In re Valence Technology, Inc.

Filing 21

MEMORANDUM OPINION AND ORDER. LIFTING stay imposed by the court on September 23, 2015, AFFIRMING the bankruptcy court's Order Denying Amended FirstMotion. Signed by Judge Lee Yeakel. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

23UOCH0

PM j:Q&

INRE
VALENCE TECHNOLOGY, INC.,
DEBTOR,
ROTH CAPITAL PARTNERS, LLC,
APPELLANT,
CAUSE NO. A-14-CA-0949-LY
BANKRUPTCY NO. 12-1 1580-CAG
(CHAPTER 11)

V.

VALENCE TECHNOLOGY, INC.,
APPELLEE.

MEMORANDUM OPINION AND ORDER
Before the court is the above styled and numbered cause. Appellant Roth Capital Partners,
LLC ("Roth") contends that the bankruptcy court erred by rendering the July 23, 2014 Order

Denying Amended First Motion ofRoth Capital Partners, LLC, For Order Directing Reimbursement

of Attorneys' Fees and Costs for the Period October 9, 2013 Through May 23, 2014 (Bankruptcy
Clerk's Document No. 625) ("Order Denying Reimbursement"). This court ordered briefing and, on
March 16, 2015, held oral argument at which all parties were represented by counsel.1
The parties in this action were before the court previously in relation to Appellee Valence
Technologies Inc.'s ("Valence") underlying Chapter

11

bankruptcy proceeding and the court

addressed Valence's appeal alleging error in the bankruptcy court's Order Granting In Part and
Denying In Part the First and Final Application of Roth Capital Partners, LLC, For Compensation
and Reimbursement of Expenses

of Professionals For the Period from February 6, 2013 Through

October 30, 2013, signed April 29, 2014 (Bankruptcy Clerk's Document No. 574).

See Valence

Before the court are Roth's Appellant's Brief filed November 17, 2014 (Clerk's Document
No. 9), Valence's Appellee's Brief filed December 5, 2014 (Clerk's Document No. 10), and Roth's
Appellant's Reply Brief filed December 19, 2016 (Clerk's Document No. 13).
1

Tech. Inc. v. Roth Capital Partners, LLC, No. 1:1 4-CA-596-LY (W.D. Tex. March 31, 2015). This

court affirmed the bankruptcy court's order and Roth appealed to the United States Court ofAppeals
for the Fifth Circuit. Valence Tech. Inc.

v.

Roth Cap ital Partners, LLC, No. 15-50384(5th Cir. April

28, 2015).
The court stayed this action during the pendency of the appeal in the related case. On May
4, 2016, the circuit rendered judgment affirming the bankruptcy court's order in the related case.

Valence Tech. Inc. v. Roth Capital Partners, LLC, 647 Fed. Appx. 438 (5thCir. May4, 2016). After

the circuit court's mandate issued, the court held a conference in this action at which all parties were

represented by counsel. All counsel agreed that no additional briefing was necessary and that the
court may proceed to the merits ofthis action. Having considered the case file and the applicable law,

the court lifts the stay and renders the following memorandum opinion and order.

Background
Valence is a developer and manufacturer of large-scale rechargeable lithium batteries.
Valence's growth was financed primarily through secured loans of approximately $69.1 million from
investor Carl Berg's company, Berg & Berg. When Valence could no longer make its loan payments,
Valence filed a voluntary petition for relief under Bankruptcy Code, Chapter 11, on July 12, 2012.
Valence began investigating ways to reorganize while continuing to operate as a debtor-in-possession
business. Valence hired attorneys and accountants with expertise in debt restructuring. Valence was
also interested in new equity investment. Valence solicited and received proposals from several

investment banking firms willing to assist Valence with efforts to obtain financing for reorganizing

the company. Most of the interested firms required that Valence pay retainers of at least $35,000 per

month, had lengthy minimum terms ofmonths, and required payment ofpercentage fees ofup to 6%
2

of any new equity or capital raised. Two firms, however, Roth and KPMG Corporate Finance LLC
("KPMG"), negotiated employment agreements with Valence, and Valence, in turn, requested that

the bankruptcy court authorize Valence to employ Roth and KPMG as investment bankers and to
accept the terms of their agreements.

