Assured Guaranty Corp. v. Com. of Puerto Rico (In re Fin. Oversight & Mgmt. Bd. for Puerto Rico)

297 F. Supp. 3d 261
United States District Court·Decided October 27, 2017·No. No. 17 BK 3283–LTS (Jointly Administered); Adv. Proc. No. 17–155–LTS; Adv. Proc. No. 17–156–LTS In 17 BK 3567–LTS·Published

Opinion

Judith Gail Dein, United States Magistrate Judge

I. Preliminary Statement

This matter is before this Court on the Motion of Official Committee of Unsecured Creditors for Leave to be Heard *264and/or to Intervene Under Bankruptcy Code Section 1109(b) and/or Bankruptcy Rule 7024 (Dkt. No. 632 ) (the "Motion"). Plaintiffs Assured Guaranty Corp., Assured Guaranty Municipal Corp., Financial Guaranty Insurance Company, National Public Finance Guarantee Corporation (collectively, "Plaintiffs") filed an opposition thereto (Dkt. No. 71). The Financial Oversight and Management Board, the Commonwealth of Puerto Rico, the Puerto Rico Highways and Transportation Authority, and, in her official capacity, the Hon. Natalie A. Jaresko (collectively, "Defendants") filed a response (Dkt. No. 72).

On September 22, 2017, the First Circuit issued its decision in Assured Guaranty Corp. v. The Financial Oversight and Management Board for Puerto Rico, as Representative for the Commonwealth of Puerto Rico, 872 F.3d 57 (1st Cir. 2017) (" Assured"), reversing the denial of a motion to intervene in another adversary proceeding initiated pursuant to the Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA"). In light of the Assured decision, this Court ordered supplemental briefing on the Motion (Dkt. No. 74). Accordingly, the Official Committee of Unsecured Creditors of all Title III Debtors besides COFINA (the "Committee" or "UCC") filed a supplemental brief (Dkt. No. 75) (the "Supplemental Brief"), further defining its proposed intervention, Defendants filed a response (Dkt. No. 77) ("Defendants' Response"), and Plaintiffs filed a response (Dkt. No. 78) ("Plaintiffs' Response"). On October 24, 2017, the Committee filed an urgent motion requesting that oral argument on the Motion be set for November 15, 2017 (Dkt. No. 82) (the "Hearing Motion").

This Court recognizes the Committee's request for a hearing on the Motion. Nevertheless, having reviewed the extensive briefing submitted by the parties, this Court has determined that oral argument is not necessary. This Court hereby DENIES the Hearing Motion and GRANTS the Motion to the limited extent set forth below.

II. The Committee's Right To Intervene

Federal Rule of Civil Procedure 24(a)(1) governs intervention as a matter of right, and dictates that "the court must permit anyone to intervene who ... is given an unconditional right to intervene by statute."3 Pursuant to 11 U.S.C. § 1109(b), a provision of the Bankruptcy Code that was expressly incorporated by PROMESA, "[a] party in interest, including ... a creditors' committee ... may raise and may appear and be heard on any issue in a case under this chapter." In Assured, the Court held that Section 1109(b) grants the UCC an "unconditional right to intervene" within the meaning of Federal Rule of Civil Procedure 24(a)(1), to the extent that, inter alia, the UCC has "standing to appear and be heard on any particular issue in the adversary proceeding." Assured, 872 F.3d at 59, 64 n.7. In light of this holding, all parties recognize that the UCC has some right to intervene in this adversary proceeding,4 although they raise some issues concerning the *265scope of such intervention. See Plaintiffs' Response at 4 ("The Court should exercise its discretion to limit the Committee's participation as necessary..."); Defendants' Response at 4 ("the Committee should be restricted" to specified parameters). These concerns will be addressed herein.

III. Rule 24(c) Pleading Requirement

Federal Rule of Civil Procedure 24(c) requires that a motion to intervene "be accompanied by a pleading that sets out the claim or defense for which intervention is sought." The "purpose of requiring an intervenor to file a pleading is to place the other parties on notice of the position, claim, and relief sought by the intervenor." WJA Realty P'ship v. Nelson, 708 F.Supp. 1268, 1272 (S.D. Fla. 1989). Plaintiffs contend that the Committee should be required to comply with Rule 24(c)"to put the other parties on notice of its claims and defenses." Plaintiffs' Response at 4. This argument is not persuasive.

As an initial matter, the First Circuit "eschew[s] overly technical readings of Rule 24(c)...." Peaje Invs. LLC v. Garcia-Padilla, 845 F.3d 505, 515 (1st Cir. 2017). This Court has discretion to allow a motion to intervene filed without an accompanying pleading where its absence is not prejudicial to a party. Assured, 872 F.3d at 65. Furthermore, a Rule 24(c) pleading is even less critical where, as here, the Committee is seeking to intervene to assert its rights under Section 1109(b), and does not assert ownership of a claim or defense. See In re Adelphia Commc'ns Corp., 285 B.R. 848, 856 n.18 (Bankr. S.D.N.Y. 2002) ("... where the Committees were not claiming ownership of one or more causes of action in their own name ... and were intervening merely to vindicate their rights under section 1109(b), this Court did not regard their failure to submit a proposed pleading as a bar to their intervention.").

In the instant case, the UCC has provided this Court and the parties sufficient notice of its interests so as to render an additional Rule 24(c) pleading unnecessary. See United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir. 2009) ("we conclude that the statement of interest satisfies Rule 24(c) because it provides sufficient notice to the court and the parties of MIEC's interests.").

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Assured Guaranty Corp. v. Com. of Puerto Rico (In re Fin. Oversight & Mgmt. Bd. for Puerto Rico), 297 F. Supp. 3d 261 (usdistct 2017).

297 F. Supp. 3d 261 (Assured Guaranty Corp. v. Com. of Puerto Rico (In re Fin. Oversight & Mgmt. Bd. for Puerto Rico)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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