In re: Flashcom, Inc.

Opinion

FILED OCT 01 2014

1 NO FO PUBL A IO T R IC T N

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-13-1311-KuDaKi )

6 FLASHCOM, INC., ) Bk. No. 12-16351 )

7 Debtor. ) Adv. No. 12-01339 _______________________________)

8 )

CAROLYN A. DYE, Liquidating )

9 Trustee, )

)

10 Appellant, )

)

11 v. ) MEMORANDUM* )

12 ANDRA SACHS; ASHBY ENTERPRISES,)

INC.; MAX-SINGER PARTNERSHIP, )

13 )

Appellees. )

14 _______________________________) 15 Argued and Submitted on September 18, 2014 at Pasadena, California

16 Filed – October 1, 2014

17 Appeal from the United States Bankruptcy Court 18 for the Central District of California 19 Honorable Robert N. Kwan, Bankruptcy Judge, Presiding 20 Appearances: David R. Weinstein of Weinstein Law Firm APC 21 argued for appellant Carolyn A. Dye, Liquidating Trustee; Gerald M. Serlin of Benedon & Serlin LLP 22 argued for appellees Myles Sachs,** Ashby 23 24 * This disposition is not appropriate for publication.

Although it may be cited for whatever persuasive value it may 25 have (see Fed. R. App. P. 32.1), it has no precedential value. 26 See 9th Cir. BAP Rule 8013-1.

**

27 On February 10 2014, after this appeal was fully briefed, Counsel for the appellees filed a notice of suggestion of death 28 continue...

1 Enterprises, Inc. and Max-Singer Partnership. 2 Before: KURTZ, DAVIS*** and KIRSCHER, Bankruptcy Judges.

3 4 INTRODUCTION 5 Flashcom Inc.’s chapter 111 liquidating trustee Carolyn A. 6 Dye appeals from an order denying in part her motion for entry of 7 a $9 million stipulated judgment. Dye asserted that she was 8 entitled to entry of the judgment against Andra Sachs and the 9 other appellees in accordance with a “buyout option” in the 10 parties’ settlement agreement. Dye claimed that, under the 11 buyout option, Sachs was granted the option of either paying 12 $62,500 or having entered against her and the other appellees the 13 $9 million stipulated judgment. Because Sachs did not timely pay 14 the $62,500 buyout option amount, Dye contended that she was 15 16 ** ...continue

of Andra Sachs. On September 15, 2014, the Orange County 17 Superior court appointed Myles Sachs as the Special Administrator 18 for purposes of representing the decedent’s estate at oral argument in this appeal. Based on the Superior Court 19 appointment, Myles Sachs filed a motion seeking to substitute into this appeal as a party in place of Andra Sachs. Because the 20 Superior Court appointment expired by its own terms as of the close of business on the date of oral argument, Myles Sachs’

21 motion is ORDER DENIED, except to the extent of permitting him to 22 represent the decedent’s estate at the September 18, 2014 oral argument.

23

***

The Honorable Laurel E. Davis, Bankruptcy Judge for the 24 District of Nevada, sitting by designation. 25 1 Unless specified otherwise, all chapter and section 26 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all "Rule" references are to the Federal Rules of Bankruptcy 27 Procedure, Rules 1001-9037. All “Civil Rule” references are to the Federal Rules of Civil Procedure, and all “Evidence Rule”

28 references are to the Federal Rules of Evidence.

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1 entitled to enter and enforce the $9 million stipulated judgment. 2 The bankruptcy court determined that, under California law, 3 the buyout option constituted an unenforceable penalty. We agree 4 with that determination. We further hold that the bankruptcy 5 court had inherent authority to modify the court-approved 6 settlement agreement to limit the amount of the stipulated 7 judgment to the amount of damages Dye actually suffered as a 8 result of Sachs’ nonpayment of the $62,500. On this record, the 9 bankruptcy court correctly exercised that authority. 10 However, the bankruptcy court misconstrued California law 11 when it excluded from the $62,500 judgment prejudgment interest 12 on and after April 1, 2012. This limited aspect of the court’s 13 decision must be vacated, and the matter must be remanded so that 14 the court can amend the judgment to provide for prejudgment 15 interest up to the date of entry of the judgment. 16 Accordingly, we AFFIRM IN PART, VACATE IN PART, AND REMAND 17 WITH INSTRUCTIONS. 18 FACTS 19 Andra and her husband Brad2 founded Flashcom, an internet 20 service provider, in 1998. Initially, the Sachses were Flashcom’s 21 only shareholders. However, in June 1999, the Sachses 22 relinquished their sole ownership and control of Flashcom when 23 they agreed to sell shares of Flashcom preferred stock to certain 24 venture capital companies. 25 In February 2000, Andra and Flashcom reached an agreement 26 27

2

We refer to the Sachses by their first names for ease of 28 reference. No disrespect is intended.

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1 pursuant to which Flashcom redeemed a substantial portion of 2 Andra’s Flashcom shares in exchange for $9 million. Flashcom 3 paid the $9 million to Andra by wire transfer on February 23, 4 2000. 5 Later that same year, in December 2000, Flashcom commenced a 6 chapter 11 bankruptcy case in the Central District of California 7 and, roughly a year later, confirmed a chapter 11 liquidating 8 plan. Under the plan, Dye was appointed to serve as liquidating 9 trustee. 10 In July 2002, Dye filed a complaint against Brad, Andra, the 11 venture capital companies holding Flashcom shares, and others. 12 The complaint stated several different claims for relief. Some 13 of them were resolved by summary judgment motions, while others 14 were resolved after trial. And yet others were resolved, at 15 least in part, by means of the settlement from which this appeal 16 arose. The two claims relevant to the settlement and this appeal 17 are Dye’s third and fourth claims for relief seeking to avoid and 18 recover as a preference the $9 million stock redemption in favor 19 of Andra. 20 Meanwhile, also in July 2002, Brad filed a personal 21 chapter 7 bankruptcy case in the Southern District of Florida, 22 and Robert Furr was appointed to serve as the chapter 7 trustee 23 in that case. Furr initiated his own litigation against Andra 24 and her affiliated companies (collectively, “Andra Parties”). 25 On November 1, 2005, the California bankruptcy court entered 26 an order pursuant to Rule 9019(a) approving the settlement 27 between Furr, Dye and the Andra Parties. On June 14, 2006, the 28 Florida bankruptcy court entered a similar settlement approval

