Official Committee of Unsecured Creditors of Allied Systems Holding, Inc. v. Yucaipa American Alliance Fund I, LP (In re Allied Systems Holding, Inc.)
Official Committee of Unsecured Creditors of Allied Systems Holding, Inc. v. Yucaipa American Alliance Fund I, LP (In re Allied Systems Holding, Inc.)
Opinion of the Court
OPINION
INTRODUCTION
Before the Court are several motions that raise two issues:
1. Are plaintiffs claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty against Mark Gendregske, the Debtor’s Chief Executive Officer and a member of its board of directors, core proceedings under 28 U.S.C. § 157(b)?
2. Should the Court strike Mr. Gen-dregske’s jury demand?
For the reasons set forth below, the Court concludes that plaintiffs claims asserted against Mr. Gendregske in the Amended Complaint are non-core proceedings because they are not on the list of core proceedings in 28 U.S.C. § 157(b), and the claims do not invoke a substantive right provided by title 11, nor do the claims arise only in the context of a bankruptcy case. In addition, the Court will deny plaintiffs motion to strike Mr. Gen-dregske’s jury demand because the relief sought against Mr. Gendregske in the Amended Complaint is for compensatory monetary damages and is legal in nature, rather than equitable.
JURISDICTION AND VENUE
This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. Venue is proper in this District pursuant to 28 U.S.C. §§ 1408 and 1409.
A. Chapter 11 Proceedings
On May 17, 2012, involuntary petitions were filed in this Court by BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 Ltd., and Spectrum Investment Partners LP (collectively, the “Petitioning Creditors”) against Allied Systems Holdings, Inc. (“Allied”) and its subsidiary Allied Systems, Ltd. (L.P.) (“Systems”) under Chapter 11 of the Bankruptcy Code. On June 10, 2012, the remaining debtors (together with Allied and Systems, the “Debtors”) filed voluntary petitions in this Court and, in connection therewith, Allied and Systems consented to the involuntary petitions filed against them. The Debtors’ cases are being jointly administered.
The Office of the United States Trustee has appointed an official committee of unsecured creditors (the “Committee”). On February 1, 2013, the Committee, on behalf of the Debtors, commenced an adversary proceeding by filing a complaint against Mr. Gendregske, among others. On March 21, 2013, the Court entered an order granting the Committee standing to prosecute the claims in this Adversary Proceeding.
B. The Committee’s Claims Against Mr. Gendregske
Mr. Gendregske is the chief executive officer and a director of Allied. In May 2007, Allied emerged from its first bankruptcy filled in the Northern District of Georgia and, as a result of certain terms in the plan of reorganization, Yucaipa
To finance its emergence, Allied obtained two credit facilities: (i) a $265 million senior secured first priority credit facility (the “First Lien Credit Facility”) as evidenced by the First Lien Credit Agreement,
To address these concerns, Yucaipa advised the board it would be willing to acquire certain of the debt outstanding under the First Lien Credit Facility and the Second Lien Credit Facility and to contribute that debt to Allied’s capital. However, under the terms of both the First Lien Credit Agreement and the Second Lien Credit Agreement, Yucaipa as the “Sponsor” was prohibited from acquiring any of the debt or becoming a “Lender” as defined in the Agreements. Yucai-pa negotiated certain amendments to the First Lien Credit Agreement and the Second Lien Credit Agreement to permit it to acquire the debt.
The Third Amendment, while allowing Yucaipa to purchase loans, imposed restrictions on Yucaipa. These restrictions included, among other things: (i) a cap on the amount of debt Yucaipa could acquire; (n) a requirement that 50% of any Term Loans acquired be contributed to Allied’s capital; and (iii) an absolute prohibition of Yucaipa voting that debt in respect of any matter submitted to the First Lien Lenders for a vote. Allegedly, Yucaipa never acquired any debt under the terms of the Third Amendment.
Instead, Yucaipa planned to purchase more than 50% of the debt under the First Lien Credit Facility and take control of the First Lien Credit Facility as the “Requisite Lender.”
