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					                                  Case 08-10474-mkn           Doc 589       Entered 02/24/11 18:53:36               Page 1 of 31


                      1   GORDON SILVER                                                               E-Filed On 2 1 214 hi
                          GREGORY E. GARMAN, ESQ.
                     2    Nevada Bar No. 6654
                          E-mail: ggarman@gordonsilver.com
                     3    3960 Howard Hughes Pkw 9th Floor
                                                 y.,
                          Las Vegas, Nevada 89169
                     4    Telephone (702) 796-5555
                          Facsimile (702) 369-2666
                      5   Attorney for Zyen, LLC and
                          Manzen, LLC d/b/a Xyience
                      6
                                                           UNITED STATES BANKRUPTCY COURT
                      7
                                                                FOR THE DISTRICT OF NEVADA
                      8
                          In re:                                                           Case No.: BK-S-08-10474-MKN
                      9                                                                    Chapter 11
                          XYIENCE INCORPORATED,
                     10
                                                Debtor.
                     11
                                                                                           Date: OST Pending
                     12   	                                                                Time: OST Pending

                     13                EMERGENCY MOTION FOR PLAN IMPLEMENTATION INJUNCTION

                     14               Pursuant to Sections l 105 and 1142(b) and Bankruptcy Rule 3020(d), Zyen, LLC

                     15       ("Zyen") and Manzen, LLC, a Nevada limited liability company d/b/a/ Xyience ("Xyience")2

                     16       hereby respectfully submit their Emergency Motion for Plan Implementation Injunction (the

                     17       "Motion") in the above-captioned case. Through this Motion, Zyen and Xyience request that this

                     18       Court enjoin Richard Bergeron ("Bergeron") from pursuing claims against Xyience, Inc.

                     19       ("Debtor"), Xyience, and their related parties, as such actions by Bergeron are in direct

                     20

                     21
                              1 Unless otherwise expressly stated herein, all references to chapters or sections shall refer to 11 U.S.C. § 101-1532
                     22       (the "Bankruptcy Code"), and all Rule references shall refer to the Federal Rules of Bankruptcy Procedure, 1001-
                              9036 (the "Bankruptcy Rules").
                     23       2
                                Prepetition, Zyen was Debtor's largest secured creditor. During the course of the Bankruptcy Case, Debtor entered
                              into an Asset Purchase Agreement with Manchester Consolidated Group, an Ontario corp. ("Manchester"), which
                     24       was approved by entry of an order of this Court on April 7, 2008, pursuant to which, in exchange for a cash payment
                              to Debtor's estate and the assumption of Zyen's secured claims exceeding $14.8 Million, Debtor's assets were
                     25       transferred to Manchester subject to Zyen's liens, save and except the excluded assets, which included all causes of
                              action of Debtor, Debtor's books and records, all rights under the Asset Purchase Agreement, any unassumed leases,
                     26       all life insurance policies, and a "carve out" for the payment of administrative claims. See Dkt. Nos. 149 and 178.
                              The confirmed Plan is premised on this transaction. See, generally, Plan, Dkt No. 191. As Manchester acquired
                     27       Debtor's assets and operations and currently operates under the name of Xyience, for purposes of this Motion,
                              Manchester shall be referred to herein as Xyience.
                     28
     Gordon Silver
     Attorneys At Law         101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
    Vegas, Nevada 89169
      (702) 796-5555
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                      1    (as hereinafter defined) and threaten to upset the successful reorganization obtained through

                      2    these bankruptcy proceedings.

                      3             This Motion is made and based on the Declaration of William Bullard in Support of the

                      4    Motion for Plan Implementation Injunction (the "Bullard Declaration"), the Declaration of John

                      5    Lennon in Support of the Motion for Plan Implementation Injunction (the "Lennon

                      6    Declaration"), the Declaration of Michael Levy in Support of the Motion for Plan

                      7    Implementation Injunction (the "Levy Declaration"), the Declaration of John Villari in Support

                      8    of the Motion for Plan Implementation Injunction (the "Villari Declaration"), and the

                      9    Declaration of Gregory E. Garman, Esq. in Support of the Motion for Plan Implementation

                     10    Injunction (the "Garman Declaration"), each of which has been filed concurrently herewith, the

                     11    memorandum of points and authorities provided herein, the pleadings, papers, and other records

                     12    on file with the clerk of the above-captioned Court, judicial notice of which is hereby

                     13    respectfully requested, and the argument of counsel entertained by the Court at the time of the

                     14    hearing of the Motion.

                     15                               MEMORANDUM OF POINTS AND AUTHORITIES

                     16                                                          I.
                                                                           INTRODUCTION
                     17
                                    In retaliation for the preliminary injunction Debtor obtained pre-petition against Bergeron
                     18
                           nearly four years ago, Bergeron has implemented a "crusade" 3 against Debtor and Xyience,
                     19
                           which obstructive and harassing conduct contravenes the permanent injunction provided by the
                     20
                           Bankruptcy Code and expressly stated in the Plan. Despite not being a shareholder of Debtor,
                     21
                           since the commencement of the Bankruptcy Case, Bergeron has assumed the unauthorized and
                     22
                           self-designated role of legal advocate of Debtor's former "shareholders." 4 With ever increasing
                     23

                     24    3 See Exhibit "3" to the Levy Declaration (wherein Bergeron defines his own actions with regard to Xyience as a
                           "crusade").
                     25
                           4 Despite not being a shareholder of Debtor, Bergeron has anointed himself the legal advocate for the allegedly
                     26    aggrieved former shareholders of Debtor, which were represented by counsel during the Bankruptcy Case. In so
                           doing, Bergeron is arguably engaging in the unauthorized practice of law. See Dkt. No. 212, in Adv. No. 08-1082 ¶
                     27    28 ("The entire class of shareholders I am fighting for...."); Dkt. No. 168, in Adv. No. 08-1082, at p. 6, 11. 21-25, p.
                           9, 11. 1-2; p. 19, 11. 13-15. ("Bergeron has standing enough to be dragged into this court against his will, so he should
                     28    have standing to sue on behalf of those injured by the abuse in addition to himself. Fertitta Enterprises points to the
     Gordon Silver
                                                                                       2
     Attorneys At Law      101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                            Case 08-10474-mkn              Doc 589        Entered 02/24/11 18:53:36              Page 3 of 31


                      1    fervor, Bergeron contends that he is investigating, formulating, and on the eve of commencing

                      2    litigation for the benefit of the "shareholders" against Debtor and Xyience and their current and

                      3    former principals and affiliates, including Zyen and its principals, which litigation is premised on

                      4    Bergeron's outlandish theories of fraudulent and conspiratorial conduct that Bergeron alleges
                      5    occurred pre-petition. Bergeron's abusive conduct undertaken under the guise of protecting the

                      6    rights of Debtor's "shareholders" is in clear violation of the permanent injunction provided by

                      7    the Bankruptcy Code and expressly stated in the Plan and must immediately be halted. By way

                      8    of this Motion, Zyen and Xyience, pursuant to authority provided under Sections 105 and 1142

                      9    of the Bankruptcy Code and as expressly provided in the Plan, move this Court to enjoin

                     10    Bergeron's continued efforts to improperly prosecute claims or sanctions proceedings expressly

                     11    discharged, enjoined, or exculpated pursuant to the Plan against Zyen and Xyience, as well as

                     12    their affiliates, principals, management, employees, principals, and retained professionals.

                     13                                                    II.
                                                                 JURISDICTION AND VENUE
                     14
                                    1.       This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and
                     15
                           1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A).
                     16
                                    2.       Venue is appropriate under 28 U.S.C. §§ 1408 and 1409.
                     17
                                    3.       The statutory predicate for the relief requested herein is Section 105 and 1142(b)
                     18
                           of the Bankruptcy Code. Bankruptcy Rule 3020(d) also governs this Motion.
                     19
                           ///
                     20
                           ///
                     21
                           ///
                     22

