In re Adilace Holdings, Inc.

548 B.R. 458, 2016 Bankr. LEXIS 987, 2016 WL 1212442
CourtUnited States Bankruptcy Court, W.D. Texas
DecidedMarch 28, 2016
DocketCASE NO. 14-11583-tmd
StatusPublished

This text of 548 B.R. 458 (In re Adilace Holdings, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Adilace Holdings, Inc., 548 B.R. 458, 2016 Bankr. LEXIS 987, 2016 WL 1212442 (Tex. 2016).

Opinion

MEMORANDUM OPINION

TONY M. DAVIS, UNITED STATES BANKRUPTCY JUDGE

The Trustee has filed a motion to set a deadline for a contract counterparty— Grinberg Asset Holdings—to make an election under section 365(n). Grinberg objected, creating a contested matter. Now, a creditor seeks to intervene in this contested matter because she thinks she knows better than the Trustee how to administer the estate, and because she says the contested matter will affect her separate state-court litigation with Grin-berg in California, Should her intervention be allowed even though it will complicate the trial of the contested matter?

I. Background

A. The Debtor Consents to an Involuntary Petition and then Sells Nearly All its Assets.

This chapter 7 corporate Debtor formerly owned intellectual property known as Black Ice.1 Black Ice is some manner of [460]*460technology used to convert black-and-white film into a digital format. Parties in interest have presented contrasting accounts of what exactly Black Ice entails,2 but the Court has not yet determined the specifics of the intellectual property. Prior to bankruptcy, the Debtor entered into an agreement with Grinberg regarding the use of Black Ice. This agreement was at least partially memorialized in a two-page written contract.

Subsequently, Grinberg and two other creditors joined to file an involuntary petition for chapter 7 bankruptcy against the Debtor.3 The Debtor consented to bankruptcy and the case was converted to a chapter 11 ease.4 As contemplated at the time of conversion, the Debtor sold nearly all of its assets to Astral Images, including the Black Ice intellectual property,5 and the case was thereafter reconverted to chapter 7.6

B. The Trustee Moves to Set Deadline for Grinberg to Make a 365(n) Election.

The Trustee asserts that the agreement with Grinberg was an executory contract under which the Debtor licensed the use of Black lee to Grinberg in exchange for ongoing royalty payments.7 If executory, the contract was rejected by operation of section 365(d)(1). When an executory contract that licenses intellectual property is rejected, section 365(n) requires the licensee to elect to either treat the contract as terminated or retain its rights to the intellectual property.8 If the licensee elects to retain its rights, it must continue to pay the royalties due under the contract while waiving any rights to setoff or administrative expenses.9 With this argument, the Trustee hopes to establish that Grinberg must pay royalties to the Trustee to retain the Black Ice technology.

Grinberg disagrees, arguing that its contract with the Debtor did not license the Black Ice intellectual property but was rather a sale of a Black Ice enabled scanner with ongoing payments for technical support. Under Grinberg’s theory, no royalties are owed to the Trustee.

To fund this litigation and to avoid a dispute with the purchaser of the Black Ice technology, the Trustee entered into a settlement agreement with Astral Images (the purchaser of Black Ice). Astral [461]*461agreed to pay the Trustee’s litigation expenses—the Trustee .had no other source of funding—and the Trustee and Astral agreed to divide any net recovery arising from Grinberg’s use of Black Ice, regardless of whether the cause of action was held by the Trustee or Astral.10 Grinberg objected to this proposed settlement (Sullivan did not), but ultimately came to an agreed order with the Trustee and Astral. The settlement was approved on October 14,2015.11

Then, to tee up the dispute with Grin-berg, the Trustee filed,, his Motion to Set Deadline for Grinberg Asset Holdings, LLC to make an Election Pursuant to 365(n) of the Bankruptcy Code12 (“Motion to Set”), asking the Court to set a deadline for Grinberg to make an election pursuant to section 365(n). Grinberg filed a timely response arguing, among other things, that section 365(n) does not apply.13

Susan ’ ■ Sullivan—a creditor with a $2,000,000 contingent claim14—filed her own response to the Trustee’s motion.15 Sullivan argued that the contract was not executory when the Debtor entered bankruptcy, meaning that section 365(n) does not apply. According to Sullivan, Grin-berg breached its contract with the Debtor in a way that prevented the Debtor from continuing to perform. Under Sullivan’s theory, the Debtor had an unconditional right to continued payments from Grin-berg. Alternatively, Sullivan asserts that, if the contract was executory and was a license of intellectual property, section 365(n)(l)(A) prevents Grinberg from treating the contract as terminated.16

Why does Sullivan care? Sullivan first asserts that as an unsecured creditor she wants the estate to collect as much money as possible from Grinberg so her dividend will be larger. But Sullivan also is concerned that an adverse ruling by this Court on the executory contract issue will somehow bind Sullivan adversely in certain California state court litigation pending between Sullivan and Grinberg.

C. The Trustee Moves to Strike Sullivan’s Pleadings.

The Trustee filed his Motion to Strike Pleadings. of Sue Sullivan Pursuant to Bankruptcy Code Sections 558 and 704(A)(1)17 (“Motion to Strike”). The crux, of the Trustee’s argument was that the Bankruptcy Code did not allow Sullivan to challenge the method by which the Trustee decides to pursue the estate’s rights. Sullivan argued that section 363(b)(1) and Bankruptcy Rule 2002(a)(2) provide her a right to be heard and Bank[462]*462ruptcy Rule 2018 allows her to seek to intervene in the Motion to Strike.

The Court denied the Motion to Strike to the extent that Sullivan was objecting to the Trustee’s decision to pursue his selected legal theory but granted the motion to the extent that Sullivan’s pleadings spoke to the merits of the Motion to Set.. The Court considered and overruled Sullivan’s objection on the basis that the Trustee’s decision to pursue a particular legal theory was a matter of business judgment and there was no allegation that the trustee had not made a considered judgment.18 The Court also denied Sullivan’s tangential request to intervene, without prejudice to seeking that form of relief by separate motion,19 which Sullivan has now filed.20

II. Analysis

A. Sullivan May Seek to Intervene.

Some authorities state that Bankruptcy Rule 2018 merely implements section 110921—-which only applies to cases under chapter 11—while others indicate that Rule 2018 also applies in chapter 7 cases.22 But even if Rule 2018 was not applicable, according to Rule 9014(c), the Court may direct that Rule 7024 apply in a contested matter. Rule 7024 incorporates Rule

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Cite This Page — Counsel Stack

Bluebook (online)
548 B.R. 458, 2016 Bankr. LEXIS 987, 2016 WL 1212442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adilace-holdings-inc-txwb-2016.