Counter

Thursday, August 2, 2018

Alert About Filing Documents Electronically with the US Bankruptcy Court for the Southern District of New York

One of the important aspects of practicing law in the information age is understanding that there is a duty of technology competence.  Can an attorney get help with tasks requiring a working understanding of how to use technology?  Yes.  While tasks can be delegated, responsibility cannot be delegated.

There are a variety of approaches for dealing with this in a litigation practice.  The approach I recommend is the one I have employed in my litigation practice - being enthusiastic about learning and keeping up with developments in technology.  It is also helpful to have IT support in the form of a knowledgeable person who is available to assist; as a basic courtesy the person should be asked to block out the time to be available to assist with as much notice as possible.

There are rewards, including the satisfaction of working up legal papers and then being able to file them yourself.  Alternatives include waiting for somebody else, who will be using your password, whose actions you are responsible for, who may be tired after waiting for hours while a document is finalized for filing.  Risks include you will not communicate clearly what you want and get a result that reflects this, which may necessitate amended filings, requests for forgiveness from your opposing counsel or Court intervention.  You could also miss a deadline.  Gasp.  None of these things are the end of the world.  But given they are avoidable with some planning, isn't it best to plan?

With that, let's get into the alert that the United States Bankruptcy Court for the Southern District of New York sent by email yesterday concerning changes to electronic filing (e-filing) procedures.  It came under the subject heading: CM/ECF Outage & NextGen CM/ECF Implementation Scheduled 10/19/18 - 10/21/18.  The word "Outage" is attention grabbing. Many lawyers, at least those not on vacation or otherwise preoccupied, likely forwarded the email to their assistants and then put it out of their minds or made a mental note to come back to them.

A risk of proceeding in this fashion is missing the message the Court sent - you will need to do something if you want to keep filing documents with the Bankruptcy Court for the Southern District of New York electronically!

The Court also advised that the electronic filing system will be down for a couple of days starting October 19, 2018 at 8:30 AM (Eastern Standard Time).

The Court's notice that was delivered by email yesterday is reproduced below by way of helping spread the word so that people within and outside New York know about it and can prepare.

My law offices have a lot of experience with electronic filing.  I worked as an employee of one of the first federal judicial districts that tested out the electronic filing system that was brand new at the time.  I have over a decade of experience making electronic filings with trial and appellate courts in my clients' cases, and have helped other lawyers by serving as their co-counsel or local counsel in New York. If you or someone you know anticipates filing documents with the United States Bankruptcy Court for the Southern District of New York and wants to understand the changes coming into effect, I urge you to review the notice below and prepare.

I welcome comments on this blog post and questions can be emailed to me at tally.wiener@thecomi.com.  If I can help you, please do not hesitate to reach out.


United States Bankruptcy Court
for the
 Southern District of New York
______________________________________________________________________________
NOTICE TO THE BAR
August 1, 2018
CM/ECF Outage & NextGen CM/ECF Implementation
On October 19, 2018, at 8:30 AM (EST), the Bankruptcy Court for the Southern District of New York will take CM/ECF offline in order to update to NextGen CM/ECF ("NextGen").  As a result, e-filing will be unavailable through October 21, 2018. Parties with an October 19, 2018 filing deadline should plan to complete their filing prior to 8:30 AM (EST) that day.  Papers not filed electronically may be filed with the Court by depositing them in the night depository maintained by the District Clerk and will be deemed filed as of the date and time stamped thereon.  Any required fees for such filings must be delivered to the Clerk's Office no later than noon on the next business day. Refer to Local Bankruptcy Rule 5001-1 for further guidance http://www.nysb.uscourts.gov/sites/default/files/LocalRules2017.pdf.  We expect the system to be available again for e-filing on Monday, October 22, 2018 at 8:30 AM (EST). The Court's update to NextGen will require filers to take steps to update their CM/ECF and PACER accounts in order to continue to file electronically.  NextGen simplifies electronic filing by combining your CM/ECF and PACER accounts into a single Central Sign-On account.  Through the PACER website, filers will use one login and password to electronically file in all NextGen courts where they have permission to file.  Filers will no longer need a separate CM/ECF account for each NextGen court.  All Federal Courts are expected to eventually adopt NextGen.  Click https://www.pacer.gov/psco/cgi-bin/links.pl to see a list of current NextGen courts.
 What should I do next? 

