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KAPILA, FF Fund Liquidating\nTrust and F5 Liquidating Trust,\n\n      Defendants-Appellees.\n_______________________________________/\n\n\n                                                    ORDER\n\n        THIS CAUSE comes before the Court on the Motion to Dismiss Appeal as Equitably Moot\n\nand for Statutory Mootness (the \u201cMotion\u201d) filed by Appellee Soneet R. Kapila, the liquidating\n\ntrustee of the FF Fund Liquidating Trust and the F5 Liquidating Trust (the \u201cTrustee\u201d). [ECF No.\n\n56]. The Court has reviewed the Motion and the record and is otherwise fully advised. For the\n\nreasons set forth below, the Motion is granted.\n\n                                               BACKGROUND\n\n        In this consolidated bankruptcy appeal, 1 Appellant Andrew Franzone (\u201cAppellant\u201d) seeks\n\nto unwind the Trustee\u2019s sale of CoreWeave Inc. (\u201cCoreWeave\u201d) shares to third-party buyers. To\n\n\n1\n This case consolidates two appeals, each from the Bankruptcy Court\u2019s February 1, 2024 Order Denying Emergency\nMotion to Reverse Transactions Related to CoreWeave, Inc. Appellant brought the first appeal individually. Appellant\nbrought the second appeal derivatively on behalf of the FF Fund Liquidating Trust and the F5 Liquidating Trust.\n\fCase 1:24-cv-21430-DPG               Document 71 Entered on FLSD Docket 03/14/25 11:22:57\n                                            Page 2 of 9\n\n\n\nprovide context as to why it is effectively impossible to undo the sale, the Court provides a brief\n\nrecitation of the bankruptcy proceedings.\n\nI.      The Confirmation Order and Liquidating Trust Alternative\n\n        This appeal stems from two jointly administered Chapter 11 bankruptcy cases filed by FF\n\nFund I, L.P. (\u201cFF Fund I\u201d) and F5 Business Investment Partners, LLC (\u201cF5\u201d) (the \u201cDebtors\u201d). On\n\nFebruary 1, 2021, the Debtors filed Amended Plans sponsored by Appellant and FF Fund\n\nManagement, FF Fund I\u2019s general partner (the \u201cAmended Plans\u201d). Article V of the Amended Plans\n\nproposed reorganizations dependent on a guarantee or exit financing from FF Fund Management.\n\nArticle VI of the Amended Plans provided for a \u201cLiquidating Trust Alternative\u201d in the event FF\n\nFund Management could not provide financial support. In the week before the confirmation\n\nhearing, Appellant was arrested on federal securities and wire fraud charges and the Securities and\n\nExchange Commission brought a civil action against Appellant and FF Fund Management for\n\nsecurities fraud\u2014leaving FF Fund Management unable to provide the requisite financial support.2\n\nAs a result, the Debtors gave notice of their intent to proceed under the Liquidating Trust\n\nAlternative and filed the Confirmed Plans. On June 3, 2021, the Bankruptcy Court entered the\n\nConfirmation Order confirming the Confirmed Plans and implementing the Liquidating Trust\n\nAlternative. A.435. 3 The Confirmation Order was not appealed.\n\n\n\nAppellant, however, cannot bring an appeal derivatively on behalf of the FF Fund Liquidating Trust or the F5\nLiquidating Trust. See In re: FF Fund I, L.P., Case No. 24-cv-23670-CMA [ECF No. 5] (\u201c[B]ecause Appellant is not\nan attorney, he is unable to represent the ownership classes derivatively on behalf of the FF Fund Liquidating Trust\nand the F5 Liquidating Trust.\u201d (internal citation omitted); Ofer v. Roher, No. 24-cv-22349, 2024 WL 3650383, at *2\n(S.D. Fla. Jul. 9, 2024) (holding \u201cthat the rule restricting a corporation from appearing pro se applies equally to\nderivative suits . . . .\u201d) (internal quotation and citation omitted).\n2\n  Both matters remain pending in the Southern District of New York. See United States v. Franzone, Case No. 21-cr-\n00446-VSB (S.D.N.Y.); Securities & Exchange Comm\u2019n v. Franzone et al., Case No. 21-cv-03619-CM (S.D.N.Y.).\n3\n  Unless otherwise noted, references to the bankruptcy record, shall be to Appellant\u2019s Appendix, [ECF No. 44-1], in\nthe form A.(Page Number) or Appellee\u2019s Supplemental Appendix, [ECF No. 49-1], in the form Supp.A.(Page\nNumber).\n\n                                                         2\n\fCase 1:24-cv-21430-DPG           Document 71 Entered on FLSD Docket 03/14/25 11:22:57\n                                        Page 3 of 9\n\n\n\n         The Confirmed Plans and the Liquidating Trust Agreement (\u201cLTA\u201d) attached to both Plans\n\ngave the Trustee the powers to \u201chold, manage, dispose of, sell, convert to Cash, and distribute the\n\nLiquidating Trust Assets,\u201d and, in his \u201creasonable business judgment, to . . . liquidate, dispose of,\n\nand/or abandon the Liquidating Trust Assets . . .\u201d A.307 \u00b6 E. The Confirmation Order authorizes\n\nthe Trustee to \u201cdispose of property . . . (except as otherwise set forth in the Second Amended\n\nPlans) without supervision or approval by the Court.\u201d A.455 \u00a7 8. Moreover, the LTA gives the\n\nTrustee the rights to (1) \u201ctransfer, assign, or otherwise dispose of all or any part of the Assets[,]\u201d\n\nid. at 339 \u00a7 5.1; (2) \u201c[t]o determine when or on what terms Assets should be sold, liquidated or\n\notherwise disposed of[,]\u201d A.346 \u00a7 7.2(a); and (3) subject to the Confirmed Plans, \u201cexercise all\n\nrights and powers granted to [him] without need of further Bankruptcy Court approval[,]\u201d A.337\n\n\u00a7 2.5.\n\nII.      The CoreWeave Sale\n\n         On the effective date of the Confirmed Plans, the Liquidating Trusts held illiquid interests\n\nin 47 privately held entities and unsecured notes from start-up entities and real estate partnerships.\n\nOne of these investments was 250,000 preferred shares in CoreWeave that the Debtors had\n\nobtained at $1.00/share.