Keybank Nat'l Ass'n v. Franklin Advisers, Inc.
Keybank Nat'l Ass'n v. Franklin Advisers, Inc.
Opinion of the Court
*219These cases concern a contractual dispute among creditors that provided financing to a bankrupt Chapter 11 debtor so that the debtor could continue operating during its reorganization. Plaintiffs KeyBank National Association and Fifth Third Bank initially brought this action in the Supreme Court for the State of New York, New York County, asserting state law claims for breach of contract, breach of the covenant of good faith and fair dealing, tortious interference with contract, and a declaratory judgment against Defendant Franklin Advisers, Inc. and seven mutual funds (collectively, "Defendants").
FACTUAL BACKGROUND
In June 2013, Appvion Inc. and certain of its affiliates (together, "Appvion") entered *220into a credit agreement with several lenders (the "pre-petition credit agreement"), including Plaintiffs and seven of the eight Defendants in these cases, among others (the "pre-petition lenders").
Like many Chapter 11 debtors-in-possession, Appvion needed further credit to complete its reorganization. To that end, on October 2, 2017, Appvion sought the Bankruptcy Court's permission to obtain post-petition financing through a proposed debtor-in-possession credit agreement (the "Original DIP Agreement") with certain of the pre-petition lenders, including Plaintiffs and six of the Defendants.
A. The Original DIP Agreement
Fundamentally, the Original DIP Agreement proposed to (1) convert approximately $ 240 million of outstanding loans under the pre-petition credit agreement into post-petition loans, which is commonly referred to in bankruptcy as a "roll-up" (the "Original Roll-Up Loans"); and (2) to provide Appvion with $ 85 million of new financing (the "Original New Money Loans") (together, the "DIP Loans"). Plaintiffs did not participate in the financing of the Original New Money Loans. In exchange for providing the DIP Loans, the loans would be given, among other things, "superpriority" status and senior security liens on all of the DIP Collateral. See
*221On October 3, 2017, the Bankruptcy Court approved the Original DIP Agreement on an interim basis, and on October 31, 2017, after a final hearing, the Bankruptcy Court issued a final order (the "Original DIP Order") approving the Original DIP Agreement. See Original DIP Order, Oct. 31, 2017, KeyBank Compl., Ex. A (Dkt. 1-1); Fifth Third Compl., Ex. A (Dkt 1-1). The terms of the Original DIP Agreement and Original DIP Order most relevant to these cases provide as follows:
(1) the Original Roll-Up Loans and Original New Money Loans are to be secured by liens of equal priority and are entitled to pari passu (i.e., equal) payment priority unless the Roll Up Lenders agree otherwise (the "pari passu treatment provision")7 ;
(2) any modification of the Original DIP Order must not affect lien priority or payment priority of the DIP Loans, and any lien priming requires KeyBank and Fifth Third to Consent (the "priming lien prohibition");
(3) any disproportionate payment received by any lender must be shared pro rata with all of the other DIP Lenders (the "pro rata sharing requirement");
(4) any material amendment or modification to the Original DIP Order requires Plaintiffs' consent (the "material modification consent provision");
(5) any waivers, modifications, or amendments that would reduce the principal of any DIP Loan require the consent of each Lender entitled to such amount (the "principal payment reduction bar"); and
(6) the release of all or substantially all of the collateral in any transaction or series of related transaction requires the written consent of each DIP Lender (the "collateral release prohibition").8
Plaintiffs argue that Defendants' subsequent conduct in the bankruptcy proceeding, as detailed below, breached each of these provisions of the Original DIP Agreement.
