In re Adilace Holdings, Inc.
In re Adilace Holdings, Inc.
Opinion of the Court
MEMORANDUM OPINION
The Trustee has filed a motion to set a deadline for a contract counterparty— Grinberg Asset Holdings—to make an election under section 365(n). Grinberg objected, creating a contested matter. Now, a creditor seeks to intervene in this contested matter because she thinks she knows better than the Trustee how to administer the estate, and because she says the contested matter will affect her separate state-court litigation with Grin-berg in California, Should her intervention be allowed even though it will complicate the trial of the contested matter?
I. Background
A. The Debtor Consents to an Involuntary Petition and then Sells Nearly All its Assets.
This chapter 7 corporate Debtor formerly owned intellectual property known as Black Ice.
Subsequently, Grinberg and two other creditors joined to file an involuntary petition for chapter 7 bankruptcy against the Debtor.
B. The Trustee Moves to Set Deadline for Grinberg to Make a 365(n) Election.
The Trustee asserts that the agreement with Grinberg was an executory contract under which the Debtor licensed the use of Black lee to Grinberg in exchange for ongoing royalty payments.
Grinberg disagrees, arguing that its contract with the Debtor did not license the Black Ice intellectual property but was rather a sale of a Black Ice enabled scanner with ongoing payments for technical support. Under Grinberg’s theory, no royalties are owed to the Trustee.
To fund this litigation and to avoid a dispute with the purchaser of the Black Ice technology, the Trustee entered into a settlement agreement with Astral Images (the purchaser of Black Ice). Astral
Then, to tee up the dispute with Grin-berg, the Trustee filed,, his Motion to Set Deadline for Grinberg Asset Holdings, LLC to make an Election Pursuant to 365(n) of the Bankruptcy Code
Susan ’ ■ Sullivan—a creditor with a $2,000,000 contingent claim
Why does Sullivan care? Sullivan first asserts that as an unsecured creditor she wants the estate to collect as much money as possible from Grinberg so her dividend will be larger. But Sullivan also is concerned that an adverse ruling by this Court on the executory contract issue will somehow bind Sullivan adversely in certain California state court litigation pending between Sullivan and Grinberg.
C. The Trustee Moves to Strike Sullivan’s Pleadings.
The Trustee filed his Motion to Strike Pleadings. of Sue Sullivan Pursuant to Bankruptcy Code Sections 558 and 704(A)(1)
The Court denied the Motion to Strike to the extent that Sullivan was objecting to the Trustee’s decision to pursue his selected legal theory but granted the motion to the extent that Sullivan’s pleadings spoke to the merits of the Motion to Set.. The Court considered and overruled Sullivan’s objection on the basis that the Trustee’s decision to pursue a particular legal theory was a matter of business judgment and there was no allegation that the trustee had not made a considered judgment.
II. Analysis
A. Sullivan May Seek to Intervene.
Some authorities state that Bankruptcy Rule 2018 merely implements section 1109
The standards under Rule 2018 and FRCP 24 overlap.
As the largest creditor in this case and a party in state-court litigation involving common questions of law and fact, Sullivan has a discernable interest in the resolution of the Motion to Set. Further, the Trustee does not share Sullivan’s interests regarding the California litigation. Thus, the application of either Rule 2018, FRCP 24(a), or FRCP 24(b) here boils down to whether the Trustee adequately represents Sullivan’s interest in maximizing her dividend from the estate, whether denying intervention will prejudice Sullivan’s rights in her California litigation with Grinberg, and whether allowing intervention will create undue delay.
B. The Trustee Adequately Represents Sullivan’s Interest in Maximizing the Estate.
Sullivan’s interest in maximizing the value of the estate is adequately represented by the Trustee. Section 704(a)(1) of the Bankruptcy Code directs chapter 7 trustees to “collect funds and reduce to money the property of the estate” and to do so “as expeditiously as is compatible with the best interest of parties in interest.” Although Sullivan disagrees with the Trustee’s chosen legal theory, the Bankruptcy Code gives chapter 7 trustees wide latitude to decide how to execute their mandate if the decision was the result of reasoned judgment.
