Ford Seeks Garlock Asbestos Trial Transcripts: BankruptcyBill Rochelle
March 19 (Bloomberg) -- Ford Motor Co. joined the U.S. Chamber of Commerce in seeking transcripts of a trial in which a bankruptcy judge ruled the “impropriety of some law firms” representing asbestos personal-injury plaintiffs led to “unfairly inflating recoveries against” Garlock Sealing Technologies LLC, a unit of EnPro Industries Inc.
The Chamber of Commerce’s Legal Newsline filed papers early this month asking U.S. Bankruptcy Judge George R. Hodges in Charlotte, North Carolina, to unseal transcripts of the trial culminating in the January decision. Before the trial, Hodges ruled that the proceedings would be closed to the public.
Ford joined the fray on March 14, saying it “may have been induced into inflated settlement in some of the same cases” that Hodges reviewed in his opinion. For possible use in cases where Ford paid asbestos settlements, the automaker wants Hodges to unseal the transcript, trial exhibits and disclosures by the asbestos plaintiffs’ lawyers about their clients.
Aetna Inc., the insurance company, filed last month for lists of the lawyers’ asbestos clients.
Hodges said in his January decision that claimants’ lawyers previously withheld evidence about the comparative degree of exposure to Garlock’s products. Legal Newsline said Hodges’s opinion made “misconduct by asbestos plaintiffs and their lawyers the focus of national debate.”
The official committee of Garlock asbestos claimants last week asked Hodges to throw out Legal Newsline’s March filing. According to the committee, the publication already has an appeal pending from the judge’s decision to close the trial to the public and that should bar the publication from seeking the same relief.
Hodges said in his January opinion that $125 million was the “reasonable and reliable” estimate of present and future liability for mesothelioma claims. The asbestos claimants sought almost $1.3 billion. For details, click here for the Jan. 13 Bloomberg bankruptcy report.
Garlock, based in Palmyra, New York, filed for Chapter 11 protection in June 2010 and later submitted a reorganization plan for full payment of present and future asbestos personal-injury claims. The plan addresses 100,000 asbestos claims. For details, click here for the Nov. 30, 2011, Bloomberg bankruptcy report.
EnPro stock has climbed since Hodges issued his ruling. The shares, which closed at $58.78 the day before his opinion, rose 46 cents to $72.47 yesterday in New York trading.
EnPro had assets of $1.39 billion and liabilities of $779.3 million on its Dec. 31 balance sheet. Net income last year was $27 million on revenue of $1.144 billion.
EnPro makes engineered products, including diesel and natural-gas engines. It has operations in the U.S. and 10 other countries.
The Garlock case is In re Garlock Sealing Technologies LLC, 10-bk-31607, U.S. Bankruptcy Court, Western District North Carolina (Charlotte).
FGIC Joins Banks to Stop Detroit From Voiding Debt
Financial Guaranty Insurance Co. and six banks, including Deutsche Bank AG, asked to take part in the lawsuit Detroit filed in January to void $1.45 billion in obligations that were incurred in 2005 and 2006 to fund municipal pensions.
The banks said in court papers this week that they hold $1 billion of the debt. New York-based FGIC said it will bear the loss if the city’s obligation to pay is abrogated, and they all claim the right to join the lawsuit and try to stop Detroit from voiding the debt.
If they are permitted to join, FGIC and the banks said, they will file counterclaims against the city and the pension funds based on theories including unjust enrichment.
FGIC accused Detroit of engaging in “opportunism and revisionist history.” Although selling the debt relieved the city of an immediate obligation to pay hundreds of millions into the underfunded pension systems, FGIC said, the city “now seeks to turn a crooked eye to history” by claiming it was “the innocent victim of fraud perpetrated on a grand scale.”
According to its complaint, Detroit said the two pension systems were underfunded by $1.7 billion 2004. The city couldn’t borrow more to replenish the funds because of state caps on municipal debt. Detroit said the loan transactions were a “sham” designed to evade those restrictions. For details, click here for the Feb. 3 Bloomberg bankruptcy report.
