Pirinate Consulting Group, LLC v. Avoca Bement Corp. (In re Newpage Corp.)Pirinate Consulting Group, LLC v. Avoca Bement Corp. (In re Newpage Corp.)
Chapter 11
MEMORANDUM OPINION
Before the Court are identical motions for summary judgment filed by the defen
JURISDICTION
The Court has jurisdiction over this matter and the judicial authority to issue a final order pursuant to 28 U.S.C. §§ 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b).
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, made applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure 7056, in order to succeed on a motion for summary judgment, the moving party must demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
Summary judgment is designed to avoid the expense of a trial where the facts are settled and the dispute turns on an issue of law. Delta Mills,
“The movant must put the ball in play, averring ‘an absenсe of evidence to support the nonmoving party’s case.’ ” Garside v. Osco Drug, Inc.,
BACKGROUND
The material facts are not in dispute.
On September 7, 2011, the Debtors filed voluntary petitions for relief under chаpter 11 of the Bankruptcy Code. Among the Debtors’ first-day motions was a motion seeking authority to pay pre-petition claims of certain critical vendors [Main Case D.I. 18] (the “Critical Vendor Motion”). On September 8, 2011, the Court entered an order granting the Debtors’ Critical Vendor Motion [Main Case D.I. 58] and on October 11, 2011, the Court entered an amended order granting the motion [Main Case D.I. 337] (the “Critical Vendor Order”). The Critical Vendor Order authorized the Debtors to pay certain pre-petition claims of critical vendors so long as the critical vеndors continued to provide goods and services on “Customary Trade Terms.”
Pursuant to the Critical Vendor Order, the Debtors and Defendants entered into an agreement memorialized in a “Critical Vendor Letter” dated November 4, 2011, and signed by representatives of the Debtors and Defendants (the “Critical Vendor Agreement”). App. A at 71-74. Under the terms of the Critical Vendor Agreement the Debtors agreed to grant the Defendants an administrative claim in the amount of $128,565.92 pursuant to § 503(b)(9)
On December 14, 2012 (the “Confirmation Date”), the Court entered an order [Main Case D.I. 2945] confirming the Debtors’ Modified Fourth Amended Joint Chapter 11 Plan [Main Case D.I. 2904] (the “Plan”). On December 21, 2012, the Plan became effective [Main Case D.I. 3014]. Article V of the Plan established the NP Creditor Litigation Trust (the “Trust”) and appointed the Trustee to, as is relevant here, liquidate preference claims arising under § 547 of the Bankruptcy Code for the benefit of Trust beneficiaries. Plan §§ 5.1, 5.7. See also Plan Schedule 1.2.95 (“NP Creditor Litigation Trust Agreement”) [Main Case D.I. 2909-2]. Article VIII of the Plan provided for the assumption or rejection of executory contracts and unexpired leases. As is relevant here, under Article VIII of thе Plan an executory contract that: (1) “has not expired by its own terms on or prior to the Confirmation Date”; (2) was not assumed or rejected with Court approval prior to the Confirmation Date; (3) was not subject to a motion to assume or reject as of the Confirmation Date; and (4) was not otherwise accorded specific treatment by virtue of being listed on Plan Schedules 8.1(A)-(E) was automatically deemed to be assumed by the Debtors (the “Catchall Provision”). Plan § 8.1; Plan Schedule 8.1 [Main Case D.I. 2909-5]. Article VIII of the Plan further provided that “[e]ntry of the Confirmation Order ... shall constitute approval of the assumptions pursuant to section 365(a) of the Bankruptcy Code....”
The Coal Supply Agreement was not listed on Plan Schedules 8.1(A)-(E)
During 2013, Seller shall supply and Buyer may purchase up to approximately 110,000 tons of coal. During 2013, Seller shall supply up to approximately 2,000 tons of coal per week. By August 1, 2013, Buyer shall provide Seller written notice identifying the tons of coal that Seller shall supply Buyer in 2014. The 2014 volume of coal purchased by Buyer from Seller shall be equal to at least 95% of the volume of coal consumed by Buyer’s Biron, WI mill boiler No. 4.
App. A at 88.
On September 5, 2013, the Trustee initiated this adversary proceeding by filing its adversary complaint seeking avoidance and recovery оf $2,805,745.25 in allegedly preferential pre-petition transfers to the Defendants pursuant to § § 547 and 550 of the Bankruptcy Code. On December 11, 2011, the Defendants filed their answers to the Trustee’s complaint, each raising an affirmative defense based on the Third Circuit’s Kiwi decision. Avoca Answer 6 [Adv. D.I. 10]; Knight Hawk Answer 6 [Adv. D.I. 11]. On May 29, 2014, Knight Hawk filed its motion for summary judgment [Adv. D.I. 41] and brief in support [Adv. D.I. 42] based on its Kiwi defense. On May 30, 2014, Avoca filed its motion for summary judgment [Adv. D.I. 43], which adopted Knight Hawk’s motion and brief in their entirety. On June 19, 2014, the Trustee filed its objection to the Defendants’ motions for summary judgment [Adv. D.I. 47]. On July 3, '2014, Knight Hawk filed its reply brief [Adv. D.I. 49], which Avocа subsequently adopted as well [Adv. D.I. 50]. On July 16, 2014, the Trustee filed a request for oral argument [Adv. D.I. 54] and the Court heard argument on the matter on September 16, 2014.
