Nevada Supremes Issue Two Orders in ‘Consipio v Private’

LAS VEGAS, NV—The Supreme Court of Nevada issued two orders yesterday related to Consipio v Private, the lower court case whose judge, Elizabeth Gonzalez, issued an order Aug. 25 appointing Sureflix CEO and Private Board member Eric Johnson as receiver of all assets and subsidiaries belonging to Barcelona, Spain-based Private Media Group. In one order, the state’s highest court said the emergency petition filed with the Supreme Court of Nevada by the defendants in the case was the wrong mechanism to seek the repeal of the receivership order by Gonzalez. But rather than deny the petition outright, the court has directed the defendants to file a Notice of Appeal by 4 p.m. tomorrow. In the other order, the high court vacated oral arguments scheduled for Sept. 8 at 11:30 a.m. before the en banc court on a petition for writ of mandamus or prohibition filed by the defendants “challenging a district court order confirming a party’s right to vote certain shares of stock.” In a recent 8-K filing, Private said the hearing will "determine the validity of the lower court’s Order entered in October 2010 that Consipio Holding bv, an unsecured creditor of the Company, has the right to vote 5.6 million shares pledged by Slingsby Enterprises Ltd. in 2001 to secure a $4 million loan from Commerzbank to the Company, which shares have been claimed to be beneficially owned by Berth Milton, the owner of Slingsby Enterprises Ltd." In yesterday’s order vacating oral arguments, the court concluded, “Based on this court’s review of the supplemental petition and answer, it appears that questions exist concerning the voting at the November 10 annual meeting. Specifically, it appears that the district court has vacated the results of the voting at that meeting and further intends to order a new meeting. “Further, the supplemental documents indicate that subsequent pleadings, hearings or orders were filed and conducted that may have a bearing on petitioners’ corporate governance.” The court determed that the order being challenged “may have been rendered moot. Accordingly, the oral argument currently scheduled for September 8, 2011, is hereby vacated , and parties are directed to show cause why this petition should not be dismissed as moot. The parties shall have until Wednesday, September 7, 2011, to file simultaneous answers to the order to show cause.” The other order issued yesterday by the Nevada Supreme Court also contains a request to hurry things along. In directing the defendants to “cure the procdural irregularity” of the previous filing with the refiling of a Notice of Appeal, the court also ordered an expedited timeframe for the filing of a motion in opposition by the plaintiffs and a reply by the defense. “In light of the time constraints in this matter,” the order read, “rather than dismiss the petitio n outright, we direct the petitioner to cure the procedural irregularity by filing a notice of appeal pursuant to NRAP 3 and 4 with the district court, and transmitting a file-stamped copy to this court, no later than 4 p.m. Friday, September 2, 2011. “In addition,” it continued, “the petition shall be construed as an emergency motion for a stay. Real parties in interest shall have until 4 p.m. on Friday, September 2, 2011, to electronicelly file and serve any opposition to the motion. Petitioners shall have until 4 p.m. on Tuesday, September 6, 2011, to electronically file and serve any reply. Upon filing of the reply, this court shall expedite its resloution  of the motion.” In footnotes to the order to refile, the court noted that upon the filing of the motion of appeal, the parties will be designated as appelants and respondants, and that because the time constraints involved, “we suspend, for the opposition and reply only, any provisions in our rules that permit filing and service by other means.” It certainly looks as if the Supreme Court of Nevada wants to get a clear and complete look at the Consipio v Private issues before it by the end of next week. Monday, of course, is Labor Day, a national holiday. A request for comment to both parties did not result in any replies by post time.