In re: Energy Future Holdings Corp., et al.

Filing 33

Recommendation that Bankruptcy Appeal be withrawn from mandatory mediation. Signed by Judge Mary Pat Thynge on 9/17/15. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re:
ENERGY FUTURE HOLDINGS CORP.,
et al.,

:
:
:
:
Debtors.
:
__________________________________ :
:
DELAWARE TRUST COMPANY, as
:
INDENTURE TRUSTEE, et al.,
:
:
Appellants,
:
:
v.
:
:
ENERGY FUTURE INTERMEDIATE
:
HOLDING COMPANY LLC and EFIH
:
FINANCE INC.,
:
:
Appellees.
:

Bankr. Case No. 14-10979-CSS

C. A. No. 15-620-RGA

RECOMMENDATION
At Wilmington this 17th day of September, 2015.
WHEREAS, pursuant to paragraph 2(a) of the Procedures to Govern
Mediation of Appeals from the United States Bankruptcy Court for this District dated
September 11, 2012, the court conducted an initial review, which included information
from counsel through a joint letter dated September 15, 2015, to determine the
appropriateness of mediation in this matter;
WHEREAS, as a result of the above screening process, the issues
involved in this case are not amenable to mediation and mediation at this stage would
not be a productive exercise, a worthwhile use of judicial resources nor warrant the
expense of the process.

Both sides agree that mediation in this matter is unlikely to be productive and
jointly request this appeal be removed from the mandatory mediation requirement.
Most of their respective positions were directed to whether the appeal should be
expedited including a discussion by Appellants regarding a previously filed request to
certify the appeal for direct appal to the Third Circuit. Appellants request and propose a
briefing schedule allowing this Court to decide the appeal that will also allow sufficient
time for the Court of Appeals to consider any further appeal before the Plan becomes
effective. Supporters of the Plan have required confirmation January 15, 2016 and the
Plan to become effective by April 2016 (subject to possible extension to June 30, 2016)
as conditions for their support. Appellants’ proposed briefing schedule is as follows:
Appellants’ and Intervenor’s opening briefs to be due 14 days after entry of a scheduling
order; Appellee’s brief due 14 days after the filing of the opening briefs; and Appellants’
and Intervenor’s reply briefs due 10 days after the filing of Appellee’s brief. In response
to Appellee’s concerns regarding the length of the briefs, Appellants rely on Bankruptcy
Rule 8015 regarding the word and/or page limits for bankruptcy appeals and note that if
Appellee requires more time, it can always file the appropriate motion.
Appellee objects to Appellants’ argument regarding equitable mootness since it
was been previously raised in this matter and this Court has previously directed
Appellee to respond to the issue by September 25, 2015.
Regarding the proposed briefing schedule, Appellee seeks clarification from this
Court as to the appropriate page limits for this appeal to propose a reasonable time for
its responsive brief. It notes the recent changes in the Federal Rules of Bankruptcy
Procedure, in particular Bankruptcy Rule 8015 which allows longer briefs than under the
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this Court’s Local Rule 7.1.3,1 and does not provide for a page limit for the Intervenor’s
brief which could result in Appellant’s and Intervenor’s initial briefs each being up to 56
pages and their reply briefs each containing up to 28 pages. Under Bankruptcy Rule
8015(f), a “district court . . . must accept documents that comply with the applicable
requirements of this rule.” The default timing for an appeal brief under Bankruptcy Rule
8018(a) is 30 days for a response brief, rather than the 14 days proposed by Appellants.
Although Appellee agrees to a briefing schedule that conforms to both the page limits
and timing under the new Bankruptcy Procedure Rules, it opposes Appellant’s efforts to
have the court adopt a schedule that applies the larger page limits under those rules,
while truncating the briefing schedule to 14 days for Appellee’s responsive brief(s) for
their benefit. Appellee maintains Appellants’ approach unfairly prejudices Appellee by
seeking permission to file a very large brief “while simultaneously asking to carve back
Appellee’s time to review it, consult with clients and draft a response.”
THEREFORE, IT IS RECOMMENDED that, pursuant to paragraph 2(a)
Procedures to Govern Mediation of Appeals from the United States Bankruptcy Court
for this District and 28 U.S.C. § 636(b), this matter be withdrawn from the mandatory
referral for mediation and proceed through the appellate process of this Court.
IT IS FURTHER RECOMMENDED that this court apply the Federal Rules of
Bankruptcy procedure for both the length and timing of the appellate briefing. In light of
the joint letter submission, Appellants have not provided a sufficient basis for reducing

1

This judge is aware that the District Court Advisory Committee is presently
considering whether modification to Local Rule 7 and/or additional local rules are
required due to the new Bankruptcy Rules.
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or changing the briefing schedule under the Bankruptcy Rules, while maintaining the
length of briefs under these rules.
This Recommendation does not address the issues related to direct appeal to the
Third Circuit Court of Appeals nor equitable mootness.
The parties are advised of their right to file objections to this Recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B), FED. R. CIV. P. 72(a) and D. DEL. LR 72.1. If any
objection is filed to this Recommendation, the parties are limited to five (5) pages for the
objection and response. Any objection shall be filed within seven (7) days of service of
this Recommendation, with the response due within in seven (7) days of service of the
objection.
Local counsel are obligated to inform out-of-state counsel of this Order.
/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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