The Court is convinced that the Trustee is seeking to maximize the value of the estate and has exercised reasoned judgment.
C. Sullivan Need Not Participate in the Motion to Set to Protect Her Rights in the California Litigation.
Although the Trustee does not adequately represent Sullivan’s interests in
According to the California Supreme Court, collateral estoppel “applies: (1) after final adjudication (2) of an identical issue (8) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.”
D. Sullivan’s Intervention would Complicate and Delay the Resolution of the Motion to Set.
The Trustee and Grinberg do not want to fight over whether the contract was executory; their chosen battlegrounds are whether the contract licensed the Black Ice intellectual property and whether Grinberg has continued to use the Black Ice intellectual property. If Sullivan intervenes, the Trustee and Grinberg would have to engage on another front, necessitating additional discovery, hearing preparation, and time spent in court. The result would be additional expense and delay in the resolution of the matter.
III. Conclusion
Because Susan Sullivan does not need to participate in the Motion to Set to protect
. See generally In re Adilace Holdings, Inc., No. 14-11583, ECF 147 (order approving the
. Compare, e.g., In re Adilace Holdings, Inc., No. 14-11583, ECF 275, at 1-2 (Grinberg's brief in support of its response to the Trustee’s motion to set deadline pursuant to section 365(n)) (indicating the Black Ice technology does not include the modifications to a scanner purchased by Grinberg), with In re Adilace Holdings, Inc., No. 14-11583, ECF 277 (Sullivan’s response to the motion to set) (indicating that the Black Ice technology includes the modified hardware).
. In re Adilace Holdings, Inc., No. 14-11583, ECF 1.
. See In re Adilace Holdings, Inc., No. 14-11583, ECF 13 (Debtor’s motion to convert the chapter 7 case to a chapter 11 case); In re Adilace Holdings, Inc., No. 14-11583, ECF 40 (order converting case).
. In re Adilace Holdings, Inc., No. 14-11583, ECF 84 (amended motion to sell) (detailing the sale of assets); In re Adilace Holdings, Inc., No. 14-11583, ECF 147 (order approving sale); In re Adilace Holdings, Inc., No. 14-11583, ECF 182 (notice of closing).
. See In re Adilace Holdings, Inc., No. 14-11583, ECF 212 (order converting case to chapter 7).
. In re Adilace Holdings, Inc., No. 14-11583, ECF 268, at ¶ 2 (Trustee's motion to set deadline for 365(n) election).
. 11 U.S.C. § 365(n)(l).
. 11 U.S.C. § 365(n)(2)(B)-(C).
. As the Trustee’s counsel indicated at the hearing on Sullivan’s motion to intervene, there may be some additional wrinkles and possible exceptions, but this is the essence of the settlement agreement.
. In re Adilace Holdings, Inc., No. 14-11583, ECF 264 (order approving compromise).
. In re Adilace Holdings, Inc., No. 14-11583, ECF 268.
. In re Adilace Holdings, Inc., No. 14-11583, ECF 274, at ¶ 26.
.. In re Adilace Holdings, Inc., No. 14-11583, Claim 12-1.
. In re Adilace Holdings, Inc., No. 14-11583, ECF 277.
. Under section 365(n)(l)(A), the licensee may only treat a contract as terminated by a rejection of an executory contract if "such rejection by the trustee amounts to such a breach as would entitle the licensee to treat such contract as terminated by virtue of its own terms, applicable nonbankruptcy law, or an agreement made by the licensee with another entity....” ,
. In re Adilace Holdings, Inc., No. 14-11583, ECF 295.
. In re Adilace Holdings, Inc., No. 14-11583, ECF 301.
. Id.
. In re Adilace Holdings, Inc., No. 14-11583, ECF 303.
. E.g., Hasso v. Mozsgai (In re La Sierra Fin. Servs.), 290 B.R. 718, 728 (9th Cir. BAP 2002) ("Section 1109(b) is implemented by Rule 2018____"); Advisory Committee Note to Fed. R. Bankr.P.2018.
