RECENTDevelopments BANKRUPTCY TO TRUSTS quacks like a security, it is a security — that such claims should be subordinated as at least when it comes to claim priority. being equivalent to equity interests in the Under Section 510(b) of the Bankruptcy debtor. Id. at 344-45. Bankruptcy Code, any claim that arises from the “pur- In Linn, the representative of the es- Law chase or sale of a security of the debtor tate of Peter Bennet (the Estate) sought or an affiliate of the debtor” is automati- payment of nearly $10 million in unpaid cally subordinated. The question in Linn “deemed dividends.” In 1930, Bennet’s Energy was whether promised payments wealthy uncle died and the uncle’s will It’s a Security, at Least that were not technically “dividends,” but created a trust of which Bennet was a whose value and frequency were linked to beneficiary. Bennet belonged to two When It Comes to Claim dividends of the debtors, could be treated classes within the trust — one of which Priority as “securities” for purposes of subordina- was to receive 37.5% of income earned tion under Section 510(b). The court, seek- from Bennet’s uncle’s shares in Berry In re Linn Energy L.L.C., 936 F.3d 334 ing to uphold the central policy underlying Holding Company (BHC) (the Income (5 Cir. 2019). Section 510(b) (i.e., “that creditors are en- Beneficiaries); and one of which was to According to the 5th Circuit, if it looks titled to be paid ahead of shareholders in receive 25% of the income earned from like a security, walks like a security and the distribution of assets,” id. at 340), held the shares and, upon the youngest mem- WHEN YOUR CASE While we are known as an accounting firm that is an important resource to many INVOLVES NUMBERS, of the area’s top companies, we are also recognized as a valuable asset to some of the top law firms. We have done this by adding specialized litigation support SEE HOW MUCH including financial damage analysis, discovery assistance, business valuations and WE CAN ADD. commercial litigation to the services we offer. To add even more value to our clients, we also offer expert testimony, class action administration and even forensic accounting. Call today and see first hand what we can offer to you and your clients. bourgeoisbennett.com New Orleans 504.831.4949 | North Shore 985.246.3022 | Houma 985.868.0139 | Thibodaux 985.447.5243 Louisiana Bar Journal December 2019 / January 2020 280 Vol. 67, No. 4 www.lsba.org ber turning 21, was to receive the corpus this point, Bennet was the sole survivor.) that, ultimately, Bennet had the same ben- of the trust (the Principal Beneficiaries). Those payments never occurred. efit expectations as a shareholder in that Despite transfer of the corpus, distribu- As fate would have it, Linn and Berry his payments, being directly tied to the tions to the Income Beneficiaries would both filed for bankruptcy in 2016, shortly companies’ dividends, were dependent continue until their deaths. In 1949, the after Bennet’s death, and the Estate filed on the success of the company and were youngest Principal Beneficiary turned a claim for the missed payments. The potentially limitless. As such, the Estate 21. As a result, Bennet became the owner debtors argued that the deemed dividends should be made to bear the same risk as a of his portion of the shares as a Principal were subordinated under Section 510(b) shareholder and be subordinated. Beneficiary and was entitled to his addi- as being securities. The Estate argued that As far as whether the claim arose from tional 37.5% of the income as an Income the deemed dividends were not securities the purchase or sale of a security, the court Beneficiary. because Bennet could not transfer his in- stated that the claim need only undergo a BHC subsequently underwent two terest in the payments, he did not have any “but for” analysis. Would the claim exist transitions. First, in 1986, BHC underwent voting or shareholder rights and he had but for a purchase or sale of securities? a merger and became Berry Petroleum no right to demand a dividend payment. Id. at 344. The court pointed to both the Company (BPC). As part of that merger In its analysis, the court posed three ques- 1986 merger and the 2013 exchange and and a related dispute with a third party, tions: 1) Is it a claim for “damages”?; 2) stated that but for either of those transac- some of the shares were retired, which Does the claim involve “securities of the tions (both of which qualify as a purchase hampered the Income Beneficiaries. As debtor”?; and 3) Does the claim arise from or sale), the Estate’s claim would not ex- such, the arrangement in the trust was al- a “purchase