Detroit filed a debt-adjustment plan last month. The plan provides full payment for holders of secured general obligation bonds and a 20 percent recovery from receipt of new bonds for holders of what Detroit said are unsecured general obligation bonds. Retired city workers are to have pensions cut 4 percent to 26 percent, if they accept the compromise contained in the plan. For details, click here for the Feb. 24 Bloomberg bankruptcy report.
A hearing is set for April 4 to present arguments over whether the plan can affect city workers’ pensions. The hearing for approval of disclosure materials is slated for April 14.
The current schedule calls for the last phase in the plan-approval process, dealing with disputed facts, to run from July 16 to Aug. 1.
Detroit began the largest-ever Chapter 9 municipal bankruptcy in July with $18 billion in debt, including $5.85 billion in special revenue obligations, $6.4 billion in post-employment benefits, $3.5 billion for underfunded pensions, $1.13 billion on secured and unsecured general obligations and $1.43 billion on pension-related debt, according to a court filing. Debt service consumes 42.5 percent of revenue.
The city of 700,000 has 100,000 creditors and 20,000 retirees.
The lawsuit is City of Detroit, Michigan v. General Retirement System Corp. (In re City of Detroit, Michigan), 14-04112, U.S. Bankruptcy Court, Eastern District Michigan (Detroit).
The Chapter 9 case is City of Detroit, Michigan, 13-bk-53846, U.S. Bankruptcy Court, Eastern District of Michigan (Detroit).
Syncora Objecting to New Detroit Swap Settlement
Bond insurer Syncora Guarantee Inc. made good on its threat and filed papers this week objecting to the revised settlement that would cost Detroit $85 million to end liability under a swap agreement, compared with the $165 million cost under a prior settlement the bankruptcy judge refused to approve.
Syncora isn’t alone in objecting. About 10 other objections were filed. There will be a hearing on April 3 where the bankruptcy judge in Detroit will consider approving the settlement.
The proposed settlement is with the Merrill Lynch Capital Services Inc. unit of Bank of America Corp. and UBS AG. They are the other side to swap agreements intended to protect Detroit from rising interest rates on floating-rate loans taken down to fund the pension systems.
Syncora faults the new settlement because, unlike the prior version, it doesn’t terminate the swap agreement and thus can’t properly terminate the security interest in casino revenue. Unlike the prior disapproved settlement, the new one does not terminate Syncora’s insurance on the swap agreement.
The bankruptcy court, according to Syncora, cannot simply “vaporize” liens on casino revenue.
Several foreign banks, including Hypothekenbank Frankfurt AG, believe the settlement shouldn’t be approved because it’s “outside the lowest range of reasonableness.”
The banks believe the city is “certain” to invalidate the security interest in casino revenue providing collateral for the swap obligation.
Detroit will respond to the objections on March 21.
Detroit to Have No Committee for Civil Rights Suits
Detroit won’t have an official committee representing people with lawsuits alleging the city violated their civil rights.
In mid-January, a group of civil rights plaintiffs filed papers asking U.S. Bankruptcy Judge Steven Rhodes to appoint an official committee to represent them. Had Rhodes agreed, Detroit would have paid their lawyers in negotiations over their treatment in a municipal debt-adjustment plan.
Last week, Rhodes wrote a one-page order denying the request for a committee. He said membership of the group seeking a committee was “undisclosed.”
Rhodes said there is no occasion for a committee because “the mediation procedures currently in place adequately address the interests of this group of creditors.”
Rather than permit pre-bankruptcy lawsuits to proceed, Rhodes set up mediation procedures designed to work out settlements. The procedures carved out plaintiffs with civil rights suits brought under Section 1983 of Title 42 of the U.S. Code.
Rhodes referred civil right suits to the chief U.S. district judge in Detroit for mediation.
Savient’s Liquidating Chapter 11 Plan Out for Vote
Savient Pharmaceuticals Inc., a developer of a treatment for gout, sold the business in January for $120.4 million and scheduled a hearing on May 19 for approval of a liquidating Chapter 11 plan implementing a settlement between secured noteholders and unsecured creditors.
Crealta Pharmaceuticals LLC bought the business. The settlement resulted from the official creditors’ committee’s challenge to the validity of the secured noteholders’ $147.5 million claim.