See 11 U.S.C. § 327(a).2

By order signed February 15, 2013, the bankruptcy court granted Valence's request, and

approved the terms of Valence's Engagement Letters with Roth and KPMG, thereby allowing
Valence to employ Roth and KPMG until confirmation of Valence's reorganization plan.4 The
Retention Order included the following provisions, which the court finds relevant in this action: (1)
the court authorized Valence to employ Roth and KPMG in accordance with sections 327(a) and
328(a) of the Bankruptcy Code pursuant to the terms of their Agreement; (2) although Roth and

KPMG will not be required to submit fee applications pursuant to section 330 and 331 of the

Bankruptcy Code, Roth and KPMG will file final fee applications including summaries of all fees
earned and expenses reimbursed in this case; (3) the terms and conditions of the Agreement are

reasonable; and (4) all compensation payable to Roth pursuant to the Agreement is subject to the

Although Title 11 ofthe United States Code, section 327(a) applies only to trustees, section
1107(a) gives Chapter 11 debtors-in-possession the same authority as trustees to retain section 327(a)
professionals. For simplicity, in this action, the court refers only to section 3 27(a).
2

Order Granting Debtor's Motion for Authorization to Employ and Retain KPMG Corporate
Finance, LLC and Roth Capital Partners, LLC as Investment Bankers to the Debtor. The court refers
to this order as the "Retention Order."

Consistent with each of the Engagement Letters dated February 6, 2013, the court refers
to the Roth Engagement Letter as the "Agreement." The Agreement was time limited to May 6,
2013, however, the bankruptcy court granted Valence's request and extended Roth's term of
employment until confirmation of a chapter 11 plan of reorganization.

standard of review set forth in Section 3 28(a) of the Bankruptcy Code and not any other standard,
including that set forth in Section 330 of the Bankruptcy Code.

The bankruptcy court rendered findings offact and conclusions of law and confirmed the First
Amended Reorganization Plan ("Plan") for Valence on November 18, 2013. Under the Plan, Berg
& Berg and Valence agreed to the following: (1) Berg & Berg would convert $50 million

of its

prepetition secured loan to 100% of the stock in the reorganized Valence in exchange for Valence
canceling all of its existing equity; (2) Berg & Berg agreed to extend Valence's maturity date of the
remaining prepetition secured loan of approximately $19.1 million under a new note; and (3) Berg
& Berg agreed to provide Valence a new $20 million loan for operating capital.

After confirmation of the Plan, and pursuant to the Agreement, Roth applied to the
bankruptcy court seeking compensation of an additional fee, a "Success

Fee."5

Valence opposed

Roth's application, arguing that the Agreement expressly excluded all debt-for-equity conversions
from the types of transactions that would trigger the additional feethe Success Feeprovision, and
further, under the Agreement's terms, Berg & Berg's $20 million loan to the reorganized Valence
for operating capital did not qualify as equity or equity-linked financing; rather it was an operations
loan, which was beyond the scope

of the Agreement.

By order rendered April 29, 2014, the bankruptcy court ruled that Roth was entitled to a
Success Fee of 1.25%, based on the $50 million debt-for-equity conversion only, less $30,000

Valence paid Roth as engagement and retainer fees, for a total recovery of $595,000. The court

The terms of KPMG and Roth's Agreements are the same. Both KPMG and Roth sought
a "Success Fee" under each of their respective agreements. At the parties' request, the bankruptcy
court held one evidentiary hearing, and granted KPMG's request that it be bound by the bankruptcy
court's ruling on Roth's Fee Application.
'

ru

denied Roth's request for a Success Fee on the $20 million operating-capital loan, concluding that

the loan was debt-financing and not within the scope of the Agreement.6
Valence appealed the bankruptcy court's decision to this court, arguing Roth was not entitled
to the Success Fee based on the terms of the Agreement. This court disagreed with Valence's
arguments, affirmed the bankruptcy court's award of the Success Fee to Roth, and Valence appealed
this court's decision to the Fifth Circuit, which affirmed the award ofthe Success Fee to Roth on May
4, 2016. Valence Tech. Inc., 647 Fed. Appx. at 438.

By order signed August 12, 2016, the bankruptcy court ordered Valence to pay the Success
Fee in the amount of $595,000, classified Roth's claim to the Success Fee as an "Allowed Claim,"
and pursuant to the Plan, ordered Valence to pay the fee to Roth in 12 equal installments, together

with interest at the statutory federal judgment rate.

