in Dynegy lnc.'s bankruptcy plan. SNL Financial, August 27, 2012

• In Law 360, Michael S. Etkin is highlighted for representing the proposed lead plaintiffin a securities fraud class action against three executives of the bankrupt oil and gas company Delta Petroleum. Law 360, May 8, 2012

• Michael S. Etkin comments on the $208.5 million settlement of the consolidated shareholder classaction lawsuit against former officers, directors, underwriters and auditors of Washington Mutual, Inc. alleging misrepresentations and failures to disclose. Dow Jones Newswire and The Wall Street Journal, July 1, 2011

• Michael S. Etkin and Ira M. Levee are highlighted for representing the securities plaintiffs in Colonial BancGroup lnc.'s Chapter 11 proceedings. Law360, June 3, 2011

• Michael S. Etkin comments on Judge Mary Walrath's decision to reject confirmation of Washington Mutual lnc.'s Chapter 11 plan. Dow Jones Daily Bankruptcy Review, January 19, 2011

• Lowenstein Sandler Attorneys Named to 2010 New Jersey Super Lawyers March 23, 2010 • Forty Lowenstein Sandler Attorneys Named to 2009 New Jersey Super Lawyers April 1, 2009 • Michael S. Etkin featured in an article describing his success in striking a deal for securities

claimants in the WorldCom Chapter 11 litigation. New Jersey Law Journal, August 15, 2005 • Michael S. Etkin discusses the decrease of bankruptcy filings in 2005 Philadelphia Inquirer, June 2005

v1 vv vv , l o v; e n st e i n . c o rn

Lowenstein Sandler


Publications

• "Third-Party Releases? - Not So Fast! Changing Trends and Heightened Scrutiny," Michael S. Etkin, Nicole (Brown) Fulfree, A/RA Journal, Volume 29 No. 3, 2015

• "Sparks Continue to Fly- Electricity is not Eligible for Section 503(b)(9) Status and Other Shocking Developments," Bruce S. Nathan, Michael S. Etkin, David M. Banker, Business Credit, January 2014

• "Where to Litigate: Litigation Forum Choices in a Bankruptcy Proceeding," Michael S. Etkin, New Jersey State Bar Association Seventh Annual Bankruptcy Bench-Bar Conference, April 1, 2005

• "Automatic Stay Doctrine Applies to Certain Related Nondebtors," Michael S. Etkin, New Jersey Law Journal, February 5, 2001

Bar Admissions

• 1979, NewYork • 1981, New Jersey

3

Lowenstein Sandler


An Introduction to Lowenstein Sandler

Lowenstein Sandler


Loi1venstein Sandler Overview

Lowenstein Sandler is a leading provider of transactional, litigation, and bankruptcy and creditors'

rights legal services to many of the country's top companies and funds. Close to 300 lawyers in our

New York, New Jersey and California offices immerse themselves in our clients' industries in order to

deeply understand their businesses. We are characterized by our passion for our clients' success, our

commitment to our people, and our pro bona and public interest work in the communities that we

serve.

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Lowenstein Sandler

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Lowenstein Sandier Representative Clients

BED BATH& BEY'ONIC>

Ii BNP PARIBAS

Cambium Group

Q} C0c.?ci1 us,f

ESTEE LAUDER COMl'ANIES

\lD LD. Systems

INDORAMA

0 JPMorganChase

-~ Lend lease

LV rv1 H

(i}; Prudential

@ROTH

sanon oventis ... ,

.zelnlskrnedia

Lowenstein Sandler

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Corporate Department

Our Corporate Department comprises approximately 100 attorneys. In 2013, Chambers USA: America's Leading Lawyers for Business praised the corporate practice as a "corporate powerhouse" and quoted commentators who laud the group for being "Excellent in their drafting and always ready, willing and able to do anything. Brilliant lawyers who know how to do everything." The size of the department and our lawyers' broad-based talent and experience enable us to offer our clients innovative, practical solutions to their matters.