or sale” having a nexus with ist. Id. Having satisfied all three elements, tered such that, instead of receiving 37.5% those securities? Id. at 341. Neither side the Estate’s claim was subordinated under of the dividends issued on the shares, challenged that the claim was for dam- Section 510(b) as arising out of the pur- the Income Beneficiaries would receive ages. chase or sale of securities of the debtors “deemed dividends” that were payments As to the second question, the court despite that it was not technically a secu- equal to whatever amounts the payments stated that interests would be deemed rity. would have been had the shares not been “securities if they bear hallmarks of in- retired. In other words, the amount of the terests commonly known as securities.” —Cherie D. Nobles deemed dividends was tethered to the Id. at 342 (internal quotes omitted). The and value of the BPC dividends, but were not court emphasized the difference between Michael E. Landis technically dividends. shareholders (who have potentially limit- Members, LSBA Bankruptcy Second, in 2013, BPC entered into less benefits from the company’s success, Law Section a share-for-share exchange with Linn but bear the risk of subordination in the Heller, Draper, Patrick, Horn Energy, and BPC became Berry Petroleum event of failure) and creditors (who have a & Manthey, L.L.C. Company, L.L.C. In the exchange, Linn limited benefit in terms of a set repayment Ste. 2500, 650 Poydras St. agreed to continue to pay the deemed amount, but are paid ahead of sharehold- New Orleans, LA 70130 dividends to the Income Beneficiaries. (At ers in the event of failure). The court held Ronald E. Corkern, Jr. Brian E. Crawford Steven D. Crews Herschel E. Richard Joseph Payne Williams J. Chris Guillet NOW with reduced travel rates. Panel experience in personal injury, insurance, medical malpractice, construction law, commercial litigation, real estate litigation and workers’ compensation. To schedule a mediation with Brian Crawford, please call Faye McMichael at 318-807-9018 or email Faye at [email protected]. For other panelists, please call Kathy Owsley at the Natchitoches location (318-352-2302 ext. 116) or email Kathy at [email protected]. Vol. 67, No. 4 www.lsba.org Louisiana Bar Journal December 2019 / January 2020 281 Vol. 67, No. 4 www.lsba.org had failed to present positive evidence lowing Hill time to conduct further dis- of essential elements of her claim. At the covery. The record is void of any actions Civil Law hearing on the motion, Hill argued that she taken by Hill between the June 13, 2018, and had inadequate time for discovery and re- continuance and the Sept. 26, 2018, hear- Litigation quested additional time to depose Hobby ing. While Hill argued that Hobby Lobby’s Lobby employees. delinquency in responding to discovery Judges Chaisson, Windhorst and supported her position, the court empha- Liljeberg presided over Hill’s appeal. The sized the fact that Hill did not file a motion Lightning Strikes Twice court stated that motions for summary to compel in the 18 months it took Hobby judgment may be made at any time, and Lobby to answer. Finally, Hill never actu- in 5th Circuit, Creating it is within the judge’s discretion either to ally filed for a continuance of the summary Split with the 4th render summary judgment or to allow fur- judgment hearing, instead requesting ad- ther discovery. Further, while a party must ditional time for discovery at the hearing In a pair of cases released on the same be given an opportunity for “adequate dis- itself. All of these facts considered, the day, the Louisiana 5th Circuit Court of covery,” there is no absolute right to delay panel unanimously decided there was ad- Appeal grappled with the tension between action on a motion for summary judg- equate opportunity for discovery and the the competing interests of adequate dis- ment until discovery is complete. Parties trial court committed no error in proceed- covery and disposition of a case by sum- need only a “fair opportunity” to present ing with the summary judgment hearing. mary judgment. their claims, the court reiterated, and a suit In Milton-Gustain v. Salvage Store, Both cases involved personal injury should not be delayed pending discovery Inc., 19-0042 (La. App. 5 Cir. 10/2/19), claims based on theories of merchant or when it appears at an early stage that there ____ So.3d ____, 2019 WL 4855045, the premises liability. Plaintiffs in both cases is no genuine issue of material fact, unless Gustains sued the Salvage Store for prem- appealed summary judgment in favor of the plaintiff can show probable injustice ises liability after Mrs.