The settlement carved out $2.525 million, including $1.925 million for unsecured creditors and $575,000 for the committee’s lawyers. In addition, $100,000 was earmarked for the indenture trustee for convertible noteholders owed $122.4 million.
According to the disclosure statement approved yesterday, noteholders should have an 87.5 percent recovery, while general unsecured creditors see 1.3 percent.
Bridgewater, New Jersey-based Savient filed for Chapter 11 protection in October. The petition listed assets of $73.8 million against liabilities totaling $260.4 million.
The case is In re Savient Pharmaceuticals, 13-bk-12680, U.S. Bankruptcy Court, District of Delaware (Wilmington).
MM&A Trustee Wants Lawyers Barred From Court
The trustee for Montreal Maine & Atlantic Railway Ltd., whose runaway train killed 47 in Lac-Megantic, Quebec, contends that lawyers for victims’ families still aren’t entitled to participate in the railroad’s bankruptcy.
U.S. Bankruptcy Judge Louis H. Kornreich barred the 47 victims’ lawyers from participating in the bankruptcy until they comply with a bankruptcy rule requiring disclosure of agreements with their clients.
Last week, the victims’ lawyers filed more papers describing their retention agreements and want Kornreich to hold a hearing today to say they are permitted to begin appearing again in the railroad’s Chapter 11 liquidation.
Trustee Robert J. Keach filed papers yesterday saying the new disclosures still don’t comply with requirements when a lawyer represents more than one client in a bankruptcy. Keach faults the lawyers for not producing retention agreements with each of the 47 clients.
Keach also said the lawyers don’t say whether there is one agreement signed by all 47 clients or 47 different agreements.
On top of continuing to bar the lawyers from participating, Keach wants Kornreich to have the lawyers reimburse the bankrupt railroad for expenses in compelling compliance with the bankruptcy rule on multiple representations.
The wrongful-death lawyers have a Chapter 11 plan on file where their clients would take 75 percent of a $25 million insurance policy. The other 25 percent would go to those in Lac-Megantic whose homes or properties were destroyed when the unattended train derailed, burning much of the town.
If the victims’ lawyers are found in compliance by then, there is an April 8 hearing to consider approval of disclosure materials explaining the ad hoc victims’ committee’s plan. Keach and the official creditors’ committee oppose the plan on multiple grounds.
After the disaster in July, MM&A began parallel bankruptcies in Canada and Maine in August. The Hermon, Maine-based railroad operates 510 route-miles (820 kilometers) in Maine, Vermont and Quebec. It listed assets of $46.1 million and liabilities totaling $54.4 million, including $38.4 million in secured claims. The railroad didn’t estimate injury, death and damage claims.
The case is In re Montreal Maine & Atlantic Railway Ltd., 13-bk-10670, U.S. Bankruptcy Court, District of Maine (Bangor).
Green Field Noteholders Take TPT Unit in Debt Swap
Green Field Energy Services Inc., an oil-field services provider, wants to sell its Turbine Powered Technology LLC unit to noteholders in exchange for a $17.5 million reduction in secured debt.
Last week, the bankruptcy court in Delaware authorized Green Field to hire liquidator Gordon Brothers Group LLC to sell assets as the company’s agent. The liquidators guaranteed that Lafayette, Louisiana-based Green Field will recover $50 million and as much as $17.5 million more depending on the outcome of the sale.
There was an auction to determine if anyone would bid against Gordon Brothers for the assets. Although no one made a competing bid for everything, the secured noteholders submitted a bid for TPT, a maker of motors and generators.
Green Field wanted the sale of TPT approved last week along with the Gordon Brothers liquidation agreement. The judge required the company to submit a new set of papers for the TPT sale. Tentatively, the hearing for approval of the TPT sale will occur March 25.
As the result of an examiner’s report, the unsecured creditors’ committee negotiated a settlement changing opposition into support for Green Field’s liquidating Chapter 11 plan at an April 23 confirmation hearing.
As revised, senior noteholders are expecting a 25 percent recovery on $255.9 million in claims. General unsecured creditors, with $264.5 million in claims, are projected for a 13 percent recovery from a liquidating trust. Holders of subordinated claims get nothing. For details on the revised plan, click here for the March 18 Bloomberg bankruptcy report.