We handle complex corporate transactions nationwide, in many different practice areas:

m Business Tax Counseling & Structuring

is Corporate Finance & Securities, Corporate Governance

m Derivatives

is Employee Benefits & Executive Compensation

m Intellectual Property & Patents

m Investment Management

m Lending & Financial Services

m Mergers & Acquisitions 11 Mortgage Banking & Finance 1111 PIPEs, SPACs & Registered Direct Offerings m Private Equity & Mezzanine Financing m Real Estate 1111 Venture Capital and Angel Investing m Tech Transfer 1111 Trusts & Estates

Lowenstein Sandler

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Corporate Department - Representative Practice Areas

Lowenstein Sandler's Business Tax Counseling & Structuring attorneys provide public and private companies with sophisticated federal and state tax advice in connection with the structuring of business transactions of all types, including taxable and tax-free mergers and acquisitions, divestitures, securities offerings, financings, cross-border investments and restructurings. We also assist clients in federal and state tax examinations, appeals and litigation, provide preventive federal and state tax strategies to mitigate arising issues, and advise on sales and use tax liabilities and collection and payment obligations.

Access to external private and/or public capital markets can be essential to a company's ability to grow and to realize long-term ambitions. Lowenstein Sandler's Corporate Finance & Securities practice leverages diverse capital markets expertise and industry experience to deliver practical solutions in real time, structuring and completing deals effectively and efficiently, navigating the thicket of securities laws, and ensuring that transactions reflect current market terms. In addition to conventional private and public securities offerings, our practice includes specialized expertise, including Venture Capital & Angel Investing, Private Equity & Mezzanine Financing, PIPEs, SPACs & Registered Direct Offerings and Mergers & Acquisitions.

Lowenstein Sandler

5


Corporate Departn1ent - Representative Practice Areas

The attorneys in the firm's Derivatives practice specialize in the negotiation of master agreements and transaction documentation that span the range of diverse and complex derivatives products. Our clients include domestic and international investment funds, fund managers and investment advisers, as well as major financial institutions. Lowenstein Sandler is a member of the International Swaps and Derivatives Association (ISDA), the industry's leading trade association, and we actively participate on various ISDA committees. Our broad industry participation enables our attorneys to closely monitor developments in the derivatives marketplace, and to cultivate professional relationships that facilitate complicated document negotiations.

Lowenstein Sandler's Investment Management Group provides a full range of legal services to leading hedge funds, private equity funds, venture capital funds, and other pooled investment vehicles as well as investment advisers and broker-dealers. We are a driving force in the Investment Management community. Our worldwide clientele includes more than 200 domestic and international investment funds, with assets under management ranging from $25 million to more than $30 billion. Our attorneys are widely-recognized for their innovative solutions and dedication to client service; many have been featured in "best of' legal publications, including Best Lawyers in America, Chambers USA: America's Leading Lawyers for Business and The Legal 500 (Investment Management).

Lowenstein Sandler

6



Mergers and acquisitions are the backbone of Lowenstein Sandler's transactional practice. For both public and private clients, we are continually asked to serve as either buyer's or seller's counsel in purchases and sales of businesses. Many of our clients have achieved substantial growth through a combination of strong internal dynamics and acquisitions of businesses and/or products. For both public and private clients, we function as key members of the merger and acquisition teamadvising on all aspects of the process, from analyzing the offer to closing the deal.

Our Mortgage Banking & Finance practice advises investment banks and mortgage companies on purchases and sales of portfolios of government, conforming, nonconforming, subprime, scratch and dent, and reverse whole loans, in both servicing released and servicing retained transactions. We also help lenders structure, document, and close warehouse lending and mortgage repurchase facility programs. We work with mortgage companies on purchases and sales of agency and private mortgage servicing rights, and we structure, negotiate, and document servicing, outsourcing, and subservicing arrangements. We represent servicers and subservicers in documenting and structuring co-branded marketing programs with government-sponsored enterprises (GSEs) and major trade associations.

Lowenstein Sandler

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Corporate Department -- Representative Practice Areas

Lowenstein Sandler has a national Real Estate practice covering transactions and disputes involving investments in all types of commercial real estate. Developers and landlords, leading financial institutions (including investment advisers, private equity firms and commercial and investment banking institutions), Fortune 100 companies, national and regional retailers, and closely held businesses all turn to Lowenstein Sandler's Real Estate practice group for legal counsel on a wide range of sophisticated transactions involving real properties located throughout the United States.

Our real estate attorneys provide counseling in all aspects of real estate matters, including real estate acquisitions and dispositions; commercial leasing; real estate finance, workouts and foreclosure; public- private partnerships and privatizations; commercial banking site acquisition and disposition; real estate joint ventures and private equity funds; land use and development; and real estate litigation.

