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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA
AJAY KAJARIA, Individually and On Case No.Behalf of All OthersSimilarly Situated,
Plaintiff,
v.
HOWARD S. COHEN, RICHARD S. GRANT, CLASS ACTION COMPLAINTGEORGE R. JUDD, CHARLES H.McELREA, RICHARD B. MARCHESE,STEVEN F. MAYER, ALAN H.SCHUMACHER, MARK A. SUWYN, JURY TRIAL DEMANDEDROBERT G. WARDEN, M. RICHARD
WARNER, BLUELINX HOLDINGS INC.,CERBERUSABP INVESTOR LLC andCERBERUS CAPITAL MANAGEMENT,L.P.,
Defendants.
Plaintiff, Ajay Kajaria (“Plaintiff”) by his attorneys, for his complaint
against defendants, alleges upon personal knowledge as to himself, and upon
information and belief as to all other allegations herein, as follows:
NATURE OF THE ACTION
1. This is a shareholder class action brought by Plaintiff on behalf of
himself and all other similarly situated shareholders of BlueLinx Holdings Inc.
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(“BlueLinx” or the “Company”) against the Company’s Board of Directors (the
“Individual Defendants”), Cerberus ABP Investor LLC, (“CAI”), and Cerberus
Capital Management, L.P. (“Cerberus”), which controls CAI, in connection with
the proposed acquisition of BlueLinx (the “Proposed Transaction”) pursuant to a
tender offer (the “Tender Offer”) by CAI which is currently scheduled to expire at
midnight on October 8, 2010. The Proposed Transaction is unfair both with
respect to price and process and is designed to benefit CAI and Cerberus to the
detriment of Plaintiff and the Class (defined herein).
JURISDICTION AND VENUE
2. This Court has jurisdiction over all claims asserted herein pursuant to
28 U.S.C §1331 in that Plaintiff’s claims arise in part under the Constitution and
laws of the United States, including the Securities Exchange Act [15 U.S.C. §78aa]
and 28 U.S.C. §1331. This Court also hassupplemental jurisdiction pursuant to 28
U.S.C. §1367(a).
3. This Court also has jurisdiction over this action pursuant to 28 U.S.C.
1332(a), (c), and (d) as Plaintiff and the defendants are citizens of and
domiciled in different states and the amount in controversy exceeds $75,000,
exclusive of interests and costs. Given that the Proposed Transaction is valued at
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$49.56 million, the injunctive relief sought herein will exceed a sum or value of
$75,000. This action is not a collusive one to confer jurisdiction on this Court.
4. Venue is proper in this Court pursuant to 28 U.S.C. §1391 because
one or more of the defendants, including BlueLinx either resides in or maintains
executive offices in this District, and a substantial portion of the transactions and
wrongs that are the subj ect of this complaint, occurred in substantial part in this
District. Finally, the defendants have received substantial compensation in this
District by doing business here and engaging in numerous activities that had an
effect in this District.
THE PARTIES
5. Plaintiff is and was, at all times relevant hereto, a holder of BlueLinx
common stock. Plaintiff isacitizen of Rhode Island.
6. BlueLinx is a Delaware corporation headquartered at 4300 Wildwood
Parkway, Atlanta, Georgia 30339. The Company’s primary business is the
distribution of approximately 10,000 building products to 11,500 customers
through its network of 70 warehouses and third-party operated warehouses.
BlueLinx common stock is traded on the New York Stock Exchange under the
symbol “BXC.”
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7. Defendant Howard S. Cohen (“Cohen”) is, and has been at all times
relevant hereto, a member of the Company’s Board of Directors (“Board”).
Defendant Cohen is Chairman of the Board. Prior to joining BlueLinx as an
executive officer, Cohen was a senior advisor of Cerberus and currently serves on
the boards of directors of two other Cerberus portfolio companies.
8. Defendant Richard S. Grant (“Grant”) is, and has been at all times
relevant hereto, a member of the Company’s Board.
9. Defendant George R. Judd (“Judd”) is, and has been at all times
relevant hereto, a member of the Company’s Board. Judd has served as the
Company’s Chief Executive officer since October 2008, and as the Company’s
President and Chief Operating Officer since May 2004.
10. Defendant Charles H. McElrea (“McElrea”) is, and has been at all
times relevant hereto, a member of the Company’s Board.
11. Defendant Richard B. Marchese (“Marchese”) is, and has been at all
times relevant hereto, a member of the Company’s Board.
12. Defendant Steven F. Mayer (“Mayer”) is, and has been at all times
relevant hereto, a member of the Company’s Board. Defendant Mayer is a
Managing Director of Cerberus.
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13. Defendant Alan H. Schumacher (“Schumacher”) is, and has been at
all times relevant hereto, a member of the Company’s Board. Schumacher
currently serves on the boards of directors of other companies affiliated with
Cerberus. Schumacher was previously appointed to the Board’s Special
Committee (defined herein) until he recused himself.
14. Defendant Mark A. Suwyn (“Suwyn”) is, and has been at all times
relevant hereto, a member of the Company’s Board. Suwyn has previously served
as a senior member of the Cerberus operations team and as an advisor to Cerberus.
15. Defendant Robert G. Warden (“Warden”) is, and has been at all times
relevant hereto, a member of the Company’s Board. Defendant Warden is a
Managing Director of Cerberus.
16. Defendant M. Richard Warner (“Warner”) is, and has been at all times
relevant hereto, a member of the Company’s Board. Defendant Warner is a
consultant for Cerberus and also serves on the board of directors of a Cerberus
portfolio company.
17. The Defendants listed in paragraphs 7 through 16 are collectively
referred to as the “Individual Defendants.
18. Defendant CAI, a Delaware limited liability company controlled by
Cerberus, maintains its principal executive office in New York, New York and
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currently owns 18.1 million shares or 55.39 percent of BlueLinx’s outstanding
common stock.
19. Defendant Cerberus, a Delaware limited partnership headquartered in
New York, New York, is a private investment firm with approximately $23 billion
under management. Cerberus controls CAI, which in turns owns 55.39 percent of
BlueLinx’s outstanding common stock. Individual Defendants Cohen, Mayer,
Schumacher, Suwyn, Warden, and Warner all serve on BlueLinx’s Board and are
affiliated with Cerberus.