Green Field listed assets of $306.9 million and debt totaling $447.2 million, including $345.1 million in secured claims. Secured debt includes the $255.9 million in 13 percent senior secured notes.
The company originally listed unsecured debt of $102.1 million. The balance sheet had assets of $352.1 million on June 30 against liabilities totaling $412.1 million.
Green Field provided hydraulic fracturing and well services. Revenue for the first eight months of 2013 was $183 million, resulting in a net loss of $81.4 million.
The case is In re Green Field Energy Services Inc., 13-bk-12783, U.S. Bankruptcy Court, District of Delaware (Wilmington).
Long Beach Hospital Auction Scheduled for April 29
Long Beach Medical Center, a 162-bed acute-care hospital before Hurricane Sandy in 2012, will hold an auction on April 29 to determine if the $21 million offer from South Nassau Communities Hospital is the best bid for the institution.
The nonprofit facility in Long Beach, New York, filed a petition for Chapter 11 protection on Feb. 19 with the sale to South Nassau already arranged. It also has a 200-bed nursing facility.
Competing bids are due April 24, under sale procedures approved by U.S. Bankruptcy Judge Alan S. Trust in Central Islip, New York. If there is another bid, the auction on April 29 will be followed by a hearing on May 1 to approve sale.
Last week, Trust gave final approval for $4.5 million in financing provided by South Nassau. The loan will be subtracted from the purchase price.
The hospital was damaged in the 2012 hurricane. The acute-care facility never reopened, although the nursing facility did. The New York Department of Health decided not to finance a reopening of the hospital, thus requiring sale.
Long Beach’s Chapter 11 petition listed assets of $21 million and debt totaling $48 million. The largest liability is $40 million owing to the Pension Benefit Guaranty Corp., which has a $9 million federal lien to cover pension underfunding.
The case is In re Long Beach Medical Center, 14-bk-70593, U.S. Bankruptcy Court, Eastern District of New York (Central Islip).
Comcast No Longer Interested in Buying Houston Sports Network
Comcast Corp. said after filing an involuntary bankruptcy petition against Houston Regional Sports Network LP that it was interested in buying the business that carries games for the Houston Astros professional baseball club and the Houston Rockets of the National Basketball Association.
That’s no longer the case. Yesterday, Philadelphia-based Comcast said it’s not interested in buying and won’t submit a bid. It said “much has happened” since the bankruptcy began six months ago. It nonetheless “remains open” to a proposal for reorganization.
The network is jointly owned by the two teams and Comcast. For other Bloomberg coverage, click here.
The bankruptcy judge put the network formally into Chapter 11 last month after efforts failed at finding a buyer. The Astros opposed bankruptcy, contending reorganization is hopeless because the partnership agreement allows it to bar any plan the other two owners might propose.
The bankruptcy judge didn’t buy the Astros’ argument, telling the baseball club that bankruptcy law imposes fiduciary duties on the owners so they must vote for transactions that benefit the network, even if they’re adverse to the team’s best interests.
The Astros are appealing. For details on the bankruptcy judge’s decision, click here for the Feb. 13 Bloomberg bankruptcy report.
The network said in a court filing that it owes $27.9 million to the Astros and $27.7 million to the Rockets.
The case is In re Houston Regional Sports Network LP, 13-bk-35998, U.S. Bankruptcy Court, Southern District of Texas (Houston).
Biofuel Maker Kior Needs Cash to Stay in Business
Kior Inc., a producer of motor fuel from plant material, said it may default on debt and file for bankruptcy absent new funds from Vinod Khosla, who injected $100 million in October alongside Gates Ventures LLC.
The Pasadena, Texas-based company has a contingent $25 million commitment from Khosla, a founder of Sun Microsystems Inc.
Kior closed the plant in Columbus, Mississippi for upgrading in January and is generating no income.
The stock reached a peak of $23.85 on Sept. 29, 2011. Yesterday, the stock fell 39 percent to close at 65 cents in New York trading. For Bloomberg coverage, click here.
James River Coal Skips Interest Payment on Convertible Notes
James River Coal Co., an operator of coal mines mostly in central Appalachia, didn’t make a $13.3 million interest payment this week on convertible notes due in March 2018.