  • Before October 22, 2018, upgrade your PACER account if you have not already done so athttps://www.pacer.gov/nextgen/. Each filer must have his or her own PACER account.  Shared PACER accounts will not work with NextGen.  Please note, PACER accounts created after August 11, 2014, are already upgraded accounts.

  • Beginning October 22, 2018, after New York Southern converts to NextGen, you must link each of your login accounts to your PACER account to electronically file.

Failure to complete these steps will prevent you from successfully electronically filing after NextGen goes live.
  • We look forward to assisting you in this transition to NextGen. More information is available below.                                                           
PACER          - On the web at https://www.pacer.gov/ecfcbt/cso/index.html
                         Email PACER at pacer@psc.uscourts.gov
                         Call PACER at (800) 676-6856

NYSB            - On the web at https://www.nysb.uscourts.gov
                         Email us at courtservices@nysb.uscourts.gov                          Call Court Services at 212-668-2870, Option 3





Tuesday, July 3, 2018

Succession &/@ Ocean Rig

The new HBO series Succession captures moments in the life of a wealthy family confronting the reality its patriarch will at some point step away from his job.  In last week's episode, I Went to Market, the family comes together to celebrate Thanksgiving, consuming enough alcohol for some family members to share their honest opinions of others.  Some leave early.  It may not be the worst of their experiences together, but it is a situation among those referred to in contemporary slang as a dumpster fire.

A theme of Succession has been that the father, who heads the publicly traded media conglomerate that employs some of the children, has managed to keep things under control for years.  When the father (Logan Roy, played brilliantly by Brian Cox), is temporarily not at the helm of the company (Waystar Royco), it turns out that the family's stock in the company secures a loan that the lender can call if the stock drops below a certain price.  This creates a multi-billion dollar problem in the father's absence because speculation over the fate of the company could cause a drop in the stock price.  To explain how this is dealt with could be a spoiler, so let's just say a person willing to handle the situation is later advised: "You are a f*cking idiot."  (This is a very harsh statement that may prove to be true.  Stay tuned.)

Watching the show's second episode, Sh*t Show at the F**k Factory was thought provoking for me as an attorney who works on financial restructurings.  At first the title seemed remarkably vulgar but as the episode progressed and in the weeks after it aired I have come to appreciate its title may cover, albeit indelicately, a lot of corporate situations that likewise appear to be stable when there is a mess really, just beneath the surface...

A few months after entering into a court process in the Cayman Islands that led to appointment of provisional liquidators, Ocean Rig's Chief Executive Officer (CEO) George Economou and his nephew Anthony Kandylidis, Ocean Rig's Chief Financial Officer (CFO) left these roles with publicly traded Ocean Rig (Nasdaq ticker symbol ORIG).  In the lead up to and following the announcement of their succession at the end of December 2017, Ocean Rig is not what it used to be.  This is so even taking into account that the past few years have been tough for some in the offshore oil drilling industry the company services with its drillship and rig rental business.  Late last year Reuters reported that its sources advised Ocean Rig was "preparing to explore a sale amid pressure from some of its largest shareholders to review its strategic alternatives."  At the time of this writing, most of the company's rigs are not under contract.  The former CEO and CFO are defendants in a shareholder class action alleging improprieties with respect to DryShips (Nasdaq ticker symbol DRYS), another publicly traded company they helped run together.  There is also Ocean Rig related litigation pending in the United States and in the Marshall Islands, prosecuted by investors in the company, including the author of this post.

Now - would the situation be any better without the succession of the uncle/nephew team who helmed Ocean Rig as chief executive and financial officers?  We will never know.  For its part, HBO's Succession remains unpredictable.  Episode 6, Which Side Are You On? is due to air this coming Sunday, the 8th of July.  With the Roy family's Thanksgiving being as intense as it was, let's hope it's not Christmas for them just yet!

Friday, June 2, 2017

Recent Developments in Practice: New York, Delaware and Singapore

This piece was originally published by the International Committee of the American Bankruptcy Institute (ABI).  For more information about the ABI, see http://www.abi.org/.