The firm's Specialty Finance practice handles mergers and acquisitions; acquisition financing; private investment in public equity (PIPE), special purpose acquisition companies (SPACs) and registered direct (RD) financing transactions for a wide array of investment funds, leading national investment banks and issuers, in deals worldwide. Over the past few years, the group has assisted in more than $3.2 billion in transactions, maintaining its ranking among the nation's top firms representing investors and placement agents in PIPEs, according to The PIPES Report and PrivateRaise.com.

Lowenstein Sandler

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The Tech Group at Lowenstein Sandler is a nationally recognized thought leader in the development of technology-based and venture-backed businesses across industries. Capital providers and emerging companies rely on the group's knowledge, creativity and expertise for complex intellectual property, financial transaction and strategic growth matters. We represent leading U.S. venture funds and work with technology entrepreneurs and businesses at every level - from the labs of leading universities to the largest companies in information technology, telecommunications and life sciences.

The IP and patent attorneys in the Tech Group advise technologically sophisticated companies and their investors on the identification, protection and strategic use of intellectual property. Our lawyers handle all manner of transactions, from the assessment and protection of IP portfolios to tech transfer, corporate spin-outs, strategic alliances, and outsourcing and development agreements.

Trust and estate planning and administration is a delicate process that encompasses the fruits of a life's work, fundamental values, and dreams for posterity. Preserving and transferring wealth while minimizing tax liability requires innovative, hands-on advice. Lowenstein Sandler's Trusts and Estates attorneys design plans tailored to each client's unique circumstances and goals, maximizing benefits and avoiding pitfalls under complex and evolving federal and state tax laws. Our lawyers serve family foundations, guiding them through complex tax and regulatory requirements while helping donors achieve their philanthropic objectives. We also design prenuptial and divorce agreements, because they often involve complex tax and estate planning objectives that can and should be a part of this very sensitive planning. In addition, our attorneys handle the fiduciary litigation that sometimes results from family asset disputes.

Lowenstein sandier

9


Recent Transactions A.((l{,lisnion of Con:imon :Stock Sak of Sys.t"2m One to and S«ured Note5,byAT&T MidOcea.n Partn-?:"r$

and mlat-.!d ro<.fo,mptiom.

system lone t-t"~V t1;~t~ave·

st 100.nno.noa $110,880,fifiU Jo:nuo.ty20B De(:ember 2012

tow,n-;;te.in Sandler re-pre-rented Lo,.. ... -e-n:*-ein Sandler re~nted NsextWolie Wireles:!. StrtanOne

St-lier SeUw

:S•t.uf muftlp!.Q> ~rating a!.~ Acquisltk>ncf ~di• Cotporfflhm of G:t~ Ame-OOt HcldingS' Inc. by Ne-u Yotk S.wdc: Exclwlg~

to Stagec.Oiti:h Group PtC

INYSE wachAmerfca ;;.,~·.•/.>i,•;'1·'! tr:<;

$200.000.000 $ UM DISCLOSED July2012 June 2.012

Low~rt.ein Sand~r rep~ntcd Lo>N~~eih Sandff repre;ented (0q(h Amerir.:a Hcldin95:o lrK. New-Yotk Stock Exch-.ange

SP.lier Pur,ch~,;er

Acqut$iticnof Sali,- of Knowledge Bbe.-Vition!o Holdings: llC Net.works.. Inc. to GfK Gn::mp

INDORAMA ;"-; !. s•1Cf;

$ UNDISCLOSED S UNDISCLOSED Jonucuy:2012 lanuory 2012

luwen~n Sondler repre$ented LowensteITT Sandier represented !ndoroma Ventures Publ:C Y,rowl<dge Net,.ori<s, Inc.

Company Umited Seller Put-:h~

I :S.itle cf majority st~,ke m Sale of lpreo to Kohlt,.,rg st-IL Firumcial LC to New Kra\.iS' Roberts & Co.

Mcuntllin C-11tpital

Jh_ IPREO ·:. SNLfirn:mcial I

S UNDISCLOSED $425,000.0fiij I

I Augutt2011 August 2011

l lowe-nsten Sondfe- re-pre$C!nted L,;,.,ens.tein Sandler rep!e--..ente<:I

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! S.I""°

l $~le of Ceh<\nce Inc. to J Adobe Sy!<tf'mS. ln,r.

