1 

Liz Boydston (SBN 24053684)

Alexandria Rahn (SBN 24110246)

GUTNICKI LLP

10440 N. Central Expressway, Suite 800

Dallas, Texas 75231

Telephone: (469) 895-4413 

Facsimile: (469) 895-4413 

lboydston@gutnicki.com

arahn@gutnicki.com

Proposed Counsel to Debtors and Debtors 

in Possession

Max Schlan (Pro Hac Vice)

Ren-Ann Wang (Pro Hac Vice) 

GUTNICKI LLP

45 Rockefeller Plaza, Suite 2000 

New York, New York 10111 

Telephone: (646) 825-2330 

Facsimile: (646) 825-2330 

mschlan@gutnicki.com

rwang@gutnicki.com

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

)

In re: ) Chapter 11

)

TOMMY’S FORT WORTH, LLC, et al.,

1 ) Case No. 24-90000

)

Debtors. ) (Jointly Administered)

)

DEBTORS’ EMERGENCY MOTION TO ENFORCE AUTOMATIC 

STAY AND PUNITIVE DAMAGES FOR WILLFUL VIOLATIONS OF THE 

AUTOMATIC STAY AGAINST MALIBU BOATS, INC. AND MALIBU BOATS, LLC

Emergency relief has been requested. Relief is requested not later than 2:30 p.m. 

(prevailing Central Time) on June 6, 2024. 

If you object to the relief requested or you believe that emergency consideration is not 

warranted, you must appear at the hearing (if one is set) or file a written response 

prior to the earlier of (a) the start of the hearing (if one is set) and (b) the date by 

which the relief is requested (per the preceding paragraph). Otherwise, the Court may 

treat the pleading as unopposed and grant the relief requested. If a response is filed, 

you must file your response electronically at https://ecf.txnb.uscourts.gov/ prior to the 

1 The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification 

number, are: Tommy’s Fort Worth, LLC (3473); Tommy’s Holding Company, LLC (2662); Tommy’s Grand Rapids, 

LLC (9224); Tommy’s Castaic, LLC (7501); Tommy’s Lewisville, LLC (4750); High Country Watersports, LLC 

(6160); Walloon Lake Village Marina, LLC (0277); MKB Florida Holdings, LLC (5698); Tommy’s Detroit, LLC 

(5242); Tommy’s California Fresno, LLC (8597); Tommy’s Phoenix, LLC (3036); Tommy’s Las Vegas, LLC (7721); 

Tommy’s Chattanooga, LLC (0839); Tommy’s California Ventura, LLC (5149); Tommy’s Rancho Cordova, LLC 

(1070); Tommy’s Stockton, LLC (1338); and Tommy’s Knoxville, LLC (8052).

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earlier of (a) the start of the hearing (if one is set) and (b) the date by which the relief 

is requested (per the preceding paragraph). If you do not have electronic filing 

privileges, you must file a written objection that is actually received by the clerk and 

filed on the docket prior to the earlier of (a) the start of the hearing (if one is set) and 

(b) the date by which the relief is requested (per the preceding paragraph). 

A hearing will be conducted on this matter on June 6, 2024, at 2:30 p.m. (prevailing 

Central Time), in Room 204, U.S. Courthouse, 501 W. Tenth Street, Fort Worth, Texas 

76102. Unless the presiding judge orders otherwise, you may participate in the 

hearing either in person or by WebEx videoconference or audioconference (subject to 

compliance with the Court’s WebEx Hearing Instructions). For WebEx video 

participation/attendance, use the following link: https://uscourts.webex.com/meet/morris; Meeting Number 2309-445-3213. Click the settings 

icon in the upper right corner of your screen and enter your name under the personal 

information setting. For WebEx telephone only participation/attendance, use the 

following dial-in: 1.650.479.3207; Access Code 2309 445 3213. WebEx Hearing 

Instructions may be obtained at the following address: 

https://www.txnb.uscourts.gov/judgesinfo/hearing-dates/judge-morris-hearingdates-0. 

The above captioned debtors and debtors in possession (collectively, the “Debtors”) 

hereby submit this motion (this “Motion”) (i) to enforce the automatic stay and (ii) for punitive 

and compensatory damages for willful violations of the automatic stay against Malibu Boats, Inc. 

and Malibu Boats, LLC (collectively, “Malibu”). In support of the Motion, the Debtors submit the 

Declaration of Matthew Borisch in Support of Debtors’ Emergency Motion to Enforce Automatic 

Stay and Punitive Damages for Willful Violations of the Automatic Stay Against Malibu Boats, Inc. 

and Malibu Boats, LLC (the “Borisch Declaration”), filed contemporaneously with this Motion. 

Additionally, the Debtors respectfully state as follows:

JURISDICTION AND STATUTORY BASIS

1. The United States Bankruptcy Court for the Northern District of Texas (this 

“Court”) has subject matter jurisdiction to consider and determine this matter pursuant to 28 U.S.C. 

section 1334. This is a core proceeding pursuant to 28 U.S.C. section 157(b). 

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2. The Debtors consent to entry of a final order under Article III of the United States 

Constitution. 

3. Venue is proper pursuant to 28 U.S.C. section 1408 and 1409. 

4. The statutory predicates for the relief requested herein are 11 U.S.C. sections 

105(a), 362, and 365. 

RELIEF REQUESTED AND PRELIMINARY STATEMENT

5. Pursuant to sections 105(a) and 362 of the Bankruptcy Code, the Debtors seek an 

order, substantially in the form of Exhibit A, (i) enforcing the automatic stay and (ii) seeking 

punitive and compensatory damages for willful violations of the automatic stay against Malibu. 

6. The Debtors’ exclusive right to sell Malibu and Axis boats in their Exclusive 

Territories is the most valuable asset of the Debtors’ estates. Despite the plain language of the 

Dealership Agreements regarding how and when termination could occur, the 12-year course of 

dealing between the Debtors and Malibu, the months-long customary negotiation process, and 

Malibu’s actions, Malibu contends that no Dealership Agreements exist. 

7. Despite the Debtors serving notices on Malibu that moving new dealers into their 

Exclusive Territories is a violation of the automatic stay, Malibu continues to advertise

“replacement dealers” for the Debtors in the Debtors’ Territories and ship boats to those 

replacement dealers. Malibu’s actions have caused Malibu and/or their replacement dealers to

poach the Debtors’ employees postpetition to staff these replacement dealers’ businesses, one of 

which is set to open on Monday, June 3, 2024 (the date of the filing of this Motion). 

8. Even if there is some question as to whether the Dealership Agreements are still in 

place, the Fifth Circuit holds that this Court should weigh any ambiguity of enforcement of the 

automatic stay in favor of the Debtors, “presume protection of property when faced with 

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uncertainty or ambiguity,” and “impose the automatic stay where there is only an arguable claim 

of right to the property.” 

9. Thus, this Cout should enforce the automatic stay until final determination on the 

status of the Dealership Agreements can be made.

BACKGROUND

A. Case Background 

10. On May 20, 2024 (the “Petition Date”), each of the Debtors filed a voluntary 

petition in this Court commencing a case for relief under Chapter 11 of Title 11 of the Bankruptcy 

Code (the “Chapter 11 Cases”).

