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Pirinate Consulting Group, LLC, As Litigation Trustee of the NP Creditor

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Pirinate Consulting Group, LLC, As Litigation Trustee of the NP Creditor IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) NEWPAGE CORPORATION, et al., ) Case No. 11‐12804(KG) ) Reorganized Debtors. ) PIRINATE CONSULTING GROUP, LLC, ) AS LITIGATION TRUSTEE OF THE NP ) CREDITOR LITIGATION TRUST, ) ) Adv. Pro. No. 13‐52429 Plaintiff, ) ) v. ) ) C. R. MEYER & SONS CO., ) ) Defendant. ) Re: D.I. 43, 48 OPINION INTRODUCTION On September 7, 2011 (the “Petition Date”), NewPage Corporation (“NewPage”) and its affiliates (collectively, the “Debtors”) filed petitions for relief under Chapter 11 of the Bankruptcy Code. On October 29, 2013, PIRINATE Consulting Group, LLC, the Litigation Trustee of the NP Creditor Litigation Trust (the “Trustee”)1 brought this 1 The Trustee was appointed as trustee of the Liquidation Trust pursuant to section 1.2.30 and Article V of the Plan and paragraphs 39‐41 of the Confirmation Order, and as governed by the Litigation Trust Agreement attached as Schedule 1.2.95 to the Plan. Plan Supplement Exhibits. D.I. 2829. Pursuant to the Plan and the Confirmation Order, on the effective date of December 21, 2012, the Trustee was appointed to, among other things, evaluate, commence, prosecute, litigate, and settle Committee Litigation claims (as defined in the Plan), including this adversary proceeding. Plan, D.I. 2904. adversary proceeding against C.R. Meyer & Sons Co. (“CRM”) alleging that payments made to CRM totaling $2,302,634.21 (the “Transfers”) are preferential and should be avoided (the “Avoidance Action”). In response to the Complaint, CRM filed an answer denying the allegations and asserting several affirmative defenses, including, among others, that some or all of the payments do not qualify as preferential. See CRM’s Answer. D.I. 13. Pending before the Court is CRM’s motion for summary judgment (the “Motion”) pursuant to Federal Rule of Civil Procedure 56, made applicable to this adversary proceeding by Bankruptcy Rule 7056, seeking dismissal of the Trustee’s preference action. CRM’s Motion. D.I. 43. In response, the Trustee filed a cross motion for summary judgment seeking denial of the Motion and summary judgment in the Trustee’s favor (the “Cross‐Motion”). Trustee’s Cross‐Motion. D.I. 48. The issues presented by the Motion and the Cross‐Motion are these: (1) were the Transfers made pursuant to a single unified agreement or separate agreements under applicable state law; and (2) were any of the agreements assumed under the Plan such that CRM has shown, under the Kiwi Defense discussed below, that it did not receive more than it would have received in a Chapter 7 case? For the reasons stated herein, the Court will grant partial summary judgment in favor of the Trustee as to the divisibility of the agreements and partial summary judgment in favor of CRM as to the assumption of the Master Agreement. 2 JURISDICTION The Court has subject matter jurisdiction over this controversy under 28 U.S.C. §§ 1334 and 157(a). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), and (F). FACTS The Debtors and CRM have had a business relationship for over twenty years. Declaration of Bradley S. Riutta, dated August 31, 2016 (“Riutta Declaration”) ¶ 3. D.I. 43‐3. CRM, a Wisconsin corporation, provides general contracting services for large commercial projects, including construction management and consulting. Stipulated Facts ¶ 1. D.I. 38. NewPage, a Delaware corporation, was engaged in the operation of paper mills in various locations throughout the United States. Id. CRM handled all of the maintenance and construction needs at the Debtors’ plants in Escanaba, Michigan (the “Escanaba Facility”) and Duluth, Minnesota (the “Duluth Facility”). Riutta Declaration ¶ 4. Almost two years before the Petition Date, in October 2009, the parties entered into a Master Construction Agreement to provide the terms and conditions of the work CRM would provide for NewPage (the “Master Agreement”). Riutta Declaration ¶ 12‐13. CRM employees at the Escanaba and Duluth Facilities worked at the direction of NewPage employees and their work was later coded against a corresponding purchase order (“Purchase Order”) and invoiced to NewPage on a weekly basis. Riutta Declaration ¶ 5. To coordinate such work, CRM supervisors attended maintenance planning 3 meetings with NewPage employees where they reviewed previously issued repair requests. Id. At the Escanaba Facility, CRM maintained its own equipment needed for the maintenance work. Riutta Declaration ¶ 6. CRM also routinely used NewPage’s equipment, including a backhoe, optical equipment, and specialty rigging equipment. Id. At the Escanaba and Duluth Facilities, NewPage provided CRM with offices, storage space for their equipment, and mill‐owned pagers—before cell phones—to allow NewPage to immediately contact CRM supervisors in case of an emergency and to facilitate day‐to‐day operations. Riutta Declaration ¶ 7. The NewPage Bankruptcy Case On September 7, 2011, the Debtors filed petitions for relief under Chapter 11 of the Bankruptcy