S UNB!S&LOSED Oe<ember 2012

bvenrteio $an.di.er r~resented Behance-lnc..

Seller

Acquisitlon of GuiHord Mrn:s. by bM" Corporation

....... .., ... ,v,:.,-,~--

$257 ,000,0UO M<ty2012

La-.venstein Sandler repr~.-t'nted Guilford Mills, .a portfolio

<'.«npany of (~rb,en,is

Capital Mi>nageme1"1t, LP. s~d!otr

Sate of Endeca Technc!ogies to Oracle Corporation ef.

£NDECA'

$ UMBISCLOSEB Dewnber 2011

lcwer1stefn Sandler represented <tn investor gioup ~d by ~er Veni:w~ Partners

Acqul~itlon cf M.anufocruring: facilities from bwff.ta B.V.

INDORAMA

$420.009,00@ March:2011

Lowen..«.tein Sond!er rep,esented lndorama Ventures

Public O;,rnpany Umited Purchaser

Salo of Buddy Media, Inc. to s...=,W.sfoiu.com

BUDDYmMED!A

$145,003.000 August2012

L:,,,.·.reru:tein S~ler rf'pr~~ted Buddy Medi•, ln<e

St::!ler

Ai::<;:[u-liitk•O of Aociom fn:fom~Wl Sealril)' ~f'li1W5.- .awfvJil'l

owMd s~:iary,of Aaio-m Cotpo,atit'ln, by~~li:ng lm'~.w.

}ft<,:";-;- En ;f'~

$74,000.0~0 Februa,y 2012

li:M'enstein Sandler repriesern:ed Ste1Hn.g Infosystems, Inc

Pun:ha.,er

Sal~ of Sl1areFile to Citri:c Sy*ms. .ss~~

S UNll!SCLOSED October 2011

L<:M.'eflStein Sondkr rep1ec..ented ShareFH"

Selle,

5.Afe of Hau~k,ok to Ncn:tro-om

HAUTELOOI{ $270,600,000

Fe-truo.r/ 2011

lov.'ensten Sondler represented Inslght V11:nture Partners. Irt'P'est:ir R~r~~b:ttive

I

Lowenstein Sandler

10


Recent Specialty Finance Transactions

$7,050,000 Dec,ember 2012

lcw.<enstein Sandl<,r represented Placement Agent

/Eterna Zentaris

$16,500,006 October 201 2

lov.<enstein Sandler repr<esented UndeMriter

August2012 lov.<i:::nstein: Sandier represented

Pk,cement Agent

'd/ PRO\fECTUS

$1,000.000 December 2012

Lowenstein Sandler represented Pf«cementAgern:

September 2012

l.ov."IDste;n Sandler repre.sented Jnv;estor

Soma2\on

$3,000,000 July2012

Lo-.oenstein Sondler represented Placem,mtAgent

i1.»J1I S1t800,000

December 2012

Lowenstein Sondlerrepresented Placement Ag.mt

August2012

Lowenstein Sandler represented Issuer

S UNDISCLOSED lune2012

lawenstein Sand1;,r represented Pklcement Agent

$10,000.000 Dec.ember 2012

Lowenstein Sandler represented ln...,,stor

$6,000,000 August 2012

LCM•enste,n Sandler represented Issuer

lune2012

Lowenstein Sandt.er represented Placement Agent

Lowenstein Sandler

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litigation Department

Our Litigation Department also continues to receive top rankings from the Chambers USA guide. The department, which comprises more than 100 attorneys, includes former federal prosecutors, and both a former Attorney General and a former First Assistant Attorney General of New Jersey. Among the firm's litigation practices recognized by the 2013 Chambers USA guide are general commercial litigation, insurance litigation, environmental litigation and white collar criminal defense. The publication notes that the "full-service litigation group offers extensive experience in advising major corporations on high-stakes disputes."

