Upcoming Committee Formation Meeting:  Tuesday, November 28, 2017 10:00 AM

Case Name: 17-12481 (CSS)

Location: The Double Tree Hotel, 700 King Street, 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 Nicholas J. Brannick for more information.

Upcoming Committee Formation Meeting:  Thursday, November 30, 2017 10:00 AM

Case Name: 17-12464 (KJC)

Location: The Double Tree Hotel, 700 King Street, 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 Nicholas J. Brannick for more information.

Upcoming Committee Formation Meeting:  Monday, November 13, 2017 10:00 AM

Case Name: 17-12442 (KJC)

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 Nicholas J. Brannick for more information.

Maurice Sporting Goods, Inc., along with four affiliates and subsidiaries, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 17-12481).  Maurice, which is headquartered in Northbrook, Illinois, engages in the manufacturing, sourcing, distribution and wholesale of outdoor sporting goods products.  Maurice’s petition reports $10 – $50 million in assets and $100 – $500 million in liabilities.  According to the First Day Declaration, Maurice has filed for Chapter 11 as a result of a liquidity crisis whose primary causes are (i) cost overruns in the construction of a state of the art distribution center in McDonough, Georgia, and (ii) losses caused by the bankruptcies of a number of sporting goods retailers.  The Declaration also reports that Maurice has engaged in a prepetition marketing process and intends to file a bid procedures and sale motion with Middleton Management Company, LLC as stalking horse.  Epiq Bankruptcy Solutions is the proposed claims and noticing agent.  The cases have been assigned to the Honorable Christopher S. Sontchi.

 

Contact Norman L. Pernick or Nicholas J. Brannick 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.

Real Industry Inc., a publicly traded holding company based in New York, has, along with seven subsidiaries and affiliates, including its only operating subsidiary, an aluminum recycling and alloy production company based in Beachwood, Ohio, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 17-12464).  According to the First Day Declaration, liquidity constraints and several one-time negative events have led to this filing.  The Debtors enter Chapter 11 having negotiated for $365 million in DIP Financing from the Debtors principal lender and the holders of a majority of the Debtor’s bonds.  Prime Clerk LLC is the proposed claims and noticing agent.  The cases have been assigned to the Honorable Kevin J. Carey.

 

Contact Norman L. Pernick or Nicholas J. Brannick 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.

Velocity Holding Company, Inc., a wholesale distributor, designer, manufacturer, retailer and marketer of branded aftermarket parts, accessories and apparel for the powersports (motorcycle and related) industry based in Coppell, Texas, along with nineteen 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. 17-12442).  Velocity’s petition estimates its assets between $1 – $10 million and its liabilities between $100 – $500 million.  The cases have not yet been assigned to a Judge.

Cole Schotz represents the Debtors. Contact Norman L. Pernick and Nicholas J. Brannick for more information.

Upcoming Committee Formation Meeting:  Thursday, November 16, 2017 10:00 AM

Case Name: 17-12377 (BLS)

Location: The Double Tree Hotel, 700 King Street, Wilmington, DE 19801

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

Contact Norman L. Pernick and Nicholas J. Brannick for more information.

Exelco NV, a diamond and precious metals trader based in Antwerp, Belgium, has filed a voluntary petition under Chapter 15 in the Bankruptcy Court for the District of Delaware (Case No. 17-12409).  As readers of our blog may remember, Exelco North America, Inc., along with three other American affiliates of Exelco NV, previously filed for Chapter 11 on September 27, 2017 (Lead Case No. 17-12029).  According to the Declaration of the Foreign Representative, a Bankruptcy Trustee was appointed for Exelco NV by the Commercial Court of Antwerp, Belgium, on November 2, 2017.  The Trustee was appointed following an involuntary petition submitted by Exelco’s principal creditor, KBC Bank NV, which alleged, among other things, concealment of negative financial figures, fraudulent transfers to subsidiaries and an unexplained loss of $15 million worth of diamonds over a six month period.  The Foreign Representative has also filed a Motion for Recognition of Foreign Main Proceeding.  The case has been assigned to the Honorable Kevin Gross.

Contact Norman L. Pernick or Nicholas J. Brannick 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.

ExGen Texas Power, LLC, along with six of its subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 17-12377).  ExGen’s Petition reports $100 – $500 million in assets and $500 million – $1 billion in liabilities.   According to a March 7th article by Reuters, Exelon’s term loan was trading at 70 cents on the dollar in March when Exelon hired restructuring advisors.  The First Day Declaration has not yet been filed.  A claims and noticing agent has not yet been proposed.  The cases have been assigned to the Honorable Brendan Linehan Shannon.

Contact Norman L. Pernick and Nicholas J. Brannick for more information.