11. The Debtors continue to operate their businesses and manage their businesses as 

debtors in possession pursuant to Bankruptcy Code sections 1107 and 1108. 

12. No trustee, examiner, or official committee of unsecured creditors have been 

appointed in the Cases. 

B. Tommy’s Boats 

13. The Debtors are a high-octane water-sports-enthusiast brand known as “Tommy’s 

Boats” (“Tommy’s”) that began in 2012 in Colorado. Today, Tommy’s is the largest Ski & Wake 

dealer globally. Currently consisting of 14 dealerships plus nine additional on-water rental 

programs operating in Texas, Colorado, Michigan, Arizona, California, Florida, Nevada, and 

Tennessee. Tommy’s supplies a full suite of boat repair services, boat rental services, on-the-water 

fueling and docking services, retail sales of super-premium ski and wake boats, luxury cruisers, 

fishing boats, pontoons, flightboards, and retail goods & apparel at Tommy’s Pro Shops. Tommy’s 

is and always has been dedicated to bringing the absolute best products and services to its loyal 

customers.

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14. Boat sales make up approximately 82 percent of the Debtors’ annual revenue. The 

majority of the Debtors’ sales are new luxury watercraft primarily from original equipment 

manufacturer (OEM) Malibu under two brands: Malibu and Axis. Axis is a Malibu-manufactured 

brand intended to be more entry market than luxury market. The Debtors historically have been 

the largest dealer nationally for OEM Malibu Boats, accounting for approximately 33 percent of 

Malibu’s power boat sales. In other words, the sale of Malibu boats2 is a necessary and critical 

component of the Debtors’ business. Without the ability to sell Malibu boats, it is unlikely the 

Debtors could continue to operate their business. 

C. Malibu Dealership Agreements

15. For 12 years, Malibu and each of Debtors’ dealerships had a dealership agreement

(the “Dealership Agreements”). The term of the Dealership Agreements, with the exception of 

those in Texas, run from July 1 to June 30. Other than the term of the Texas contracts and the 

location of each dealership, the Dealership Agreements are materially the same. A copy of a recent 

Dealership Agreement is attached to the Borisch Declaration as Exhibit 1. 

16. Each Dealership Agreement provides exclusivity for the sale of Malibu and Axis 

boats to the dealership within a specific area (an “Exclusive Territory” and collectively the 

Debtors’ “Exclusive Territories”). Only upon a material breach of the Dealership Agreement may 

Malibu appoint another dealer within an Exclusive Territory. Dealership Agreement at ¶ 1.b. 

17. Moreover, the Dealership Agreements provide that “Malibu will provide Dealer 

with a new agreement, or notice of non-renewal or termination, reasonably in advance of the 

expiration of this Agreement. Id. at ¶ 2. 

2 Unless otherwise specified, any reference to “Malibu boats” includes both Malibu and Axis boats. 

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18. Historically—and consistently for each of the prior 12 years—Malibu and the 

Debtors would allow the current Dealership Agreements to just about expire and only then would 

Malibu begin negotiations of new model-year Dealership Agreements while continuing to operate 

under the terms of the latest expired-term Dealership Agreement. 

19. Around the time of the contractual expiration of the MY20233 Dealership 

Agreements (other than in Texas) on June 30, 2023, the Debtors and Malibu took the same historic 

and ordinary course approach and began negotiations for the model year 2024 Dealership 

Agreements. On June 12, 2023, Malibu sent the first draft of the “Commitment Builder MY24” 

(the Commitment Builder is the annual excel workbook prepared by Malibu for negotiating the 

number of Malibu and Axis boats each dealer’s location will “commit” to purchase for the new 

Dealership Agreement, and such “commitment” is then included in the respective Dealership 

Agreement) and for the first time shared the MY24 Malibu & Axis Dealer Performance Programs.

4

Despite historic lows in retail luxury power boat demand and sales activity, Malibu’s June 12, 2023 

Commitment Builder MY24 set Tommy’s MY24 commitment at 1160 boats even though the 

Debtors currently had more than 800 MY2023 Malibu boats in stock and the low season was 

approaching. Three days later, Malibu sent a request to the Debtors requesting a favor—that the 

Debtors immediately enter 58 MY24 boats in the order system – boats that Tommy’s did not need 

– in order to help Malibu fill its July production as part of Malibu’s order chase.5

3 MY23 refers to Model Year 2023, which non-Texas MY23 Dealership Agreements had the term July 1, 2022 through 

June 30, 2023. The date that the non-Texas MY23 Dealership Agreements were executed was September 6, 2022. For 

reference, the non-Texas MY22 Dealership Agreements (Model Year 2022) were executed on August 24, 2021.

4 Incentive Programs is defined herein at par. 31. 

5 Ultimately the Debtors did enter the 58 boat order as requested by Malibu, which boats ended up not on the M&T 

Floorplan and out of trust, for which Malibu then used their status as not on the M&T Floorplan and out of trust to 

deny signing the MY24 Dealership Agreements. 

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20. Between June 13 and June 30, 2023, several virtual meetings were held between

the parties reviewing data and attempting to land on the correct commitment amount. On June 30, 

2023, the Debtors sent Malibu the revised Commitment Builder requesting to set Tommy’s 

commitment at 559 boats. email with commitment builder trying to commit to 559 boats. For more 

than two months, Malibu and the Debtors negotiated the MY24 Dealership Agreements and 

exchanged revised versions of the Commitment Builder, however Malibu refused to send a 

Commitment Builder with fewer than 1160 as the Debtors’ commitment. On August 25, 2023, 

Malibu sends MY24 Commitment Sheets totaling 605 boats. The Debtors inform Malibu that they 

cannot commit to that many boats, and they are nearing danger being out of trust (a/ka “SOT”) for 

their current inventory due to the unreasonable number of Malibu boats that Malibu has forced 

upon the Debtors.

21. On or about September 2, 2023, Tommy’s informs Malibu that it is officially SOT, 

and on September 3, 2023, the Debtors have a discussion with Scott Davenport of Malibu seeking 

assistance in right-sizing the inventory. Ultimately, the Debtors begin cancelling stock boat orders. 

On September 8, 2023, Davenport sends revised MY24 Commitment Sheets totaling 535 boats. 

22. On September 11, 2023, the Debtors try to finalize the MY24 Commitment Sheets 

so the MY2024 Dealership Agreements can be signed, and Malibu CEO Jack Springer replies, 

“Tommy’s is SOT, which is one of the worst situations that can arise. Until Tommy’s is in good 

standing with M&T, no dealer agreement can be or will be signed. It is critical that Tommy’s 

resolve any and all SOT situations and has adequate, supported floorplan financing.”

23. The Debtors immediately began to work with M&T to resolve the SOT and in 

October 2023, M&T send confirmation that the Debtors resolved the SOT. 

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24. On October 13, 2023, Malibu CEO Jack Springer confirmed by e-mail, 

Following up with notes to next steps from our meeting so we are all on the 

same page. . . . MBI and Tommy’s to work to write new dealer 

agreements for 2024 which currently expired in 2023 and do not exist. I 

believe these capture the major topics.” 

25. Despite eight months of negotiations and being assured by Malibu that MY24 

Dealership Agreements would be entered into, it was not until February 26, 2024 that Malibu 

informed Tommy’s that it was not going to enter into any MY24 Dealership Agreements. 