Attorn ey's fees incurred by Roth seeking Success Fee
After the bankruptcy court ruled on April 29, 2014, that Roth was entitled to the Success Fee,

Roth moved the bankruptcy court to order the reorganized Valence to reimburse Roth's attorney's
fees and costs that Roth incurred in litigating the Success

Fee.7

Roth argued that based on the

bankruptcy court's Retention Order and under the terms of the Agreement, these were reimbursable
expenses.8

Specifically, Roth relied on the following provision of the Agreement:

Roth also requested its related expenses, to which no objections were raised, and the
bankruptcy court awarded Roth those expenses. Roth's expenses, however, did not include any
attorney's fees or costs of court incurred in seeking the Success Fee.

Roth's Amended First Motion of Roth Capital Partners, LLC, For Order Directing
Reimbursement ofAttorney's Fees and Costs for the Period October 9, 2013 Through May23, 2014,
filed May 30, 2014 (Bankruptcy Clerk's Document No. 591) ("Roth's motion").
8

This period of time is referred to by the parties as the "Success Fee Application Period."

If the Engagement Fee, Retainer Fee, or the Success Fee (collectively,
"Fees") is not fuiiy paid when due, [Valence] agrees to pay all costs
of collection or other enforcement of Roth's rights hereunder,
including but not limited to attorney's fees and expenses, whether
collected or enforced by suit or otherwise.9

Roth's motion sought $182,449.50 in attorney's fees, and $13,557.35 in costs, for a total claim of
$196,006.85.
Valence urged several grounds for denying Roth's motion. Following a contested hearing,

on July 22, 2014, the bankruptcy court denied Roth's motion. In so doing the bankruptcy court

stated on the record in open court four reasons for its ruling: (1) Roth's motion was prematurely
filed because Valence's appeal regarding liability for the Success Fee was pending before the Fifth

Circuit Court of Appeals; (2) without ruling that Roth is entitled to any attorney's fees or costs of
collection, if indeed Roth is entitled to the requested fees, under the provisions of the Plan, Roth's

motion comes too late because the motion is an untimely request for payment of an administrative
expense; (3) Valence need not pay Roth's attorney's fees and expenses because Roth's attorneys
were not retained pursuant to Bankruptcy Code section 327 or 328, that is, the bankruptcy court

never approved Roth's attorneys' employment; and (4) based on the holding in ASARCO, LLC v.

Jordan Hayden Womble Cuibreth & Hoizer, PC (In re ASARCO), 751 F.3d 291 (5th Cir. 2014),
aff'd, BakerBotts v. ASARCO, LLC,

U.S. ____, 135 S.Ct. 2158 (2015) ("ASARCO"), Roth's

attorney's fees and costs incurred seeking the Success Fee portion of compensation, pursuant to the
terms of the Retention Order and Agreement, are not recoverable. Roth timely filed this appeal and
contends that the bankruptcy court erred each rulings.

Bankruptcy Clerk's Document No. 306, Ex. C, Doe. pg. 4

Jurisdiction
The bankruptcy court's Order Denying Reimbursement signed July 23, 2014, is a final,
appealable order over which this court has appellate jurisdiction. See 28 U.S.C.

§

158(a); see e.g.,

ASARCO, 135 S.Ct. at 2158.

Standard of review
In reviewing a bankruptcy court's decision, the court functions as an appellate court, applying

the standards ofreview generally applied in federal appeals: a bankruptcy court's findings of fact are

reviewed for clear error and the court's conclusions of law are reviewed de novo. See Robertson v.

Dennis (In re Dennis), 330 F.3d 696, 701 (5th Cir. 2003). A finding is clearly erroneous and
reversible only if, based on the entire record, the reviewing court is left "with the definite and firm

conviction that a mistake has been made." Id. In conducting this review, the court must give due
regard to the opportunity of the bankruptcy judge to determine the credibility of the witnesses. Id.;
see also Young v. National Union Fire Ins. Co. (In re Young), 995 F.2d 547, 548 (5th Cir. 1993).

The issues on appeal here involve interpreting a contract, which are subject to de novo review. Fina,
Inc.

v.

ARCO, 200 F.3d 266, 268 (5th Cir. 2000).

