The Bankruptcy Code gives a bankruptcy trustee, or the debtor in possession, the power to “avoid” certain transfers made by the debtor at various times before filing for bankruptcy relief.  Congress provided a number of limits on these significant avoidance powers, whether within the sections granting the powers themselves (e.g., in Section 547(c), which sets forth a number of transfers that a trustee or debtor may not avoid, and Section 547(b)’s statutory limitation with respect to potentially preferential transfers to non-insiders made beyond the 90 days preceding the bankruptcy filing) or in other sections of the Bankruptcy Code, such as Section 546, which is aptly entitled “Limitations on Avoiding Powers.”  Subsection “(e)” of Section 546, which limits a trustee’s avoiding powers with regard to certain securities related transactions, has been the subject of noteworthy debate.

The implementation of Section 546(e)’s “safe harbor” provision was the central issue in Merit Management Group, LP v. FTI Consulting, Inc.  In Merit, a racetrack casino, Valley View Downs, acquired another racetrack casino in Pennsylvania through a stock purchase transaction.  In order to complete the transaction, Valley View arranged for a portion of the purchase price to be wired into the account of a third party escrow agent.  Following closing, the third party escrow agent distributed funds as provided for by the parties’ purchase agreement, including to one of the seller’s shareholders, Merit Management Group.  However, despite the foregoing stock acquisition, Valley View and its parent company ultimately filed a Chapter 11 bankruptcy.

Following confirmation of the plan of reorganization in Valley View and its parent’s bankruptcy, FTI Consulting, as trustee of the litigation trust, attempted to avoid those payments made to Merit by the third party escrow agent.  FTI argued that such payments were constructively fraudulent.  In response to FTI, Merit argued that because the payment it received was transferred to it from a financial institution, acting as an intermediary escrow agent, the payment was protected under the safe harbor in Section 546(e).

Courts have interpreted the safe harbor’s reach differently, with a majority of Circuit Courts of Appeal—the Second, Third, Sixth, Eighth, and Tenth Circuits—holding that the presence of a qualifying financial institution in a securities related transaction, even if acting as an intermediary or a conduit, is sufficient to trigger the protections of Section 546(e) for the entire transaction.  A minority of Circuits that have addressed this issue—the Seventh and Eleventh Circuits—have held the opposite: that the mere presence of a qualifying financial institution in a securities related transaction, if only acting as a conduit or intermediary, is insufficient to trigger the safe harbor of Section 546(e).  The Supreme Court granted certiorari from the Seventh Circuit in Merit and resolved this split of authority.

The Supreme Court sided with the minority of Circuits and affirmed the Seventh Circuit.  In a unanimous decision, the Supreme Court held “that the only relevant transfer for the purposes of the [Section 546(e)] safe harbor is the transfer that the trustee seeks to avoid.”  Said differently, the relevant transfer for the purposes of Section 546(e)’s safe harbor is the overarching transfer a trustee identifies for avoidance, rather than the intervening pass-through transfers that are part and parcel of that overarching transfer.

In reaching this conclusion, the Supreme Court began its analysis by looking at the statutory scheme of a trustee’s avoidance powers and the statutory history of Section 546, before turning to a textual analysis of the section.  There, the Court emphasized that the text of Section 546(e) creates an exception to a transfer that would otherwise be avoidable.  It reasoned that the “notwithstanding” clause, which lists each of the sections containing a trustee’s avoiding powers wholesale, signals that the safe harbor is intended to apply to the entirety of a trustee’s avoiding powers under such sections.  Thus, the Court concluded, the starting point for determining the scope of the safe harbor is the trustee’s substantive avoiding powers and, “consequently, the transfer a trustee seeks to avoid as an exercise of those powers.”