26. Between July 1, 2023 (the day after the term of the MY23 Dealership Agreements) 

and March 13, 2024 (two days after Malibu alleges they terminated all Dealership Agreements

pursuant to the March 11th Letter (defined below)), Malibu delivered 131 boats to the Debtors, 

requested that Tommy’s be the sole dealer representative of Malibu at 14 boat shows (wherein 

Malibu promised the Debtors they would be entitled to Boat Show Program incentives6 and 

reimbursement for boat show attendance costs as was the ordinary course of dealing between the 

parties for 12 years), and included Tommy’s in all of their MY23 and MY24 Incentive Programs.

7

 

27. Even after the March 11th Letter, Malibu requested that Tommy’s be the sole dealer 

representative of Malibu at five boat shows, attendance at and sales during which Malibu promised 

the Debtors they would be entitled to Boat Show Program incentives8 and reimbursement for boat 

show attendance costs as was the ordinary course of dealing between the parties for 12 years: 

Novi Boat Show: March 15 - 16 2024 Arizona Outdoor Expo: March 23 - 24 2024

Bakersfield/Sportsman Boat & RV Show: March 15 - 17 2024 Orlando Boat Show: April 5-7 2024

Traverse City Boat Show: March 15 - 17 2024

6 Boat Show Program incentives (referenced in the industry as BSP) are one of the many Incentive Programs offered 

by Malibu only to its dealers, and compliance with the specifications in any offered Incentive Program entitles the 

dealer (here, Tommy’s) to the financial incentives outlined therein.

7 Incentive Programs is defined herein at par. 31. 

8 Malibu has refused payment to Tommy’s of any incentives, rebates, programs, sales events, bonuses, and/or 

reimbursements, including for the 19 boat shows that Malibu required Tommy’s to attend on Malibu’s behalf as the 

sole dealer representative of Malibu. 

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D. Pressure from Malibu That the Debtors Increase the Floor Plan

28. During the COVID-19 pandemic in 2020 and into 2021, domestic retail demand for 

recreational powerboats increased to the highest levels seen by the industry in decades as 

customers turned to boating as a form of outdoor, socially-distanced recreation.

29. Retail luxury power boat demand and sales activity (referred to in the industry as 

“retail registration”) began declining in the second half of the 2021 calendar year because of 

inventory shortages due to the strong sales activity during the pandemic and supply chain 

disruptions that began impacting production levels. During 2022, retail registration continued to 

decline at a lower year-over-year rate than even the second half of 2021. Forecasting for 2023 

national sales of retail luxury power boats projected a drop of approximately 50% from 2022 sales.

30. In late 2022, despite the historic lows in retail registrations, Malibu began to 

pressure the Debtors to increase their available floor plan financing from $30 million (drawn on a 

$50 million facility with a $10 million overlimit) to $160 million. Malibu represented to Tommy’s 

that Tommy’s was required to have a minimum of 25 weeks of inventory in stock at the turn of the 

model year based on Malibu’s market analysis. To have a minimum of 25 weeks of inventory of 

2023 model year, Tommy’s would have to increase its floor plan by more than a factor of five. 

31. At the same time, in 2022, the Debtors had earned significant incentives and rebates 

through the sale of Malibu boats. Numerous times each year, Malibu would offer various incentive

programs including, for example, “Dealer Performance Programs,” “Hottest Ever Summer Sales 

Event” incentives, “Year-End Sales Event Programs,” “Boat Show Programs,” “Market Share 

Bonus” programs, “Order Performance Incentives,” which would entitle dealers like Tommy’s to 

earn incentives related to sales of Malibu and Axis products (the “Incentive Programs”). The 

Incentive Programs are only offered to Malibu dealers and include, but are not limited to, interest 

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reimbursement, rebates, advertising reimbursements, bonuses, and discounts. The Incentive 

Programs not only provided a key source of income for the Debtors, but the purpose of the 

Incentive Programs is to offset lulls in seasonal sales, increased costs, mandated advertising 

required by Malibu, and to cover the interest charged by a floor plan lender for inventory on the 

floorplan during low seasons; thus, the Incentive Programs are necessary to sustain a profitable 

business and to ensure no sales are out of trust. 

32. Historical income and offsets received (and due and owing) from the Incentive 

Programs is set forth below: 

MY

Total # 

Boats 

Delivered

Tommy's 

Commitment # # over/under

Rebates, 

Incentives & 

Interest Paid 

Rebates, 

Incentives & 

Interest NOT Paid

# of 

Tommy's 

Dealerships

2017 217 240 -23 $2,024,458.20 n/a 4

2018 380 275 105 $2,333,767.16 n/a 5

2019 413 450 -37 $2,655,512.90 n/a 5

2020 345 637 -292 $2,425,474.20 n/a 7

2021 690 Malibu couldn't 

to meet COVID 

build enough 

market demands $3,042,717 n/a 12

2022 1014 Malibu couldn't 

to meet COVID

build enough 

market demands $2,891,370 $364,750 15

2023 1191 1234 -43 $2,936,006 $2,017,750 14

2024 157 No signed 

commitment n/a $234,660 $1,166,929 14

33. Beginning in or around late 2022, Malibu refused to pay the Debtors’ approximately 

$365,000 of their earned incentives and rebates. As late as February 7, 2023, Malibu confirmed

that Malibu still has not paid the accrued and earned 2022 rebates and promises to “get caught up 

this week.” The Debtors never received those 2022 rebates. Rather, Malibu withheld the earned

incentives and rebates and instead promised additional incentives in the future, but only if the 

Debtors complied with Malibu’s compulsory demands. The Debtors never received those 

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additional incentives either. To date, Malibu owes the Debtors more than $12 million in incentives 

and rebates.

34. Without the income and offsets from the Incentive Programs, retail margins on 

boats are especially small and the only way to make up the margin shortfall was to sell more boats. 

Facing severe financial pressure without the income from the Incentive Programs, the Debtors 

succumbed to Malibu’s pressure and increased their floor plan capacity from $50 million to $85 

million with the Debtors’ prior lender, Fifth Third Bank. Malibu wanted the Debtors to take on 

additional floor plan, but Fifth Third Bank reached its limit.

35. In March of 2023, the Debtors were introduced to M&T Bank (“M&T”), which

had the ability to provide a larger floor plan to allow the Debtors to comply with Malibu’s demands. 

By May 2023, with M&T financing, the floor plan increased yet again to $110 million with a $20 

million overlimit.

36. Malibu represented publicly and to M&T Bank that Malibu would support the 

obligatory increased floor plan by entering into a repurchase agreement with M&T. Repurchase 

agreements are a major component of floor plan financing. 

37. A repurchase agreement is an agreement between the floor plan lender and the 

manufacturer that provides that the manufacturer would repurchase the remaining merchandise if 

the borrower does not pay off the floor plan and if the lender had to take title to the merchandise 

because of default of the borrower. A repurchase agreement greatly reduces the risk factor to the 

lender but place additional risk on the manufacturer, which acts as a check to ensure manufacturers 

do not oversupply retailers. A repurchase agreement is customary and standard in the boat industry, 

and Malibu had entered into repurchase agreements with Fifth Third Bank (and prior lenders) of 

the Debtors on each and every one of Tommy’s previous floor plan facilities.