The grace period runs out April 14. For a Bloomberg story, click here.
Richmond, Virginia-based James River filed for Chapter 11 reorganization in April 2003 and emerged from bankruptcy a little more than one year later.
The $47.3 million in 4.5 percent senior unsecured convertible notes due 2015 last traded yesterday for 5 cents on the dollar. On Jan. 27 they fetched 32.125 cents, according to Trace, the bond-price reporting system of the Financial Industry Regulatory Authority. The $270 million in 7.875 percent senior unsecured notes due in 2019 last traded yesterday for 15.678 cents on the dollar, for a yield of 69.623 percent, Trace reported.
The stock dropped 13 percent yesterday to a record closing low of 61 cents in New York trading. In the past three years, the closing high was $25.14 on April 1, 2011.
FTI Consulting Downgraded From Fewer Bankruptcies
Management consultant FTI Consulting Inc. received a downgrade last week from Standard & Poor’s, partly on account of “continued weakness” in the “restructuring business since the U.S. corporate default rate remains very low.”
S&P lowered the corporate rating by one grade to BB, matching the existing rating from Moody’s Investors Service. The senior unsecured debt rating from S&P went to BB-.
On the plus side, S&P said FTI has “healthy discretionary cash flow.” The reduction in “headcount,” on the other hand, led to an increase in leverage, S&P said.
The West Palm Beach, Florida-based company is “dependent on highly mobile and sought-after senior staff,” S&P said.
FTI rose 3.4 percent yesterday to $31.38 in New York trading. The stock plunged 19 percent on Feb. 20 when the company announced revenue of $1.65 billion last year, resulting in a $10.6 million net loss after $38.4 million in charges. That performance improved on 2012, when the net loss was $37 million on revenue of $1.58 billion, with charges of $29.6 million.
The three-year closing high for the stock was $46.11 on Dec. 2. The closing low in the period was $23.11 on Aug. 3, 2012.
Checkout Holding LBO Results in Downgrade to B3
Checkout Holding Corp., the parent of Catalina Marketing Corp., was downgraded as a consequence of a leveraged buyout where Berkshire Partners LLC is acquiring majority control from Hellman & Friedman LLC.
The corporate rating from Moody’s Investors Service dropped yesterday by one step to B3.
The transaction entails an equity value of $840 million and $1.7 billion in new debt that will pay off existing debt, Moody’s said.
Based in St. Petersburg, Florida, Checkout supplies point-of-sale marketing services such as coupons.
Stern Case Can’t Be Used to Vacate Prior Judgments
Attacking a judgment by claiming that the bankruptcy court lacked power to make a final order won’t succeed where the time for appeal has long passed, according to a March 12 decision from the U.S. Court of Appeals in Chicago.
An individual filed in Chapter 7, to be met by a lawsuit where a creditor successfully contended that a $45,000 debt was procured by fraud. The bankruptcy judge entered judgment for the debt and declared the debt non-dischargeable.
Long after the time for appeal lapsed, the U.S. Supreme Court handed down the Stern v. Marshall opinion declaring that bankruptcy courts can’t make final rulings on some types of state-law claims against creditors.
In the reopened bankruptcy, the bankrupt contended that Stern deprived the bankruptcy judge of the ability to enter judgment against him. He lost in the bankruptcy court and on a first appeal in federal district court.
In an unsigned opinion, a three-judge panel on the Seventh Circuit Court of Appeals in Chicago upheld the lower courts. The circuit court didn’t reach the question of whether Stern deprives bankruptcy courts of the traditional power to enter judgment in the process of deciding if a debt is dischargeable.
Instead, the circuit court based its decision on familiar principles under Rule 60(b) of the Federal Rules of Civil Procedure dealing with reopening judgments for mistake. The court said that voiding a judgment for jurisdictional defect is possible only if the court “lacked even an ‘arguable basis’ for jurisdiction.”
Perhaps of more significance, the appeals court said that Rule 60(b) applies retroactively “only under extraordinary circumstances.” The opinion said that a legal development like Stern that comes after entry of a judgment is not “extraordinary.”
Near the end, the opinion says that the bankruptcy court’s exercise of jurisdiction “was correct at the time of its issuance.”