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1 order. 2 The settlement, referred to as the “Global Settlement 3 Agreement,” was global in the sense that it addressed and 4 resolved the litigation then pending between Furr, Dye, and the 5 Andra Parties. On the other hand, the settlement was not global 6 as it did not fully dispose of all of the claims as against all 7 of the defendants in Dye’s adversary proceeding. 8 The settlement provided for Andra to pay Furr $500,000 on 9 the “Approval Date” (as defined in the agreement) and another 10 $250,000 within six months of the Approval Date.3 11 In addition to these payments, Andra agreed to sign two 12 stipulated judgments, one known as the “Dye Avoidance Judgment” 13 and the other known as the “Dye Liability Judgment.” The Dye 14 Avoidance Judgment declared that the $9 million wire transfer 15 paid to Andra was avoided as a preferential transfer under 16 § 547(b). The Dye Liability Judgment provided pursuant to 17 § 550(a) for the joint and several liability of the Andra Parties 18 for the $9 million preferential transfer. 19 The settlement provided for the immediate entry of the Dye 20 Avoidance Judgment but did not permit Dye to immediately record 21 the Dye Avoidance Judgment or to take any immediate action with 22 respect to the Dye Liability Judgment. Rather, both stipulated 23 judgments were subject to Andra’s right to exercise what was 24 25 3 While these payments were directly payable to Furr, they 26 also stood to benefit Flashcom’s creditors. Post-settlement, Dye expected to be by far the largest creditor of Brad’s bankruptcy 27 estate, so the lion’s share of any distribution from Brad’s bankruptcy estate ultimately was expected to end up in Dye’s 28 hands for the benefit of Flashcom’s creditors.

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1 known as the “Dye Buyout Option” as described in paragraphs 9 and 2 10 of the settlement. In essence, if Andra timely paid the 3 amount specified in the Dye Buyout Option, such payment would 4 satisfy any and all liability of the Andra Parties to Dye and the 5 Flashcom bankruptcy estate. If Andra did not timely pay the Dye 6 Buyout Option amount, then Dye was entitled to record the Dye 7 Avoidance Judgment and to take all action necessary to enforce 8 the Dye Liability Judgment. 9 The timing and amount of the payment due under the Dye 10 Buyout Option were governed by two complex paragraphs, which 11 stated as follows: 12 10. Dye Buyout Option. 13 a. The payment due under the Dye Buyout Option shall be $50,000 if, within 36 months of the Approval 14 Date, Dye receives at least $2,000,000 from the [non-

settling] defendants in the in the [sic] Dye v. Andra 15 Adversary Proceeding . . . (collectively, "Other Defendants"). Such $50,000 payment shall be due within 16 60 days after Dye receives, and notifies Andra that she has received, at least $2,000,000 from the Other 17 Defendants. 18 b. The payment due under the Dye Buyout Option shall be $62,500 if Dye's recovery against the Other 19 Defendants in the Dye v. Andra Adversary Proceeding within 36 months of the Approval Date is less than 20 $2,000,000 (including if there is no such recovery at all). Such $62,500 payment shall be due within the 21 earlier of (i) the end of the 37th month after the Approval Date or (ii) such time as there is a final 22 resolution of the Dye v. Andra Adversary Proceeding by entry of a judgment or an order approving a settlement 23 agreement. 24 Global Settlement Agreement at ¶ 10. 25 As for the Approval Date, the settlement agreement defines 26 it as: 27 [T]he first business day following the tenth day after the entry of the later of the two orders of the 28 respective Bankruptcy Courts approving this Agreement,

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1 so long as no stay of either of those orders has been entered prior to that date, provided that an 2 irrevocable escrow of $500,000 has been made with Shulman Hodges & Bastian LLP (the "Escrow Agent") prior 3 to the hearing on the settlement by Andra. . . . If such a stay is entered, the Approval Date will be the 4 first business day after the stay is dissolved or otherwise becomes ineffective, as long as the Agreement 5 has not been materially changed by a court in the interim. If such a change has occurred, proceedings 6 upon this Agreement will be determined in accordance with that ruling.

7 8 Id. at ¶ 2. 9 In a vacuum, and without the benefit of knowing (as we do) 10 what actually transpired, these paragraphs were nebulous at best 11 and nonsensical at worst. Nonetheless, the critical dates for 12 the Dye Buyout Option were not overwhelmingly difficult to 13 calculate in light of the events that actually transpired – 14 events that all could have been ascertained by monitoring the 15 dockets in the relevant bankruptcy cases and adversary 16 proceeding. The following is a summary of the key events and the 17 critical dates they generated. 18 • First, the Approval Date was June 26, 2006 (the first 19 business day following ten days after the Florida bankruptcy 20 court’s June 14, 2006 approval of the settlement). 21 • Second, the deadline for fixing the amount of the Dye Buyout 22 Option payment was June 26, 2009 (36 months following the 23 Approval date). 24 • Third, by June 26, 2009, Dye had not obtained either any 25 settlement with or any judgment against the non-settling 26 defendants; such a settlement or judgment would have been a 27 prerequisite to any recovery along the lines contemplated in 28 subparagraph 10(a) of the settlement agreement.