20. Defendants BlueLinx, CAI, and Cerberus are named herein as aiders
and abettors to the breaches of fiduciary duty described herein.
THE INDIVIDUAL DEFENDANTS’ FIDUCIARY DUTIES
21. By reason of the above Individual Defendants’ positions with the
Company as directors and/or officers, said individuals are in a fiduciary
relationship with Plaintiff and the other stockholders of BlueLinx who are being
and will be harmed by the defendants’ actions described herein (the “Class”) and
owe Plaintiff and the other members of the Class a duty of highest good faith, fair
dealing, loyalty and full and adequate disclosure.
22. Each of the Individual Defendants is required to act in good faith, in
the best interests of the Company’s shareholders and with such care, including
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reasonable inquiry, as would be expected of an ordinarily prudent person. In a
situation where the directors of a publicly traded company undertake a transaction
that may result in a change in corporate control, the applicable state law requires
the directors to take all steps reasonably required to maximize the value
shareholders will receive rather than use a change of control to benefit themselves.
To diligently comply with this duty, the directors of a corporation may not take any
action that:
(a) adversely affects the value provided to the corporation's
shareholders;
(b) contractually prohibits them from complying with or carrying
out their fiduciary duties;
(c) discourages or inhibits alternative offers to purchase control of
the corporation or its assets; or
(d) will otherwise adversely affect their duty to search and secure
the best value reasonably available under the circumstances for the corporation’s
shareholders.
23. In accordance with their duties of loyalty and good faith, the
Individual Defendants, as directors and/or officers of BlueLinx, are obligated
under applicable law to refrain from:
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(a) participating in any transaction where the directors’ or officers’
loyalties are divided;
(b) participating in any transaction where the directors or officers
receive, or are entitled to receive, a personal financial benefit not equally shared by
the public shareholders of the corporation; and/or
(c) unjustly enriching themselves at the expense or to the detriment of
the public shareholders.
24. The Individual Defendants are also obliged to honor their duty of
candor to BlueLinx’s shareholders by, inter alia, providing all material information
to the shareholders regarding a scenario in which they are asked to tender their
shares. This duty of candor ensures that shareholders have all information that will
enable them to make informed, rational and intelligent decisions about whether to
relinquish their shares in exchange for the consideration offered.
25. Plaintiff alleges herein that the Individual Defendants, separately and
together, in connection with the Proposed Transaction, are knowingly or recklessly
violating their fiduciary duties, including their duties of loyalty, good faith, and
independence owed to Plaintiff and other shareholders of BlueLinx. The
Individual Defendants stand on both sides of the transaction, are engaging in self
dealing, are obtaining for themselves personal benefits, including personal
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financial benefits, not shared equally by Plaintiff or the Class. As a result of the
Individual Defendants’ self dealing and divided loyalties, neither Plaintiff nor the
Class will receive adequate or fair value for their BlueLinx common stock in the
Proposed Transaction.
26. Because the Individual Defendants are knowingly or recklessly
breaching their duties of loyalty, good faith, and independence in connection with
the Proposed Transaction, and because the Proposed Transaction involves a Tender
Offer by a controlling shareholder, the burden of proving the entire fairness of the
Proposed Transaction, including all aspects of its negotiation, structure, price, and
terms is placed on the defendants as a matter of law.
CLASS ACTION ALLEGATIONS
27. Plaintiff brings this action pursuant to Rule 23 on behalf of himself
and all other shareholders of the Company (except the defendants herein and any
persons, firm, trust, corporation, or other entity related to or affiliated with them
and their successors in interest), who are, or will be, threatened with injury arising
from defendants’ actions, as more fully described herein.
28. This action is properly maintainable as a class action for the following
reasons: The Class is so numerous that joinder of all members is impracticable. As
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of September 24, 2010, there were over 32.69 million shares of BlueLinx common
stock issued and outstanding, likely owned by thousands of shareholders.
29. Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. Plaintiff’s claims are
typical of the claims of the other members of the Class and Plaintiff has the same
interests as the other members of the Class. Plaintiff is an adequate representative
of the Class and will fairly and adequately protect the interests of the Class.
30. The prosecution of separate actions by individual members of the
Class would create the risk of inconsistent or varying adjudications with respect to
individual members of the Class, which would establish incompatible standards of
conduct for defendants, or adjudications with respect to individual members of the
Class that would, as a practical matter, be dispositive of the interests of the other
members not parties to the adjudications or substantially members or impede their
ability to protect their interests.
31. To the extent defendants take further steps to effectuate the Proposed
Transaction, preliminary and final injunctive relief on behalf of the Class as a
whole will be entirely appropriate because defendants have acted, or refused to act,
on grounds generally applicable to the Class.
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32. There are questions of law and fact that are common to the Class
including, inter alia, the following:
(a) whether the Individual Defendants have breached their
fiduciary duties of due care, good faith, and loyalty with respect to Plaintiff and the
other members of the Class in connection with the conduct alleged herein;
(b) whether the process implemented and set forth by the
Individual Defendants in connection with the Proposed Transaction was fair to the
members of the Class;
(c) whether the Individual Defendants have breached their
fiduciary duty of candor by failing to disclose all material facts relating to the
Proposed Transaction;
(d) whether CAI and Cerberus has aided and abetted the Individual
Defendants’ breaches of fiduciary duties owed to Plaintiff and the other members
of the Class as a result of the conduct alleged herein; and
(e) whether Plaintiff and the other members of the Class would be
irreparably harmed if defendants are not enj oined from effectuating the Proposed
Transaction described herein.
33. Plaintiff’s claims are typical of the claims of the other members of the
Class and Plaintiff does not have any interests adverse to the Class.
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34. Plaintiff anticipates that there will be no difficulty in the management
of this litigation. A class action is superior to other available methods for the fair
and efficient adjudication of this controversy.