\n\n         By mid-2023, the Estate was administratively insolvent. However, in late-October 2023,\n\nthe Trustee had the opportunity to sell, as part of a third-party tender offer, the CoreWeave stock\n\nfor over $309/share. As a result, there were proceeds to fully pay creditors and administrative\n\nexpenses and distribute funds to beneficiaries at 2 to 3 times their total investment. Accordingly,\n\non November 14, 2023, the Trustee filed an Expedited Motion for Authority to Accept Tender\n\nOffer for Preferred Shares in CoreWeave, Inc. and Liquidate Some or All of Such Preferred Shares\n\n\n\n\n                                                  3\n\fCase 1:24-cv-21430-DPG                  Document 71 Entered on FLSD Docket 03/14/25 11:22:57\n                                               Page 4 of 9\n\n\n\nPursuant to 11 U.S.C. 363 (the \u201cApproval Motion\u201d). 4 A.466. On November 17, 2023, the\n\nBankruptcy Court granted the Approval Motion (the \u201cCoreWeave Sale Order\u201d). A.532. The\n\nTrustee then sold to third-party buyers 182,245 CoreWeave preferred shares for $55.24 million. 5\n\n         On December 29, 2023, Appellant filed an Emergency Motion to Reverse Transactions\n\nRelated to CoreWeave, Inc., requesting that the CoreWeave Sale Order \u201cbe reversed for bath faith\n\nand abuse of discretion\u201d by the Trustee (the \u201cReversal Motion\u201d). A.737. On January 16, 2024,\n\nwith Appellant in attendance, the Bankruptcy Court held a hearing on the Reversal Motion. The\n\nBankruptcy Court denied the Reversal Motion (the \u201cFebruary 1 Order\u201d). A.913. Appellant did not\n\nseek a stay of the February 1 Order.\n\n         On July 16, 2024, the Trustee filed a Motion (I) for Authority to Make a Distribution in\n\nFull to Holders of Allowed Claims, (II) for Authority to Make an Interim Distribution to Holders\n\nof Allowed Limited Partner Equity Interests, (III) to Establish Reserves for Disputed Claims, and\n\n(IV) for Related Relief (the \u201cDistribution Motion\u201d). [Bankr. ECF No. 726]. Though Appellant\n\nobjected to some aspects of the Distribution Motion, in his response he \u201crespectfully request[ed]\n\nthat the Distribution Motion [be] granted\u201d subject to limitations. [Bankr. ECF No. 749 \u00b6 61]. On\n\nAugust 26, 2024, following a hearing, the Bankruptcy Court granted the Distribution Motion and\n\nauthorized the Trustee to distribute to creditors and beneficial interest holders up to $41 million of\n\nthe CoreWeave Sale Proceeds (the \u201cDistribution Order\u201d). [Bankr. ECF No. 757]. Appellant did\n\n\n4\n The Trustee filed the Approval Motion under seal because of a non-disclosure agreement with CoreWeave and his\nconcern that a public filing would enable third parties to obtain the shares at a discount to the detriment of beneficiaries.\nAppellant filed multiple appeals based on the sealed filings in the bankruptcy proceedings, most of which have been\nvoluntarily dismissed. However, despite attempting to raise issues regarding the sealed filings in his initial brief,\nAppellant\u2019s Rule 8009 Statements for the consolidated appeals only identify one issue for appeal: \u201cwhether the\nbankruptcy court properly denied the emergency motion to reverse the transactions related to CoreWeave Inc.\u201d\nSupp.A. 165-66.\n5\n  The November 2023 tender offer was oversubscribed\u2014meaning there were more CoreWeave shares tendered for\nsale than the third-party buyers agreed to buy\u2014so the Trustee was only able to sell 182,245 of the 250,000 CoreWeave\npreferred shares.\n\n                                                             4\n\fCase 1:24-cv-21430-DPG               Document 71 Entered on FLSD Docket 03/14/25 11:22:57\n                                            Page 5 of 9\n\n\n\nnot seek a stay of the Distribution Order or to otherwise restrict the Trustee\u2019s use or distribution\n\nof the CoreWeave Sale Proceeds.\n\n         On September 9, 2024, Appellant moved for leave to appeal the Distribution Order (the\n\n\u201cDistribution Appeal\u201d). See Case No. 24-cv-23485. In the Distribution Appeal, Appellant sought\n\nto have the Trustee distribute $32.689 million of the CoreWeave Sale Proceeds to certain creditors\n\nand beneficial interest holders. Appellant\u2019s requested relief in the Distribution Appeal\u2014to\n\ndistribute over $32 million of the CoreWeave Sale proceeds\u2014was inconsistent with the relief\n\nrequested here\u2014to unwind the CoreWeave Sale entirely. On February 25, 2025, Appellant\n\nvoluntarily dismissed the Distribution Appeal. See Case No. 24-cv-23485 [ECF Nos. 16 and 22].\n\n         Between October 16 and November 6, 2024, in accordance with the Distribution Order,\n\nthe Trustee distributed over $19.56 million to creditors and 119 beneficial interest holders,\n\nincluding Appellant and his family members. [ECF No. 56 \u00b6\u00b6 16-18]. 6\n\nIII.     This Appeal\n\n         On February 15, 2024, Appellant moved for leave to appeal the February 1 Order, resulting\n\nin the instant case. On April 30, 2024, Appellant, derivatively on behalf of the FF Fund Liquidating\n\nTrust and the F5 Liquidating Trust, filed a second notice of appeal of the February 1 Order. That\n\ncase was consolidated with this action. Appellant raises the same issue in the consolidated appeals:\n\n\u201cwhether the bankruptcy court properly denied the emergency motion to reverse the transactions\n\nrelated to Coreweave.\u201d Supp.A. 165-66.\n\n         On December 3, 2024, the Trustee filed the instant motion, arguing this appeal is both\n\nequitably and statutorily moot. The Court agrees.\n\n\n\n6\n The only other related appeal pending before the Court is Appellant\u2019s appeal of the Bankruptcy Court\u2019s decision to\nseal documents related to an order granting the Trustee authority to participate in a second tender offer of CoreWeave\nshares. See Case No. 24-cv-24454.