In re Syntax-Brillian Corp.
In re Syntax-Brillian Corp.
Opinion of the Court
OPINION
Before the Court is the motion (the “Motion”) of Alan Levine, appearing pro se, (the “Movant” or “Mr. Levine”) for relief from the order accepting into evidence the Rayburn Declaration.
I. INTRODUCTION
Companies sometimes fail. Failure can occur for a host of reasons, including mismanagement, changing tastes or technology, insuperable competition, even natural disasters. And companies can and do fail when they are victims of fraud. The failure of a corporation can bring loss and suffering to employees and management, vendors, customers and investors, all of whom hope at least for some recovery from the failed enterprise. Congress has decreed that shareholders in a bankrupt company cannot receive anything on account of their investment until all secured, priority and unsecured creditors are paid in full. This principle applies even when
In July 2008, Syntax-Brillian Corporation filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The company tried and failed to sell itself in the first few- months of the case, and promptly shut down operations. Its chapter 11 Plan
Syntax was the victim of a fraud, apparently perpetrated by certain members of its management team as well as its suppliers in the Far East. The Court is acutely aware of the suffering endured by Syntax’s shareholders on account of the collapse of the company. The Court’s sympathy, however, does not change the economic reality and legal principles in play.. Under the Plan, there is not presently a return for Syntax’s shareholders, and there is not likely to be a return in the future.
Regrettably, shareholders of companies that file for bankruptcy relief often (and perhaps typically) see their interests wiped out. This is the case even where the shareholders purchased their shares in reliance upon fraudulent or misleading information: Section 510(b) of the Bankruptcy Code specifically provides that claims arising from the purchase or sale of stock in a debtor are subordinated to all other claims.
Consequently, the result in this case is neither unusual nor inconsistent with well-settled legal principles. What is unusual about this case is the amount of time and resources that shareholders have spent pursuing a recovery. As noted, the Plan was confirmed nearly seven years ago, and the Disclosure Statement accompanying the Plan specifically stated that recovery for shareholders was unlikely.
Certain shareholders continued to persist in post-confirmation litigation, to the point that the Trustee deemed it necessary in 2013 to enter into a confidential cash settlement with these several shareholders. While the settlement was not presented to the Court for approval (as it was a post-confirmation settlement within the authority of the Trustee) or disclosed to other shareholders, the Trustee has advised the Court that the confidential settlement was entered into for the purpose of
At the hearing on the matter presently sub judice, the Court was distressed to learn that Mr. Ahmed Amr, one of the shareholders who enjoyed a substantial cash payment under the above-described confidential settlement, is actively engaging in or supporting litigation against the Trust.
The bottom line is this: the decision to invest in Syntax turned out to be a bad idea, and the investment was effectively lost in 2008. While deeply unfortunate, this circumstance is neither remarkable nor fixable by this Court. But it appears that the shareholders’ suffering has been compounded by litigants — and specifically Mr. Amr — who have dragged out this process for so many years and kept false hopes alive for a substantial return out of this bankruptcy case. While it is not the Court’s prerogative to give advice to litigants before it, the simple fact is that shareholders who traveled from Pennsylvania, New York, Washington State, Georgia and elsewhere to attend the recent hearing are throwing good money after bad in pursuit of an investment that went bust eight years ago.
II. BACKGROUND
The Court assumes familiarity with the history of the Debtors’ bankruptcy case. The factual background of this ease is set forth in two opinions by this Court, see SB Liquidation Trust v. Preferred Bank (In re Syntax-Brillian Corp.), No. 08-11407, 2011 WL 3101809 (Bankr.D.Del. July 25, 2011); SB Liquidation Trust v. Preferred Bank (In re Syntax-Brillian Corp.), No. 08-11407, 2013 WL 153831 (Bankr.D.Del. Jan. 15, 2013), and also in an opinion by the Court of Appeals for the Third Circuit, see SB Liquidation Trust v. Preferred Bank (In re Syntax-Brillian Corp.), 573 Fed.Appx. 154 (3d Cir. 2014). The following background is only a summary of the facts relevant to the instant matter.
On July 8, 2008, the above-captioned debtors (the “Debtors”) filed for relief under chapter 11 of the Bankruptcy Code. The next day, the Court held a “first day” hearing and admitted into evidence the First Day Affidavit. On March 12, 2009, the Court approved the Debtors’ Second Amended Disclosure Statement (the “Disclosure Statement”).
Under the terms of the Plan, the Trust was created and certain claims and causes of action of the Debtors’ estates were transferred to and in the Trust. Geoffrey Berman was appointed as the trustee (the “Trustee”) of the Trust. Since the Trust’s creation, the Trustee has administered these cases, resolved claims against the Debtors, and has actively pursued various causes of action.
III. JURISDICTION AND VENUE
The Court has jurisdiction over this matter under 28 U.S.C §§ 1334 and 157(a). Venue is proper in this Court pursuant to 28 U.S.C. §§ 1408 and 1409. Consideration of this Motion constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (0).
IV. DISCUSSION
The basic premise of the Motion is one the Court has seen repeatedly in this bankruptcy case.
The Motion essentially requests reconsideration under Fed. R. Bankr. P. 9024 of the Court’s ruling in 2008 to admit into evidence the First Day Affidavit. A Rule 60(b) motion, made applicable to this matter by Fed, R. Bankr. P. 9024, is an extraordinary remedy only appropriate where rare circumstances are present. See, e.g., Plisco v. Union R.R. Co., 379 F.2d 15, 16 (3d Cir. 1967). “The framers of Rule 60(b) set a higher value on the social interest in the finality of litigation.” Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 682 (7th Cir. 1983). A movant “bears a heavy burden” in showing that relief is appropriate under Rule 60. Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991)- (citation omitted). Rule 60(b) provides six grounds that, on a motion, a court may relieve a party from a final judgment or order. All Rule 60(b) motions must be filed “within a reasonable time,” and for a motion under subsections (b)(1), (2), or (3), it must be brought not more than one year from the entry of the order. Fed. R. Civ. P. 60(c).