The Supreme Court went on to identify other portions of the text that supported its analysis, such as the exception contained within the safe harbor which prevents its application to actually fraudulent transfers.  The Court concluded that such an exception further signals Congress’ intent that the safe harbor applies to the overarching transfer, rather than a mere component part, by explicitly identifying an entire type of transfer that is outside the scope of the safe harbor.  Memorably, the Supreme Court concluded its textual interpretation of Section 546(e) by stating, “Not a transfer that involves.  Not at transfer that comprises.  But a transfer that is a securities transaction covered under §546(e).”

The opinion concludes by discussing the role of Section 546(e) within the statutory structure of the Bankruptcy Code as a whole and then addressing and dismissing Merit’s counter arguments.

To be sure, given that the Supreme Court sided with the minority of Courts, those circuits which were abrogated by Merit will have to adjust their case law going forward.  However, legal scholars are already speculating on the effect of the holding in Merit on leveraged-buyout transactions in bankruptcy and suggesting work-arounds.  Accordingly, the long term effects of Merit remain to be seen.

Upcoming Committee Formation Meeting:  Friday, April 27, 2018 10:00 AM

Case Name: 18-10894 (MFW)

Location: Delaware State Bar Association, 405 N. King Street, 2nd Floor, Wilmington, DE 19801

Notice of Formation Meeting for Official Committee of Unsecured Creditors can be found here. See the petition for relief.

Contact Norman L. Pernick and G. David Dean for more information.

Section 365 of the Bankruptcy Code provides that a debtor “subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.”  11 U.S.C. § 365.  This provision is a powerful tool because it allows a chapter 11 debtor to assume agreements that will be beneficial to restructuring efforts while rejecting agreements that are burdensome.  Given its importance, the application of section 365 is not without challenge and subject to interpretation.

Two recent bankruptcy court decisions, In re Cho, 581 B.R. 452 (Bankr. D. Md. 2018) and In re Thane International, Inc., No. 15-12186-KG, 2018 WL 1027658 (Bankr. D. Del. Feb. 21, 2018), examine the fundamentals of executory contracts — when a contract is “executory” and whether there can be an “implied” assumption and assignment of an executory contract.

In re Cho

Considering whether a prepetition settlement agreement was an executory contract that could be rejected, the Maryland bankruptcy court, in Cho, observed: “whether a contract is executory depends on the facts of the particular matter, the language of the subject agreement, and the consequences under applicable nonbankruptcy law of either party ceasing to perform any ongoing or remaining obligations under the contract.”  Cho, 581 B.R. at 454.

In Cho, the debtors were defendants in state court litigation prior to filing bankruptcy.  Id.  The parties to the state court litigation agreed to a settlement that was reduced to writing, but the defendants refused to sign and maintained that the plaintiffs violated a certain non-disparagement provision in the settlement.  Id.  The state court ruled that there was a valid agreement and compelled the parties to execute the agreement.  Id.  Thereafter, the defendants filed for chapter 11 relief and moved to reject the settlement agreement as an executory contract under section 365 of the Bankruptcy Code.  Id.

Based on the facts and state court ruling, the bankruptcy court initially determined that there was a valid and enforceable contract under Maryland law.  Id. at 460.  Then, the court considered whether the contract was an “executory contract” for purposes of rejection under section 365 of the Bankruptcy Code.  Id. at 461.  Applying the Countryman test, the court evaluated whether both parties had unperformed obligations under the contract, which if not performed would result in a material breach of the contract.  Id.  Under the settlement agreement, the debtors were required to, in part, transfer a dry-cleaning business to the plaintiffs and make a cash payment.  Id. at 462-463.  The plaintiffs were required to dismiss litigation and note a certain judgment was satisfied.   Id. at 463.  In addition, both parties had non-disparagement obligations.  Id.

