In re BGI, Inc.

476 B.R. 812, 68 Collier Bankr. Cas. 2d 10, 2012 WL 3292971, 2012 Bankr. LEXIS 3724, 56 Bankr. Ct. Dec. (CRR) 238
CourtUnited States Bankruptcy Court, S.D. New York
DecidedAugust 14, 2012
DocketNo. 11-10614 MG
StatusPublished
Cited by12 cases

This text of 476 B.R. 812 (In re BGI, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re BGI, Inc., 476 B.R. 812, 68 Collier Bankr. Cas. 2d 10, 2012 WL 3292971, 2012 Bankr. LEXIS 3724, 56 Bankr. Ct. Dec. (CRR) 238 (N.Y. 2012).

Opinion

MEMORANDUM OPINION DENYING GIFT CARD CLAIMANTS’MOTION TO FILE LATE CLAIMS AND CLASS CERTIFICATION

MARTIN GLENN, Bankruptcy Judge.

Weeks after this Court confirmed the Debtors’ chapter 11 plan of liquidation, certain holders of the Debtors’ consumer gift-cards filed a motion seeking entry of an order authorizing them to file untimely proofs of claim based on the amounts remaining on their consumer gift-cards. The gift-card holders also filed a motion seeking class certification on behalf of all holders of Borders’ gift-cards. The gift-card holders argue that they should have received actual notice of the bar date, and because the Debtors failed to provide them with such notice, they should be permitted to file late claims. The gift-card holders, however, failed to submit any affidavits or declarations in support of their motions. Additionally, the Court concludes that, as a matter of law, the gift-card holders were not “known” creditors and were provided sufficient notice of the bar date through the Debtors’ notice of bar date published in The New York Times. Therefore, the Court denies the motion to file untimely proofs of claim, and denies the motion for class certification as moot.

I. BACKGROUND

A. Procedural History

The history of this case has been well-documented in the various opinions issued by the Court. However, for the purposes of the motions at issue, the following procedural history is relevant. On February 16, 2011 (the “Petition Date”), each of the Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. On the Petition Date, the Court approved the Debtors’ motion (the “Customer Programs Motion”) (ECF Doc. # 18) to honor certain prepetition customer programs, including their gift-card program (the “Gift Card Program”). (ECF Doc. # 63.)

On April 8, 2011, the Court entered an order establishing the deadline for filing proofs of claim and approving the form and manner of notice (the “Bar Date Order”). (ECF Doc. # 580.) The Bar Date Order established June 1, 2011, at 5:00 [816]*816p.m. (prevailing Eastern Time) as the deadline (the “General Bar Date”) for each person or entity to file proofs of claim based on claims (as the term “claim” is defined in section 101(5) of the Bankruptcy Code) that arose on or prior to the Petition Date, including claims pursuant to section 503(b)(9) of the Bankruptcy Code (other than by governmental units as defined in section 101(27), which were required to file proofs of claim by August 15, 2011). See Bar Date Order at 2. The Bar Date Order also approved the notice of the bar date (the “Bar Date Notice”) and deemed the notice adequate and sufficient if served by first class mail at least thirty-five days prior to the General Bar Date on, among others, “all known creditors and other known holders of claims as of the date of [the Bar Date Order], including all persons or entities listed in the Schedules as holding claims for which the Debtors have addresses.... ” Bar Date Order at 6. The Bar Date Order further directed that the Debtors publish notice of the General Bar Date (the “Publication Notice”) once, in the national edition of The New York Times, at least twenty-eight days before the General Bar Date. See Bar Date Order at 7.

On April 22, 2011, the Debtors’ claims and noticing agent created a link on the Borders Reorganization Website entitled “Notice of Deadlines to File Claims and Proof of Claim Form,” which led visitors to a webpage that provided a link to the court-approved Bar Date Notice, information about filing proofs of claim and the associated deadlines. On April 25, 2011, the Debtors published the Bar Date Notice in The New York Times.