Recent Developments in Practice: New York, Delaware and Singapore

Date Created: Fri, 05/26/2017 - 11:17
2

Weeks before Hanjin Shipping sought protection from its creditors in Korea, I got an unexpected call: “Tally, I think one of the world’s largest shipping companies is going to file for bankruptcy in Korea and seek chapter 15 protection in New York, are you up for being my local counsel?” This was in early August 2016, and my life has not been the same since.

Come November 2016, there was a lull in the main case in Seoul, Korea and the ancillary chapter 15 proceedings in Newark, N.J., long enough to enable me to co-author an article for the ABI Journal with Prof. Adrian J. Walters of IIT Chicago-Kent College of Law [about the Hanjin Shipping cases in Korea and the United States].[1] The volume of questions and comments that resulted necessitated adding storage space to my domain,[2] and I have since been asked what I make of matters in shipping cases ranging from the Internal Revenue Service filing priority claims in the hundreds of millions of dollars in Toisa Ltd.’s chapter 11 proceedings pending before the U.S. Bankruptcy Court for the Southern District of New York[3] to the relief sought in the chapter 15 proceedings of Ocean Rig[4] in the same district. And more!

Grateful as ever for the opportunity to be of service to people in need of orientation in emergency situations, I thought to share a development in international cases in New York, Delaware and Singapore so that it does not come as a surprise when they need to do what I did: Act in real time.

By resolution of the board of judges for the Southern District of New York, Chief Judge Cecelia G. Morris of the U.S. Bankruptcy Court for the Southern District of New York signed General Order M-511 as of Feb. 17, 2017.[5] The order serves “to improve the efficiency and effectiveness of cross-border insolvency proceedings and to enhance coordination and cooperation among courts under whose supervision such proceedings are being conducted.”[6] It adopts procedural guidelines made available in the clerk of court’s office and on the bankruptcy court’s website, and may be modified by subsequent general orders.[7] The scope of the procedural guidelines is broad; they apply where there are parallel cross-border proceedings relating to insolvency or the adjustment of debt opened in more than one jurisdiction.[8] As the procedural guidelines explain,

In particular, these Guidelines aim to promote:
(i)             the efficient and timely coordination and administration of Parallel Proceedings;
(ii)           the administration of Parallel Proceedings with a view to ensuring stakeholders’ interests are respected;
(iii)          the identification, preservation, and maximization of the value of the debtor’s assets, including the debtor’s business;
(iv)          the management of the debtor’s estate in ways that are proportionate to the amount of money involved, the nature of the case, the complexity of the issues, the number of creditors, and the number of jurisdictions involved in Parallel Proceedings;
(v)           the sharing of information in order to reduce costs; and
(vi)          the avoidance or minimization of litigation, costs, and inconvenience to the parties in Parallel Proceedings.[9]

Interested readers are encouraged to study the procedural guidelines as they alter previous practice under bodies of law including chapter 15 of the Bankruptcy Code, the related Federal Rules of Bankruptcy Procedure, Federal Rules of Evidence and Local Bankruptcy Rules for the Southern District of New York effective as of Dec. 1, 2016.

Procedural guidelines, to the same effect, are also in place in the District of Delaware[10] and can be made applicable to a particular case either by approval of a protocol or entry of an order following application made by the parties — or sua sponte by the bankruptcy court.[11] Meanwhile, in Singapore, the procedural guidelines are part of a broader initiative:

In October 2016, the Supreme Court announced the establishment of a network of insolvency judges from several jurisdictions to encourage communication and cooperation among national courts. The network, known as the Judicial Insolvency Network (“JIN”), comprises judges from Australia (Federal Court and New South Wales), Bermuda, the British Virgin Islands,[12] Canada (Ontario), the Cayman Islands, England [and] Wales[13], Singapore and the [U.S.] (Delaware and Southern District of New York) as pioneer participants. The JIN has approved guidelines (enclosed in Schedule I herein) setting out key features to be reflected in a protocol or order of court for communication and cooperation among courts, and insolvency representatives and other parties in cross-border insolvency proceedings (the “Guidelines”).

