Reynolds v. Behrman Capital IV L.P.

592 B.R. 892
CourtDistrict Court, N.D. Alabama
DecidedSeptember 6, 2018
Docket2:18-cv-00514-ACA
StatusPublished

This text of 592 B.R. 892 (Reynolds v. Behrman Capital IV L.P.) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reynolds v. Behrman Capital IV L.P., 592 B.R. 892 (N.D. Ala. 2018).

Opinion

ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE

This matter comes before the court on Plaintiff's motion to remand this case under 28 U.S.C. § 1447 or, in the alternative, to abstain or refer the case to the bankruptcy court. (Doc. 26). For the reasons set out below, the court GRANTS IN PART and DENIES IN PART the motion.

The court concludes that, under 28 U.S.C. § 1334(b), it has original jurisdiction over every claim in the complaint because each claim either arises under the Bankruptcy Code, or arises in or relates to *896a case under the Bankruptcy Code. Having determined that the court has original jurisdiction over the case, the court next sua sponte SEVERS Counts One through Seven, Counts Eight through Ten, and Counts Eleven through Thirteen, because they are misjoined.

The court finds that neither mandatory nor permissive abstention preclude it from considering Counts One through Seven or Eleven through Thirteen, but mandatory abstention requires it to abstain from considering Counts Eight through Ten. As a result, the court DENIES the motion to remand Counts One through Seven and Eleven through Thirteen, but GRANTS the motion to remand Counts Eight through Ten.

Finally, the court considers whether to refer Counts One through Seven and Eleven through Thirteen to the bankruptcy court. Because consideration of those counts may involve a determination of non-bankruptcy federal law, the court DENIES the request to refer those counts to the bankruptcy court.

I. BACKGROUND

In March 2018, Plaintiff Thomas Reynolds, as Chapter 7 trustee of the estates of Atherotech Inc. and Atherotech Holdings, filed this lawsuit in the Circuit Court of Jefferson County, Alabama, naming thirty-two defendants. (See Doc. 1-1 at 9-40). For ease of reference, the court divides the defendants into three groups: the "Investors," "Behrman Management," and "Mintz Levin."

Atherotech Holdings was the sole shareholder of Atherotech Inc. (Id. at 16). In turn, the Investors are all companies or board members of companies that were shareholders of Atherotech Holdings: Behrman Capital IV, LP; Behrman Brothers IV, LLC; MidCap Financial Investment, LP; AXA Primary Fund America IV, LP; AXA Private Capital I, LP; Core Americas/Global Holdings, LP; CS Strategic Partners IV Investments, LP; Global Fund Partners II, LP; MetLife Insurance Company of Connecticut; Partners Group Direct Investments 2006, LP; Partners Group Global Opportunities Subholding Limited; PE Holding USD Gmbh; Portfolio Advisors Secondary Fund, LP; Stepstone Private Equity Partners III Cayman Holdings, LP; StepStone Private Equity Partners III LP; the Governor an Company of the Bank of Ireland; Varma Mutual Pension Insurance Company; ASF III Bluenote Limited; the Douglas E. Behrman Trust; the Kimberly E. Behrman Trust; Amanda Zeitlin; Greg Behrman; Gregory Chiate; Gary Dieber; Mark Grimes; Simon Longergan; William Matthes; Michael Rapport; Padyut Shah; and Jeffrey Wu. (Id. at 16-18).

The two remaining sets of defendants are made up of a single defendant each. Behrman Management is Behrman Brothers Management Corporation, which provided financial and operational advice to Atherotech Inc. (Doc. 1-1 at 19). And Mintz Levin is Mintz, Levin, Cohn, Ferris, Govsky, and Popeo, PC., a law firm that represented Atherotech Inc. (Id. at 27).

The complaint alleges that Atherotech Inc. operated a laboratory that conducted testing on blood cholesterol levels. (Id. at 20). Atherotech Inc. would pay physicians who ordered such testing a processing and handling fee, also known as a P & H fee. (Id. ). Beginning in 2011, Behrman Management advised Atherotech Inc. to grow by increasing direct sales to physicians, a plan that Behrman Management knew would require Atherotech Inc. to pay P & H fees. (Id. at 21).

Although Medicare rules and regulations prohibit the payment of P & H fees, Atherotech Inc. would nevertheless submit claims that included the payment of those fees to Medicare and other federal healthcare *897programs. (Id. at 20-21). Mintz Levin advised Atherotech Inc. to report its competitors' payments of P & H fees to the Department of Justice and, although Mintz Levin "knew or should have known that Atherotech's practice of paying P & H fees put Atherotech at risk of violating the False Claims Act," it failed to advise Atherotech Inc. to stop making those payments. (Id. at 27-29).

In 2012, the Department of Justice began to investigate Atherotech Inc.'s payments of P & H fees for violation of the federal False Claims Act, 31 U.S.C. §§ 3729 - 3730, and the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b. (Id. at 21, 28). In 2013, while the Department of Justice investigation was ongoing, Atherotech Inc.-already insolvent in light of contingent liabilities for violations of the False Claims Act-executed a dividend recapitalization under which it paid Atherotech Holdings' shareholders millions of dollars. (Id. at 23-24, 26). But until June 2014, Behrman Management continued to advise Atherotech Inc. to continue paying physicians P & H fees. (Id. at 22). By July 2014, Atherotech could no longer pay P & H fees and its revenues decreased significantly. (Id. at 29).

In March 2016, Atherotech Inc. and Atherotech Holdings filed for bankruptcy. (Id. at 16-17). Among other creditors, Mintz Levin filed a claim against Atherotech Inc. (Id. at 29). The bankruptcy court appointed Mr. Reynolds as the Chapter 7 trustee for Atherotech Inc. and Atherotech Holdings. (Id. at 16).

Mr. Reynolds filed this lawsuit, asserting the following sets of claims. The first set (Counts One through Seven) asserts against various combinations of the Investors claims of intentionally fraudulent transfer, constructively fraudulent transfer, and recovery of fraudulent transfer, citing the Bankruptcy Code and Alabama law. (Doc. 1-1 at 30-34). Specifically, Counts One, Two, and Three allege intentionally fraudulent transfer and constructively fraudulent transfer under 11 U.S.C. § 544 and Alabama law. (Id. at 30-32). Counts Four, Five, Six, and Seven seek recovery of fraudulent transfer under 11 U.S.C.

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Bluebook (online)
592 B.R. 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynolds-v-behrman-capital-iv-lp-alnd-2018.