B. The Stalking Horse Purchase and Sale Motion
At the end of 2017, Appvion defaulted on certain of its obligations under the Original DIP Agreement. Defendants and Appvion then negotiated a series of transactions in January 2018 to keep Appvion alive. Under these proposed transactions: (1) Defendants would direct the agent of the Original *222DIP Agreement to waive Appvion's defaults thereunder; (2) Defendants would guarantee to provide $ 15 million in additional new money loans; and (3) Defendants would direct the DIP agent to facilitate the formation of an entity to serve as a stalking horse bidder in an auction for substantially all of Appvion's assets-upon approval of the Bankruptcy Court. See
Plaintiffs objected to the Sale Motion. Because the Original New Money Loans would be assumed by the Stalking Horse Purchaser, while the Original Roll-Up Loans would be subject to a credit bid, Plaintiffs argued that this effectively prioritized the Original New Money Loans over the Original Roll-Up Loans, in violation of several terms of the Original DIP Agreement. In response, Defendants withdrew their proposal and revised it in a supposed effort to accommodate Plaintiffs' objections over the disparate treatment of the Original Roll-Up and New Money loans.
C. The Amended DIP Agreement & Revised Stalking Horse Procedures
Appvion and Defendants ultimately revised their proposed agreement so that the Stalking Horse Purchaser would no longer directly assume the $ 85 million in Original New Money loans. Instead, they would seek to amend the Original DIP Agreement so that the $ 85 million of Original New Money Loans would be rolled up into a new $ 100 million loan, with the extra $ 15 million constituting additional new money loans from Defendants. This new $ 100 million loan would serve as a new debtor-in-possession credit facility (the "New DIP Facility") with priority claims to, and liens on, the DIP Collateral senior to the existing claims and liens of the Original Roll-Up Loans. The Stalking Horse Purchaser would then assume the New DIP Facility, as opposed to any of the Original DIP Loans, while the Original Roll-Up Loans would be subject to a credit bid for equity in the Stalking Horse Purchaser. Thus, under these revisions, the Original Roll-Up Loans would become subordinate to the New DIP Facility, which would be made up in part of the Original New Money Loans.
On March 5, 2018, Appvion filed a revised Stalking Horse Purchase Agreement as well as a motion seeking approval of the Amended DIP Agreement that would incorporate the above amendments into the Original DIP Agreement. See Appvion Mot. to Approve DIP Financing (Bankr. Dkt. 520); Revised Asset Purchase Agreement (Bankr. Dkt. 530). After an interim hearing on March 12, 2018, and a final hearing on March 29, 2018, the Bankruptcy Court approved the proposed Amended DIP Agreement. Importantly, however, *223the Bankruptcy Court expressly stated that its rulings did not affect any inter-lender rights that KeyBank or Fifth Third Bank may possess against other parties to the Original DIP Agreement. See March 12, 2018, Interim Hr'g Tr., Amended DIP Authorization, at 82:15-20, Shamah Decl. Ex. B (KeyBank Dkt. 26-2; Fifth Third Dkt. 25-2). Similarly, the Bankruptcy Court's Amended DIP Order provided that its findings were "without prejudice to the claims and causes of action asserted or that may be asserted" in this litigation, which had been filed in New York County Supreme Court earlier that day, "provided, however, that the plaintiffs in the litigations agree that no claim or cause of action ... shall constitute a collateral attack on approval of the [New] DIP Facility ... and the [Amended] DIP Order[.]" Amended DIP Order, Rider A, Shamah Decl., Ex. F (KeyBank Dkt. 26-6; Fifth Third Dkt. 25-6).
D. This Action
As noted above, hours prior to the Bankruptcy Court's entry of the Amended DIP Order, KeyBank and Fifth Third Bank commenced two separate actions against Defendants in New York Supreme Court asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and tortious interference of contract, all arising out of Defendants' decision to enter into the Amended DIP Agreement which Plaintiffs allege violated the Original DIP Agreement. Plaintiffs also sought a declaratory judgment that Defendants' conduct was prohibited by the Original DIP Agreement, that the Original Roll-Up Loans must be treated the same as the Original New Money Loans, and that Defendants must share any payments on the Original New Money Loans equally with Plaintiffs and other lenders.