\n\n                                                          5\n\fCase 1:24-cv-21430-DPG          Document 71 Entered on FLSD Docket 03/14/25 11:22:57\n                                       Page 6 of 9\n\n\n\n                                          DISCUSSION\n\nI.     This Appeal is Equitably Moot\n\n       \u201cIn bankruptcy, mootness comes in a variety of flavors: constitutional, equitable, and\n\nstatutory.\u201d In re Stanford, 17 F.4th 116, 121 (11th Cir. 2021) (citation omitted). \u201cEquitable\n\nmootness is, as the name suggests, a doctrine of equity that moots an appeal because of (1) the\n\neffects of a reversal on third parties who have relied on a bankruptcy court\u2019s order or (2) the\n\ncomplexity and difficulty of unwinding a contested transaction.\u201d Id. The doctrine \u201cpermits courts\n\nsitting in bankruptcy appeals to dismiss challenges (typically to confirmation plans) when effective\n\nrelief would be impossible.\u201d In re Bayou Shores SNF, LLC, 828 F.3d 1297, 1328 (11th Cir. 2016).\n\n\u201cCentral to a finding of mootness is a determination by an appellate court that it cannot grant\n\neffective judicial relief.\u201d In re Nica Holdings, Inc., 810 F.3d 781, 786 (11th Cir. 2015) (quoting\n\nFirst Union Real Est. Equity & Mortg. Invs. v. Club Assocs. (In re Club Assocs.), 956 F.2d 1065,\n\n1069 (11th Cir. 1992)). \u201cThe equitable mootness doctrine seeks to avoid an appellate decision that\n\nwould knock the props out from under the authorization for every transaction that has taken place\n\nand create an unmanageable, uncontrollable situation for the Bankruptcy Court.\u201d In re Bayou\n\nShores SNF, LLC, 828 F.3d at 1328 (citation and internal quotation marks omitted). \u201cUltimately,\n\nthe decision whether to unscramble the eggs turns on what is practical and equitable.\u201d In re Baker\n\n& Drake, 35 F.3d 1348, 1352 (9th Cir. 1994).\n\n       \u201cDeciding whether a case is equitably moot requires a multifactor analysis . . . . No single\n\nfactor is determinative, and a court must consider all the circumstances of the case to decide\n\nwhether it can grant effective relief.\u201d In re Nica Holdings, Inc., 810 F.3d at 786\u201387 (citations and\n\ninternal quotation marks omitted). Factors a court will consider include \u201cwhether the appellant has\n\n\n\n\n                                                 6\n\fCase 1:24-cv-21430-DPG                Document 71 Entered on FLSD Docket 03/14/25 11:22:57\n                                             Page 7 of 9\n\n\n\nobtained a stay pending appeal, whether [the transaction] 7 has been substantially consummated,\n\nand whether third parties\u2019 rights or the debtor\u2019s ability to successfully reorganize would be\n\nadversely affected by granting the relief sought by the appellant.\u201d In re Hazan, 10 F.4th 1244,\n\n1252 (11th Cir. 2021). \u201cThe facts will weigh in favor of finding equitable mootness when allowing\n\nan appeal to go forward will impinge upon actions taken to one\u2019s detriment in good faith reliance\n\non a final and unstayed judgment.\u201d Id. (citation omitted).\n\n         The Court finds that the doctrine of equitable mootness warrants granting the Motion and\n\ndismissing the instant appeal. First, Appellant did not request a stay of the CoreWeave Sale Order,\n\nthe February 1 Order, or the Distribution Order. As a result, the Trustee proceeded with the\n\nbankruptcy court authorized sale and distribution. See In re: JMC Memphis, LLC, 655 F. App\u2019x\n\n802, 805 (11th Cir. 2016) (finding appellant\u2019s failure to request a stay \u201csignificant\u201d in its decision\n\nto affirm dismissal of an appeal based on the doctrine of equitable mootness); In re Matos, 790\n\nF.2d 864 (11th Cir. 1986) (finding appeal of bankruptcy court order permitting creditor to foreclose\n\non property equitably moot where debtor failed to obtain stay and the property had already been\n\nsold); Bennett v. Jefferson County, Alabama, 899 F.3d 1240, 1252 (11th Cir. 2018) (finding appeal\n\nequitably moot where the debtor and others had \u201ctaken significant and largely irreversible steps in\n\nreliance on the unstayed plan confirmed by the bankruptcy court.\u201d). Therefore, Appellant\u2019s failure\n\nto timely obtain a stay of the CoreWeave Sale Order, the February 1 Order, or the Distribution\n\nOrder warrants finding this appeal equitably moot.\n\n\n\n7\n Though many cases address whether the plan has been substantially consummated, see e.g. In re Hazan, 10 F. 4th at\n1252, courts have also applied the doctrine to appeals relating to a sale of assets. See Belkova v. PNC Bank, N.A., No.\n22-13786, 2024 WL 3069143, at *2 (11th Cir. June 20, 2024) (finding review of final judgment in bankruptcy\nadversary action allowing bank to foreclose on property equitably moot); Clear Channel Outdoor, Inc. v. Knupfer (In\nre PW, LLC), 391 B.R. 25, 33 (9th Cir. BAP 2008) (finding review of the sale of certain assets sold by a trustee\nequitably moot); Dominion Res. Black Warrior Tr. v. Walter Energy, Inc., No. 2:16-CV-00058-RDP, 2016 WL\n3924227, at *4 (N.D. Ala. July 21, 2016) (finding review of rejection and sale orders equitably moot).\n\n\n                                                          7\n\fCase 1:24-cv-21430-DPG           Document 71 Entered on FLSD Docket 03/14/25 11:22:57\n                                        Page 8 of 9\n\n\n\n       Beyond Appellant\u2019s failure to request a stay, the CoreWeave sale has been completed,\n\ndistribution is well underway, and the interests of third parties would be adversely affected if the\n\nCourt were to grant the relief Appellant requests. Indeed, \u201c[u]nwinding the consummated [sale and\n\ndistribution orders] would result in precisely the nightmarish situation that the doctrine of equitable\n\nmootness exists to avoid.