Our litigation services encompass:

m Antitrust and Trade Regulation

llll Appellate

m Capital Markets Litigation

m Civil Tax Controversies

m Class Action & Derivative Litigation

m Commercial & Business Litigation

m Construction Law & Litigation

m Consumer Fraud Litigation

m Employment Law & Litigation

m Environmental Law & Litigation

s Fiduciary Counseling & Litigation

111 Insurance Coverage

m Intellectual Property Litigation

m Media & Entertainment Litigation

m Products & Specialty Torts

111 Real Estate Litigation

m Securities Litigation

m White Collar Criminal Defense

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litigation Department - Representative Practice Areas

Lowenstein Sandler's Capital Markets Litigation practice has a unique breadth of experience representing financial institutions-both domestic and foreign, hedge funds, commercial creditors and an array of other institutional investors. We move swiftly and proactively, always recognizing the economic drivers underlying civil disputes. Our attorneys have successfully litigated cases involving virtually all types of capital markets transactions, including collateralized debt obligations (CDOs) and other forms of securitizations, syndicated bank loans, credit default swaps and other derivatives, loan correspondent agreements, and asset-backed securities. We also work in tandem with the firm's Bankruptcy department to take aggressive action in bankruptcy and insolvency proceedings when litigation is the appropriate strategy.

The class action matters our lawyers handle include consumer fraud, securities fraud, ERISA, antitrust, products liability, and mass tort claims. While our attorneys advise clients on avoiding or mitigating class action exposure, litigation often is inevitable. We are adept in the procedural law and strategy of class actions and win substantive legal rulings that limit or eliminate the exposure to companies of such actions. The firm's Class Action & Derivative Litigation Group also frequently is called on to defend derivative litigation brought against public and private companies and their directors and officers. Guided by our clients' business objectives, we develop and implement strategic litigation plans tailored to the facts, jurisdiction, and specific demands of each situation.

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Litigation Department - Representative Practice Areas

Lowenstein Sandler represents public and private companies, financial institutions, investors, entrepreneurs, governmental agencies, universities, and private clients in complex and sophisticated corporate and litigation matters throughout the country. We regularly litigate cases involving claims of civil, RICO, securities fraud, consumer fraud, misappropriation of intellectual property, breach of fiduciary duty, business torts and breach of contract, among many others.

Lowenstein Sandler attorneys assist public and private owners, contractors, subcontractors, design professionals, and others navigate each phase of real estate development and construction. We have "made law'' on important construction legal issues and established a high level of credibility with public agencies, construction officials, judges, and adversaries. The firm represents clients in matters including public bidding cases, lien claims, and disputes involving bonding, errors and omissions, performance failure and defects and cost overruns.

We offer invaluable assistance in the acquisition and financing process and in ensuring compliance with all applicable zoning regulations. We also help negotiate and prepare contracts for all forms of project delivery. In addition, our lawyers also have a solid record of successfully prosecuting and defending emergent public bid challenges in both the trial and appellate courts.

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Lowenstein Sandler's Employment practice group works with clients ranging from dynamic start-ups to multinational corporations, developing strategies that address our clients' challenges and leverage their opportunities, while helping management comply with the growing array of employment laws that regulate the workplace. Keenly aware of the financial and public relations fallout that can result from a high-profile confrontation with an employee, we focus on preventing claims and on pursuing litigation strategies that enhance the ability of our clients to manage their employees in an effective manner that strengthens their organizations and promotes productivity.

Attorneys in the Environmental Law & Litigation practice counsel clients on a wide variety of environmental issues. Our experience encompasses special circumstance cases involving catastrophic events and chemical exposures, and specialized areas, such as dram shop litigation. We are extremely familiar with medical, scientific and technical issues, enabling the effective development of defenses to claims. We also possess significant experience in the selection and preparation of expert consultants and witnesses. Our firm has played an important role in many landmark environmental and toxic tort cases, and has litigated traditional cost recovery cases, civil and criminal enforcement cases, mass tort defense, and environmental insurance coverage matters.

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Lowenstein Sandler's Insurance practice has evolved to meet the needs of its clients. Most recently, the practice has become nationally known in the new area of cyber-insurance, which provides coverage for such intangible exposures as system disruption, lost or damaged data, invasion of privacy and intellectual property infringement. Many companies do not realize that they are probably uninsured for such claims. Lowenstein Sandler works with its clients to develop insurance programs that address these issues, and resolves insurance claims against recalcitrant insurers arising in these areas. D&O insurance continues to hold a prominent place as corporate governance issues remain in the forefront. We assist our clients in negotiating and reviewing D&O policies, and represent policyholders in D&O disputes. Environmental and mass tort insurance claims remain a staple of our practice. We represent clients in disputes under property policies. Broker malpractice is increasingly important. As to the future, we are tracking insurance developments with respect to climate change, including the new policies that insurers are underwriting to cope with this risk.