In Singapore, the Guidelines supplement all legislation, rules and procedure concerning insolvency….[14]

Conclusion

Given the bulk of interest-bearing notes issued under New York law, the long-lasting effects of the collapse of Lehman Brothers and other macro forces we can expect more companies to collapse under the weight of their leverages. We will be seeing more cross-border cases within and outside of the U.S. with complex parallel proceedings, and it is best to learn the ropes. They are quite interesting, and practitioners who are knowledgeable can provide advice in aid of a host of parties in interest worldwide.




[1] Tally M. Wiener and Adrian J. Walters, “The Dire Straits of Hanjin Shipping,” XXXVI ABI Journal 1, 26-27, 54, January 2017, available at abi.org/abi-journal.
[3] In re Toisa Ltd., et al., Chapter 11 Case No. 17-10184, pending before Hon. Shelley C. Chapman.
[4] In re Ocean Rig UDW Inc., et al., Chapter 15 Case No. 17-10736, pending before Hon. Martin Glenn.
[5] The general order is available on the U.S. Bankruptcy Court for the Southern District of New York’s website at www.nysb.uscourts.gov/sites/default/files/m511.pdf.
[6] Id.
[7] See id.
[8] See Guidelines for Communication and Cooperation Between Courts in Cross-Border Insolvency Matters, adopted by General Order M-511 supra n.5.
[9] Id.
[11] See id.
[12] Increasingly, Singapore courts are handling cases with British Virgin Islands pieces. See, e.g., Tally M. Wiener, “Singapore Court Upholds High Court Ruling in Liquidator’s Favor,” XXXIV ABI Journal 6, 30-31, 66-67, June 2015, available at abi.org/abi-journal.
[13] With thanks to Adrian J. Walters, Professor of Law at IIT Chicago-Kent College of Law and a Solicitor of the Senior Courts of England and Wales, for the update that follows. “In the UK, the JIN guidelines were adopted with effect from 4 May 2017 as chapter 25 of the Chancery Guide: https://www.gov.uk/government/publications/chancery-guide#history  They have also been recently adopted in Bermuda and the BVI.”
[14] Registrar’s Circular No. 1 of 2017, available on the website of the Supreme Court of the Republic of Singapore at supremecourt.gov.sg/docs/default-source/module-document/registrarcircular/rc-1-2017---issuance-of-guidelines-for-communication-and-coorporation-between-courts-in-cross-border-insolvency-matters-.pdf.

Saturday, March 11, 2017

Foreign companies filing for bankruptcy in the United States are not exempt from enforcement of American sanctions regulations by the Office of Foreign Asset Control.

Foreign companies have sought bankruptcy protection in the United States for decades.  Their hope often is to restructure under the laws of the United States their obligations, including their obligations to pay creditors and investors based overseas. And sometimes obligations are extinguished and principals of foreign companies are given releases as a matter of U.S. law.

Bankruptcy protection does not preclude regulatory action.  Some regulators come forward via the United States Trustee Program, a component of the United States Department of Justice responsible under federal law for the administration of bankruptcy cases and private trustees.  Regulators can also raise concerns to the Bankruptcy Courts directly.

Recently, the United States Department of the Treasury's Office of Foreign Assets Control (OFAC) issued a Finding of Violation against the B Whale Corporation - a company based in Taipei, Taiwan.  B Whale Corporation was a member of the TMT Group of shipping companies that had sought bankruptcy protection in Texas.

OFAC determined that, from on or about August 30, 2013 to on or about September 2, 2013, B Whale Corporation received over two million barrels of condensate crude oil from a ship-to-ship transfer off the coast of Iran made by an Iranian vessel that was, at the time, listed on OFAC's list of Specially Designated Nationals and Blocked Persons.

https://www.treasury.gov/resource-center/sanctions/CivPen/Documents/20170203_bwc_fov.pdf

OFAC determined that B Whale Corporation was a U.S. person within the scope of the Iranian Transactions and Sanctions Regulations at the time that the oil transfer occurred because the company was present in the United States within the scope of the Regulations due to its bankruptcy filing made in the United States Bankruptcy Court for the Southern District of Texas on June 20, 2013.  OFAC further concluded that the vessel M/V B Whale was subject to U.S. sanctions regulations because it was under the jurisdiction of a U.S. bankruptcy court, and therefore the oil transferred to the vessel was an importation from Iran to the United States as defined in the Iranian Transactions and Sanctions Regulations.

