In Re: Decade, S.A.C., LLC, et al

Filing 11

Recommendation of referral to the Appellate Mediation Panel. Signed by Judge Mary Pat Thynge on 4/8/2022. (Taylor, Daniel)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

In re:

Chapter 7

DECADE, S.A.C., LLC, et al.,

Bankruptcy Case No. 18-11668 (CSS)

Debtors.

DAVID W. CARICKHOFF, solely in his
capacity as chapter 7 Trustee,
Appellant,
v.

C.A. No. 22-291-MN

AARON GOODWIN and ERIC
GOODWIN,

Bankr. BAP No. 22-14

Appellees.

XXIII CAPITAL LIMITED,
Appellant,
v.

C.A. No. 22-290-MN

AARON GOODWIN and ERIC
GOODWIN,
Appellees.

DAVID W. CARICKHOFF, solely in his
capacity as chapter 7 Trustee,
Appellant,

Bankr. BAP No. 22-13

v.

C.A. No. 22-292-MN

AARON GOODWIN and ERIC
GOODWIN,

Bankr. BAP No. 22-15

Appellees.

RECOMMENDATION
At Wilmington this 8th day of April, 2022.
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,1 to determine the appropriateness of mediation in this matter;
The three Appeals involved in 22-290 (main “Bankruptcy Case”), along with 22291 and 22-292, have been assigned to the Honorable Maryellen Noreika, and were
consolidate in an Order for procedural purposes and for related relief on March 31,
2022 found at D.I. 7 in 22-290-MN.
The Unopposed Motion to Consolidate for Procedural Purposes was filed by
David W. Carickhoff, solely in his capacity as chapter 7 Trustee (“Trustee”), and XXIII
Capital Limited (“23 Capital”). The 22-290 appeal was filed by 23 Capital and the 22291 and 22-292 appeals were filed by the Trustee. Pursuant to this Order, all
documents and papers for these matters are to be filed in 22-291-MN.2

1

Written information was provided by counsel for the parties which is not made
part of the court record because it relates to mediation.
2

The Appellees (Aaron and Eric Goodwin) did not opposed consolidation and
joint administration of these Appeals.
2

23 Capital and the Trustee appeal from very similar issues in the Bankruptcy’s
Court Memorandum Order date February 17, 2022, with both arguing that the Court
erred as follows by: a) vacating the Stipulation Order and Retention Order; b)
disqualifying the Firms pursuant to 11 U.S.C. §§ 328; c) holding that modification of the
stipulation created an actual, non-waivable conflict requiring Special Counsel’s
disqualification; and 4) holding that actual, non-waivable conflict of interest regarding
the Firms’ representation of both 23 Capital and the Trustee as Special Counsel was
not waivable by the Trustee, and in fact, was not so waived.
The Trustee and Appellees attempted to settle the Adversary Proceeding on two
occasions through mediation. These parties initially mediated before the Hon. Andrew
J. Peck (ret.), pursuant to an order of the Bankruptcy Court of September 25, 2019. No
resolution occurred. These parties also mediated before the Honorable Brendan L.
Shannon of the Bankruptcy Court on October 25,2021 which did not result
in settlement.
The parties favor mediation that covers all underlying issues in the Adversary
Proceeding. Appellees request that mediation be conducted by one of the prior
mediators in light of the familiarity with the issues and the parties’ respective positions.
Neither 23 Capital and the Trustee do object to the Hon. Brenden L. Shanno n serving
as the mediator.
Appellees also request that the mediator invite certain non-parties identified in
the Order to mediation to attempt to negotiate a global resolution of all issues among
the relevant parties. Neither 23 Capital and the Trustee oppose such an invitation,
however, they maintain that the parties should mediate regardless of whether those
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non-parties participate.
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), the following Appeals be mediated 22-290, 22291 and 22-292 and if possible before the Honorable Brendan L. Shannon, since all
parties are in agreement for this judge serving as the mediator. The parties shall be
responsible in making the arrangements for Judge Shannon’s services and any
expenses related thereto.
Regarding whether mediation should occur in the absence of certain non-parties
participation, this judge recommends that mediation should occur regardless of those
non-parties participation.
Through this Recommendation, the parties are advised of their right to file
objections to the same pursuant to 28 U.S.C. § 636(b)(1)(B), F ED. R. CIV. P. 72(a) and
D. DEL. LR 72.1.
Local counsel are obligated to inform out-of-state counsel of this Order.

/s/ Mary Pat Thynge
Chief U.S. Magistrate Judge Mary Pat Thynge

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