ComVest, as the Requisite Lender, insisted Yucaipa and Allied pursue a restructuring or sale of Allied. Yucaipa and the Allied board, including Mr. Gendregske, refused. Yucaipa, with the knowledge and approval of the Allied board, pursued ComVest to purchase its debt. Yucaipa caused the Allied board to default on an interest payment due to the First Lien Lenders, even though Allied had sufficient liquidity to make the interest payment, to increase leverage and prompt ComVest into a sale.
Yucaipa entered into an agreement with ComVest to acquire all of ComVest’s obligations. Yucaipa caused Allied to enter into a purported Fourth Amendment with ComVest to remove all of the restrictions imposed on Yucaipa’s acquisition, ownership, arid voting of obligations under the First Lien Credit Agreement as amended through the Third Amendment. This purported Fourth Amendment arguably made Yucaipa eligible to be the Requisite Lender under the First Lien Credit Agreement. The Purported Fourth Amendment bene-fitted only Yucaipa, not Allied. No First Lien Lenders, other than ComVest, con
Mr. Gendregske, as CEO and an independent director, approved Allied’s execution of the purported Fourth Amendment. Yucaipa impermissibly asserted that it was the Requisite Lender and prevented the administrative agent from taking any action on behalf of the First Lien Lenders to accelerate the obligations or exercise remedies. Allied continued to default under the terms of the First Lien Credit Agreement for more than three years, including failing to pay millions of dollars of principal and interest to Allied’s other First Lien Lenders.
The Committee alleges that Mr. Gen-dregske acted at the behest of an in concert with Yucaipa in furtherance of its scheme to take control over the financial structure of the Debtors. He failed to take rudimentary steps necessary to protect Allied’s interests as CEO and a member of the board of directors. The Special Committee of independent directors, including Mr. Gendregske, failed to exercise appropriate control over Yucaipa’s actions, failed to educate itself in reviewing proposed transactions, and failed to ever seek independent advice when it allegedly reviewed transactions involving Yucaipa.
PROCEDURAL HISTORY
On March 21, 2013, Mr. Gendregske filed the Motion Of Defendant Mark J. Gendregske To Dismiss The Claims Asserted Against Him In The Official Committee Of Unsecured Creditors Amended Complaint For (i) Equitable Subordination, (ii) Recharacterization, (iii) Breach Of Contract, (iv) Specific Performance, (v) Breaches Of Fiduciary Duties, (vi) Aiding And Abetting Breaches Of Fiduciary Duties, (vii) Avoidance And Recovery Of Avoidable Transfers, And (viii) Disallowance Of Certain Claims [D.I. 81] (“Motion to Dismiss”).
On April 8, 2013, Mr. Gendregske filed the Motion for Withdrawal of Reference [D.I. 111]; the Motion of Defendant Mark Gendregske for Determination that the Claims Asserted Against Him Constitute Non-Core Proceedings [D.I. 113] (“Core/ Non-Core Motion”); and a Demand for Jury Trial [D.I. 114].
On April 9, 2013, the Court conducted a hearing on the Motion to Dismiss and ruled from the bench that the motion would be denied. Later on April 9th, the Court entered an Order [D.I. 115] denying the Motion to Dismiss. The Order contained the following statements: “The Court having found that ... (ii) this is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2) ... and (iv) the Court has judicial power to enter a final order.” On April 16, 2013, Mr. Gendregske filed the
On April 29, 2013, the Committee and the Petitioning Creditors filed the Motion to Strike Mark Gendregske’s Jury Demand [D.I. 133] (the “Motion to Strike”).
This is the Court’s decision on the Core/ Non-Core Motion, the Rule 59(e) Motion and the Motion to Strike.
ANALYSIS
A. Core and Non-Core Proceedings
1. Core Proceedings Under the Statute
In analyzing whether a matter is a core proceeding under section 157(b)(2) there are two related issues at play: jurisdiction and judicial power. As to jurisdiction, district courts have “original and exclusive jurisdiction of all cases under title 11.”
As to judicial power, district courts may refer any or all such proceedings to the bankruptcy judges of their district.