The main issue for the court was whether the obligations, and in particular the plaintiff’s obligations, were material under Maryland law.  Id. at 462.  The court noted this question depended on the primary purpose of the contract, which the court found to be settling the litigation and providing finality and certainty to the parties, and the non-disparagement provision bolstered and served this purpose.  Id. at 463-464.  Accordingly, the court held that the agreement could be rejected as an executory contract and the record supported the debtors’ business judgment and request to reject.  Id. at 466.  The court also observed that rejection generally does not eviscerate the non-breach party’s state law rights under the contract but any nonbankruptcy rights that the plaintiffs retain do not include the right to request specific performance of the agreement.  Id. at 467-68 citing Newman Grill Sys., LLC v. Ducane Gas Grills, Inc., 320 B.R. 324, 337 (Bankr. D. S.C. 2004).

In re Thane International

 In Thane, Delaware bankruptcy court considered “whether an executory contract that was neither affirmatively assumed nor rejected was included and assigned in a sale transaction.”  Thane, 2018 WL 1027658 at *1.  In Thane, the court had approved a sale of substantially all of the debtor’s assets under section 363 of the Bankruptcy Code.  Id.  A contract with a producer of informercials was not included as a contract to be assumed and assigned as part of the sale.  Id. Several months after the sale closed, the producer filed suit against the purchaser alleging it was owed royalties under a production agreement with the debtor.  Id.  The producer argued that the purchaser’s post-closing conduct and use of the contract effectuated a valid assumption and assignment of the contract.  Id. at *4.  The purchaser moved to dismiss the action on the basis that the producer failed to “distinguish pre- and post-closing royalties” and argued, in part, that an assumption and assignment did not occur because the “strictures” were not met, and “course of conduct cannot substitute.”  Id. at *1 and 2.

The bankruptcy court rejected the producer’s argument that the purchaser’s course of conduct constituted an implied or tacit assumption.  Id. at *6.  The court held that “there is no assumption” of an executory contract “absent a motion” as required under section 365 of the Bankruptcy Code.  Id.  In so ruling, the court observed that “there simply cannot be an assumption without providing the necessary cure and adequate assurance of one”, which the producer did not receive.  Id. at *7 citing 11 U.S.C. § 365(b)(1)(A)-(C).  As summarized by the court, section 365 allows a debtor “to do three things with an executory contract: (i) reject it, (ii) assume it or (iii) assume and assign it.”  Thane at *10.

The Cho and Thane decisions provide helpful guidance in determining whether an agreement is executory and a debtor’s options under section 365.  Cho is a reminder of the power of section 365 to a debtor while Thane is a reminder to adhere to the Code’s procedural requirements to obtain the benefits of section 365.

Bertucci’s Holdings, Inc., along with nine subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-10894).  Bertucci’s, headquartered in Worcester, MA, is a brick oven Italian eatery with fifty-nine (59) locations through the Northeast and Mid-Atlantic.  According to the First Day Declaration, Bertucci’s enters Chapter 11 intending to immediately reject 29 of its leases and intends to pursue a sale of substantially all of its assets, with Right Lane Dough Acquisition, LLC, as stalking horse purchaser.  Bertucci’s is also seeking approval to borrow up to $4 million in DIP Financing from Right Lane Dough.  Bertucci’s proposed bid procedures seek to have the auction held on May 29, 2018, and the Sale Hearing held on May 30, 2018.  Prime Clerk LLC is the proposed claims and noticing agent.  The cases have been assigned to the Honorable Mary F. Walrath.

Contact Norman L. Pernick or G. David Dean for more information regarding this matter.  Please note, however, that Cole Schotz P.C. does not represent the debtors in these cases and cannot respond to questions directed toward the debtors.

Upcoming Committee Formation Meeting:  Thursday, April 12, 2018 10:00 AM

Case Name: 18-10834 (KG)

Location: U.S. Trustee Office, 844 King Street, Suite 3209, Wilmington, DE 19801

Notice of Formation Meeting for Official Committee of Unsecured Creditors can be found here. See the petition for relief.

Contact Norman L. Pernick and G. David Dean for more information.