As the pace of technological innovation in our global economy continues to accelerate, the ability of a business to recognize, perfect, and enforce its intellectual property rights while steering clear of the rights of others has taken on mission-critical status. Lowenstein Sandler's Intellectual Property Litigation practice provides counseling and strategic advice and brings its litigation skills to bear on intellectual property disputes of all types. Our attorneys have successfully litigated to completion pat-ent, trademark, trade secret, and copyright cases, as well as patent reexamination and trademark opposition and cancellation proceedings in the United States Patent and Trademark Office.

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litigation Department -- Representative Practice Areas

Corporations and their directors, officers, and financial institutions have been dealt a one-two punch in recent years: expanded securities reform legislation enacted against an unpredictable economy and negative publicity of corporate misbehavior. The attorneys in Lowenstein Sandler's Securities Litigation practice handle securities litigation across the country on behalf of both defendants and plaintiffs, including public companies; their officers, directors, and employees; broker-dealers; mortgage bankers/lenders; hedge funds; registered investment advisers; and other institutional and private investors. So in-depth and long-standing is our experience that the firm founded the New Jersey State Bar Association's Committee on Securities Litigation and Regulatory Enforcement. Our attorneys act as arbitrators for the National Association of Securities Dealers (NASO) and the New York Stock Exchange (NYSE).

Lowenstein Sandler's White Collar Criminal Defense practice defends corporate and private clients in criminal and regulatory matters in federal and state courts around the country. We also conduct internal investigations and create and implement corporate compliance programs for public and private corporate clients.

The group, which comprises five former federal prosecutors, has represented directors, officers and corporations in approximately 50 major high-profile securities fraud prosecutions in recent years. Our attorneys have served as lead counsel in many high-profile prosecutions nationwide involving securities fraud, insider trading, tax violations, antitrust violations, bank fraud, environmental violations, foreign corrupt practices, government procurement violations, insurance fraud, racketeering, and political corruption.

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Bankruptcy, Financial Reorganization & Creditor's Rights

Lowenstein Sandler's Bankruptcy, Financial Reorganization, and Creditors' Rights Department comprises several of this country's top reorganization attorneys who advise clients in many of the nation's largest Chapter 11 cases, out-of-court workouts and financial restructurings. We have developed a national profile through our representation of unsecured creditors' committees as well as individual secured and unsecured creditors in Chapter 11 cases filed throughout the country. The practice is topranked in the 2013 edition of the Chambers USA guide and is consistently ranked among the most active bankruptcy departments in the nation by The Deal.

Our practice cuts across various industries, including agriculture/food, chemical, floor covering, furniture, paper, publishing, textile, energy and telecom, in which the membership is composed of a diverse group of bondholders, financial institutions, trade vendors and unions. We have significant experience and success in bringing about consensus among constituencies with respect to financial restructuring. We also represent debtors in Chapter 11 cases; investors in, or purchasers of assets, securities or obligations of companies in Chapter 11; and indenture trustees, public debt holders, and others in the restructuring of publicly held debt and equity securities.

We have strong working relationships with the major investment banking and financial advisory firms that concentrate in the bankruptcy, reorganization and distressed-debt market. We have taken aggressive positions in the face of significant opposition in order to ensure that our clients received fair value and equitable treatment. We also have a demonstrated ability to litigate, when necessary, in the largest and most complex cases.

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Bankruptcy, Financial Reorganization & Creditor's Rights

We serve as national bankruptcy counsel and render advice regarding creditors' rights to numerous Fortune 500 companies. Our services include auditing clients' accounts receivable procedures to minimize exposure to bad debts and preference liability; enforcing clients' rights to stop delivery of and reclaim goods that were shipped at or around the time of a bankruptcy filing; and defending preference actions, fraudulent conveyance setoffs, and administrative actions nationwide. We have extensive knowledge of the law in each state as it pertains to preference and fraudulent conveyance litigation and all available defenses. We have also assisted our clients' credit departments in negotiating and preparing letters of credit; security, tolling, consignment and bailment agreements; offset agreements; sales of claims and put agreements; and other arrangements that increase the likelihood or extent of recovery on their claims. As part of these services, we have reviewed and advised our clients about the trade lien programs that are frequently being implemented in large retail bankruptcy cases.