In considering the extent of the bankruptcy courts’ judicial authority under the statute, the Supreme Court has held that there are two distinct possible outcomes. The first is that the district court has jurisdiction over a matter because it “arises under” or “arises in” title 11. Further the “arising under” and “arising in” matters are, by definition, core proceedings in which the bankruptcy courts may enter final orders. The second possibility is that the district court has jurisdiction because a matter is “related to” a case under title 11. “Related to” matters are, by definition, non-core proceedings in which the bankruptcy courts may only issue proposed finding of fact and conclusions of law. There is no middle ground. A core proceeding may not be “related to” a case under title 11; and a non-core proceeding may not “arise in” or “arise under” title 11. Thus, the terms “core proceedings” on the one hand and matters “arising in” or “arising under” on the other are, in effect, interchangeable. The exis
Put simply: If a matter is core, the statute empowers the bankruptcy judge to enter final judgment on the claim, subject to appellate review by the district court. If a matter is non-core, and the parties have not consented to final adjudication by the bankruptcy court, the bankruptcy judge must propose findings of fact and conclusions of law. Then, the district court must review the proceeding de novo and enter final judgment.15
2. The Claims Against Mr. Gen-dregske Are Non-Core Proceedings
Section 157(b)(2) sets forth a non-exclusive list of core proceedings. The Third Circuit has adopted a two-step process to determine whether a claim is a core proceeding. “First, ‘a court must consult § 157(b)’ to determine if the claim at issue fits within that provision’s ‘illustrative list of proceedings that may be considered ‘core.’ ”
This second element of the Third Circuit’s test has probably been overturned by Stem, at least with regard to enumerated core proceedings. Nonetheless, this Court has continued to apply the test because it serves well as the standard for determining whether a proceeding that is not enumerated is, nonetheless, core. Thus, a matter may be core even if it is not enumerated as such “[1] if it invokes a substantive right provided by title 11 or [2] if it is a proceeding, that by its nature, could arise only in the context of a bankruptcy case.”
In response to the Core/Non-Core Motion, the Committee argues that the counts against Mr. Gendregske for breach of fiduciary duty and aiding and abetting breach of fiduciary duty should be treated as core proceedings because “they are inextricably intertwined with the equitable subordination claim” against Yucaipa.
The Court concludes that the claims against Mr. Gendregske for breach of fiduciary duty and aiding and abetting breach of fiduciary duty constitute non-core, related-to proceedings over which the Court may submit.proposed findings of fact and conclusions of law. First, claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty do not appear on the list of core proceedings in section 157(b). Second, these claims are not core because they do not invoke a substantive right provided by title 11, nor do the claims arise only in the context of a bankruptcy case. Indeed, the overwhelming majority of courts in this district and other districts conclude that breach of fiduciary claims do not involve the application of bankruptcy law, are ordinary state law causes of action, and could proceed outside the bankruptcy court.
The Committee’s argument that the Court should treat the claims as core because they are intertwined with the equitable subordination claim against Yucaipa is not persuasive. The Committee relies on CDX Liquidating Trust v. Venrock Assocs., 2005 WL 3953895 (N.D.Ill. Aug. 10, 2005) to support its position. In that case, the trustee filed a complaint against members of the debtor’s board of directors, among others, for breach of fiduciary duty and aiding and abetting breach of fiduciary duty. The CDX Liquidating Trust court noted that breach of fiduciary duty claims are generally deemed not to be core matters, but the court still considered the claims core because they were “enmeshed with the equitable subordination claim.”
CDX Liquidating Trust is distinguishable from the present matter and inconsistent with established Third Circuit law. First, CDX Liquidating Trust involved a complaint against the debtor’s directors— who had filed proofs of claim against the estate — for equitable subordination of those filed claims as well as breach of fiduciary duty and aiding and abetting breach of fiduciary duty. Here, Mr. Gen-dregske has not filed a proof of claim against the estate. Second, in In re Exide
The Court has “related to” jurisdiction over the non-core claims if their resolution could conceivably have an effect on the estate.
B. The Motion to Strike Mr. Gen-dregske’s Jury Demand
“[T]he bankruptcy court is an appropriate tribunal for determining whether there is a right to a trial by jury of issues for which a jury trial is demanded.”