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38. Here, the repurchase agreement would have protected both M&T and the Debtors, 

because the repurchase agreement with M&T would have required Malibu to repurchase the 

Debtors’ Malibu inventory that did not sell, as well as cover all carry interest (monthly interest 

during the low sales season) on the floor-plan obligations. Importantly, the repurchase agreement 

would also incentivize Malibu not to oversaturate a dealer (in this case the Debtors) with too much 

inventory. According to Malibu’s own public filings, Malibu has entered into repurchase 

agreements with multiple lenders. 

In connection with its dealers’ wholesale floor plan financing of boats, the 

Company has entered into repurchase agreements with various lending institutions. 

The reserve methodology used to record an estimated expense and loss reserve in 

each accounting period is based upon an analysis of likely repurchases based on 

current field inventory and likelihood of repurchase. Subsequent to the inception of 

the repurchase commitment, the Company evaluates the likelihood of repurchase 

and adjusts the estimated loss reserve accordingly. When a potential loss reserve is 

recorded, it is presented in accrued liabilities in the accompanying unaudited 

interim condensed consolidated balance sheets. If the Company were obligated to 

repurchase a significant number of units under any repurchase agreement, its 

business, operating results and financial condition could be adversely affected. 

Malibu Boats, Form 10-Q, Period Ending Dec. 31, 2023 (available at 

https://www.sec.gov/Archives/edgar/data/1590976/000159097624000012/mbuu20231231.htm). See also https://d18rn0p25nwr6d.cloudfront.net/CIK0001590976/186a89fc-6d50-43c8-a26c-e129d3edf001.pdf 

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39. However, despite its promises, its public filings, and the fact that a repurchase 

agreement is customary in the industry, Malibu ultimately reneged. To date, Malibu has yet to 

execute a repurchase agreement for the full floor plan with M&T.9

40. Malibu’s unrelenting pressure on Tommy’s to increase its floor plan and Malibu’s 

unwillingness to enter into a repurchase agreement with M&T, despite repeated requests from 

M&T, created the perfect storm for Malibu to take advantage of the Debtors. Malibu could now 

pump upwards of $130 million of Malibu’s highest-priced inventory on the Debtors without any 

risk or obligation to repurchase. Not only did Malibu push as many boats as possible on the 

Debtors, Malibu did so with mainly its most expensive line of boats, outside of the customary and 

Debtor-requested inventory mix of 65% luxury Malibu boats and 35% entry-level Axis-branded 

boats. The proper mix of boats at different price points allows for a greater number of sales, which 

results in a higher turnover of inventory. This allows dealers to bring in fresh inventory.

41. The Malibu-branded boats provide higher margins for Malibu. However, because 

of the higher price point, they tie up substantially more of the Debtors’ floor plan and cost the 

Debtors substantially more in carry interest due to the slow pace at which they are sold. This 

prevents the Debtors from bringing in fresh inventory. By pumping the Debtors full of the higherend Malibu boats, it became impossible for the Debtors to hit sales targets, burying the Debtors in 

carry interest, which Malibu promised to pay as an incentive (and which, historically, Malibu had 

9 Though during the receivership, there were discussions among M&T, the Receiver, and Malibu about Malibu 

providing a repurchase agreement during the receivership. In the late summer and fall of 2023, Malibu shipped $6 

million inventory to Tommy’s that was not covered by M&T’s floorplan financing. Malibu demanded payment of the 

$6 million and dangled the promise of the model year 2024 Dealership Agreements being signed if the Debtors were 

able to pay the $6 million. Between August and November 2023, M&T refused to add the $6 million of Malibu 

inventory because Malibu repeatedly refused to provide the required repurchase agreement to M&T. After months of 

back and forth, in December 2023 the Debtors were able to convince Malibu to at least provide M&T a repurchase 

agreement on the $6 million of forced inventory, to which Malibu agreed. To date, that $6 million repurchase 

agreement is the only repurchase agreement between Malibu and M&T relating to the Debtors’ floor plan. After Malibu 

received its $6 million, Malibu’s CEO Jack Springer pushed off any discussion of the MY2024 Dealership 

Agreements, saying “let’s discuss Dealership Agreements in January.” 

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paid as reimbursements to the Debtors through 2022). Malibu reneged on its contractual 

obligations to reimburse the Debtors for the carry interest. Malibu not only denied the Debtors 

their carry interest incentives and other rebates, but Malibu also refused to honor their promise to 

enter into a repurchase agreement with M&T. The last month that Malibu paid any carry interest 

for Tommy’s was for the month of March 2023. Without reimbursement of their carry interest and 

without a repurchase agreement, there was nothing the Debtors could do. 

E. Malibu Continued Operating Under the Dealership Agreements Until It Bled 

the Debtors Dry

42. Approximately a month after the Debtors entered into their floor plan financing 

with M&T, the MY23 Dealership Agreements, other than in Texas, expired by their terms on June 

30, 2023. Notwithstanding the expiration, Malibu and the Debtors continued to conduct themselves 

as if the Dealership Agreements were still in place and that entering into new agreements was 

merely a formality.

43. Since July 1, 2023, Malibu delivered 131 boats to the Debtors, by far the most boats 

delivered to any Malibu dealer. As is set forth above, the dumping of inventory on the Debtors 

without a repurchase agreement provided increased sales to Malibu in a significantly downturned 

market without any risk. Indeed, Malibu used the pumping of inventory into the Debtors to relate 

to the public that “[w]hile retail activity at our dealers trended lower during fiscal year 2023, given 

low inventory levels at the beginning of the fiscal year, we continued to experience strong 

wholesale demand throughout the first three quarters of fiscal year 2023.” Malibu Boats, Form 

10-Q, Period Ending Sept. 30, 2023 (available at 

https://www.sec.gov/Archives/edgar/data/1590976/000159097623000115/mbuu-20230930.htm) 

44. In February of 2024, at Malibu’s direct request, Tommy’s represented Malibu at the 

boat show in Miami. The Debtors took orders and deposits for several Malibu boats. While at the 

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Miami boat show, Matthew Borisch, principal for all Tommy’s dealerships, was pulled aside by 

three Malibu stakeholders to discuss Tommy’s Dealership Agreements with Malibu. The 

stakeholders disclosed to Mr. Borisch that Malibu and its former CEO, Jack Springer, were

“intentionally pumping Tommy’s full of inventory” in order to artificially inflate Malibu sales and 

market share when “most manufacturers are 70% too heavy on inventory and [Jack Springer]

knows that.”

45. By this time the Debtors learned of Malibu’s plan to oversell its inventory to the 

Debtors without a repurchase agreement, the Debtors had become overextended on their floor plan 

with an inventory mix that was difficult to sell. On February 27, 2024, M&T notified the Debtors 

that it would not be able to provide financing for additional boats, leaving the Debtors with stale 

inventory and the inability to bring in anything new. Additionally, the Debtors could not fill custom 

boat orders, which made up a significant portion of the Debtors’ boat sales.