                     23    	(continued)
                           other adversarial proceeding and previous developments that have nothing to do with the matter at hand and the
                           circumstances under which Bergeron is asking for relief on his behalf as well as for damages shareholders." "These
                     24
                           burned shareholders simply need relief, and Bergeron is the only person at this point who can adequately help them
                           get it." "This is about promoting restitution to an entire class of former Xyience owners who have so far been
                     25    completely overlooked by this process."); see also Exhibit "8" to the Levy Declaration ("Still, I have to fight for the
                           legitimate shareholders who got screwed. .... Frankly, and unfortunately, this work has become my life. I have had
                     26    to become a lawyer virtually overnight.... I wouldn't have done all the work I did to be proficient as a lawyer
                           through all this if I didn't have the facts on my side.") Notably, during the February 10, 2100 Leave to Amend
                     27    Hearing, this Court advised that the Court is not persuaded that Bergeron has standing to attempt to act on behalf of
                           the shareholders. See Garman Declaration ¶ 4.
                     28
     Gordon Silver                                                                   3
     Attorneys At Law      101551-001/11416106.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
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                      1                                                      III.
                                                                       PERTINENT FACTS
                      2
                           A.	       The Bankruptcy Case and Applicable Plan Provisions.
                      3
                                     4. On January 18, 2008, Debtor filed its voluntary Chapter 11 petition, thereby
                      4
                           commencing the above-captioned bankruptcy case (the "Bankruptcy Case"). 5 See Petition, Dkt.
                      5
                           No. 1.6
                      6
                                     5.       On May 19, 2008, Debtor filed its Plan of Reorganization (the "Plan") [Dkt. No.
                      7
                           191], which Plan was later confirmed by this Court on October 23, 2008, through the entry of the
                      8
                           Order: (1) Approving Debtor's Disclosure Statement; and (2) Confirming Debtor's Plan of
                      9
                           Reorganization (the "Confirmation Order"). See Dkt. No. 321.
                     10
                                     6.       The Plan includes an injunction provision that states the following:
                     11
                                     From and after the Effective Date, 17 ' except for the shareholder derivative action
                     12              presently pending as Adv. No. 08-1107, the Bergeron matter presently pending as
                                     Adv. No. 08-1082, the Committee Action presently pending as Adv. No. 08-
                     13              1094, and except as provided in this Plan and the Confirmation Order, all entities
                     14              that have held, currently hold or may hold a Claim or an Equity Interest or other
                                     right of a Equity Interest holder that is terminated pursuant to the terms of the
                     15              Plan are permanently enjoined from taking any of the following actions on
                                     account of any such Claims or Equity Interests or rights: (a) commencing or
                     16              continuing in any manner any action or other proceeding against the Liquidating
                                     Trust or its respective property; (b) enforcing, attaching, collecting or recovering
                     17              in any manner any judgment, award, decree or order against the Liquidating Trust
                     18              or its respective property; (c) creating, perfecting or enforcing any Lien or
                                     encumbrance against the Liquidating Trust or its respective property; (d)
                     19              asserting a setoff, right of subrogation or recoupment of any kind against any
                                     debt, liability or obligation due to the Liquidating Trust or its respective property;
                     20              and (d) [sic] commencing or continuing any action, in any manner or any place,
                                     that does not comply with or is inconsistent with the provisions of this Plan or the
                     21              Bankruptcy Code. Nothing in the plan shall affect, release, enjoin or impact in
                     22              any way the prosecution of the Claims of Creditors treated by this Plan or the
                                     Litigation Claims transferred to the Liquidating Trust pursuant to this Plan. The
                     23              Debtor reserves its right to file all appropriate pleadings or actions that may be
                           5
                     24     Pursuant to an order entered January 31, 2008, this Court dismissed, with prejudice, an involuntary Chapter 11
                           petition for relief that was filed against Debtor on January 3, 2008, as case number BK-S-08-10049-MKN. See Dkt.
                     25    No. 55.
                           6 All references to docket numbers in Section A of this Motion shall refer to the docket in the Bankruptcy Case.
                     26
                           7
                             On November 23, 2009, Debtor filed its Notice of (1) Effective Date; and (2) Deadline For Filing Requests For
                     27    Payment of Administrative Claims and Professional Fee Claims, Including Claims Under 11 U.S.C. Section 503(B)
                           ("Notice of Effective Date"), which stated therein that the Effective Date of the Plan was November 20, 2009. See
                     28    Dkt. No. 360.
     Gordon Silver
                                                                                     4
     Attorneys At Law      101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
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                      1             necessary to preserve its rights and protect the Estate's interest in Claims or
                                    Litigation Claims.
                      2
                           See Plan § 8.4, Dkt. No. 191.
                      3
                                    7.       In addition, the Plan includes an exculpation provision that insulates officers of
                      4
                           the organization from any liability arising from the Bankruptcy Case and states, in pertinent part,
                      5
                           as follows:
                      6
                                    From and after the Effective Date, the Debtor, . . . the Professionals nor any of
                      7
                                    their respective present or former members, directors, officers, managers,
                      8             employees, advisors, attorneys or agents, shall have or incur any liability to any
                                    holder of a Claim or Equity Interest or any other party-in-interest, or any of their
                      9             respective agents, employees, representatives, financial advisors, attorneys or
                                    Affiliates, or any of their successors or assigns, for any act or omission in
                     10             connection with, relating to, or arising out of (from the Petition Date forward),
                                    the Bankruptcy Case, Liquidating Trust, the pursuit of confirmation of this Plan
                     11
                                    or the consummation of this Plan, except for gross negligence and willful
                     12             misconduct, and in all respects shall be entitled to reasonably rely upon the
                                    advice of counsel with respect to their duties and responsibilities under this Plan
                     13             or in the context of the Case.
                     14    Id. § 8.5.
                     15             8.       Finally, Section 9 of the Plan establishes that this Court retains jurisdiction
                     16    notwithstanding the occurrence of the Effective Date to provide the relief requested herein.
                     17    Specifically, Subsection 9.1(i) of the Plan states that this Court may "[i]ssue injunctions, enter
                     18    and implement other orders or take such other actions as may be necessary or appropriate to
                     19    restrain interference by any person with consummation, implementation or enforcement of any
                     20    Final Order, this Plan or the Confirmation Order or the Liquidating Trust, except as otherwise
                     21    provided herein." Id. § 9.1(i).
                     22    B.	      Bergeron's Harassing, Obstructive, and Extortionist Conduct in Violation of the
                                    Plan.
                     23
                                    As discussed more fully herein, Bergeron's sole interest in the Bankruptcy Case arose out
                     24
                           of a defamation claim brought pre-petition against Bergeron by Debtor, which state court action
                     25
                           was removed to the Bankruptcy Court after the commencement of the Bankruptcy Case.
                     26
                           Importantly, all but one of Bergeron's claims in this adversary have been dismissed with
                     27

                     28
     Gordon Silver                                                            5
     Attorneys At Law      101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                              Case 08-10474-mkn            Doc 589        Entered 02/24/11 18:53:36               Page 6 of 31


                    1     prejudice.8 Despite the fact that Bergeron has exhausted his ability to bring any further claims

                    2     (other than frivolous, vexatious claims and filings) in the adversary proceeding, under the

                    3     auspices of representing the interests of Debtor's "shareholders," Bergeron continues to seek to

                    4     derail the implementation of the Plan through any possible means, including the commencement

                    5     of impermissible lawsuits and other legal proceedings against Debtor, Xyience, Zyen, and their

                    6     affiliates, as well as their principals, management, employees, and retained professionals, while

                    7     simultaneously seeking a windfall for himself As this Court has most recently seen, through

                    8     unfounded sanctions proceedings, 9 Bergeron has sought an award of sanctions and damages in

                    9     the amount of $150 Million, $500,000 of which Bergeron would personally receive, against

                  10      Debtor, its attorneys, and eight persons and entities having never made an appearance, or signed

                  11      or filed any pleadings or papers in the adversary proceeding.

                  12               Despite having been unsuccessful in his legal pursuits to date, which pursuits are, at best,

                  13      unmeritorious, and more accurately, an abuse of the bankruptcy system, Bergeron remains

                  14      undeterred. 19 With every day that has passed since January 1, 2011, Bergeron's unrelenting

                  15      pattern of harassing, obstructive, and extortionist conduct undertaken under the auspices of

                  16      litigating for the benefit of Debtor's "shareholders" has escalated to new, unconscionable

                  17      heights. In furtherance of seeking to pursue pre-petition litigation claims against Debtor and

                  18      Xyience or to extract a payout by Xyience, Zyen, or their affiliates, Bergeron has embarked on a

                  19      8 As discussed more fully herein, Bergeron's only remaining claim is a claim for defamation against Debtor.
                          Counsel for the Liquidating Trustee advised this Court on February 10, 2011, that pending a determination of
                  20      whether there would be funds available to make a meaningful distribution to holders of allowed claims, it would be
                          a waste of the Liquidating Trust's assets to spend time litigating the merits of Bergeron's sole remaining claim.
                  21      Appreciating this argument, the Court continued the pending motion relating to Bergeron's sole remaining claim
                          until such time as the Liquidating Trustee has determined whether there will be a meaningful distribution to holders
                  22      of unsecured claims, thereby justifying the expenditure of funds to defend against Bergeron's sole remaining claim.
                          See Dkt. No. 223, in Adv. No. 08-1082.
                  23
                          9
                           In open Court on February 10, 2011, the Court denied Bergeron's Leave to Amend Motion (as defined herein).
                  24      See id.
                          10 See February 14, 2011 Garman Email, attached as Exhibit "2" to the Garman Declaration, wherein Bergeron
                  25      states "[t]he judge is saying I have to personally appear from now on. So, what's the incentive for me to keep
                          fighting this from afar? Why not move out to Vegas and take you scumbags on in your own backyard? I have a
                  26      place to stay, and this place is a haven for my day job, so it makes sense." Further in the electronic mail, Bergeron
                          advises of his intent to continue litigating in perpetuity, regardless of the frivolity of his actions. "You are going to
                  27      lose this one, whether it's in a courtroom or in the court of public opinion. It's only going to happen sooner if you
                          keep acting like there's no downside to all this raging on into eternity." Id.
                  28
      Gordon Silver
                                                                                     6
     Attorneys At Law     101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
Las Vegas, Nevada 89169
      (702) 796-5555
                            Case 08-10474-mkn            Doc 589    Entered 02/24/11 18:53:36         Page 7 of 31


                      1    course of harassment outside the legal forum by: (i) contacting Xyience's employees through

                      2    mass electronic mails containing inflammatory, libelous, and threatening language; (ii) harassing

                      3    and threatening Xyience and Zyen's principals and employees, as well as counsel for Xyience

                      4    and Zyen via electronic mail correspondence, as well as phone calls and personally appearing or

                      5    threatening to personally appear at their offices and their homes; (iii) seeking to divert the sale of

                      6    Xyience products to a third-party not affiliated with Xyience; (iv) contacting one or more

                      7    customers of Xyience products and implying such customers' involvement in steroid sales; (v)

                      8    personally appearing at mixed martial arts studios with whom Xyience, Zyen, and their affiliates

                      9    have relationships and accusing Xyience's employees of selling steroids; (v) continuing to post

                     10    harassing, libelous, and inflammatory comments and videos on www.xyiencesucks.com and

                     11    www.youtube.com; (vi) posting false comments regarding alleged steroid use on Xyience's

                     12    Facebook page, which is viewed by consumers of Xyience products; and (vii) utilizing a mobile

                     13    phone application to contact Xyience employees from phone numbers for mobile phone accounts

                     14    held by Xyience's principals, thereby causing the recipient of the phone call to believe that one

                     15    of Xyience's principals is contacting them, when in fact, the phone call is from Bergeron.

                     16             1. Bergeron Has Recently Exponentially Elevated His Harassment of Xyience's
                                          Principals and Employees in Furtherance of the Pursuit of "Claims" Against
                     17                    Debtor, Xyience, its Affiliates, and Their Principals, Management, and
                                           Employees for the Alleged Benefit of the "Shareholders."
                     18
                                             a.	     Bergeron's Harassment of Lennon, Levy, and Xyience's Employees.
                     19
                                    9.       In the last few weeks and in contravention of the permanent injunction provided
                     20
                           by the Bankruptcy Code and expressly stated in the Plan, Bergeron has made his intent to
                     21
                           continue to pursue litigation against Xyience and its affiliates, as well as their principals,
                     22
                           management, and retained professionals abundantly clear -- unless and until he receives a
                     23
                           substantial payoff In furtherance of formulating his new "claims" purportedly on behalf of the
                     24
                           Debtor's "shareholders" (despite not being a shareholder), Bergeron is harassing Zyen and
                     25
                           Xyience's principals and employees and seeking to disrupt Xyience's operations.
                     26
                                    10.      Specifically, on January 24, 2011, Bergeron sent John Lennon, the President of
                     27
                           Xyience ("Lennon"), an electronic mail (the "January 24, 2011 Lennon Email"), wherein
                     28
     Gordon Silver                                                            7
     Attorneys At Law      101551-001/11416106.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                            Case 08-10474-mkn            Doc 589    Entered 02/24/11 18:53:36      Page 8 of 31


                      1    Bergeron sets forth part of his misguided conspiracy theory and states, "I have been fighting to

                      2    expose the corruption that's been going [on] at the company, and I have multiple allies among

                      3    the 'shareholders' and even multiple current and past employees. One of those past employees,

                      4    someone who has been a longtime employee, is currently suing, and I am sure you are inclined to

                      5    settle." See January 24, 2011 Lennon Email, attached to the Lennon Declaration as Exhibit "1."

