Case 8:17-cv-00328-CEH Document 29 Filed 11/29/17 Page 1 of 6 PageID 19629
`Case 8:17—cv-00328—CEH Document 29 Filed 11/29/17 Page 1 of 6 PageID 19629
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`UNITED STATES DISTRICT COURT
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`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`BAMBI ALICIA HERRERA—EDWARDS,
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`Appellant,
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`V.
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`Case No. 8: 17-cv—328-CEH
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`BERNARD EDWARDS COMPANY, LLC
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`and JESS S. MORGAN & CO., INC.,
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`Appellees.
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`/
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`APPELLEES’ RESPONSE IN OPPOSITION TO APPELLANT’S
`MOTION FOR CLARIFICATION, OR ALTERNATIVELY, FOR REHEARING1
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`Appellees, Bernard Edwards Company, LLC (“BBQ”) and Jess. S. Morgan & Co., Inc.
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`(“M”) (collectively, “ ppellees”), file this response (“Response”) in opposition to the portion
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`of Appellant’s Motion for Clarification, or Alternatively, for Rehearing (Doc. 23) (“W”) that
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`seeks clarification of this Court’s Opinion and Order (Doc. 20) (the “‘QM”), and state as
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`follows:
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`Response to Motion for Clarification
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`Likely in an attempt to avoid the stringent legal standard applicable to a motion for
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`rehearing, Appellant captions the first approximately two pages of its Motion as a “Motion for
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`Clarification,” and unsuccessfully attempts to inject uncertainty into this Court’s Opinion.
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`2
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`Appellant’s efforts are misguided and do not merit serious consideration.
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`1 Pursuant to Rule 8022 of the Federal Rules of Bankruptcy Procedure, Appellees are not permitted to respond to a
`motion for rehearing absent this Court requesting that they do so. See 6. g. In re Baumann, 2016 WL 1755972, at ft.
`nt.
`1 (MD. Fla. May 3, 2016). Accordingly, this Response addresses only the portion of the Motion seeking
`clarification.
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`2 All capitalized terms used but not defined in this Response shall have the meanings ascribed to them in the Opinion.
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`Case 8:17—cv-00328—CEH Document 29 Filed 11/29/17 Page 2 of 6 PageID 19630
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`This Court’s Opinion is not unclear. As an initial matter, the Opinion specifically affirms
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`the bankruptcy court’ s finding that the Settlement Agreement was the operative document between
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`the parties, and further finds that “Edwards could hardly argue otherwise” because the “Settlement
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`Agreement was the only document executed by all of the interested parties, it was the only
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`document approved by the probate court as required under Connecticut law, and it was the only
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`document expressly preserved by the General Release.” (Id at 14-15). Consistent with that
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`finding, the Court’s Opinion goes on to specifically reject Appellant’s argument that extrinsic
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`evidence should be considered in interpreting the Settlement Agreement because Appellant failed
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`to identify any ambiguity in the Settlement Agreement. (Id. at 15).
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`The conclusion that the unambiguous Settlement Agreement is the operative document is
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`critical because it clearly provides that Appellant would receive only an interest in the income
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`stream from the Copyrights:
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`Bambi Edwards agrees to accept and the estate agrees to take any and all steps
`necessary to assign a 37 1/2 percent participation in the income stream from the
`copyrights owned by Bernard Edwards Estate on the date of Bernard Edward’s
`death after payment of all costs, expenses and debt related to the copyrights.
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`(Doc. 10-133 at 1i 2(c)) (emphasis added). The Settlement Agreement goes on to provide that the
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`parties would execute a co-publishing agreement under which Franson would have “full and
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`complete administration rights therein” and that Appellant “will have no administration rights
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`whatsoever regarding the copyrights.” (Id. at 1] 5). Finally, the Settlement Agreement provides
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`that “Bambi Edwards acknowledges that she has no administration rights in the copyrights.” (Id.
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`at 1i 6).
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`Significantly, after concluding that
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`the unambiguous Settlement Agreement
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`is the
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`operative document, the Court’s Opinion affirmed the bankruptcy court’s decision that Appellant’s
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`interest — specifically identified as a “3 7.5% interest in the income steam fiom the copyrights” -
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`did not include artist and producer royalties. (Opinion, at 17-18) (emphasis added).
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`The Court also directly addressed and rejected Appellant’s contention that “she is a
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`copyright ‘owner’ and...as an owner, she necessarily possesses administration rights” and thus
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`could reject the Co-Publishing Agreement to obtain the administration rights.
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`(Id at 11). The
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`Court found that the‘bankruptcy court relied “on well—settled rejection concepts” in rejecting
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`Appellant’s claim, “most notably, the principle that rejection may not be used to change the
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`substantive rights of the parties to the contract.” (Id. at 11) (internal citations omitted). The Court
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`further found that “Edwards’ failure to address [that principle] is fatal to her appeal.” (Id). It was
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`fatal to Appellant’s appeal because Appellant ignored the “controlling language in the court-
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`approved Settlement Agreement and in the copyright assignments” which granted her no such
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`rights:
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`The Settlement Agreement expressly states: “Bambi Edwards acknowledges that
`she has no administration rights in the copyrights.” Likewise, the copyright
`assignments withhold from Edwards “the exclusive right
`to administer” the
`copyrights and instead transfer 100% of the administration rights to the children’s
`trusts and to BBC.