Analysis
The court reviews each of the bankruptcy court's reasons for denying Roth's motion.
Roth's motion

is

premature for review

Roth challenges the bankruptcy court's ruling that Roth's attorney' s-fees-reimbursement
application was not ripe for review because the order granting Roth the Success Fee was on appeal
to this court. The court finds that this basis for denying Roth its attorney's fees and costs is now

moot. Valence's liability to Roth for the Success Fee is now fmal, and further, by order rendered

7

August 12, 2016, the bankruptcy court declared the Success Fee an allowed claim, and has ordered
payment terms. Roth's attorney's-fees claim is at this time not premature.

Success Fee due upon rendition

of a final order

Roth argues that the following provision in the Agreement supports its claim for attorney's
fees and costs:

If the Engagement Fee, Retainer Fee, or the Success Fee (collectively,
"Fees") is not fully paid when due, [Valence] agrees to pay all costs
of collection or other enforcement of Roth's rights hereunder,
including but not limited to attorney's fees and expenses, whether
collected or enforced by suit or otherwise.
One of the central issues in this action is the determination of when the Success Fee was due. That
question is determined by the Plan, which governs when an amount is "due" and payment of claims,
including expense-reimbursement claims by professionals retained in the bankruptcy action. Under

the Plan, no amounts are due until the amounts are "Allowed" by a "Final Order."
Final Order is defined by the Plan.
"Final Order" means an order of the Bankruptcy Court or District
Court as to which the time to appeal, petition for certiorari, or move
for reargument or rehearing has expired and as to which no appeal,
petition for certiorari, or motion for reargument or rehearing shall
then be pending or. . . in the event that an appeal, writ of certiorari,
or reargument or rehearing thereofhas been sought, such order of the
Bankruptcy Court or District Court shall have been upheld by the
highest court to which such order was appealed, or from which
certiorari, reargument or rehearing was sought and the time to take
any further appeal, petition for certiorari or move for reargument or
rehearing shall have expired; provided however, the possibility that a
timely motion under Bankruptcy Rule 9024 or any applicable
analogous rule may be filed with respect to such order shall not
prevent such order from being a Final Order.

In applying these provisions to the Success Fee, the circuit court rendered its opinion on May 4,

2016, after which on August 12, 2016, the bankruptcy court declared that the Success Fee was an
allowed claim by Roth. Contrary to Roth's contention, and under the Plan's provisions, the court

concludes that because the Success Fee was not declared due until August 12, 2016, the attorney's
fees and costs incurred by Roth from October 9, 2013, its employment date, through May 23, 2014,

were not expenses incurred by Roth attempting to collect the Success Fee after it was due, as the due
date only came to pass on August 12, 2016.

Further of importance to resolution of this matter, is the recognition that pursuant to the
specific provisions of Section

3

of the Agreement, Roth's "compensation," included three amounts,

the Success Fee, the Engagement Fee, and the Retainer Fee. Further, the bankruptcy court's

Retention Order by paragraph 11, applied Section 328(a) only to "compensation;" the Retention
Order does not address or include any of Roth's attorney's fees incurred in seeking an award of the
Success Fee.'°

The court concludes that the Retention Order applies Section 328(a) to Roth's compensation

onlythe Retainer Fee, Engagement Fee, and Success Feeand not to Roth's expenses. Accordingly,
the court concludes that Roth's attorney's fees incurred in seeking the Success Fee, if recoverable,
must be approved according to the standards of Section 330.

10

Paragraph

11

of the retention order provides:

All compensation payable to. . . Roth pursuant to the Agreements is
subject to the standard of review set forth in Section 3 28(a) of the
Bankruptcy Code and not any other standard, including that set forth
in Section 330 of the Bankruptcy Code.

Roth cannot recover its attorn ey's fees incurred in pursuing fees
The bankruptcy court held that based on the reasoning in ASARCO, Roth's attorney's fees
and costs incurred in seeking the Success Fee are not recoverable. Roth challenges that ruling,

arguing that ASARCO does not apply because Roth is seeking reimbursement of attorney's fees and

costs pursuant to the Agreement, which contains a prevailing-party fee-shifting provision. The court
disagrees with Roth and concludes that the reasoning in ASARCO is applicable to the facts in this
action.

Section 33 O(a)( 1) provides compensation for "professionalswhether accountant, attorney,

or auctioneerfor all manner of work done in service

of the

estate administrator." ASARCO, 135

S.Ct. at 2165 (emphasis in original). "More specifically, [Section] 330(a)(1) allows 'reasonable

compensation' only for 'actual, necessary services rendered.' That qualification is significant." Id.
(emphasis in original).

