Unless the plan or confirmation order provided otherwise, a final decree discharged the debtor from all rights and interest of creditors, “including liabilities incurred during reorganization” and “claims or interests not filed or scheduled in the case.” James W. Va.1993) (post-petition conduct causing environmental damage “falls within the necessary costs of preserving the estate and ha[s] been afforded administrative expense priority.”).
Anthony, Smythe & Puryear, Nashville, TN, for Plaintiff Anthony H. The Trustee seeks to avoid and recover the following fraudulent and/or preferential transfers: The Dotson RedemptionIn December 1999 and while the Debtors were alleged to have been insolvent, JRCC paid Dotson, an officer and director of the Debtors, ,463,100 in cash for his equity in JRCC. Lower courts in Virginia have also applied the trust fund doctrine, finding it to be a viable cause of action. The Trustee does not state a cause of action, however, against the defendants who either did not receive or are not holding corporate assets. Dotson's oral modification argument is a defense to the Trustee's breach of contract claim; it requires an evidentiary showing and therefore cannot be grounds for a motion to dismiss. Generally, the parties to a contract may provide the remedy that will be available to them in case of breach, and such remedy is not exclusive unless express language provides for it to be so. For the reasons detailed above, the Court will grant Crawford's motions to dismiss counts 1, 2, 3, 5, 6 and 12 to the extent that the Trustee seeks to recover property that was transferred to Crawford under the Crawford Settlement Agreement as modified by the parties that was assumed by the Debtors pursuant to the Debtors' Reorganization Plan. Coal, Varney or Tellmann hold claims against the Debtors' estate, any such claims will be disallowed. Three groups of defendants have filed such motions: (1) general preference defendants who allegedly were paid within 90 days of bankruptcy, (2) insider defendants who are charged with, among other things, breach of fiduciary duty, deepening insolvency, fraudulent conveyances, civil conspiracy, unlawful distribution of corporate assets, and rescission, and (3) a third distinct preference defendant, Rothschild Inc., which served as financial advisor to the debtors, approved by Court order entered on May 23, 2003. The Committee asserts that the FR Redemption was approximately 835 million.
Before: Mc LAUGHLIN, PARKER, and SOTOMAYOR, Circuit Judges. The case then was transferred to the United States District Court for the Southern District of New York (Kevin T. United States Dep't of the Interior, 880 F.2d 432, 459-61 (D. Cir.1989) (concluding that CERCLA does not cover damages to private property).
Hansen, Heidi Balk, Stroock & Stroock & Lavan LLP, New York, NY, of counsel), for Appellant Goldman, Sachs & Co. By Order dated October 5, 1976, the bankruptcy court converted the case into one for reorganization under Chapter X of the Act. The scheme was put in place to aid the expeditious resolution of environmental claims․ [I]nstituting common law restitution and indemnification actions in state court would bypass this carefully crafted settlement system.”); Ohio v. The Permanent Injunction provided: All creditors of, claimants against and stockholders of the Debtors, and all persons having or claiming interests of any nature whatsoever in the property and assets of the Debtors, wheresoever situated or domiciled, be and they hereby are perpetually restrained and enjoined from pursuing or attempting to pursue, or from commencing any suits or other proceedings at law, in equity or otherwise, against the Debtors and/or the Reorganized Corporation, or their property, or of the property or assets transferred by the Debtors to the Reorganized Corporation, or against any nominee, assignee or grantee of the Debtors or the Reorganized Corporation, or against any person(s), corporation(s) or other entity(ies) claiming by, through or under the Debtors, directly or indirectly on account of or based upon any right, claim or interest which any such creditor, claimant, stockholder or other person may have had in, to or against said Debtors and/or against their property and assets, excepting only such liabilities and claims as such Debtors or said Reorganized Corporation have expressly assumed or agreed to pay pursuant to the Plan herein or the order confirming the Plan. After the Bankruptcy Court issued its decision in this case, the Delaware Chancery Court created a successor trust and appointed Michael de Baecke as Successor Trustee. CERCLA preempts the restitution and contribution claims. Nothing in this opinion precludes a finding that these CERCLA claims actually arose after the date of enactment and after the close of Duplan's bankruptcy proceeding.
(“First Manhattan”), Firmanco Associates (“Firmanco”), Daniel Rosenbloom (together with First Manhattan and Firmanco, the “First Manhattan Appellants”), Panex Industries, Inc. The Bankruptcy Court erred in relying on the definition of “Claim” in the Plan to limit the Discharge in the Final Decree. Ed.2d 751 (1968) (post-petition tort claims are “actual and necessary costs” of administration under the Act); Pension Benefit Guar. We have considered appellants other arguments that the Oil Companies' CERCLA claims were discharged in Duplan's bankruptcy proceeding and find them to be without merit. Section 6972(b)(2)(B), however, specifically provides that neither type of these citizen suits may be brought:if the [EPA], in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment . Esso has implemented and fulfilled the requirements of the ACO in a manner consistent with the NCP. Texaco has implemented and fulfilled the requirements of this order.38.
Duffy, Judge), where the court appointed a reorganization trustee and established July 10, 1979 as the last day to file proofs of claims against the Duplan estate (the “Bar Date”). Rather, CERCLA created a new scheme of liability geared toward cleaning-up contaminated property as quickly as possible.
Goldman, First Manhattan, Gal, and Lazare were among the creditors of Duplan that received shares of Panex Stock. See In re Colony Hill Assoc., 111 F.3d 269, 273 (2d Cir.1997).
