Shan v. Abitibibowater Inc. (In re Abitibibowater Inc.)

490 B.R. 170, 2013 WL 1497236
CourtDistrict Court, D. Delaware
DecidedApril 9, 2013
DocketNo. 09-11296 (KJC); Civil Action No. 11-cv-00005-LPS
StatusPublished

This text of 490 B.R. 170 (Shan v. Abitibibowater Inc. (In re Abitibibowater Inc.)) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shan v. Abitibibowater Inc. (In re Abitibibowater Inc.), 490 B.R. 170, 2013 WL 1497236 (D. Del. 2013).

Opinion

MEMORANDUM ORDER

LEONARD P. STARK, District Judge.

At Wilmington this 9th day of April, 2013, having reviewed the motion to dismiss (the “Motion”) (D.I. 3) of Abitibibo-water Inc. and its affiliated reorganized debtors (collectively, the “Company” or “Appellees”) regarding the appeal (the “Appeal”) filed by Peter I. Shah, a former shareholder of Abitibibowater Inc. (“Shah” or “Appellant”), and the papers filed in connection therewith;

IT IS ORDERED that Appellees’ Motion is GRANTED, for the reasons discussed below:

I. BACKGROUND1 AND PARTIES’ CONTENTIONS

1. By its Motion, the Company contends that Shah’s Appeal (D.I. 1) should be dismissed as equitably moot, or, in the alternative, for failure to prosecute the Appeal as required by Federal Rule of Bankruptcy Procedure 8006. (See D.I. 4; D.I. 7)

2. The Company points out that the Second Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (As Amended), dated November 23, 2010 (the “Plan”), was confirmed on November 23, 2010 by the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”), and the order confirming the Plan (the “Confirmation Order”) was not stayed. According to [172]*172Appellees, on December 9, 2010 (the “Effective Date”), the Company consummated the Plan as well as the plan of reorganization that had been approved on September 23, 2010 in the Company’s parallel bankruptcy proceedings in Canada (the “CCAA Plan,” and, together with the Plan, the “Plans”). Thereafter, the Company emerged from bankruptcy protection. In addition, the Company: closed on approximately $1.5 billion in exit financing arrangements to fund its obligations under the Plans and its post-emergence operations; used $1.2 billion of such exit financing to repay its prepetition secured debt and various administrative and priority claims; engaged in various internal corporate restructuring transactions;2 issued roughly 97 million shares of new common stock; distributed approximately 74 million shares of its new stock to unsecured creditors in accordance with the Plan; and extinguished the existing equity interests.

3. Appellees submit that these actions — developed in accordance with the Company’s unified reorganization strategy for implementation in both the U.S. and Canadian bankruptcy proceedings and in accordance with its approved interdependent Plans — would be virtually impossible to unravel.

4. Appellees also contend that Shah failed to prosecute his Appeal by neglecting to timely designate a record or file a statement of issues presented, as required by Federal Rule of Bankruptcy Procedure 8006. (See D.I. 4 at 7, 15-16; see also D.I. 8)

5. Appellant asks the Court to deny the Motion. Ultimately, Shah asks the Court to modify the Plan to grant former shareholders five percent of Abitibibowa-ter’s new common stock on account of their cancelled equity interests. (See D.I. 1 at 22; D.I. 6)

II. DISCUSSION

6. “The doctrine of equitable mootness provides that an appeal should be dismissed as moot when, even though effective relief could conceivably be fashioned, implementation of that relief would be inequitable.” SemCrude, L.P. v. Manchester Securities Corp. (“SemCrude”), 456 Fed.Appx. 167, 169 (3d Cir.2012) (internal quotation marks omitted); see also In re Continental Airlines (“Continental II”), 203 F.3d 203, 209 (3d Cir.2000). The determination of whether an appeal is equitably moot requires a “discretionary balancing of equitable and prudential factors.” In re Continental Airlines (“Continental I”), 91 F.3d 553, 560 (3d Cir.1996) (en banc). Specifically, the Court of Appeals for the Third Circuit has recognized five factors that courts should consider in evaluating whether an appeal should be dismissed under the doctrine of equitable mootness:

(1) whether the reorganized plan has been substantially consummated; (2) whether a stay has been obtained; (3) whether the relief requested would affect the rights of parties not before the Court; (4) whether the relief requested would affect the success of the plan; and (5) the public policy of affording finality of bankruptcy judgments.

Id.

7. Applying these factors here, the Court concludes that Shah’s appeal is equitably moot. As an initial matter, the Plan has been substantially consummated. The Bankruptcy Code defines “substantial consummation” as the:

[173]*173(A) transfer of all or substantially all of the property proposed by the plan to be transferred; (B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially all of the property dealt with by the plan; and (C) commencement of distribution under the plan.

11 U.S.C. § 1101(2). Here, the Confirmation Order provided that the Plan would be substantially consummated on the Effective Date, and, as detailed above, implementation of the interdependent Plans in the U.S. and Canada has involved numerous complex transactions. See Continental I, 91 F.3d at 560-61 (stating substantial consummation is “foremost consideration ... especially ... where the reorganization involves intricate transactions”).

8. Next, “[b]eeause of the nature of bankruptcy confirmations ... it is obligatory upon appellant ... to pursue with diligence all available remedies to obtain a stay of execution.” Nordhoff Invs., Inc. v. Zenith Elecs. Corp., 258 F.3d 180, 186-87 (3d Cir.2001) (internal quotation marks omitted). Here, however, Shah did not obtain a stay of the Confirmation Order. “The existence or absence of a stay is a critical factor in determining whether to dismiss an appeal under the doctrine of equitable mootness.” Kuntz v. Saul, Ewing, Remick & Saul (In re Grand Union Co.), 200 B.R. 101, 105 (D.Del.1996).

9. Third, the Court is persuaded that Shah’s requested relief would impact numerous third parties not before the Court, including the unsecured creditors of Abiti-bibowater. (See D.I. 4; D.I. 7) Equitable mootness “protects the interests of non-adverse third parties who are not before the reviewing court but who have acted in reliance upon the plan as implemented.” Continental I, 91 F.3d at 562 (internal quotation marks omitted). The Court agrees with Appellees that entertaining Shah’s request for common stock could prejudice already impaired, unsecured creditors (who are estimated to recover less than one percent on account of their claims) and could violate the Bankruptcy Code’s absolute priority rule.3

10. Moreover, dismissal under the equitable mootness doctrine is warranted “if the relief requested ...

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490 B.R. 170, 2013 WL 1497236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shan-v-abitibibowater-inc-in-re-abitibibowater-inc-ded-2013.