\u201d Musilino v. Ala. Marble Co., Inc., 534 B.R. 820, 829-30 (N.D. Ala.\n\n2015) (internal quotation omitted). CoreWeave, the third-party buyers, and beneficial interest\n\nholders have all altered their positions based on the Bankruptcy Court\u2019s Orders. The third-party\n\nbuyers paid the Trustee $55.24 million for the CoreWeave preferred stock owned by the\n\nLiquidating Trust rather than paying that money to other willing sellers who tendered their\n\nCoreWeave shares. To unwind that transaction, those third-party buyers\u2014who are not before this\n\nCourt\u2014would need to (1) still hold their shares and (2) willingly return those shares to the Trustee.\n\nSee In re PW, LLC., 391 B.R. 25, 34 (9th Cir. BAP 2008) (finding appeal equitably moot where\n\n\u201cthere [were] many subsequent actions that were relied on by third parties that are not a party to\n\n[the] appeal.\u201d); Stanford, 17 F. 4th at 121 (\u201c[i]f a third party has altered its position in reliance on\n\na bankruptcy court\u2019s order or a transaction is simply too complex or difficult to unwind, an appeal\n\nmay be moot as a matter of equity.\u201d). And, complicating any undoing of the CoreWeave Sale is\n\nthe $19.4 million that the Trustee has already distributed to 110 creditors and interest holders,\n\nincluding Appellant and his family. In short, it is simply not practical, equitable, or, frankly,\n\npossible, to \u201cunscramble the eggs\u201d and reverse the CoreWeave sale. In re Baker & Drake, 35 F.3d\n\nat 1352. Accordingly, the Court finds that this appeal is equitably moot.\n\nII.    This Appeal is Statutorily Moot\n\n       Unlike equitable mootness, \u201c[s]tatutory mootness is not based on the impossibility or\n\ninequity of relief, but the preclusion of relief under a statute.\u201d Stanford, 17 F. 4th (11th Cir. 2021).\n\n\n\n                                                   8\n\fCase 1:24-cv-21430-DPG          Document 71 Entered on FLSD Docket 03/14/25 11:22:57\n                                       Page 9 of 9\n\n\n\nSection 363(m) of the bankruptcy code \u201cprecludes an appellate court from reversing or modifying\n\na bankruptcy court\u2019s authorization of a sale of a bankruptcy estate\u2019s property to someone who\n\n\u2018purchased . . . such property in good faith\u201d under Section 363(b) or (c) unless the sale was \u2018stayed\n\npending appeal.\u2019\u201d Id. (quoting 11 U.S.C. \u00a7 363(m)). Section 363(m) \u201cstates a flat rule governing\n\nall appeals of section 363 authorization\u2019 [and] it statutorily \u2018moots\u2019 appeals from authorizations\n\nunder Section 363(b) or (c), unless they are stayed.\u201d Id.\n\n       Here, the CoreWeave Sale Order granted the Trustee\u2019s motion for authorization under 11\n\nU.S.C. \u00a7 363(b). Appellant did not seek a stay of the CoreWeave Sale Order or the February 1\n\nOrder. As a result, Section 363(m) precludes the relief Appellant seeks in this appeal\u2014namely the\n\nreversal of the CoreWeave Sale Order. Therefore, this appeal is also statutorily moot and must be\n\ndismissed.\n\n                                         CONCLUSION\n\n       Accordingly, it is ORDERED AND ADJUDGED as follows:\n\n       1.      Appellees\u2019 Motion to Dismiss Appeal as Equitably Moot and for Statutory\n\n               Mootness, [ECF No. 56], is GRANTED;\n\n       2.      This appeal is DISMISSED;\n\n       3.      This action is CLOSED, and all pending motions are DENIED as MOOT.\n\n       DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of March, 2025.\n\n\n                                              ________________________________\n                                              DARRIN P. GAYLES\n                                              UNITED STATES DISTRICT JUDGE\n\n\n\n\n                                                 9\n\f","ocr_status":2,"date_upload":"2025-03-20T01:52:24.116664-07:00","document_number":"71","attachment_number":null,"pacer_doc_id":"051028228421","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Order on Motion to Dismiss","acms_document_guid":""}],"date_created":"2025-03-14T08:49:27.206330-07:00","date_modified":"2026-01-29T16:32:03.919391-08:00","date_filed":"2025-03-14","time_filed":"11:22:57","entry_number":71,"recap_sequence_number":"2025-03-14.001","pacer_sequence_number":213,"description":"ORDER granting 56 Motion to Dismiss Appeal as Equitably Moot and for Statutory Mootness. Closing Case. Signed by Judge Darrin P. Gayles on 3/14/2025. See attached document for full details. (hs01) (Entered: 03/14/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/418928882/","id":418928882,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/68443815/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/432761891/","id":432761891,"tags":[],"absolute_url":"/docket/68443815/70/franzone-v-kapila/","date_created":"2025-03-11T11:28:38.043695-07:00","date_modified":"2026-01-29T16:32:03.893923-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"70","attachment_number":null,"pacer_doc_id":"051028213953","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Response to Motion","acms_document_guid":""}],"date_created":"2025-03-11T11:28:38.031693-07:00","date_modified":"2026-01-29T16:32:03.872773-08:00","date_filed":"2025-03-11","time_filed":"14:02:18","entry_number":70,"recap_sequence_number":"2025-03-11.001","pacer_sequence_number":210,"description":"RESPONSE to Motion re 69 MOTION to Expedite Ruling on Pending Dismissal Motion filed by Soneet R. Kapila. Replies due by 3/18/2025. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Blum, William) (Entered: 03/11/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/417790793/","id":417790793,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/68443815/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/431564666/","id":431564666,"tags":[],"absolute_url":"/docket/68443815/69/franzone-v-kapila/","date_created":"2025-02-27T13:10:43.727923-08:00","date_modified":"2026-01-29T16:32:03.839569-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"69","attachment_number":null,"pacer_doc_id":"051028172863","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Expedite","acms_document_guid":""}],"date_created":"2025-02-27T13:10:43.703158-08:00","date_modified":"2026-01-29T16:32:03.798246-08:00","date_filed":"2025-02-27","time_filed":"15:25:15","entry_number":69,"recap_sequence_number":"2025-02-27.001","pacer_sequence_number":208,"description":"MOTION to Expedite a Ruling on the Pending Dismissal Motion DE 56, 64 - 65 by Andrew Franzone. 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Court Case Nos.:\n  and derivatively on behalf of the FF Fund         19-22744-BKC (LMI)\n  Liquidating Trust and the F5 Liquidating Trust,   20-10996-BKC (LMI)\n\n         Appellant,                                 Jointly Administered Under\n  v.                                                No. 19-22744-BKC (LMI)\n\n  SONEET R. KAPILA, et al.,\n\n       Appellee.\n  _____________________________________/\n\n          TRUSTEE\u2019S REPLY IN SUPPORT OF MOTION TO DISMISS\n             APPEAL [DE 56] AND INCORPORATED MOTION\n                 TO STRIKE APPELLANT\u2019S RESPONSE\n\n         Appellee Soneet R. Kapila (\u201cTrustee\u201d), liquidating trustee of the FF Fund\n\n  Liquidating Trust and the F5 Liquidating Trust, files this Reply in support of his\n\n  Motion to Dismiss Appeal [DE 56] (the \u201cMootness Motion\u201d) to address the points\n\n  raised in the Response [DE 64] filed by Appellant Andrew Franzone (\u201cAppellant\u201d\n\n  or \u201cFranzone\u201d). The Trustee also asks that the Response be stricken for non-\n\n  compliance with Bankruptcy Rule 8013(f)(3).\n\n       1. The Response does not comply with the Bankruptcy Rules and should be\n          stricken.\n\n         Appellant\u2019s rambling Response violates Rule 8013(f)(3), which limits a\n\n  response to a motion to 5,200 words. Appellant fails to include the required\n\n  certification, but a word-count of the Response converted to Microsoft WORD\u00ae\n                                          1\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 2 of 13\n\n\n\n\n  shows over 6,500 words, more than 1,300 words (or 25%) above the word limit for\n\n  a response. Therefore, the Response should be stricken.\n\n     2. The Response fails to address the issues raised by the Mootness Motion.\n\n        Beyond violating the applicable rules, the Response consists largely of\n\n  irrelevant screeds unrelated to the issues raised in the Mootness Motion that suggest\n\n  Appellant does not understand the equitable and statutory mootness principles\n\n  requiring dismissal. Appellant first incongruously claims the events mooting this\n\n  appeal were both \u201cwell established\u201d in December 2023 or February 2024 and were\n\n  \u201cself-created\u201d since then. DE 64 p.2. But Appellant ignores the significance of the\n\n  Trustee\u2019s Bankruptcy Court-approved distribution in October 2024 of $19.41\n\n  million of CoreWeave Sale Proceeds. That distribution to beneficial interest holders\n\n  made it impossible for this Court to grant the relief sought here\u2014an order\n\n  \u201creversing\u201d the CoreWeave Sale that would require the Trustee to return all $55.24\n\n  million CoreWeave Sale Proceeds the \u201cThird Party Purchasers\u201d paid the Trustee in\n\n  November 2023. Appellant acknowledges he never sought to stay either the\n\n  Bankruptcy Court\u2019s February 1 Order or the Distribution Order authorizing the\n\n  Trustee to distribute up to $41 million of CoreWeave Sale Proceeds. Thus,\n\n  Appellant\u2019s Response fails to address the core issue raised in the Mootness Motion.\n\n        Appellant instead whines that the sealing of documents in November 2023\n\n  somehow prevented him from moving to stay the February 1 Order. Id. pp.9-10. But\n\n                                           2\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 3 of 13\n\n\n\n\n  those documents were unsealed in December 2023, more than six weeks before any\n\n  stay of the February 1 Order would have been filed. ECF No. 648. Appellant then\n\n  glosses over his failure to seek a stay of the Distribution Order, and he has no\n\n  \u201csealing\u201d excuse for that because no documents or proceedings regarding the\n\n  Trustee\u2019s Distribution Motion were sealed. Appellant cannot rebut the reality that he\n\n  failed to even try to stay the orders upon which the Trustee and other parties have\n\n  acted and relied; rather, he sat idle as subsequent events rendered this appeal\n\n  equitably moot.\n\n        The undersigned admittedly cannot make sense of Appellant\u2019s tortured\n\n  analogy to and discussion of \u201cforum non conveniens\u201d at pages 2-4 of the Response;\n\n  nor does the Trustee see how Appellant\u2019s later appeals from various non-final orders\n\n  are relevant to the Mootness Motion. Likewise, Appellant\u2019s difficult-to-follow\n\n  lectures about how tender offers work, his unsubstantiated \u201chistory\u201d of CoreWeave\n\n  \u201cbuying shares of CoreWeave at a discount to their \u2018fair value\u2019 from unsuspecting\n\n  parties like Appellee,\u201d or his mud-slinging about CoreWeave setting \u201ca \u2018rigged\u2019\n\n  price\u201d for its November 2024 tender offer have nothing to do with the Mootness\n\n  Motion. DE 64 p.13. So too Appellant\u2019s diatribe about bad faith, his gratuitous lay\n\n  opinion about \u201cfair value\u201d of the CoreWeave shares, and his absurd suggestion that\n\n  it was \u201cbad faith\u201d to suggest in November 2023 \u201cthat $77 million was \u2018fair value\u2019\n\n  for\u201d the 250,000 shares [id. pp.10, 13-14, 16] (even if tangentially addressing the\n\n                                           3\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 4 of 13\n\n\n\n\n  merits of the appeal) are wasted effort in \u201cresponse\u201d to the Mootness Motion.