20-10916-mew Doc 162 Filed 07/09/20 Entered 07/09/20 16:09:59 … · 2020-07-09 · 7 Finch...

AFDOCS/22465534.2

George P. Angelich Jordana L. Renert ARENT FOX LLP 1301 Avenue of the Americas, Floor 42 New York, NY 10019 Telephone: (212) 484-3900 Facsimile: (212) 484-3990 Email: [email protected]

[email protected] and Justin A. Kesselman ARENT FOX LLP The Prudential Tower 800 Boylston Street, 32nd Floor Boston, MA 02199 Telephone: (617) 973-6102 Facsimile: (617) 722-4993 Email: [email protected] Counsel to the Official Committee of Unsecured Creditors UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x In re: DEAN & DELUCA NEW YORK, INC., et al.,

Debtors.1

: : : : : :

Chapter 11

Case No. 20-10916 (MEW) Jointly Administered

-------------------------------------------------------------x

EX PARTE MOTION FOR ORDER TO SHOW CAUSE TO SHORTEN TIME, LIMIT NOTICE, AND SCHEDULE A HEARING

The Official Committee of Unsecured Creditors (the “Committee”) of Dean and Deluca

New York, Inc., et. al., through counsel, submits this ex parte motion (the “Motion to Shorten

1 The Debtors in the Chapter 11 Cases and the last four digits of each Debtor’s taxpayer identification number are as follows: Dean & DeLuca New York, Inc. (3111); Dean & DeLuca, Inc. (2998); Dean & DeLuca Brands, Inc. (2878); Dean & DeLuca International, LLC (8995); Dean & DeLuca Small Format, LLC (1806); Dean & DeLuca Atlanta, LLC (6678); Dean & DeLuca Markets, LLC (2674). The registered address for the Debtors is 251 Little Falls Drive, Wilmington, DE 19808.

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Time”) seeking the entry of an order scheduling a hearing, shortening the notice period, and

limiting the notice parties with respect to the Motion of Official Committee of Unsecured

Creditors to Extend Deadline to Challenge Claims and Liens of Siam Commercial Bank (the

“Motion to Extend Challenge Deadline”)2 filed contemporaneously herewith and respectfully

represents as follows:

RELIEF REQUESTED

1. By this Motion to Shorten Time, the Committee requests, pursuant to Rule

9006(c) of the Federal Rules of Bankruptcy Procedure and Bankruptcy Local Rule 9077-1 that

the Court shorten the notice period, set the Motion to Extend Challenge Deadline for hearing on

[Date and Time] (the “Hearing Date”), and limit notice. A proposed order is attached hereto as

Exhibit A.

BASIS FOR RELIEF REQUESTED

2. Bankruptcy Local Rule 9006-1(b) and 9006(f) provide that the Motion to Extend

Challenge Deadline requires fourteen (14) days’ notice of the hearing plus three (3) days for

mailing. Bankruptcy Rule 9006(c) authorizes the Court, for cause shown, to reduce the notice

period to seven (7) days from electronic service on counsel for the Debtors, Siam Commercial

Bank (“SCB”), the United States Trustee for Region 2, any parties requesting service of all

motions and pleadings pursuant to Bankruptcy Rule 2002 and any other parties entitled to notice

pursuant to Local Bankruptcy Rule 9013-1(b). The Committee respectfully submits that cause

exists to shorten the notice period with respect to the Motion to Extend Challenge Deadline as

requested herein.

2 Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Motion to Extend Challenge Deadline.


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3. As set forth more fully in the Supporting Declaration of Jackson D. Toof, attached

hereto as Exhibit B, and the underlying Motion to Extend Challenge Deadline, the Committee is

requesting an order extending the Challenge Deadline established in the Final Order Pursuant

To 11 U.S.C. §§ 105, 361, 362, 363, 364, and 507, Bankruptcy Rules 2002, 4001, 6004, and

9014, and Local Rule 4001-2 (I) Authorizing the Debtors to Obtain Post-Petition Financing, (II)

Granting Liens And Providing Super-Priority Administrative Expense Status, (III) Granting

Adequate Protection, and (IV) Granting Related Relief [Docket No. 77] (the “Final DIP Order”).