ANALYSIS
As the material facts are undisputed, all that is left for the Court is to determine whether the Defendants are entitled to judgment as a matter of law. See Fed. R. Crv. P. 56(a). In order for the Trustee to avoid an allegedly preferential transfer pursuant to § 547 of the Bankruptcy Code, it must satisfy the elements set forth in the statute itself:
Except as provided in subsections (c) and (i) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
*514 (2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
11 U.S.C. § 547(b).
In Kiwi, the Third Circuit held that a trustee may not employ § 547 to avoid pre-petition transfers made pursuant to an executory contract which the trustee or debtor in possession assumed post-petition. Kiwi
The Trustee’s counterargument is three pronged. First, the Trustee argues that the Coal Supply Agreement was not an executory contract because the “Debtors had no material obligations thereunder.” Trustee Obj. 11. In the Third Circuit, an executory contract is “a contract under which the obligation of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing performance of the other.” Sharon Steel Corp. v. Nat’l Fuel Gas Distrib. Corp.,
The Court finds more persuasive the cases cited by the Defendants. In Carolina Fluid, Judge Christopher S. Sontchi of this Court determined that a supply agreement under which the defendant “agreed to supply parts to the Debtors based on the requirements of the Debtors, and the Debtors have agreed to buy the parts required, at a rate specified in the Supply Contract” was an executory contract. Guiliano v. Almond Inv. Co. (In re Carolina Fluid Hаndling Intermediate Holding Corp.),
Similarly, in Sharon Steel the Third Circuit affirmed the United States Bankruptcy Court for the Western District of Pennsylvania’s determination that a natural gas service agreement under which the supplier agreed to deliver natural gas to the debtor based on a certain rate schedule was an executory contract. Sharon Steel,
The Trustee asserts that Carolina Fluid and Sharon Steel are distinguishable because the purchasing parties under the agreements at issue were required to purchase a certain minimum quantity. "While the Coal Supply Agreement сould perhaps have been clearer with respect to a minimum quantity requirement and remedies, the Court is persuaded that, as in Carolina Fluid and Sharon Steel, the Coal Supply Agreement evidences ongoing, reciprocal obligations for supply and purchase. If, for example, NewPage Wisconsin had purchased only 50,000 tons of coal in 2012, it would certainly have been in breach of the Coal Supply Agreement as 50,000 tons is not approximately 105,000 tons. The same would be true of the Defendants had they supplied only 50,000 tons of coal in 2012. Further, the Court finds that the Coal Supply Agreement had not expired by its own terms as of the Confirmation Date since the parties were obligated to supply and purchase and did in fact supply and purchase several thousand tons of coal pursuant to the Coal Supply Agreement after the Confirmation Date.
Finally, the Court declines to bind the Defendants to the Debtors’ intention, as expressed in footnote 3 of the Critical Ven
The Debtors requested that [the creditor] enter into a [Critical Vendor] Agreement. [The creditor] declined. The Trustee argues that, as a result of such conduct, the Debtors believed [the creditor] to be a critical vendor rather than a counterparty to an executory contract. Whether a “critical trade vendor” is a vendor, supplier, licensor, landlord, subcontractor, counterparty to an execu-tory contract, etc., etc. is irrelevant. The basis and point of a critical [vendor] order is to give a debtor authorization to pay pre-petition services or goods when necessary to preserve the debtor’s estate. Indeed, one of the primary bases for issuing the relief is to avoid having to inquire or to litigate the details of the relationship of the parties, e.g. executory contract or supply agreement, becausе there is no time to do so.
The Trustee next argues that the Coal Supply Agreement was not eligible for assumption under Article VIII of the Plan because the Critical Vendor Agreement replaced and superseded the Coal Supply Agreement prior to the Confirmation Date. In support of its argument the Trustee cites Wisconsin case law on the common law contract doctrine of novation and points out a number of terms contained in the Critical Vendor Agreement that are not contained in the Coal Supply Agrеement. The Trustee further contends that it is not common practice for debtors to grant suppliers which are a party to an executory contract critical vendor status— if the debtor could simply assume and enforce the executory contract pursuant to § 365, there would be no reason to grant the vendor any extra benefit attendant to critical vendor status. The Trustee asserts that the Critical Vendor Agreement was in effect up to the Confirmation Date, after which the parties operated without a formal written аgreement until the effective date of the Subsequent Coal Supply Agreement.