A news article reported that the matter may have come to OFAC's attention through allegations made by a creditor in filings in the bankruptcy.  We have located the filings and can share copies.  In the United States bankruptcy filings are generally a matter of public record.

OFAC's regulatory action should be viewed as a positive sign by foreign creditors and investors.  Concerns over violations of U.S. regulations can be raised in bankruptcy court, and addressed by regulators.

Saturday, November 19, 2016

Hanjin Shipping Update - Changes to the Time Table

Yesterday I made the post immediately below this one, discussing transparency issues in the bankruptcy proceedings of Hanjin Shipping.  It was read by thousands of people around the World in a matter of hours.  I subsequently invited those following the case closely in the shipping industry to post court filings to a website that can be made publicly available.  I am happy to help, and await a positive response.

Meanwhile, I was pleased to read that with Hanjin Shipping's extension of time to file a plan - from 23 December 2016 to 3 February 2017 - there has also been an extension of time for creditors to act.  As the Korean court orders are not yet readily accessible to me or other people who would like to see them, the information below is based on what Hellenic Shipping News reported:

"1. The claim investigation/adjudication period has been extended from 15 November 2016 to 5 December 2016;

2. Correspondingly, the one month deadline for creditors whose claims have been rejected in the investigation period to appeal that decision will now be 5 January 2016;

3. The first meeting of interested parties has been moved from 9 December 2016 to 1400 hours on 13 January 2017; and

4. The deadline for submission of the draft rehabilitation plan has been extended from 23 December 2016 to 3 February 2017."

For more information, see: http://www.hellenicshippingnews.com/hanjin-shipping-rehabilitation-changes-to-the-rehabilitation-timetable/

It is my hope that Hanjin Shipping bankruptcy proceedings ancillary to the rehabilitation procedure in Korea, including the United States chapter 15 bankruptcy proceedings, reflect the revised time table.

Further it is my hope that Judges presiding over the various ancillary bankruptcy proceedings and known creditors are advised of the changes to the time table via actual notice provided by Hanjin Shipping counsel on a timely basis.  Also it would be good, given the scope of the case, for Hanjin Shipping to provide publication notice Worldwide, certainly updating www.hanjin.com on an ongoing basis would be a good start.

But not everyone has internet access.  Actually, most people in the World do not.  Notice must be designed to reach as many people affected by the bankruptcy as possible, as soon as possible.  And there is no good reason for notice to not be provided on an ongoing basis.

Your rights may be affected.  The good news is now there is more time to take action that there was before.

Careful before you buy Hanjin Shipping stock.  Why the Hanjin Shipping stock is still trading is beyond me.  The stock of this deeply insolvent company that has sold off key assets seems to be worthless, at least as of today. 

All best to the Hanjin Shipping workers.  The last few months have been brutal - especially for the mariners stranded at sea and on arrested ships and their families.  May they enjoy good health and prosperity.

Friday, November 18, 2016

Reportedly, the Deadline for Hanjin Shipping to Submit a Plan to the Seoul Central District Court in which its Rehabilitation Procedure is Pending has Been Pushed Back to February 3, 2017

Hanjin Shipping Co., Ltd. was widely considered to be Korea's largest shipping company and the World's seventh largest shipping company when it filed for protection in Korea on August 31, 2016 under the Debtor Rehabilitation and Bankruptcy Act.  Hanjin Shipping also sought bankruptcy protection in other countries.  For example, just a few days after seeking protection in Korea, Hanjin Shipping filed for protection under chapter 15 of the Bankruptcy Code in the United States in Newark, New Jersey.  With bankruptcy protection in place in multiple countries, Hanjin Shipping reportedly went on to unload most customer cargo valued at $14 Billion that was at sea, return ships it had chartered, and sell off most of its fleet.

The Hanjin Shipping bankruptcy cases have been hard to follow because only limited information has been made publicly available.  This is unfortunate.  In most Chapter 11 bankruptcy cases of a similar magnitude in the United States court filings are made available by debtors to their creditors and other interested parties on websites that readily searchable - at no cost.  While Hanjin Shipping's bankruptcy proceedings are at advanced stages, hopefully the courts presiding over the proceedings will order the creation of such websites, so customers and other interested parties have ready access to court filings.