4. Pursuant to Federal Rule of Bankruptcy Procedure 9006 together with sections

105 and 364 of the Bankruptcy Code, the Committee seeks to extend the Challenge Deadline

under the Final DIP Order to September 30, 2020.

5. An extension is needed in order to complete discovery, analyze SCB’s substantial

alleged prepetition claim, investigate the assets and affairs of the Debtors, evaluate potential

claims against SCB, and review the basis for releases of SCB under the proposed chapter 11 plan

[Docket No. 126].

6. In light of continued delays in obtaining necessary documentation and

information by the 2004 Parties, including both the Debtors and SCB, the current Challenge

Deadline threatens to short-circuit the Committee’s investigation and ability to advance the

interests of non-insider unsecured creditors, while rewarding SCB and the Debtors for their

failure to provide necessary and basic information to the Committee in a timely manner.

7. The Committee respectfully submits that expedited consideration of the Motion to

Extend Challenge Deadline is necessary and appropriate. Under the Final DIP Order, the

Challenge Deadline is presently set for August 1, 2020. Seventy-two (72) days have already

passed since the Committee first informally requested the information from the Debtors. The


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Rule 2004 Parties continue to delay production of the required information more than twelve

days after entry of the Rule 2004 Order. Expedited consideration of the Motion to Extend

Challenge Deadline is now necessary in light of the upcoming Challenge Deadline and the

ongoing delays and impediments to discovery compliance.

8. By increasing the cost of discovery through a combination of lack of

voluntariness and sharp delay tactics, the parties are attempting to accomplish one thing: cut

short the thoroughness of the Committee’s investigation by stonewalling up to the Challenge

Deadline and hoping that this Court does not compel transparency. Quickly on the heels of the

Challenge Deadline is the DIP maturity date (which also should not be used as a safety against

laying bare the facts of what happened to this business while under the ownership and control of

Thai-based parent company, Pace Development Corporation, which itself is also now undergoing

restructuring proceedings as a petitioner for Business Rehabilitation in the Central Bankruptcy

Court of Thailand).3 The exigencies and need for an extension of the Challenge Deadline are the

result of a carefully planned case controlled by institutions and individuals who should be

required to explain their actions rather than be allowed to hide behind dates and deadlines.

9. The Committee requests that the Court limit notice of the Motion to Extend

Challenge Deadline to: (a) the Office of United States Trustee for Region 2; (b) counsel to the

Debtors; (c) counsel to SCB; (d) all entities that have received discovery requests from the

Committee ; and (e) all parties who filed a notice of appearance.

3 We understand from limited public filings made with The Stock Exchange of Thailand that Pace “has lacked liquidity in business operation and [Pace] has been unable to repay debts to the creditors pursuant to the prescribed conditions, such circumstances have affected [Pace] is under the stage of having the debts more than the asset”. (May 5, 2020 Resolution of the Board of Directors’ No 4/2020). In addition, a preliminary hearing on Pace’s bankruptcy petition was scheduled to occur on June 29, 2020. Notwithstanding requests, documents and information have still not been provided to the Committee concerning the Thai proceedings and certainly no information has been provided concerning what occurred at the June 29 hearing. All that the Committee knows from the limited available information about Pace’s bankruptcy proceedings is that Dean & Deluca’s parent company was and is insolvent. The availability of public information and regulatory filings has substantially diminished due to the de-listing of Pace from The Stock Exchange of Thailand on July 3, 2020.


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CONCLUSION

WHEREFORE, the Committee respectfully requests that the Court enter an order, in the

form attached hereto as Exhibit A, granting the Committee’s request to schedule a hearing,

shorten the notice periods, and limit notice as requested, and grant such other and further relief

the Court deems appropriate.

