Checker Acquisition Corporation et al v. Richardson

Filing 10

OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re:
CHECKER MOTORS CORPORATION,
Debtor.
_______________________________/

Case No. 1:13-cv-746

THOMAS C. RICHARDSON,

HON. JANET T. NEFF

Plaintiff/Appellee,
v.
CHECKER ACQUISITION
CORPORATION, ALLAN R. TESSLER,
and CHRISTOPHER MARKIN,
Defendants/Appellants.
_______________________________/

Case No. 1:13-cv-869

THOMAS C. RICHARDSON,
Plaintiff/Appellee,
v.
MITCHELL D. SCHEPPS, as Personal
Representative for the estate of David
Markin,
Defendant/Appellant.
_______________________________/

OPINION
In these related cases, Defendants Checker Acquisition Corporation, Allan R. Tessler, and
Christopher Markin (“Checker Acquisition Defendants”) (Case No. 1:13-cv-746), and Defendant

Mitchell D. Schepps, as Personal Representative for the estate of David Markin (Case No.
1:13-cv-869), seek leave to file an interlocutory appeal of the June 10, 2013 Opinion1 and Order of
the Bankruptcy Court, concerning whether potential liability for withdrawal from a multi-employer
retirement plan is properly considered in determining insolvency.2 Plaintiff has filed separate
objections to each motion for leave (Case No. 1:13-cv-746, Dkt 2-6; Case No. 1:13-cv-869, Dkt 16). Checker Acquisition Defendants have filed a Reply (Case No. 1:13-cv-746, Dkt 7), and Plaintiff
has filed a motion to strike the Reply (id., Dkt 8).
Having reviewed the parties’ submissions, the Court finds Checker Acquisition Defendants’
Reply relevant since it sets forth substantive argument on the matters at issue. No prejudice results
to Plaintiff because the same arguments are incorporated in the motion of Defendant Schepps in
Case No. 1:13-cv-869, and merely reflect the consistent defense positions in the separate motions.
Therefore, the motion to strike is denied. Further, for the reasons that follow, the motions for leave
to file interlocutory appeal are denied.
I. Case Background
Defendants’ motions succinctly summarize the case background as follows. Checker Motors
Corporation (the “Debtor”) filed its voluntary petition for bankruptcy protection under Chapter 11
on January 16, 2009 (“Petition Date”) (Bankruptcy Case No. 09-00358, “Main Case”). For many
years prior to and through the Petition Date, the Debtor participated in a multi-employer pension
plan (“Plan”). The Debtor attempted to reorganize in bankruptcy, but was unsuccessful. Thus, the

1

In re Checker Motors Corp., 495 B.R. 355 (Bankr. W.D. Mich. 2013).

2

Defendants seek leave pursuant to 28 U.S.C. § 158(a)(3) and Federal Rules of Bankruptcy
Procedure 8001(b) and 8003.
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Debtor moved the Court for permission to sell the majority of its assets, which permission the Court
granted (Main Case, Dkts 214, 238).
Shortly thereafter, the Debtor withdrew from the Plan, incurring “withdrawal liability.”
Plaintiff asserts that the Debtor’s post-petition withdrawal liability was a contingent debt prior to
the Petition Date and thus must be considered when determining whether the Debtor was insolvent
at various times pre-petition. Defendants disagree, as they believe that the Sixth Circuit case, CPT
Holdings, Inc. v. Indus. & Allied Employees Union Pension Plan, Local 73, 162 F.3d 405 (6th Cir.
1998), is binding and requires a contrary holding.
The Bankruptcy Court issued its Opinion and Order on the matter on June 10, 2013 (Op. &
Or., Case No. 1:13-cv-746, Dkts 2-4, 2-5; Case No. 1:13-cv-869, Dkts 1-4, 1-5; collectively, the
“Ruling”). In its Ruling, the Bankruptcy Court determined that both Plaintiff and Defendants were
correct in part. The Court agreed with Defendants that CPT Holdings is binding when considering
insolvency with respect to constructive fraud claims under 11 U.S.C. § 548. For this purpose, a
debtor’s post-petition withdrawal liability is not treated as a pre-petition contingent claim. The
Bankruptcy Court agreed with Plaintiff, however, that when considering the identical issue under
the Michigan Uniform Fraudulent Transfer Act (“MUFTA”),3 post-petition withdrawal liability is
treated as a pre-petition contingent claim. The Ruling is significant in this case because it could
“significantly tip the scales” in favor of one party or another (see Case No. 1:13-cv-746, Dkt 2-4,
Bankr. Op. at 5).
The question Defendants present for appeal is:

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MICH. COMP. LAWS § 566.31 et seq.
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In evaluating insolvency for the purpose of deciding whether a transfer may
be avoided under MUFTA, should a bankruptcy court treat a debtor’s post-petition
withdrawal liability as a pre-petition contingent claim, notwithstanding CPT
Holdings?
II. Discussion
The parties do not dispute the applicable standard for granting leave to appeal. District
courts considering whether to grant interlocutory appeal of a bankruptcy court decision look to the
standards in 28 U.S.C. § 1292(b), which defines the courts of appeals’ jurisdiction to review
interlocutory orders. An appellant seeking review of an interlocutory order must show:
“(1) the question involved is one of law; (2) the question is controlling; (3)
there is substantial ground for difference of opinion respecting the correctness of the
[bankruptcy] court’s decision; and (4) an immediate appeal would materially
advance the ultimate termination of the litigation.”
Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 844 (B.A.P. 6th Cir. 1998) (quoting Vitols v.
Citizens Banking Co., 984 F.2d 168, 170 (6th Cir. 1993) (internal citations omitted)). “Review
under § 1292(b) should be sparingly granted and then only in exceptional cases.” Id.
This Court is not persuaded that the instant cases present the exceptional circumstances that
justify interlocutory appeal. The parties dispute only whether the second and fourth prongs of the
inquiry are met: whether the question is controlling, and whether an immediate appeal would
materially advance the ultimate termination of the litigation. They do not dispute prongs one and
three, that is, the issue presented is a question of law, that is difficult, novel, and one of first
impression in the Sixth Circuit. The Court agrees based on the authority reviewed, and thus focuses
on the remaining prongs under Wicheff.
The courts generally consider prongs two and four as related considerations under § 1292(b).
Newsome v. Young Supply Co., 873 F. Supp. 2d 872, 878 (E.D. Mich. 2012). Defendants assert that

