Payment System Override Deems Transaction Not Ordinary

Payment System Override Deems Transaction Not Ordinary Ames Merchandising Corp. v. Cellmark Paper Inc. (In re Ames Dept. Stores, Inc.), 2011 Bankr. LEXIS 969 (Bankr. S.D.N.Y. Mar. 28, 2011) In Ames Merchandising Corp. v. Cellmark Paper Inc. (In re Ames Dept. Stores, Inc.), the debtors, a merchandising corporation and its affiliates, operated retail stores and utilized printed circulars as promotional materials. The debtors commenced an avoidance action under Section 547 of the Bankruptcy Code to avoid and recover payments made to a paper supplier. The Court found that the payments received by the paper supplier were avoidable because they were not made in the ordinary course of business, even in the absence of payment pressure from the defendant. Bankruptcy Code Section 547 allows a trustee or debtor in possession to avoid a transfer made by a debtor while insolvent to or for the benefit of a creditor on account of an antecedent debt within 90 days (or one year in the case of an insider) of the petition date, where such transfer enables the creditor to receive more than it would have received in a chapter 7 liquidation. Bankruptcy Code Section 547(c)(2) provides that the trustee may not avoid a transfer: to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was (A) made in the ordinary course of business or financial affairs of the debtor and the transferee; or (B) made according to ordinary business terms. Prior to and at the beginning the of 90-day preference period, the debtors utilized an automated accounts payable program. At that time, the debtors paid all invoices in full at or near the invoice due date. During the 90-day preference period, the debtors executives, on their own initiative, decided that some vendors 1

would not be paid at all and other vendors would be paid earlier. In so doing, they overrode the automated accounts payable system to make early payments to certain important creditors, which included the defendant. The defendant argued that the transfers were protected by the ordinary course of business defense notwithstanding the early payment, because the defendant did not apply any payment pressure on the debtors. The plaintiff argued that notwithstanding the lack of payment pressure, the early payments were not ordinary because they deviated from prior days-topayment terms. The plaintiff also argued that manually overriding the accounts payable system to pay certain vendors early further evidences that the payments were not ordinary. The Court stated that the absence of creditor pressure did not, in and of itself, establish that transactions were ordinary. The Court considered the totality of the circumstances and held that the payments to the defendant were not ordinary. The Court noted that the debtors overrode their automated payment system to stop payments to certain vendors and make early payments to other vendors that the debtors deemed important. Thus, the Court concluded that even in the absence of payment pressure, the unilateral change in payments by the debtors rendered the transfers preferential. Ames demonstrates the various factors weighed by bankruptcy courts while undertaking the very factual ordinary course of business analysis. Parties prosecuting and defending preference actions should be cognizant of any changes in business practices by a debtor such as unilateral adjustments to accounts payable systems that take place prior to or during the preference period in determining whether a payment was indeed ordinary. Courts Continue to Apply Heightened Pleading Standards of Twombly and Iqbal to Preference Actions Miller v. Mitsubishi Digital Elecs. Am. Inc. (In re Tweeter Opco), 2011 Bankr. LEXIS 2206 (Bankr. D. Del. June 14, 2011) Bankruptcy Courts continue to apply the Supreme Court s heightened pleading standards enunciated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ( Twombly ) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ( Iqbal ) to preference actions. The latest application has been by the United States Bankruptcy Court for the District of Delaware in In re Tweeter Opco, et al. On November 5, 2008, Tweeter, a consumer retailer of electronic equipment, and its affiliates, filed for bankruptcy under chapter 11 of the Bankruptcy Code. On December 5, 2008, the Court converted the chapter 11 cases to cases under chapter 7. On November 2, 2010, the chapter 7 trustee filed an adversary proceeding against Mitsubishi Digital Electronics America Inc. ( Mitsubishi ) seeking to avoid alleged preferential payments under Section 547 of the Bankruptcy Code. Bankruptcy Code Section 547 allows a trustee or debtor in possession to avoid a transfer made by a debtor while insolvent to or for the benefit of a creditor on account of an antecedent debt within 90 days (or one year in the case of an insider) of the petition date, where such transfer enables the creditor to receive more than it would have received in a chapter 7 liquidation. Mitsubishi filed a motion to dismiss the complaint asserting that the trustee did not sufficiently plead the factual allegations under the heightened pleading standards of Twombly and Iqbal, which set forth what claims for relief must include under Rule 8 of the Federal Rules of Civil Procedure (which is applied to bankruptcy adversary proceedings through Bankruptcy Rule 7008). 2