\n\n  Appellant\u2019s \u201cfair value\u201d complaint is specious; he cites no record evidence that any\n\n  other offer to Preferred Share owners existed, and the oversubscribed tender offer\n\n  means there were more willing sellers than buyers in November 2023. Indeed, most\n\n  of pages 9-16 of the Response are immaterial blather having nothing to do with the\n\n  issues raised by the Mootness Motion. Still, perhaps inevitably, Appellant cannot\n\n  resist a beside-the-point swipe at Gregory Hersch, his former close friend and\n\n  financial advisor. Id. p.13.\n\n     3. Appellant\u2019s argument that the relief sought will not affect third parties not\n        before the Court is absurd.\n\n        Franzone surely knows his \u201cno third parties\u201d argument at pages 15-16 is\n\n  absurd. First, CoreWeave itself is a \u201cthird-party\u201d that has never been before the\n\n  Bankruptcy Court. The Response itself acknowledges that the 2023 tender offer was\n\n  funded by new investors, so CoreWeave does not own the CoreWeave Shares sold\n\n  in November 2023; indeed, Appellant specifically refers to the \u201cThird Party\n\n  Purchasers\u201d that acquired the Trustee\u2019s CoreWeave shares, yet he shamelessly tells\n\n  this Court: \u201cno \u2018third parties\u2019 would be involved in the $55 million Reversal\n\n  Transaction.\u201d Id. pp.11, 15. But the relief sought by Appellant\u2014reversing of the\n\n  CoreWeave Sale\u2014necessarily would require the Court to order those non-party\n\n  \u201cThird Party Purchasers\u201d to return the shares bought in November 2023, for which\n\n  the Trustee would have to refund $55.24 million, requiring the Trustee to claw back\n\n                                           4\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 5 of 13\n\n\n\n\n  the $19.41 million from over 100 beneficial interest owners. Many beneficiaries\n\n  would then have to amend their 2023 federal tax returns to adjust the income they\n\n  reported from the 2023 CoreWeave Sale. Litigation would be inevitable. The\n\n  cascading chaos \u201cwould knock the props out from under the authorization for every\n\n  transaction that has taken place [in reliance on the CoreWeave Stock Sale] and create\n\n  an unmanageable, uncontrollable situation for the Bankruptcy Court,\u201d which is\n\n  precisely what the equitable mootness doctrine \u201cseeks to avoid.\u201d Fla. Agency for\n\n  Health Care Admin. v. Bayou Shores SNF, LLC (In re Bayou Shores SNF, LLC), 828\n\n  F.3d 1297, 1328 (11th Cir. 2016).\n\n        Franzone admits that the Trustee explained to the Bankruptcy Court that the\n\n  tender offer was funded by third parties and not CoreWeave. DE 64 pp.10-13. In\n\n  fact, the CoreWeave Sale Order authorized the Trustee \u201cto liquidate any or all of the\n\n  CoreWeave Preferred Shares\u201d by tendering them \u201cto CoreWeave\u2019s third party\n\n  investor under the terms of the tender offer.\u201d A.533-34. And, on December 4, 2023,\n\n  CoreWeave announced publicly that \u201cit ha[d] closed a minority investment of $642\n\n  million led by Fidelity Management & Research Company, with additional\n\n  participation from [six other identified investment firms] and others.\u201d1 Those\n\n  investors funded the $642 million in share purchases that included the Trustee\u2019s\n\n\n  1\n   See https://www.prnewswire.com/news-releases/coreweave-announces-secondary-\n  sale-of-642-million-302004604.html (last reviewed Jan. 7, 2025).\n\n                                           5\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 6 of 13\n\n\n\n\n  $55.24 million in Coreweave Sale Proceeds, and all of the named parties \u201cand\n\n  others\u201d\u2014none of whom are before this Court or the Bankruptcy Court\u2014would be\n\n  affected by any order granting the relief Appellant seeks on this appeal. Equitable\n\n  mootness applies particularly \u201cwhen the appellant has failed to obtain a stay and\n\n  [although relief is possible] the ensuing transactions are too \u2018complex and difficult\n\n  to unwind.\u2019\u201d Clear Channel Outdoor, Inc v. Knupfer (In re PW, LLC), 391 B.R. 25,\n\n  33 (9th Cir. BAP 2008), cited favorably in Reynolds v. Servisfirst Bank (In re\n\n  Stanford), 17 F.4th 116, 121 (11th Cir. 2021).\n\n     4. Appellant\u2019s proclivity to object to everything and then appeal is prejudicing\n        the beneficial interest holders whose interest he invokes; he is seeking only\n        to further his personal interests at the expense of the investors he scammed.\n\n        Appellant\u2019s argument at page 10 of the Response that the CoreWeave Sale\n\n  Order was \u201cnot fully consummated\u201d is also nonsense. The Sale Order [A.532]\n\n  explained that the Trustee sought leave to sell \u201csome or all of\u201d the CoreWeave\n\n  Shares, and that the Trustee was \u201cauthorized to liquidate any or all of the [250,000]\n\n  CoreWeave Preferred Shares at the agreed tender offer price . . . under the terms of\n\n  the tender offer and related documents.\u201d A.533-34. The Trustee did exactly that,\n\n  tendering 250,000 shares but selling only 182,245, the amount possible \u201cunder the\n\n  terms of the tender offer.