"Section 330(a)(1) does not authorize courts to award 'reasonable

compensation' simpliciter, but 'reasonable compensation for actual, necessary services rendered by'
the []professional." Id. at 2167.
ASARCO held that the contested award at issue was tied to the estate-hired and bankruptcy-

court-approved attorneys' work on the fee-defense litigation and was correctly understood only as
compensation for that scope of work. Id.

'

Litigation in defense of a fee application is not a

"service" within the meaning of Section 330(a)(1); and it follows that the contested award was not

"compensation" for a "service." Id. Time spent litigating a fee application against the debtor-in-

InASARCO the contested award consisted of$5 million in attorney's fees expended by law
firms hired with the bankruptcy court's permission for time spent by the firms litigating in defense of
their fee applications. ASARCO ruled that this amount was beyond the law firms' scope of allowed
compensation for actual, necessary services rendered by professionals hired under Section 327(a).

10

possession cannot be fairly described as "labor performed for"let alone "disinterested service

to"that administrator.

Id.

Here, similar to the facts presented in ASARCO, Roth seeks reimbursement of the attorney's
fees and costs Roth incurred in defending its application and claim for the Success Fee. Roth's

attorney's fees and costs at issue, like those inASARCO, were not incurred for labor performed for,
or, in service to Valence, the debtor-in-possession. The court concludes that the bankruptcy court
did not err in finding that Roth's attorney's fees and costs incurred in litigating Roth's right to the

Success Fee are not recoverable under ASARCO.

Roth 's breach-of-contract damages claim
Roth contends that it is nevertheless entitled to breach-of-contract damages, arguing that the
Agreement was a contract between Roth and Valence that was approved by the bankruptcy court.

Roth argues that upon the bankruptcy court's order approving the Success Fee and confirming that
Roth was entitled to the Success Fee under the contract, Valence should have paid Roth the Success
Fee at that point. By failing to pay the Success Fee at that particular point in time, Valence breached

the Agreement, and Roth suffered damages, which included attorney's fees and expenses incurred in
litigating the collection of the Success Fee. Under the specific terms of the Agreement, Roth argues
its attorney's fees and expenses are reimbursable, as Roth had to undertake collection efforts,

including without limitation,

12

litigation.'2

The Agreement provides,

If the.

Success Fee [] is not fully paid when due, [Valence] agrees
to pay all costs of collection or other enforcement of Roth's rights
hereunder, including but not limited to attorneys' fees and expenses,
whether collected or enforced by suit or otherwise.
. .

11

This argument is without merit. As this court concluded, under the terms of the Plan, the

Success Fee was not due until August 12, 2016, when the bankruptcy court determined the Success
Fee to be an allowed claim. Nothing before the court reflects that any collection efforts have been

required since the Success Fee became due. The court concludes that Roth has not shown that it is
entitled to breach-of-contract damages.

Roth's motion for attorney'sfees is a late requestfor payment of administrative expense
Roth challenges the bankruptcy court's finding that Roth's motion was a tardy request for an
administrative expense because it was not filed within the time limits set by the Plan. Roth argues that

the Plan set time limits only for administrative claims that accrued before the effective date of the
Plan. Roth argues that its motion related to the Success Fee, did not accrue until Roth was awarded

its Success Fee by the bankruptcy court on April 29, 2014, which was more than four months after

the effective date of the Plan. Thus, contends Roth, the administrative bar date set forth in the Plan
is inapplicable to

Roth's application for reimbursement of its attorney's fees. Further, Roth argues

that the Plan is silent and makes no provision for any deadline for applications for administrative
expenses incurred after the effective date of the Plan. Finally, Roth argues that it did not wait an

unreasonable amount of time to seek reimbursement of its attorney's fees and costs because it filed
its motion approximately one month after the claim accrued.

Valence disagrees and argues that based on the Plan's defined term"Administrative

Expense"Roth's request for its attorney's fees

is late. Valence argues that the Plan's definition of

an Administrative Expense, includes the following:

of expenses to the extent
Allowed by the Bankruptcy Court under sections 327, 328, 330, 331,
all compensation and reimbursement

12

503 and [11103 ofthe Bankruptcy Code, whether fixed before or after
the Effective Date.