[Signature on following page]


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Dated: July 9, 2020 New York, New York

ARENT FOX LLP

By: /s/Jackson D. Toof

George P. Angelich Jordana L. Renert 1301 Avenue of the Americas, Floor 42 New York, New York 10019 Telephone: (212) 484-3900 Facsimile: (212) 484-3990 Email: [email protected] [email protected]

Justin A. Kesselman The Prudential Tower 800 Boylston Street, 32nd Floor Boston, MA 02199 Telephone: (617) 973-6102 Email: [email protected]

-and-

Jackson D. Toof 1717 K Street, N.W. Washington, D.C. 20006 Telephone: (202) 857-6000 Email: [email protected] Counsel for the Official Committee of Unsecured Creditors


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Exhibit A

Proposed Order

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x In re: DEAN & DELUCA NEW YORK, INC., et al.,

Debtors.4

: : : : : :

Chapter 11


-------------------------------------------------------------x

ORDER SHORTENING TIME AND SETTING A HEARING ON MOTION OF OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO EXTEND DEADLINE

TO CHALLENGE CLAIMS AND LIENS OF SIAM COMMERCIAL BANK

UPON consideration of the Ex Parte Motion for Order to Show Cause to Shorten Time,

Limit Notice and Schedule a Hearing (the “Motion to Shorten Time”) by the Official Committee

of Unsecured Creditors (the “Committee”), and the Declaration of Jackson D. Toof, Esq. in

support thereof; together with the underlying Motion of Official Committee of Unsecured

Creditors to Extend Deadline to Challenge Claims and Liens of Siam Commercial Bank (the

“Motion to Extend Challenge Deadline”); and the Court having considered the moving papers

and the record in this case, and good cause appearing,

IT IS HEREBY ORDERED that the Motion to Shorten Time is granted and a

telephonic hearing on the Motion to Extend Challenge Deadline has been scheduled for [Date

and Time] in the United States Bankruptcy Court for the Southern District of New York, before

the Honorable Michael E. Wiles, United States Bankruptcy Judge, Room 617, One Bowling

Green, New York, New York 10004-1408. Parties wishing to attend the hearing must make

arrangements through CourtSolutions LLC at www.Court-Solutions.com; and



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IT IS FURTHER ORDERED that by July 10, 2020, counsel to the Committee shall

serve a copy of this Order by email, overnight courier, or facsimile on: (i) the Office of the

United States Trustee; (ii) counsel to the Debtors; (iii) counsel to Siam Commercial Bank; (iv)

all parties that have received discovery requests from the Committee; and (v) all parties that have

filed a notice of appearance and requested service of pleadings in these Chapter 11 Cases

pursuant to Rule 2002, which shall constitute good and sufficient service of the motion; and

IT IS FURTHER ORDERED that any opposition to the Motion to Extend Challenge

Deadline may be stated on the record at the hearing.


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Exhibit B

Declaration of Jackson D. Toof in Support of Ex Parte Motion for Order to Show Cause to Shorten Time, Limit Notice and Schedule a Hearing

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x In re: DEAN & DELUCA NEW YORK, INC., et al.,

Debtors.5

: : : : : :

Chapter 11


-------------------------------------------------------------x

DECLARATION OF JACKSON D. TOOF IN SUPPORT OF EX PARTE MOTION FOR ORDER TO SHOW CAUSE TO

SHORTEN TIME, LIMIT NOTICE, AND SCHEDULE A HEARING Jackson D. Toof declares as follows:

1. I am a partner at the law firm of Arent Fox LLP, counsel to the Official

Committee of Unsecured Creditors of Debtors Dean & DeLuca New York, Inc. et. al., (the

“Committee”) in the chapter 11 cases currently pending before the United States Bankruptcy

Court for the Southern District of New York (the “Court”), jointly administered under Case No.

20-10916 (MEW). I submit this declaration in support of the Committee’s Ex Parte Motion for

an Order to Show Cause to Shorten Time, Limit Notice, and Schedule a Hearing (the “Motion to

Shorten Time”).