Mr. Levine contends that relief is appropriate because of newly discovered evidence that he believes was noted by this Court in a Memorandum Order, dated February 8, 2016, in an adversary proceeding between the Trust and Preferred
The Movant has not offered new evidence.
The Movant also requests this Court to direct the Trustee to produce the Debtors’ books and records for him and other shareholders to review. At the hearing on the Motion, the Trustee vigorously objected to the request, and offered a number of valid and sufficient reasons for his decision. First, and most importantly, none of the shareholders is involved in litigation that would serve to require document production. Second, the Trustee does not want to be in a position of bearing the potentially substantial expense associated with responding to document requests from individuals not a party to litigation. Finally, the Trustee is currently in the midst of discovery with Preferred Bank.-
The Trustee’s objections are well founded. Under the terms of the Plan and the Trust, the Trustee has taken possession of the Debtors’ books and records — including such documents that may be in his possession that evidence fraudulent prepetition conduct. It is his responsibility to preserve these materials, pending appropriate direction from the Court, in order to administer the Trust and prosecute necessary litigation. .The Trustee has credibly concluded that production of the docu
Y. CONCLUSION
For all these reasons, the Court will deny the Motion. An appropriate order will issue.
. This Opinion constitutes the Court's findings of fact and conclusions of law, as required by the Federal Rules of Bankruptcy Procedure. See Fed. R. Bankr. P. 7052, 9014(c).
. D.I. 2294.
. D.I. 2303.
. See Motion, at 5 ("Whereby, I move for relief form the Court’s order accepting into evidence the Rayburn Affidavit and I move for relief from the Court's order accepting into evidence Nancy Mitchell’s testimony in the First Day's hearing and I move for relief from any Court order based on the Rayburn Affidavit and the testimony of Nancy Mitchell in the First Day’s hearing including the order approving the Disclosure Statement, the Order approving the Plan and I move the Court to vacate the exculpation provisions of the plan. I also move the Court to impeach Gregory Rayburn and Nancy Mitchell and their affidavit and testimony. I also move the Court to vacate the order denying my claim and I move the Court grant monetary relief and any other relief the court deems to be just.”).
.D.I. 3.
. Capitalized terms not defined in this Introduction are defined infra.
. See Disclosure Statement, at 40 ("On the Effective Date, Class 7 Equity Interests will be cancelled. Holders of Allowed Equity Interests will not receive any distribution of any kind under the Plan on account of Allowed Equity Interests; provided, however, that if prior to the closing of the Chapter 11 Cases the Liquidating Trustee, in consultation with the Creditor Representatives, determines that Residual Equity Assets are available for distribution to Holders of Allowed Equity Interests (meaning that additional assets are available after satisfying in full all other pre- and post-Petition Date claims and trust expenses), ... the Liquidating Trustee will file a motion with the Bankruptcy Court requesting approval of procedures for making distributions to the Holders of Allowed Equity Interests as of the Equity Interest Record Date. The Debtors do not believe that any assets will be available for such distributions.”) (emphasis added).
. It appears highly likely to the Court that Mr. Amr’s participation in recent proceedings in this Court is in violation of the release presumably included in the confidential settlement. See Joint Notice of Withdrawal of Certain Shareholder Claims and Pleadings, D.I. 2245, at 3.
. At the hearing on the Motion, Arthur W. Shelden, one of the Joinder Parties and a Syntax shareholder, indicated that he has paid Mr. Amr for his efforts in this case. See Tr. of Oral Arg., D.I. 2318, at 56 (“Also, I should note that on two occasions I have gifted Mr. Amr small sums of money to help defray his travel expenses related to his persistent forensic pursuit of his and the common shareholder legal interest in the SBC bankruptcy case.”).
.D.I. 1020.
. D.I. 1529.
, See, e.g„ Order Denying Motion to Compel Gregg Rayburn to File an Amended Affidavit to Reflect the Exact Circumstances That Led to the Bankruptcy of Syntax-Brillian [D.I. 695]; Order Denying Motion of Ahmed Amr Pro-Se to Dismiss the Debtors’ Chapter 11 Petition [D.I. 1307]; Order Denying Motion to Revoke the Confirmation Order [D.I. 1745]; Order Denying Motion to Dismiss Case [D.I. 1847]; Order Denying Motion to Compel SEC to Appoint a Receiver to Administer the Remaining Assets of Syntax [D.I. 1851]; Order Denying Plea for Reconsideration Order Denying Motion to Dismiss the Case [D.I. 1878],
. Adv. Proc. No. 10-51389, D.I. 120.
. The Motion is also untimely. The Motion seeks to introduce new evidence under Rule 60(b)(2). Fed. R. Civ. P. 60(b)(2) ("On motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding for ... newly discovered evidence. ... ”). Rule 60(c) provides that a motion under Rule 60(b)(2) must be made within one year after entry of the judgment or order. The First Day Affidavit was admitted into evidence close to eight years ago.
.The Trustee’s original complaint was filed on July 7, 2010. Adv. Proc. No. 10-51389, D.I, 1. The Trustee filed an amended complaint on December 17, 2014, Adv. Proc. No. 10-51389, D.I. 103.
Reference
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- IN RE: SYNTAX-BRILLIAN CORP., Debtors
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- Published