On April 27, 2018, Defendants removed the state court actions to this Court pursuant to
On August 14, 2018, the Bankruptcy Court entered the "Plan Confirmation Order" approving Appvion's liquidation plans, the effective date of which occurred on August 24, 2018, when a liquidating trust was created. See Bankr. Dkt. 970. The estate continues to be administered, however, and thus the Bankruptcy proceedings will remain ongoing until the Bankruptcy Court discharges the trustee and closes the case. See
After this Court scheduled oral argument on the pending motions, Defendants filed a letter drawing the Court's attention to a recent decision in this district considering similar issues, to which Plaintiffs responded. See KeyBank Dkts. 39, 42; Fifth Third Dkts. 35, 37-38 (debating the relevance of Argosy Capital Grp. III, L.P. v. Triangle Capital Corp. to these cases, No. 17 Civ. 9845,
*224The Court held oral argument on February 5, 2019, after which it authorized the parties to file letter briefs addressing any remaining issues.
DISCUSSION
I. Consolidation
As an initial matter, the Court grants Defendants' unopposed letter motion to consolidate these actions. Under Fed. R. Civ. P. 42(a), "[i]f actions before the court involve a common question of law or fact, the court may ... consolidate the actions." Consolidation is intended to "avoid unnecessary costs or delay" thereby promoting judicial economy. Johnson v. Celotex Corp. ,
Consolidation here is warranted. Both cases involve the same defendants and arise out of the same contractual dispute. The factual allegations, the legal claims and the relief sought are all identical, as are the legal issues. Except for the difference in Plaintiffs' names, Defendants have filed identical briefs in both actions. Plaintiffs have filed separate briefing, authored by different counsel, but nevertheless join in and adopt each other's memoranda in support of their motions. Altogether, this is a recipe for consolidation. See City of New York v. Fedex Ground Package System, Inc. , No. 13 Civ. 9173 (ER),
II. Plaintiffs' Motion to Remand
A. Legal Standards
Defendants, as the parties seeking removal, bear the burden of establishing that this Court has subject matter jurisdiction over Plaintiffs' claims. McNutt v. Gen. Motors Acceptance Corp. ,
Section 28 U.S.C. 1452(a) provides that "[a] party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title." Section 28 U.S.C. 1334 in turn vests district courts with jurisdiction over "all *225proceedings arising under title 11, or arising in or related to cases under title 11." See generally Stern v. Marshall ,
The specific basis for jurisdiction dictates whether this case is deemed a "core" or "non-core" bankruptcy proceeding. If the Court has only "related to" jurisdiction, then the case is a "non-core" proceeding, and the doctrine of mandatory abstention applies. Baker,
If the Court has either "arising under" or "arising in" jurisdiction, however, then it is a "core proceeding," Baker ,
(1) the effect or lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable state law, (4) the presence of a related proceeding commenced in state *226court or other nonbankruptcy court, (5) the jurisdictional basis, if any, other than28 U.S.C. § 1334 , (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted 'core' proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden on the court's docket, (10) the likelihood that the commencement of the proceeding in a bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
Lothian Cassidy ,
While Plaintiffs assert that this Court lacks both "arising under" and "arising in" jurisdiction, they request, in the alternative, that the Court remand the case for equitable reasons, pursuant to
B. "Arising Under" Jurisdiction
Defendants have not persuaded the Court that "arising under" jurisdiction exists in this case. Courts in this circuit have construed the existence of "arising under" jurisdiction to be dependent upon the plaintiffs' causes of action being asserted under a provision of Title 11 of the Bankruptcy Code. See, e.g., Winstar Holdings, LLC v. Blackstone Group L.P. , No. 07 Civ. 4634(GEL),
Here, Plaintiffs assert state law breach of contract and related claims, which do not arise under Title 11. Defendants nevertheless argue that "arising under" jurisdiction exists because the Original DIP Agreement "is a product of Section 364 of the Bankruptcy Code," and Plaintiffs' claims are based in part on Defendants' alleged conduct in obtaining a priming lien without their consent, which involves concepts that "flow directly from the Bankruptcy Code." Defs' Mem. Opp. at 11 (KeyBank Dkt. 33; Fifth Third Dkt. 29). Such arguments better support a finding of "arising in" jurisdiction, as opposed to "arising under" jurisdiction, as discussed further below. Indeed, Defendants cite Baker, in support of those arguments, and quote that case for the proposition that "arising under" jurisdiction turns on "whether claims that appear to be based in *227state law are really an extension" of bankruptcy proceedings. As Plaintiffs correctly note, however, the Baker Court was referring to "arising in" jurisdiction- Baker did not address the requirements for "arising under" jurisdiction. See
Ultimately, the fact that the contract at issue in this case is a product of bankruptcy law and proceedings does not convert Plaintiffs' breach of contract and other state causes of action into a cause of action under Title 11. There is no "arising under" jurisdiction in this case.