. Pasternak & Fidis, P.C. v. Wilson, No. GJH-14-01307, 2014 WL 4826109, at *6 (D.Md. 2014) (affirming bankruptcy court ruling applying Rule 2018 to a chapter 7 case); In re First Interregional Equity Corp., 218 B.R. 731, 736 (Bankr.D.N.J. 1997) (applying Rule 2018 to a SIPA case conducted as a chapter 7 case); 9 Collier on Bankruptcy ¶ 1108.02 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) ("In chapter 12 and 13 cases, and in chapter 7 cases, trustees have a right to be heard; for others, intervention would occur under Rule 2018.”); Advisory Committee Note. to Fed. R. Bankr.P.2018 ("[Rule 2018(a) ] permits intervention of an entity (see § 101(14), (21) of the Code) not otherwise entitled to do so under the Code or this rule.”).
. See, e.g., In re Alterra Healthcare Corp., 353 B.R. 66, 71 (Bankr.D.Del. 2006) (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994)).
. Pasternak & Fidis, 2014 WL 4826109, at *6; In re Pulp Finish 1 Co., No. 12-13774, 2014 WL 201482, at *8 (Bankr.S.D.N.Y. 2014); In re First Interregional Equity Corp., 218 B.R. 731, 736 (Bankr.D.N.J. 1997).
. Pasternak & Fidis, 2014 WL 4826109, at *6; In re Pulp Finish 1 Co., 2014 WL 201482, at *8; In re First Interregional Equity Corp., 218 B.R. at 736.
. Pasternak & Fidis, 2014 WL 4826109, at *6; In re Pulp Finish 1 Co., 2014 WL 201482, at *8; In re First Interregional Equity Corp., 218 B.R. at 736.
. See Staley v. Harris Cty. Tex., 160 Fed.Appx. 410, 414 (5th Cir. 2005) (quoting New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 471 (5th Cir. 1984)); In re Durango Georgia Paper Co., 336 B.R. 594, 596 (Bankr.S.D.Ga. 2005).
. See In re Cooper, 405 B.R. 801, 812 (Bankr.N.D.Tex. 2009) ("The trustee ... is expected to be a gatekeeper and to exercise reasonable business judgment in deciding what actions to bring and what are not worth the expense. In theoiy at least (and hopefully in reality), the trustee is a fair, balanced, and experienced (not to mention bonded, see 11 U.S.C. § 322) official who can be .depended upon to exercise good litigation judgment.”).
. See In re Adilace Holdings, Inc., No. 14-11583, ECF 301 (Order overruling Sullivan’s objection to the Trustee’s litigation posture).
. See In re Adilace Holdings, Inc., No. 14-11583, ECF 303, 26 (citing Farmers Nat’l Bank v. Shirey, 126 Idaho 63, 878 P.2d 762, 767 (1994); Sanders Confectionery Prods. v. Heller Fin., Inc., 973 F.2d 474, 480-481 (6th Cir. 1992)).
. Indeed, Sanders Confectionery did not involve privity between a trustee and a creditor. See 973 F.2d at 481-82.
. DKN Holdings LLC v. Faerber, 61 Cal.4th 813, 189 Cal.Rptr.3d 809, 352 P.3d 378, 387 (2015), reh’g denied (Aug. 12, 2015).
. Gottlieb v. Kest, 141 Cal.App.4th 110, 150, 46 Cal.Rptr.3d 7 (2006) (quoting Citizens for Open Access to Sand & Tide, Inc. v. Seadrift Ass'n, 60 Cal.App.4th 1053, 1070-71, 71 Cal.Rptr.2d 77 (1998) (internal quotation marks omitted); accord DKN Holdings, 189 Cal.Rptr.3d 809, 352 P.3d at 387.
. Federal courts have found that the interests of Trustee’s and individual creditors are not always the same. In re Hansen, 368 B.R. 868, 879-80 (9th Cir. BAP 2007); cf. The Cadle Co. v. Reed, 392 B.R. 675, 683 (N.D.Tex. 2008).
Reference
- Full Case Name
- IN RE: ADILACE HOLDINGS, INC., Debtor
- Status
- Published