Haskell v. Goldman, Sachs & Co.

340 B.R. 729, 56 Collier Bankr. Cas. 2d 66, 2006 U.S. Dist. LEXIS 18177
CourtDistrict Court, D. Delaware
DecidedMarch 29, 2006
DocketBankruptcy No. 00-2692; Civ.No. 05-427-KAJ
StatusPublished
Cited by2 cases

This text of 340 B.R. 729 (Haskell v. Goldman, Sachs & Co.) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haskell v. Goldman, Sachs & Co., 340 B.R. 729, 56 Collier Bankr. Cas. 2d 66, 2006 U.S. Dist. LEXIS 18177 (D. Del. 2006).

Opinion

MEMORANDUM OPINION

JORDAN, District Judge.

I. INTRODUCTION

This is an appeal from an adversary proceeding before the Bankruptcy Court. The Complaint, filed by 275 former debenture holders1 of Genesis Health Ventures (“Genesis”), alleges that Genesis and co-defendants Goldman, Sachs & Co. (“Goldman”), Mellon Bank, N.A. (“Mellon”), Highland Capital Management (“Highland”) and George P. Hager (“Hager”; collectively, “Defendants”) committed fraud or made grossly negligent misrepresentations to Plaintiffs and to the Bankruptcy Court regarding the value of Genesis during the period leading up to the confirmation of the reorganization plan (the “Plan”) in Genesis’s bankruptcy case. (Docket Item [“D.I.”] 9 at A48-52.) Plaintiffs allege that those misrepresentations caused Goldman, Mellon, and Highland to receive almost all of the equity in the reorganized company, while Plaintiffs received almost nothing under the Plan. (Id. at A49-54, ¶¶ 3-12.) The Bankruptcy Court confirmed the Plan on October 2, 2001, based at least in part on the allegedly fraudulent information. (Id. at A51.) Plaintiffs filed their Complaint on January 27, 20042 (D.I. 9 at A127), and Defendants moved to dismiss the Complaint for failure to state a claim. In re Genesis Health Ventures, Inc., 324 B.R. 510, 513 (Bankr.D.Del.2005). The Bankruptcy Court granted the Motion to Dismiss. Id. Before me now is Plaintiffs’ appeal from that decision.

Jurisdiction is appropriate under 28 U.S.C. § 158(a). For the reasons that fol[732]*732low, the decision of the Bankruptcy Court will be affirmed-in-part, vacated-in-part, and remanded for proceedings consistent with this opinion.

II. BACKGROUND

The background of this case was set out in the opinion of the Bankruptcy Court dismissing the Complaint, and will not be repeated here. In re Genesis, 324 B.R. at 513-15. However, in its recitation of the facts and its discussion of the merits of the case, the Bankruptcy Court left out certain relevant allegations in the Complaint, which I will briefly discuss here.

In the Complaint, Plaintiffs allege that Defendants “improperly decreased the debtors’ EBITDA3 by deducting a host of unsubstantiated and unwarranted items.” In re Genesis, 324 B.R. at 514. In addition to their allegations of improper deductions from Genesis’s EBITDA (D.I. 9 at A75-110, ¶¶ 57-161), Plaintiffs also allege that they did not discover that the improper deductions were made until after the Plan was confirmed. Specifically, Plaintiffs claim that:

Subsequent to confirmation of the Plan, disturbing information was disclosed, over a period of months, that cast into doubt, for the first time, the veracity of the EBITDA data that had been used in support of the Plan: a. In November of 2001, Genesis disclosed for the first time the massive increases in insurance revenues that Liberty had taken, and ex-pensed, during the relevant valuation period. In its 10-K Issued on December 28, 2001, well after Plan confirmation, showed that reserves had shot up by $23.7 million, doubling in a single year. b. in its 10-Q for the first quarter of fiscal 2002, dated February 12, 2002, Genesis disclosed that it had not lost the Mariner/APS business, because the service agreement had been extended through 2002. This had happened even though another company had actually acquired APS. c. In its 10-Q for the second quarter of fiscal 2002, dated May 15, 2002, Genesis disclosed that its cost of goods sold in its pharmacy operations was 59.2% of revenues, rather than 62.5% of revenues, the percentage used to calculated the historical LTM4 data used for valuation purposes; and it also disclosed for the first time that 10% of Manorcare revenues had been excluded from income (and EBITDA) during the LTM period.

(D.I. 9 at A121, ¶ 178.) Thus, Plaintiffs allege that this “red flag” was raised for the first time after the plan was confirmed, and that they could not have raised these issues during the confirmation process. (Id. at A122, ¶ 179.)

III. STANDARD OF REVIEW

On appeal, a clearly erroneous standard applies to the Bankruptcy Court’s findings of fact, and a plenary review standard applies to its legal conclusions. See Am. Flint Glass Workers Union v. Anchor Resolution Corp., 197 F.3d 76, 80 (3d Cir.1999). When reviewing mixed questions of law and fact, this court will accept the Bankruptcy Court’s findings of “historical or narrative facts unless clearly erroneous, but [will] exercise plenary review of the trial court’s choice and interpretation of legal precepts and its application of those precepts to the historical facts.” Mellon Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635, 642 (3d Cir.1991) (internal citations omitted).

[733]*733IV. DISCUSSION

A. 11 U.S.C. § 1144

The Bankruptcy Court dismissed Plaintiffs claims against Genesis, the debt- or, as time barred under 11 U.S.C. § 1144. In re Genesis, 324 B.R. at 516-17. That statute states, in relevant part: “On request of a party in interest at any time before 180 days after the date of the entry of the order of confirmation, and after notice and a hearing, the court may revoke such order if and only if such order was procured by fraud.” The 180 day time limit is strictly construed, and is enforced even when the alleged fraud is discovered outside the deadline. See In re Midstate Mortgage Investors, Inc., 105 Fed.Appx. 420, 423 (3d Cir.2004) (“Expiration of the limitations period bars a motion to set aside the confirmation of a reorganization plan even if the fraud is not discovered until the period has passed.”) (quoting In re Orange Tree Assocs., Ltd., 961 F.2d 1445, 1447 (9th Cir.1992)). While on its face, § 1144 appears to apply only to efforts to revoke a confirmation order, courts have adopted a wider approach, and have applied the bar in § 1144 when the complaint in question appears “to do indirectly what [the plaintiffs] no longer may do directly” because of that statutory bar. Hotel Corp. of the South v. Rampart 920, Inc., 46 B.R. 758, 770-71 (E.D.La.1985), aff'd, 781 F.2d 901 (5th Cir.1986).

“While it is true that creditors may not attack confirmation orders by simply characterizing their attempt as an independent cause of action, rather than a motion to revoke the order, the 180 day deadline in Section 1144 does not act as a bar to truly independent courses of action based on a debtor’s wrongful conduct.” In re Coffee Cupboard, Inc., 119 B.R. 14, 19 (E.D.N.Y.1990) (internal citations omitted); see also In re Emmer Bros. Co., 52 B.R. 385, 391 (D.Minn.1985) (“creditors may not attack confirmation orders by simply characterizing the attempt as an independent cause of action rather than a motion to revoke the order”).

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340 B.R. 729, 56 Collier Bankr. Cas. 2d 66, 2006 U.S. Dist. LEXIS 18177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haskell-v-goldman-sachs-co-ded-2006.