C. "Arising In" Jurisdiction
The Court agrees with Defendants, however, that this case "arises in" Title 11. Proceedings "arising in"-as with ones "arising under"-Title 11 correspond to the Court's core bankruptcy jurisdiction. Section
In assessing whether a contractual dispute "arises in" Title 11, courts often consider whether the dispute is a core proceeding by applying the following two factors set forth by the Second Circuit: "(1) whether the contract is antecedent to the reorganization petition; and (2) the degree to which the proceeding is independent of the reorganization." In re U.S. Lines, Inc. ,
Determining whether a proceeding is independent of the reorganization "hinges on the nature of the proceeding." In re Petrie Retail, Inc. ,
Plaintiffs' claims are uniquely affected by a core bankruptcy function because they are based on rights that were established in an order to obtain credit and to use cash collateral-the result of a core bankruptcy proceeding. See
It is true, as Defendants argue, that pursuant to the survival provision in the DIP Orders, all obligations under those orders were extinguished when they were paid in full. See Original DIP Order ¶ 47; Amended DIP Order at 11; Joint Combined Disclosure Statement and Chapter 11 Plans of Liquidation, Section VII(A)(1)(c), Shamah Decl. Ex. H (KeyBank Dkt. 34-2; Fifth Third Dkt. 30-2). But Plaintiffs' claims are based on Defendants' conduct when the DIP Orders were in effect. Indeed, the Complaints assert that Plaintiffs obtained "numerous rights and protections" from the Original DIP Order, see KeyBank Compl. ¶ 25, Fifth Third Compl. ¶ 25, and that Defendants breached several provisions of the Original DIP Order itself.
*229See KeyBank Compl. ¶¶ 29-30, 32; Fifth Third Compl. ¶¶ 30-32. Plaintiffs' claims are thus intertwined with core bankruptcy functions because their resolution requires interpreting aspects of the Bankruptcy Court's DIP Orders. See Travelers Indem. Co. v. Bailey ,
Moreover, deciding whether Defendants breached the terms of the Original DIP Agreement and DIP Order requires a court to consider to what extent the enforceability of that agreement and order were impacted by the subsequent Amended DIP Agreement and Order. The Original DIP Order, for example, provided that "in the event any or all of the provisions of this Final Order are hereafter modified ... [an]y such modification, amendment or vacatur shall not affect ... any lien, claim or priority authorized or created hereby." Original DIP Order ¶ 29(a). Because the Amended DIP Agreement nevertheless provided that the New DIP Facility would be "immediately senior in priority to the Existing DIP Liens," Plaintiffs allege that this priming provision violated ¶ 29(a) of the Original DIP Order. See KeyBank Compl. ¶¶ 29, 54, 56; Fifth Third Compl. ¶¶ 30, 55, 57. The Amended DIP Order, however, also provided that in the event there were any inconsistencies between its terms and the terms of the Original DIP Order, the Amended Final DIP Order would control. See Amended DIP Order ¶ 10. Accordingly, ascertaining whether Plaintiffs can succeed on their claims based on a violation of this "priming lien prohibition" in the Original DIP Order requires a court to consider whether this provision is enforceable to the extent it is inconsistent with the terms of the Amended DIP Order. The same goes for Defendants' purported violations of Plaintiffs' consent rights to material modifications of the Original DIP Order, and Plaintiffs' request for a declaration that "[t]he terms and provisions of the [Original] DIP Agreement are binding and govern here." KeyBank Compl. ¶ 99; Fifth Third Compl. ¶ 100. Resolving these claims requires a court to interpret the DIP Orders, which were issued in the exercise of core bankruptcy functions, and thus further confer "core" jurisdiction over this case. Lothian Cassidy ,
In assessing "arising in" jurisdiction, courts have also applied the "but-for" test endorsed by the Second Circuit in Baker which is satisfied here. The Baker test provides that "arising in" jurisdiction encompasses claims that "are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy."
