hogan final motion to amend proof of claim - · pdf filethe threshold inquiry is whether the...

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re PHOENIX PAYMENT SYSTEMS, INC.

Debtor.

Chapter 11 No. 14-11848(MFW) Hearing Date: February 26, 2015 at 02:00 p.m. ET Obj. Deadline: January 13, 2015 at 4:00 p.m. ET

MOTION OF CLAIMANT DAVID HOGAN FOR AN ORDER AUTHORIZING FILING OF AMENDED PROOF OF CLAIM

Claimant David Hogan (“Hogan” or “Claimant”), by and through his undersigned

attorneys, hereby files this Motion (the “Motion”) for an Order Granting Amendment to Proof of

Claim, and, in support thereof, states the following:

JURISDICTION AND VENUE

1. This Court has subject matter jurisdiction to consider this Motion pursuant to 28

U.S.C. §§ 1334 and 157. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

This proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(B).

FACTUAL BACKGROUND

I. Relevant Procedural History

2. On or about October 24, 2014, Claimant filed his Proof of Claim with the

Debtor’s claims agent, a copy of which is attached hereto as Exhibit 1. Claimant filed the Proof

of Claim pro se.

3. In the Proof of Claim, Claimant asserts a claim against the Debtor in the sum of

$191.653.22 as a result of non-payment by the Debtor of fees due to him for services rendered

pursuant to an agreement entered into with EPX in June of 2009, years before the Debtor’s

Case 14-11848-MFW Doc 473 Filed 12/23/14 of 13

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bankruptcy filing. Claimant attached to the Proof of Claim a letter explaining the basis for his

claim as well as supporting documentation thereof.

4. On November 20, 2014, the Debtor filed the Objection to David Hogan Proof of

Claim [DI 382] (the “Claim Objection”), seeking to disallow the Proof of Claim and/or reduce it

to zero pursuant to 11 U.S.C. §§502(b)(1) and 502(b)(4).

5. On December 11, 2014, Hogan filed his Response to Debtor’s Objection to David

Hogan Proof of Claim [DI 424] (the “Response”) opposing the relief sought by the Debtor. A

true and correct copy of the Response is attached hereto as Exhibit “1.” In the Response,

Claimant noted that he would file a motion seeking to amend his Proof of Claim to raise

additional theories of liability against the Debtor to the extent necessary or appropriate. This

Motion follows.

II. Facts Relevant to this Motion.

6. It was not until after the bar date had passed that Claimant became aware that the

Debtor was contesting the payments long overdue to him for the services he rendered on the

basis that his agreement was unenforceable against the Debtor. He was made aware of this

argument only by the recent filing of the Claim Objection. At no time in his previous dealings

with EPX did EPX ever take such a position.

7. In his Response to the Claim Objection, Claimant argues that his claim under the

engagement letter is enforceable. However, to the extent the Court disagrees, his claim is still

valid under quasi-contractual theories of recovery such as quantum meruit. See Response at p. 8.

Claimant will not repeat that argument here.

8. Even though raised in his Response to the Claim Objection, out of an abundance

of caution, Claimant now seeks leave of Court to amend his Proof of Claim to assert the alternate

quasi-contractual theories of recovery.


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9. Moreover, in the Claim Objection, the Debtor reserved the right to assert claims

against Claimant if he is found to have been a director of EPX. Since the Claim Objection was

the first suggestion by anyone that there may be valid and timely claims against Claimant

relating to the performance of his services for EPX, Claimant reserved the right in his Response

to the Claim Objection to seek indemnification from the Debtor in the event any such claims are

asserted against him, including to seek recovery from any applicable insurance coverage.

10. Therefore, in conjunction with the other amendment sought here, Hogan also

seeks permission to amend his Proof of Claim to assert a contingent claim against the Debtor for

indemnification for any liability, damages and attorneys’ fees and costs, arising out of any claim

that ultimately is asserted against Claimant, including reserving and asserting the right of setoff.

Claimant also reserves the right to assert that such contingent claim arose post-petition or should

be afforded administrative expense status if any such claim is asserted against him and to seek

payment from applicable insurances.

11. Claimant’s amended proof of claim will reflect simple changes. It will assert

alternatively quasi-contractual theories of recovery such as quantum meruit or unjust enrichment.

It also would reserve and assert the contingent claim for indemnification described in the

foregoing paragraph (the “Amended Claim”). A statement of claim will be attached to the

Amended Claim and will describe the foregoing claims. A copy of the proposed Amended

Claim is attached hereto as Exhibit “2.”