                      6             11.      Lennon has never provided Bergeron with information regarding his travel plans

                      7    or his cell phone number. Nonetheless, the January 24, 2011 Lennon Email concludes with the

                      8    following menacing statement "I know you're in New York on hiatus for a while. Maybe I'll

                      9    call you. I have your cell number. We should talk." See id., ¶ 5.

                     10             12.       After Bergeron's further attempts to contact Lennon, on January 28, 2011,

                     11    Gregory Garman, Esq. ("Garman"), counsel to Zyen and Xyience, sent an electronic mail to

                     12    Bergeron (the "January 28, 2011 Garman Email"), wherein Garman advised Bergeron that

                     13    Lennon and the other officers and employees of Xyience have been instructed not to

                     14    communicate with Bergeron and that any future pleadings filed will result in a request for

                     15    damages, including but not limited to reimbursement for attorneys' fees and costs. See January

                     16    28, 2011 Garman Email, attached to the Garman Declaration as Exhibit "3."

                     17             13.       An hour after the January 28, 2011 Garman Email was sent, Bergeron, in blatant

                     18    disregard for Garman's electronic mail, contacted Lennon on his cell phone and left a voice

                     19    message. See Lennon Declaration ¶ 6.

                     20             14.       Three hours after the January 28, 2011 Garman Email was sent, Bergeron sent

                     21    Lennon an electronic mail (the "January 28, 2011 Lennon Emails") with a courtesy copy to

                     22    Garman and Michael Levy, Xyience's Chief Financial Officer and Chief Operating Officer

                     23    ("Levy"), wherein Bergeron threatens, "I'm on to your game. Technology is a wonderful thing.

                     24    I can almost hear what you are thinking. If none of you talk, someone else will, on or off the

                     25    record. People are already talking. I know what's going on." See January 28, 2011 Email,

                     26    attached to the Lennon Declaration as Exhibit "2."

                     27             15.       Eight hours later, on January 28, 2011, Bergeron expanded the scope of his

                     28    harassment and obstruction from the targets of Lennon, Levy, and Garman to effectively all of
     Gordon Silver
                                                                          8
     Attorneys At Law      101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                            Case 08-10474-mkn             Doc 589       Entered 02/24/11 18:53:36              Page 9 of 31


                      1    Xyience's employees" by sending an electronic mail to Xyience's employees (collectively, the

                     2     "Xyience Employees") with a subject line of "All Points Bulletin: The truth and the law protect

                      3    you" (the "January 28, 2011 Xyience Employees Email"). See January 28, 2011 Xyience

                     4     Employees Email, attached to the Lennon Declaration as Exhibit "3." The January 28, 2011

                      5    Xyience Employees Email is laden with blatantly false and disparaging statements regarding

                      6    Xyience and its affiliates, as well as their management and principals, intended to vilify

                      7    management, to ignite distrust and discord between the employees and management, to disrupt

                      8    Xyience's operations, and to coerce the Xyience Employees into believing that Bergeron is

                      9    somehow acting on their behalf so that they provide him with information he may utilize in his

                     10    continued efforts to litigate against Xyience. See Lennon Declaration,               ¶ 9. Bergeron concludes
                     11    the electronic mail with a plea to the Xyience Employees to "[p]lease contact me if you can tell

                     12    me something that will help expose the ongoing issues at Xyience and point to any serious

                     13    evidence that will help my case to promote the truth." Id.

                     14             16. On February 1, 2011, Bergeron sent a second electronic mail to the Xyience

                     15    Employees with a subject line of "A little light reading (Warning: Xplosive Material)," (the

                     16    "February 1, 2011 Xyience Employees Email"), through which he, using the metaphor of an

                     17    abused child, again peddled his conspiracy theory to the Xyience Employees and invited the

                     18    Xyience Employees to contact him to provide information in support of his case. See February

                     19    1, 2011 Xyience Employees Email, attached to the Lennon Declaration as Exhibit "4."

                     20    However, this electronic mail takes it a step further and attempts to gain credibility by suggesting

                     21    that Bergeron has recorded or has deployed someone else to record or otherwise report the

                     22    details of a private company meeting with the Xyience Employees conducted the day before -

                     23    January 31, 2011. See id. ("How was the big meeting yesterday?" "Believe it or not, I am a

                     24    friend of Xyience, despite what John Lennon tells you." "Maybe Maria Sosa was right to tell

                     25    you to bring it to the company first if you have concerns." "Maybe John Lennon is right about

                     26    the Fertittas being good for the company....").

                     27
                           11 It is unclear by what legal means Bergeron could have obtained the contact information for Xyience's Employees.
                     28
     Gordon Silver
                                                                                   9
     Attorneys At Law      101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                           Case 08-10474-mkn            Doc 589     Entered 02/24/11 18:53:36      Page 10 of 31


                      1             17.      Within hours of sending the February 1, 2011 Xyience Employees Email,

                     2     Bergeron sent Lennon an electronic mail with a subject line of "You can talk to me...or you can

                      3    talk to a judge," (the "February 1, 2011 Lennon Email"), wherein Bergeron seeks to extort

                     4     information from Lennon by threatening to file a lawsuit against Lennon if he does not cooperate

                      5    with him:

                      6             If you're not a bad guy, you have nothing to worry about. If I have no reason to
                                    be on good terms with you, why shouldn't I file a new civil action against you for
                      7             defamation?...

                      8             All it would take me to file a civil action against you would be time, and I have
                                    all the evidence I need already.... So, the bottom line is it's your choice if you
                      9             want to pick up the phone and chat like grown men. It's also your choice if you
                                    want to run to the lawyers and get them on my case, inspiring me to get you on a
                     10             case of my own.

                     11             The worst thing you can do is avoid this altogether, ignore me, or hope I go away.
                                    I'm not letting up until I get answers, and I won't be made a scapegoat by you or
                     12             anyone else....

                     13             In this case you are either with me or against me, and you are starting to make
                                    your preference known without bothering to investigate what I'm all about. I
                     14             know exactly what you said about me yesterday and who you said it to. One
                                    affidavit and a complaint is all it will take. Thousands of dollars spent by you
                     15             down the line on your own personal lawyers will then maybe force you to see
                                    things in my frame of light. Or, you can pick up the phone and start a
                     16             conversation in good faith. It can be on or off the record, your choice.

                     17             So the choice is yours. Talk to me...or talk to a judge. I can have a suit filed
                                    within the next month with you as the main defendant. This is not a fishing
                     18             expedition.

                     19    See February 1, 2011 Lennon Email, attached to the Lennon Declaration as Exhibit "5."

                     20             18.       About twelve hours later, on February 1, 2011, Bergeron sent an electronic mail

                     21    to Levy, Chief Financial Officer and Chief Operating Officer of Xyience, and Garman, with a

                     22    subject line of "Suing Me Will Not Be A Good Idea" (the "First February 1, 2011 Levy Email"),

                     23    wherein Bergeron again threatens to sue Lennon, advises that he "has been informed that you are

                     24    contemplating a new lawsuit against me," and reveals his intention to continue unmeritorious

                     25    litigation and sanctions proceedings if any action is taken to hinder his obstruction and

                     26    harassment of Xyience undertaken in the name of investigating and formulating claims on behalf

                     27    of Debtor's "shareholders." See February 1, 2011 Levy Email No. 1, attached to the Levy

                     28    Declaration as Exhibit "1." Importantly, through the First February 1, 2011 Levy Email,
     Gordon Silver
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                      1    Bergeron acknowledges that he is able to continue his ill-founded crusade against Xyience (and

                     2     his effort to extract a payout for his benefit through sanctions awards) because, as a self-

                      3    proclaimed attorney and advocate for the "shareholders," he is not restrained by normal legal

                     4     costs that deter the filing of frivolous pleadings and claims.

                      5               My law firm is my computer, my printer, the Internet, and my time. As you
                                      should know from experience, I've gone almost 4 years without having to hire a
                      6               single attorney of my own. I've grown leaps and bounds from the kid you sued
                                      back in 2007 for no reason but to shut me up. ....
                      7
                                      Finally, you have know [sic] idea how much I am really starting to enjoy
                      8               practicing the law. I have three different lawsuits going in three states that I'm
                                      part of now. I've handled four appeals to the 7th Circuit in addition to working at
                      9               the superior court, state court, and federal court levels.... The fact is, I'm a
                                      defensive lawyer. I prefer being sued to having to file a suit of my own. You do
                     10               all the work that way, and then since it will be obvious you are attacking me
                                      needlessly you are the one who will be seen as the bully while I'm going to be
                     11               seen as the victim. So, please, sue me. I'd like that.