The Court is not persuaded by Plaintiffs' argument that finding this proceeding to be "core" would mean "that the existence of the post[-]petition DIP Credit agreement is the bellwether for jurisdiction." See Fifth Third Reply Mem. at 4 (Fifth Third Dkt. 31). The post-petition nature of the DIP Agreements does not provide a standalone basis to confer "arising in" jurisdiction here-rather, it is that Plaintiffs' claims assert rights that were established in the Bankruptcy Court's DIP Orders, in addition to the DIP Agreements, and that those claims specifically turn on issues that require interpreting the provisions of those agreements and orders.
Nor is the Court persuaded by Plaintiffs' contention that the decisions of bankruptcy courts in this district such as In re GSC, Inc. ,
By contrast, Plaintiffs' claims do not dispute how to allocate proceeds from a sale of a debtor's assets among creditors. Rather, they concern whether and to what extent Defendants are liable for alleged harms caused to the Plaintiff-creditors based on rights established in bankruptcy court orders that were entered in a core bankruptcy proceeding. Accordingly, this case "arises in" Title 11, is a core proceeding, and Plaintiffs' demand for mandatory abstention is moot. See
*231D. "Related to" Jurisdiction
Having found that "arising in" jurisdiction exists, and that the doctrine of permissive-not mandatory-abstention thus applies, a ruling on Plaintiffs' motion to remand could end here. See, e.g., Winstar Holdings, LLC,
The Court analyzes whether it has "related to" jurisdiction based on the facts existing at the time the case was removed. See Fried v. Lehman Bros. Real Estate Assocs. III, L.P. ,
As previously noted, "related to" jurisdiction exists if the action's "outcome might have any conceivable effect on the bankrupt estate," Parmalat Capital Fin. Ltd. ,
"Related to" jurisdiction exists here because, at the time of removal, Defendants had a reasonable legal basis to assert an indemnity claim against Appvion based on the current litigation.
*232jointly and severally indemnify ... each Lender ... and each Related Party of any of the foregoing Persons (each such Person being called an "Indemnitee") against ... any and all losses, claims, damages, liabilities, costs and related expenses ... for all Indemnitees ... incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of ... the execution or delivery of this [DIP] Agreement ... the performance by the parties hereto of their respective obligations hereunder or thereunder.... or ... any actual or prospective claim, litigation ... or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Group Member [defined as a collective reference to Appvion and related entities].... provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses ... are [1] determined by a court of competent jurisdiction ... to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Related Parties or ... [2] is solely amongst Indemnitees and/or their Related Parties and does not involve an act or omission by any Group Member ....
Original DIP Agreement, § 11.04(b), Shamah Decl. Ex. C (KeyBank Dkt. 26-3; Fifth Third Dkt. 25-3) (emphasis and alterations added).
Plaintiffs argue that any potential indemnification claims against Appvion stemming from this case could not have fit within the scope of this indemnification provision. The Court disagrees. The provision may encompass any claims "incurred by any Indemnitee," including from another indemnitee, "or asserted against any Indemnitee by any third party or the Borrower or any other Loan Party." (emphasis added).
