Government Not Required to Prove Intent or Consciousness of Wrongdoing to Convict the Jensen Brothers

As the produce industry follows the fate of Eric and Ryan Jensen many articles and commentary have surfaced in support of the brothers Jensen.  However, these articles and commentary all focus around a significant misconception about the government’s burden  of proof.  Specifically, the gen…

Fresh & Easy Neighborhood Market, Inc. Files for Chapter 11 Bankruptcy Protection

On September 30, 2013, Fresh & Easy Neighborhood Market, Inc. filed for chapter 11 bankruptcy protection in the District of Delaware and was assigned case number 13-12569.  The Debtor’s voluntary petition estimates: (i) between 10,000 and 25,000 creditors; (ii) holding assets valued b…

Jason Klinowski and Freeborn’s Bankruptcy & Financial Restructuring Group Tapped to Represent the Official Committee of Unsecured Creditors in the Pro’s Ranch Markets Chapter 11 Case

The Official Committee of Unsecured Creditors in the Pro’s Ranch Markets’ bankruptcy case recently retained Freeborn’s Bankruptcy and Financial Restructuring Group to help maximize their recovery in this Chapter 11 case.  Specifically, Freeborn possesses…

East Coast Brokers & Packers Files for Bankruptcy Protection

On March 6, 2013, East Coast Brokers & Packers, Inc. (“East Coast Brokers”) filed a Ch. 11 bankruptcy in the Middle District of Florida.  Along with East Coast Brokers, Circle M Ranch, Inc., Ruskin Vegetable Corporation, Oakwood Place, Inc. and both Batista J. Madonia, Sr. and Evelyn M. Madonia all filed for bankruptcy protection.  The Debtors are currently seeking the Court’s permission to administer all of the separately filed bankruptcy cases jointly.

Although the Debtors have not (as of the time of this entry) filed their schedules or list of top 20 creditors, court documents show that all of the debtors are “closely intertwined” and that the Madonias own at least 20% of the shares for each of the entities listed above.  The Debtors did acknowledge that they owe “significant debts” and cited MetLife Agricultural Investments as an example of a creditor to whom they owe about $46 Million.  The Debtors’ court documents also acknowledged owing money to Anthony Marano Company, Crop Production, and Triangle Chemical.

For those of you familiar with East Coast Brokers and the Madonias, you may remember that various news sources reported that East Coast “quit tomatoes” back in December of 2012 and that they owed “more than $15 million in judgments and liens to state and federal governments and crop production services.”  At that time, Anthony Marano Company was reported to hold a $5.6 million dollar lien against East Coast Brokers.”  See East Coast Brokers Quit Tomatoes

Counsel for East Coast Brokers should be filing various first day motions and the balance of its schedules in the very near future.  These filings will contain additional information.  Right now, we know that claims are due on May 20, 2013.

Bissett Produce Bankruptcy

On February 4, 2013, Bissett Produce Company, which is a 17-year-old company that owns and operates a sweet potato distribution company in Spring Hope, NC, filed for Chapter 11 bankruptcy protection.

The bankruptcy court entered an order on March 1, 2013  authorizing Bissett Produce to utilize its cash collateral in order to incur certain operating expenses anticipated in relation to a wind down of its operations.  According to court documents, at the time of its Chapter 11 filing, Bissett Produce said it owed liabilities of nearly $5.5 million, with $2.1 million of that amount due to secured creditors and the remaining $3.4 million owed to unsecured creditors, including claims held by several farms located in North Carolina.

Importantly, Bissett Produce has neither established any type of carve out to pay PACA trust creditors nor filed any motion seeking to establish a PACA trust claims procedure.  Rather, Bissett Produce simply asked the Court to allow it to use its cash collateral to pay pre-petition wages and to fund the wind down of the business.  In essence, the defunct entity seeks to use assets, which most likely include PACA trust assets, to pay professionals, employee wages and other operating expenses without regard to any trust obligations that may exist.  This is exactly the type of situation that requires an immediate objection to the Debtor’s continued use of cash collateral so that the PACA trust may be protected.  Until the PACA trust is preserved and the unpaid suppliers of produce paid in full, there may not be an estate to administer.