SUBSTANTIVE ALLEGATIONS
35. BlueLinx, through its subsidiary, BlueLinx Corporation, distributes
approximately 10,000 products to 11,500 customers through its network of 70
warehouses and third-party operated warehouses. It distributes products in two
principal categories, structural products and specialty products. Structural products
include plywood, oriented strand board, rebar and remesh, lumber, and other wood
products primarily used for structural support, walls, and flooring in construction
projects. Its specialty products comprise roofing, insulation, specialty panels,
moulding, engineered wood products, vinyl products (used primarily in siding),
composite decking, and metal products (excluding rebar and remesh). The
Company’s customers include building materials dealers, industrial users of
building products, manufactured housing builders, and home improvement centers.
It sells its products through three distribution channels consisting of warehouse
sales, reload sales, and direct sales.
36. The Company started as a distribution division of the Georgia-Pacific
Company. On May 7, 2004, Georgia Pacific Company sold off assets to ABP
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Distribution Holdings, a new company owned by Cerberus, which was then
merged into BlueLinx. On December 17, 2004, the Company consummated an
initial public offering (“IPO”) at a price of $13.50 per share. Cerberus and it
affiliates did not sell any of their shares in the IPO. CAI currently owns 18.1
million shares of BlueLinx stock, or approximately 55.39% of the outstanding
shares of the Company, an interest that it has maintained since the IPO.
37. BlueLinx stock traded as high as $7.54 just over two years ago, but
was negatively affected by the global recession which hit the housing market
especially hard. The Company, however, is poised for growth. As noted by the
Company in press release announcing 2010 first quarter results:
The Company incurred a net loss of $14.7 million, or $0.48 perdiluted share for the first quarter of 2010, compared with a net loss of$60.7 million, or $1.95 per diluted share, for the first quarter of 2009.Revenues increased 6% to $431.1 million from $407.1 million for thesame period a year ago. Overall unit volume rose 1.4% compared tothe year-ago period.
Gross profit for the first quarter totaled $52.3 million, up 18% from
$44.3 million in the prior-year period. Gross margins increased to12.1 from the 10.9% generated in the year earlier period. Theimprovement in margins was due to the Company’s continued focuson margin improvement, wood-based product pricing and an increase
in sales through the warehouse channel. Total operating expensesdecreased $2.4 million, or 3.9% from the same period a year ago, as
the Company continued to aggressively manage its cost structure.
Reported operating loss for the quarter was $8.0 million, comparedwith an operating loss of $18.4 million a year ago.
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“While we achieved our first year over year quarterly increase inrevenue in four years, our results were hindered by unusually severe
weather conditions through-out the country, said BlueLinx Presidentand CEO George Judd. “However, since the later part of the firstquarter, we have seen an increase in demand for our products as
the housing market appears to have begun its recovery.”(emphasis added).
38. The positive trend for the Company continued. As the Company’s
press release announcing 2010 second quarter earnings notes:
Revenues increased 27.7% to $540.8 million from $423.5 million for
the same period a year ago. The increase reflects a 45.1 increase instructural product sales and a 14.4% increase in specialty productsales. Overall unit volume rose 11.9% compared to the year-agoperiod. The Company incurred a net loss of $3.4 million, or $0.11 perdiluted share for the second quarter of 2010, compared with net profitof $0.6 million, or $0.02 per diluted share, for the second quarter of2009, which benefited from $19.4 million in pre-tax net gains from
significant special items.
Gross profit for the second quarter totaled $64.1 million, up 32.8%from $48.3 million in the prior-year period. Gross margins increasedto 11.9% from the 11.4% generated in the year earlier period. Totaloperating expenses increased $22.8 million, or 60.4% from the same
period a year ago, which benefited from $20.5 million in net gains
from significant special items. Reported operating income for thequarter was $3.6 million, compared with an operating profit of $10.6million a year ago.
“The second-quarter business climate was characterized byunprecedented volatility in the structural wood-based products marketand a sluggish recovery of demand for products related to new homeconstruction.” said BlueLinx President and CEO George Judd.
“Despite this challenging environment, we performed well as we
grew our unit volume by 11.9% and increased our gross profit by
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32.8%. We also remained focused on cost management reducing our
selling, general and administrative expenses to 10.6% of sales.”
For the six months ended July 3, 2010, net loss totaled $18.1 million,or $0.59 per diluted share, on revenues of $971.8 million, comparedwith a net loss of $60.0 million, or $1.93 per diluted share, on
revenues of $830.6 million a year ago. The increase in revenue was
largely due to the 14% increase in housing construction activityrelative to the prior period, increases in structural wood-based sellingprices and the Company’s focus on targeted growth initiatives. Grossprofit for the six months ended July 3, 2010 totaled $116.4 million
and gross margin was 12.0%, compared with $92.6 million and11.1 respectively, a year earlier. Operating expenses increased to$120.8 million from $100.4 million a year ago, which included $19.4million in net gains from significant special items. (emphasis added).
39. Seeking to capture BlueLinx’s upside for itself, on July 21, 2010,
defendant Mayer, himself a member of the Board, wrote on behalf of CAI to
declare its intention to launch a tender offer for the outstanding BlueLinx shares
that it did not own for $3.40 per share:
Gentlemen:
Cerberus ABP Investor LLC(“CAI”) is pleased to advise you that itintends to commence a tender offer for all of the outstanding shares ofcommon stock of BlueLinx Holdings Inc. (“BlueLinx” or the“Company”) not owned by CAI, at a purchase price of $3.40 per sharein cash. This represents a premium of approximately 35.5% over theclosing price on July 21, 2010, and a 16.8% premium over thevolume-weighted average closing price for the last 30 trading days. Inour view, this price represents a fair price to BlueLinx’s stockholders.
The tender offer will be conditioned upon, among other things, thetender of a majority of shares not owned by CAI or by the directors or
officers of the Company and, unless waived, CAI owning at least 90%
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of the outstanding BlueLinx common stock as a result of the tender or
otherwise. Any shares not acquired in the tender offer are expected tobe acquired in a subsequent merger transaction at the same cash price
per share. The tender offer is not subject to any financing or duediligence condition.