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1 • Fourth, given the absence of the requisite recovery of at 2 least $2 million by June 26, 2009, the timing and amount of 3 the Dye Buyout Option payment were controlled by 4 subparagraph 10(b) of the settlement agreement. 5 • And fifth, under the events as they transpired, subparagraph 6 10(b) required payment of $62,500 by no later than July 31, 7 2009 (the end of the 37th month following the approval 8 date). 9 See Stipulation of Facts (June 21, 2012) at ¶¶ 5, 9-10. 10 In 2006, Andra timely paid $750,000 to Furr in accordance 11 with the terms of the settlement agreement. However, Andra did 12 not timely make the Dye Buyout Option payment. 13 Dye did not demand payment, serve any notice, or otherwise 14 communicate with any of the Andra Parties in July 2009 or 15 thereafter, until January 2012, when Dye’s counsel, David 16 Weinstein, contacted the Andra Parties’ former counsel, James 17 Bastian, and informed him of Dye’s contention that the Andra 18 Parties were liable for the full $9 million in accordance with 19 the settlement agreement and the stipulated judgments. In 20 response, Bastian advised Weinstein that he no longer represented 21 the Andra Parties. 22 In March 2012, Dye filed a motion requesting that the 23 California bankruptcy court enter the Dye Liability Judgment 24 against the Andra Parties based on Andra’s failure to make the 25 Dye Buyout Option payment. After receiving her service copy of 26 the motion, Andra more than once offered to pay $62,500 in 27 satisfaction of her obligations under the settlement agreement, 28 but Dye declined these offers based on her contention that the

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1 Andra Parties were liable for the full $9 million. 2 For the next year, the parties litigated the issue of 3 whether Dye was entitled to entry of the $9 million judgment. 4 The parties filed numerous briefs, declarations, exhibits and 5 evidentiary objections. Among other things, Andra argued that 6 the $9 million stipulated judgment constituted an unenforceable 7 penalty under California law. Andra also argued that she was 8 entitled to equitable relief from the court-approved settlement 9 and the stipulated judgments. To paraphrase Andra, the following 10 facts and circumstances justified equitable relief: 11 • Andra timely paid $750,000 of the approximately $800,000 in 12 agreed-upon settlement payments. 13 • Andra was ready, willing and able to pay the final remaining 14 $50,000 or $62,500 settlement installment on the 15 settlement’s Approval Date, but Dye insisted on a deferred 16 final payment at some future date to be determined in 17 accordance with the complex formula set forth in the 18 settlement; Dye refused to permit Andra to make the final 19 payment on or around the Approval Date. 20 • Weinstein told Bastian during settlement negotiations that 21 Dye did not intend/expect4 to enforce a $9 million judgment 22

4

23 This was one of the few factual disputes between the parties. Dye insisted that Weinstein never used the word 24 “intend” but rather merely said that Dye did not “expect” that she ever would be in a position to enforce the $9 million 25 judgment because she expected Andra to exercise the Dye Buyout 26 Option. Regardless, it is plain from the record that no one – not the bankruptcy court and certainly neither of the parties – 27 thought at the time of settlement that the $9 million judgment ever would be entered or enforced. The implications of this lack 28 continue...

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1 against the Andra Parties but instead sought to use the 2 settlement agreement and the stipulated judgments as a means 3 of advancing Dye’s claims against the non-settling 4 defendants. 5 • Once the settlement had been approved, Dye filed a series of 6 motions against the non-settling defendants predicated upon 7 the Andra Parties’ admissions set forth in the settlement 8 agreement and the stipulated judgments. 9 • The Dye Buyout Option provisions in the settlement 10 agreement, which governed the payment of the final $50,000 11 or $62,500 settlement installment were confusing and did not 12 identify a specific future date for payment, but rather 13 required the Andra Parties to calculate the future payment 14 date by ascertaining and considering a number of different 15 factors and variables. 16 • Dye never apprised the Andra Parties of the status of the 17 remainder of her adversary proceeding against the non- 18 settling parties, which was one of the variables for 19 determining the amount and timing of the Dye Buyout Option 20 payment. 21 • Dye never demanded payment of the $62,500 at the time when 22 Dye claims it was due, nor at any point for two and a half 23 years thereafter. 24 • In March 2012 and thereafter, Dye refused Andra’s repeated 25 offer to pay the final $62,500. 26

4

27 ...continue of expectation and reliance regarding the $9 million judgment is 28 discussed infra.

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1 • Dye admitted that, when the settlement agreement was entered 2 into, she had no expectation of entering or enforcing the 3 Dye Liability Judgment. 4 The bankruptcy court advised the Andra parties at one of the 5 hearings that, if they wanted the court to consider granting 6 equitable relief from the court-approved settlements, they would 7 need to file a formal motion seeking that relief under Civil 8 Rule 60(b). The Andra Parties thereafter filed a motion framing 9 their pre-existing request for equitable relief within the rubric 10 of Civil Rule 60(b)(6). 11 The court held a number of hearings and ultimately issued 12 two separate memorandum decisions, the latter of which it 13 subsequently amended. 14 In the first memorandum decision, the bankruptcy court 15 determined that, although California law was not binding, the 16 court could consider California law on liquidated damages in 17 addressing the Andra Parties’ request for equitable relief. The 18 court also determined that the Dye Buyout Option was an 19 unenforceable penalty under Cal. Civ. Code § 1671(b). The court 20 further determined that, based on all of the circumstances 21 presented, Civil Rule 60(b) was a timely and appropriate means 22 for addressing the Andra Parties’ request for equitable relief. 23 Based on these determinations, and on all of the circumstances, 24 the bankruptcy court held that the Andra Parties were entitled to 25 equitable relief and that Dye only was entitled to entry of a 26 stipulated judgment in the amount of $62,500 plus interest. 27 In its supplemental memorandum decision, as amended, the 28 bankruptcy court elaborated on the particular circumstances that