                     12               I'd like very much to have another opportunity to extract damages against the
                                      lawyers who file this title of paperwork.
                     13
                           Id.; see also February 1, 2011 Lennon Email, attached to the Lennon Declaration as Exhibit "5"
                     14
                           (wherein Bergeron states "you should consider how much it cost me over the past nearly 4 years
                     15
                           this case has been going on. I can tell you I have not spent much at all.... I likely only have
                     16
                           about $4,000 to $5,000 of my own money into this case if you total up all my expenses on it
                     17
                           from ink and paper to postage. My primary investment was been time, and I have plenty of
                     18
                           that.").
                     19
                                      19. At 11:07 p.m. on February 1, 2011, Bergeron sent another electronic mail to Levy
                     20
                           (the "Second February 1, 2011 Levy Email"), wherein Bergeron states, "You can try to find a
                     21
                           mole or see if you can figure out how I am getting all this information, but the real sources of my
                     22
                           info will elude you. There is no way for you to find out how I obtained what I did. I can still get
                     23
                           more, and there's nothing you can do to get in my way." Bergeron further states, "I am going to
                     24
                           be gathering file cabinets full of documents in the near future. I have multiple new sources to
                     25
                           garner valid information from. The s[---]storm is gathering, and it's going to wind up on your
                     26
                           doorstep soon." See Second February 1, 2011 Levy Email, attached to the Levy Declaration as
                     27
                           Exhibit "2."
                     28
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                      1            20.      On the same day, February 1, 2011, on the website he created to disseminate false

                     2     and inflammatory information regarding Xyience, Zyen, and their principals and management in

                      3    furtherance of his conspiracy theory - www.xyiencesucks.com -- Bergeron posted a blog

                     4     discussing at length Bergeron's harassment of Lennon and Lennon's continued refusal to

                      5    succumb to the harassment and to speak to Bergeron, as well as acknowledging his "electronic

                      6    mail blasts to Xyience employees," and threatening that he has "a tremendous library of

                      7    evidence" that he may or may not have to publish. See Exhibit "3" to the Levy Declaration.

                      8            21.       Thereafter, on February 24, 2011, Bergeron sent yet another electronic email to

                      9    the Xyience Employees with a subject line of "Not Out To Destroy Your Company" (the

                     10    "February 24, 2011 Xyience Employees Email"), wherein Bergeron, in addition to implying that

                     11    he is counsel for the "shareholders" and that he is currently in contact with other employees of

                     12    Xyience, discusses his efforts at extracting a payoff from Xyience, Zyen, and their affiliates.

                     13             It seems they'd rather pay their high priced lawyers hundreds of dollars an hour to
                                    avoid paying me or those victims any restitution.
                     14
                                                                        ***
                     15
                                    The Fertittas are worth billions, and they can afford to pay.
                     16
                           Exhibit "8" to the Levy Declaration. The February 24, 2011 Xyience Employees Email again
                     17
                           concludes with a plea to the Xyience Employees to provide Bergeron with information. See id.
                     18
                                   22. Also on February 24, 2011, Bergeron sent a subsequent email to the Xyience
                     19
                           Employees with a subject line of "John Villari Xposed" (the "Villari February 24, 2011 Xyience
                     20
                           Employees Email"), wherein Bergeron included an aggregate of over fifty text messages sent to
                     21
                           a Xyience employee, John Villari ("Villari"), which text messages contain false allegations
                     22
                           pertaining to Villari's personal life as well as threatening and extortionist statements in an effort
                     23
                           again to coerce Villari to comply with his demands for information. A true and correct copy of
                     24
                           the Villari February 24, 2011 Xyience Employees Email is attached to the Levy Declaration as
                     25
                           Exhibit "9."
                     26
                           ///
                     27
                           ///
                     28
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                     1                       b.	      Bergeron's Targeted Harassment of John Villari, an Employee of Xyience.

                     2              23.      Beginning on February 10, 2011, Bergeron focused his harassment on Villari.

                     3     Although it remains unclear how Bergeron obtained Villari's cellular phone number, starting on

                     4     the evening of February 10, 2011, Bergeron, through the use of various phone numbers and

                     5     blocked numbers, has repeatedly called Villari and accused him of engaging in the sale of steroid

                     6     and methamphetamines, threatened to take the information to the "feds," and stated that he will

                     7     not leave Villari alone. See Villari Declaration         ¶ 2; see also Incident Report, attached as Exhibit
                     8     "1" to the Villari Declaration, which Exhibit has been filed under seal.

                     9              24.       The next day, on February 11, 2011, Bergeron and a second unknown person

                   10      appeared at Villari's residence and when Villari's father answered the door, Bergeron inquired as

                   11      to whether he was Villari, whether Villari was home, and advised that he, Bergeron, had been

                   12      informed that Villari had "called in sick" to work that day. See Incident Report, at Voluntary

                   13      Statement, attached as Exhibit "1" to the Villari Declaration, which Exhibit has been filed under

                   14      seal. After Bergeron was asked to leave Villari's property, Bergeron appeared at Xyience's

                   15      offices, requesting the same information. See Levy Declaration,                ¶ 8. Shortly thereafter, on the
                   16      same date, Bergeron appeared at a mixed martial arts studio where Villari has many

                   17      acquaintances. At the studio, Bergeron engaged in discussions with other members of the studio,

                   18      wherein he proceeded to falsely accuse Villari of selling steroids. See id. ¶ 4.

                   19               25.       The following date, through a mobile phone application that allows the user to

                   20      call from any phone number, Bergeron contacted Villari by telephone by impersonating the

                   21      telephone numbers of a co-worker and principals of Xyience. 12 During these phone calls,

                   22      Bergeron continued to harass Villari with allegations of steroid sales and threatened that if Villari

                   23      did not speak to Bergeron regarding Bergeron's Xyience conspiracy theory, Bergeron would be

                   24

                   25
                           12
                             To the best of Zyen's understanding, the mobile phone application allows the user to call the application provider
                   26      and input the phone number that he desires to appear on the phone of the person he is calling. The call is then
                           placed to the recipient from the phone number directed by the application user. Thus, through this application, when
                   27      Bergeron would contact Villari, the phone number that would appear on Villari's phone would be the phone number
                           of other employees or principals of Xyience.
                   28
      Gordon Silver
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                      1    "going to print" with the alleged steroid story. See id   ¶ 5; see also Incident Report, attached as
                      2    Exhibit "1" to the Villari Declaration, which Exhibit has been filed under seal.
                      3            26.       On February 14, 2011, Bergeron contacted Villari through his profile on

                      4    Behance.net asking why Villari was "scared to come to work" when Villari had not gone to work

                      5    that day. Bergeron also continued to threaten the disclosure of false evidence related to

                      6    purported steroid and methamphetamine sales - "Do I have to go to the police to get you to open

                      7    up, John? .... I really don't want to make it front page news so you and your family have to deal

                      8    with the bad press. I'd much rather just talk to you about what you know about Xyience." See

                      9    Exhibit "2" to the Villari Declaration; see also Villari February 24, 2011 Xyience Employees

                     10    Email, Exhibit "10" to the Levy Declaration ("I can continue to pursue this story, and you

                     11    wherever you go or we can talk and you can clear your name. the choice is yours JV but dont

                     12    think too long" "the more you dont talk the more aggressive I will get" "you going to call? you

                     13    really want me to release these messages to everyone at the company?").

                     14            27.       Two days later, on February 16, 2011, Bergeron appeared at another mixed

                     15    martial arts studio that Villari frequents falsely alleging to the owner of the facility and others

                     16    present that Villari sells steroids and methamphetamines. See id ¶ 7.

                     17             28.      That same day, an unidentified and unauthorized individual, whom one can only

                     18    presume to be Bergeron, posted on www.craigslist.org "Moving. Patio set and chairs. Little

                     19    dirty, needs to be cleaned. I also have a shade umbrella. Need this gone by weekend. Bring

                     20    trucks, no cars. Come pick it up: [at Villari's home address]." See Villari Declaration     ¶ 8; see
                     21    also Exhibit "3" to the Villari Declaration, which exhibit has been filed under seal. After several

                     22    persons responded in person to the craigslist post, Villari contacted craigslist and had the posting

                     23    removed as he had not authorized it. Shortly after the removal of the initial posting, a second

                     24    posting stating "Moving this weekend. I have a patio set that I bought at Sears last year. a little

                     25    dirty, but can be cleaned. comes with a shade umbrella. having a yard sale today at noon.

                     26    [Villari's home address] call and ask for John [followed by Villari's phone numbers]." See

                     27    Villari Declaration ¶ 9; see also Exhibit "4" to the Villari Declaration, which exhibit has been

                     28
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                         1     filed under seal. Again, persons began responding with phone calls and in person in response to

                         2     this second posting before Villari could obtain its removal from www.craigslist.com. See id.

                         3             29.       In response to such terrorizing of himself and his family, Villari has now obtained

                         4     a temporary protective order against Bergeron. See id. 10. However, such order does not

                         5     preclude Bergeron from targeting other employees or persons affiliated with Xyience or provide

                         6     any protection or prohibition against such continued harassment of Xyience's other employees

                         7     which harassment Bergeron contends he is undertaking in furtherance of his pursuit of the

                         8     "shareholders" prepetition claims.

                         9             2.	       Bergeron Has Recently Intensified His Harassment of Xyience and His
                                                 Obstruction of Xyience's Operations.
                       10
                                       30.       In addition to sending the incendiary electronic mails to Xyience's employees and
                       11
                               disrupting Xyience's operations, on February 11, 2011, Bergeron personally appeared at
                       12
                               Xyience's offices. As Bergeron had not been invited to the offices, security immediately
                       13
                               approached Bergeron prior to any confrontation with management or employees and asked that
                       14
                               he leave the premises. See Levy Declaration 7.
                       15
                                        31.      In addition to his website (www.xyiencesucks.com) dedicated to the
                       16
                               dissemination of false information in furtherance of his conspiracy theory, Bergeron has also
                       17
                               posted several YouTube videos attacking Xyience. Perhaps the most disturbing of these videos
                       18
                               is one in which Bergeron violently punches a bag and curses profusely, while he tells the viewers
                       19
                               to purchase Xyience products not from Xyience's websites, but from a friend of Bergeron's who
                       20
                               sells the products on e-Bay for lower prices than Xyience sells its products. As Bergeron states,
                       21
                               "I got a guy.... This f---ing guy has a f---ing Xyience e-bay shop where they got Xyience s--- so
                       22
                               f---ing cheap it's practically f---ing free." Movants would encourage the Court to watch the
                       23
                               video available at http://www.youtube.com/watch?v=IJcWNr0Repo, at 1:34/4:41.
                       24
                                        32.      Clearly adept at using all available medium to harass Xyience, Bergeron has also
                       25
                               posted threatening and libelous comments on Xyience's Facebook page. For instance, on
                       26
                               February 17, 2011, Bergeron posted the following three posts: (1) "There's some big a-- waves
                       27
                               coming Xyience's way. There better be more where this came from"; (2) "When are the new
                       28
          Gordon Silver
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                      1    anabolic steroids coming out???"; and (3) "How do you go from JV to varsity? Roids Baby!

