On October 20, 2017 a
Answer
was filed
involving a dispute between
Cohen Asset Management Llc,
Cohen, Bettie,
Cohen Capital Management, Llc,
Daniel Cohen, Individually And As Next Friend For Renee Cohen, Albert Cohen, Lauren Cohen, And Martin Cohen,
Zephyr Acquisition Holdings Llc,
Zephyr Oil & Gas Funding Co. Llc,
and
Asherman, Philip K.,
Ballschmiede, Ronald A.,
Chicago Bridge & Iron Company N.V.,
Stockton, Westley S.,
for Other Civil Case >$200,000
in the District Court of Montgomery County.
Preview
Received and E-Filed for Record
11/13/2020 4:31 PM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Jonathan Chicas
No. 17-10-12820
DANIEL COHEN, individually and as next § IN THE DISTRICT COURT OF
friend for RENEE COHEN, ALBERT §
§
COHEN, LAUREN COHEN, and MARTIN §
COHEN, BETTIE COHEN, ZEPHYR OIL §
& GAS FUNDING CO. LLC, ZEPHYR §
ACQUISITION HOLDINGS LLC, COHEN §
CAPITAL MANAGEMENT, LLC, COHEN §
§
ASSET MANAGEMENT LLC, and RMS §
CONTEMPORARY LLC, §
§ MONTGOMERY COUNTY, TEXAS
Plaintiffs §
vs. §
§
§
CHICAGO BRIDGE & IRON COMPANY §
N.V., PHILIP K. ASHERMAN, RONALD §
A. BALLSCHMIEDE, and WESTLEY S. §
STOCKTON, §
§
§
Defendants § 457TH JUDICIAL DISTRICT
DEFENDANTS’ SECOND AMENDED ANSWER AND JURY DEMAND
1. Defendants Chicago Bridge & Iron Co. N.V. (“CB&I”), Philip K.
Asherman, Ronald A. Ballschmiede, and Westley S. Stockton (collectively, “Defendants”)
submit this Second Amended Answer and Jury Demand and answer Plaintiffs’ Second Amended
Petition as follows:
I. GENERAL DENIAL
2. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants
generally deny the allegations and claims set forth in Plaintiff’s Second Amended Petition and
demand strict proof thereof by a preponderance of the credible evidence, as required by the
Constitution and laws of the State of Texas.
II. ADDITIONAL DEFENSES
3. Plaintiffs’ causes of action are barred by their failure to state a claim.
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4. Plaintiffs’ causes of action are barred by the applicable statutes of
limitations.
5. Plaintiffs’ causes of action are barred, in whole or in part, by the doctrines
of waiver, estoppel, and quasi-estoppel.
6. Plaintiffs’ claim under the Texas Securities Act is barred because
Defendants did not offer or sell a security pursuant to Tex. Rev. Civ. art. 581-33(A).
7. Plaintiffs’ claim under Section 27.01 of the Texas Business and
Commerce Code is barred, in whole or in part, because Section 27.01 does not apply to
Plaintiffs’ purchases of CB&I securities other than common stock.
8. Plaintiffs’ causes of action are barred, in whole or in part, by the doctrines
of contributory negligence or comparative fault or negligence, and/or proportionate
responsibility.
9. Defendants invoke the requirements, protections, procedures, and
limitations regarding the award of exemplary damages provided by Chapter 41 of the Texas Civil
Practice and Remedies Code, under the common law, and under the applicable provisions of the
Texas and United States Constitutions.
10. Plaintiffs’ claims against CB&I are subordinated claims under section
510(b) of title 11 of the United States Code (the “Bankruptcy Code”) because they arise from the
purchase or sale of a security. See 11 U.S.C. § 510(b); see also Second Am. Joint Prepackaged
Ch. 11 Plan of Reorganization (Technical Modifications) of McDermott Int’l, Inc. & Its Debtor
Affiliates, Ex. A to Am. Order Approving the Debtors’ Disclosure Statement & Confirming the
Second Am’d Joint Prepackaged Ch. 11 Plan of Reorganization, art. VIII, In re McDermott Int’l
Inc., No. 20-30336 (Bankr. S.D. Tex. Mar. 14, 2020) (the “Chapter 11 Plan”). As claims subject
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to subordination under section 510(b) of the Bankruptcy Code, Plaintiffs’ claims were classified
as class 14 claims in the Chapter 11 Plan, are not entitled to receive any distribution, and were
cancelled, released, and extinguished as of the effective date of the Chapter 11 Plan. See Chapter
11 Plan, art. III.
III. JURY DEMAND
11. Defendants demand a trial by jury of this case.
IV. RIGHT TO AMEND
12. Defendants reserve the right to amend this Answer.
V. PRAYER
13. Defendants pray that upon final trial and hearing in this case, Plaintiffs
take nothing by reason of this suit and Defendants recover their costs of court and expenses and
all other relief to which they are entitled.
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Respectfully submitted,
BAKER BOTTS L.L.P.
By: ______________________
David D. Sterling
Texas Bar No. 19170000
Paul R. Elliott
Texas Bar No. 06547500
Amy Pharr Hefley
Texas Bar No. 24046046
910 Louisiana St.
Houston, Texas 77002
Tel: (713) 229-1234
Fax: (713) 229-1522
david.sterling@bakerbotts.com
paul.elliott@bakerbotts.com
amy.hefley@bakerbotts.com
COUNSEL FOR DEFENDANTS
CHICAGO BRIDGE & IRON COMPANY N.V.,
PHILIP K. ASHERMAN, RONALD A.