We believe that our offer to acquire the shares of BlueLinx not ownedby CAI represents a unique opportunity for BlueLinx’s stockholdersto realize the value of their shares at a significant premium toBlueLinx’s current and recent stock price. As the longtime majoritystockholder of BlueLinx, we wish to acknowledge your dedicatedefforts as board members of the Company and to express our
appreciation for the significant contribution that the board members ofBlueLinx have made to the Company in the challenging business andeconomic environment of the past few years.
In considering our tender offer, you should be aware that in our
capacity as a stockholder we are interested only in acquiring theBlueLinx shares not already owned by us and that in our capacity as a
stockholder we have no current interest in selling our stake inBlueLinx nor would we currently expect, in our capacity as a
stockholder, to vote in favor of any alternative sale, merger or similar
transaction involving BlueLinx other than the transaction outlinedhere.
CAI has not had any substantive discussions or negotiations withmembers of the Company’s management regarding their ability to
“roll” their BlueLinx shares or stock options, or regarding anychanges to existing employment agreements, equity incentive plans or
benefit arrangements, in connection with the tender offer. However,at the appropriate time, we may explore, and discuss with
management, any or all such topics.
CAI does not expect the tender offer and merger to result in a changeof control under the Company’s existing revolving credit facility or
mortgage debt financing.
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We intend to commence our tender offer within approximately seven
days. CAI believes it would be appropriate for the Company’s boardof directors to form a special committee consisting of independentdirectors not affiliated with CAI to consider CAI’s tender offer and tomake a recommendation to the Company’s stockholders with respectthereto. In addition, CAI encourages the special committee to retainits own legal and financial advisors to assist in its review of our tenderoffer and the development of its recommendation.
We will file a Schedule 13D amendment, and as such, we feel
compelled to issue a press release, a copy of which is attached for
your information. We expect to make the release public prior to theopening of the New York Stock Exchange on July 22, 2010.
Very truly yours,
CERBERUSABP INVESTOR LLC
By: /s/Steven F.MayerName: Steven F. MayerTitle: ManagingDirector
40. Prior to the opening of the markets on July 22, 2010, CAI issued a
press release announcing its intention to commence the Tender Offer and filed an
amendment to its Schedule 13D with the Securities and Exchange Commission
(“SEC”) which included a copy of its July 21, 2010letter to the Board.
41. Also on July 22, 2010, the Board formed a Special Committee of
defendants Marchese, Schumacher, and Grant. According to the Amended
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Schedule 14D-9 Recommendation Statement (“Amended Recommendation
Statement”) filed with the SEC on September 27, 2010, the Special Committee was
granted the power and authority to:
(i review and evaluate the terms and conditions of the Offer; (ii)determine, together with its advisors, whether the Offer is fair to, andin the best interests of, the Company and its stockholders; (iii)recommend to the full Board what recommendation, if any, should bemade to the stockholders of the Company with respect to the Offer;(iv) participate in negotiations with CAI with respect to the terms andconditions of the Offer; (v) if the Special Committee deemsappropriate, determine to reject the Offer; and (vi take any lawfulaction in response to the Offer that the Special Committee determinesto be in the best interests of the Company and its stockholders.
42. The Special Committee retained the law firm of Jones Day as its legal
counsel on July 22, 2010, retained Morris, Nichold, Arsht & Tunnell LLP as
special Delaware Counsel on July 25, 2010, and retained Citadel Securities LLC
(“Citadel”) as its financial advisor on July 27, 2010.
43. On August 2, 2010, CAI commenced the Tender Offer at an offer
price of $3.40 per share and filed a Schedule TO and Schedule 13E-3 with the
SEC.
44. On August 13, the Company filed aSchedule 14D-9 Recommendation
Statement (“Initial Recommendation Statement”) with the SEC, in which the
Company took no current position regarding the Tender Offer, noting that the
Special Committee had not yet completed its review.
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45. Between August 2, 2010 and August 20, 2010, Citadel, on behalf of
the Special Committee, and defendant Mayer, on behalf of CAI negotiated the
terms of the Proposed Transaction, including its price. On August 20, 2010
Citadel, at the direction of the Special Committee, indicated to defendant Mayer
that it would recommend the Tender Offer if the consideration were increased to
$4.00 per share and if certain additional protections were offered to shareholders.
46. On September 3, 2010, defendant Schumacher agreed to recuse
himself from further meetings of the Special Committee in light of allegations that
Schumacher’s independence, and thus that of the Special Committee, was called in
question due to his service on the board of directors of other companies affiliated
with Cerberus.
47. On September 22, 2010, representatives for the Special Committee
and CAI reached agreement regarding the shareholder protections requested by the
Special Committee, and CAI announced that it was increasing the Tender Offer
price to $4.00 per share.
48. On September 23, 2010, in consultation with Jones Day and Citadel,
the Special Committee unanimously voted on behalf of the Board and the
Company to recommend that BlueLinx shareholders accept the Tender Offer. On
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September 27, 2010 the Amended Recommendation Statement was filed with the
SEC, disclosing the Special Committee’s recommendation.
49. The $4.00 per share agreed to in the Proposed Transaction is a
woefully inadequate price and appears designed to cap the market price of
BlueLinx common stock at current, depressed levels. Defendants’ rationale for
asserting that the premium supports a fair price is unsound as BlueLinx is just
emerging from the bottom of a cycle that is expected to improve as the economy
continues to emerge from the recession. The “premium” touted by defendants is at
a deep discount to the Company’s 52-week high of $6.32. A fair price cannot be
based on a purported “premium” over a depressed market price and thus, the $4.00
price is unfair to shareholders.
50. The financial unfairness of the Proposed Transaction price is
compounded by the woefully deficient process undertaken by the Individual
Defendants in agreeing to Proposed Transaction.
51. Given CAI and Ceberus’ control of the Board and of a majority of the
outstanding shares of the Company, the consummation of the Proposed
Transaction is afait accompli. While the Amended Recommendation Statement
notes that Citadel did solicit three potential acquirers of the Company, CAI and
Cerberus made clear in the July 21, 2010 letter to the Board that CAI had “no
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current interest in selling our stake in BlueLinx nor would we currently expect, in
our capacity as a stockholder, to vote in favor of any alternative sale, merger or
similar transaction involving BlueLinx other than the transaction outlined here.”