The Supreme Court in Granfianciera provided factors courts must balance when deciding whether there is a right to a jury trial:
*608 First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature. The second stage of this analysis is more important than the first. If, on balance, these two factors indicate that a party is entitled to a jury trial under the Seventh Amendment, we must decide whether Congress may assign and has assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as fact finder.33
I. First: Legal or Equitable Claims
The first step of the analysis requires the Court to determine whether the Committee’s claims' against Mr. Gendregske for breach of fiduciary duty and aiding and abetting breach of fiduciary duty would have been considered legal or equitable in 18th century English courts. “Actions for breach of fiduciary duty, historically speaking, are almost uniformly actions ‘in
equity’ — carrying with them no right to trial by jury.”
2. Second: Legal or Equitable Relief
The second factor in the Gran-fianciera analysis requires the Court to characterize the relief sought. This factor is more important than the first.
Mr. Gendregske argues that the relief sought is a legal remedy because it is for compensatory damages allegedly incurred by Allied.
“Damages ‘are considered to be equitable relief if they are restitutionary in nature — that is, they would restore the status quo and return a sum rightfully belonging to another.”
In Cantor v. Perelman, the district court had “some reason to doubt whether the Second Circuit’s conclusion [in Pereira was] correct.”
The plaintiffs in Cantor sought to recover “the benefits obtained by defendants as a result of their breaches of fiduciary duty or participation in breaches of fiduciary duty, in an amount to be determined at trial, but believed to be no less than $553.5 million.”
The Cantor court’s proffered limitation of the Supreme Court’s holding in Great-West is not without its own flaws. In Sereboff v. Mid Atlantic Med. Servs.,. Inc., the Supreme Court noted that “[t]he kind of relief Greab-West sought ... was ‘not equitable — the imposition of a constructive trust or equitable lien on particular property — but legal — the imposition of personal liability for the benefits that [Great-West] conferred upon [Knudson].’ We accordingly determined that the suit could not proceed under § 502(a)(3).”
Indeed, former Judge Walsh applied the Granfinanciera factors in one case where a jury demand for breach of fiduciary duty claims was made, and relied on Great-West’s reasoning to determine whether the relief sought was equitable or legal in one of these cases. In OHC Liquidation Trust,
Still, the Supreme Court has never “go[ne][so] far as to say that any award of monetary relief must necessarily be ‘legal’ relief.”
Here, the Committee alleges that “Yu-caipa’s actions caused Allied to pay millions of dollars for services of agents and advisors whose services solely benefitted Yucaipa.”
The Committee contends that these breaches of fiduciary duty resulted in the “payment of millions of dollars in purported fees paid to or on behalf of Yucaipa.”
The Committee’s Reply argues that the Amended Complaint seeks restitution of at least $1.6 million in bonuses paid to Mr. Gendregske by Yucaipa from Allied’s coffers.
Despite these new allegations in the Committee’s Reply, the relief sought in the Amended Complaint is similar to that in other circumstances in which courts concluded the relief sought for breach of fiduciary duty constitutes money damages and is not equitable relief. In Pereira, the plaintiff sought “compensatory damages” in his prayer for relief, which the Second Circuit noted is the classic form of legal relief.
Cantor provides the Committee with its best hope for striking the jury demand, however, the Cantor case is not the proper comparison. In Cantor, the plaintiffs sought to recover “the benefits obtained by defendants as a result of their breaches of fiduciary duty or participation in breaches of fiduciary duty, in an amount to be determined at trial, but believed to be no less than $553.5 million.”
Here, the Amended Complaint contains no allegations that Mr. Gendregske is in possession of particular funds or property to restore to Allied, or even that Mr. Gen-dregske obtained benefits as a result of the alleged breaches. Indeed, the final subparagraph in the Committee’s prayer for relief seeks “such other or further relief as is just, proper and equitable.”
C. The Rule 59(e) Motion
In the Rule 59(e) Motion, Mr. Gendregske requests that the Court amend its April 9th Order denying the Motion to Dismiss to remove the statements that the claims against Mr. Gen-dregske are core proceedings and the Court has the judicial power to enter a final order in connection with those claims. Federal Rule of Civil Procedure 59(e), made applicable to this adversary proceeding by Rule 9023 of the Federal Rules of Bankruptcy Procedure, governs motions for reconsideration. A motion for reconsideration may be granted where (i) there has been an intervening change in controlling law; (ii) new evidence has become available; or (iii) there is a need to prevent manifest injustice or to correct a clear error of law or fact.
