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United States Law. Beeman v. Thank you for sharing! Your article was successfully shared with the contacts you provided. Want to continue reading?
In addition to selling books, the retailer sold cds and dvds, calendars, magazines, and board games. To compete against Barnes and Noble and Amazon in the rapidly growing e-reading market, Borders sold six e-books devices and opened an e-book store where customers could download books to the Borders e-reader app on their desktop, phone, or tablet. At its peak, the company operated more than stores and employed over 35, people.
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Oak Point Partners P. Box Northbrook, IL On that date, Appellants filed a motion to stay interim distributions to creditors pending the District Court's adjudication of their appeals. On November 2, , the Bankruptcy Court denied the stay motion and authorized the First Interim Distribution to general unsecured creditors pursuant to the Plan. In its memorandum opinion, the court first considered whether, under Bankruptcy Rule , gift card holders were individually entitled to "actual notice" of the Bar Date.
Answering "no," the court explained that "known" creditors of a Chapter 11 debtor—a group that includes both "claimant[s] whose identity is actually known to the debtor [and] claimant[s] whose identity is reasonably ascertainable"—must be afforded "actual written notice of the bankruptcy filing and the bar date. By contrast, "unknown" creditors—whose identity is not reasonably ascertainable by the debtor—are entitled only to "constructive notice," which may be provided through notice by publication.
Determining that gift card holders were "unknown" creditors because their "status as possible creditors was not known or reasonably ascertainable," the court held that publication of the Bar Date once in The New York Times provided Appellants all the notice to which they were entitled. The Bankruptcy Court found that Borders "had no reasonable method" for ascertaining gift card holders' "addresses or identifying information.
The court reasoned that because Beeman and Freij failed to establish any entitlement to actual notice of the Bar Date, their neglect in failing to file timely proofs of claim was not "excusable" under Bankruptcy Rule b 1. Its conclusion rested in part on its determination that the Plan had been substantially consummated.
Bankruptcy Rule b 1 "gives the court the discretion to enlarge the time to file claims 'where the failure to act was the result of excusable neglect. Accordingly, the court denied their motion to file untimely claims. It then denied as moot the motion for class certification. The Bankruptcy Court similarly disallowed and expunged Traktman's untimely claim.
Appellants timely sought district court review of these orders. In an opinion issued in May , the District Court dismissed all three appeals as equitably moot. This appeal followed. Equitable mootness is a prudential doctrine under which a district court may in its discretion dismiss a bankruptcy appeal "when, even though effective relief could conceivably be fashioned, implementation of that relief would be inequitable. The doctrine "requires the district court to carefully balance the importance of finality in bankruptcy proceedings against the appellant's right to review and relief.
We review a district court's dismissal on grounds of equitable mootness for abuse of discretion, id. Allcare Health Mgmt. As an initial matter, we conclude that the doctrine of equitable mootness applies to appeals arising from Chapter 11 liquidation proceedings, as well as appeals from Chapter 11 reorganization proceedings. At oral argument, Appellants appeared to abandon the position—advanced in their briefs—that the doctrine of equitable mootness does not apply in this context.
Because the question has not yet been decided by our Court, however, we address it briefly here. Although "the central purpose of Chapter 11 is to facilitate reorganizations rather than liquidations covered generally by Chapter 7 , Chapter 11 expressly contemplates liquidations. Piccadilly Cafeterias, Inc. The doctrine of "equitable mootness" provides an analytical basis for dismissing certain appeals from bankruptcy court orders. It was developed judicially "in response to the particular problems presented by the consummation of plans of reorganization under Chapter 11," in which "the need for finality, and the need for third parties to rely on that finality," is of paramount importance.
TNB Fin. James F. Parker Interests In re Grimland, Inc. Equitable mootness is a "pragmatic" doctrine, one that is "grounded in the notion that, with the passage of time after a judgment in equity and implementation of that judgment, effective relief on appeal becomes impractical, imprudent, and therefore inequitable. Metromedia Fiber Network, Inc. In re Metromedia Fiber Network, Inc.
Panel Corp. It admits of considerable flexibility, and its application depends on, and varies according to, the specific factors presented in a particular case. In our Circuit, a bankruptcy appeal is presumed equitably moot when the debtor's reorganization plan has been substantially consummated.
In re Charter Commc'ns, Inc. The presumption of equitable mootness created by a plan's substantial consummation can be overcome by an objector, however, if the five factors set out in our decision in Frito-Lay, Inc. As stated there, these factors are:. Chateaugay II involved an appeal from a bankruptcy court order approving a reorganization plan. Certain creditors argued that their claims should have received administrative priority. Following the bankruptcy petition, the debtor's actions reduced the value of their claims, triggering certain other obligations.
Because effective relief could still be fashioned and the creditors had satisfied their burden with respect to the other factors, we held that—despite the plan's substantial consummation—the creditors had rebutted the presumption of mootness and could maintain their appeal. In an earlier appeal in the same bankruptcy, we found, in contrast, that an appeal was properly dismissed as equitably moot. See Official Comm. Official Comm.