Code. A little over a year later, on December 14, 2012, the Court confirmed the Debtors’ Modified Fourth Amended Joint Chapter 11 Plan (the “Plan”) and entered findings of fact and conclusions of law regarding the Plan and a Confirmation Order. D.I. 2904, 2944, 2945. On December 21, 2012, all conditions to the effectiveness of the Plan had been satisfied or waived, and the Plan was substantially consummated. Stipulated Facts ¶ 3. The Plan included a provision for the treatment of executory contracts. Article VIII of the Plan provided that the Debtors assumed any executory contract that had not expired by its own terms on, or prior to, the Confirmation Date and was not otherwise addressed during the pendency of the Chapter 11 cases or listed on Plan Schedules 8.1(A)‐ 4 (E) (the “Catchall Provision”). Stipulated Facts ¶ 5. “Executory Contract” is a defined term under the Plan and means “a contract or unexpired lease to which one or more of the Debtors is a party and which is subject to assumption . under Section 365 of the Bankruptcy Code at the election of the Debtors.” Plan Art. I.2.62. The Master Agreement is not listed on Schedules 8.1(A)‐(E). Stipulated Facts ¶ 7. Post‐petition, CRM’s day‐to‐day operations continued as usual at the Escanaba Facility. Riutta Declaration ¶ 15. Indeed, CRM fulfilled and invoiced several Purchase Orders, which had been placed pre‐petition. Id. CRM completed $548,087.67 of work pursuant to Purchase Orders outstanding when the Plan was confirmed and NewPage paid for these services after confirmation. Riutta Declaration ¶ 19. The Avoidance Action Before filing the Motion and the Cross‐Motion, the parties conducted limited discovery and on August 20, 2015, they engaged in a mediation session. Stipulated Facts ¶ 11. As a result of the mediation, the parties entered into a Stipulation and Settlement Agreement (the “Stipulation”) agreeing, among other things, to a briefing schedule on the issue of whether the Debtors assumed the Master Agreement and the purchase orders issued thereunder through the Confirmation Order thus providing CRM an absolute defense to the Avoidance Action. See Stipulation ¶ 3. D.I. 37. On July 5, 2016, the Court entered an Order approving the Stipulation and the parties filed Stipulated Facts. 5 The Master Agreement On October 7, 2009, NewPage, as Owner, and CRM, as Contractor, entered into the Master Agreement, pursuant to which CRM would: provide all engineering, design and other similar services; labor; materials; tools; supplies; equipment; machinery; administration; transportation; supervision and all other services and items necessary for the proper execution and completion of the work described in [NewPage]’s purchase orders to be issued from time to time under this Agreement (the “Work”) at [NewPage]’s mills located at Rumford, Maine; Escanaba, Michigan; Duluth, Minnesota; Wisconsin Rapids, Wisconsin; Biron, Wisconsin; Whiting, Wisconsin; Stevens Point, Wisconsin and Wickliffe, Kentucky (the “Property”). Stipulated Facts ¶ 6.2 Section 1 of the Master Agreement further details the role of the Master Agreement and defines key terms. Under the Master Agreement, the parties were not bound to award or accept all Work from each other: “nothing in this Agreement or in any Purchase Order shall be interpreted as requiring either that Owner award any particular work to Contractor or that Contractor accept any such award except as expressly stated in the Purchase Orders.” Master Agreement § 1. Further, the Master Agreement refers to each Purchase Order issued by NewPage as a separate contract: Each such Purchase Order . together with the . Agreement . shall constitute separate contracts between the Contractor and Owner. Each such separate contract is hereinafter referred to as the “Contract.” This Agreement shall serve as a master agreement governing all of the Contracts between Contractor and Owner. 2 The term “Work” is defined in the Master Agreement and the Court will capitalize the word. 6 Master Agreement § 1. The Purchase Orders either reference the Master Agreement directly or the Master Agreement through another Purchase Order stating, “This purchase order and all work performed hereunder shall be subject and controlled by the latest Master Construction Agreement on file.” Riutta Declaration ¶ 11. In their course of dealing, the Purchase Orders served to document Work to be performed by CRM and to facilitate the payment of invoices. Riutta Declaration ¶ 9. The Purchase Orders triggered payment for Work. Id. at ¶ 5. At times, the Purchase Orders were created after CRM employees began Work and, occasionally, after CRM employees completed work. Riutta Declaration ¶ 8. If CRM employees completed work without a Purchase Order, CRM needed to follow up with the NewPage accounting department to create the Purchase Order so that CRM could issue an invoice and get paid for the Work. Riutta Declaration ¶ 10. In the event that NewPage wished to have CRM perform Work “separate and distinct from Work already covered by an existing Purchase Order,” the Master Agreement directed NewPage to “issue a new Purchase Order rather than change order for such new Work.
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