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1 led it to conclude that it would be inequitable to permit Dye to 2 enter and enforce the $9 million judgment. The key facts and 3 circumstances posited by the Andra Parties were largely 4 uncontroverted, and the court essentially adopted virtually all 5 of those facts and circumstances as part of its own findings. 6 But the bankruptcy court’s findings went even further than 7 the Andra Parties’ factual recitations. The court inferred from 8 the contents of the settlement agreement and from both parties’ 9 accounts of what they said, did and thought during the 10 negotiation of the settlement agreement that Dye and Weinstein 11 intentionally structured the settlement, the Dye Buyout Option 12 and the stipulated judgments to set up the Andra Parties for 13 failure. The court explained that Weinstein knew from his 14 settlement discussions with Bastian that Bastian planned to 15 discontinue his representation of Andra soon after the settlement 16 agreement was approved and that Andra likely would be 17 unrepresented after that point and likely would be left trying to 18 figure out for herself the complex provisions of the Dye Buyout 19 Option. 20 The following comments of the court are representative of 21 the court’s findings: 22 These perverse circumstances at best represented a “perfect storm” that [the Andra Parties] are liable for 23 a judgment 10 times more than what they settled for (or 144 times what remained due), which was in violation of 24 applicable state contract law as an unreasonable and unenforceable penalty, or at worst, a “trap for the 25 unwary” set by [Dye] and her counsel, who intentionally insisted that the settlement agreement provide for no 26 notice to [the Andra Parties] of the last settlement payment when it became due and who expected that [the 27 Andra Parties were] not likely to [be] represented by counsel . . . after the settlement was approved. The 28 court can discern no rational basis for the complicated

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1 settlement payment structure of the Dye Buyout Option of the Global Settlement Agreement, inconsistent notice 2 provisions, and Trustee’s failure to give any notice of the amount due [once] the amount was fixed other than 3 to trap the unwary [Andra Parties] into paying the full judgment amount. There is no other legitimate 4 collection purpose for the so-called Dye Buyout Option because [the Andra Parties] wanted to make an early 5 payment of the full settlement amount as evidenced by their payment of $750,000 of the either $800,000 or 6 $812,500, over 90% of the settlement amount due, and based on Andra Sachs’ uncontroverted statements in her 7 declarations [that she was] ready, willing and able to pay the balance when [she] entered into the settlement 8 in 2005. 9 Amd. Supp. Mem. Dec. (June 24, 2013) at 22:14-23:3. 10 Based on the bankruptcy court’s two memorandum decisions, it 11 entered an order which partially granted Dye’s motion, but only 12 to the extent of providing for the entry of the Dye Liability 13 Judgment in the amount of $62,500 plus interest. The court 14 thereafter entered the $62,500 judgment. In that judgment, the 15 court cut off the accrual of prejudgment interest as of April 1, 16 2012. According to the court, Andra’s offer to pay $62,500 as of 17 that date was sufficient to relieve the Andra Parties of any 18 further liability for prejudgment interest. 19 Dye timely appealed. 20 JURISDICTION 21 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 22 §§ 1334 and 157(b)(2)(F), and we have jurisdiction under 23 28 U.S.C. § 158. 24 ISSUES 25 1. Did the bankruptcy court commit reversible error when it 26 granted equitable relief to the Andra Parties and modified the 27 terms of the parties’ court-approved settlement agreement to 28 limit Dye to a stipulated judgment in the amount of $62,500 plus

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1 interest? 2 2. Did the bankruptcy court commit reversible error when it 3 cut off the accrual of prejudgment interest on the $62,500 as of 4 April 1, 2012? 5 STANDARDS OF REVIEW 6 We review the bankruptcy court’s grant of equitable relief 7 for an abuse of discretion. See Zurich Am. Ins. Co. v. Int'l 8 Fibercom, Inc. (In re Int'l Fibercom, Inc.), 503 F.3d 933, 939, 9 945 (9th Cir. 2007). 10 A bankruptcy court abuses its discretion when it applies an 11 incorrect legal rule, or when the factual findings supporting its 12 decision are illogical, implausible or without support in 13 inferences that may be drawn from facts in the record. United 14 States v. Hinkson, 585 F.3d 1247, 1261–62 & n. 21 (9th Cir. 2009) 15 (en banc). 16 The issue concerning the accrual of prejudgment interest 17 turns upon the effectiveness of Andra’s tender of the $62,500. 18 This question, in turn, required the bankruptcy court to construe 19 state law, which construction we review de novo. See Trishan 20 Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 426-27 (9th Cir. 2011). 21 We can affirm on any ground supported by the record. 22 Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). 23 DISCUSSION 24 Dye contends on appeal that the bankruptcy court’s decision 25 contravened binding Ninth Circuit authority. Relying on 26 Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338 (9th 27 Cir. 1981), Dye argues that the bankruptcy court erred in two 28 distinct ways. According to Dye, the court should not have

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1 considered state contract law principles in the process of 2 granting relief to the Andra Parties and also should not have 3 permitted the Andra Parties to request that relief roughly seven 4 years after the court entered an order approving the parties’ 5 settlement agreement. 6 Dunnahoo is inapposite. Dunnahoo involved an entered 7 consent judgment and the efforts of one of the parties to the 8 consent judgment to enforce it as entered. Here, Dye was seeking 9 to enforce a court-approved settlement agreement and to cause the 10 bankruptcy court, in accordance with the settlement agreement, to 11 enter a stipulated judgment signed by the adverse party (Andra) 12 but not previously entered. Because the stipulated judgment at 13 issue – the Dye Liability Judgment – was not previously entered, 14 it was not final, and hence neither Dunnahoo nor Civil Rule 60(b) 15 were applicable to the Dye Liability Judgment. See Civil 16 Rule 60(b) (stating that this Civil Rule applies to “final” 17 judgments, orders and proceedings). 18 A different Ninth Circuit case, one that neither of the 19 parties cited, is more helpful to us in resolving this appeal. 20 See A & A Sign Co. v. Maughan, 419 F.2d 1152 (9th Cir. 1969), 21 cited with approval in Meyer v. Lenox (In re Lenox), 902 F.2d 22 737, 740 (9th Cir. 1990). 23 In Maughan, A & A Sign Co. performed some construction work 24 for the debtor prior to the debtor's bankruptcy filing and 25 claimed a materialmen's lien under Arizona law after the debtor 26 filed bankruptcy. Subsequent settlement negotiations between the 27 bankruptcy trustee and A & A resulted in them entering into a 28 compromise stipulation pursuant to section 27 of the Bankruptcy

