In re SunEdison, Inc.

556 B.R. 94, 2016 WL 4400568
CourtUnited States Bankruptcy Court, S.D. New York
DecidedAugust 12, 2016
DocketCase No. 16-10992(SMB) (Jointly Administered)
StatusPublished
Cited by6 cases

This text of 556 B.R. 94 (In re SunEdison, 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 SunEdison, Inc., 556 B.R. 94, 2016 WL 4400568 (N.Y. 2016).

Opinion

MEMORANDUM DECISION AND ORDER DENYING APPOINTMENT OF AN OFFICIAL COMMITTEE OF EQUITY SECURITY HOLDERS

STUART M. BERNSTEIN, United States Bankruptcy Judge:

Following submission of several letters requesting the appointment of a committee to represent the shareholders of Debtor SunEdison, Inc. (“SunEdison”), the Court issued an order on May 20, 2016, directing interested parties to show cause why an official committee of equity security holders (“Equity Committee”) should not be appointed. The Court conducted an evi-[98]*98dentiary hearing on July 14, 2016 at which two ad hoc groups of shareholders, represented by counsel, examined two witnesses. Based upon the evidence adduced at the hearing, the Court concludes that the appointment of an,Equity Committee is not necessary at this time to assure the adequate representation of equity security holders. Should circumstances change, the shareholders may renew the motion.

BACKGROUND

SunEdison is a holding company that, along with approximately two thousand direct and indirect debtor and non-debtor affiliates (the “SunEdison Group”), is in the business of developing renewable energy projects. SunEdison and twenty-five affiliates filed chapter 11 petitions on April 21, 2016 (the “Petition Date”), and since then, several other affiliates have commenced chapter 11 cases in this Court.2 Two of SunEdison’s principal assets are its interests in TerraForm Power, Inc. (“TERP”) and TerraForm Global, Inc. (“GLBL,” and collectively with TERP, the “Yieldcos”). As of the Petition Date, the Debtors indirectly held approximately 35% of the economic interests and 84% of the voting interests in TERP through ownership of 100% of TERP’s Class B shares and approximately 36% of the economic interests and 98% of the voting interests in GLBL through ownership of 100% of GLBL’s Class B shares. (Declaration of Patrick M. Cook Pursuant to Local Bankruptcy Rule 1007-2 and in Support of Chapter 11 Petitions md First Day Pleadings, dated April 21, 2016 (“Cook Declaration ”), at ¶¶ 25, 27 (EOF Doc. # 4).) The Yieldcos are not debtors, and their shares are publically traded.

The common stock of SunEdison is or was also publically traded, and is or was listed on the New York Stock Exchange under the symbol “SUNE.” (Id. at ¶48.) As of April 20, 2016, one day before the Petition Date, there were approximately 436 million shares of SunEdison common stock outstanding, with approximately 214 holders of record. The common stock was then trading at $0.34/share. (Id.)

According to certain financial information issued by SunEdison, the SunEdison Group appeared to be solvent on a consolidated basis as of the Petition Date. The last set of unaudited consolidated financial statements contained in SunEdison’s Form 10-Q for the period ended September 30, 2015, listed total assets of $20,714 billion and shareholders’ equity of $4,504 billion,3 (Movant’s Exhibit (“MX”) 1, at 4), but the reliability of this data was open to question. On March 16, 2016, SunEdison issued a Form 8-K. It reported that its auditors were unable to finalize their audit for the calendar, year 2015 “due to the identification by management of material weaknesses in its internal controls over financial reporting, primarily resulting from deficient information technology controls in connection with newly implemented systems.” (MX 4, Tab 1.) It also reported that SunEdison’s audit committee had not completed its investigation of SunEdison’s previously disclosed financial condition. . (Id.) Another Form 8-K, dated Mar. 31, 2016, stated that SunEdison had received a subpoena from the United States Department of Justice (“DOJ”) relating to SunEdison’s financing activities concerning its proposed acquisition, subsequently terminated, of Vivint Solar, Inc. [99]*99(“Vivint”), the alleged wrongdoing of a former employee in connection with the Vivint termination negotiations, investigations by SunEdison’s audit committee, in-tercompany transactions between SunEdi-son and the Yieldcos and the financing of projects in Uruguay. (MX 4, Tab 2.) The Form 8-K also revealed that SunEdison had received an informal, nonpublic inquiry from the Securities and Exchange Commission (“SEC”) covering similar areas. (Id.)

SunEdison issued a third Form 8-K on April 14, 2016, (MX 2, Tab 3), in which it reported the results of the audit committee’s investigation. The audit committee did not identify material, misstatements in SunEdison’s historical financial statements or substantial evidence of willful misconduct of management (other than the conduct of one former employee with respect to the Vivint negotiations). However, the audit committee identified several specific issues regarding SunEdison’s cash forecasting and liquidity management practices, including, among other things, that cash forecasting efforts lacked sufficient controls and processes, the cash forecasts were overly optimistic and SunEdison lacked sufficient controls and processes to manage cash flows, including the extension of accounts payable and the use of cash committed to projects.

Filings on the Petition Date and thereafter also raised questions regarding SunEd-ison’s financial condition and the reliability of its previously published financial data. According to Patrick M. Cook, SunEdi-son’s Vice President — Capital Markets and Corporate Finance, the SunEdison Group owed secured and unsecured funded debt in the amount of $3.832 billion and trade debt of at least $357 million. (Cook Declaration at ¶ 32 & n. 32.) Cook also reported falling' stock prices for SunEdison and the Yieldcos, (id. at ¶ 61), recounted the details of litigation against SunEdison, (id. at ¶¶ 64-65, 70),, and repeated the issues relating to the financial statements discussed in the Forms 8-K, including the DOJ investigation. (Id. at ¶¶ 67-68.)

A number of shareholders wrote to the Court stating that they had purchased SunEdison stock at higher prices prior to the Petition Date based on rosier financial information. Focusing primarily on the published information indicating shareholder equity in excess of $4 billion, and understandably concerned about the loss of their investments, they asked the Court to appoint an Equity Committee. As a result, the Court issued the aforementioned order to show cause.

A few parties opposed the proposed appointment.4 In the main, they contended that the Creditors’ Committee and SunEd-: ison’s new management team could adequately represent the shareholders’ interests, SunEdison appeared to be hopelessly insolvent, and the shareholders, as parties in interest, could still participate and be heard in the case. They argued that it would be improper to force the estate, and [100]*100hence, the creditors, to finance the Equity Committee’s professionals given the substantial likelihood that the creditors would not receive payment in full on their claims.

Two sets of counsel subsequently appeared representing two ad hoc groups of equity holders. (See The Investor Recovery Charitable Trust’s Response to the Order to Show Cause for Why Order Should Not Be Entered, Pursuant to 11 U.S.C. § 1102(a)(2), Directing the United States Trustee to Appoint an Official Committee of Equity Security Holders and Supporting the Appointment of a Committee, dated June 2, 2016 (“IRCT Response”) (ECF Doc.

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Cite This Page — Counsel Stack

Bluebook (online)
556 B.R. 94, 2016 WL 4400568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sunedison-inc-nysb-2016.