                     2     Roids." See Exhibit "4" to the Levy Declaration.

                      3             33.      In the last few weeks, Xyience has also learned that Bergeron has contacted by

                     4     way of internet chat conversation ("Chat Conversation") at least one of its customers alleging

                      5    that Villari is involved in steroid sales and suggesting that the customer is also involved with

                      6    steroids. The chat conversation concluded with Bergeron seeking "comment" from the customer

                      7    in response to his allegations. The customer ended the chat conversation and alerted Xyience to

                      8    Bergeron's accusations. A true and correct copy of the chat conversation is attached to the Levy

                      9    Declaration as Exhibit "5." It is unclear how many other customers Bergeron may be contacting

                     10    and making similar false accusations designed to harm Xyience.

                     11             34.      On the morning of February 22, 2011, Bergeron electronic mailed Villari,

                     12    Lennon, Levy, and a number of other Xyience Employees attaching a link to his blog titled

                     13    "Dispatch From The Desert: Xyience Scandal Widens, Prospect of Questions Scrambles

                     14    Security" (the "February 22, 2011 Blog Email"), which blog was posted on February 21, 2011

                     15    (the "February 21, 2011 Blog"). See February 22, 2011 Blog Email, attached as Exhibit "6" to

                     16    the Levy Declaration. The February 22, 2011 Blog electronic mail was concluded with yet

                     17    another threat, followed by a request for information - "This is just the tip of the iceberg. More to

                     18    come in the days ahead. Contact Rich Bergeron at rich.bergeron@gmail.com or 617-209-4325 if

                     19    you have any information you'd like to share." Id.

                     20             35.       Inconceivably, the February 21, 2011 Blog brags about Bergeon's harassment of

                     21    Xyience, its principals, and its employees.

                     22             I started to pick apart Xyience and find their flaws from day one, right off the
                                    airplane. First there was a cruise around their offices and warehouse facility. Then
                     23             I arrived in person. Dispatches from within told me what I was doing was
                                    working wonders. The staff was meeting about me daily, sometimes having the
                     24             lawyer down there to discuss it all. The "distraction" I posed was now real, as I
                                    was in their backyard suddenly. The judge's stern order in my case that I would
                     25             have to appear in person for future hearings troubled me. I decided to stay in town
                                    and start doing some digging. I wanted to find out what was buried in that
                     26             Xyience hole in the desert.
                                                                           ***
                     27

                     28             It's funny how one guy can generate so much buzz. While in Las Vegas I thought
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                     1              it to be pretty important to go after the attorney on the case and the general
                                    manager for the Fertitta entity that ran Xyience into the ground to promote the
                    2               bankruptcy. Gregory Eugene Garman seemed on the very verge of shitting his
                                    pants when I emailed the lawyer his home address in a gated community out here.
                     3              He alerted his local law enforcement and his security in the community thinking I
                                    was going to show up at his doorstep. I did the same thing to General Manager of
                    4               Fertitta Enterprises and Zyen, LLC 'Dollar' Bill Bullard.

                     5     Exhibit "7" to the Levy Declaration.

                     6              3.	      Harassment of Zyen's Manager and Counsel.

                     7              36.      In addition to threatening and harassing Xyience and its principals, management,

                     8     and employees, beginning in February, 2011, Bergeron began contacting Zyen's manger, Bill

                     9     Bullard ("Bullard"), at his home. In these calls, among other threats, Bergeron advised that he

                   10      knew where Bullard lived and that people would be coming to Bullard's home. See Bullard

                   11      Declaration 112.

                   12               37.       In a voicemail left on Bullard's cellular phone on February 14, 2011, Bergeron

                   13      not only impliedly threatened Bullard and his children, but further explicitly sought to extort

                   14      payment from Bullard:

                   15               Hey Bill. This is Rich Bergeron calling. I have a few questions I want to ask ya'.
                                    Can we set up an interview while I am in town maybe? Maybe then you guys can
                   16               serve that restraining order on me. How about we have a pow wow down at
                                    Gordon Biersch? Just set up a reservation for a party of three hundred and
                   17               eighty-five so all the shareholders can go too. Listen Bill, I am not going away
                                    anytime soon. I have all kinds of dirt on this company that I'm going to have to
                   18               go to print with soon. It's getting better and better every day. I think its kinda
                                    funny you giving me advice on -- urn -- going to my parents for guidance. Do
                   19               you say that 'cause both of your kids still live at home? How are Brittany and
                                    Jake doing with your guidance? Not too swell it seems. At any rate, Bill, time for
                   20               us to put all of this to bed. You can't afford to be paying Garman to come down
                                    to Xyience's headquarters every day. You can't justify spending all this money
                   21               for what one guy is doing. Time to write a check Bill. That's the bottom line.

                   22      See Bullard Declaration 3.

                   23               38.       In response, on February 15, 2011, Bullard sent Bergeron an electronic mail (the

                   24      "February 15, 2011 Bullard Email") advising that "as a result of your continued threatening and

                   25      harassing phone calls to my family[,] I have given your picture and name to security at my

                   26      residence as well as local authorities. Any attempt to approach my residence or make contact

                   27      with my family will be met with your arrest." See February 15, 2011 Bullard Email attached as

                   28      Exhibit "1" to the Bullard Declaration; see also February 21, 2011 Blog, attached to the Levy
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                      1    Declaration (wherein Bergeron brags about his threats and the response they elicited from

                      2    Bullard).

                      3            39.       In addition, Bergeron's pattern of harassment has also extended to Zyen's

                      4    counsel. At 3:19 p.m. on February 15, 2011, Bergeron sent an electronic mail (the "First

                      5    February 15, 2011 Garman Email") to Garman solely stating "You want me to just come down

                      6    to your offices and start asking questions." See First February 15, 2011 Garman Email, attached

                      7    as Exhibit "3" to the Garman Declaration.

                      8            40.       Garman responded to the First February 15, 2011 Garman Email by sending an

                      9    electronic mail (the "Response to First February 15, 2011 Garman Email") to Bergeron stating

                     10    "Mr. Bergeron, you are not welcome at my offices. Please be advised that by way of this

                     11    message[,] i am directing my executive director to alert security that you are not to be admitted

                     12    to the building and law enforcement is to be summoned if you attempt to gain access. I have no

                     13    patience for your misguided antics. All future electronic correspondence will go unanswered."

                     14    See Response to First February 15, 2011 Garman Email, attached as Exhibit "4" to the Garman

                     15    Declaration.

                     16            41.       At 3:54 p.m. on February 15, 2011, Bergeron sent another electronic mail to

                     17    Garman (the "Second Series of February 15, 2011 Garman Emails") stating in relevant part "OK,

                     18    so you're saying now I have to find out where you live to talk to you? Can't be that hard. I

                     19    found out where Bill Bullard lives." This electronic mail was then followed by two additional

                     20    electronic mails referencing addresses, implying that Bergeron had located where Garman

                     21    resides, the second of which was followed by the statement "I'll try both." See Second Series of

                     22    February 15, 2011 Garman Email, attached as Exhibits "5," "6," and "7" to the Garman

                     23    Declaration.

                     24             42.      In response to the Second Series of February 15, 2011 Garman Emails, Garman

                     25    sent an electronic mail to Bergeron stating that "Mr. Bergeron, security at my residence and the

                     26    police department have already been alerted to the threat you pose. Be advised you will be

                     27    arrested should you attempt to obtain access to my neighborhood," a true and correct copy of

                     28    which is attached to the Garman Declaration as Exhibit "8." See also February 21, 2011 Blog,
     Gordon Silver
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                      1    attached to the Levy Declaration (wherein Bergeron brags about his threats and the response they

                      2    elicited from Garman).

                      3             43.      Garman's response to the Second Series of February 15, 2011 Garman Emails

                      4    was met with an electronic mail from Bergeron (the "Third February 15, 2011 Garman Email")

                      5    stating in relevant part:

                      6             I have my ways of getting into your neighborhood undetected. All they can do is
                                    escort me out if I'm only there to ask questions.
                      7
                                    Why are you so scared of me?
                      8
                                    Looking at your house on Google Maps right now.
                      9
                           See Third February 15, 2011 Garman Email, attached as Exhibit "9" to the Garman Declaration.
                     10
                                    44.      In response to these threats, Garman has now obtained a temporary protective
                     11
                           order against Bergeron. 13 See Garman Declaration 1112. However, such order does not preclude
                     12
                           Bergeron from targeting and harassing other employees, professionals, principals, or persons
                     13
                           affiliated with Xyience or Zyen in furtherance of his continued pursuit of claims purportedly on
                     14
                           behalf of Debtor's "shareholders."
                     15
                                    45.       Despite the Plan's clear prohibition against Bergeron's pursuit of prepetition
                     16
                           "claims" for the purported benefit of Debtor's "shareholders," without the injunctive relief
                     17
                           requested herein, Bergeron's self-proclaimed crusade to litigate claims against Xyience, Zyen,
                     18
                           and their principals, management, and employees will continue to escalate until it severely
                     19
                           impedes Xyience's operations.
                     20
                           C. Bergeron's Recent Threats and Harassment are Consistent with his Pattern of
                     21          Harassment, Abuse of the Bankruptcy System, and Vexatious Litigation in the
                                 Adversary Proceeding.
                     22
                                    46.       Debtor's association with Bergeron dates back to July 18, 2007 when Debtor
                     23
                           commenced litigation against Bergeron in the Eighth Judicial District Court, Clark County,
                     24
                           Nevada (the "State Court"), being case number A544781 (the "State Court Litigation") based on
                     25
                     26    13 It should be noted that this is not the first time Bergeron has attempted to harass Garman. Through a website
                           named the scarlet lawyer that has now been taken down, Bergeron posted a picture of Garman, wrote disparaging
                     27    comments about Garman, and invited viewers to click on a link that sent disparaging electronic mails to Garman.
                           See Garman Declaration, ¶13.
                     28
     Gordon Silver
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                      1    allegations, among others, of defamation against Debtor, and which action also sought to restrain

                     2     and enjoin Bergeron from posting allegedly defamatory remarks on the internet concerning

                     3     Debtor and to remove certain allegedly false and defamatory articles from Bergeron's website.

                     4     See, generally, Dkt. No. 3.14

                      5             47.      On September 6, 2007, the State Court issued its Preliminary Injunction Order,

                      6    which granted Debtor a preliminary injunction against Bergeron. See Dkt. No. 3.