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1 Act (11 U.S.C. § 50),5 which stipulation was approved by the 2 district court. 419 F.2d at 1154. 3 The stipulation effectively provided: (1) that A & A held a 4 duly-perfected materialmen's lien under Arizona law; (2) that the 5 lien secured the reasonable value of the services and materials 6 furnished by A & A, less a specified sum paid in exchange for 7 A & A's release of its lien against one of three parcels of real 8 property; and (3) that A & A continued to hold a valid and 9 enforceable materialmen's lien against the other two parcels of 10 real property in the approximate amount of $14,000. Id. 11 Several months after the compromise stipulation was approved 12 by the district court, the bankruptcy trustee filed a motion 13 seeking to modify the compromise stipulation. According to the 14 trustee, he had not intended in entering into the stipulation to 15 permit A & A to retain its lien as against both parcels of real 16 property and the language in the stipulation permitting A & A to 17 retain its lien as against both parcels was inadvertent on the 18 part of the trustee. A & A opposed the motion and presented 19 contrary evidence indicating that its retention of the lien as 20 against both parcels was a critical term of the stipulation that 21 it bargained for. Id. at 1154-55. 22 The district court granted the trustee's motion, but the 23 Ninth Circuit reversed because, on the record presented, there 24 was no evidence or legal basis that would permit the bankruptcy 25

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26 11 U.S.C. § 50 was similar to current Rule 9019 and provided in relevant part that a bankruptcy trustee "may, with 27 the approval of the court, compromise any controversy arising in the administration of the estate upon such terms as he may deem 28 for the best interest of the estate."

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1 court to excise one term of the compromise stipulation over the 2 objection of one of the parties but leave the remainder of the 3 compromise stipulation in tact. Id. at 1155-56. Even though the 4 Ninth Circuit reversed, the Ninth Circuit held in relevant part 5 that bankruptcy courts have the inherent equitable power to 6 modify their prior orders, including orders approving compromise 7 stipulations. Id. at 1155. The Ninth Circuit further opined 8 that the district court’s modification of the compromise 9 stipulation could have been sustained over A & A’s objection “had 10 there been findings supported by substantial evidence warranting 11 reformation of the stipulation.” Id. at 1156. 12 In short, Maughan stands for the proposition that bankruptcy 13 courts have inherent equitable authority to modify or vacate 14 compromise stipulations if circumstances so justify. Maughan 15 further stands for the proposition that basic contract law 16 principles – like contract reformation – are relevant and can be 17 considered. 18 Maughan is binding Ninth Circuit law. It has not been 19 overruled or superseded by statute. Moreover, In re Lenox, cited 20 above, indicates that Maughan’s teachings continue to be vital, 21 relevant and valid today. Given the similarity between the 22 compromise provision contained in section 27 of the Bankruptcy 23 Act and Rule 9019, which currently governs compromises in 24 bankruptcy cases, we know of no reason why we are not bound to 25 follow Maughan. 26 Only one small aspect of Maughan appears outdated. Maughan 27 indicated that orders approving compromises are interlocutory 28 orders, whereas under the “pragmatic approach” to the finality of

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1 bankruptcy court orders, orders approving compromises are now 2 treated as final orders for appeal purposes. See Expeditors 3 Int'l v. Citicorp N. Am. (In re Colortran), 218 B.R. 507, 510 4 (9th Cir. BAP 1997). Nonetheless, decisions following Maughan 5 and In re Lenox have established that the bankruptcy court’s 6 inherent authority to modify and vacate its prior orders exists 7 even when such orders are final. See, e.g., In re Int'l 8 Fibercom, Inc., 503 F.3d at 945; Heritage Pac. Fin., LLC v. 9 Montano (In re Montano), 501 B.R. 96, 114 n.15 (9th Cir. BAP 10 2013); see also In re Lenox, 902 F.2d at 740 (“although [Civil 11 Rule] 60(b) refers to relief from final orders, it does not 12 restrict the bankruptcy court's power to reconsider any of its 13 previous orders when equity so requires.”). 14 The Ninth Circuit only has identified one general limitation 15 on the bankruptcy court’s inherent authority to modify, vacate or 16 reconsider its prior orders. The bankruptcy court only may do so 17 to the extent that no intervening rights have vested in reliance 18 thereon. See In re Lenox, 902 F.2d at 739-40 (citing Chinichian 19 v. Campolongo (In re Chinichian), 784 F.2d 1440, 1443 (9th Cir. 20 1986)). In In re Int'l Fibercom, Inc., the Ninth Circuit refined 21 this vested rights limitation. 503 F.3d at 944-45. The Ninth 22 Circuit there ruled that, so long as the objecting party has not 23 detrimentally relied on the aspect of the order that is being 24 subjected to clarification or modification, the bankruptcy court 25 can exercise its equitable powers. Id. 26 Here, we have found no evidence in the record that Dye 27 detrimentally relied on the Dye Buyout Option provisions 28 purporting to entitle her to enter the $9 million judgment. In

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1 fact, Dye admitted that, at the time she entered into the 2 settlement agreement, she never expected to be able to enter or 3 enforce the $9 million judgment. Moreover, the only action that 4 Dye apparently has taken in furtherance of her purported 5 entitlement to the $9 million judgment is the litigation she has 6 initiated seeking to enter the judgment. However, assuming a 7 particular litigation position based on the provision in question 8 does not constitute the type of reliance or “vested rights” that 9 would preclude the bankruptcy court from exercising its inherent 10 authority. See, e.g., In re Lenox, 902 F.2d at 739 (no 11 preclusive reliance where creditor opposed plan confirmation and 12 appealed therefrom based on terms of prior court-approved 13 stipulation); In re Int'l Fibercom, Inc., 503 F.3d at 937-38 (no 14 preclusive reliance where creditor initiated relief from stay, 15 administrative claim, summary judgment and appeal proceedings all 16 based on agreed-upon terms set forth in the debtor’s contract 17 assumption motion, which the court previously granted by entered 18 order). 19 There is one other limitation that the Ninth Circuit 20 sometimes has recognized regarding the bankruptcy court’s 21 inherent authority to modify one of its prior orders. 22 Ordinarily, the court cannot exercise its modification authority 23 over the objection of the adverse party by excising one provision 24 of the parties’ stipulation but leaving the rest of the parties’ 25 stipulation in tact. Maughan, 419 F.2d at 1155; see also 26 Stephens Institute v. N.L.R.B., 620 F.2d 720, 725-26 (9th Cir 27 1980)(recognizing the same rule and the same limitation in a non- 28 bankruptcy civil case).