52. Further ensuring that the transaction is locked up in favor of CAI and
Cerberus is the fact that these entities control the Company and thus have complete
inside knowledge of the value of BlueLinx, information not available to any
potential acquirers.
The Materially Misleading And/orIncomplete Amended Recommendation Statement
53. On September 27, 2010, BlueLinx filed its Amended
Recommendation Statement regarding the Tender Offer with the SEC.
54. The Amended Recommendation Statement fails to provide the
Company’s shareholders with material information and/or provides them with
materially misleading information thereby rendering the shareholders unable to
make an informed decision regarding the tender of their shares.
55. For example, the Amended Recommendation Statement fails to
disclose certain underlying methodologies, projections, key inputs and multiples
relied upon and observed by Citidel who served as financial advisor to the
Company, which are necessary for shareholders to evaluate and properly assessthe
credibility of the various analyses performed by Citadel and relied upon by the
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Board in recommending the Proposed Transaction. In particular, the Amended
Recommendation Statement is deficient and should provide, inter alia, the
following:
(a) A description of the criteria and multiples observed by Citadel
for each company in its Comparable Companies Analysis. Further, a description
for selecting a narrow reference range of multiples ranging from 5.0x to 10.0x
Enterprise Value/Adjusted EBITDA in the analysis.
(b) A description of the multiples observed by Citadel for each
company in its Precedent Transaction Analysis. Further, a description for selecting
a narrow reference range of multiples ranging from 5.0x to 8.0x Enterprise
Value/Adjusted EBITDA in the analysis.
(c) A description of the criteria, companies and premia observed by
Citadel for each company in its Premia Paid Analysis. Further, a description for
selecting a narrow reference range ofpremia ranging from 35% to 50% used in the
analysis.
(d) A description of whether the Discounted Cash Flow Analysis
included consideration of stock-based compensation.
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(e) The free cash flow numbers used by Citadel in the computation
of the Discounted Cash Flow Analysis or the capital expenditure numbers and
changes in working capital utilized by Citadel in the same analysis.
(f A description of the criteria to select a discount rate of 8% to
10% used by Citadel in its Discounted Cash Flow Analysis.
56. The Amended Recommendation Statement also fails to disclose the
complete “Stretch Plan” for 2010 which was provided to CAI.
57. The Amended Recommendation Statement also fails to disclose
material information regarding the sales process leading up to the Proposed
Transaction including information regarding the third party who executed a
confidentiality and standstill agreement but indicated that it was not interested in
pursuing discussion before receiving any confidential materials.
58. The Amended Recommendation Statement fails to disclose what
services, if any, Citadel provided to the Company, CAI, or Cerberus in the past two
years as well as the fees received for such services and also fails to disclose what
fee Cerberus will received in connection with its engagement by the Special
Committee. Information regarding the fees earned by Citadel is material because
any financial or economic interest in the Proposed Transaction could be perceived
as a conflict of interest.
23
Case 1:10-cv-03141-JOF Document 1 Filed 09/30/10 Page 24 of 31
59. Accordingly, Plaintiff seeks injunctive and other equitable relief to
prevent the irreparable injury that Company shareholders will continue to suffer
absent judicial intervention.
COUNTI
On Behalf of Plaintiff for Violations of Section 14(d)(4) and 14(e) ofthe Exchange Act Against BlueLinx and the Individual Defendants
60. Plaintiff incorporates each and every allegation set forth above as if
fully set forth herein.
61. BlueLinx and the Individual Defendants have issued the Amended
Recommendation Statement with the intention of soliciting shareholder support of
the Proposed Transaction
62. Sections 14(d)(4) and 14(e) of the Exchange Act require full and
complete disclosure in connection with tender offers. Specifically, Section 14(e)
provides that:
It shall be unlawful for any person to make any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements made, in the light of the circumstances underwhich they are made, not misleading, or to engage in any fraudulent,deceptive, or manipulative acts or practices, in connection with anytender offer or request or invitation for tenders, or any solicitation of
security holders in opposition to or in favor of any such offer, request,or invitation. The Commission shall, for the purposes of thissubsection, by rules and regulations define, and prescribe means
reasonably designed to prevent, such acts and practices as are
fraudulent, deceptive, or manipulative.
24
Case 1:10-cv-03141-JOF Document 1 Filed 09/30/10 Page 25 of 31
63. Specifically, the Amended Recommendation Statement violates
14(d)(4) and 14(e) because it omits material facts, including those set forth above.
Moreover, in the exercise of reasonable care, BlueLinx and the Individual
Defendants should have known that the Amended Recommendation Statement is
materially misleading and omit material facts that are necessary to render them
non-misleading.
64. The misrepresentations and omissions in the Amended
Recommendation Statement are material to Plaintiff, who will be deprived of his
entitlement to be fully informed regarding the tender of his shares prior to the
expiration of the Tender Offer on October 8, 2010.
COUNT II
On Behalf of Plaintiff and the Class for Breach of
Fiduciary Duties Against the Individual Defendants
65. Plaintiff repeats and realleges each and every allegation set forth
herein.
66. The Individual Defendants have violated their fiduciary duties owed
to the shareholders of BlueLinx and have acted to put their personal interests ahead
of the interests of BlueLinx shareholders or acquiesced in those actions by fellow
defendants. These Individual Defendants have failed to take adequate measures to
25
Case 1:10-cv-03141-JOF Document 1 Filed 09/30/10 Page 26 of 31
ensure that the interests of BlueLinx’s shareholders are properly protected and
have embarked on a process that provides CAI and Cerberus with an unfair
advantage by effectively excluding other alternative proposals.
67. By the acts, transactions, and courses of conduct alleged herein, the
Individual Defendants, individually and acting as a part of a common plan, will
unfairly deprive Plaintiff and other members of the Class of the true value of their
BlueLinx investment. Plaintiff and other members of the Class will suffer
irreparable harm unless the actions of the Individual Defendants are enjoined and a
fair process is substituted.
