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:

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 Court’s 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 Tailwind’s 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 reconvene 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 therman@howrybreen.com Sean E. Breen State Bar No. 00783715 sbreen@howrybreen.com 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 mhurst@ghjhlaw.com A. Shonn Brown State Bar No. 24007164 sbrown@ghjhlaw.com 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 todd@appealsplus.com Brandy M. Wingate State Bar No. 24037046 brandy@appealsplus.com 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

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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:
Productions, Inc.'s claims The Tribunal will proceed to trial on the merits of SCA on March 17, 2014,

Exhibit A

MR 1418

. concluded.

The hearing will continue on March 18 1h and 191h until

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

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IN THE MATTER OF AN ARBITRATION BETWEEN LANCE ARMSTRONG and TAILWIND SPORTS, INC. Claimants,

v.
SCA PROMOTIONS, INC., ET AL., Respondent.

§ § § § § § § § § §

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

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

Exhibit B

Pagel

MR 1420

214-981-3839

04:23:40 p.m.

02-26-2014

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February 26, 2014

Respectfully submitted,

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

I
Jeffrey M. Tillotson, P.C.

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

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MR 1421