Nor, contrary to Plaintiffs' contentions, do Plaintiffs' claims fall within the two "carve-outs" in the indemnity provision for (1) claims resulting from "gross negligence or willful misconduct" on the part of an indemnitee, or (2) claims amongst indemnitees that do not involve "an act or omission by Appvion." Plaintiffs' claims for breach of contract, breach of the covenant of good faith and fair dealing, tortious interference with contract, and a declaratory judgment do not include allegations of gross negligence or willful misconduct. See Hadami, S.A. v. Xerox Corp. ,
Accordingly, Appvion may have been obligated to indemnify the parties for costs arising out of this litigation; at the very least, Defendants have established that there was a reasonable legal basis to pursue an indemnification claim under the Original DIP Agreement and Original DIP Order. This suffices for the Court to find that "related to" jurisdiction exists. SPV Osus Ltd. ,
E. Permissive Abstention and Equitable Remand
The Court now turns to Plaintiffs' request for permissive abstention under
Plaintiffs have failed to satisfy their burden to establish that either permissive abstention or an equitable remand is appropriate here. See CAMOFI Master LDC v. U.S. Coal Corp. ,
On the other hand, there is little doubt, as Defendants acknowledged at oral argument, that the outcome of this proceeding will not impact what remains of the bankruptcy proceedings. Whether or not Defendants *234are liable to Plaintiffs for the alleged breaches of the Original DIP Agreement and DIP Order will not affect the distribution of property of the estate as the parties' claims against it have been satisfied in full. See Feb. 5, 2019 Hr'g Tr. 42:3-9. This factor thus weighs in favor of abstention and remand. See, e.g., Allstate Ins. Co. v. CitiMortgage, Inc. , No. 11 Civ. 1927(RJS),
III. Defendants' Motion to Transfer
Because this case constitutes a "core" bankruptcy proceeding,
To determine whether a case should be transferred under
In assessing whether transfer would be an appropriate exercise of the Court's discretion, courts in this circuit consider the following factors:
(1) the plaintiff's choice of forum, (2) the convenience to witnesses, (3) the location of relevant documents and ease of access to sources of proof, (4) the convenience of parties to the suit, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, (7) the relative means of the parties, (8) the forum's familiarity with the governing law, (9) trial efficiency, and (10) the interest of justice, based on the totality of the circumstances.
*235Ritchie Capital Mgmt., L.L.C. v. BMO Harris Bank, N.A. , No. 14 CIV. 1936 ER,
Although efficiency would indeed be gained by transferring this case to Delaware, it would not be an appropriate exercise of this Court's discretion in light of the parties' agreement-in the bankruptcy proceedings-that this case be resolved in either New York state or federal court. In particular, in Section 11.14(b) of the Original DIP Agreement the parties agreed as follows:
SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT OR, IF THE BANKRUPTCY COURT DOES NOT HAVE OR ABSTAINS FROM JURISDICTION, THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
At oral argument Defendants asserted, for the first time, that this forum selection clause does not apply to inter-indemnitee disputes such as this one. See Feb. 5, 2019 Hr'g Tr. at 39:18-40:18; see also Defs' Feb. 7, 2019 Ltr. (KeyBank Dkt. 44; Fifth Third Dkt. 39). Specifically, Defendants argue that the phrase "any such action" encompasses only those actions between "the borrower and each other loan party." The Court is not persuaded. The phrase "any such action" refers to the preceding phrase, "any action or proceeding arising out of or relating to this agreement," and is not limited to those only between "the borrower and each other loan party." The final clause makes clear that "each of the parties " to the DIP Agreement-which includes Plaintiffs and Defendants, and not simply "the borrower and each other loan party"-agrees that disputes arising out of the DIP Agreement must be litigated in New York state or federal court. Accordingly, this case is governed by a mandatory forum selection clause which is "presumptively entitled to substantial deference." Gross v. British Broad. Corp. ,
Defendants nonetheless urge the Court to disregard whatever meaning it ascribes to the forum selection clause because the "policy toward enforcement of forum-selection clauses is 'not so strong' as to mandate enforcement in the face of ... countervailing public interests in centralizing bankruptcy proceedings, judicial economy, and overall justice." Argosy ,
By contrast, the parties here do not dispute that resolution of this case will not impact the distribution of assets remaining in the debtor's estate. Moreover, not only is the governing forum selection clause mandatory, but the parties agreed to be bound by it in the bankruptcy proceedings. The forum selection clauses in Delaware Trust and Argosy , on the other hand, were permissive, and were created in pre-petition contracts. The public interest in centralizing this dispute with the ongoing bankruptcy proceedings is thus relatively weak, while the countervailing interest in enforcing the parties' choice of forum is strong, given that the parties agreed that the New York courts would be the only forums to hear this case.
