Walker, Truesdell, Roth & Associates ex rel. Extended Stay Litigation Trust v. Blackstone Group, L.P. (In re Extended Stay, Inc.)

466 B.R. 188
CourtDistrict Court, S.D. New York
DecidedNovember 10, 2011
DocketBankruptcy No. 09-13764 (JMP). Nos. 11 Civ. 5394 (SAS), 11 Civ. 5395 (SAS), 11 Civ. 5396 (SAS), 11 Civ. 5397 (SAS), 11 Civ. 5864 (SAS); Adversary Nos. 11-2398, 11-2256, 11-2255, 11-2254, 11-2259
StatusPublished
Cited by34 cases

This text of 466 B.R. 188 (Walker, Truesdell, Roth & Associates ex rel. Extended Stay Litigation Trust v. Blackstone Group, L.P. (In re Extended Stay, Inc.)) is published on Counsel Stack Legal Research, covering District 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
Walker, Truesdell, Roth & Associates ex rel. Extended Stay Litigation Trust v. Blackstone Group, L.P. (In re Extended Stay, Inc.), 466 B.R. 188 (S.D.N.Y. 2011).

Opinion

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

Plaintiffs, Walker, Truesdell, Roth & Associates and Hobart Truesdell, as Trustees for and on behalf of the Extended Stay Litigation Trust (the “Trust”), and the Trust bring these motions to withdraw the reference, pursuant to section 157(d) of Title 28 of the United States Code, of five adversary actions filed in connection with the bankruptcy of Extended Stay, Inc., and its affiliated entities, from the United States Bankruptcy Court to this Court. Plaintiffs argue that all five cases meet the [194]*194standards for mandatory and permissive withdrawal of the reference. The gravamen of plaintiffs’ argument is that an Article III court must adjudicate these adversary actions under the Supreme Court’s recent decision in Stern v. Marshall.1 Defendants argue that withdrawal of the reference is neither required by the mandatory withdrawal standard nor appropriate under the permissive withdrawal standard. For the reasons set forth below, plaintiffs’ motions to withdraw the reference are denied.

II. BACKGROUND

A. The Extended Stay LBO and Bankruptcy

Extended Stay, Inc. and affiliated entities (the “Debtors” or “Extended Stay”) “owned the leading mid-priced extended-stay hotel business in the U.S., with 684 hotels located in 44 states.”2 On April 12, 2007, Lightstone Holdings LLC and affiliated entities offered to purchase the Debtors in a leveraged buyout (“LBO”) for eight billion dollars, comprised of $7.4 billion of debt, four-hundred million dollars of cash, and two-hundred million dollars of rollover equity.3 Before the LBO, the “Debtors’ business was encumbered by secured debt totaling approximately $3.3 billion and mezzanine debt totaling approximately $1.9 billion.”4 The LBO closed on June 11, 2007.5

A little over two years later, on June 15, 2009, the Debtors filed for chapter 11 bankruptcy protection.6 In July 2010, the bankruptcy court confirmed the Extended Stay Plan of Reorganization (the “Plan”).7 The Confirmation Order created the Trust to bring claims on behalf of the Debtors.8 The bankruptcy court retained jurisdiction over “any matters ... arising in or related to the Chapter 11 Cases of the Plan,”9 including any claims by the Trustee “to recover assets for the benefit of the Debtors’ estates.”10

B. The Five Adversary Actions

Plaintiffs bring five separate actions, for the benefit of the Debtors’ creditors, to recover billions of dollars that defendants allegedly destroyed in Debtors’ value. These claims essentially fall into two categories: (1) “At the LBO’s closing, the pre-sale officers and directors allowed Blackstone to siphon $2.1 billion of value from the debtors”; and (2) “After the LBO, the post-sale buyer’s officers, directors and members allowed the systematic draining of over $100 million through the continuous payment of improper dividends and distributions to post-LBO equity holders and their affiliates.”11

[195]*195First, on June 14, 2011, plaintiffs filed a complaint against the entities that consummated the LBO (the “LBO Complaint.”).12 The defendants in this action include (1) the LBO sellers and their affiliated entities, (2) the LBO buyer and its related entities, and (3) the professionals who assisted with the LBO. The LBO Complaint (1) seeks avoidance and recovery of fraudulent transfers and subsequent transfers made in connection with the LBO under the Bankruptcy Code, (2) seeks disallowance of claims under section 502(d) of the Bankruptcy Code, and (3) alleges causes of action under federal securities laws.13

Second, on the same date, plaintiffs filed another LBO-based Complaint against various entities that continue to receive payments and benefits as a result of the LBO (the “Post-LBO Complaint”).14 The defendants are (1) lenders and entities that received payments on the debt the Debtors incurred in connection with the LBO, and (2) entities affiliated with the LBO buyer that received similar benefits and payments. The Post-LBO Complaint seeks (1) the avoidance and recovery of fraudulent transfers and subsequent transfers made post-LBO, and (2) the disallowance of claims.15

Third, on the same date, plaintiffs filed a Complaint in the Supreme Court of the State of New York, County of New York (the “State Court Complaint”),16 which the Blackstone Defendants17 removed to federal court on July 1, 2011. This action was referred to the bankruptcy court on July 12, 2011.18 Plaintiffs, in a separate motion, seek to remand this action to the Supreme Court of the State of New York. The State Court Complaint asserts state law causes of action for breaches of fiduciary duty, corporate waste, aiding and abetting breaches of fiduciary duty, unjust enrichment and illegal dividends and other distributions. The defendants are (1) former directors, officers or other persons controlling the Debtors immediately prior to the LBO; (2) former directors, officers or other persons controlling the Debtors after the LBO closed; and (3) certain advisors involved in consummating the LBO.

Fourth, on the same date, plaintiffs filed a Complaint in the bankruptcy court that is largely identical to the State Court Complaint (the “Mirror Image Complaint”).19 Plaintiffs filed this Complaint [196]*196to “avoid any risk of a statute of limitations defense were a New York Supreme Court [Justice] to conclude the Plan ... provisions deprive the State of New York of subject matter jurisdiction and then dismiss that action, rather than transferring it to federal court.”20 Plaintiffs will only proceed with either the State Court Complaint or the Mirror Image Complaint, depending on court rulings.21

Fifth, on June 15, 2011, plaintiffs filed a Complaint against various lenders by separate plaintiffs’ counsel due to a potential conflict of interest (the “Conflicts Complaint”).22 Like the post-LBO Complaint, the Conflicts Complaint seeks (1) the avoidance and recovery of fraudulent transfers and subsequent transfers made post-LBO, and (2) the disallowance of claims.

III. APPLICABLE LAW

A. Withdrawal of the Reference

1. Mandatory Withdrawal

Section 157(d) mandates that the district court withdraw a proceeding referred to the bankruptcy court if “resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce.” The Second Circuit Court of Appeals construes this provision “narrowly,” requiring withdrawal of the reference only if “substantial and material consideration of non-Bankruptcy Code federal [law] is necessary for the resolution of the proceeding.” 23

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Cite This Page — Counsel Stack

Bluebook (online)
466 B.R. 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-truesdell-roth-associates-ex-rel-extended-stay-litigation-trust-nysd-2011.