                      7             48.      On September 26, 2007, Debtor filed its Motion to Modify Preliminary Injunction

                      8    Order in the State Court Litigation, which was granted by entry of the Modified Preliminary

                      9    Injunction Order (the "Preliminary Injunction") on November 6, 2007. See Dkt. No. 3-33, at

                     10    Exhibit 28.

                     11             49.      The Preliminary Injunction provided in pertinent part as follows:

                     12             IT IS FURTHER ORDERED, that the Defendant, Richard Bergeron, shall
                                    remove any and all articles or postings regarding false claims about Xyience from
                     13             the internet and [Bergeron] shall be enjoined from communicating any statements
                                    or making any representations which in any manner state, advise, represent,
                     14             assert, allege, suggest, or imply, in any manner which is intended to, or does
                                    evoke an inference or create impression that Xyience is being investigated by the
                     15             SEC.

                     16             IT IS FURTHER ORDERED, that the Defendant, Richard Bergeron, shall
                                    remove any and all articles claiming that Xyience is defrauding investors and/or
                     17             is conspiring with Dana White or the Ultimate Fighting Challenge to defraud
                                    investors. Richard Bergeron shall be enjoined from communicating any
                     18             statements or making any representations which in any manner state, advise,
                                    represent, asset, allege, suggest or imply in any manner which is intended to, or
                     19             does evoke an inference or create impression that Xyience is defrauding investors
                                    and/or conspiring with Dana White or the Ultimate Fighting Challenge to defraud
                     20             investors.

                     21

                     22             50. Following the commencement of the Bankruptcy Case, on March 20, 2008,

                     23    Debtor removed the State Court Litigation to Bankruptcy Court, which thereby commenced

                     24    adversary proceeding number 08-1082-MKN (the "Adversary Proceeding"). See Dkt. Nos. 1

                     25    and 3.

                     26
                           14 Unless otherwise expressly stated, all docket references in Section C of this Motion shall refer to the docket in the
                     27    Adversary Proceeding, Adversary Number 08-1082.
                           15 For ease of reference, a copy of the Preliminary Injunction is attached to the Garman Declaration as Exhibit "10."
                     28
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                     1              1.	       Initial Proceedings in the Adversary Proceeding.

                     2              51.       Since its removal, Bergeron has unrelentingly and improperly used the Adversary

                     3     Proceeding to vexatiously litigate frivolous claims and sanctions proceedings against Debtor,

                     4     Zyen, Fertitta Enterprises, Inc. ("Fertitta Enterprises"), and their principals, management,

                     5     employees, and professionals under the guise of advocating for the "shareholders," 16 while

                     6     seeking a personal windfall. The following highlights 17 Bergeron's unceasing pattern of

                     7     harassment of Xyience, Zyen, Fertitta Enterprises, and their principals, management, employees,

                     8     and professionals through the Adversary Proceeding.
                     9              52.       In response to the Adversary Proceeding, Bergeron filed the following four

                   10      counterclaims 18 against Debtor and Fertitta Enterprises: (1) "Defamation;" (2) "Violation of

                   11      First Amendment Rights;" (3) "Tortuous Interference With Prospective Economic Advantage;"

                   12      and (4) "Pain And Suffering" (collectively, the "Counterclaims"), to which Counterclaims were

                   13      premised on many of the alleged fraudulent and conspiratorial actions that purportedly underlie

                   14      Bergeron's subsequent frivolous filings in the Adversary Proceeding and recent harassment

                   15      previously discussed herein. The counterclaims were dismissed on October 14, 2008, and

                   16      Bergeron was given leave to amend only with respect to his first counterclaim asserting a

                   17      defamation claim for relief. See Dkt. No. 75.

                   18               53.       On March 28, 2008, Bergeron filed Defendant/Counterclaimant's (I) Emergency

                   19      Motion to Suspend Bankruptcy Proceedings Pending Investigation of Fraudulent Bankruptcy

                   20      Filing, and (II) Motion for Summary Judgment on Defendant's Rule 11 Motion, Motion to

                   21      Dismiss and Counterclaims (the "Motion to Suspend and for Sanctions"), thereby seeking the

                   22      suspension of the bankruptcy proceedings based on Bergeron's claims of prepetition fraud,

                   23      collusion, and possible violations of the RICO Act and further seeking in the amount of $15

                   24      16 See supra footnote 4.
                   25      17 The following shall solely highlight Bergeron's abusive actions, including the filing of frivolous motions in the
                           Adversary Proceeding to provide the Court with an understanding of Bergeron's abuse of the legal system and the
                   26      fact that his defeats in the Adversary Proceeding have simply fueled his continued pursuit of his conspiratorial
                           claims against Xyience, Zyen, Fertitta Enterprises, and their principals, managers, employees, and professionals,
                   27      thereby necessitating the injunctive relief requested herein.
                           18 See, Din. No. 3-58, at Exhibit 50.
                   28
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                       1   Million, $500,000 of which were to be directed to Bergeron personally. See Dkt. No. 11. After

                       2   briefing by Debtor, Fertitta Enterprises, 19 and Bergeron and hearings before this Court, 29 the

                       3   Court denied the Motion to Suspend and for Sanctions in its entirety. See id. Dkt. Nos. 72 and

                       4   73.

                       5            54.       On September 18, 2008, Bergeron filed a Motion to Revoke the Bankruptcy

                       6   Xyience's Reorganization Plan Approval Order, and Motion to Transfer Adversary Proceeding

                       7   to Proper Venue (the "Motion to Revoke/Transfer Venue"), thereby seeking, among other relief,

                       8   the revocation of the Debtor's plan of reorganization, which plan had not yet been confirmed,
        .
  as VP' `"


                       9   pending Bergeron's investigation of his alleged fraudulent and conspiratorial theories, as well as

                      10   the transfer of the Adversary Proceeding to the U.S. District Court in Boston, Massachusetts.

                      11   After briefing by Debtor, Fertitta Enterprises, and Bergeron, and a hearing before the Court, the

                      12   improper and unmeritorious Motion to Revoke/Transfer Venue was denied. See Dkt. Nos. 66,

                      13   83, 84, 86, 87.

                      14            55.       On November 3, 2008, Bergeron filed his amended counterclaim, wherein he

                      15   abandoned his prior defamation allegations as against Fertitta Enterprises, and instead asserted

                      16   that he was defamed by a comment made by Garman, Fertitta Enterprises' attorney. The hearing

                      17   on the motion to dismiss Bergeron's amended counterclaim against Garman was held on January

                      18   7, 2009, and on January 30, 2009 the Court entered its memorandum decision and order

                      19   dismissing with prejudice Bergeron's final counterclaim allegedly against Fertitta Enterprises - a

                      20   defamation claim against Garman - in the Adversary Proceeding. See Dkt. Nos. 106, 111, 141,

                      21   and 142.

                      22
                           19
                      23     As evidenced by the docket in the Adversary Proceeding, Fertitta Enterprises solely became a party to the
                           Adversary Proceeding when it was named as a counterdefendant by Bergeron.
                      24   20 As an aside, it is important to note that during the proceedings on the Motion to Suspend and for Sanctions and
                           consistent with Bergeron's pattern of abuse of the Court system, Bergeron, who had been authorized to appear
                      25   telephonically at a hearing on the Motion to Suspend, was involved in the recording of the entire court hearing and
                           its posting on the internet at the following link: http://www.freewebs.com/mmalinks/mmainterviews.htm. See Dkt.
                      26   No. 79. In addition, on August 29, 2008, in conjunction with his response to an order to show cause resulting from
                           his involvement in the improper recording and dissemination of court hearings, Bergeron sought the recusal of the
                      27   Honorable Mike K. Nakagawa from the Bankruptcy Case and the Adversary Proceeding. Bergeron's unmeritorious
                           request for recusal was denied. See Dkt. Nos. 60, 81, and 82.
                      28
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                      1             56.      After filing his amended counterclaim, but prior to its dismissal with prejudice,

                     2     Bergeron filed Defendant and Counter-Claimant's Motion For an Immediate Show Cause

                      3    Hearing to Strike the Perjured Declarations of Adam Frank (Dkt. #3, Exh. 3) and Jamie Cogburn

                     4     (Dkt. #3, Exh. 8); and Motion to Vacate the Clark County District Court's Modified Preliminary

                      5    Injunction Order (Dkt. #3, Exh. 28) (the "Motion to Vacate Preliminary Injunction"), wherein

                      6    Bergeron requested, among other relief, that the Preliminary Injunction entered by the State

                      7    Court be vacated. See Dkt. No. 117. Surprisingly, Bergeron acknowledges therein that he "has

                      8    produced volumes of new reports regarding Xyience since the injunction, refusing to abide by

                      9    that injunction's grossly over-reaching language. Bergeron has challenged the bankruptcy court

                     10    to sanction him, extradite him, fine him, or hold him in contempt for violating the bogus

                     11    injunction order. This court has thus far refused to do so." Id. at p. 4, 11. 10-14. The Motion to

                     12    Vacate Preliminary Injunction was denied by entry of an order of this Court on January 30, 2010.

                     13    See Dkt. No. 138 and 139. In its memorandum decision to deny Bergeron's Motion to Vacate

                     14    Preliminary Injunction, the Court specifically held that there was no evidence to support a

                     15    vacature of the State Court's previous Preliminary Injunction Order against Bergeron. Id. at 138.

                     16             57.       Undeterred, on February 17, 2009, Bergeron filed his motion seeking the

                     17    reconsideration (the "Reconsideration Motion") of the denial of his Motion to Vacate

                     18    Preliminary Injunction, which motion was also denied by entry of an order of this Court on

                     19    December 2, 2009. See Dkt. Nos. 156 and 204.

                     20             2.	       The Amended Sanctions Motions and Related Proceedings.