68. The Individual Defendants have breached their duties of loyalty,
entirefairness, good faith, and care by not taking adequate measuresto ensurethat
the interests of BlueLinx’s public shareholders are properly protected from over-
reaching by CAI and Cerberus.
69. By reason of the foregoing acts, practices, and courses of conduct, the
Individual Defendants have failed to exercise due care and diligence in the exercise
of their fiduciary obligations toward Plaintiff and the other members of the Class.
70. As a result of the actions of Defendants, Plaintiff and the Class have
been, and will be, irreparably harmed in that they have not, and will not, receive
26
herein.
Case 1:10-cv-03141-JOF Document 1 Filed 09/30/10 Page 27 of 31
their fair portion of the value of BlueLinx’s stock and businesses, and will be
prevented from obtaining a fair price for their common stock.
71. Unless enjoined by this Court, the Individual Defendants will continue
to breach the fiduciary duties owed to Plaintiff and the Class and may consummate
the Proposed Transaction to the disadvantage of the shareholders, without
providing sufficient information to enable BlueLinx’s shareholders to make an
informed decision regarding the Tender Offer.
72. The Individual Defendants have engaged in self-dealing, have not
acted in good faith, and have breached, and are breaching, fiduciary duties owed to
Plaintiff and the other members of the Class.
73. Plaintiff and the Class have no adequate remedy at law. Only through
the exercise of this Court’s equitable powers can Plaintiff and the Class be fully
protected from the immediate and irreparable injury which these actions threaten to
inflict.
COUNT III
On Behalf of Plaintiff and the Classfor Aiding and Abetting theIndividual Defendants’ Breaches of Fiduciary Duties Against CAI and
Cerberus
74. Plaintiff repeats and realleges each and every allegation set forth
27
Case 1:10-cv-03141-JOF Document 1 Filed 09/30/10 Page 28 of 31
75. The Individual Defendants breached their fiduciary duties to the
BlueLinx shareholders by the actions alleged supra.
76. Such breaches of fiduciary duties could not, and would not, have
occurred but for the conduct of defendants CAI and Cerberus which, therefore,
aided and abetted the Individual Defendants’ breaches.
77. Defendants CAI and Cerberus had knowledge that they were aiding
and abetting the Individual Defendants’ breaches of fiduciary duties to BlueLinx
shareholders.
78. Defendants CAI and Cerberus rendered substantial assistance to the
Individual Defendants in their breaches of their fiduciary duties to BlueLinx
shareholders.
79. As a result of the unlawful actions of CAI and Cerberus, Plaintiff and
the other members of the Class will be irreparably harmed in that they will be
prevented from obtaining the fair value of their equity ownership in the Company.
Unless enjoined by the Court, CAI and Cerberus will continue to aid and abet the
Individual Defendants’ breaches of their fiduciary duties owed to Plaintiff and the
members of the Class, and will aid and abet a process that inhibits the
maximization of shareholder value and the disclosure of material information.
28
Case 1:10-cv-03141-JOF Document 1 Filed 09/30/10 Page 29 of 31
80. Plaintiff and the other members of the Class have no adequate remedy
at law. Only through the exercise of this Court’s equitable powers can Plaintiff
and the Class be fully protected from immediate and irreparable injury which
Defendants’ actions threaten to inflict.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands judgment and preliminary and permanent
relief, including injunctive relief, in her favor and in favor of the Class, and against
the defendants as follows:
A. Certifying this case as a class action, certifying Plaintiff as class
representative and their counsel as class counsel;
B. Declaring that the conduct of the Individual Defendants in approving
the Proposed Transaction and failing to negotiate in good faith with CAI and
Cerberus and other acts and omissions set forth herein are breaches of the
Individual Defendants’ fiduciary duties;
C. Preliminarily and permanently enjoining the Individual Defendants
and all persons acting in concert with them from taking any steps to consummate
the Proposed Transaction on the disclosures and terms presently proposed;
29
Case 1:10-cv-03141-JOF Document 1 Filed 09/30/10 Page 30 of 31
D. Preliminarily and permanently enjoining the Individual Defendants
from initiating any defensive measures that would inhibit the Individual
Defendants’ ability to maximize value for BlueLinx shareholders;
E. To the extent the Proposed Transaction is consummated prior to this
Court’s entry of a final judgment, rescinding it and setting it aside or awarding
rescissory damages;
F. Directing Defendants to account to Plaintiff and the Class for all
damages suffered by them as a result of defendants’ wrongful conduct alleged
herein;
G. Awarding Plaintiff the costs, expenses, and disbursements of this
action, including attorneys’ and experts’ fees and, if applicable, pre-judgment and
post-judgment interest; and
H. Awarding Plaintiff and the Class such other relief as this Court deems
just, equitable, and proper.
30
Case 1: 1 0-cv-03141 -JOF Document 1 Filed 09/30/10 Page 31 of 31
Dated: September 30, 2010 HOLZER HOLZER & FISTEL LLC
OF COUNSEL:
FARUQI & FARUQI, LLPDavid H. Leventhal369 Lexington Ave., 10th FloorNew York, NY 10017Tel: 212-983-9330Fax: 212-983-9331
31
HOLZER HOLZER & FISTEL,LLC
/s/Marshall P. Dees
Corey D. Holzer
Georgia Bar Number: 364698Michael I. Fistel, Jr.
Georgia Bar Number: 262062Marshall P. Dees
Georgia Bar Number: 105776William W. Stone
Georgia Bar Number: 273907200 Ashford Center NorthSuite 300
Atlanta, Georgia 30338
Telephone: 770-392-0090Facsimile: 770-392-0029
Case 1:10-cv-03141-JOF Document 1-1 Filed 09/30/10 Page 1 of 2
JS44 (Rev. 1/08 NDGA) CIVIL COVER SHEET
Ihe JS44 civil cover sheet and the infor mation contained herein neither r eplace nor supplement the filing and service of pleadings or other papers as requir ed by law, except as
ovided by local rules of cour t This for m is required for the use of the Clerk ofCourt for the pur pose of initiating the civil docket ecord (SEE INSTRUCTIONS A T TACHED)
I. (a) PLAINTIFF(S) DEFENDANT(S)AJAY KAJARI, on behalf ofhimself and those similarly Howard S. Cohen, Richard S. Grant, George R. Judd, Charlessituated, H. McElrea, Richard B. Marchese, Steven F Mayer, Alan H.