None of the briefing in connection with the Motion to Dismiss addressed the issue of whether the claims asserted against Mr. Gendregske are core or non-core proceedings. None of the parties’ arguments nor the Court’s ruling on the Motion to Dismiss address whether the claims are core proceedings. Moreover, the day before the hearing on the Motion to Dismiss, Mr. Gendregske filed the Core/Non-Core Motion.
The issue of whether the claims asserted against Mr. Gendregske are core or non-core proceedings was not before the Court in connection with the Motion to Dismiss and, indeed, had already been challenged by Mr. Gendregske at the time the Court entered its Order. As discussed above in detail, the Court has now determined that those claims are not core proceedings. Thus, the Court will amend its April 9 th Order to remove the statements at issue.
CONCLUSION
For the reasons set forth above the Court will (i) grant the Motion of Defendant Mark Gendregske for Determination that the Claims Asserted Against Him Constitute Non-Core Proceedings; (ii) grant the Motion of Defendant Mark Gen-dregske Pursuant to Federal Rule of Bankruptcy Procedure 9023 and Federal Rule of Civil Procedure 59(e) to Amend the Order Denying Motion to Dismiss; and (iii) deny the Motion to Strike Mark Gendregske’s Jury Demand. An order will be issued.
. The Petitioning Creditors have intervened as plaintiffs in the adversary proceeding.
. The facts recited herein are drawn from the Amended Complaint [D.I. 76] and do not constitute any finding by the Court on the merits of the allegations.
. “Yucaipa” shall mean Yucaipa American Alliance Fund I, L.P., Yucaipa American Alliance (Parallel) Fund I, L.P., Yucaipa American Alliance Fund II, L.P., and Yucaipa American Alliance (Parallel) Fund II, L.P.
. The "First Lien Credit Agreement” refers to the "Amended and Restated First Lien Secured Super-Priority Debtor in Possession and Exit Credit and Guaranty Agreement,” as amended and restated as of May 15, 2007, between Allied Holdings Inc. and Allied Systems Ltd. (L.P.) as Borrowers, the Lenders from time to time party thereto, and the CIT Group Business Credit, Inc. as Administrative Agent and Collateral Agent, among others. The lenders under the First Lien Credit Agreement, the "First Lien Lenders.” The "Third Amendment” refers to Amendment No. 3 to the Credit Agreement and Consent, dated April 17, 2008. "First Lien Debt” refers to obligations under the First Lien Credit Agreement held by First Lien Lenders. The "Purported Fourth Amendment” refers to "Agreement No. 4 to Credit Agreement” dated August 21, 2009, which was the subject of the litigation before Justice Ramos in the Supreme Court of the State of New York.
.The Second Lien Credit Facility is evidenced by the to the "Second Lien Secured Super-Priority Debtor in Possession and Exit Credit and Guaranty Agreement,” dated as of May 15, 2007, between Allied Holdings Inc. and Allied Systems Ltd. (L.P.) as Borrowers, •the Lenders from time to time party thereto,
. The First Lien Credit Agreement provides that "Requisite Lenders” have the power to make certain key decisions affecting all First Lien Lenders, including, among others, the authority to declare or not declare "Events of Default” under the First Lien Credit Agreement and exercise or refrain from exercising rights and remedies upon an “Event of De-' fault” under the First Lien Credit Agreement
. At the April 9 hearing on the motion to dismiss, this Court stated: "I think it’s certainly true that a special committee is not always required to hire its own counsel and advisors to make decisions that are hopefully independent of any control by another party, it depends on the — like many things it depends on the facts and circumstances. And I think the facts as pled in the case really show a situation where independent counsel and financial advisors was required. The meetings went quickly, there were short breaks, there's no, you know, real indication of how thorough the questions were, how thorough the issues were looked at by the special committee.” [Bankruptcy Case D.1.1094 Hrg. Tr. 4/9/13, 72:1-10],
. 28 U.S.C. § 1334(a).