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`(Id. at 11) (internal citations omitted). The Court concluded that the related Co-Publishing
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`Agreement was “consistent with both the Settlement Agreement and copyright assignments,” and
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`the Co-Publishing Agreement provided that
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`its provisions “are irrevocable for any cause
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`whatsoever.” (Id. at 11-12). The Court then applied clearly established rejection case law to bar
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`Appellant from using rejection to re-write the relevant agreements and obtain the administration
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`rights. (Id at ll-l3).
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`In discussing applicable law, the Court stated that this case was similar to Thompkins v.
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`Lil ’ Joe Records, Inc. because while Appellant may have “some degree of Copyright ownership”
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`(that is, ownership of 37 1/2% of the income stream from the Copyrights), the administration rights
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`associated with the Copyrights were “fully executed pursuant to the copyright assignments, the
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`Settlement Agreement, and the Co-Publishing Agreement.” (Id at 12-13); 476 F.3d 1294 (11th
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`Cir. 2007). Read in context, the Court’s statement is entirely consistent with the rest of the
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`Opinion, which clearly concludes that Appellant received only an income stream, not outright
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`ownership of the Copyrights.
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`(Id. at 11-12, 13, 17-18). This is again made clear just a few
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`sentences later when the Opinion states that Appellant cited no authority that would permit “the
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`bankruptcy court, acting under 11 U.S.C. § 365(a), to re-write the terms of the copyright
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`assignments and the court-approved Settlement Agreement.” (Id. at 13). Appellant’s failure to
`identify a basis for the Court to “re-write” the terms ofthe assignments and Settlement Agreement
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`was fatal to her claims because those documents provided that Appellant would only receive an
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`income stream, not ownership in the Copyrights.
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`The “clarification” portion of the Motion attempts to rehash this same unsuccessful
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`argument.
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`(Motion at 3).
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`It is absolutely clear that the Court’s Opinion did not accept any of
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`Appellant’s arguments, did not grant Appellant any relief of any type, and affirmed in full the
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`bankruptcy court’s orders on appeal. (Id at 19-20). Beyond that, the Opinion: (i) specifically
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`affirmed the bankruptcy court’s finding that Appellant received a “3 7.5% interest in the income
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`steam from the copyrights” which did not include artist and producer royalties; and (ii) rejected
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`Appellant’s argument that she was a copyright owner with administration rights because that
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`argument ignored “controlling language” in the Settlement Agreement and copyright assignments,
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`and failed to identify any basis under which the Court could re—write that controlling language.
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`(Id. at 17—18, 11~13). No reasonable person can interpret the Court’s Opinion as reversing the
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`bankruptcy court’s finding that Appellant received only an income stream from the Copyrights
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`and not ownership of the Copyrights.
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`(See Doc. 10-2 at 10, 11, 16-18). Thus, no “clarification”
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`of this Court’s Opinion is necessary.
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`Finally, it must be noted that nearly half of “clarification” portion of the Motion is used
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`informing the Court that Appellant has passed away, that she was survived by minor children, that
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`the bankruptcy estate is having difficulty obtaining an advance or loan secured by Appellant’s
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`income stream because it does not include administration rights, and that the bankruptcy estate and
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`the newly-formed probate estate could avoid “significant adverse tax consequences” if this Court
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`were to reverse its decision Via clarification.
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`(Motion at 1-2). Stated simply, this information is
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`entirely irrelevant and should not have been included. Appellees respectfully request that the Court
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`disregard this extraneous information in ruling on the portion of the Motion captioned as a “Motion
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`for Clarification.”
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`WHEREFORE, Appellee, Bernard Edwards Company, LLC, respectfully requests that the
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`Court enter an order denying the portion of Appellant’s Motion captioned as a “Motion for
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`Clarification,” and granting all other relief that is appropriate under the circumstances.
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`Dated this 29th day of November, 2017.
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`S/Jimmy D. Parrish
`Jimmy D. Parrish
`Florida Bar No. 0526401
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`Email: jparrish@bakerlaw.com
`Brandon T. Crossland
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`Florida Bar No. 0021542
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`Email: bcrossland@baker1aw.com
`Andrew V. Layden
`Florida Bar No. 86070
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`Email: alayden@bakerlaw.com
`BAKER & HOSTETLER LLP
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`2300 SunTrust Center
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`200 South Orange Avenue
`Post Office Box 112
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`Orlando, Florida 32802
`Telephone: 407-649-4000
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`

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`Case 8:17-cv-00328-CEH Document 29 Filed 11/29/17 Page 6 of 6 PageID 19634
`Case 8:17—cv-00328—CEH Document 29 Filed 11/29/17 Page 6 of 6 PageID 19634
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`Telecopier: 407-841-0168
`Attorneys for Appellees
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on November 29, 2017, a true and correct copy of the foregoing
`has been filed with the Court using the Court’s CM/ECF system, which will send notice of such
`filing to all registered CM/ECF recipients.
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`6117123058
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`/s/ Jimmy D. Parrish
`Jimmy D. Parrish, Esq.
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