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1 Even so, this anti-modification limitation is itself 2 equitable in nature, and the Ninth Circuit has refused to apply 3 it when the proponent’s own inequitable conduct instigated the 4 dispute. Stephens Institute, 620 F.2d at 725-26. On this 5 record, and in light of the bankruptcy court’s uncontested 6 findings that Dye refused Andra’s offers to pay the $50,000 or 7 62,500 on the Approval Date, insisted on the complex payment 8 provisions set forth in the Dye Buyout Option, and intentionally 9 structured these provisions in the hopes of setting up the Andra 10 Parties for failure, Dye is in no position to invoke this anti- 11 modification limitation. See id. 12 There is a separate and independent reason why the anti- 13 modification limitation does not apply here. As indicated in 14 Maughan, 419 F.2d at 1156, this limitation does not apply where 15 the application of contract law principles support the 16 modification. Here, the bankruptcy court determined under 17 California contract law that the Dye Buyout Option was an 18 unenforceable penalty provision. We agree. As stated by the 19 California Supreme Court: 20 A liquidated damages clause will generally be considered unreasonable, and hence unenforceable under 21 [Cal. Civil Code] section 1671(b), if it bears no reasonable relationship to the range of actual damages 22 that the parties could have anticipated would flow from a breach. The amount set as liquidated damages must 23 represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any 24 loss that may be sustained. In the absence of such relationship, a contractual clause purporting to 25 predetermine damages must be construed as a penalty. A penalty provision operates to compel performance of an 26 act and usually becomes effective only in the event of default upon which a forfeiture is compelled without 27 regard to the damages sustained by the party aggrieved by the breach. The characteristic feature of a penalty 28 is its lack of proportional relation to the damages

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1 which may actually flow from failure to perform under a contract.

2 3 Ridgley v. Topa Thrift & Loan Ass'n, 17 Cal.4th 970, 977 (1998) 4 (citations and internal quotation marks omitted).6 5 Here, there was no rational relationship between the $62,500 6 Dye Buyout Option payment and the $9 million judgment. When 7 evaluating the validity of a liquidated damages clause in a 8 settlement agreement, the appropriate measure of damages for 9 nonpayment of the settlement amount ordinarily is tied to the 10 amount due under the settlement agreement and not to the amount 11 originally sought by the plaintiff in its complaint. See 12 Greentree Fin. Grp., Inc. v. Execute Sports, Inc., 13 163 Cal.App.4th 495, 499-500 (2008). 14 There is no evidence in the record here to support Dye’s 15 implicit assertion on appeal that her original preference claim 16 of $9 million is an appropriate measure of her damages resulting 17 from the non-payment of the $62,500 Dye Buyout Option amount. To 18 the contrary, Dye’s compromise motion effectively represented 19 that the payments provided for in the settlement agreement 20 constituted a fair and reasonable recovery for Flashcom’s 21

6

While Dye has argued on appeal that the bankruptcy court 22 should not have considered state contract law principles in the 23 process of granting the Andra Parties’ request for equitable relief, both parties seem to agree with the bankruptcy court’s 24 assessment that, to the extent state law does apply to this matter, California law governs. Because Dye has not argued that 25 any other state’s law should govern, she has waived this 26 argument. See Christian Legal Soc'y v. Wu, 626 F.3d 483, 487–88 (9th Cir. 2010) (“We review only issues [that] are argued 27 specifically and distinctly in a party's opening brief.”);

Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir.

28 2010) (same).

22

1 creditors on account of the $9 million preference claim. 2 Moreover, Dye made this representation with the admitted 3 expectation that she never would be in a position to enter or 4 enforce the $9 million judgment. 5 Dye argues that the Dye Buyout Option was not a liquidated 6 damages provision at all, but rather was a true option. In other 7 words, according to Dye, the Dye Buyout Option presented the 8 Andra Parties with two bona fide alternatives: (a) either pay 9 $62,500, or (b) be subject to liability for a $9 million 10 judgment. This argument lacks merit. The California Supreme 11 Court has made it clear that, when considering whether a 12 provision constitutes an unenforceable liquidated damages 13 provision or a valid alternate means of performance, substance 14 should prevail over both the form and the wording of the 15 agreement. See Ridgley, 17 Cal.4th at 979-80. As Ridgley 16 stated: 17 We have consistently ignored form and sought out the substance of arrangements which purport to legitimate 18 penalties and forfeitures. Looking to the substance rather than the form of the disputed provision, we 19 agree with the superior court and the Court of Appeal dissenter that it was invalid because it was intended 20 to, and did, operate as a penalty for late payment.

However one describes its form, the intent and effect 21 of the disputed provision here was that any late payment or other default by plaintiffs would result in 22 a severe penalty . . . . 23 Id. (citations and internal quotation marks omitted). 24 Here, what Dye phrased as an option was nothing more than a 25 penalty. No rational person would willingly choose the so-called 26 “alternate performance” of liability under the $9 million 27 judgment especially when, as here, it is undisputed that the 28 adverse party was ready, willing and able to pay the $62,500 Dye

23

1 Buyout Option amount. Furthermore, it is telling that Dye sought 2 to enforce the Dye Buyout Option precisely as a penalty – as a 3 consequence of Andra’s failure to timely pay the Dye Buyout 4 Option amount. 5 Nor can Dye escape this result by referencing the fact that 6 the parties eschewed terminology like “breach” and “damages”. 7 Dye’s argument is wholly at odds with Ridgley’s mandate that 8 substance should control over the form and wording used by the 9 parties. 10 Relying on Schneider v. Verizon Internet Servs., Inc., 11 400 F. App’x 136, 138 (9th Cir. 2010), Dye contends that the 12 relative benefits and burdens of the alternatives must be weighed 13 at the time the agreement is entered into. But Schneider is an 14 unpublished decision and its facts are distinguishable. 15 Schneider dealt with the issue of whether an early termination 16 fee constituted a penalty or a bona fide alternative to 17 performance. No one here has attempted to characterize the Dye 18 Buyout Option as the equivalent of an early termination fee, nor 19 would the record support such a characterization. 20 Also relying upon Schneider, Dye asserts that the only way 21 to properly measure whether the Dye Buyout Option constitutes an 22 unenforceable penalty is to measure the $9 million judgment 23 against Dye’s original preference claim and Andra’s risk of 24 liability thereunder. This assertion runs afoul of Greentree 25 Fin. Grp., Inc. and our discussion of that case above, in which 26 we concluded that there was no rational basis here for tying the 27 consequences for non-payment of the Dye Buyout Option amount to 28 the stated amount of Dye’s preference claim.