. 28 U.S.C. § 157(a).
. Id.
. 28 U.S.C. § 157(b)(1).
. Stern v. Marshall, - U.S. -, 131 S.Ct. 2594, 2604, 180 L.Ed.2d 475 (2011) (quoting 28 U.S.C. § 157(b)(2)(C)).
. Id. at 2604.
. Id. at 2604-05.
. Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), - U.S. -, 134 S.Ct. 2165, 2172, 189 L.Ed.2d 83 (2014).
. Shubert v. Lucent Techs. (In re Winstar Communs., Inc.), 554 F.3d 382, 405 (3d Cir. 2009) (quoting Halper v. Halper, 164 F.3d 830, 836 (3d Cir. 1999)).
. Id.
. In re Exide. Techs., 544 F.3d 196, 206 (3d Cir. 2008) (citing In re Best Reception Sys., Inc., 220 B.R. 932, 947 (Bankr.E.D.Tenn. 1998).
. Id. (quoting Meadowlands Commc'n, Inc. v. Banker’s Trust Co., 79 B.R. 198 (D.N.J. 1987)).
. Winstar, 554 F.3d at 405.
. Response of the Official Committee of Unsecured Creditors and the Intervenors to
. See, e.g., In re Wash. Mut., Inc., 2012 WL 4755209, at *2 (Bankr.D.Del. Oct. 4, 2012) ("[The] breach of fiduciary duty claims are ordinary state law causes of action of the type that are brought in state courts across the country with no connection to the Bankruptcy Code or a bankruptcy case.”); Official Comm. of Unsecured Creditors of Integrated Health Services, Inc. v. Elkins (In re Integrated Health Servs., Inc.), 291 B.R. 615, 618 (Bankr.D.Del. 2003) (“The allegations of breach of fiduciary duty and waste of corporate assets are quintessential state law causes of action.”); Mel-Ion v. Delaware & Hudson Ry. Co. (In re Delaware & Hudson Ry. Co.), 122 B.R. 887, 894-95 (D.Del. 1991) (holding that alleged declaration of unlawful dividends, waste and breach of fiduciary duty against shareholders and directors are not core); TTS, Inc. v. Stackfleth, 142 B.R. 96, 99 (Bankr.D.Del. 1992) (concluding that allegations of fraud, mismanagement, waste, diversion, misappropriation, self-dealing and breach of fiduciary duty are not core).
. CDX Liquidating Trust, 2005 WL 3953895, at *2 (N.D.Ill. Aug. 10, 2005) ("[A] non-core claim will be considered core if it 'arises out of the same transaction as the creditor’s proofs of claim ... or ... [its] adjudication ... would require consideration of issues raised by the proofs of claim ... such that the two claims are logically related.' ” (quoting In re Iridium Operating LLC, 285 B.R. 822, 832 (S.D.N.Y. 2002)).
. In re Exide Techs., 544 F.3d 196, 206 (3d Cir. 2008).
. Id. at 220. The Exide Court provided that "judicial economy and efficiency” do not, by themselves, justify federal jurisdiction. Id. at 220 n. 16 (citing Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)).
. Pacor, 743 F.2d at 994.
. Core/Non-Core Opposition at ¶ 31 (quoting Matter of Total Technical Servs., Inc., 142 B.R. 96, 99 (D.Del. 1992).
. Because the claims in the Amended Complaint are not Stern claims, i.e., "proceedings that are defined as 'core' under [section] 157(b) but may not, as a constitutional matter, be adjudicated as such (at least in the absence of consent),” the Court has constitutional authority to submit proposed findings of fact and conclusions of law pursuant to section 157(c)(1). Exec. Benefits, 134 S.Ct. at 2172.
. OHC Liquidation Trust v. Credit Suisse (In re Oakwood Homes Corp.), 378 B.R. 59, 64 (Bankr.D.Del. 2007) (quoting Official Comm. Of Unsecured Creditors v. TSG Equity Fund L.P. (In re Envisionet Computer Servs.), 276 B.R. 1, 6-7 (D.Me. 2002)).
. U.S. Const. amend. VII.
. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 40-41, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (emphasis in original) (quoting Parsons v. Bedford, 3 Pet. 433, 447, 28 U.S. 433, 7 L.Ed. 732 (1830))
. Cantor v. Perelman, 2006 WL 318666, at *4 (D.Del. Feb. 10, 2006) (citing Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963)).
. Granfinanciera, 492 U.S. at 43, 109 S.Ct. 2782. This final step — deciding whether Congress may assign and has assigned resolution of the relevant claim to a non-Article III adjudicative body — is inapplicable here because Mr. Gendregske has not filed a proof of claim against the Debtors’ estates. See Hechinger, 327 B.R. at 543-44.
. In re Hechinger Inv. Co. of Del., 327 B.R. 537, 544 (D.Del. 2005) (quoting In re Evangelist, 760 F.2d 27, 29, 31 (1st Cir. 1985) (Breyer, J.)); see, e.g., OHC Liquidation Trust, 378 B.R. at 66; Pereira v. Farace, 413 F.3d 330, 338 (2d Cir. 2005), cert. denied, 547 U.S. 1147, 126 S.Ct. 2286, 164 L.Ed.2d 812 (2006); In re Hutchinson, 5 F.3d 750, 757 (4th Cir. 1993); Cantor, 2006 WL 318666, at *6 (”[T]he legal or equitable nature of the aiding and abetting claim appears to be indistinguishable from that of the underlying claim for breach.... ").
. Mr. Gendregske provides that, for purposes of the Motion to Strike Mark Gen-dregske’s Jury Demand [D.I. 133] (“Motion to Strike’’), “a claim for breach of fiduciary duty would be equitable in nature.” Amended Opposition of Defendant Mark Gendregske to the Official Committee of Unsecured Creditors and Intervenors’ Motion to Strike Defendant Mark Gendregske’s Jury Demand [D.I. 150] ("Motion to Strike Opposition”) at ¶ 7.
. Granfinanciera, 492 U.S. at 42, 109 S.Ct. 2782.
. Motion to Strike at ¶ 15 (quoting CFLP v. Cantor, 2003 WL 21488707 (Del.Ch. June 19, 2003)); see also Bomarko, Inc. v. Int’l Telecharge, Inc., 794 A.2d 1161, 1184 (Del.Ch. 1999) (”[S]ignificant discretion is given to the [c]ourt in fashioning an appropriate remedy” for breach of loyalty), aff'd., 766. A.2d 437 (Del. 2000).
. Amended Complaint at ¶ 187.
. Id. at p. 61.
. Motion to Strike at ¶ 23.
. Id. at ¶ 21.
. Motion to Strike Opposition at ¶ 15.
. Motion to Strike Opposition at ¶ 19.
. Id. atH19.
. Hechinger, 327 B.R. at 544-45 (quoting Alexander v. Primerica Holdings, Inc., 819 F.Supp. 1296, 1309 (D.N.J. 1993)).
. Pereira v. Farace, 413 F.3d 330 (2d Cir. 2005).
. Id. at 333.
. Id. at 339.
. Id.
. Id. at 340.
. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002).
. Id. (quoting Great-West, 534 U.S. at 214, 122 S.Ct. 708).
. Cantor v. Perelman, 2006 WL 318666 at *8 (D.Del. Feb. 10, 2006) (citing Pereira, 413 F.3d at 340).
. Id.
. Id.
. Id. (quoting Great-West, 534 U.S. at 209, 122 S.Ct. 708).
. Id. (quoting Great-West, 534 U.S. at 219, 122 S.Ct. 708).
. Id. at *9.
. Id.
. Id.
. Sereboff v. Mid Atlantic Med. Servs., Inc., 547 U.S. 356, 362, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006) (quoting Great-West, 534 U.S. at 214, 122 S.Ct. 708). The Court denied relief to Great-West because the Knudsons’ settlement proceeds were not in their possession, but had been distributed to attorneys, a Special Needs Trust, and other parties. See Great-West, 534 U.S. at 214, 122 S.Ct. 708.