\u201d A.466, 472-73 \u00b6\u00b616-18; A.518-20. The Sale Order did\n\n  not, as Appellant would pretend, require the Trustee to sell 250,000 shares, because\n\n  the Trustee informed the Bankruptcy Court that he might not be able to sell all such\n\n\n                                           6\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 7 of 13\n\n\n\n\n  shares. See DE 64 p.10. The CoreWeave Sale Order was fully consummated, no\n\n  matter how badly Appellant twists facts or mischaracterizes the Sale Order language.\n\n        Appellant\u2019s suggestion at pages 3-5 that the Dismissal Motion was filed too\n\n  late is factually and legally wrong, and it too shows Appellant does not understand\n\n  equitable mootness. The Trustee\u2019s court-approved distribution of $19.41 million of\n\n  CoreWeave Sale Proceeds (part of $41 million authorized for distribution) occurred\n\n  in October-November 2024, not \u201c7, or 11, or possibly even 18 months\u201d before the\n\n  Mootness Motion as Appellant hyperbolizes. DE 64 p.3. Appellant\u2019s complaint that\n\n  the Trustee did not file the Mootness Motion in late-July 2024 (when reserving the\n\n  right to do so in a filing) is especially rich, given how thoroughly Appellant had\n\n  mucked up this matter by filing two motions [DE 6, 16] promising for months he\n\n  was pursuing counsel through the Court\u2019s Volunteer Attorney Program (but never\n\n  doing so) and filing multiple motions for extensions, to stay, or adjourn proceedings\n\n  [DE 17, 20, 28, 33, 37] including a motion \u201cto Have Options on Retaining Counsel\n\n  and Filing of Briefing Papers\u201d [DE 25]. The Trustee meanwhile has diligently\n\n  pursued matters advancing the beneficial interest holders\u2019 interests in stark contrast\n\n  to Franzone\u2019s incessant litigation campaign that has delayed further distributions and\n\n  increased the Liquidating Trust\u2019s costs. Indeed, the Trustee\u2019s Distribution Motion\n\n  was filed on July 16, 2024 [ECF No. 726], two weeks before the \u201creservation of\n\n  rights\u201d that agitates Appellant. The distribution that firmly establishes \u201cequitable\n\n                                            7\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 8 of 13\n\n\n\n\n  mootness\u201d had not yet occurred, although Appellant knew it was planned. Notably,\n\n  Appellant did not object at the August 20, 2024 hearing to the distribution of about\n\n  $33 million of CoreWeave Sale Proceeds, when he surely knew that made\n\n  impossible the relief he now seeks requiring the Trustee to repay all $55.4 million\n\n  to the \u201cThird Party Purchasers.\u201d\n\n        Although Appellant wanders aimlessly off-topic for pages at a time, he returns\n\n  to the timing of the Distribution Motion to make a narcissistic and outrageous\n\n  argument that the Trustee proposed to distribute $41 million of CoreWeave Sale\n\n  Proceeds just to be able to \u201cuse the equitable and statutory mootness arguments\u201d\n\n  against Appellant. See DE 64 p.17. Frankly, it is sad if Franzone actually believes\n\n  the Trustee, Trustee\u2019s counsel, and the Court fixate on him the way Franzone\n\n  obsesses about Gregory Hersch. But it is outrageous that Franzone\u2014an indicted\n\n  criminal defendant facing a host of SEC civil enforcement charges\u2014suggests the\n\n  Trustee, who has had a distinguished career as an advisor and fiduciary in hundreds\n\n  if not thousands of distressed situations, would make a distribution for any reason\n\n  other than to further the interests of beneficial interest holders. That distribution was\n\n  the first payment to the interest holders that Appellant ripped off almost ten years\n\n  ago. While Franzone\u2019s improper, ill-advised, and often frivolous filings require\n\n  responses, his antics do not drive the Trustee\u2019s fiduciary decision-making. Indeed,\n\n  the Trustee would have been able to distribute more than $19.41 million had\n\n                                             8\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 9 of 13\n\n\n\n\n  Franzone not filed this appeal and sought leave to appeal the Distribution Order.\n\n  Notably, no other party has appealed any order related to CoreWeave or objected to\n\n  the distribution of the CoreWeave Sale Proceeds. The unfortunate reality is that\n\n  Franzone\u2019s quixotic effort to advance his personal interests vis-\u00e0-vis the Trustee is\n\n  holding up a much more substantial return of funds to the beneficial interest holders\n\n  Appellant pretends to care about. In truth, Franzone is victimizing those interest\n\n  holders a second time.\n\n     5. Appellant\u2019s position on other appeals concedes that this appeal is equitably\n        moot.\n\n        Appellant\u2019s actions surrounding the August 23, 2024, Distribution Order\n\n  [ECF 757] approving a distribution of up to $41 million expose the hypocrisy in the\n\n  Response. Specifically, Appellant first told the Bankruptcy Court he hoped nearly\n\n  all $41 million would be approved, but he then sought leave to appeal the\n\n  Distribution Order (without seeking a stay pending appeal). DE 1, Case No. 24-CV-\n\n  23486-DPG. To the contrary, Appellant\u2019s motion for leave to appeal tells this Court\n\n  to order the Trustee to distribute at least $13 million more of CoreWeave Sale\n\n  Proceeds\u2014the same funds that Franzone seeks on this appeal to have the Trustee\n\n  repay to the \u201cThird Party Purchasers\u201d that funded the CoreWeave Sale Proceeds paid\n\n  to the Trustee in November 2023. Id. p.2 (requesting that the Trustee be \u201cdirected,\n\n  to make interim Distributions . . . of $32,465,479.00\u201d). So, in Case No. 24-CV-\n\n  23485, Appellant is seeking an order requiring the Trustee to distribute to beneficial\n\n                                            9\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 10 of 13\n\n\n\n\n   interest holders (including himself) $32.446 million of CoreWeave Sale Proceeds;\n\n   but in this appeal, Appellant is still asking the Court to order the Trustee to return to\n\n   the \u201cThird-Party Purchasers\u201d all $55.24 million of Coreweave Sale Proceeds. Those\n\n   two positions are impossible to reconcile; indeed, they are nonsensical. But they are\n\n   Appellant\u2019s positions.