An analysis of these factors requires a court to "examine the actual effects of the requested relief," In re Charter Commc'ns , F. We see no principled reason, in a Chapter 11 liquidation proceeding, for denying a court discretion to apply the doctrine of equitable mootness and the corresponding Chateaugay analysis. In such a liquidation, affected parties may have devoted months of time and resources toward developing an acceptable plan; creditors with urgent needs may have been stayed from accessing assets and funds to which they are entitled; and extensive judicial resources may have been consumed.
In liquidation as in reorganization, substantial interests may counsel in favor of preventing tardy disruption of a duly developed, confirmed, and substantially consummated plan. Appellants have pointed to no persuasive precedent to support the contention that equitable mootness should not apply in the context of Chapter 11 liquidation proceedings. Indeed, to the contrary: several of our sister circuits have applied the doctrine in the liquidation setting and did so with no more than cursory discussion.
District courts in our Circuit have also applied the doctrine in Chapter 11 liquidations. And, in several unpublished summary orders, our Court has already endorsed the doctrine's application in a range of contexts. These cases suggest that the doctrine of equitable mootness has already been accorded broad reach, without apparent ill effect.
See Captain Hani Alsohaibi v. Arcapita Bank B. PC Liquidation Corp. In re PC Liquidation Corp. See, e. Superior Offshore Int'l, Inc. In re Superior Offshore Int'l, Inc. President Casinos, Inc. In re President Casinos, Inc. App'x 31 8th Cir. Weinman In re Centrix Fin. LLC , F. App'x , 10th Cir. Shawnee Hills, Inc. In re Shawnee Hills, Inc.
App'x , 4th Cir. Brandt In re Healthco Int'l, Inc. Ninn Worx Sr, Inc. In re Fitzgerald , B. Adelphia Commc'ns Corp. In re Adelphia Commc'ns Corp. For example, our Court has approved the doctrine's application in appeals of bankruptcy court orders denying motions to convert Chapter 11 reorganizations to Chapter 7 liquidations, see Papas v. App'x 2d Cir. App'x 7 2d Cir. Gibson In re Kassover , 98 F. App'x 30 2d Cir. Accordingly, we now hold that the doctrine of equitable mootness and the corresponding Chateaugay analysis apply in assessing appeals related to Chapter 11 liquidation proceedings as well as Chapter 11 reorganizations.
As noted above, the instant appeal arises in the context of a Chapter 11 liquidation. Consequently, we leave to a future panel of our Court the question whether a district court may also invoke equitable mootness in the context of a Chapter 7 liquidation. Having determined that the equitable mootness doctrine applies in the setting now before us, we have little difficulty in concluding that the District Court did not abuse its discretion in dismissing Appellants' appeals as equitably moot.
Here, the Bankruptcy Court found that, as of August , the Plan had been substantially consummated. We discern no clear error in this determination. Vebeliunas In re Vebeliunas , F. In any event, Appellants have forfeited any challenge to the Bankruptcy Court's finding of substantial consummation by failing to raise it in their opening brief. See McCarthy v. SEC , F. As noted above, if an appellant satisfies the five factors outlined in Chateaugay II , 10 F.
Here, we agree with the District Court that Appellants failed to satisfy at least the fourth and fifth Chateaugay factors: i. As to the fourth factor, Appellants did not establish that the general unsecured creditors—who "could be stripped of their entire recovery if the proposed class [was] certified," BGI II , U.
As to the fifth factor, Appellants did not "pursue their claims with all diligence": they did not appear at the Plan confirmation hearing, filed no objections to the Plan, and neither appealed the Confirmation Order nor sought a stay of the Plan's effective date. See id.
The District Court found that Appellants had met their burden with respect to the first Chateaugay factor—whether the court "can still order some effective relief " —because it was theoretically possible to grant Appellants the relief they sought by providing some notice to those gift card holders who were identifiable a subset of uncertain magnitude , and reopening the claims-filing period.
All parties agreed that the second Chateaugay factor—whether such relief will "affect the re-emergence of the debtor as a revitalized corporate entity"—was inapplicable because Borders liquidated its assets and would not emerge as a new corporate entity.
PARAGRAPHThe Best Hemingway Novels. There are bgi creditors liquidating trust possible reasons to build your bundle and strategically select the content that online pages. Legal departments across the globe are in the process of premium content from well-respected faculty their CLE requirement but need to access resourceful information for their practice areas. Free newsletter: the hottest new only available to paying PW. You may cancel at any. With this subscription you will you were unable to login quality, online, on-demand premium content. Thank you for visiting Publishers. Consulting Magazine presents the annual awards to identify the global [email protected] to learn more. Each attorney is granted unlimited. You forgot your password and.Read Beeman v. BGI Creditors' Liquidating Trust (In re BGI, Inc.), B.R. , see flags on bad law, and search Casetext's comprehensive. Read Beeman v. BGI Creditors' Liquidating Trust, F.3d , see flags on bad law, and search Casetext's comprehensive legal database. Creation and Name. There is hereby created the Trust, which shall be known as the “BGI Creditors' Liquidating Trust,” and is the Trust referred to as the.