46. Using the Debtors’ financial difficulties with M&T as pretext, difficulties directly 

caused by Malibu’s actions, on March 11, 2024 Malibu sent a letter to the Debtors purporting to 

“terminate” the Dealership Agreements at the Texas locations (the “March 11th Letter”). Another 

letter followed on March 22, 2024 purporting “to confirm that Malibu does not anticipate entering 

into dealer agreements with any of the Tommy’s Dealerships . . .” (the “March 22nd Letter”). 

After leading the Debtors on for months about the prospect of 2024 Dealership Agreements and 

continually performing as though the agreement were in place, it took only a few weeks after 

Malibu got everything it could out of the Debtors to simply attempt to walk away.

47. On April 10, 2024, after discussions between the parties failed for the final time, 

the Debtors filed a Verified Complaint (the “Complaint”) in the US District Court for the Eastern 

District of Tennessee, evidencing Tommy’s swift move to protect itself and preserve the status quo 

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(i.e. no competitors or new Malibu dealers in the Exclusive Territories). The Complaint (provided 

to Malibu in draft prior to filing) initially included a prayer for injunctive relief and was ultimately 

removed upon Malibu’s counsel indicating that Malibu had no issue continuing to honor the 

Dealership Agreements at least through the 2024 boating season.

F. Malibu Signs with Competitor Dealerships

48. The Debtors immediately disputed Malibu’s position in both the March 11th Letter 

and March 22nd Letter, setting forth the arguments contained herein. Instead of engaging with the 

Debtors, Malibu informed M&T Bank that it had terminated any and all Dealership Agreements 

with the Debtors. Days later, M&T Bank defaulted the Debtors based on the “new information” 

that there were no Dealership Agreements in place with Malibu – though all parties knew that 

Malibu, M&T, and the Debtors were functioning for more than nine months under the terms of the 

2023 Dealership Agreements and were each relying on the promise that the 2024 Dealership 

Agreements (which by terms would have expired approximately 100 days later) were in progress.

49. Instead, Malibu almost immediately began discussions with competitor dealerships 

in the Debtors’ Exclusive Territories to sell its products. To date, the Debtors believe at least 11

agreements with competitors have been signed within the Debtors’ Exclusive Territories. For 

example, upon information and belief, Malibu entered into a Dealership Agreement with 

competitor Liquid Planet in Clermont, Florida, within the Exclusive Territory of Tommy’s 

Florida.

10 So close in fact, Liquid Planet intends to open its dealership two doors down from the 

Debtors on the same day the Debtors filed this Motion. Many employees, including one of

Tommy’s top-ranking managers in the area, have given notice to Tommy’s expressly to work for 

Liquid Planet as Malibu’s “replacement dealer.”

10 Debtor MKB Florida Holdings, LLC does business as Tommy’s Florida.

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50. In fact, Malibu is already advertising their “replacement” dealers.

51. Adding insult to injury, the Debtors have been informed by store-level employees 

that entire staffs have been made job offers by the competitor dealerships now selling Malibu boats.

52. In fact, on Friday, May 31, 2024, the Debtors held a virtual all-staff meeting with 

all Tommy’s locations. Then the Debtors held follow-up meetings with each store individually. 

The Fort Worth manager informed the Debtors’ management that all but seven Texas employees 

have received job offers from Malibu Texas, that Malibu Texas took over the Debtors’ Fort Worth 

lease, and that Malibu Texas was opening a Fort Worth dealership at the Debtors’ Fort Worth 

dealership and a brand new Lewisville dealership. Despite the automatic stay and warnings by the 

Debtors to Malibu that poaching their employees was a violation of the automatic stay, Malibu 

continues to “replace” the Debtors in the Debtors’ Exclusive Territories and poach the Debtors’ 

employees.

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53. Although, Malibu does not want to recognize the continuation of their Dealership 

Agreements with the Debtors, (a) the historical and customary course of dealing between Malibu 

and the Debtors relating to the Dealership Agreements, (b) their historical actions between the 

contract term of each historical Dealership Agreement and the renegotiation of the next year’s 

Dealership Agreement, (c) their continued actions after the contract term expiration of the 2023 

Dealership Agreements, (d) their statements and actions that a 2024 Dealership Agreement was 

forthcoming, and (e) their delivery of (and demand that Debtors’ accept and pay for) 131 boats 

between July 1, 2023 and March 13, 2024 establish that the full intent of the parties was that the 

Dealership Agreements are still in place.

54. Accordingly, the Court should enforce the automatic stay by requiring Malibu to 

honor the exclusivity provision of the Dealership Agreements. Moreover, to the extent Malibu has 

already violated the exclusivity provision of the Dealership agreements, the Debtors should receive 

punitive and compensatory damages for Malibu’s willful violations of the automatic stay. 

ARGUMENT

I. The Court Should Enforce the Exclusivity Provision of the Dealership Agreements 

Through the Automatic Stay. 

55. The application of the protections afforded a debtor by sections 362 of the 

Bankruptcy Code is automatic upon the filing of a chapter 11 petition. See 11 U.S.C. § 362(a) (“[A]

petition filed under section 301 . . . of thistitle . . . operates as a stay, applicable to all entities . . . .”). 

This includes enjoining all persons from, among other things, taking any action to obtain 

possession of property of the estate or to exercise control over property of the estate. See 11 U.S.C. 

§ 362(a)(3). “The automatic stay is one of the most important—if not the most important—features 

of the Bankruptcy Code, and it is integral to the public bankruptcy scheme... [it] protects not just 

one person or entity, but rather protects all of those persons and entities affected by the filing of a 

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bankruptcy petition.” In re Turner, 462 B.R. 214, 221 (Bankr. S.D. Tex. 2011), aff'd, No. 10-3300, 

2012 WL 12535013 (S.D. Tex. Mar. 15, 2012); see also In re Abacus Broad. Corp., 150 B.R. 925, 

927 (Bankr. W.D. Tex. 1993) (stating the automatic stay is “broad and all encompassing”).

56. The injunction contained in section 362 of the Bankruptcy Code is self-executing, 

Campbell v. Countrywide Home Loans, Inc., 545 F.3d 348, 355 (5th Cir. 2008). The automatic stay 

constitutes a fundamental debtor protection that, together with other provisions of the Bankruptcy 

Code, provides a debtor with a “breathing spell” that is essential to a successful chapter 11 process.

Halo Wireless, Inc. v. Alenco Commc’ns, Inc. (In re Halo Wireless, Inc.), 684 F.3d 581, 586 (5th 

Cir. 2012) (internal quotations omitted); S.I. Acquisition, Inc. v. Eastway Delivery Serv., Inc. (In re

S.I. Acquisition, Inc.), 817 F.2d 1142, 1146 (5th Cir. 1987); see also Midlantic Nat’l Bank v. N.J.

Dep’t of Envtl. Prot., 474 U.S. 494, 503 (1986) (“The automatic stay provision of the Bankruptcy 

Code, § 362(a), has been described as one of the fundamental debtor protections provided

by the bankruptcy laws.” (citation and internal quotation marks omitted)).