\n\n         This reality exposes Appellant\u2019s cynical and litigious strategy of opposing\n\n   whatever the Trustee does, no matter how inconsistent or frivolous arguments his\n\n   positions are. Franzone knows the Trustee has distributed $19.41 of CoreWeave Sale\n\n   Proceeds because Appellant has willingly accepted over $174,000 paid to himself,\n\n   affiliated entities, and family members. Franzone provides no record support,\n\n   because none exists, that the Trustee has $55.24 million on hand, let alone additional\n\n   amounts the \u201cThird Party Purchasers\u201d would demand as interest or damages. Surely,\n\n   Franzone knows the Trustee could not return the $55.24 million to the Third-Party\n\n   Purchasers even if this Court could possibly order the many Third-Party Purchasers\n\n   (not parties to this appeal or the underlying bankruptcy) to unwind the transactions\n\n   they consummated more than a year ago. Franzone also knows the relief he seeks\n\n   would require the Trustee to claw back the distributed funds, upsetting another 100+\n\n   transactions, which would greatly prejudice and create federal income tax\n\n   nightmares for the beneficial interest holders and inevitably lead to dozens of\n\n   lawsuits. At bottom, Franzone just does not care.\n\n                                              10\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 11 of 13\n\n\n\n\n                                       Conclusion\n\n         This appeal has become moot. Franzone did not stay the February 1 Order or\n\n   the Distribution Order, and the Trustee has consummated hundreds of transactions\n\n   that Franzone willy-nilly have cast aside. Franzone seeks to \u201creverse\u201d the 2023\n\n   CoreWeave Sale, even though Trustee has distributed $19.4 million to over 100\n\n   beneficiaries and does not have the CoreWeave Sale Proceeds to return to the Third-\n\n   Party Purchasers. Moreover, the Third-Party Purchasers are not even before this\n\n   Court and could not be compelled to rescind their purchases. And even if those\n\n   hurdles were surmountable, the Trustee would have to claw back the $19.4 million\n\n   from over 100 parties that may or may not still have the funds, and dozens of those\n\n   payees would have to amend their 2023 federal tax returns, creating personal or\n\n   corporate crises for beneficiaries already victimized by Franzone. There is no way\n\n   to grant the relief Appellant seeks without setting aside hundreds of transactions\n\n   involving many millions of dollars that cannot possibly or practically be unwound\n\n   without disrupting the underlying bankruptcy proceedings and prejudicing hundreds\n\n   of beneficiaries and third parties not before the Court. Sadly, Franzone would have\n\n   this Court turn the beneficiaries\u2019 glimmer of light that is the Trustee\u2019s actual and\n\n   potential distributions into an oncoming train. That is what the equitable mootness\n\n   doctrine seeks to avoid. This Court must dismiss this appeal.\n\n\n\n\n                                           11\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 12 of 13\n\n\n\n\n   Dated: January 14, 2025.\n\n                                          Respectfully submitted,\n\n                                          /s/ W. Barry Blum\n                                          W. Barry Blum / FBN 379301\n                                          bblum@venable.com\n                                          Paul J. Battista / FBN 884162\n                                          pjbattista@venable.com\n                                          VENABLE LLP\n                                          Attorneys for Appellee Soneet R. Kapila,\n                                          Liquidating Trustee of the Liquidating Trusts\n                                          801 Brickell Avenue, Suite 1500\n                                          Miami, Florida 33131\n                                          Telephone: (305) 349.2300\n                                          Facsimile: (305) 349-2310\n\n\n\n\n                               CERTIFICATE OF SERVICE\n\n         I HEREBY CERTIFY that on January 14, 2025, the foregoing document was\n\n   filed on the Court\u2019s CM/ECF portal to be served on all counsel and parties registered\n\n   with CM/ECF, and a copy of the file-stamped document was sent by e-mail to\n\n   Andrew Franzone at systems21@yahoo.com.\n\n\n                                                 /s/ W. Barry Blum\n                                                 W. Barry Blum\n\n\n\n\n                                            12\n\fCase 1:24-cv-21430-DPG Document 65 Entered on FLSD Docket 01/14/2025 Page 13 of 13\n\n\n\n\n                           CERTIFICATE OF COMPLIANCE\n\n         This reply brief complies with the type-volume limitation of Fed. R. Bankr.\n\n   P. 8015(a)(7)(B), as incorporated by this Court\u2019s Local Rule 87.4(f), because it\n\n   contains 2,557 words.\n\n         This brief complies with the typeface requirements of Fed. R. Bankr. P.\n\n   8015(a)(5)(A), as incorporated by this Court\u2019s Local Rule 87.4(f), because it has\n\n   been prepared with a minimum font size of 14-point Times New Roman, a\n\n   proportionally spaced typeface.\n\n                                               /s/ W. Barry Blum\n                                               W. 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