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the Sixth Circuit has set a low bar for determining that a question is controlling (Case No. 1:13-cv746, Dkt 7 at 3; Case No. 1:13-cv-869, Dkt 1-1 at 4): “‘All that must be shown in order for a
question to be ‘controlling’ is that resolution of the issue on appeal could materially affect the
outcome of the litigation in the district court.’” Newsome, 873 F. Supp. 2d at 875-76 (quoting Eagan
v. CSX Transp., Inc., 294 F. Supp. 2d 911, 915 (E.D. Mich. 2003)). This statement accurately quotes
Newsome. Nonetheless, prong four still requires a showing that “an immediate appeal would
materially advance the ultimate termination of the litigation.” See Newsome, 873 F. Supp. 2d at 87879; see also W. Tenn. Chapter of Assoc. Builders & Contractors, Inc. v. City of Memphis (In re City
of Memphis), 293 F.3d 345, 351 (6th Cir. 2002), and In re Baker & Getty Fin. Servs., 954 F.2d 1169,
1172, n.8 (6th Cir. 1992).4
Plaintiff argues that prongs two and four are not satisfied because it is undisputed that
Plaintiff’s cases would continue if this Court affirmed the Bankruptcy Court’s decision regarding
MUFTA. Moreover, regardless of the outcome on appeal, the cases will continue because Plaintiff
advances multiple bases of recovery against Defendants under MUFTA: actual intent to defraud,
MICH. COMP. LAWS § 566.34; and constructive fraud, MICH. COMP. LAWS § 566.35. Thus, even if
this Court reverses the Bankruptcy Court, Plaintiff will not be precluded from proceeding to trial on
the first basis (acted with intent to defraud) as to all Defendants, and insolvency is just one of many
factors, along with evidence of other “badges of fraud” that the jury may consider in determining
whether the transfer should be avoided under § 566.34. Further, Plaintiff can proceed to trial on the

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The standards for applying the Wicheff factors appear in differing iterations, depending on
the court’s analysis and case circumstances. While the bar may be low with respect to whether a
purported controlling question materially affects the outcome, the same is not true for interlocutory
appeals generally since they are to be the exception and not the rule.
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second basis for recovery (constructive fraud), and Plaintiff may still be able to prove that the Debtor
was insolvent at the time of many of the transfers at issue regardless of the Debtor’s pension
withdrawal liability. Plaintiff cites evidence and case circumstances to support these claims.
Plaintiff additionally notes that the arguments as to MUFTA apply equally to 11 U.S.C. § 548 since
each transfer under that section can be challenged as actual or constructive fraud although pension
liability is not part of the insolvency equation.
The Court finds these circumstances persuasive grounds for denying interlocutory appeal in
these cases. Even if this Court were to reverse the Bankruptcy Court on the issue of the pension
liability under MUFTA, the cases would not be materially advanced since multiple bases of recovery
exist, which may be pursued by Plaintiff despite any ruling on the pension withdrawal liability. See
Campbell v. Campbell (In re Campbell), No. 10–12630, 2011 WL 768644, at *1 (E.D. Mich. Feb.
28, 2011) (noting that regardless of the district court’s decision on the count at issue, other counts
would remain for adjudication in the bankruptcy court).
Moreover, if this Court affirms the decision of the Bankruptcy Court, the appeal would do
little or nothing to bring this case to resolution. See Mecca-Tech, Inc. v. Lange, No. 1:10-cv-1073,
2011 WL 3847122 (W.D. Mich. Aug. 30, 2011), and In re Pilch, No. 1:07-cv-306, 2007 WL
1686308 (W.D. Mich. June 8, 2007) (noting that while a reversal of the bankruptcy court decision
may resolve all remaining claims in the bankruptcy case, the same was not true if the court were to
affirm the bankruptcy court decision). “In such situations, the usual and appropriate course is to
proceed before the trial court and reserve all potential objections for a single appeal.” Mecca-Tech,
Inc., 2011 WL 3847122, at *2.

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Defendants’ argument that prong four is satisfied because if the Bankruptcy Court’s decision
is reversed, this Court, and a jury, would likely be spared a jury trial, does not account for the full
circumstances of this case. This Court finds little material advancement of the overall case to be
gained by evaluating the correctness of the Bankruptcy Court’s decision at this juncture as
Defendants urge. Even though the parties may have agreed that resolving the question of insolvency
early in the bankruptcy proceedings would be beneficial,5 it does not follow that an interlocutory
appeal of the issue presented would similarly materially advance the ultimate termination of the
litigation.
Thus, having considered the factors under Wicheff, the Court, in its discretion, denies
Defendants’ motions for leave to appeal. The Court is not persuaded that this is an “exceptional”
case appropriate for interlocutory appeal.
An Order will be entered consistent with this Opinion.

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Dated: March ___, 2014

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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The parties agreed that bifurcating all of the trials so that insolvency was tried first would
minimize costs (Case No. 1:13-cv-869, Dkt 1-1 at 6, citing Fourth Pretrial Order).
7