By Customer Advisory dated 2016-10/10 the Hanjin Shipping website, www.hanjin.com, provided information to customers concerning the filing of claims.  Hanjin Shipping Customer Advisory

This was helpful because customers whose claims had been listed in amounts consistent with customer records were instructed there was no need to file a claim.  Hanjin Shipping customers with actual notice or knowledge of this information before the claims filing deadline in late October had an opportunity to review their files, assess whether there were discrepancies between their books and records and Hanjin Shipping's and decide whether to file a claim.

The bankruptcy cases proceeded on the basis that Hanjin Shipping was to file a rehabilitation plan in Korea by December 23, 2016.

On November 17, 2016, Yonhap News Agency reported that the deadline for filing a rehabilitation plan had been pushed back to February 3, 2017 and that Samil PricewaterhouseCoopers was ordered to file an assessment of Hanjin Shipping's status by December 12, 2016.  For the English language news see: Hanjin Shipping's fate to be decided in February

This blog is dedicated to fostering transparency in cross border bankruptcies and so sends a shout-out to Yonhap News Agency for taking the initiative to report on Hanjin Shipping's extension of the time for filing a rehabilitation plan.   It is my hope, especially in light of the political situation in Korea, that Korean news agencies continue to provide information so that customers of Hanjin Shipping and other interested parties coping with Hanjin Shipping's collapse can keep up with developments.




Thursday, May 5, 2016

Colt Defense LLC Announces Resignation of Chief Financial Officer; Appoints Interim Chief Financial Officer

April 07, 2016 04:50 PM Eastern Daylight Time
HARTFORD, Conn.--()--Scott Flaherty, Senior Vice President and Chief Financial Officer of Colt’s Manufacturing Company, LLC, has resigned his positions with the company in order to pursue other opportunities. Richard Harris has been named Interim Chief Financial Officer.
About Colt
Colt is one of the world’s leading designers, developers and manufacturers of firearms. The company has supplied civilian, military and law enforcement customers in the United States and throughout the world for more than 175 years. Our subsidiary, Colt Canada Corporation, is the Canadian government’s Center of Excellence for small arms and is the Canadian military’s sole supplier of the C7 rifle and C8 carbine. Colt operates its manufacturing facilities in West Hartford, Connecticut and Kitchener, Ontario. For more information on Colt and its subsidiaries, please visit www.colt.com.

Monday, January 25, 2016

Hearing to be held on February 1, 2016 concerning attempted involuntary bankruptcy petition brought against certain Zohar funds by Patriarch Partners XV, LLC

A hearing has been scheduled before United States Bankruptcy Judge Robert D. Drain for 10:00 am on February 1, 2016 concerning whether Patriarch Partners XV, LLC (a company that is subject to investigation by the Securities and Exchange Commission) should be allowed to bankrupt certain of the Zohar feeder funds.

The hearing is to be held in the courthouse located at 300 Quarropas Street in White Plains, New York.  For more information, see http://www.nysb.uscourts.gov/content/judge-robert-d-drain

No notice of hearing has been filed with the Bankruptcy Court by the parties before the Bankruptcy Court.  The hearing information below is from the calendar kept on the Bankruptcy Court's website, http://www.nysb.uscourts.gov/calendars/rdd.html

It is difficult to characterize the nature of the February 1, 2016 hearing beyond that it will be an evidentiary hearing.  This is because the transcript of the previous hearing in this case is not available to the public.  According to commentators, issues to be addressed at the February 1, 2016 hearing include whether the bankruptcy process is being used in good faith by Patriarch Partners XV, LLC or whether it is engaged in a delay tactic.

If you are an investor in Zohar CDO 2003-1, Limited, Zohar CDO 2003-1, Corp. or Zohar CDO 2003-1, LLC - the targets of the bankruptcy - then your rights are affected.  If you are an investor in other Zohar entities, your rights may also be affected by the hearing.