After a failed sales process, the Debtors sought approval of a full-chain liquidation. The store closing sales were concluded by September 20, 2011, thus ending the Debtors’ retail store operations. On September 27, 2011, the Court entered an order authorizing the sale of the Debtors’ intellectual property assets to Barnes & Noble. (ECF Doc. # 1876.) As of September 27, 2011, all e-commerce transactions on the Debtors’ website ceased, including the processing and honoring of gift-cards.

On October 12, 2011, the Court entered an order setting the bar date for filing proofs of claim asserting administrative expenses (the “Administrative Bar Date”) and approving the form and manner of the notice of the Administrative Bar Date (the “Administrative Bar Date Order”). (ECF Doc. # 1927.) The Administrative Bar Date Order expressly stated:

[A]ny holder of a claim for gift cards or gift certificates issued by the Debtors preCommencement Date (“Prepetition Gift Card Claims”), which claim was required to be asserted by June 1, 2011 pursuant to the General Bar Date Order, is not now permitted to assert such a claim. As set forth in the General Bar Date Order, any unsecured claim against the Debtors arising prior to the Commencement Date has already been deemed disallowed and any claimant holding such a claim is forever barred and estopped from asserting such a claim, unless the holder of a Prepetition Gift Card timely filed a proof of claim....

Administrative Bar Date Order at 3. (emphasis in original). In addition to mailing the Administrative Bar Date Order to known creditors, the Administrative Bar Date Order was also published in USA Today on October 18, 2011.

On December 21, 2011, the Court entered an order (the “Confirmation Order”) (ECF Doc. # 2384), confirming the First Amended Joint Plan of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code Proposed by the Debtors and the Official Committee of Unsecured Credi[817]*817tors, dated as of November 10, 2011 (the “Plan”) (ECF Doc. #2110, Ex. A). The Plan went effective on January 12, 2012 (the “Effective Date”) (ECF Doc. # 2465), and, to date, the Trust has made distributions to holders of allowed administrative and priority claims totaling at least $17 million.

On January 4, 2012, Eric Beeman and Jane Freij, holders of the Debtors’ consumer gift cards (the “Gift Card(s),” and collectively, Mr. Beeman, Ms. Freij, and Robert Traktman,1 the “Gift Card Holders”) filed a motion (the “Late Claim Motion”) seeking entry of an order authorizing the Gift Card Holders to file untimely proofs of claim against Borders, Inc. and Borders Properties, Inc., respectively. (ECF Doc. # 2415.) On January 9, 2012, the Gift Card Holders filed a separate motion (the “Class Action Motion”) seeking to certify a class of all holders of prepetition Borders Gift Cards (the “Proposed Class”) and to pursue priority unsecured creditor status for all holders of the Debtors’ Gift Cards. (ECF Doc. # 2450.) In response, the BGI Creditors’ Liquidating Trust (the “Trust”), as successor to the Debtors, and Curtis R. Smith, the Liquidating Trustee, filed an objection to the Motion (the “Objection”) (ECF Doc. #2699), as well as an objection to the Class Action Motion (ECF Doc. #2698). In support of these objections, the Trust filed the declaration of James Toner, the former Senior Associate General Counsel for Borders Group, Inc. (the “Toner Declaration”) (ECF Doc. # 2700) and the declaration of Kate Matson, a manager at BDO Consulting (retained as financial advisors to the Debtors, the Trustee and the Trust), (the “Matson Declaration”) (ECF Doc. #2701). The Gift Card Holders filed a reply to the Objection (the “Reply”). (ECF Doc. # 2720.)

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Bluebook (online)
476 B.R. 812, 68 Collier Bankr. Cas. 2d 10, 2012 WL 3292971, 2012 Bankr. LEXIS 3724, 56 Bankr. Ct. Dec. (CRR) 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bgi-inc-nysb-2012.