                     21             58.       On January 21, 2009, Bergeron filed Defendant and Counterclaimant's Amended

                     22    Motion For Rule 11 and 9011 Sanctions (the "Amended Sanctions Motion"), seeking sanctions

                     23    against not only the parties and the attorneys in the Adversary Proceeding, but also against

                     24    persons and entities who had never filed or submitted any pleadings or papers in the Adversary

                     25    Proceeding—such as Zyen, Frank Fertitta, Jr., Frank Fertitta, III, Lorenzo Fertitta, Bullard,

                     26    Station Casinos, Zuffa Marketing, LLC, and Zuffa, LLC (collectively, the "Nonparties"). The

                     27    Amended Sanctions Motion alleged that all of the foregoing parties should be liable for sanctions

                     28    for "either directly, indirectly or completely vicariously culpable [sic] for continuing, funding,
     Gordon Silver
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                     1     instigating, and/or fraudulently orchestrating the filing an maintenance of this frivolous lawsuit

                     2     against Bergeron." Dkt. No. 136, p. 2, 11. 19-22. Bergeron further argued that "[t]heir

                     3     conspiracy to silence [him] led to hundreds of shareholders being left in the dark about the

                     4     corrupt behavior that went on at the company level leading up to the Fertitta Enterprises buy-in

                     5     and the subsequent fraudulent bankruptcy filing." Id. at 11. 23-25. As a result, Bergeron sought

                     6     $150 Million in total sanctions and/or damages (i.e., a tenfold increase from his prior $15 Million

                     7     request), with his take being $500,000. Id. at p. 42.

                     8              59.      On February 10, 2009, Fertitta Enterprises filed its opposition to the Amended

                     9     Sanctions Motion (the "Sanctions Opposition") [Dkt. No. 150], which was joined by Debtor on

                   10      February 11, 2009 [Dkt. No. 153]. The Sanctions Opposition, which is incorporated herein in its

                   11      entirety, seeks the denial of the Amended Sanctions Motion on, among other bases, the

                   12      following: (i) the Amended Sanctions Motion violates Local Rule 9014(b)(2)(C) and 9014(e);

                   13      (ii) a pro se litigant cannot recover attorney's fees and costs because a non-attorney does not

                   14      "incur" fees payable to oneself within the meaning of Bankruptcy Rule 9011(c)(1)(A); (iii)

                   15      consequential damages are not recoverable pursuant to a sanctions motion, nor does Bankruptcy

                   16      Rule 9011 provide a basis for a cause of action to recover for tort damages; (iv) Bergeron is

                   17      precluded from relitigating his previously denied sanctions motion filed in March 2008; (v) as

                   18      the Nonparties do not fall within the purview of Bankruptcy Rule 9011 and, as they are not

                   19      parties to the Adversary Proceeding, they cannot be liable for sanctions; (vii) Bergeron's

                   20      allegations of sanctionable conduct are themselves meritless. See Dkt. No. 150.

                   21               60.       Through the Sanctions Opposition and pursuant to Bankruptcy Rule

                   22      9011(c)(1)(A), Fertitta Enterprises sought an award of its attorney's fees and costs incurred in

                   23      having to oppose the meritless Amended Sanctions Motion (the "Fertitta Sanctions

                   24      Counterclaim"). See id.

                   25               61.       On February 24, 2009, the Court entered its scheduling order (the "Scheduling

                   26      Order") [Dkt. No. 160], which ordered in relevant part as follows:

                   27               3.	    The following briefing schedule applies to the Amended
                                    Sanctions Motion as well as the Reconsideration Motion:
                   28
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                          1                    (A)	  Bergeron's reply brief, if any, in support of the Amended
                                        Sanctions Motion must be served and filed no later than March 13, 2009;
                          2
                                                                                 ***
                          3
                                              (C) Bergeron's reply brief, if any, in support of the
                          4             Reconsideration Motion must be served and filed no later than March 26,
                          5             2009.

                          6             4.	    Upon close of the briefing period, both matters are deemed
                                        submitted.
                          7
                               Dkt. No. 160, at p. 3.
                          8
                                        62. On May 5, 2009, which was forty (40) days after the close of briefing and after
                          9
                               the matters had been submitted to the Court for decision per the Scheduling Order, without
                         10
                               having sought or obtained leave of Court, Bergeron filed five (5) new affidavits (the
                         11
                               "Affidavits")21 in support of his Amended Sanctions Motion, four of which were all dated prior
                         12
                               to the time Bergeron had filed his Amended Sanctions Motion. See Dkt. Nos. 169, 170, 172, and
                         13
                               173.
                         14
                                        63.       In response to such continued frivolous and harassing filings, Fertitta Enterprises
                         15
                               filed its Motion of Counterdefendant, Fertitta Enterprises, Inc., to Strike Affidavits Filed by
                         16
                               Defendant/Counterclaimant, Richard Bergeron, and for Civil Contempt and Filing Bar, seeking,
                         17
                               in relevant part: (i) to strike the egregiously late-filed Affidavits, and; (ii) seeking sanctions,
                         18
                               including a bar on his filing any further pleadings, as a result of Bergeron's continuing pattern of
                         19
                               bad faith and vexatious conduct. See Dkt. No. 175. As discussed in the Motion to Strike,
                         20
                               sanctions against Bergeron are unquestionably appropriate where Bergeron has engaged in, and
                         21
                               been sanctioned for, substantially similar abusive litigation practices in another matter, Eppley v.
                         22
                               Iacovelli, Case No. 1:09-cv-00386-SEB-JMS (S.D. Ind. 2009). See id. at        TT 21-24.
                         23
                                        64.       Approximately three weeks later, again purportedly to support his Amended
                         24
                               Sanctions Motion, Bergeron then filed Defendant and Counterclaimant's Supplemental Brief in
                         25
                               Advance of Status Hearing on Amended Motion for Rule 11 and 9011 Sanction; and Formal
                         26
                               Request in Respect of Recently Submitted Affidavits (the "Supplemental Brief') [Dkt. No. 178],
                         27
                               21 See Dkt. Nos. 169-173.
                         28
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                      1    which was supported by an affidavit of Rich Bergeron ("Supplemental Brief Affidavit") [Dkt.

                     2     No. 179], requesting that the Court consider the Affidavits, as well as the "new evidence

                      3    included in Bergeron's latest affidavit...." Dkt. No. 178, at p.6,11. 13-14.

                     4             65.       On June 15, 2009, Fertitta Enterprises filed its opposition to the Supplemental

                      5    Brief seeking its denial and that the Supplemental Brief Affidavit be stricken. See Dkt. No. 182.

                      6    The opposition further explained that the Supplemental Brief "further illustrates why this Court

                      7    needs to impose a filing bar on Mr. Bergeron with respect to this case and Fertitta Enterprises, as

                      8    Mr. Bergeron apparently cannot help himself but to continue to pursue this frivolous litigation as

                      9    against Fertitta Enterprises under a 'sanctions' theory, even when his underlying claims as

                     10    against Fertitta Enterprises have been dismissed with prejudice." Id. at p. 3,11. 5-9.

                     11            66.       Although the Fertitta Sanctions Countermotion, the Amended Sanctions Motion,

                     12    and the above-discussed motions relating to Bergeron's parade of attempts to improperly present

                     13    additional evidence before the Court to purportedly support his unfounded allegations remained

                     14    pending, on November 19, 2010, Bergeron filed Defendant and Counterclaimant's Motion for

                     15    Leave to Amend Rule 9011 Sanctions Motion (the "Leave to Amend Motion"). The Leave to

                     16    Amend Motion seized upon and sought to exploit the Court's delay in deciding Bergeron's

                     17    Amended Sanctions Motion with yet another request that the Court grant Bergeron permission to

                     18    amend his previously filed, fully briefed, and submitted Amended Sanctions Motion to add and

                     19    remove various parties and to present additional evidence to support his allegations. See Dkt.

                     20    No. 207.

                     21             67.      The Leave to Amend Motion was adamantly opposed by Fennemore Craig, P.C.

                     22    on behalf of Fennemore Craig, P.C., its directors Laurel Davis, Esq. and John Mowbray, Esq.,

                     23    and its former associate, Jon Pearson, Esq., 22 as well as Fertitta Enterprises, who emphasized that

                     24    Bergeron's efforts to amend his Amended Sanction Motion to include Levy was, at best, ill-

                     25    founded, and, more accurately, entirely frivolous, as even if Bergeron had any viable claim

                     26

                     27
                           22 See Dkt. No. 219.
                     28
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                      1    against Levy based on his conduct during the Bankruptcy Case - a point vehemently denied - the

                     2     Plan exculpates Levy from any liability. See Dkt. No. 220, at pp. 6-7 (citing Plan § 8.5).
                      3            68.       The Leave to Amend Motion was denied in open Court on February 10, 2011 (the
                      4    "Leave to Amend Hearing"). See Garman Declaration ¶ 5. Consistent with his pattern of abuse

                      5    of the legal system and vexatious litigation, during the Motion for Leave Hearing, Bergeron

                      6    advised all parties present that he will appeal the order denying his Leave to Amend Motion.

                      7            69.       As evidenced by the foregoing, without the entry of an order enjoining Bergeron

                      8    from the continued pursuit of alleged prepetition claims on behalf of the "shareholder," which

                      9    claims have been dismissed in the Adversary Proceeding, or discharged, enjoined, or exculpated

                     10    through the Plan, Bergeron will continue to seek to derail the Bankruptcy case and the

                     11    implementation of the Plan.

                     12                                                IV.
                                                                 LEGAL ARGUMENT
                     13
                                   Zyen and Xyience seek relief pursuant to Section 105 and 1142(b) of the Bankruptcy
                     14
                           Code, as well as the Court's retained jurisdiction provided for in Section 9 of the Plan. Section
                     15
                           105(a) of the Bankruptcy Code provides that "[t]he court may issue any order, process or
                     16
                           judgment that is necessary to carry out the provision of this title," and Bankruptcy Rule 3020(d)
                     17
                           provides that "[n]otwithstanding the entry of the order of confirmation, the court may issue any
                     18
                           other order necessary to administer the estate." Section 1142(b) provides that "The court may
                     19
                           direct the debtor and any other necessary party to . . . perform any other act . . . that is necessary
                     20
                           for the consummation of the plan."11 U.S.C. § 1142(b); see also Hillis Motors, Inc. v. Hawa
                     21
                           Auto Dealers' Ass'n, 997 F.2d 581, 587 n.11 (9th Cir. 1993) (noting that "[r]egardless of any
                     22
                           plan provision, a bankruptcy court has statutory jurisdiction under Section 1142(b) to ensure that
                     23
                           any act necessary for the consummation of the plan is carried out and it has continuing
                     24
                           responsibilities to satisfy itself that the plan if being properly implemented").
                     25
                                    Moreover, Section 9 of the confirmed Plan established the extent of this Court's retained
                     26
                           jurisdiction notwithstanding the occurrence of the Effective Date and entry of the Confirmation
                     27
                           Order. Specifically, Subsection 9.1(i) of the Plan states that this Court may "[i]ssue injunctions,
                     28
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                     1     enter and implement other orders or take such other actions as may be necessary or appropriate

                    2      to restrain interference by any person with consummation, implementation or enforcement of

                    3      any Final Order, this Plan or the Confirmation Order or the Liquidating Trust, except as

                    4      otherwise provided herein." Plan, Dkt. No. 191 (emphasis added).