Our attorneys have written and lectured extensively throughout the country on bankruptcy and creditors' rights issues. For example, one of our partners authored the American Bankruptcy lnstitute's Trade Creditor Remedies Manual: Trade Creditors' Rights under the UCC and the U. S Bankruptcy Code and the National Association of Credit Management's Manual of Credit and Commercial Laws. Our lawyers are leaders in industry organizations such as the Commercial Finance Association, the National Association of Credit Management, the Turnaround Management Association and the American Bankruptcy Institute, and are regular contributors to industry publications, including the American Bankruptcy Institute Journal and Business Credit.

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Lowenstein Sandler Pro Bono & Diversity

In addition to serving our clients with energy and passion, we are committed to serving the public good. Our founding principles continue to be the model for our practice-to provide the highest quality service, dedication and commitment to both our clients and the community. In 2009, the firm launched the Lowenstein Center for the Public Interest, reaffirming and expanding the firm's dedication to addressing significant social issues and providing community assistance. As part of the program, five Lowenstein associates dedicate 25 percent of their time to the Center's projects and help spearhead the firm's overall pro bona efforts, which totaled more than 20,100 hours of attorney and paralegal participation in 2012. The Center focuses on six areas-children and education; immigration; criminal justice; civil and human rights; the arts; and sustainable and community development.

Diversity at Lov1ensteln Sandler

Since its founding in 1961, Lowenstein Sandler has held diversity as a core value. This legacy began as the vision of the firm's founding member, Alan V. Lowenstein, who set out to create a "meritocracy," i.e., a firm where professionals were recognized for their contributions and talent without regard to race or creed. Consistent with this legacy, Lowenstein Sandler has been a leader in the advancement of diversity in the legal profession, and has implemented several policies and programs to encourage the recruitment, mentoring, retention, and promotion of women and lawyers from diverse backgrounds. As a result of these efforts, the firm ranked among Working Mother magazine's and Flex-Time Lawyers' best law firms for women in 2009, and Mu/tiCu/tural Law magazine's "Top 100 Firms for Diversity," "Top 100 Firms for Women" and "Top 25 Firms for Hispanics" in 2008.

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Industry Recognition

2013 Rankings #1 ranking (tie) for Corporate practice #1 ranking (tie) for Litigation: General Commercial, Insurance and White Collar Crime & Government Investigations practices #1 ranking (tie) for Environmental practice #1 ranking (tie) for Bankruptcy/Restructuring practice

Corporate "This corporate powerhouse is seen by clients and peers alike as a "preeminent M&A firm" and "houses a prolific and highly acclaimed technology and venture capital practice and proves popular with investment management clients, investment banks and issuers." Sources praise our corporate attorneys as "Excellent in their drafting and always ready, willing and able to do anything. Brilliant lawyers who know how to do everything."

Litigation Our "full-service litigation group offers extensive experience in advising major corporations on high-stakes disputes. The team's outstanding expertise in commercial litigation and white-collar crime defense attracts a wide range of clients, including names from the pharmaceuticals, consumer goods and educational sectors." Sources praise our litigation attorneys as "clear market leaders."

Bankruptcy "Commentators concur that the firm deserves its place within Band 1 of the rankings saying "The firm is well managed, accessible and responsive to client needs." "Very skilled and qualified; available all the time."

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Industry Recognition

Intellectual Property Our IP practice is "widely recognized for its sophistication in representing companies requiring advice on critically important IP concerns" with sources saying our IP attorneys are "always up to date with current issues, and are flexible and available whenever we need them. 11

Environmental Law & Litigation "Lowenstein Sandler's environmental practice is lauded for its impressive depth of resources and high-quality work product."

Employee Benefits & Executive Compensation Sources say they are "very impressed with" our Employee Benefits & Executive Compensation attorneys' work. "They offer highquality legal work, and are very responsive and easy to work with."

Rea! Estate Our real estate ''team is highly regarded for its transactional work in relation to all manner of commercial real estate matters" with sources commenting they "have received great advocacy and advice. They have done a great job at prioritizing the issues and are very cost efficient. 11

Employment Sources say the advice our Employment attorneys provide "is not only something that I can rely on from a legal perspective, it also offers business strategy."