The Court, though, is persuaded, as the Defendants argue, that the Critical Vendor Agreement, while related to the Coal Supply Agreement, is a separate agreement
Further, the Critical Vendor Order, as is relevant here, only authorized the Debtors to pay certain pre-petition claims of critical vendors and obtain “written verification” that the critical vendor will continue to provide “Customary Trade Terms.” The Critical Vendor Order did not authorize the debtor to enter into a new, stand-alone supply agreement. Thus, the Critical Vendor Agreement is most accurately characterized as written verification that the Debtors and Defendants would continue to operate pursuant to the terms of the Coal Supply Agrеement and is not a new, standalone supply agreement as the Trustee suggests. The Critical Vendor Agreement in this instance is similar to a reaffirmation agreement. See 11 U.S.C. § 524(c). Just as a' reaffirmation agreement does not supersede or replace the underlying contract, the Critical Vendor Agreement did not supersede or replace the Coal Supply Agreement.
Finally, the Trustee argues that the Coal Supply Agreement was not eligible for assumption under Article VIII of the Plan because the parties executed the Subsequent Coal Supply Agreement several months prior to the Confirmation Date, which was meant to govern the post-bankruptcy business relationship of the Debtors and Defendants. The Trustee asserts that there would be no benefit to the Debtors to assume the Coal Supply Agreement on the Confirmation Date since the Subsequent Coal Supply Agreement was already in place.
The Trustee’s argument seems to rest on the fact that the Confirmation Date happened to be only seventeen days prior to the expiration date of the Coal Supply Agreement. It is clear to the Court, especially given the January 1, 2013, effective date of the Subsequent Coal Supply Agreement, that the Debtors and Defendants intended for their relationship to be governed by the Coal Supply Agreement through December 31, 2012, after which the Subsequent Coal Supply Agreement took effect. The Debtors and Defendants conducted over $300,000.00 worth of business after the Confirmation Date but prior to the expiration of the Coal Supply Agreement. So, clearly there was some benefit to the Debtors in аssuming the Coal Supply Agreement, even though assumption occurred only a short time prior to the contract expiration date. Accordingly, the Court finds the Trustee’s final argument to be without merit.
CONCLUSION
For the reasons set forth above, the Court finds that the Debtors assumed the Coal Supply Agreement on the Confirmation Date in accordance with the Catchall Provision of Article VIII of the Plan. Pursuant to the Third Circuit’s Kiwi decision, the Trustee may not recover allegedly preferential transfers which arose under a contract that the Debtors assumed рost-
Notes
. Avoca adopted Knight Hawk’s motion for summary judgment, brief in support of its motion for summary judgment, and reply brief in their entirety. Avoca Mot. for Summ. J. ¶ 3 [Adv. D.I. 43]; Avoca Reply Br. 1 [Adv. D.I. 50].
. While Knight Hawk supported its motion for summary judgment (adopted by Avoca) with affidavits and other documents from the docket of the main case, the Trustee did not file any affidavits оr other evidentiary-quality materials in connection with its objection to the Defendants’ motions for summary judgment, evidently electing to challenge the Defendants’ motions only on a legal basis.
. The Debtors are NewPage Corporation, Chillicothe Paper Inc., Escanaba Paper Company, Luke Paper Company, NewPage Canadian Sales LLC, NewPage Consolidated Papers Inc., NewPage Energy Services LLC, NewPage Group Inc., NewPage Holding Corporation, NewPage Port Hawkesbury Holding LLC, NewPage Wisconsin System Inc., Rum-ford Paper Company, Upland Resources, Inc., and Wickliffe Paper Company.
. The Coal Supply Agreement is the second such agreement between NewPage Wisconsin and the Defendants. A similar agreement was in effect between the parties from January 1, 2009 through December 31, 2010. As discussed infra, NewPage Wisconsin and the Defendants entered into a third such agreement which took effect January 1, 2013 and extends through December 31, 2014.
. "Customary Trade Terms” is defined in the Critical Vendor Order as "the most favorable terms in effect between such Critical Vendor and the Debtors in the 12 months before the [petition date], or such other favorable terms
.Section 503(b)(9) provides for an administrative expense for “the value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor in the ordinary course of such debtor’s business.”
. As discussed in more detail infra, § 365 of the Bankruptcy Code provides for the assumption or rejection of executory contracts and unexpired leases.
. An executory contract with Avoca was listed on the Debtors’ amended schedule G (execu-tory contracts and unexpired leases) of the schedules of assets and liabilities filed in sup
. The Debtors utilized a centralized cash management system whereby NewPage Corporation satisfied payables of its affiliates, including NewPage Wisconsin.
. The Trustee also makes much of the fact that the Debtors took the time to list more than 1,000 executory contracts on Plan Schedules 8.1 (A)-(E) but did not list the Coal Supply Agreement. In the Trustee’s view, if the Debtors believed the Coal Supply Agreement was an executory contract, they would have taken the time to accord the contract specific treatment by listing it on Plan Schedules 8.1(A)-(E). Again, the Court declines to hold the Defendants responsible for the Debtors’ actions. Further, the Catchall Provision clearly provides for the assumption of execu-tory contracts which are not listed in Plan Schedules 8.1(A)-(E) (and which satisfy the other requirements of the Catchall Provision). Accordingly, the fact that the Debtors did not list the Coal Supply Agreement on Plan Schedules 8.1(A)-(E) does not affect the Court’s analysis.