. See Gallery v. U.S. Life Ins. Co. in City of New York, 392 F.3d 401, 409 (10th Cir. 2005) ("While the arguments ... that we should look to the common law of trusts and award monetary damages pursuant to an equitable breach of trust by a fiduciary may have been compelling before GreatWest, they are not so now.”); McLeod v. Oregon Lithoprint Inc., 102 F.3d 376, 378 (9th Cir. 1996) (“[T]he status of the defendant, whether fiduciary or nonfiduci-ary, does not affect the question of whether damages constitute appropriate equitable relief.” ’).
. OHC Liquidation Trust, 378 B.R. at 64.
. Id. at 64.
. Id. at 68.
. Id.
. Hechinger, 327 B.R. at 544.
. Curtis v. Loether, 415 U.S. 189, 196, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974).
. Hopkins v. Saunders, 199 F.3d 968, 977 (8th Cir. 1999) (quoting Chauffers, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990)).
. Great-West, 534 U.S. at 214-15, 122 S.Ct. 708.
. Amended Complaint at ¶ 13.
. Id. at ¶ 15.
. Id. at ¶ 177.
. Id. at ¶ 183.
. Id. at 185.
. Id.
. Id. at ¶ 187.
. Id. at ¶ 193.
. Id. at p. 61.
. Reply in Support of Plaintiff and Interve-nors' Motion to Strike Defendant Mark Gen-dregske’s Jury Demand [D.I. 171] at ¶ 2. Mr. Gendregske’s bonus amounts were incentiv-ized, at least in part, by meeting performance targets with respect to Allied’s EBITDA. See id. at ¶ 27. In 2009 and 2010, the Allied board amended Mr. Gendregske’s employment agreement so that the EBITDA target would no longer be used to determine his bonus, rather his annual bonus would be in an amount determined by Allied’s board. See id. at ¶ 28.
. Id.
. Id. at ¶ 20.
. Sergent v. McKinstry, 472 B.R. 387, 406 (E.D.Ky. 2012).
. CDX Liquidating Trust v. Venrock Assocs., 2005 WL 3953895 at *3 (N.D.Ill. Aug. 10, 2005).
. Gecker v. Marathon Financial Ins. Co. (In re Automotive Professional, Inc.), 389 B.R. 621, 626-27 (Bankr.N.D.Ill. 2008); see also K & R Express Sys., Inc., 382 B.R. 443 (N.D.Ill. 2007).
. 2006 WL 318666, *9 (emphasis added).
. Amended Complaint at ¶ 187.
. Id. at ¶ 193.
. Pereira, 413 F.3d at 340 (citing Great-West, 534 U.S. at 214, 122 S.Ct. 708).
. See Great-West, 534 U.S. at 213, 122 S.Ct. 708 (“[A] plaintiff could seek restitution in equity, ordinarily in the form of a constructive trust or an equitable Hen, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession.”); see 1 Dobbs § 4.3(1), at 587-588; Restatement of Restitution, § 160, Comment a, at 641-642; 1 G. Palmer, Law of Restitution § 1.4, p. 17; § 3.7, p. 262 (1978).
. Amended Complaint at p. 61.
. See Great-West, 534 U.S. at 213, 122 S.Ct. 708. “In cases in which the plaintiff 'could not assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him,’ the plaintiff had a right to restitution at law through an action derived from the common-law writ of assumpsit.” Id. (quoting 1 Dobbs § 4.2(1), at 571).
. In re W.R. Grace & Co., 398 B.R. 368, 373 (D.Del. 2008) (citing Max’s Seafood Cafe by Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
Reference
- Full Case Name
- IN RE: ALLIED SYSTEMS HOLDINGS, INC. Debtor. The Official Committee of Unsecured Creditors of Allied Systems Holding, Inc. and Its Affiliated Debtors, Black Diamond Opportunity Fund II, LP, Black Diamond CLO 2005-1 Ltd., and Spectrum Investment Partners, L.P., Intervenors v. Yucaipa American Alliance Fund I, L.P., Yucaipa American Alliance (Parallel Fund Yucaipa American Alliance Fund, II, L.P., and Yucaipa American Alliance (Parallel) Fund II, L.P., Mark J. Gendregske, Jos Opdeweegh, James Frank, Derex Walker, Jeff Pelletier, Ira Tochner, and Joseph Tomczak.
- Cited By
- 5 cases
- Status
- Published