57. “The purposes of the bankruptcy stay under 11 U.S.C. § 362 ‘are to protect the 

debtor’s assets, provide temporary relief from creditors, and further equity of distribution among 

the creditors by forestalling a race to the courthouse.’” Reliant Energy Servs., Inc. v. Enron Canada 

Corp., 349 F.3d 816, 825 (5th Cir. 2003) (citing GATX Aircraft Corp. v. M/V Courtney Leigh), 768 

F.2d 711, 716 (5th Cir. 1985)); see Commonwealth Oil Refining Co. v. EPA (In re Commonwealth 

Oil Refining Co.), 805 F.2d 1175, 1182 (5th Cir. 1986) (“The purpose of the automatic stay is to 

give the debtor a ‘breathing spell’ from his creditors, and also, to protect creditors by preventing a 

race for the debtor’s assets.” (citation omitted)). Or, as stated by the Fifth Circuit, the stay 

“prevent[s] a chaotic and uncontrolled scramble for the debtor’s assets in a variety of

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uncoordinated proceedings in different courts.” Hunt v. Bankers Tr. Co., 799 F.2d 1060, 1069 (5th 

Cir. 1986).

58. Pursuant to section 105(a) of the Bankruptcy Code, the Court may issue “any order, 

process, or judgment that is necessary or appropriate to carry out the provisions of this title.” 

Section 105(a), therefore, authorizes a bankruptcy court to issue injunctions or take other necessary 

steps in aid of its jurisdiction. See, e.g., U.S. v. Sutton, 786 F.2d 1305, 1307 (5th Cir. 1986); 

MacArthur Co. v. Johns-Manville Corp. 837 F.2d 89, 93 (2d Cir. 1988). Such orders are 

appropriate where, as here, they are essential to the debtor’s reorganization efforts and do not 

burden creditors. See In re Momentum Mfg. Corp., 25 F.3d 1132, 1136 (2d Cir. 1994) (holding 

that, as courts of equity, bankruptcy courts are empowered to invoke equitable principles to achieve 

fairness and justice in the reorganization process).

59. The relief requested in this Motion is fully consistent with the terms of the 

Bankruptcy Code and will protect and preserve the Debtor’s assets, specifically, the Debtors’

exclusive contractual rights to sell Malibu boats within their Exclusive Territories according to the 

terms of their Dealership Agreements. It is manifestly appropriate for the Court to enforce the 

automatic stay to protect the Debtors’ exclusivity rights and prevent Malibu from violating those 

rights by delivering boats to competitor dealerships within the Debtor’s Exclusive Territories. 

Without the protection of the Debtors’ exclusivity rights through the automatic stay, the Debtors 

would be challenged in their operations, crippled in the ability to meet the aims and goals of a

chapter 11 process, and unable to maximize value for their creditors. Accordingly, the Court should 

enforce the automatic stay.

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A. The Debtors’ Contractual Exclusivity Rights Are Assets of the Debtors Estates 

Subject to Protection Under the Automatic Stay.

60. Property of the bankruptcy estate includes “all legal and equitable interests of the 

debtor in property as of the commencement of the case” wherever located or by whomever held. 

11 U.S.C. § 541(a)(1). “Section 541 is read broadly and interpreted to include all kinds of property 

. . . .” In re Equinox Oil, Inc., 300 F.3d 614, 618 (5th Cir. 2002). “Courts have held, specifically, 

that property of the estate includes contract rights.” In re EBC I, Inc., 356 B.R. 631, 639 (Bankr. 

D. Del. 2006). See also In re Enron Corp., 300 B.R. 201, 212 (Bankr. S.D.N.Y. 2003) (concluding 

that employment agreement between debtor and its head of trading was property of the 

estate subject to the automatic stay); Elder–Beerman Stores Corp. v. Thomasville Furniture Indus., 

Inc. (In re Elder–Beerman Stores Corp.), 195 B.R. 1019, 1023 (Bankr. S.D. Ohio 1996) (“Courts 

have consistently held that contract rights are property of the estate.”). 

61. As property of the estate, the Debtors’ contractual rights, including their exclusive 

right to sell Malibu (and Malibu’s Axis) boats within their Exclusive Territories, is an asset of the 

Debtors’ estates subject to protection of the automatic stay. See In re Mirant Corp., 303 B.R. 319, 

328 (Bankr. N.D. Tex. 2003) (finding that because contract rights are property of the estate, they 

are protected by the automatic stay); In re Computer Commc’ns, Inc., 824 F.2d 725, 729 (9th Cir. 

1987) (“Courts have consistently held that contract rights are property of the estate, and therefore 

those rights are protected by the automatic stay.”). While the Debtors believe their contractual 

rights with Malibu are of the most valuable assets of the Debtors’ estates, value of a contractual 

right is not determinative in enforcement of the automatic stay. See In re Sherlock Homes of W.N.Y, 

Inc., 246 B.R. 19, 24–26 (Bankr. W.D.N.Y. 2000), (finding that contract rights are assets of the 

estate, even when those contract rights would have had limited or even no value and interference 

of such rights is a violation of the automatic stay).

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62. The automatic stay protects the contractual rights of the Debtors, specifically the 

exclusivity rights found in the Dealership Agreements. Upon information and belief, the 

Dealership Agreements with competitor dealerships within the Debtors’ Exclusive Territories are 

not set to commence until July 1, 2024. There is still time to correct this grievous violation of the 

automatic stay. That said, the only way to protect the Debtors’ exclusivity rights through the 

automatic stay is to enjoin Malibu from (i) performing under any existing Dealership Agreements 

with competitor dealers within the Exclusive Territories; (ii) entering into any new Dealership 

Agreements with competitor dealers in the Exclusive Territories; and (iii) selling or shipping boats 

to competitor dealers within the Debtors’ Exclusive Territories that would violate the Debtors’

Dealership Agreements. Such relief is neither extreme nor harmful to Malibu. Malibu, through the 

Debtors’ Dealership Agreements, still retains the ability to sell boats to the Debtors. While the 

Debtors’ purchases will likely slow during these Chapter 11 Case to reduce the excess of inventory 

already in the Debtors’ possession, the need for the Debtors’ reduction of inventory is a creation 

of Malibu’s making and not an excuse to violate the automatic stay.

63. Accordingly, the Debtors request enforcement of the automatic stay by enjoining 

Malibu from (i) performing under any existing Dealership Agreements with competitor dealers 

within the Exclusive Territories; (ii) entering into any new Dealership Agreements with competitor 

dealers in the Exclusive Territories; and (iii) selling or shipping boats to competitor dealers within 

the Debtors’ Exclusive Territories that would violate the Debtors’ Dealership Agreements.

B. The Dealership Agreements are Enforceable Contracts and Any Ambiguity 

Should Weigh in Favor of the Debtors with Respect to the Automatic Stay.

64. Notwithstanding the term expiration of the Dealership Agreements on June 30, 

2023, the plain language of the Dealership Agreements, the course of dealing between the parties, 

and actions taken by Malibu and the Debtors make the Dealership Agreements enforceable 

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contracts. The Dealership Agreements explicitly state that “Malibu will provide Dealer with a new 

agreement, or notice of non-renewal or termination, reasonably in advance of the expiration of this 

Agreement.”11 Dealership Agreement at ¶ 2 (emphasis added). 