Judicial economy and the overall interests of justice are the remaining avenues with which this Court could consider overriding the parties' forum selection clause, but they provide an insufficient basis for doing so. Although the Delaware Bankruptcy Court is already familiar with the legal issues in this case, and although adjudicating this case requires interpreting that court's prior orders, this Court is confident that the bankruptcy courts in this district are equally capable of efficiently resolving this dispute. Tellingly, Defendants have not cited any authority, and the Court has found none, in which a mandatory forum selection clause entered into as part of a post-petition agreement was overridden in the interests of justice.
Thus, even though the Court has found that "arising in" jurisdiction exists in this case, which would strongly suggest that the Bankruptcy Court from which it arose is the preferred forum, Winstar Holdings LLC,
CONCLUSION
For the foregoing reasons, Defendants' motion to consolidate these cases is *237GRANTED, Plaintiffs' motion to remand the cases to New York State Court is DENIED, and Defendants' motion to transfer venue to the United States District Court for the District of Delaware is DENIED. The Clerk of Court is respectfully directed to terminate the motions pending at Dkts. 23, 24, 28, in Case No. 18-CV-3755, and Dkts. 22, 23, 26, in Case No. 18-CV-3762, and to refer this case to a bankruptcy judge for this district, pursuant to the Standing Order of Reference Re: Title 11 (S.D.N.Y. Jan. 31, 2012).
SO ORDERED.
Defendant Franklin Advisers, Inc. manages the other seven Defendant mutual funds, which include Franklin Investors Securities Trust - Franklin Floating Rate Daily Access Fund; Franklin Floating Rate Master Trust - Franklin Floating Rate Master Series; Franklin Templeton Series II Funds - Franklin Floating Rate II Fund; Kansas Public Employees Retirement System; Franklin Floating Rate Master Trust - Franklin Lower Tier Floating Rate Fund; Franklin Floating Rate Master Trust - Franklin Middle Tier floating Rate Fund; and Franklin Templeton Series II Funds - Franklin Upper Tier Floating Rate Fund.
The facts in this section are taken from Plaintiffs' Complaints and accompanying exhibits, and they are assumed to be true for purposes of these motions. See Weiss v. Hager, No. 11 Civ. 2740 (VB),
Defendant Franklin Advisers, Inc. was not a pre-petition lender.
A "debtor-in-possession" refers to a Chapter 11 debtor that "continues to operate its business as a fiduciary to the bankruptcy estate." Black's Law Dictionary (10th ed. 2014); see also In re Bayou Grp., L.L.C. ,
The two Defendants that were not parties to the Original DIP Agreement are Defendant Franklin Advisers Inc., and Defendant Franklin Templeton Series II Funds - Franklin Upper Tier Floating Rate Fund. Nor were these Defendants parties to the Amended DIP Agreement discussed further herein. The Court, however, uses the term "Defendants" generally to refer to the six Defendants that are parties to the DIP Agreements as well as the eight named Defendants.