24

1 Dye further points out that the Andra Parties knew and fully 2 understood the potential risks associated with the Dye Buyout 3 Option and that the settlement agreement was a commercial 4 transaction entered into by sophisticated parties who at the time 5 were both represented by counsel. This much is true. 6 Nonetheless, the California courts have made it clear that 7 sophisticated parties engaged in commercial transactions are not 8 exempt from the protections afforded under Cal. Civil 9 Code § 1671(b). See Ridgley, 17 Cal.4th at 981 n.5; Harbor 10 Island Holdings v. Kim, 107 Cal.App.4th 790, 799 (2003). 11 Our decision upholding the bankruptcy court’s ruling 12 limiting Dye to a $62,500 judgment is consistent with contract 13 reformation principles – the exact same principles referenced in 14 Maughan, 419 F.2d at 1156. As discussed in the facts section 15 above, at the time the settlement was entered into and approved, 16 the parties did not expect that the Dye Liability Judgment ever 17 would be enforced. Indeed, at that time, the express purpose and 18 motivation underlying the Dye Liability Judgment was to use it 19 against the non-settling defendants and not against the Andra 20 Parties. After Dye lost her litigation against the non-settling 21 defendants, Dye’s motivation regarding how she wanted to use the 22 Dye Liability Judgment obviously changed, and the explicit terms 23 of the Dye Buyout Option facilitated Dye’s change in motivation. 24 But application of contract reformation principles here 25 would prevent Dye from successfully acting upon her changed 26 motivation. As explained in Maughan: “[r]eformation is an 27 appropriate remedy to correct a written instrument when the words 28 it contains do not express the meaning the parties agreed upon

25

1 . . . .” Id. at 1556. See also Restatement (Second) Contracts 2 § 155 (1981). In short, at the time of settlement, the parties 3 never really meant for the Dye Liability Judgment ever to be 4 enforced against the Andra Parties. Even though the settlement 5 agreement as written appears to permit such enforcement, contract 6 reformation principles could be invoked to conform the written 7 instrument to the parties’ actual expectations at the time of 8 contract formation. 9 We acknowledge that contract reformation was not put at 10 issue by the parties. Even so, we find the above contract 11 reformation analysis instructive because of its role in Maughan 12 and because it would lead to the same result as that reached by 13 declaring the $9 million judgment an unenforceable penalty. 14 We also acknowledge that, at oral argument, Dye’s counsel 15 indicated that the bankruptcy court excluded some of the parties’ 16 evidence pursuant to Evidence Rule 408. But it is difficult to 17 reconcile any such exclusion with the bankruptcy court’s findings 18 and factual statements, many of which appear to hinge on events 19 that transpired during settlement negotiations. Regardless, 20 Evidence Rule 408 does not impede our analysis. Dye did not 21 address Evidence Rule 408 or the court’s evidentiary exclusion 22 rulings in her appeal briefs, so she has forfeited any issue 23 relating thereto. See Christian Legal Soc'y, 626 F.3d at 487–88; 24 Brownfield, 612 F.3d at 1149 n.4. More importantly, it is well 25 established that Evidence Rule 408 does not exclude evidence 26 related to a settlement when it is offered for the purposes of 27 interpreting or enforcing the settlement. See Advisory Committee 28 Notes accompanying 2006 amendments to Evidence Rule 408 (citing

26

1 Coakley & Williams v. Structural Concrete Equip., 973 F.2d 349, 2 353-54 (4th Cir. 1992)); see also Cates v. Morgan Portable Bldg. 3 Corp., 780 F.2d 683, 691 (7th Cir. 1985) ("Obviously a settlement 4 agreement is admissible to prove the parties' undertakings in the 5 agreement, should it be argued that a party broke the 6 agreement."). 7 Most of Dye’s other arguments on appeal concern whether the 8 bankruptcy court correctly relied upon Civil Rule 60(b) to grant 9 the Andra Parties relief from the terms of the court-approved 10 settlement agreement. In light of our analysis and holding that 11 the bankruptcy court’s decision can be affirmed as an appropriate 12 exercise of the court’s inherent authority under § 105(a), we 13 need not reach Dye’s Civil Rule 60(b) issues, and we decline to 14 address them. 15 Somewhat unrelated to her Civil Rule 60(b) issues, Dye 16 argues that the bankruptcy court abused its discretion by 17 suggesting to the Andra Parties that they should file a motion 18 pursuant to Civil Rule 60(b) seeking equitable relief from the 19 court-approved settlement agreement. This so-called suggestion 20 was made at a hearing on Dye’s motion held on October 31, 2012. 21 However, rather than providing legal advice to the Andra Parties 22 regarding what they needed to do to prevail, the entirety of the 23 hearing transcript reflects that the court and the Andra Parties’ 24 counsel were engaged in a lengthy colloquy during which one of 25 the concerns the court raised was whether it could grant 26 equitable relief – relief that the Andra Parties already had 27 informally requested in their briefs in opposition to Dye’s 28 motion – in the absence of a formal motion.

