EmergencyMotionforTemporaryRelief(asfiled)

NO. _____________

In the Fifth Court of Appeals Dallas, Texas

IN RE TAILWIND SPORTS CORP. AND LANCE ARMSTRONG

Relators

ORIGINAL PROCEEDING FROM CAUSE NO. DC-13-01564 116TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS

HON. TONYA PARKER PRESIDING

EMERGENCY MOTION FOR TEMPORARY RELIEF PENDING DETERMINATION OF PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE FIFTH COURT OF APPEALS:

Pursuant to Texas Rule of Appellate Procedure 52.10, Relators Tailwind

Sports Corp. (erroneously sued as Tailwind Sports, Inc.) and Lance Armstrong

(together, Relators) respectfully ask the Court to issue an order staying any

further action in the arbitration (set for March 17, 2014) that is the subject of this

original proceeding, including any discovery (specifically but not limited to a

deposition set for March 6, 2014), while this matter remains pending before the

Court. Relators respectfully show:

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I.

This emergency motion is being filed with a petition for writ of mandamus,

in which Relators complain that the trial court abused its discretion by failing to

stay an arbitration scheduled for March 17, 2014. See Exhibit A. This Courts

intervention is necessary, while the petition remains pending, to prevent Relators

from having to incur the time, expense, and inconvenience of submitting to

discovery and preparing for a re-convened arbitration that originally ended in

early 2006 and was fully and finally resolved by a Compromise Settlement

Agreement and an agreed Final Arbitration Award.

II.

As set out fully in the mandamus petition, Relator Tailwind Sports Corp.

contends that the trial court abused its discretion because Tailwind dissolved more

than three years before SCA made the instant claims and therefore can neither sue

nor be sued under Texas or Delaware law. See MR 632-52. A claim against a

dissolved entity not brought within a three-year survival period is extinguished,

and any judgment on that claim is a nullity. Pellow v. Cade, 990 S.W.2d 307, 313

(Tex. App.Texarkana 1999, no pet.).

When facing a lawsuit, a defunct entity in Tailwinds position may be

dismissed through a plea to the jurisdiction. See Tex. Dept. of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). Tailwind has attempted to

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accomplish the equivalent before the arbitrators and in the trial court, but despite

its undisputed status, has not succeeded in extricating itself from this matter.

Tailwind should not be subjected to arbitration any more than traditional

litigation. Forcing it to endure arbitration when it cannot be held liable on any

judgment would be senseless. The Court should stay the arbitration pending action

on Relators petition.

III.

The mandamus petition raises several other issues applicable to both

Relators that likewise present compelling reasons for a stay. Relators contend that

the trial court abused its discretion to the extent it (1) improperly deferred to the

arbitrators on the issue of arbitrability; (2) misconstrued the Compromise

Settlement Agreement at issue as conferring authority on the arbitrators to decide

any and all disputes between the parties, not just those arising under or in

connection with the relevant agreements; (3) erroneously held that Relators waived

their right to challenge arbitrability by waiting until the arbitrators decided to re-

convene before filing their motions to stay and by filing a motion for sanctions in

2006, shortly after the original dispute concluded; (4) determined that the

arbitrators are authorized to act on a request for sanctions against Relators for

conduct occurring during the 2006 proceeding; and (5) concluded that the

arbitrators are authorized to consider a request for forfeiture based on a third-party

investigation concluded years after the settlement and agreed arbitration award.

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IV.

If the Court were to agree with Relators position that this dispute is not

arbitrable, the final arbitration hearing set for March 17 and all discovery taking

place in the interim would be a waste and also improper. The discovery at issue

includes a deposition of Relator Lance Armstrong set by order of the arbitrators

and noticed for March 7, 2014. See Exhibit B.

V.