Industry Note: Bankruptcy cases often move quickly with numerous motions filed on the very first day the case is open.  Because of this, produce companies would be well advised to get involved in these types of cases early and take the steps needed to ensure trust assets are not placed out of the reach.

Is Eurofresh Underpriced at $51.18 Million?

On March 27, 2013, substantially all of Eurofresh’s assets will go to auction and, as it stands right now, NatureSweet has emerged as the stalking horse bidder (through Zona Acquisition) with an opening bid of $51.18 million dollars.

Eurofresh, which filed its Chapter 11 petition January 27, 2013, claims it is America’s largest greenhouse grower, spanning 318 acres of facilities. Its products include tomatoes on the vine, as well as roma, campari, beefsteak and grape tomatoes and long English and “mini” cucumbers. Eurofresh markets its products directly to major U.S. food retailers under the label “Eurofresh Farms” and “Sweet Star.” The debtor also claims its flagship facility in Wilcox, AZ is the largest single-site commercial greenhouse operation in the world with six of its greenhouses covering 274 acres. Eurofresh also operates a small wholesale business under the label Garden Fresh Selections out of a facility in Nogales, AZ that imports various types of produce from Mexico, packages that produce and then sells that produce through brokers in various wholesale channels and operates a small maquiladora facility in Agua Prieta, Mexico where some of its products are packaged.

In documents provided to the Court, Eurofresh emerged from a Chapter 11 bankruptcy in November of 2009 that resulted from a highly leveraged balance sheet, high interest rates, high energy prices and various operating issues.  Importantly, Eurofresh stated that it also faced widespread pricing declines in the industry resulting from increased competitor greenhouse acreage and “shade” tomatoes crossing the border from Mexico.

To a savvy purchaser (like NatureSweet), Eurofresh is a smart acquisition!  Operating issues can be resolved and the U.S. Department of Commerce is set to remedy (or at least significantly lessen) the tomato pricing decline issue as it relates to Mexico.  Specifically, the new Tomato Suspension Agreement was set to take effect on March 4, 2013 and that agreement carries a 42.9% increase in the minimum price for Mexican tomatoes sold into the United States’ fresh tomato market.

When this agreement becomes effective, Eurofresh and other domestic tomato companies in the fresh produce industry will be able to increase their prices without fear of losing business to Mexican growers.  As it applies to the sale of Eurofresh, the company seems to be positioned to benefit from this new agreement by gaining the ability to increase its prices without any corresponding increase in capital investments.

As I see it, this means one of two things:

(1) There should be no real reason Eurofresh cannot successfully reorganize and pay all of its creditors as it emerges from its newly filed Chapter 11 bankruptcy.

(2) NatureSweet should be applauded for positioning itself to purchase substantially all of Eurofresh’s assets (Sec. 363 Sale) in time to reap the benefits that come with the ability to increase its fresh tomato prices by about 42.9% when the new suspension agreement becomes effective, which the U.S. Department of Commerce planned on announcing March 4, 2013.

Eurofresh Seeks an Expedited Section 363 Sale

On January 28, 2013, Eurofresh, Inc. appeared before the U.S. Bankruptcy Court in Arizona and pushed for an expedited section 363 sale.  Importantly, a section 363 sale under the Bankruptcy Code occurs when the debtor seeks to sell substantially all of its assets.  This type of asset sale is often the path a debtor elects when they want “opt out” of the process for obtaining a Chapter 11 plan of reorganization in favor of what is often perceived as a quicker and more efficient process.  A section 363 sale may also be a sign that the debtor’s estate cannot afford the administrative expense of a prolonged reorganization.

In the Eurofresh bankruptcy case, the debtor intends to sell substantially all of its assets “free and clear of any liens or other interests” under section 363(f).  Section 363 will also allow Eurofresh to assign any favorable unexpired leases and executory contracts to the buyer.  This adds value to the purchase and effectuate, at least in part, the purpose of a Chapter 11 proceeding without the debtor actually complying with all of the Chapter 11 reorganization requirements.  This is not always a successful move…  Ample case-law exists where courts have refused to approve a 363 sale because the transaction appeared to be a back-door reorganization effort that significantly restructured the rights of the creditors.  When a court denies a 363 sale the debtor is forced to continue to satisfy all of the Chapter 11 requirements.