Firmanco, a now-dissolved limited partnership with First Manhattan as its General Partner, bought shares of Panex on the open market. The Bankruptcy Court's interpretation of the text of the Plan, the Confirmation Order, and the Final Decree are conclusions of law reviewed de novo. The shareholder-distributees were notified that the distributions to them were subject to recall if the Panex Trust proved insufficient to cover Panex's liabilities. In July 1987, in the absence of any significant claims, the Panex Trust distributed ,850,000 from the Panex Trust to former Panex shareholders on a pro rata basis. The Tutu, Virgin Islands Contamination Litigation In 1987, the Environmental Protection Agency (the “EPA”) found that the property adjacent to the Laga Facility (the “Tutu Site”) was contaminated with, inter alia, oil byproducts and perchloroethylene (“PCE”). The First Manhattan Appellants, the Panex Trust, Gal and Lazare joined in the motion. Appellants filed separate Notices of Appeal from the Bankruptcy Court's Order denying the motion, and the appeals were consolidated before the District Court. In January 1988, the EPA instituted a contamination removal action at the Tutu Site. (Puerto Rico) (collectively, “Esso”) (together with Texaco, the “Oil Companies”), and Laga, among others, were potentially responsible parties (“PRPs”) under CERCLA for the Tutu Site. Judge Duffy referred the motion to the Bankruptcy Court for resolution. The District Court affirmed for substantially the same reasons expressed by the Bankruptcy Court, and stated that it had “considered all of appellants' other arguments for reversal and [did] not find them persuasive.” See In re Duplan Corp., 229 B. When transferred, the property dealt with in the plan “shall be free and clear of all claims and interests of the debtor, creditors, and stockholders, except such claims and interests as may otherwise be provided for in the plan or in the order confirming the plan ․” 11 U. It based this decision on two conclusions: (1) the definition of “Claim” in the Plan limited the scope of the Discharge in the Final Decree to claims arising prior to the filing of the petition, see In re Duplan, 209 B. at 331 (quoting the Plan at B-2); and (2) the Plan specifically excepted from discharge and permanent injunction all Administrative Claims, defined in relevant part as costs and expenses arising in the administration of the estate during the reorganization, see id. Although we reject the Bankruptcy Court's first conclusion, we agree that claims that arose during the reorganization are Administrative Claims specifically excepted from discharge and permanent injunction. Assuming the Oil Companies' CERCLA claims arose on the date of enactment, they arose post-petition during the reorganization and therefore are Administrative Claims not discharged or enjoined by the Final Decree. Esso sought the former and Texaco sought the latter. In February 1992, the EPA entered an Administrative Order of Consent (“ACO”) with Esso and others, under the provisions of RCRA and CERCLA requiring, among other things, that Esso undertake a Remedial Investigation/Feasibility Study (“RI/FS”) for the Tutu Wells Site. In March 1990, pursuant to RCRA and CERCLA, the EPA ordered, inter alia, Texaco and others to institute a monitoring program at the Tutu Wellfield Site. The Bankruptcy Court interpreted the Final Decree as discharging and enjoining only those claims that arose prior to the filing of the petition. (In re Sunarhauserman, Inc.), 126 F.3d 811, 818 (6th Cir.1997) (claim arising post-petition is “entitled to administrative expense status”); United States v. (In re Chateaugay Corp.) (“Chateaugay I”), 944 F.2d 997, 1009-1010 (2d Cir.1991) (“[R]esponse costs for post-petition remedial action [to clean up pre-petition release of hazardous wastes] qualify as administrative expenses.”); In re Virginia Builders, Inc., 153 B. Thus, if the Oil Companies' claims arose during the reorganization, they are not discharged or enjoined by the Final Decree. .(iv) has ․ issued an administrative order under section 106 of [CERLCA] or section 6973 of this title pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasibility Study (RIFS), or proceeding with a remedial action.42 U. Esso has implemented and fulfilled the requirements of the UAO in a manner consistent with the National Contingency Plan (“NCP”).44. Although appellants also asserted that the RCRA and common law claims against them were discharged in bankruptcy, the Bankruptcy Court denied the motion without specifically addressing the RCRA or common law claims. In Penn Central, the release or threatened release of hazardous substances by the debtor occurred before and during the bankruptcy proceeding, but CERCLA was not enacted until after the consummation date. R.), 3 F.3d 200, 201 (7th Cir.1993) ( “[CERCLA] ․ seek[s] to protect public health and the environment by facilitating the cleanup of environmental contamination and imposing costs on the parties responsible for the pollution.”). If the plan included all of the required provisions; was fair, equitable, and feasible; and did not include provisions inconsistent with Chapter X, the judge was required to confirm the plan. Furthermore, the Bankruptcy Court's interpretation of the effect of the Plan's definition of “Claim” on the Discharge is “inconsistent with the provisions of [Chapter X].” 11 U. According to the Bankruptcy Court's analysis of the Plan's effect on the Discharge, the only claims that would have been discharged in the Final Decree were those (1) that arose prior to the filing of the petition, (2) for which a proof of claim was filed before the Bar Date, and (3) that the court ultimately allowed. Nonetheless, the Bankruptcy Court correctly interpreted the Final Decree and Plan to specifically except from discharge and permanent injunction all Administrative Claims. The Virgin Islands District Court has already dismissed the Oil Companies' RCRA claims for this very reason. The District Court affirmed without discussing the non-CERCLA claims. These disputed material facts preclude this Court from determining when the Oil Companies' common law claims arose and therefore, whether they are discharged. The Oil Companies remain free to reassert these claims in any district court that has personal jurisdiction. It did not dismiss the CERCLA claims or the common law claims for strict liability and equitable disgorgement. Chateaugay II arose under the Bankruptcy Code, not the Act.