Honorable Robert D. Drain 
Monday
01/25
Tuesday
01/26
Wednesday
01/27
Thursday
01/28
Friday
01/29
Monday
02/01
Tuesday
02/02
Wednesday
02/03
Thursday
02/04
Friday
02/05
Monday, February 01, 2016

10:00 AM
15-23680-rdd   Zohar CDO 2003-1, Limited    Ch. 11
Evidentiary Hearing on Motion to Dismiss Involuntary Petition // Answer and Motion of Alleged Debtors for an Order Dismissing Involuntary Chapter 11 Petitions or, in the Alternative, Abstaining Pursuant to 11 U.S.C. 305 






Thursday, October 22, 2015

Colt Defense - Unions Appeal Auction Bid Procedures to Protect Rights Under Collective Bargaining Agreement and, Meanwhile, No Qualified Bid Has Been Received for Colt's Assets.

Every so often a legal dispute arises in an international bankruptcy case that the press decides not to cover at all.  One can speculate as to what is driving the choice by the press of what to cover, how to cover it and what not to cover at all.  Rather than speculate, I maintain this blog for the sake of transparency.

One such dispute is currently in the United States District Court for the District of Delaware.

The iconic American gunmaker, Colt, is in bankruptcy proceedings in Delaware, and has put its assets on the auction block.  Surprisingly, a willing buyer has yet to come forward, though perhaps this is merely a function of limited efforts to date to market the assets.

Make no mistake.  There is value in the company and its assets.  While Colt has experienced financial difficulties - apparently due to over-leveraging its balance sheet, it also reportedly recently obtained a share in a $212 million contract from the U.S. Department of Defense.

See article, Financially Stricken Colt Defense Wins $212M Contract with DOD
http://www.breitbart.com/big-government/2015/09/30/financially-stricken-colt-defense-wins-212-million-contract-dod/

It is against this backdrop that the International Automobile, Aerospace and Agricultural Workers of America and its Local Union No. 376 filed an appeal of the Order of the United States Bankruptcy Court for the District of Delaware approving bid procedures in connection with the sale of substantially all of the assets of Colt.

The question raised on appeal is whether the Order violates section 1113(f) of the Bankruptcy Code when neither the Order nor the bid procedures required "Qualified Bids" provide that a potential purchaser assume the Collective Bargaining Agreement with the UAW, which includes the requirement that for the duration of the agreement, Colt will require a potential purchaser of the company or a substantial portion of its assets or operations to assume the Collective Bargaining Agreement.

The progress of the appeal can be tracked for free online on Justia.  The latest post indicates that, on October 13, 2015, a Recommendation was made that the appeal be withdrawn from mandatory mediation.  https://dockets.justia.com/docket/delaware/dedce/1:2015cv00834/57863 So, it is likely the appeal will proceed in court absent a settlement.

Will a purchaser for the Colt assets come forward willing to assume the union obligations of Colt?

According to a filing made by Colt in its bankruptcy proceedings yesterday, the proposed auction of Colt's assets, which had been scheduled to take place on October 20, 2015 was cancelled because no Qualified Bid was received by October 16, 2015 (the deadline set in the Order that is presently on appeal, discussed above).  However, Colt "reserves all of its rights with respect to the continuation of the Sale Motion, including, without limitation, its right to seek amendment of the Bidding Procedures Order and to reschedule the Sale Hearing for a future date to be determined."  https://www.kccllc.net/coltdefense/document/1511296151021000000000003

Wednesday, July 8, 2015

Who will rescue the iconic bankrupt American firearms maker Colt?

According to The Desert Sun, the Morongo Band of Mission Indians is considering investing in or purchasing Colt.  A specialist in tribal finances observes that "they've got a very sophisticated operation.... If there is a viable economic opportunity (in Colt) Morongo is a tribe that's well positioned to take it over."


For more, see http://www.desertsun.com/story/money/business/2015/07/08/morongo-tribe-colt-firearms-bankruptcy/29869485/


The Tribe's counsel first appeared in the case on June 25, 2015.  http://www.kccllc.net/coltdefense/document/1511296150625000000000006


Will the Tribe save Colt, or will other prospective financiers come forward?  Time will tell. 


Meanwhile, people interested in the Colt bankruptcy proceedings, which are pending in Delaware, can access the Bankruptcy Court's docket and other publicly available information for free online at http://www.kccllc.net/coltdefense/