The very act of submitting to discovery and the re-convened arbitration of a

long-resolved dispute will cause Relators irreparable harm. A stay of all arbitration

proceedings, including discovery, is necessary to protect Relators substantial

rights. Relators therefore ask the Court to grant this motion and issue the requested

stay to prevent this untenable result from occurring while the mandamus petition

remains pending.

PRAYER

Relators seek an order staying the March 17, 2014 arbitration and all related

proceedings and deadlines, including discovery, until this Court determines the

merits of the petition for writ of mandamus. Relators request all other appropriate

relief to which they are entitled.

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Respectfully submitted,

/s/ D. Todd Smith Timothy J. Herman State Bar No. 09513700 [email protected] Sean E. Breen State Bar No. 00783715 [email protected] HOWRY BREEN & HERMAN, L.L.P. 1900 Pearl Street Austin, Texas 78705 (512) 474-7300 (512) 474-8557 (fax) Michael K. Hurst State Bar No.10316310 [email protected] A. Shonn Brown State Bar No. 24007164 [email protected] GRUBER HURST JOHANSEN HAIL SHANK 1445 Ross Ave., Suite 2500 Dallas, Texas 75202 (214) 855-6800 (214) 855-6808 (fax) D. Todd Smith State Bar No. 00797451 [email protected] Brandy M. Wingate State Bar No. 24037046 [email protected] SMITH LAW GROUP, P.C. 1250 Capital of Texas Highway South Three Cielo Center, Suite 601 Austin, Texas 78746 (512) 439-3230 (512) 439-3232 (fax) Counsel for Relators, Tailwind Sports Corp. and Lance Armstrong

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CERTIFICATE OF COMPLIANCE WITH RULE 52.10

Relators certify that they have notified or made a diligent effort to notify all

parties to this mandamus proceeding, by expedited means, that a motion for

temporary emergency relief has been or will be filed with Relators petition for

writ of mandamus.

/s/ D. Todd Smith D. Todd Smith

CERTIFICATE OF SERVICE

On March 3, 2014, in compliance with Texas Rule of Appellate Procedure

9.5, I served this document by e-service, e-mail, facsimile, or mail to the

following:

Hon. Tonya Parker 116TH JUDICIAL DISTRICT COURT George L. Allen, Sr. Courts Building 600 Commerce Street, Box 640 Dallas, Texas 75202 Respondent Jeffrey M. Tillotson LYNN TILLOTSON PINKER & COX, L.L.P. 2100 Ross Avenue, Suite 2700 Dallas Texas 75201 Counsel for Real Party in Interest SCA Promotions, Inc.

/s/ D. Todd Smith D. Todd Smith

IN THE MATTER OF AN ARBITRATION BETWEEN

LANCE ARMSTRONG and TAILWIND SPORTS CORP.

Claimants,

v.

SCA PROMOTIONS, INC., ET AL.

Respondents.

ARBITRATION BEFORE THE HONORABLE RICHARD FAULKNER, RICHARD CHERNICK AND TED LYON

PROCEDURAL ORDER NUMBER 4

These parties return to this Arbitration Tribunal to consider SCA Promotions Inc.'s

Motion for Requested Relief following the parties' submissions to the I 16th Judicial District

Court of their dispute concerning this Tribunal's Partial Final Award on Jurisdiction. The

decision of the Arbitration Tribunal on the Request for Relief presently addressed does not

waive or prejudice the parties' positions in the 116111 Judicial District Court. The Tribunal will

comply with any decision of the District Court vacating the Partial Final Award on Jurisdiction

or enjoining this arbitration. Absent any such decisions, this case will proceed to trial on the

merits as stated below.

The Tribunal has reviewed the parties' submissions and requested confirmation of

proposed dates for a hearing on the merits. In response to that request counsel for both parties

has indicated that March 17, 18 and 19, 2014, are acceptable for the hearing on the merits.

Therefore certain issues are now appropriate for decision.

Orders

Re nested Relief Number 1: The Tribunal will proceed to trial on the merits of SCA

Productions, Inc.'s claims on March 17, 2014,

MR 1418Exhibit A

. The hearing will continue on March 181h and 191h until

concluded.