The case is Lee v. Christenson, 13-3256, U.S. Court of Appeals for the Seventh Circuit (Chicago).
Circuit Courts Split on Allowing Constructive Trusts
The U.S. Court of Appeals in Chicago parted company with its sister appeals court in Cincinnati by ruling that the notion of constructive trust isn’t anathema in bankruptcy.
The case, decided on March 12 by the Seventh Circuit Court of Appeals in Chicago, involved a cattle farmer who delivered cattle to an agent for sale to a specified buyer.
Within three months of the agent’s bankruptcy, the cattle owner was paid about $900,000. The bankruptcy trustee sued to recover the payments as a preference.
In the bankruptcy court and on a first appeal, the trustee lost. Everyone conceded that all elements of a preference were present aside from the question of whether proceeds from the cattle were property of the bankrupt estate.
In her opinion for the three-judge panel, Chief Circuit Judge Diane P. Wood looked to Illinois law and concluded that the arrangement was a bailment where the agent didn’t have the right to buy the cattle or keep the money. Next, she examined whether the bailment gave rise to a constructive trust. The proceeds wouldn’t be estate assets if there were a valid constructive trust, she said.
At that juncture, Wood discussed a case called Omegas Group Inc., where the Sixth Circuit in Cincinnati ruled that constructive trusts are “anathema to the equities of bankruptcy.” On the other hand, there is the Quality Holstein Leasing case from the Fifth Circuit appeals court in New Orleans permitting constructive trusts in proper cases in bankruptcy.
Wood sided with the Fifth Circuit in permitting constructive trusts in bankruptcy. She said that Congress generally allows state law to determine the contours of what’s property and who owns it.
Even if there could be a constructive trust, Wood sent the case back to the bankruptcy court for a determination of whether there was a valid restitution claim under Illinois law. She also told the lower court to decide if there were “equitable defenses” that might bar the cattle owner from having the right of restitution.
Finally, Wood said the bankruptcy court must engage in tracing since the cattle owner’s proceeds were commingled in the agent’s general operating account.
To decide on remand how much could be traced, Wood instructed the lower court to use the “lowest intermediate balance rule.”
The case is In re Mississippi Valley Livestock Inc., 13-01377, U.S. Court of Appeals for Seventh Circuit (Chicago).
Third Circuit Drives Another Nail in Frenville’s Coffin
When spouses are divorcing, the claim for equitable distribution of marital property is a pre-bankruptcy claim, according to a March 13 opinion from the U.S. Court of Appeals in Philadelphia.
When the husband filed Chapter 7 bankruptcy, the couple already was in divorce proceedings, although there was no final judgment of divorce and no division by then of marital property.
The husband’s bankruptcy trustee took the position that the wife had no claim under Section 101(5) of the Bankruptcy Code defining what’s a claim.
Circuit Thomas Ambro, a bankruptcy lawyer before ascending to the Third Circuit bench in Philadelphia, used the case to drive another nail in the coffin of a case called Frenville, which the appeals court overruled in 2010 in a case called Grossman.
In Grossman, the Third Circuit ended adherence to the Frenville case dating from 1984. After Grossman, the court no longer followed Frenville and its reference to whether a claim had “accrued” under state law. For discussion of Grossman, click here for the June 4, 2010, Bloomberg bankruptcy report.
Ambro said the Bankruptcy Code’s definition of a claim “favors a broader rejection of the Frenville accrual test.” He said the wife had a claim even if it were contingent and unliquidated. After Grossman, he said the focus is on whether a claim exists, not whether it has accrued.
As a result of Ambro’s ruling, the wife had a pre-bankruptcy general unsecured claim to share the husband’s assets with other creditors. If it were a post-bankruptcy claim, it wouldn’t have been discharged under Section 523(a)(15) of the Bankruptcy Code.
Although a post-bankruptcy claim would have survived bankruptcy were it not discharged, the wife might have been worse off because the husband would have lost property in bankruptcy.
Retired Supreme Court Justice Sandra Day O’Connor sat by designation on the three-judge panel.
The case is In re Ruitenberg, 13-2175, U.S. Court of Appeals for the Third Circuit (Philadelphia).
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