Therefore, Valence argues, Roth's claim is of the type classified by the Plan as an administrative

expense and Roth's argument that the Plan only addresses fees and expenses incurred before the
effective date runs contrary to the Plan's definition ofan administrative expense. As the effective date

of the Plan was December 4, 2013, the bar date for Roth to

file its request for attorney's fees

expenses was February 2, 2014. As Roth did not file its request until May 30, 2014, the request was
beyond the bar date and the claim cannot be allowed under the Plan.
Valence also argues that a professional is not entitled to post-confirmation fees and expenses

brought after the claims bar date established by the Plan. See In re Age Refining, Inc., 505 B.R. 447
(Bankr. W.D. Texas 2014). "The terms ofthe Plan guide this Court in determining whether to allow
a post-confirmation administrative claim. The express claims bar dates in the Plan and Confirmation

Order indicate that the Plan does not contemplate such fees, so neither will this Court." Id. at 453.
The court agrees with Valence and concludes that assuming Roth could show that it is entitled
to recover its attorney's fees and costs, the attorney's fees and costs related to the Success Fee are

administrative expenses under the Plan. There are however, no provisions in the Plan requiring

Valence to pay administrative expenses that occur after the bar date. The court concludes that the

bankruptcy court did not err in ruling that Roth's attorney's fees and costs incurred in pursuing the
Success Fee are not recoverable as administrative expenses.

Roth 's attorneys were not retained pursuant to Bankruptcy Code
Notwithstanding the court's conclusions regarding the other bases for the bankruptcy court's
denial of Roth's motion, Roth challenges the bankruptcy court's holding that Roth cannot recover

13

its attorney's fees and costs because Roth's attorneys were never approved by the bankruptcy court.

The bankruptcy court reasoned that there is no authority in the Bankruptcy Code for Valence to pay
fees and expenses

of professionals who are not engaged pursuant to Sections 327 or 330 of the

Bankruptcy Code.

Roth argues that Section 327 is inapplicable because that section only addresses professionals
employed by a bankruptcy trustee or a debtor-in-possession. Roth maintains because Roth is neither
a trustee nor debtor-in-possession, Section 327 is inapplicable.

Roth argues that it was retained pursuant to Section 328 of the Code, and that its
compensation plan was approved at the outset of its engagement. Under the court-approved
Agreement, ifRoth were required to undertake collection efforts to be paid its Success Fee, then the

Agreement provided that Roth was entitled to recover from Valence any attorney's fees and expenses
incurred by Roth. Roth contends that lacking from the Agreement was any requirement that Roth
had to seek preapproval for retaining its counsel in the event Roth needed counsel to enforce the

Agreement.
A person employed under Section 327 who seeks to employ its own professional, including
an attorney, and have such fees paid by the debtor-in-possession, must first ask the bankruptcy

court's permission to do so. See In re Crafts Retail Holding Corp., 378 B.R. 44, 49 (Bankr.
E.D.N.Y. 2007); see also In re Ferguson, 445 B.R. 744, 751 (Bankr. N.D. Tex. 2011) ("While
Section 330(a)(1) makes an award of compensation 'subject to sections 326, 328, and 329,' sections
330 and 331 are the

only provisions

of the Code which authorize the payment of professionals.")

Although Roth's retention was approved by the bankruptcy court, Roth's attorneys were not.
Because Roth's attorneys were not first approved by the bankruptcy court, Roth's claims for

14

reimbursement of its attorney's fees and costs were properly denied. The court concludes that the

bankruptcy court did not err in ruling that Roth's attorney's fees and costs were not reimbursable
because the attorneys were not duly appointed by the bankruptcy court.

Conclusion
The court concludes that the bankruptcy court's findings of fact stated on the record in open

court on July 22, 2014, related to Roth's claim for reimbursement of its attorney's fees and costs for
the period of October 9, 2013 through May 23, 2014, are not clearly erroneous. Additionally, the
court has reviewed

de novo the bankruptcy

court's conclusions of law related to Roth's same claim

for reimbursement of attorney's fees and costs, which were also stated on the record in open court

on July 22, 2014. Therefore,

IT IS ORDERED that the stay imposed by the court on September 23, 2015, is LIFTED.
IT IS FURTHER ORDERED that the bankruptcy court's Order Denying Amended First
Motion of Roth Capital Partners, LLC, for Order Directing Reimbursement of Attorney's Fees and

Costs for the Period October 9, 2013 Through May 23, 2014, signed July 23, 2014 (Bankruptcy
Court Clerk's Document No. 625) is AFFIRMED.
SIGNED this

day of October, 2017.

ITED STATE DISTRICT JUDGE

15