65. Moreover, the course of dealing between the Malibu and the Debtors implies is the 

Dealership Agreements are still in place and extended beyond the expiration term. See T.C.A. § 

47-1-303(b)12 (defining course of dealing as “a sequence of conduct concerning previous 

transactions between the parties to a particular transaction that is fairly regarded as establishing a 

common basis of understanding for interpreting their expressions and other conduct.”). While a 

single transaction cannot establish a course of dealing, the emphasis on a sequence of events can 

establish an agreement. See Jerles v. Phillips, 2006 WL 2450400 at *9 (Tenn. Ct. App. Aug. 22, 

2006); Stoop v. Southern Life Ins. Co., 660 S.W. 2d 46, 48 (Tenn. Ct. App. 1983). 

66. Not on, before, or as of the term expiration of the MY23 Dealership Agreement did 

Malibu provide any notice of non-renewal to the Debtors. Rather, Malibu, as it had for every one 

of the 11 years prior, began negotiations for new Dealership Agreements. As negotiations 

continued, Malibu continued its contractual relationship with the Debtors by selling more than 130

boats to the Debtors as well as the Debtors’ representation of Malibu (as Malibu’s sole dealer 

representative) at no fewer than 19 boat shows. The continual sequence of events between Malibu 

and the Debtors from the negotiations of further contracts after the expiration period year after 

11 Paragraph 2 of the Dealership Agreements also provide that “[n]othing in this Agreement (including provisions or 

projections dealing with future performance goals or requirements for periods beyond the term of this Agreement) 

shall be construed to create a promise, representation or agreement of a continuing relationship beyond the term of 

this Agreement, and this Agreement shall be deemed terminated, null and void, if no new agreement is signed except 

as to any provisions which expressly continue beyond the term of this Agreement.” Dealership Agreements at ¶ 2. 

This provision cannot be accepted as it is directly in conflict with the provision that Malibu will enter into a new 

agreement unless proper notice of non-renewal is provided before expiration of the agreement. If the Court accepts 

this provision, it will annihilate the benefit of the bargain that the Debtors entered into guaranteeing further Dealership 

Agreements without notice to the contrary, making such a promise illusory. 

12 The Dealership Agreements require their interpretation under Tennessee law. Dealership Agreements at ¶ 17.

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year, and the willingness and forcefulness of Malibu continually shipping boats in the hundreds to 

the Debtors—even after the expiration term of the MY23 Dealership Agreements—clearly 

establish a course of dealing that the Dealership Agreements continue even after the expiration of 

their terms. Thus, because the Dealership Agreements are in place, enforcement of the automatic 

stay to protect the Debtors’ contractual rights must also be in place. 

67. Even if there is some question as to whether the Dealership Agreements are still in 

place, the Fifth Circuit holds that the Court should weigh any ambiguity of enforcement of the 

automatic Stay in favor of the Debtors. See In re Mirant Corporation, 440 F.3d 238, 251 (5th Cir. 

2006) (“Furthermore, this Court has recognized the automatic stay’s broad application and noted 

that such breadth reflects a congressional intent that courts will presume protection of property 

when faced with uncertainty or ambiguity.”); In re Chestnut, 422 F.3d 298, 300 (5th Cir. 2005) 

(finding that the court should impose the automatic stay where there is only an arguable claim of 

right to the property). 

68. While the Debtors contend that the Dealership Agreements are still in place due to 

Malibu’s course of dealing with the Debtors, at the very least, the automatic stay should be 

enforced as the contract rights are arguable property of the estates until final determination on the 

status of the Dealership Agreements can be made.

II. Punitive Damages for Malibu’s Willful Violation of the Automatic Stay are

Appropriate. 

69. Section 362(k)(1) of the Bankruptcy Code expressly authorizes this Court to award 

both actual damages, including costs and attorneys’ fees, and punitive damages for willful 

violations of the stay. 11 U.S.C. § 362(k)(1). “A willful violation of the stay occurs when a creditor, 

with knowledge of the stay, seizes the debtor’s property without first obtaining relief from the stay 

from the bankruptcy court.” In re Chestnut, 422 F.3d at 300. “Willfulness within the context of an 

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alleged stay violation is almost universally defined to mean intentional acts committed with 

knowledge of the bankruptcy petition.” In re San Angelo Pro Hockey Club, Inc., 292 B.R. 118, 

124 (Bankr. N.D. Tex. 2003) (internal citations omitted). “Whether the party believes in good faith 

that it had a right to the property is not relevant to whether the act was willful or whether 

compensation must be awarded.” In re Chestnut, 422 F.3d at 302 (quoting In re Taylor, 884 F.2d 

478, 482 (9th Cir. 1989)).

70. Here, since the Petition Date, upon information and belief, Malibu has continued to 

deliver boats to competitor dealerships within the Debtors’ Exclusive Territories in violation of the 

Dealership Agreements. There is no dispute Malibu is aware of the Chapter 11 Cases, and the 

Debtors sent notice of such violations to Malibu. Even if Malibu takes the position that there are 

no Dealership Agreements in place (which the Debtors dispute and have established they clearly 

are in effect), any violation of the Dealership Agreements, specifically the exclusivity provision of 

the Dealership Agreements by continuing to provide boats to competitive dealerships, is a willful 

violation of the automatic stay. As such, the Debtors are entitled to actual compensatory damages, 

including attorneys’ fees. The Debtors request to reserve for a future hearing to determine the 

amount of actual compensatory damages.

71. Moreover, the Debtors are entitled to punitive damages “in appropriate 

circumstances” where a willful violation of the stay has occurred. 11 U.S.C. § 362(k)(1). The Fifth 

Circuit adopted an “egregious conduct” standard to determine whether to allow for punitive 

damages. See In re Repine, 536 F.3d 512, 521 (5th Cir. 2008). “Such damages are generally 

designed to cause a change in the creditor’s behavior and serve as a deterrent to certain actions of 

creditors.” In re Wilson, 610 B.R. 255, 278 (Bank. N.D. Tex. 2019) (internal quotations omitted).

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72. Here, again, the actions of Malibu surely meet the “egregious conduct” standard set 

by the Fifth Circuit. Even after the filing of the Chapter 11 Cases, Malibu continues its campaign 

to effectively destroy the Debtors through the violation of the exclusivity provision of the 

Dealership Agreements. Malibu continues to advertise and promote the opening of new and 

replacement dealerships as well as poach the Debtors’ employees to operate those dealerships. 

Even after the Debtors contacted Malibu to alert them to their stay violations, Malibu continues to 

move forward with its scheme to erase the Debtors. Accordingly, this egregious conduct by Malibu 

requires punitive damages to prevent any further misconduct. In order to achieve this, the Debtors 

request punitive damages for the value of each boat delivered to competitor dealerships in violation 

of the Dealership Agreements and the loss of each employee. 

III. An Emergency Hearing on the Motion is Necessary to Prevent Irreparable Harm. 

73. As set forth above, Malibu continues to move forward with “replacement” 

competitor dealerships that have been poaching employees necessary for the Debtors’ operations. 

Action must be taken now to stop the irreparable harm and bleeding that Malibu has already caused 

through its willful violations of the automatic stay. Waiting until June 27, 2024, the next available 

date on regular notice according to the case procedures approved by this Court [Dkt. No. 84], will 

be too late. By that time, the Debtors will have likely lost all Texas and Miami employees plus 

employees at each of the Debtors dealerships where Malibu has replacement dealerships (at the 

time of this Motion, the Debtors are aware of 11 replacement dealerships) making it nearly 

impossible to run the operations of the Debtors, certainly requiring shutdown of several 

dealerships, and the competitor dealerships will likely received a full complement of boat 

inventory. These results have already caused and would continue to cause irreparable hams to the 

Debtors. 