For further background, under
Under the Original DIP Agreement, the Roll Up Lenders agreed to subordinated payment priority under the following circumstances: (1) in the event of a default by Appvion and the exercise of remedies of a lender, the Original New Money Loans would be senior in payment priority to the Original Roll-Up loans; but this would not apply to any exit financing, see Original DIP Agreement, § 8.02(a); and (2) the Original New Money Loans would be senior with respect to proceeds from certain authorized prepayments, see
The Original DIP Agreement and Original DIP Order also granted the lenders certain indemnification rights against Appvion, which are not alleged in the Complaints, but are discussed at length in the parties' briefing and in Part II.D of this Opinion.
A credit bit is when a creditor bids for property owned by its bankrupt debtor using the owed debt to offset the purchase price. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
See KeyBank Obj. to Entry of Amended DIP Order in In re Appvion, Inc. , Shamah Decl. Ex. D (Ex. A ¶¶ 11-13, 19, 26, 30) (KeyBank, Dkt. 26-5) (objecting to Appvion's motion for the Bankruptcy Court's approval of the Amended DIP Order because the Amended DIP Agreement allegedly modified "the priority scheme established pursuant to the [Original] DIP Order" without KeyBank's written consent); Fifth Third Obj. to Entry of Amended DIP Order in In re Appvion, Shamah Decl. Ex. E ¶ 4; Ex. E (Ex. A ¶¶ 1, 17-18) (Fifth Third, Dkt. 25-6) (objecting that Debtors were "seeking impermissibly to modify rights and protections" to Fifth Third "in direct contravention of the terms of [Original DIP] and of the Court approved DIP Credit Agreement" including by "accord[ing] different treatment to different DIP Lenders" absent Fifth Third's consent); cf. March 12, 2018 Interim Hr'g Tr., at 14:17-19 (Defendants contesting Plaintiffs' position that their interests in the DIP collateral were improperly subordinated by the Amended DIP Agreement and arguing that their interests were already subordinate under the Original DIP Agreement).
To sustain a claim for tortious interference of contract with respect to the Original DIP Agreement, under New York law, Plaintiffs need to prove, among other things, that Defendants intentionally procured an actual breach of the Original DIP Agreement. See Lama Holding Co. v. Smith Barney Inc. ,
The Bankruptcy Court declined to consider such claims at that time, however, because its principal concern was "whether the debtor ha[d] met its burden under [11 U.S.C. §] 364," the provision laying out what a debtor must prove in order to obtain post-petition financing. It was persuaded that Appvion had done so. See March 12, 2018 Interim Hr'g Tr. at 82:15-20.
See KeyBank Compl. ¶¶ 30, 32, 66, 71-75, 77-83, 85-91, 93, 98; Fifth Third Compl. ¶¶ 31, 32, 67, 72-76, 78-84, 86-92, 94, 99.
Plaintiffs' reliance on Winstar Holdings, LLC does not support their position that this Court lacks "arising in" jurisdiction. The Winstar Court cautioned that "[t]he mere fact that the cause of action would never have arisen absent this particular bankruptcy is not enough to confer jurisdiction."
The parties do not dispute that the Bankruptcy Court's confirmation plan entered on August 24, 2018 released any of the parties' possible indemnification claims against Appvion under the Original DIP Agreement.
The parties do not dispute that they are "indemnitees" under the Original DIP Agreement.
Appvion previously recognized that Defendants may seek indemnification from it in connection with these cases under Section 11.04(b) of the Original DIP Agreement. See Ltr. of Appvion Counsel to Defense Counsel, Notice of Removal, Ex. H (Dkt. 1-8) (noting that "[u]nder section 11.04 ... of [the Original DIP Agreement] ... the Debtors may have obligations to indemnify Franklin, KeyBank, and Fifth Third against certain losses, claims, damages, liabilities and related expenses ... that may be triggered by the Litigation").
Reference
- Full Case Name
- KEYBANK NATIONAL ASSOCIATION v. FRANKLIN ADVISERS, INC., Fifth Third Bank v. Franklin Advisers, Inc.
- Cited By
- 35 cases
- Status
- Published