Re uested Relief Number 2: The Tribunal herby unanimously orders the deposition of

Mr. Lance Armstrong be taken. Counsel shall establish an agreeable date, time and place for the

deposition. Only the parties and their counsel shall attend Mr. Armstrong's deposition.

Re uested Relief Number 3: The requested relief is premature. However, the Chairman

of the Tribunal can be available on the date of the deposition to immediately rule on any

objections that may be made.

Re uested Relief Number 4: The Tribunal is prepared to promptly rule on any subpoena

requests and to execute and issue such subpoenas as may be necessary to secure the attendance

of any witnesses within their jurisdiction. The subpoena of any named parties should not be

necessary. Counsel are requested to discuss this issue. If they are unable to agree, the Tribunal

will act appropriately.

Re uested Relief Number 5: Arbitration is intended to be a private process. Any

potential interest of the public does not outweigh the traditional expectations of arbitration

privacy. The Tribunal DENIES the request to permit members of the public to attend the hearing

on the merits.

~ This procedural order is issued to the parties in Dallas County, Texas, this ~day of January, 2014.

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MR 1419

214-981-3839 04:22:50 p.m. 02-26-2014

IN THE MATTER OF AN ARBITRATION BETWEEN

LANCE ARMSTRONG and TAILWIND SPORTS, INC.

Claimants, v.

ARBITRATION BEFORE THE HONORABLE RICHARD FAULKNER, RICHARD CHERNICK, AND TED LYON

SCA PROMOTIONS, INC., ET AL.,

Respondent.

RESPONDENT'SAMENDEDNOTICE OF INTENTION TO TAKE ORAL DEPOSITION OF CLAIMANT LANCE ARMSTRONG

TO: Claimants Lance Armstrong, Tailwind Sports, Inc. and William Stapleton, by and through their attorneys of record, Timothy J. Herman and Sean E. Breen, HOWRY BREEN & HERMAN, L.L.P., 1900 Pearl Street, Austin, Texas 78705-5408.

Please take notice that Respondent SCA Promotions, Inc., by and through its

attorneys, will take the deposition of Claimant Lance Armstrong pursuant to the Panel, on

Thursday, March 6, 2014,

will continue from day-to-day until completed. The deposition will be taken before a

Certified Shorthand Reporter, Notary Public, or other officer duly authorized to administer

oath and may be videotaped.

Counsel for Claimants is invited to attend and examine the witness.

The deposition is noticed and will be taken without prejudice to Respondent's right

to depose this party in the future during the course of discovery.

RESPONDENT'S NOTICE OF INTENTION TO TAKE ORAL DEPOSITION OF CLAIMANT LANCE ARMSTRONG Pagel

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MR 1420Exhibit B

214-981-3839 04:23:40 p.m. 02-26-2014

February 26, 2014 Respectfully submitted,

Jeffrey M. Tillotson, P.C. Texas Bar No. 20039200

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LYNN TILLOTSON PINKER & Cox, L.L.P. 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981-3800 Telephone (214) 981-3839 Facsimile

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the forygoing document was served in compliance with the Arbitration Panel by serving a copy to the following counsel of record on this 26th day of February, 2014:

Via Facsimile Timothy J. Herman Sean E. Breen . HOWRY BREEN & HERMAN, L.L.P. 1900 Pearl Street Austin, Texas 78705-5408 (512) 474-7300 (512) 474-8557 Fax

Jeffrey M. Tillotson, P.C.

RESPONDENT'S NOTICE OF INTENTION TO TAKE ORAL DEPOSITION OF CLAIMANT LANCE ARMSTRONG

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MR 1421

EMERGENCY MOTION FOR TEMPORARY RELIEF PENDING DETERMINATION OF PETITION FOR WRIT OF MANDAMUSExhibit AExhibit B