Schumacher, Mark A, Suwyn, Robert G. Warden, M. RichardWarner, BlueLinx Holdings Inc, Cerberus ABP InvestorLLC and Cerberus Capital Management, L P. El
(b) COUNTY OF RESIDENCE OF FIRST LISTED COUNTY OF RESIDENCE OF FIRST LISTEDPLAINTIFF Rhode Island DEFENDANT Fulton
(EXCEPT IN U S PLAINTIFF CASES) (IN U.S PLAINTIFF CASES ON1 Y)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCAIION OF THE TRACT OFLAND INVOLVED
(c) ATTORNEYS (FIRM NAME, ADDRESS, TELEPHONE NUMBER, AND ATTORNEYS (IF ICNOWN)
E-MAIL ADDRESS)
Marshall P DeesHOLZER HOLZER & FISTEL, LLC200 Ashford Center North, Suite 300Atlanta, GA 30338
II. BASIS OF JURISDICTION III. CITIZENSHIP OF PRINCIPAL PARTIES(PLACE AN "X" IN ONE BOX ONLY) (PLACE AN "X" IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT)
(FOR DIVERSITY CASES ONLY)
PLF DEF PLF DEF
0 1 U.S. GOVERNMENT ig 3 FEDERAL QUESTION 0 1 is 1 CITIZEN OF THIS STATE 0 4 ig 4 INCORPORATED OR PRINCIPALPLAINTIFF (U S GOVERNMENT NOT A PARTY) PLACE OF BUSINESS IN THIS STATE
02 U.S. GOVERNMENT 0 4 DIVERSIIY ig 2 0 2 CITIZEN OF ANOIHER STATE 0 5 ig 5 INCORPORATED AND PRINCIPALDEFENDANT (INDICATE CITIZENSHIP OF PARTIES PLACE OF BUSINESS IN ANOTHER
IN ITEM III) STATE
El 3 D 3 CITIZEN OR SUBJECT OF AFOREIGN COUNTRY 0 6 0 6 FOREIGN NATION
IV. ORIGIN (PLACE AN "X "IN ONE BOX ONLY)TRANSFERRED FROM ri APPEAL TO DISTRICT JUDGEIS 1 ORIGINAL 2 REMOVED FROM 3 REMANDED FROM I=1 4 REINSTATED OR LI 5 ANOTHER DISTRICT Li 6 MULTIDISTRICI LI 7 FROM MAGISTRATE JUDGE
PROCEEDING STATE COURT APPELLATE COURT REOPENED (Specify District) LITIGATION JUDGMENT
V. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE DO NOT CITEJURISDICTIONAL STATUTES UNLESS DIVERSITY)
Breaches of fiduciary duty owed to shareholders and corporation in connection with corporate buyout/merger
(IF COMPLEX, CHECK REASON BELOW)
El 1 Unusually large number of parties. 0 6 Problems locating or preserving evidence
0 2. Unusually large number of claims or defenses 0 7 Pending parallel investigations or actions by government
SI 3 Factual issues are exceptionally complex 0 8 Multiple use of experts.
El 4. Greater than normal volume of evidence 0 9. Need for discovery outside United States boundaries
0 5 Extended discovery period is needed 0 10 Existence of highly technical issues and proof
CONTINUED ON REVERSE
....F.D.R4..Q.FTIVikg§NF.P1411i1Ei2811:11g-',22112,111,1111.11211ffilkx.,11E'1210:1.1.ft1.1.1.11.1,1115121.1.1061111111,1111111182,11,25goggiegigii,M1.1,0111,00,e29,-1,N1.8,116
Case 1:10-cv-03141-JOF Document 1-1 Filed 09/30/10 Page 2 of 2
VI. NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLY)
CONTRACT "0" MONTHS DISCOVERY IRACK' CIVIL RIGHTS "4" MONIHS DISCOVERY TRACK SOCIAL SECURITY "0" MONTHS DISCOVERY150 RECOVERY OF OVERPAYMENT & l= 441 VOTING TRACK
ENFORCEMENT OF JUDGMENT I= 442 EMPLOYMENT =I 861 HIA (13950)l= 152 RECOVERY OF DEFAULTED STUDENT 443 HOUSING/ ACCOMMODATIONS 1=1 862 BLACK LUNG (923)
LOANS (Excl. Veter ans) 444 WELFARE 863 DIWC (405(g))=I 153 RECOVERY OF OVERPAYMENT OF =I 440 OTHER CIVIL RIGHTS 863 DIWW (405(g))
VETERAN'S BENEFITS =I 445 AMERICANS with DISABILITIES Employment I=1 864 SSID TITLEXVI=I 446 AMERICANS with DISABILITIES Other I=1 865 RSI (405(g))
CONTRACT "4" MONTHS DISCOVERY IRACK110 INSURANCE IMMIGRATION "0" MONTHS DISCOVERY TRACK FEDERAL TAX SUIIS "4" MONTHS DISCOVERY
1=I 120 MARINE =I 462 NATURALIZATION APPLICATION TRACK1= 130 MILLER ACT 463 HABEAS CORPUS- Alien Detainee l= 870 TAXES (U.S. Plaintiff or Defendant)
140 NEGOTIABLE INSTRUMENT I= 465 OTHER IMMIGRATION ACTIONS =1 871 IRS THIRD PARTY 26 USC 7609151 MEDICARE ACT160 STOCKHOLDERS' SUITS PRISONER PETITIONS "0" MONTHS DISCOVERY OTHER STATUTES "4" MONTHS DISCOVERY
