Pereira v. WWRD US, LLC (In re Waterford Wedgwood USA, Inc.)

500 B.R. 371, 2013 WL 5878481, 2013 Bankr. LEXIS 4555, 58 Bankr. Ct. Dec. (CRR) 194
CourtUnited States Bankruptcy Court, S.D. New York
DecidedOctober 31, 2013
DocketCase No. 09-12512 (SHL) (Jointly Administered); Adv. No. 09-01910 (SHL)
StatusPublished
Cited by9 cases

This text of 500 B.R. 371 (Pereira v. WWRD US, LLC (In re Waterford Wedgwood USA, 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
Pereira v. WWRD US, LLC (In re Waterford Wedgwood USA, Inc.), 500 B.R. 371, 2013 WL 5878481, 2013 Bankr. LEXIS 4555, 58 Bankr. Ct. Dec. (CRR) 194 (N.Y. 2013).

Opinion

Chapter 7

MEMORANDUM OF DECISION

SEAN H. LANE, UNITED STATES BANKRUPTCY JUDGE

Before the Court is a motion (the “Motion”) by Defendant WWRD US, LLC (“WWRD”) seeking summary judgment on the fraudulent conveyance claim asserted against WWRD under 11 U.S.C. § 548 by John S. Pereira (the “Trustee”), as Chapter 7 Trustee for Waterford Wedgwood USA Inc., Royal Doulton USA, Inc., Kil-barry Inc., Waterford Wedgwood Partners, Waterford Wedgwood, Inc., Waterford Wedgwood Holdings, Inc., WW Inc., Wedgwood USA, Inc., Waterford Wedgwood Finance, Inc., and Waterford Crystal Inc. (together, the “Plaintiffs”).

At the heart of the fraudulent conveyance claim is a transaction in which WWRD and certain non-U.S. affiliates (together “KPS”)1 purchased substantially all of the assets of Waterford Wedgwood PLC, a holding company and parent of the Plaintiffs (“PLC”). The Trustee contends that the simultaneous sale of the Plaintiffs’ American assets to KPS was a fraudulent conveyance because the value of Plaintiffs’ assets was more than the tax value ascribed to those assets in the sale documents. WWRD disagrees, contending that the sale of the American assets, together with the sale of the parent’s assets, was part of an integrated transaction with a fair purchase price that was the result of a robust bidding process. WWRD contends that the integrated nature of these two sales is further reflected by the use of the sale proceeds to pay down a single secured creditor to which Plaintiffs and their parent were jointly liable. For the reasons set forth below, the Court agrees with WWRD that these sales constituted an integrated transaction and that the Plaintiffs received reasonably equivalent value for their assets. Accordingly, the Court grants WWRD’s summary judgment motion and dismisses the Trustee’s claim.

BACKGROUND

The relevant facts necessary for resolution of the Motion are undisputed. The Plaintiffs are all indirect subsidiaries of PLC. Compl. ¶ 16 (ECF No. 25); Answer ¶ 16 (ECF No. 27). Based in Ireland, PLC was the holding company for the worldwide manufacturing and distribution of crystal, china, and other products under brands including Waterford Crystal, Wedgwood and Royal Doulton.2 Id. By 2008, PLC was on the verge of collapse after suffering significant losses of revenue and income. Compl. ¶ 21; WWRD Statement of Undisputed Facts ¶ 2 (“WWRD Stmnt”) (ECF No. 62). PLC sought potential investors and buyers for its business. WWRD Stmnt. ¶ 2; Trustee’s [375]*375Counterstatement of Facts ¶ 7 (“Counter-statement”) (ECF No. 68).

A. The Marketing Process

After a failed attempt in 2008 to raise capital through a rights offering, PLC retained Lazard Fréres & Co. (“Lazard”) to solicit potential investors and buyers for PLC.3 See WWRD Stmnt. ¶2 (ECF No. 62); Counterstatement ¶ 7 (ECF No. 68). Lazard initially contacted 182 potential investors. Deloitte “Sale of Business” Presentation, dated Jan. 29, 2009, (“Presentation”) at 3 (Leon Decl. Ex. D., ECF No. 65-5). Two of these, KPS and Golden Gate Capital, progressed past the preliminary interest stage. Id. Golden Gate Capital indicated it would not be willing to invest without a bankruptcy process, leaving only KPS. Id.