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74. Accordingly, the Debtors request an emergency hearing on the motion, at least as 

to the injunctive relief sought in the enforcement of the automatic stay, be heard no later than June 

6, 2024 at 2:30 p.m. Additional hearings as to damages may be heard on regular notice.

NOTICE

75. Notice of this Motion will be served upon the following parties or, in lieu thereof, 

to their counsel, if known: (a) the Office of the U.S. Trustee; (b) Malibu; (c) M&T Bank; (d) the 

Committee (if any); (e) the holders of the thirty (30) largest unsecured claims against the Debtors 

on a consolidated basis if no Committee has yet been appointed; and (f) those parties who have 

formally filed requests for notice in these Cases pursuant to Bankruptcy Rule 2002. 

76. In light of the nature of the relief requested herein, the Debtors submit that no other 

or further notice is necessary. 

NO PRIOR REQUEST 

77. No prior application for the relief requested herein has been made to this or any 

other court. 

[Remainder of page intentionally left blank.] 

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CERTIFICATE OF CONFERENCE

Pursuant to Local Rule 9007-1(f), the Debtors do not believe a conference with Malibu is 

practicable. On May 27, 2024, counsel to the Debtors provided a letter to counsel for the Debtors 

that requested Malibu cease and desist all violations of the automatic stay. On May 31, 2024, 

counsel to Malibu provided a letter in response took the position that “the Debtors’ accusation that 

Malibu Boats violated to automatic stay is meritless.” Due to Malibu’s intransigence to their willful 

violation of the automatic stay, the Debtors do not believe any conference with Malibu is 

practicable.

Dated: June 3, 2024

Dallas, Texas

GUTNICKI LLP

/s/ Liz Boydston

Liz Boydston (SBN 24053684) 

Alexandria Rahn (SBN 24110246) 

10440 N. Central Expy., Suite 800 

Dallas, Texas 75231

Telephone: (469) 935-6699 

Facsimile: (469) 895-4413 

lboydston@gutnicki.com 

arahn@gutnicki.com 

-andMax Schlan (Admitted Pro Hac Vice) 

Ren-Ann Wang (Admitted Pro Hac Vice) 

Gutnicki LLP 

45 Rockefeller Plaza, Suite 2000 

New York, New York 10111 

Telephone: (914) 920-2662 

Facsimile: (646) 825-2330 

Proposed Counsel to the Debtors and Debtors 

in Possession

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Exhibit A

Proposed Order

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

)

In re: ) Chapter 11

)

TOMMY’S FORT WORTH, LLC, et al.,

13 ) Case No. 24-90000-11

)

Debtors. ) (Jointly Administered)

)

ORDER TO ENFORCE AUTOMATIC STAY AND FOR 

PUNITIVE DAMAGES FOR WILLFUL VIOLATIONS OF THE 

AUTOMATIC STAY AGAINST MALIBU BOATS, INC. AND MALIBU BOATS, LLC

Upon the emergency motion (the “Motion”)14 of the above-captioned debtors and debtors 

in possession (collectively, the “Debtors”) for entry of an order (this “Order”) pursuant to 11 U.S.C. 

sections 105(a) and 362 to enforce the automatic stay so as to prohibit Malibu from taking any 

further actions to violate the exclusivity provisions of the Dealership Agreements with the Debtors

and for punitive damages for willful violations of the automatic stay; the Court having reviewed 

the Motion; the Court having considered the evidence and the statements of counsel with respect 

to the Motion at a hearing before the Court; the Court having found that (a) the Court has 

jurisdiction over this matter pursuant to 28 U.S.C. sections 157 and 1334, (b) venue is proper in 

this district pursuant to 28 U.S.C. sections 1408 and 1409, (c) this is a core proceeding pursuant to 

28 U.S.C. section 157(b), and (d) notice of the Motion and the Hearing was sufficient under the 

circumstances and no other or further notice is required; and this Court having determined that the 

13 The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification 

number, are: Tommy’s Fort Worth, LLC (3473); Tommy’s Holding Company, LLC (2662); Tommy’s Grand Rapids, 

LLC (9224); Tommy’s Castaic, LLC (7501); Tommy’s Lewisville, LLC (4750); High Country Watersports, LLC 

(6160); Walloon Lake Village Marina, LLC (0277); MKB Florida Holdings, LLC (5698); Tommy’s Detroit, LLC 

(5242); Tommy’s California Fresno, LLC (8597); Tommy’s Phoenix, LLC (3036); Tommy’s Las Vegas, LLC (7721); 

Tommy’s Chattanooga, LLC (0839); Tommy’s California Ventura, LLC (5149); Tommy’s Rancho Cordova, LLC 

(1070); Tommy’s Stockton, LLC (1338); and Tommy’s Knoxville, LLC (8052).

14 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion

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legal and factual bases set forth in the Motion and at the hearing establish just cause for the relief 

granted herein; and the Court having determined that the relief sought in the Motion is in in the 

best interests of the Debtors, their estates and parties in interest; and sufficient cause appearing 

therefor, it is therefore ORDERED that:

1. The Motion is granted as set forth herein.

2. Malibu has willfully violated the automatic stay pursuant to 11 U.S.C. 

§ 362(a)(3).

3. As a means to enforce the automatic stay, Malibu shall be enjoined from performing

under any Dealership Agreement with competitor dealers in violation of the Debtors’ Dealership 

Agreements whether or not such Dealership Agreements with competitor dealers were entered into 

before the Petition Date.

4. As a means to enforce the automatic stay, Malibu shall be enjoined from entering 

into any new Dealership Agreements with competitor dealers in violation of the Debtors’ 

Dealership Agreements.

5. As a means to enforce the automatic stay, Malibu shall be enjoined from selling, 

shipping, or delivering any boats to any party other than the Debtors in violation of the Dealership 

Agreements with the Debtors.

6. The relief set forth in this Order shall have immediate effect upon entry of this 

Order.

7. A further hearing to determine damages for Malibu’s willful violation of the 

automatic stay, including determination of punitive damages, shall be held on June, 27, 2024 at 

1:30 p.m. prevailing Central Time. The Debtors will provide notice of the further hearing by first 

class mail to (a) Malibu; (b) counsel for M&T, (c) counsel for the Committee (if any), (d) the 

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Office of the United States Trustee, (e) all parties who have filed requests for notice under 

Bankruptcy Rule 2002, (f) the holders of the thirty (30) largest unsecured claims against the 

Debtors on a consolidated basis if no Committee has yet been appointed, and (g) such other parties 

as this Court may order. Any party wishing to object to the relief sought at the further hearing shall 

file such objection with the Court, together with proof of service thereof, and served upon: (a) 

counsel for the Debtors; (b) Malibu; (c) counsel for M&T; (d) counsel for the Committee (if any); 

and (e) the Office of the United States Trustee, so as to be received no later than June 20, 2024, at 

4:00 p.m. prevailing Central Time.

8. The Court shall retain exclusive jurisdiction over any and all matters arising from 

or related to the implementation, interpretation or enforcement of this Order.

# # # END OF ORDER # # #

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