                     5              Pursuant to the terms of the confirmed Plan and the applicable provisions of the

                    6      Bankruptcy Code, this Court has retained sufficient jurisdiction to enjoin Bergeron from his

                     7     continued pursuit of claims discharged, enjoined, or exculpated pursuant to the Plan, including

                     8     all communication and contact, including but not limited to contact by telephone, electronic

                     9     correspondence, text messages, social media postings, postings on web pages or other media

                   10      affiliated with Xyience, or in person with: (i) Debtor, Zyen or Xyience; (ii) Xyience's principals,

                   11      management, and employees, expressly including past and present Xyience Employees, Lennon,

                   12      Levy, and Villari; (iii) Zyen's principals, management, and employees, expressly including

                   13      Frank Fertitta, Jr., Frank Fertitta III, Lorenzo Fertitta, and Bill Bullard; (iv) mixed martial arts

                   14      studios and fighters affiliated with Xyience or Ultimate Fighting Championship; (v) Xyience's

                   15      customers; and (v) Zyen's and Xyience's current or formerly retained attorneys, other than

                   16      written (not electronic) correspondence sent to Zyen's and Xyience's retained counsel.

                   17               Foremost, any and all Litigation Claims, 23 were transferred to the Liquidating Trust

                   18      pursuant to Sections 5.1.5 and 8.2 of the Plan. See Plan, Dkt. No. 191, at §§ 1.1.6, 1.1.46, 5.1.5,

                   19      and 8.2. Thus, only the Liquidating Trustee has standing to pursue any claim Bergeron may be

                   20      contemplating and threatening to bring purportedly on behalf of the "shareholders."

                   21
                           23 The Plan defines "Litigation Claims" as "all Claims, demands, right, actions, rights of action and suites of the
                   22      Estate of the Debtor or the Liquidating Tryst against any other Person, of any kind or character, whatsoever, known
                           or unknown, suspected or unsuspected, whether arising prior to, in or after the Petition Date, in contract or in tort, at
                   23      law or in equity, or under any other theory of state or federal law, including (but not limited to): (a) rights of a setoff,
                           counterclaim, recoupment, replevin or reclamation, and Claims on contract or for breaches of duties imposed by
                   24      law; (b) the right to object to or seek estimation of Claims or Equity Securities; (c) Claims pursuant to section 362 of
                           the Bankruptcy Code; (d) Claims and defenses, such as misrepresentation, fraud, mistake duress, and usury; and (e)
                   25      all avoiding powers, rights to seek subordination, and all rights and remedied under sections 502(d), 506, 509, 510,
                           542, 543, 544, 545, 547, 548. 549, 550, 551, 552, 553 and/or 724 of the Bankruptcy Code, and any fraudulent
                   26      conveyance, fraudulent transfer, or preferential transfer action under applicable law or in equity. This term shall be
                           construed broadly and inclusively, and shall include, without limitation, the shareholder derivative action presently
                   27      pending as Adv, No. 08-1107, the Bergeron matter presently pending as Adv. No. 08-1082, the Committee Action
                           presently pending as Adv. No. 08-1094, and any Claims against any of Debtor's present or former Officers and
                   28      Directors and/or any governmental entity." Id. at § 1.1.46.

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                      1             Second, through Section 8.4 of the Plan, Bergeron is enjoined from commencing or

                     2     continuing any action, in any manner or any place that does not comply with or is inconsistent

                     3     with the provisions of the Plan or the Bankruptcy Code, which unquestionably includes his

                     4     unmeritorious fraudulent and conspiratorial "claims" designed to derail the reorganization

                      5    accomplished through the Plan.

                      6             Although the permanent injunction provided in Section 8.4 of the Plan excepts the

                      7    "Bergeron matter presently pending as Adv. No. 08-1082," 24 as set forth at length herein, all of

                      8    Bergeron's claims, with the sole exception of his defamation claim against Debtor, have been

                      9    dismissed with prejudice. Further, as set forth in detail herein, all of Bergeron's other

                     10    unmeritorious, frivolous, and vexatious motions and actions designed to wedge his fraudulent

                     11    and conspiracy theory claims into the scope of the Adversary Proceeding have either been denied

                     12    (sometime repeatedly) or, as in the instance of the Amended Sanctions Motion and the pleadings

                     13    related thereto, have been fully briefed and have been submitted to the Court consistent with the

                     14    Scheduling Order. As evidenced by the most recent denial of the Leave to Amend Motion,

                     15    Bergeron has thoroughly exhausted his ability to pursue his fraudulent and conspiratorial claims

                     16    in the Adversary Proceeding. Thus, Section 8.4's exception for the Adversary Proceeding does

                     17    not provide a permissible means by which Bergeron may continue his frivolous and improper

                     18    pursuit of his alleged "claims" on behalf of the Debtor's shareholders.

                     19             Finally, Section 8.5 of the Plan, exculpates, among others, all of Debtor's present and

                     20    former members, directors, officers, managers, employees, advisors, and attorneys or agents

                     21    from any liability, except gross negligence or willful misconduct, to any holder of a claim or

                     22    equity interest or any other party-in-interest, or any of their respective agents, employees,

                     23    representatives, financial advisors, attorneys, affiliates, or any of their successors or assigns,

                     24    from any act or omission in connection with, relating to, or arising out of the Bankruptcy Case,

                     25    the pursuit of confirmation of the Plan, or the consummation of the Plan. See Plan, Dkt. No.

                     26    191, § 8.5. Nearly all of the persons and entities that have been the subject of Bergeron's recent

                     27
                           24 See Plan, Dkt. No. 191, at § 8.4.
                     28
     Gordon Silver
                                                                             29
     Attorneys At Law      101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                           Case 08-10474-mkn          Doc 589     Entered 02/24/11 18:53:36         Page 30 of 31


                     1     harassment undertaken in furtherance of his "investigation" for the pursuit of the "shareholders"

                    2      claims against Debtor, Xyience, Zyen, and their affiliates fall within the purview of Section 8.5

                     3     of the Plan. As such, beyond lacking standing, Bergeron is precluded by Section 8.5 of the Plan

                    4      from pursing his alleged claims against Debtor, Zyen, Xyience, Levy, Lennon, Xyience's

                     5     Employees, Villari, Bullard, Garman, and the other persons that have been the subject of

                     6     Bergeron's most recent threats and harassment.

                     7              Unless this Court grants the injunctive relief requested herein pursuant to Section 105 and

                     8     1142(b), Bankruptcy Rule 3020(d), and Section 9.1 of the Plan, Bergeron's "crusade" to pursue

                     9     his frivolous claims will continue in perpetuity in contravention of the permanent injunctions

                   10      provision of Plan, thereby threatening not only the successful implementation of the Plan, but

                   11      also the welfare of Xyience and Zyen and their affiliates, as well as their principals,

                   12      management, employees, and retained professionals. Bergeron has made it abundantly clear that

                   13      unless this Court intervenes pursuant to Section 9.1 of the Plan, his efforts will only escalate until

                   14      he extorts a significant payout from Xyience or Zyen or their affiliates, or so severely harms

                   15      Xyience's operations such that it is forced to seek bankruptcy protection or to close its doors.

                   16      Sections 105 and 1142, as well as Section 9.1 of the Plan are designed to provide the Court with

                   17      a means of enjoining actions that may cause such a result. As such, this Court not only has

                   18      ample jurisdiction to grant the Motion, it further has an overwhelming evidentiary record upon

                   19      which to rely in rendering the injunctive relief requested herein.

                   20                                                       V.
                                                                     CONCLUSION
                   21
                                    WHEREFORE, Zyen respectfully requests that the Court enter an order enjoining
                   22
                           Bergeron from his continued pursuit of claims discharged, enjoined, or exculpated pursuant to
                   23
                           the Plan, including all communication and contact, including but not limited to contact by
                   24
                           telephone, electronic correspondence, text messages, social media postings, postings on web
                   25
                           pages or other media affiliated with Xyience, or in person with: (i) Debtor, Zyen or Xyience; (ii)
                   26
                           Xyience's principals, management, and employees, expressly including past and present Xyience
                   27
                           Employees, Lennon, Levy, and Villari; (iii) Zyen's principals, management, and employees,
                   28
      Gordon Silver
                                                                             30
     Attorneys At Law      101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                           Case 08-10474-mkn              Doc 589    Entered 02/24/11 18:53:36      Page 31 of 31



                      1    expressly including Frank Fertitta, Jr., Frank Fertitta III, Lorenzo Fertitta, and Bill Bullard; (iv)

                     2     mixed martial arts studios and fighters affiliated with Xyience or Ultimate Fighting

                     3     Championship; (v) Xyience's customers; and (v) Zyen's and Xyience's current or formerly

                     4     retained attorneys, other than written (not electronic) correspondence sent to Zyen's and

                     5     Xyience's retained counsel. Zyen and Xyience seek such further and other relief as the Court

                     6     deems just and proper.

                     7             DATED this /       27 	 day of February, 2011.
                      8                                                    GORDO

                      9
                     10                                                        REGO	               AI,ESQ.W
                                                                               96	                   y.,
                                                                                            Hughes Pkw 9th Floor
                     11                                                       Las Vegas, Nevada 89169
                                                                              Attorney for Zyen, LLC and
                     12                                                       Manzen, LLC d/b/a Xyience

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                     28
     Gordon Silver
                                                                             31
     Attorneys At Law      101551-001/1141610_6.doc
        Ninth Floor
3960 Howard Hughes Pkwy
 Les Vegas, Nevada 89169
      (702) 796-5555

				
DOCUMENT INFO
Description: These are the latest documents in the bankruptcy of Xyience, Inc. filed to silence Rich Bergeron and stop his pursuit of the truth. Go to www.xyiencesucks.com to read all about the important work going on in this case to provide relief for shareholders who were burned by this fraudulent scheme to purposely tank this company on behalf of multiple insiders who benefit most from the collapse of what used to be the UFC's most prominent sponsor.