In January 2009, PLC commenced insolvency proceedings in Ireland and the United Kingdom. Compl. ¶25 (ECF No. 25). At that time, Deloitte was appointed as administrator in the United Kingdom and receiver in Ireland, serving on behalf of the senior secured creditors. Presentation at 3 (ECF No. 65-5); Notice of Appointment of Administrator ¶ 1 (Joint Letter regarding Foreign Insolvency Proceedings, dated Jan. 23, 2013, Ex. A, ECF No. 77). Deloitte followed up on Lazard’s efforts and identified “alternative bidders ... to ensure that the market ha[d] been thoroughly tested and to confirm that no better offers [were] available [than] that offered by KPS.” Presentation at 3 (ECF No. 65-5). Deloitte obtained 78 expressions of interest in the whole or part of the business. Id. at 5. Of these, Deloitte identified eight “serious” potential bidders for the whole business, and eventually narrowed this to three parties with the greatest potential to complete a transaction. Id. at 5-7. Simultaneously, JPM Caze-nove was appointed as part of the M & A team to utilize its own network and identify other potential buyers. Id. at 3, 5-7. As of January 2009, JPM Cazenove had contacted 55 parties identified as having potential interest. Id.

Deloitte considered the KPS bid as one for the “whole business” and did not receive any serious offers for individual divisions of the business. See Presentation at 10 (ECF No. 65-5); see also CBIZ Report at 32 (ECF No. 71-5) (“There were no other substantial offers that would have separately added up to a greater value than the KPS deal.”). Indeed, Deloitte had concluded that “[a] transaction at [a] divisional level [would have] required separation issues to be addressed, particularly in relation to USA sales and distribution.” Presentation at 10 (ECF No. 65-5).

At the end of the marketing process, Deloitte chose KPS as the highest and best bidder, accepted KPS’s offer to pur[376]*376chase the global business for €107.5 million, and entered into a sale with KPS (the “KPS Transaction”). See Share and Business Sale Agreement § 3.1.2 (“Main Agreement”) (Leon Decl. Ex. A, ECF No. 65-1); LePatner Decl. ¶ 3 (ECF No. 64).

B. The Sale

The KPS Transaction was completed through two agreements, the Share and Business Sale Agreement (the “Main Transaction Agreement”) and the Asset Purchase Agreement (the “U.S. Sale Agreement” ).4 WWRD Stmnt. ¶¶ 13-19 (ECF No. 62). The U.S. Sale Agreement accomplished the sale of Waterford Wedgwood’s U.S. assets. WWRD Stmnt. ¶ 14; Counterstatement at 3 (ECF No. 68). The Plaintiffs were all sellers under the U.S. Sale Agreement. See Asset Purchase Agreement (“U.S. Agreement”) (Leon Decl. Ex. C., ECF No. 65-4). The Main Transaction Agreement effected the sale of Waterford Wedgwood’s other global assets, including the Waterford, Wedgwood, and Royal Doulton assets in the United Kingdom and Canada, intellectual property in Ireland, and shares of certain Waterford Wedgwood subsidiaries including in Japan, Indonesia, Hong Kong, Taiwan, Singapore and Australia. LePatner Decl. ¶ 3 (ECF No. 64).

The U.S. Sale Agreement included, as an express condition to closing, that the Main Transaction must be consummated “substantially contemporaneously with the closing.” U.S. Agreement § 7.01(a) ( ECF No. 65-4). The .U.S. Sale Agreement would not impose any obligations on either buyer or sellers unless the Main Transaction closed on or prior to the closing date of the U.S. Sale Agreement. See id. at §§ 7.01(a), 7.02(a)). The Main Transaction was similarly conditioned on “the substantially contemporaneous completion of the transactions contemplated under the U.S. Sale Agreement.... ” Main Agreement § 5.1.5 (ECF No. 65-1).

KPS closed both transactions on March 26, 2009, thereby acquiring the Plaintiffs’ U.S. assets and Waterford Wedgwood’s global assets in nine other countries. Le-Patner Decl. ¶¶ 3-4 (ECF No. 64).

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500 B.R. 371, 2013 WL 5878481, 2013 Bankr. LEXIS 4555, 58 Bankr. Ct. Dec. (CRR) 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pereira-v-wwrd-us-llc-in-re-waterford-wedgwood-usa-inc-nysb-2013.