International Tobacco Partners, Ltd. v. Ohio (In re International Tobacco Partners, Ltd.)

462 B.R. 378
CourtUnited States Bankruptcy Court, E.D. New York
DecidedNovember 9, 2011
DocketBankruptcy No. 10-74894-AST; Adversary No. 11-9271-AST
StatusPublished
Cited by19 cases

This text of 462 B.R. 378 (International Tobacco Partners, Ltd. v. Ohio (In re International Tobacco Partners, Ltd.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Tobacco Partners, Ltd. v. Ohio (In re International Tobacco Partners, Ltd.), 462 B.R. 378 (N.Y. 2011).

Opinion

DECISION GRANTING PARTIAL ABSTENTION AND DENYING MOTIONS TO DISMISS AND DENYING INJUNCTIVE RELIEF

ALAN S. TRUST, Bankruptcy Judge.

Introduction

International Tobacco Partners, Ltd. (“Debtor”), plaintiff in this adversary proceeding and the debtor in the main bankruptcy case, commenced this adversary proceeding against Defendant, the State of Ohio (“Ohio” or “Defendant”), seeking in-junctive relief and declaratory judgment that the Debtor has a superior interest in $981,401.09 in funds currently held in escrow (the “Escrow Release Funds”) at the Eastern Bank of Boston, Massachusetts (“Eastern”). The Court’s ruling1 will address the following matters:

1. Ohio’s motions to dismiss this adversary proceeding [dkt items 8, 24]2;
2. Ohio’s amended motion for abstention [dkt item 14]; and
3. Debtor’s request for injunctive relief [dkt item 1],

As will be discussed more fully below, Ohio’s motions to dismiss, as applied to the Complaint and the Amended Complaint, is denied. With respect to Ohio’s Motion for Abstention, the Court finds that mandatory abstention under 28 U.S.C. § 1334(c)(2) is not warranted in this adversary proceeding; however, the Court will partially abstain under the permissive abstention statute, 28 U.S.C. § 1334(c)(1), subject to the following terms and limitations:

• This Court hereby partially abstains in favor of the action currently pending before the Superior Court of the Commonwealth of Massachusetts for the County of Suffolk for one hundred eighty (180) days from the date of entry of this written decision, except [381]*381that the Court does not abstain with respect to Debtor’s Fifth Cause of Action Against Ohio in the Amended Complaint, which alleges a violation of the automatic stay provisions of § 362(a);
• At the end of the 180-day period, Debtor and Ohio are directed to appear before this Court to report on the status of the state court litigation; and
• If the state court litigation is resolved by judgment on the merits or by settlement earlier than 180 days from the date of this decision, the parties are directed to advise this Court by letter docketed in the adversary proceeding as to the nature of that resolution.3

Finally, the Court denies Debtor’s request for a temporary restraining order (“TRO”), because the Court finds that such relief is redundant to the automatic stay and is, therefore, not necessary at this time.

Jurisdiction

This Court has jurisdiction over this core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A), (D), (K), and (0), and 1334(b), and the Standing Order of Reference in effect in the Eastern District of New York dated August 28,1986.

Facts and Background

The following facts are stated based upon drawing all appropriate inferences in favor of Debtor in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure.

In 1998, a Master Settlement Agreement (“MSA”) was entered into by the “Big Four” U.S. tobacco manufacturers and forty-six (46) states, including Ohio, Massachusetts, and Missouri, arising out of certain well-publicized tobacco litigation. Not every tobacco manufacturer in the world was a party to the MSA. To offset a perceived competitive advantage that nonparticipating tobacco manufacturers (“NPMs”) would receive from not paying any sums under the MSA or not later becoming parties to the MSA, many states, including Ohio and Missouri, enacted nonparticipating manufacturer statutes to address conditions under which NPM’s could sell their tobacco products in the United States.

Grand Tobacco, a corporation formed under the laws of the Republic of Armenia, is an NPM as defined in the MSA and the NPM statutes of Missouri (Mo.Rev.Stat. Ch. 196 § 1000(1)). Debtor is a distributor of tobacco products for Grand Tobacco in the United States.

In order for Grand Tobacco to sell its tobacco products in Missouri, it is required to establish an escrow account and make annual MSA payments into that account (“Escrow Payments”). The purpose of the escrow account and Escrow Payments is for Missouri to have an asset to attach in the event that it is sued for damages by one of its citizens who alleges he or she was harmed by the use of Grand Tobacco’s products sold in Missouri. If Grand Tobacco fails to make its annual Escrow Payment, it cannot sell its products in Missouri.

Commencing in approximately 2003, Debtor, as distributor, and Grand Tobacco, as manufacturer, orally agreed that Debt- or would be responsible for making all of Grand Tobacco’s Escrow Payments in the United States. The oral agreement also purportedly provided that upon release of the funds from escrow, they would be returned to Debtor.

[382]*382In February 2005, the State of Ohio recovered a judgment against Grand Tobacco for failure to make MSA payments due to Ohio for the years 2001 through 2003. The judgment is in the amount of $1,253,961.61.

On April 7, 2010, in accordance with the MSA, Grand Tobacco opened an escrow account for the benefit of the State of Missouri at Eastern. Amended Complaint, Exhibit A, Escrow Agreement (“Escrow Agreement”), [dkt item 15] The Escrow Agreement was signed by Eastern on April 7, 2010, and signed by Grand Tobacco on April 14, 2010, and provides in pertinent part:

• “This Escrow Agreement is made and entered into this 7th day of April, 2010, by Grand Tobacco, Ltd. (the ‘Company’) and Eastern (the ‘Escrow Agent’).” Id. at 1.
• “No persons or entities other than the Beneficiary States4 that have enacted NPM Statutes and Releasing Parties5 are intended beneficiaries of this Escrow Agreement, and only the Beneficiary States, the Releasing Parties, the Company and the Escrow Agent shall be entitled to enforce the terms of this Escrow Agreement.” Id. at 11.
• The Escrow Agreement is “governed by the laws of the state where the Escrow Agent is incorporated,” here, the Commonwealth of Massachusetts. Id. at 1,12.
• Once the funds are released from escrow, the amount released reverts back to “the Company,” which is defined as “Grand Tobacco, Ltd.” Id. at 1, 6.
• If a beneficiary state does not release the funds early, then they remain in escrow for 25 years. Id. at 6-7.
• Grand Tobacco and Eastern are the only signatories to the Escrow Agreement, in which Debtor is not listed as a party. Id. at 1,15.

The Escrow Agreement does, however, provide that Debtor is to receive a copy of any notice required under the Escrow Agreement.6

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Bluebook (online)
462 B.R. 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-tobacco-partners-ltd-v-ohio-in-re-international-tobacco-nyeb-2011.