=I 190 OTHER CONTRACT TRACK TRACKl= 195 CONTRACT PRODUCT LIABILITY CI 510 MOTIONS TO VACATE SENTENCE I= 400 STATE REAPPORTIONMENT196 FRANCHISE I= 530 HABEAS CORPUS 430 BANKS AND BANKING
535 HABEAS CORPUS DEATH PENALTY I= 450 COMMERCE/ICC RATES/ETCREAL PROPERTY "4" MONTHS DISCOVERY CI 540 MANDAMUS & OTHER 460 DEPORTATIONTRACK I=1 550 CIVIL RIGHTS Filed Pt o se =I 470 RACKETEER INFLUENCED AND CORRUPT
210 LAND CONDEMNATION =I 555 PRISON CONDITION(S) Filed Pro se ORGANIZATIONSI= 220 FORECLOSURE B 480 CONSUMER CREDITI= 230 RENT LEASE & EJECTMENT PRISONER PETITIONS "4" MONTHS DISCOVERY 490 CABLE/SATELLITE TV
240 TORTS TO LAND TRACK =I 810 SELECTIVE SERVICE
245 TORT PRODUCT LIABILITY =I 550 CIVIL RIGHTS Filed by Counsel I= 875 CUSTOMER CHALLENGE 12 USC 3410
290 ALL OTHER REAL PROPERTY =I 555 PRISON CONDITION(S) Filed by Counsel891 AGRICULTURALACTS
I=1 892 ECONOMIC STABILIZATION ACT893 ENVIRONMENTAL MATTERSTORTS PERSONAL INJURY "4" MONTHS FORFEITURE/PENALIY "4" MONTHS DISCOVERY CI 894 ENERGY ALLOCATION ACTDISCOVERY TRACK TRACK I=I 895 FREEDOM OF INFORMATION ACT
=I 310 AIRPLANE 610 AGRICULTURE I= 900 APPEAL OF FEE DETERMINATION UNDER315 AIRPLANE PRODUCT LIABILITY =I 620 FOOD & DRUG EQUAL ACCESS TO JUSTICE
I= 320 ASSAULT, LIBEL & SLANDER ED 625 DRUG RELATED SEIZURE OF PROPERTY =1 950 CONSTITUTIONALITY OF STATE STATUTES330 FEDERAL EMPLOYERS' LIABILITY 21 USC 881 890 OTHER STATUTORYACTIONS340 MARINE ED 630 LIQUOR LAWS345 MARINE PRODUCT LIABILITY l= 640 R.R. & TRUCK OTHER STATUTES "8" MONTHS DISCOVERY350 MOTOR VEHICLE =1 650 AIRLINE REGS TRACK355 moroR VEHICLE PRODUCI LIABILITY =I 660 OCCUPATIONAL SAFETY HEALTH 410 ANTITRUST
B360 OMER PERSONAL INJURY 690 OTHER=1 850 SECURITIES COMMODITIES EXCHANGE
362 PERSONAL INJURY MEDICALMALPRACTICE LABOR "4" MONTHS DISCOVERY TRACK OTHER STATUTES "0" MONTHS DISCOVERY
365 PERSONAL INJURY PRODUCT LIABILITY710 FAIR LABOR STANDARDS ACT TRACKI= 368 ASBESTOS PERSONAL INJURY PRODUCT im 720 LABOR/MGMT RELATIONS
LIABILITY ARBITRATION (Confirm Vacate Order Modify)=I 730 LABOR/MGMT, REPORTING & DISCLOSURE
ACTTORTS PERSONAL PROPERTY "4" MONIHS =I 740 RAILWAY LABOR ACT (Note: Mark underlying Nature of Suit as well)DISCOVERY TRACK =I 790 OTHER LABOR LITIGATION
CI 370 OTHER FRAUD 791 EMPL RET INC SECURITY ACII= 371 TRUTH IN LENDING
380 OTHER PERSONAL PROPERTY DAMAGE PROPERTY RIGHTS "4" MONIHS DISCOVERY=I 385 PROPERTY DAMAGE PRODUCT LIABILITY TRACK
=I 820 COPYRIGHTS PLEASE NOTE DISCOVERY1=1 840 TRADEMARK
BANKRUPTCY "0" MONTHS DISCOVERY TRACK FOR EACH CASE TYPE.TRACK PROPERTY RIGHTS "8" MONTHS DISCOVERY SEE LOCAL RULE 26.3
=1 422 APPEAL 28 USC 158 TRACK=I 423 WITHDRAWAL 28 USC 157 830 PATENT
VII. REQUESTED IN COMPLAINT:is CHECK IF CLASS ACTION UNDER F R.Civ P. 23 DEMAND TBD
JURY DEMAND 12 YES 0NO (CHECK YES ONLY IF DEMANDED IN COMPLAINT)
VIII. RELATED/REFILED CASE(S) IF ANYJUDGE DOCKET NO.
CIVIL CASES ARE DEEMED RELATED IF THE PENDING CASE INVOLVES: (CHECK APPROPRIATE BOX)
El 1. PROPERIY INCLUDED IN AN EARLIER NUMBERED PENDING SUIT
El 2. SAME ISSUE OF FACT OR ARISES OUI OF THE SAME EVENT OR TRANSACTION INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.
Ei 3 VALIDITY OR INFRINGEMENT OF THE SAME PATENT, COPYRIGHT OR TRADEMARK INCLUDED IN AN EARLIER NUMBERED PENDING SUIT
4 APPEALS ARISING OUT OF THE SAME BANKRUPTCY CASE AND ANY CASE RELATED THERETO WHICH HAVE BEEN DECIDED BY THE SAME
BANKRUPTCY JUDGE.
El 5. REPETITIVE CASES FILED BY PRO SE LITIGANTS
El 6. COMPANION OR RELAIED CASE 10 CASE(S) BEING SIMULTANEOUSLY FILED (INCLUDE ABBREVIATED SI YLE OF OTHER CASE(S)):
7 EITHER SAME OR ALL OF THE PARTIES AND ISSUES IN THIS CASE WERE PREVIOUSLY INVOLVED IN CASENO.,WHICH WASDISMISSED. This casenIS =IIS NOT (check one box) SUBSTANTIALLY THE SAME CASE
SIGNATURE OF ATTORNEY OF RECORD DATE