District of Delaware Bankruptcy Judge Mary F. Walrath grants motion of Mitsubishi Digital Electronics America, Inc (“Mitsubishi”) to dismiss a bankruptcy preference avoidance complaint for failure to state a claim for relief. In her May 1, 2012 opinion, Judge Walrath holds that the Chapter 7 trustee’s Section 547 preferential transfer count fails to sufficiently identify which of the two associated debtors was the transferor. Judge Walrath further concludes that the Trustee can not maintain a Section 502(d) count for disallowance of Mitsubishi’s claims until the trustee has obtained “any judicial determination of Mitsubishi’s liability”. Giuliano v. Mitsubishi Digital Electronics America, Inc., Adv. Proc. No. 11-52663 Dkt No. 24 (Bankr.D. Del. May 1, 2012)
On on July 19, 2011, Alfred T. Giuliano, Chapter 7 Trustee in the Ultimate Acquisition Partners, LP Bankruptcy, commenced Chapter 5 preferential transfer recovery litigation with the filing of 39 complaints in the District of Delaware.The debtors’ bankruptcy cases were filed on January 26, 2011 and Trustee Giuliano was appointed on May 4, 2011. This will be the first Delaware bankruptcy mass preference actions arising out of a case filed after the Delaware Bankruptcy Court made unequivocally clear that the days of “virtual, mail merge” preference complaints were over. Trustee Giuliano had the advantage of knowing the records he had to have and making sure that they were preserved.
On February 4, 2010, Ultimate Acquisition Partners, LP d/b/a Ultimate Electronics (Delaware Case No. 11-10245) filed a motion seeking authority to engage in liquidating sales of its 46 stores. While not of the size of the Circuit City bankruptcy, the progression of the two bankruptcies is similar. The Circuit City bankruptcy is now in the midst of massive bankruptcy preference litigation. There is no reason to believe that Ultimate Electronics will not end up in the same place. In fact, the Ultimate Electronics bankruptcy looks far worse for the potential bankruptcy preference defendants. The filings made by Ultimate Electronics to date are replete with references to difficulties the debtor was having with suppliers – a bad flag for the availability of the ordinary course of business defense. For these reasons, Ultimate Electronics has been put on our bankruptcy preference watch list, even though the statute of limitations will not expire until January 26, 2013.