Right now, it appears that Nature Sweet is going to be the stalking horse bidder, which means they will set the price for the purchase of Eurofresh’s assets.  This does not guarantee that the stalking horse bidder will win or that the terms of the sale are not objectionable to the creditors.  These are all issues that will need to be addressed.

One such issue will be the payment of all PACA trust claims.  At this time the Court is entertaining a motion to set up a procedure for handling PACA claims, but a proposed PACA claims procedure order has not been filed.  A proper order will be critical to both the success of the section 363 sale and the debtor’s proper use of its cash collateral.  As usual, a PACA claims bar date will be set and notice will be issued.

 

The Packer Quoted Jason Klinowski in its Delta Produce Update Article

On November 2, 2012, U.S. Bankruptcy Court Judge John Akard made an unprecedented ruling that denied all but $25,000.00 of over $200,000.00 in attorneys’ fee applications from various PACA trust creditors.  In support of this ruling, the Court held that “because the case is being handled in bankruptcy court, unsecured creditors are not entitled to attorney fees incurred after the debtor files for bankruptcy protection.”  Judge Akard further stated for the record that:

What we are seeing here, I think, is a bunch of vultures coming in and asking for fees and wasting time.

See The Packer: Judge Denies Most Attorney Fees in Delta Produce PACA Case

Quoting Jason Klinowski, The Packer stated that the court’s ruling could have “chilling effects” on the produce industry and that the ruling was both “dangerous” and “anti-industry.”  Jason Klinowski further opined that “the PACA claimants did everything there were supposed to do to recover these funds.”

This ruling is currently the subject of various motions to reconsider and an appeal.  The main thrust of these pleadings will focus on the fact that the court failed to appreciate and consider the impact of the PACA trust on the court’s administration of the Debtor’s estate.  Specifically, PACA trust assets are not considered property of the Debtor’s estate and, therefore, the court should not handle PACA trust claims as unsecured claims against the Debtor’s estate.  Rather, the court must treat the PACA trust creditors’ claims as trust claims against a common pool of PACA trust assets that are separate and apart from the Debtor’s estate.

The Packer Quoted Jason Klinowski in its Adams Produce Settlement Announcement Article

On October 22, 2012, U.S. Bankruptcy Court Judge Tamara Mitchell cleared the way for 48 produce companies to be paid in excess of $8 million dollars in the Adams Produce case.

Quoting Jason Klinowski, The Packer announced the settlement and commented on how the attorneys involved in this case “were very smart about where to draw the line about what to fight over and when to agree.”

See The Packer: Adams Produce to pay $8 million in PACA claims

On a more personal note, counsel for the Debtor (Chris Carson) worked very hard to make sure the PACA claims were handled properly and his efforts were key to the speed at which this large case was settled.  Quoting Larry Meuers, The Packer noted that the Adams Produce “case could have died several times, been converted to a Chapter 7 liquidation or drug out for more than a year.”  The attorneys involved in this case made sure none of that happened because there was no reason for it occur.

Important New Bankruptcy Filings!

Please take note of the following two new food industry bankruptcies:

Cascade Ag. Services, Inc. d/b/a Pleasant Valley Farms, which filed a voluntary petition for chapter 11 bankruptcy protection in the Western District of Washington on August 13, 2012.  A review of the bankruptcy petition shows estimated assets between $10 MM and $50M with estimated liabilities within the same range.  By way of example, the claims of the top 20 largest creditors range from $2 MM to $119k.

California Organics LLC, which filed a voluntary petition for chapter 11 bankruptcy protection in the Northern District of California on  August 13, 2012.  A review of the bankruptcy petition shows estimated assets between $1 MM and $10M with estimated liabilities within the same range.  By way of example, the claims of the top 20 largest creditors range from $325K to $13k.

Please check your A/R to see if theses cases affect you.  If they do, please do not wait to assert your rights!