In re News Publishing Co.

488 B.R. 241
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedFebruary 5, 2013
DocketNo. 13-40002-MGD
StatusPublished

This text of 488 B.R. 241 (In re News Publishing Co.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re News Publishing Co., 488 B.R. 241 (Ga. 2013).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO PAY CRITICAL VENDORS

MARY GRACE DIEHL, Bankruptcy Judge.

This matter came on for hearing on January 30, 2013, in Rome, Georgia, on Debtor’s Motion for an Order Authorizing, But Not Directing, Payment of Pre-petition Claims of Critical Vendors (“Motion”). (Docket No. 14). In support of the Motion, Debtor filed an Affidavit and Supplemental Affidavit of Burgett H. Mooney, III (“Supplemental Affidavit”). (Docket Nos. 16, 50). United Community Bank, an unsecured creditor in this case, filed a Response to the Motion (“Response”). (Docket No. 58).

At the hearing, Debtor offered the testimony of one witness, speaking on behalf of Etowah Employment Innovations (“Eto-wah”), and recited more facts with respect to Southern Lithoplate. Debtor also proffered the testimony of its President, Bur-gett H. Mooney, III (“Mr. Mooney”). After considering the documents filed with the Court and the testimony offered at the hearing, the Court ruled orally that the Motion would be denied except that the Court would authorize payment of Eto-wah’s pre-petition claim to the extent of $50,000.00, which would cover the portion of the claim relating to payment of employees. The Order was effective as of the time of the hearing.

I. Background

Debtor is a news and information corporation, publishing newspapers and various publications, operating a printing business, and operating several websites. The Motion seeks authority to pay the pre-petition claims of certain critical vendors (“Critical Vendors”) pursuant to 11 U.S.C. §§ 105(a), 363(b), 364, 503(b)(9), 507(a)(2), and the doctrine of necessity. The creditors designated as Critical Vendors are comprised of three groups: (1) supply companies that provided supplies and equipment for Debt- or’s printing press; (2) service companies, that provided maintenance and repairs for Debtor’s printing press; and (3) personnel companies, that provided temporary employees to Debtor.

In the Motion, Debtor alleges that nonpayment of these claims would materially interfere with Debtor’s operations or there is no reasonable alternative source for the various goods or services. Debtor also states that absent payment, the Critical Vendors would likely refuse to continue in business with Debtor or would continue but with unreasonable credit terms. Debt- or conditioned payment of each Critical Vendor upon agreement that they continue in business with Debtor according to the trade terms in effect before the petition date. Debtor asserted that there would be [244]*244a $200,000 cap to pay these claims, but reserved the right to increase that amount. The Supplemental Affidavit included a chart listing 16 specific Critical Vendors, the nature of the debt, the amount of the debt, and the reason the vendor is critical. The Response asserted that Debtor had failed to satisfy the stringent requirements of In re Kmart Corp., 359 F.3d 866 (7th Cir.2004), and was unjustifiably seeking payment of some unsecured creditors while neglecting to pay others similarly situated.

II. Discussion

Kmart rejected the notion that 11 U.S.C. §§ 105(a), 364(b), 503, or the doctrine of necessity, could form the basis for a court order authorizing payment of critical vendors. In re Kmart Corp., 359 F.3d at 871. However, the Court recognized 11 U.S.C. § 363(b)(1) as possible authority for granting such relief. That section provides that the debtor “after notice and a hearing, may use, sell or lease, other than in the ordinary course of business, property of the estate....” 11 U.S.C. § 363(b)(1).

Even if there is a statutory basis for issuing critical vendor orders, the debt- or must still provide a sufficient evidentiary basis for such relief. The foundation of a critical vendors order is that unpaid vendors will refuse to deal with the debtor, and as a result, the debtor will not be able to continue in business. Paying such vendors is a better option for even the disfavored creditors because it will mean the debtor stays in business and is more likely to be able to pay the disfavored creditors. In re Kmart, 359 F.3d at 872.

In order to prove that these circumstances exist, a debtor must provide sufficient evidence that: (1) the payments are necessary for reorganization; (2) the critical vendors will otherwise refuse to do business with the debtor; and (3) that disfavored creditors will be as well off with the critical vendor order than they would have been without it. In re Tropical Sportswear Int’l Corp., 320 B.R. 15, 16 (Bankr.M.D.Fla.2005). Kmart developed a “stringent test for determining whether a vendor is critical, [and] parties seeking to use critical vendor orders have extensive challenges to overcome.” In re TI Acquisition, LLC, 429 B.R. 377, 382 (Bankr. N.D.Ga.2010).

A. Claims Held by Vendors Other Than Etowah or Southern Lithop-late

Because Debtor offered evidence at the hearing specific to Etowah and Southern Lithoplate, the Court will analyze those claims separately. With regards to all remaining claims, Debtor has not provided sufficient evidence to satisfy the Kmart test. The Supplemental Affidavit includes a chart purporting to describe why each of the sixteen vendors are critical. These descriptions list the goods and/or services provided by each vendor and detail reasons why that particular arrangement is beneficial to Debtor, and in some cases, why there might be risk or negative consequences to ending the relationship. However, Debtor does not, for any of the vendors, provide a reason why the vendor is critical, as opposed to just beneficial, important, or preferred.

The Supplemental Affidavit does not allege that the vendors will refuse to do business with Debtor if their pre-petition debt is not paid nor that payment of a particular vendor is necessary for reorganization. Additionally, of the sixteen vendors, seven were owed $533.64 or less, and the Court was not persuaded by any of the evidence presented by Debtor that a creditor who is owed a relatively nominal amount would refuse to continue in a cash [245]*245on delivery or cash in advance arrangement with Debtor.

At the hearing, Debtor’s attorney proffered the testimony of Mr. Mooney. His proffer was that Debtor and/or Mr. Mooney had reached out to all creditors and that “some” have said that they would not continue in business with Debtor if not paid on their pre-petition claims. This vague and generalized statement was unsubstantiated by any other evidence presented at the hearing, other than with regards to the Etowah claim discussed below. This proffer was not sufficient to' satisfy Kmart’s stringent test.

B. Etowah’s Claim

At the hearing, Layton Roberts (“Mr. Roberts”), President of Etowah, the holder of the largest pre-petition claim among the designated critical vendors, testified as to Etowah’s relationship with Debtor.

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Related

In Re Tropical Sportswear Int'l Corp.
320 B.R. 15 (M.D. Florida, 2005)
In Re Equalnet Communications Corp.
258 B.R. 368 (S.D. Texas, 2000)
In Re Ionosphere Clubs, Inc.
98 B.R. 174 (S.D. New York, 1989)
In re Kmart Corp.
359 F.3d 866 (Seventh Circuit, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
488 B.R. 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-news-publishing-co-ganb-2013.