VER Technologies HoldCo LLC, along with eight subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-10834).  VER, a media production equipment and solutions provider, has some familiarity with the Chapter 11 process, having purchased the assets of DigitalSound Production Services in a sale under Section 363 of the Bankruptcy Code in December 2015.  Although a first day declaration has not yet been filed, VER’s petition discloses that it enters Chapter 11 having entered into a restructuring support agreement and will be seeking approval of DIP Financing provided by its pre-petition senior lenders.  KCC LLC is the proposed claims and noticing agent.  The cases have been assigned to the Honorable Kevin Gross.

Contact Norman L. Pernick or G. David Dean for more information regarding this matter.  Please note, however, that Cole Schotz P.C. does not represent the debtors in these cases and cannot respond to questions directed toward the debtors.

EV Energy Partners, L.P., along with thirteen (13) affiliates and subsidiaries, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-10814).  EV, based in Houston, Texas, is an upstream oil & gas developer operating throughout the United States.  According to the Debtors’ press release, they enter Chapter 11 having entered into a restructuring support agreement with their senior noteholders and lenders and having solicited votes on a prepackaged plan of reorganization.   According to the First Day Declaration, 100% of the Debtors’ senior lenders and ~92% of the Debtors’ senior noteholders have voted in favor of the plan.  The Disclosure Statement to the Plan may be found here.  The Debtors seek to have a confirmation hearing held on May 15, 2018.  Prime Clerk LLC is the proposed claims and noticing agent.  The cases have been assigned to the Honorable Christopher S. Sontchi.

Contact Norman L. Pernick or G. David Dean for more information regarding this matter.  Please note, however, that Cole Schotz P.C. does not represent the debtors in these cases and cannot respond to questions directed toward the debtors.

Destination Properties of America LLC, an Avondale, Arizona-based travel and real estate agency, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Case No. 18-10732).  The Petition identifies the Debtor as a small business debtor and estimates the Debtor’s assets to be between $1–$10 million and liabilities to be between $500,000–$1 million.  A list of top creditors has not yet been filed.  No claims or noticing agent has been proposed.  The case has been assigned to the Honorable Laurie Selber Silverstein.

Contact Norman L. Pernick for more information regarding this matter.  Please note, however, that Cole Schotz P.C. does not represent the debtors in these cases and cannot respond to questions directed toward the debtors.

Frog Rock Investments, LLC, along with three subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court  for the District of Delaware.  All of the Debtors are affiliates of, and are seeking joint administration with, the Woodbridge Group of Companies, et al. (Lead Case No. 17-12560).  According to the Corporate Organizational Chart attached to the Petition, the additional Debtors are “non-collateral filers.”  Cole Schotz reported on Woodbridge’s filing here, and on the filing of additional Woodbridge co-Debtors here, here and here.  The Garden City Group is the claims and noticing agent.  The cases have been assigned to the Honorable Kevin J. Carey.

Contact Norman L. Pernick for more information regarding this matter.  Please note, however, that Cole Schotz P.C. does not represent the debtors in these cases and cannot respond to questions directed toward the debtors.

Southeastern Grocers, LLC, along with twenty-six (26) of its affiliates and subsidiaries, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-10700).  Southeastern, headquartered in Jacksonville, FL, is one of the largest supermarket operators in the United States, and operates under the Winn/Dixie, BI-LO, Harveys and Fresco y Mas trademarks.   Southeastern previously announced on March 15, 2018, that it had entered into a restructuring support agreements with an ad hoc group representing 80% of Southeastern’s unsecured noteholders.  Southeastern enters Chapter 11 having solicited votes pre-petition on its prepackaged plan of reorganization and seek to have a confirmation hearing held on May 10, 2018.  According to the First Day Declaration, more than 68% of Southeastern’s unsecured noteholders and 99% of its existing equity holders have voted in favor of the Plan.  The disclosure statement can be found here.   Prime Clerk LLC is the proposed claims and noticing agent.  The cases have been assigned to the Honorable Mary F. Walrath.

Contact Norman L. Pernick for more information regarding this matter.  Please note, however, that Cole Schotz P.C. does not represent the debtors in these cases and cannot respond to questions directed toward the debtors.