Rule 8 states that a complaint must contain, among other things, a short and plain statement of the claim showing that a pleader is entitled to relief. Prior to Twombly and Iqbal, courts held this to mean that a complaint should not be dismissed for failure to state a claim unless it appeared beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In Twombly, an antitrust case, the United States Supreme Court stated that while factual allegations need not be detailed to survive a motion to dismiss for failure to state a claim under Rule 8, they require more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. The Supreme Court further stated that allegations contained in the complaint must be sufficient to raise a right to relief beyond mere speculation, and must state enough factual matter to make a claim plausible. In Iqbal, the Supreme Court held that the heightened pleading standards set forth in Twombly apply to all civil suits in federal courts, not just antitrust cases. In its motion to dismiss, Mitsubishi argued that the trustee failed to (i) identify the nature of the antecedent debt, (ii) allege which debtor made the transfers, and (iii) describe the relationship between the transferor and Mitsubishi. Applying Twombly and Iqbal to the complaint, the Court held that the complaint was not sufficiently pled under Rule 8 for the following reasons: (1) the trustee did not identify which Tweeter affiliate made the transfers; (2) the trustee did not allege the particular antecedent debt on account of which the transfers were made; and (3) the complaint provided no detail of the relationship between Tweeter and Mitsubishi, such as any contracts between the parties or a description of the goods or services exchanged. Based on the foregoing, the Court granted Mitsubishi s motion to dismiss but also granted the trustee leave to amend the complaint. Tweeter follows recent bankruptcy courts applying Twombly and Iqbal to preference actions, including the Bankruptcy Court for the Southern District of New York in In re Delphi Corp., et al., the Bankruptcy Court for the Eastern District of North Carolina in In re Caremerica, Inc., and the Bankruptcy Court for the District of Delaware in In re Troll Comm., LLC (which were discussed in the last issue of the Avoidance Action Report). Tweeter reinforces the recent trend of bankruptcy courts to subject preference action complaints to the heightened pleading standards set forth in Twombly and Iqbal. Form complaints with bare recitations of elements that may have survived motions to dismiss under Rule 8 prior to Twombly and Iqbal, may now be subject to dismissal. Notwithstanding, courts have been pragmatic and liberal in allowing plaintiffs leave to amend complaints. Practitioners prosecuting avoidance actions should seek to provide as much factual support for each cause of action as possible. Practitioners defending avoidance actions should scrutinize complaints to see if they could be dismissed on the basis that they are not sufficiently pled under Twombly and Iqbal. Courts Continue to Address the Intersection of Section 503(b)(9) Claims and the New Value Defense In re Circuit City Stores, Inc., 2010 Bankr. LEXIS 4398 (Bankr. E.D. Va. Dec. 1, 2010) In In re Circuit City Stores, Inc., the debtors, former operators of electronics stores, sought partial summary judgment on their objection to the Bankruptcy Code Section 503(b)(9) claims of defendant creditor, a supplier of electronic items. The debtors argued that the creditor could not assert both an administrative priority claim under Section 503(b)(9) of the Bankruptcy Code and utilize the value of the same underlying goods to support a new value defense to a preference claim asserted by the debtors. 3

