Whyte ex rel. SemGroup Litigation Trust v. Ritchie SG Holdings LLC (In re Semcrude, L.P.)

526 B.R. 556
CourtDistrict Court, D. Delaware
DecidedSeptember 30, 2014
DocketBank. No. 08-11525(BLS); Civ. Nos. 13-1375-SLR, 13-1376-SLR
StatusPublished
Cited by40 cases

This text of 526 B.R. 556 (Whyte ex rel. SemGroup Litigation Trust v. Ritchie SG Holdings LLC (In re Semcrude, L.P.)) 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
Whyte ex rel. SemGroup Litigation Trust v. Ritchie SG Holdings LLC (In re Semcrude, L.P.), 526 B.R. 556 (D. Del. 2014).

Opinion

MEMORANDUM

Sue L. Robinson, United States District Judge

At Wilmington this 30th day of September, 2014, having reviewed the papers filed in connection with the above captioned bankruptcy appeal, I will affirm the decisions of the bankruptcy court for the reasons that follow:

1. Procedural background. These are consolidated appeals arising from the bankruptcy court’s denial of appellant’s claims seeking to avoid two equity distributions totaling more than $55 million that SemGroup, L.P. (“SemGroup”) and its general partner, SemGroup G.P., L.L.C., made to Ritchie SG Holdings, L.L.C., SGLP Holding, Ltd., and SGLP U.S. Holding, L.L.C. (collectively, “Ritchie”) in August 2007 (“the 2007 distribution”) and February 2008 (“the 2008 distribution”). Appellant seeks to avoid the distributions as constructively fraudulent transfers based on two theories: (1) SemGroup was left with unreasonably small capital after both distributions; and (2) SemGroup was insolvent on the date of the 2008 distribution. The bankruptcy court denied the unreasonably small capital claim on summary judgment1 and the insolvency claim after trial.

2. Factual background. The following facts of record are undisputed, as far as I can discern. SemGroup was a “midstream” energy company that provided transportation, storage, and distribution of oil and gas products to oil producers and refiners. It had assets including pipelines, [559]*559gathering systems, processing plants, storage facilities, and terminals. SemGroup was the fifth-largest privately held company in the United States.

3. SemGroup depended on credit facilities for capital. In this regard, more than 100 different lenders formed a syndicate (the “Bank Group”) that provided SemGroup with a line of credit from 2005 through July 2008.2 Bank of America, which led the Bank Group, extended a small portion of the total credit to SemGroup. Each lender was individually responsible for deciding whether to extend credit to SemGroup. SemGroup had actual bank loans and actual lines of credit at all relevant times.

4. In connection with its business, SemGroup traded options on oil-based commodities, using a trading strategy that, while potentially highly profitable, was inconsistent with both its risk management policy3 and Article VII of the Credit Agreement.4 In addition to selling naked options, SemGroup made advances to fund trading losses incurred by Westback Purchasing Company, L.L.C., a company owned by SemGroup’s CEO and his wife, without charging any interest, securing collateral, or executing contracts requiring repayment (hereafter, ‘Westback payments”).

5. Based on its ownership of approximately 25% of the limited partnership interest in SemGroup, Ritchie received $22.9 million in the 2007 distribution and $25.4 million in the 2008 distribution. Between July 2007 and February 2008, however, oil prices were volatile, and SemGroup had to post large margin'deposits on the options it sold, which forced SemGroup to increase its borrowing under the Credit Agreement from about $800 million to over $1.7 billion. In July 2008, the Bank Group declared SemGroup in default of the Credit Agreement, leading SemGroup to file for bankruptcy on July 22, 2008. There is no evidence of record that the Bank Group declared a default because of SemGroup’s options trading or the Westback payments. There are no allegations that SemGroup concealed its activities or engaged in fraud.

6. Standard of review. This court has jurisdiction to hear an appeal from the bankruptcy court pursuant to 28 U.S.C. § 158(a). In undertaking a review of the issues on appeal, the court applies a clearly erroneous standard to the bankruptcy court’s findings of fact and a plenary standard to that court’s legal conclusions. See Am. Flint Glass Workers Union v. Anchor Resolution Corp., 197 F.3d 76, 80 (3d Cir.1999). With mixed questions of law and fact, the court must accept the bankruptcy court’s “finding of historical or narrative facts unless clearly erroneous, but exercise[s] ‘plenary review of the [bankruptcy] court’s choice and interpretation of legal precepts and its application of those precepts to the historical facts.’ ” Mellon Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635/642 (3d Cir.1991) (citing Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981)). The district court’s appellate ■responsibilities are' further informed by the directive of the United States Court of Appeals for the Third Circuit, which effectively reviews on a de novo basis bankruptcy court opinions. In re Hechinger, 298 F.3d 219, 224 (3d Cir.2002); [560]*560In re Telegroup, 281 F.3d 133, 136 (3d Cir.2002).

7. Unreasonably small capital claims. The leading case dealing with such claims is Moody v. Security Pacific Business Credit, Inc., 971 F.2d 1056 (3d Cir.1992). According to the Third Circuit in Moody, “unreasonably small capital denotes a financial condition short of equitable insolvency.” Id. at 1070. The Court recognized that “ ‘capital’ is a term of art” referring generally to ‘ “[accumulated goods, possessions, and assets, used for the production of profits and wealth.’ ” Id. (citation omitted). The Third Circuit went on to reason that,

[vjiewed in this light, an “unreasonably small capital” would refer to the inability to generate sufficient profits to sustain operations. Because an inability to generate enough cash flow to sustain operations must precede an inability to pay obligations as they become due, unreasonably small capital would seem to encompass financial difficulties short of equitable insolvency.

Id.

8. The Court concluded that “the test for unreasonably small capital is reasonable foreseeability. Under this analysis, it was proper for the district court to consider availability of credit in determining whether[, in this case, the debtor,] was left with an unreasonably small capital. The critical question is whether the parties’ projections were reasonable.” Id. at 1073. The “reasonableness” of the projections “must be tested by an objective standard anchored in the company’s actual performance.... However, reliance on historical data alone is not enough. To a degree, parties must also account for difficulties that are likely to arise, including interest rate fluctuations and general economic downturns, and otherwise incorporate some margin for error.” Id. To “strike a proper balance” under the “reasonable foreseeability” test, the Third Circuit directed courts to “take[ ] into account that ‘businesses fail for all sorts of reasons, and that fraudulent [conveyance] laws are not a panacea for all such failures.’ ” Id. (citation omitted).

9. The above reasoning has been subsequently interpreted by various courts.

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526 B.R. 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whyte-ex-rel-semgroup-litigation-trust-v-ritchie-sg-holdings-llc-in-re-ded-2014.