Unsecured Trade Creditors Committee

Most oil and gas-producing states have oil and gas mineral lien statutes (similar to what many lawyers know as mechanic’s and materialman’s lien statutes) that grant automatically arising liens in favor of vendors that provide services in connection with oil and gas well operations.

While the Bankruptcy Code provides for payment of the fees and expenses of an official creditors’ committee’s court-approved professionals[1] and for reimbursement of the expenses (although not the professional fees) incurred by a member of an official creditors’ committee incurred in performing committee duties,[2] it permits an unsecured creditor to seek reimbursement of “actual, necessary expenses,” plus “reasonable compensation for professional services” only where the creditor has made a “substantial contribution” in the chapter 11 case.[3]

You have probably given the preference defense speech countless times to unsecured trade creditor clients that 90-day payments are likely preferences, but may be covered by one of the typical § 547(c) defenses: subsequent provision of new value, ordinary course of business and contemporaneous exchange for new value. The standard defenses are so prevalent, it is easy to virtually ignore the § 546 limitations on avoiding powers (other than the two-year statute of limitations).

TransVantage Solutions Inc., a New Jersey-based corporation founded in 1964, provided freight audit and payment services to its customers. Its core business involved three parties and actions: A shipper or common carrier issued an invoice to a customer; the customer advanced money to TransVantage; and TransVantage reviewed the freight charges for accuracy and, when everything was in order, paid the carrier or shipper with the funds that had been entrusted to it.

When a business is in financial distress, the breaking point sometimes comes with little or no warning. An event such as a termination of funding, the falling through of a crucial transaction, or the loss of a key customer can be difficult to predict, and may result in a distressed business being forced to cease operations abruptly, without providing its workers with the advance notice required under the Federal WARN Act.[1]

In In re Emoral, Inc.,[1] the Third Circuit held that personal-injury causes of action arising from the alleged wrongful conduct of the debtor corporation, asserted against a third-party non-debtor corporation on a theory of successor liability under state law, were generalized claims constituting property of the bankruptcy estate.

Consider the following situation: A debtor owes you $1 million, and you find out that the debtor has transferred its assets to a third party without receiving reasonably equivalent value and is now unable to pay its debt to you.

Consider the following scenario: A financially struggling consumer borrows cash from a friend and deposits the cash into his bank account. He uses this cash to make a purchase at a retail store and later pays his friend back. Subsequently, he files for bankruptcy.

A Federal Rule of Bankruptcy Procedure 2004 examination is commonly referred to as a “fishing expedition”[1] into a debtor’s financial affairs. Debtors, trustees and creditors routinely use Rule 2004 exams to investigate an examinee’s financial affairs with very little interference by bankruptcy courts or discovery rule limitations.

Editor's Note - The Unsecured Trade Creditor's Committee recently hosted a committee call dealing with these same cases. To listen to the recording of this call, click here.