Bankruptcy Code Section 503(b)(9) provides that a creditor may receive an administrative expense priority claim in connection with goods received by the debtor within 20 days prior to the commencement of a bankruptcy case. Bankruptcy Code Section 547(c)(4) provides a defense to the avoidance of a preferential transfer to the extent the creditor provided subsequent new value to or for the benefit of the debtor. As in In re TI Acquisition, LLC, 429 B.R. 377 (Bankr. N.D. Ga. 2010) and In re Commissary Operations, Inc., 421 B.R. 873 (Bankr. M.D. Tenn. 2010) (which were discussed in prior issues of the Avoidance Action Report), In re Circuit City Stores, Inc. analyzes whether a creditor could use the new value defense in connection with goods that also provide the basis for a Section 503(b)(9) claim. The In re Circuit City Stores, Inc. court followed the In re TI Acquisition, LLC line of reasoning and held that a creditor cannot use the shipment of goods received by a debtor within 20 days prior to filing for bankruptcy as the basis for a new value defense under Section 547(c)(4) if the creditor asserted a Section 503(b)(9) claim in connection with the same goods. The Court rejected In re Commissary Operations, Inc. s holding that postpetition payments on Section 503(b)(9) claims could not be used to deplete prepetition new value assessments in connection with the assertion of the new value defense to a preference action. The Court held that a creditor may either (a) assert a claim under Section 503(b)(9) for the value of the goods received by the debtors within 20 days of the bankruptcy filing or (b) utilize the value of those goods to support a new value defense to a preference claim under Section 547(c)(4), but not both. The Court reasoned that allowing a supplier of goods to use the delivery of the same goods as both a defense under Section 547(c)(4) and as the basis for a Section 503(b)(9) claim would essentially provide the supplier with double recovery, resulting in unequal treatment of creditors. The holding in In re Circuit City Stores, Inc. provides yet another example of a bankruptcy court seeking to balance the dual goals of encouraging vendors to work with troubled companies and, at the same time, promoting equality among all creditors. Given the varied approaches taken by the bankruptcy courts nationwide, there will likely be rulings by appellate courts on this issue in the near future. Finding of Good Faith Necessary to Succeed on Mere Conduit Defense Martinez v. Hutton (In re Harwell), 628 F.3d 1312 (11th Cir. 2010) In Martinez v. Hutton (In re Harwell), the chapter 7 trustee commenced a fraudulent conveyance action against the debtor s attorney under Sections 548(a)(1)(A) and 550(a)(1) of the Bankruptcy Code. The trustee sought personal liability against the attorney as an initial transferee, alleging that the attorney conspired with the debtor prior to the debtor s bankruptcy filing to fraudulently convey the debtor s funds in his attorney trust account to the debtor, the debtor s family, and select creditors. The Bankruptcy Court held that the attorney was not an initial transferee of the funds in his attorney trust account because he did not have control over such funds, and therefore, there could be no personal liability to the attorney as an initial transferee under 548(a)(1)(A) and 550(a)(1), even if he was the mastermind of fraudulent conveyances. The District Court affirmed the Bankruptcy Court s ruling, and the trustee appealed to the United States Court of Appeals for the Eleventh Circuit. Pursuant to Bankruptcy Code Section 548, the trustee may avoid any transfer of an interest of the debtor in property, made within two years before the filing of the bankruptcy petition, if the transfer was made with actual intent to hinder, delay or defraud any then-existing or future creditors. 11 U.S.C. 548(a)(1)(A). 4

Section 550(a) of the Bankruptcy Code in turn provides: (a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 548 of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. account, and therefore, technically, he was the initial transferee. However, the Court of Appeals confirmed that an equitable exception to the literal statutory term initial transferee existed for the first recipients of transfers who (i) were mere conduits with no control over the transferred funds, and (ii) acted in good faith. The Court of Appeals held that the Bankruptcy Court erred in allowing the equitable exception to initial transferee liability in the absence of a finding that the attorney acted in good faith. Accordingly, the Court of Appeals reversed and remanded for further findings with respect to the attorney s exercise of control over the funds and his good faith (or lack thereof). This case illustrates that a first recipient of a transfer seeking the equitable exception to initial transferee liability, also known as the mere conduit defense, must show more than a lack of control over the property. He or she must also show good faith in relation to the transaction. The Court of Appeals held that the attorney was the first to receive the funds in his attorney trust Editors: Edward E. Neiger, Esq....eneiger@neigerllp.com Jonathan S. Bodner, Esq....jbodner@neigerllp.com Marianna Udem, Esq....mudem@neigerllp.com Graphics Design: The Graphics Center...chayaposner@yahoo.com 2011. All rights reserved. Quotation with attribution is permitted. This publication provides general information and should not be used or taken as legal advice for specific situations which depends on the evaluation of precise factual circumstances. If you would like to add a colleague to, or must remove your name from our email list, or if you need to change your contact information, please send an email to info@neigerllp.com. Avoidance Action Report is published by: Neiger LLP, 317 Madison Ave., 21 st Floor, New York, NY 10017 T 212.267.7342 F 212.918.3427 5