History:  In a June 14, 2017, bankruptcy blog titled “Six Degrees of Separation: Use of Bankruptcy Rule 2004 Examination in Connection with Third-Party Litigation, we reported on what appeared to be a case of first impression that arose in a case pending before United States Bankruptcy Judge Stuart Bernstein in the United States Bankruptcy Court for the Southern District of New York.  In the Chapter 11 case of In Re: Sun Edison Inc., et al., 16-109292(SMB), a dispute had arisen as to whether a debtor (“Sun Edison” or “Debtors”) and a related but non- debtor entity, TerraForm LLC (“TERP”) were entitled to Bankruptcy Rule 2004 discovery with respect to a pending state court litigation between TERP and a non-debtor third party plaintiff (“Plaintiff”).   The Debtors and TERP argued that the outcome of that litigation may have an effect on the value of a significant asset of the bankruptcy estate of the Debtors, being the Debtors’ equity interests in TERP.  In that earlier blog we noted that the Court at oral argument had stated: “You know, every piece of information and fact out there is within six degrees of separation of a Debtors’ assets and financial affairs. The question is where do you draw the line?” 4/2017 Transcript of Hearing, In Re: Sun Edison Inc., et al., Case No. 16-10992-SMB, page 30, lines 6-11.

The Decision:  As of the date of our earlier blog, the question posed by the Court remained unanswered. On June 16, 2017, however, the Court ruled in its fairly lengthy 16 page “Memorandum Decision and Order Denying Motion for a Rule 2004 Examination”. In re Sunedison, Inc., 572 B.R. 482 (Bankr. S.D.N.Y. 2017) (the “Decision”).  First, Judge Bernstein reiterated his ruling from the bench at the hearing denying TERP’s request for Rule 2004 discovery based on the “pending proceeding” rule.  Decision at 490.  Under that rule, Judge Bernstein noted that once an adversary proceeding or contested matter is commenced, discovery should be pursued under the Federal Rules of Civil Procedure and not by Rule 2004, and that the principle also applies to pending state court litigation (in which the state court discovery rules would be applied).  Id.

Turning next to the Debtors, the Court noted that the pending proceeding rule did not apply because the Debtors were not a party to the state court litigation.  The Court then stated that the Debtors would be entitled to Rule 2004 discovery if they could establish cause.  Id.  But beyond this, Judge Bernstein noted, “[r]elevance, however, is not enough; the Debtors must show that they need the discovery for some appropriate purpose, or that the failure to get the discovery will result in hardship or injustice.”  Id.   Judge Bernstein ruled that the Debtors’ essential argument that that cause exists because the outcome of the state court action will have a material effect on the value of an important asset (the TERP shares) did not withstand scrutiny under the facts of this case.  Id. at 491.

Judge Bernstein noted that this was not a circumstance in which a debtor was seeking pre-litigation discovery for a legitimate and supportable basis, such as into claims that it owns, or examining into whether to take control of a subsidiary in order to sell or liquidate its assets.  Id.  The Court opined that “Rule 2004 does not reach so far as to allow a debtor to take discovery from participants in third-party litigation involving claims it does not own or defenses it will not assert simply because the outcome may affect the value of an asset the debtor does own.”  Id.    Judge Bernstein noted further that he had requested supplemental briefing on this point, but the Debtors were unable to cite any authority to support their use of Rule 2004 to discover the merits of claims asserted in third party litigation against a subsidiary in order to value its stock ownership.  Id.  Furthermore, Judge Bernstein stated that the Debtors failed to support their assertions that they needed the discovery to finalize a chapter 11 plan, ensure accurate disclosure, reassure lenders and secure exit financing, and confirm and implement a Plan.  Id.  [Note: With the benefit of the passage of time, it is now known that the Debtors were able, without the Rule 2004 discovery it sought, to procure replacement debtor in possession financing, obtain approval of their disclosure statement, confirm a plan and have the plan go effective.]

In addition, Judge Bernstein stated in his decision that the specific circumstances of the joint Rule 2004 request gave the Court pause.  More specifically, it appeared to Judge Bernstein that with the Debtors and TERP being “united in interest regarding the desired outcome of the [state court action between TERP and the Plaintiff], what was actually occurring was an effort by the Debtors to use Rule 2004 to help TERP get the discovery that should be sought by TERP in the [state court action].”  Id. at 492.

Judge Bernstein concluded that the Debtors “failed to show any necessity for the Rule 2004 discovery, or that they will suffer injustice or hardship if they don’t get it.”   Id.

So, while a Rule 2004 examination itself may be broad, designed to assist the trustee in revealing the nature and extent of the estate, ascertaining assets, and discovering whether any wrongdoing has occurred, there does not appear to be any clearly definable answer to the question of how many degrees of separation may exist before moving beyond examination pursuant to Bankruptcy Rule 2004.  It appears that the elements of “cause” that a debtor must satisfy will be guided by the specific facts underlying the discovery it seeks, and an unsupported general assertion of need, or of adverse effect in the absence of such examination, will be a degree too far.