2. Under the Final Order Pursuant To 11 U.S.C. §§ 105, 361, 362, 363, 364, and

507, Bankruptcy Rules 2002, 4001, 6004, and 9014, and Local Rule 4001-2 (I) Authorizing the

Debtors to Obtain Post-Petition Financing, (II) Granting Liens And Providing Super-Priority

Administrative Expense Status, (III) Granting Adequate Protection, and (IV) Granting Related



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Relief [Docket No. 77] (the “Final DIP Order”), the Challenge Deadline6 for the Committee to

object to or otherwise challenge the prepetition claims and liens held by Siam Commercial Bank

(“SCB”) is presently set for August 1, 2020, unless extended by (a) the agreement of SCB, or (b)

this Court for good cause shown.

3. On April 29, 2020, the Committee sent information document requests to the

Debtors requesting various information, including documents necessary for the Committee to

begin its investigation into the liens and claims against SCB. While certain information was

produced, numerous requests remained outstanding. As a result, on May 29, 2020, the

Committee filed the Motion of Official Committee of Unsecured Creditors for an Order

Pursuant to Sections 105(a) and 1103(c) of the Bankruptcy Code and Rules 2004 and 9016

Authorizing and Directing Subpoenas for the Production of Documents and Examinations of (I)

the Debtors; (II) Pace Development Corporation PLC and Pace Food Retail Co., Ltd; (III)

Sorapoj Techakraisri; (IV) Siam Commercial Bank; (V) Emerald Capital Advisors; (VI) Charles

Finch; and (VII) Other Entities Reasonably Likely to Have Relevant Information [Docket No.

105] (the “Rule 2004 Motion”).

4. The Court entered an order approving the 2004 Motion on June 26, 2020 (the

“Rule 2004 Order”), and on June 29, 2020, the Committee sent subpoenas to the Rule 2004

Parties in accordance with the Rule 2004 Order.

5. To date, the Committee has not received any documents from the Debtors, SCB,

Pace, Emerald or Techakraisri in response to its subpoenas or the Rule 2004 Order.7 In fact, the

Committee has not received any new documents or requested information from the Debtors since

the Rule 2004 hearing on June 22, 2020. 6 Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Motion to Extend Challenge Deadline.

7 Finch provided some a two-page statement to the Committee on July 9th shortly before this filing.


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6. Additionally, the Committee has not yet been able to depose the Rule 2004

Parties. Further, despite the upcoming Challenge Deadline, SCB has requested that the

Committee defer taking its deposition until documents have been produced by the various Rule

2004 Parties.

7. On July 1, 2020, the Committee inquired with SCB about extending the Challenge

Deadline. SCB has not agreed to extend the Challenge Deadline instead counsel for SCB

replied:

…[W]e first need to understand when our client will be able to provide the documents before we can talk about overall timing. We hope to hear back from SCB soon and will get to after we have had a chance to speak with them.

That email from SCB’s counsel was nine (9) days ago. Still no documents, no dates for

depositions, no voluntary cooperation, no response to the request for a voluntary extension of the

Challenge Deadline and no indication from counsel whether SCB has communicated its

intentions about providing documents.

8. Accordingly, the Committee contemporaneously files herewith its Motion of

Official Committee of Unsecured Creditors to Extend Deadline to Challenge Claims and Liens of

Siam Commercial Bank (the “Motion to Extend Challenge Deadline”).

9. Good cause exists to shorten the time for a hearing on the Motion to Extend

Challenge Deadline, as proceeding under ordinary timing and notice parameters will not leave

the Committee with sufficient time or flexibility to properly discharge is statutory duties and

responsibilities of conducting its investigation and, if necessary, mounting an appropriate

Challenge.

10. No prior request for the relief sought in the Motion to Shorten Time has been

made in this Court or in any other court.


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I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and belief.

Dated: July 9, 2020

/s/Jackson D. Toof Jackson D. Toof


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