27

1 Rather than attempting to give legal advice, the bankruptcy 2 court appears to have been merely expressing its concern that the 3 Andra Parties needed to present their pre-existing request for 4 equitable relief in a procedurally proper format. In any event, 5 even if there were some sort of error or abuse of discretion 6 associated with the court’s so-called suggestion that the Andra 7 Parties needed to file a formal Civil Rule 60(b) motion, any such 8 error was harmless, and we must ignore harmless error. Van Zandt 9 v. Mbunda (In re Mbunda), 484 B.R. 344, 355 (9th Cir. BAP 2012). 10 The bankruptcy court did not need a formal motion from the Andra 11 Parties in order to grant them equitable relief from the court- 12 approved settlement. Rather, under the court’s inherent 13 authority, the court sua sponte could grant such relief. See 14 § 105(a); see also In re Lenox, 902 F.2d at 740 (“Although 15 FRCP 60(b) provides that a court may relieve a party from a final 16 order upon motion, it does not prohibit a bankruptcy judge from 17 reviewing, sua sponte, a previous order.”). 18 There is one final issue we must address. The court 19 determined that Dye was not entitled to prejudgment interest on 20 the $62,500 on and after April 1, 2012. According to the court, 21 on or about that date, Andra’s belated offer to make the $62,500 22 payment and Dye’s refusal thereof cut off Dye’s entitlement to 23 prejudgment interest, per Cal. Civ. Code § 1504, which provides: 24 [a]n offer of payment or other performance, duly made, though the title to the thing offered be not 25 transferred to the creditor, stops the running of interest on the obligation, and has the same effect 26 upon all its incidents as a performance thereof. 27 The bankruptcy court acknowledged that the following 28 requirements ordinarily apply before an offer of payment can cut

28

1 off the accrual of interest: 2 (1) full performance; (2) at a proper time and place;

(3) made by the debtor or someone on her behalf; (4) to 3 the creditor or some authorized person; (5) at a place appointed by the creditor; (6) timely;

4 (7) unconditional; and (8) offer made in good faith. 5 Amd. Supp. Mem. Dec. (June 24, 2013) at 34:20-23 (citing 6 1 Witkin, Summary of California Law, Contracts, § 771, at 7 pp. 861-862 (10th ed. 2005 and 2013 Supp.)). 8 The court further acknowledged that Andra’s tender did not 9 fully comply with these requirements. Nonetheless, the court 10 concluded that Andra’s tender was sufficient to cut off 11 prejudgment interest because of Dye’s failure to give Andra 12 notice of when the Dye Buyout Option payment was due. The court 13 reasoned that, under Cal. Civ. Code § 1511,7 Dye’s failure to 14

7

15 Cal. Civ. Code § 1511 provides:

16 The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay 17 therein, is excused by the following causes, to the extent to which they operate:

18 19 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation 20 of law, even though there may have been a stipulation that this shall not be an excuse; however, the parties 21 may expressly require in a contract that the party relying on the provisions of this paragraph give 22 written notice to the other party or parties, within a 23 reasonable time after the occurrence of the event excusing performance, of an intention to claim an 24 extension of time or of an intention to bring suit or of any other similar or related intent, provided the 25 requirement of such notice is reasonable and just; 26 2. When it is prevented or delayed by an irresistible, 27 superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties 28 continue...

29

1 give notice excused Andra from full compliance with the tender 2 requirements. 3 On appeal, Dye in essence argues that the bankruptcy court 4 incorrectly invoked Cal. Civ. Code § 1511 to excuse Andra’s full 5 compliance with the tender requirements. We agree with Dye on 6 this point. Dye had no duty, contractual or otherwise, to give 7 Andra notice of the timing or amount of the Dye Buyout Option 8 payment. California cases excusing an improper or delayed tender 9 of performance based on the adverse party’s conduct are 10 predicated on the adverse party having some sort of unmet duty 11 under the parties’ agreement or, in the alternative, on the 12 adverse party affirmatively acting in some way, after the 13 agreement was entered into, to effectively prevent timely and 14 proper tender in accordance with parties’ agreement. See, e.g., 15 Pierce v. Lukens, 144 Cal. 397, 401-02 (1904); Ninety Nine Invs., 16 Ltd. v. Overseas Courier Serv. (Singapore) Private, Ltd., 17 113 Cal.App.4th 1118, 1135-36 (2003); Connolly v. Lake Cnty. 18 Canning Co., 95 Cal.App. 768, 771-72 (1928). 19 Here, in contrast, it is undisputed that Dye had no duty 20 under the settlement agreement to give Andra any notice unless 21 Dye recovered more than $2 million from the non-settling 22 defendants (which she did not). Nor is there anything in the 23

7

24 ...continue have expressly agreed to the contrary; or, 25 26 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to 27 have that effect, done at or before the time at which such performance or offer may be made, and not 28 rescinded before that time.

30

1 record indicating that Dye ever led Andra to believe that she 2 would give Andra notice of the timing or amount of the Dye Buyout 3 Option payment. 4 The bankruptcy court’s ruling suggests that it believed that 5 the same law, circumstances and equities that permitted it to 6 limit the consequences arising from Andra’s failure to timely pay 7 the Dye Buyout Option amount somehow also permitted the court to 8 cut off prejudgment interest. We disagree. Dye’s entitlement to 9 prejudgment interest was governed not by the settlement agreement 10 but instead by Cal. Civ. Code §§ 1504 and 1511, and the 11 bankruptcy court’s ability to limit this entitlement was 12 restricted by the terms of those statutes as construed by the 13 California courts. 14 Accordingly, the bankruptcy court erred when it cut off the 15 accrual of prejudgment interest on and after April 1, 2012. We 16 thus will vacate this limited aspect of the court’s ruling and 17 will remand with the instruction that the bankruptcy court on 18 remand should amend its judgment to include prejudgment interest 19 up to the date of entry of the judgment, June 24, 2013. 20 CONCLUSION 21 For the reasons set forth above, we AFFIRM the bankruptcy 22 court’s decision, except for the court’s ruling on prejudgment 23 interest. This limited aspect of the court’s decision is VACATED 24 AND REMANDED WITH INSTRUCTIONS, as set forth above. 25 26