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Industry Recognition Legal 500 {20'13) • "Recommended" for Investment Fund Formation and Management: Alternative/Hedge Funds (National) (for sixth consecutive year) • "Recommended" for Mergers, Acquisitions and Buyouts: Venture Capital and Emerging Companies • "Recommended" for Mergers, Acquisitions and Buyouts: M&A Middle Market

U.S. News & World Report Best Law Firms (2013} • Recognized in the following practice areas: Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law; Commercial

Litigation; Corporate Law; Criminal Defense: White Collar - Governmental Investigations & Litigation; Employee Benefits (ERISA) Law; Environmental Law; Insurance Law; Litigation - Bankruptcy; Litigation - Construction; Litigation - Eminent Domain & Condemnation; Litigation - Environmental; Litigation - First Amendment; Litigation - Intellectual Property; Litigation - Securities; Litigation - Trusts & Estates; Media & First Amendment Law; Mergers & Acquisitions Law; Personal Injury Litigation - Defendants; Private Equity Law; Private Funds/Hedge Funds Law; Real Estate Law; Securities/Capital Markets Law; Securitization and Structured Finance Law; Tax Law; Trusts & Estates Law and Venture Capital Law

Best Lawyers in America (2008-2014} • Three of our litigation partners were named among the country's top 0 bet-the-company litigators"

The Deal (2007~20'13) • Consistently ranked as one of the most active bankruptcy departments in the nation

Dow .Jones Private Equity Analyst {2010-2013} • Ranked among the most active law firms in the nation for the number of private equity and venture capital deals negotiated and closed in

2009-2012

World Trademark Review(:2012-2013} • Listed among the preeminent trademark practices in World Trademark Review 1000- The World's Leading Trademark Professionals • The chair of our Trademark Enforcement & Prosecution group, Vanessa A. Ignacio, individually recognized among leading global trademark

practitioners

fnteflectuai Asset Management (!AM) (2013) • Listed among the preeminent patent practices in IAM's Patent 1000- The World's Leading Patent Practitioners 2013 • The chair of our Intellectual Property practice, Mark P, Kesslen, and Stephen R. Buckingham were individually recognized among leading

global patent practitioners

fnte!!ectual Property Today (2013) • Ranked amon to atent firms based on number of atents issued in 2012

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Industry Recognition Private Asset Management (PAM) ;Wagazine (2013) • Received "Best Law Firm - Client Service" award

Corporate Counsel {2009-2012} • Selected as a "Go-To Law Firm for the Top 500 Companies" for litigation, intellectual property and employment & labor

BT! Client Service A-Team (2013) • Recognized for outstanding client service to Fortune 1000 companies

PrivateRaise.com and Placement Tracker(2008-2012} • Consistently ranked among the nation's leading firms for representing placement agents in Private Investments in Public Equity (PIPE)

transactions and for representing PIPE investors

The Am Law Daily {20'! 2) • Ranked 33rd among AmLaw 200 firms for pro bona work

Hispanic National Bar Association Pro Bono Award (2012} • Received inaugural HNBA Pro Bono Award (large firm category), recognizing the firm's achievements and contributions to the Hispanic legal

community and the Latino community generally

New Jersey Law Joumal Pro Bono Ranking {2006-2012) • Ranked first in the state for pro bona work for seven consecutive years

American Conference on Diversity "Humanitarian of the Year" (2011) • Lowenstein Sandler was named 2011 "Humanitarian of the Year" by the American Conference on Diversity. This honor is awarded to individuals

or companies that have exhibited a record of philanthropy, self-sacrifice or business and personnel practices that contribute to the welfare of others regardless of race, ethnicity, religion, gender, cultural background or national origin.

f'MBiz{20iO, 2012} • Named one of the Best Places to Work in New Jersey

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www.lowenstein.com

New York 1251 Avenue of the Americas

New York, NY 10020

212 262 6700

Palo Alto 390 Lytton Avenue

Palo Alto; CA 9Li301

650 Li33 5800

Roseland 65 Livingston Avenue

Roseland, NJ 07068

973 597 2500

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Documents

Case 1:12-cv-00292-RM-KMT Document 256 Filed 05/05/17 USDC ... · civil action no. 1:12-cv-00292-rm-kmt in re molycorp, inc. securities litigation declaration of michaels. etkin on