BALLSCHMIEDE, AND WESTLEY STOCKTON
CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of November 2020, a true and correct copy of
the foregoing was served on all known counsel of record by the electronic filing system.
Paul R. Elliott
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Preview
Received and E-Filed for Record 11/13/2020 4:31 PM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Jonathan Chicas No. 17-10-12820 DANIEL COHEN, individually and as next § IN THE DISTRICT COURT OF friend for RENEE COHEN, ALBERT § § COHEN, LAUREN COHEN, and MARTIN § COHEN, BETTIE COHEN, ZEPHYR OIL § & GAS FUNDING CO. LLC, ZEPHYR § ACQUISITION HOLDINGS LLC, COHEN § CAPITAL MANAGEMENT, LLC, COHEN § § ASSET MANAGEMENT LLC, and RMS § CONTEMPORARY LLC, § § MONTGOMERY COUNTY, TEXAS Plaintiffs § vs. § § § CHICAGO BRIDGE & IRON COMPANY § N.V., PHILIP K. ASHERMAN, RONALD § A. BALLSCHMIEDE, and WESTLEY S. § STOCKTON, § § § Defendants § 457TH JUDICIAL DISTRICT DEFENDANTS’ SECOND AMENDED ANSWER AND JURY DEMAND 1. Defendants Chicago Bridge & Iron Co. N.V. (“CB&I”), Philip K. Asherman, Ronald A. Ballschmiede, and Westley S. Stockton (collectively, “Defendants”) submit this Second Amended Answer and Jury Demand and answer Plaintiffs’ Second Amended Petition as follows: I. GENERAL DENIAL 2. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally deny the allegations and claims set forth in Plaintiff’s Second Amended Petition and demand strict proof thereof by a preponderance of the credible evidence, as required by the Constitution and laws of the State of Texas. II. ADDITIONAL DEFENSES 3. Plaintiffs’ causes of action are barred by their failure to state a claim. 54769900 1 4. Plaintiffs’ causes of action are barred by the applicable statutes of limitations. 5. Plaintiffs’ causes of action are barred, in whole or in part, by the doctrines of waiver, estoppel, and quasi-estoppel. 6. Plaintiffs’ claim under the Texas Securities Act is barred because Defendants did not offer or sell a security pursuant to Tex. Rev. Civ. art. 581-33(A). 7. Plaintiffs’ claim under Section 27.01 of the Texas Business and Commerce Code is barred, in whole or in part, because Section 27.01 does not apply to Plaintiffs’ purchases of CB&I securities other than common stock. 8. Plaintiffs’ causes of action are barred, in whole or in part, by the doctrines of contributory negligence or comparative fault or negligence, and/or proportionate responsibility. 9. Defendants invoke the requirements, protections, procedures, and limitations regarding the award of exemplary damages provided by Chapter 41 of the Texas Civil Practice and Remedies Code, under the common law, and under the applicable provisions of the Texas and United States Constitutions. 10. Plaintiffs’ claims against CB&I are subordinated claims under section 510(b) of title 11 of the United States Code (the “Bankruptcy Code”) because they arise from the purchase or sale of a security. See 11 U.S.C. § 510(b); see also Second Am. Joint Prepackaged Ch. 11 Plan of Reorganization (Technical Modifications) of McDermott Int’l, Inc. & Its Debtor Affiliates, Ex. A to Am. Order Approving the Debtors’ Disclosure Statement & Confirming the Second Am’d Joint Prepackaged Ch. 11 Plan of Reorganization, art. VIII, In re McDermott Int’l Inc., No. 20-30336 (Bankr. S.D. Tex. Mar. 14, 2020) (the “Chapter 11 Plan”). As claims subject 54769900 2 to subordination under section 510(b) of the Bankruptcy Code, Plaintiffs’ claims were classified as class 14 claims in the Chapter 11 Plan, are not entitled to receive any distribution, and were cancelled, released, and extinguished as of the effective date of the Chapter 11 Plan. See Chapter 11 Plan, art. III. III. JURY DEMAND 11. Defendants demand a trial by jury of this case. IV. RIGHT TO AMEND 12. Defendants reserve the right to amend this Answer. V. PRAYER 13. Defendants pray that upon final trial and hearing in this case, Plaintiffs take nothing by reason of this suit and Defendants recover their costs of court and expenses and all other relief to which they are entitled. 54769900 3 Respectfully submitted, BAKER BOTTS L.L.P. By: ______________________ David D. Sterling Texas Bar No. 19170000 Paul R. Elliott Texas Bar No. 06547500 Amy Pharr Hefley Texas Bar No. 24046046 910 Louisiana St. Houston, Texas 77002 Tel: (713) 229-1234 Fax: (713) 229-1522 david.sterling@bakerbotts.com paul.elliott@bakerbotts.com amy.hefley@bakerbotts.com COUNSEL FOR DEFENDANTS CHICAGO BRIDGE & IRON COMPANY N.V., PHILIP K. ASHERMAN, RONALD A. BALLSCHMIEDE, AND WESTLEY STOCKTON CERTIFICATE OF SERVICE I hereby certify that on the 13th day of November 2020, a true and correct copy of the foregoing was served on all known counsel of record by the electronic filing system. Paul R. Elliott 54769900 4