RELIEF REQUESTED

12. Claimant seeks the entry of an order granting an amendment to his claims as

described above. Alternatively, in the event the Court denies the Claimant’s motion to amend,

the Court should find that excusable neglect permits the assertion of the Amended Claim.


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BASIS FOR RELIEF

I. THE COURT SHOULD PERMIT THE AMENDMENT OF CLAIMANT’S ORIGINAL PROOF OF CLAIM TO INCLUDE THE ADDITIONAL THEORIES OF RECOVERY.

A. Amendments to Proofs of Claim are Liberally Permitted.

13. The general rule regarding amending of a proofs of claim is as follows:

It is well established that amendments to proofs of claim are liberally allowed [citations omitted]. Generally, amendments are allowed when the original claim provides notice of the existence, nature, and amount of the claim. Amendments are generally used to cure obvious defects, describe the claim with greater specificity or plead a new theory of recovery on facts of the original proof of claim. Post-bar date amendment should be scrutinized to ensure that the amendment is not a new claim. While courts allow post-bar date amendment to claim amounts, courts do not allow postbar amendment to change status of the claim.

In re Orion Ref Corp., 317 B.R. 660, 664 (Bankr. D. Del. 2004).

14. As the Federal Rules of Bankruptcy Procedure do not directly address amendment

of a proof of claim, the courts consistently look to Federal Rule of Civil Procedure 15 and apply

the test set forth therein to determine whether to allow an amendment to a proof of claim.

Midland Cogeneration Venture Ltd. P’ship v. Enron Corp., 419 F.3d 115, 133 (2d Cir. 2005);

Gens v. Resolution Trust Corp., 112 F.3d 569, 575 (1st Cir. 1997); In re Stavriotis, 977 F.2d

1202, 1204 (7th Cir. 1992); In re Robert Farms, 980 F.2d 1248, 1251 (9th Cir. 1992); In re

Channokhon, 465 B.R. 132 (Bankr. S.D. Ohio 2012); In re Xechem Int’l, Inc., 424 B.R. 836, 841

(Bankr. N.D. Ill. 2010); In re Spurling, 391 B.R. 783, 786 (Bankr. E.D. Tenn. 2008); In re J.S.

II, L.L.C., 389 B.R. 563, 567 (Bankr. N.D. Ill. 2008); In re Enron Corp., 298 B.R. 513, 521

(Bankr. S.D.N.Y. 2003); In re MK Lombard Grp. I, Ltd., 301 B.R. 812, 816 (Bankr. E.D. Pa.

2003); Little v. Drexel Burnham Lambert Grp., Inc., 159 B.R. 420, 425 (S.D.N.Y. 1993).

15. Rule 15 provides that “[t]he court should freely give leave when justice so

requires.” Courts have a long established liberal policy that permits amendments to a proof of


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claim. See Fed. R. Bankr. P. 7015; Fed. R. Civ. P. 15; In re Franciscan Vineyards, Inc., 597

F.2d 181, 182 (9th Cir. 1979), cert. denied, 445 U.S. 915 (1980). The crucial inquiry is whether

the opposing party would be unduly prejudiced by the amendment. In re Wilson, 96 B.R. 257,

263 (9th Cir. BAP 1988); U.S. v. Hougham, 364 U.S. 310, 316 (1960). Furthermore, an

amendment to a proof of claim will relate back to the timely filed proof of claim if the claims in

the amendment arise from the same conduct, transaction, or occurrence as required by Rule 15.

See In re Xechem Intern., Inc., 424 B.R. 836, 841 (Bankr. N.D. Ill. 2010).

B. The Amended Claim Satisfies the Requirements of Rule 15.

16. The threshold inquiry is whether the proposed amended proof of claim is truly an

amendment or impermissibly asserts a new claim. In re Orion Ref Corp., 317 B.R. at 664. “In

determining whether the amendment asserts a new claim, a court may compare the amendment

to the original proof of claim.” In re Edison Bros. Stores, 2002 Bankr. LEXIS 1228, at *12

(Bankr. D. Del. 2002). “In comparing the proof of claim and the amendment, if the initial proof

did not give fair notice of the conduct, transaction or occurrence that forms the basis of the claim

asserted in the amendment then the amendment asserts new claims and will not be allowed." Id.

(quotations omitted). Proper amendments are those “that merely cure defects in the previously-

filed claim, describe the claim in more detail, plead new theories of recovery on the same facts

presented in the initial claim, or increase damages[.]” In re Bruno, 2008 Bankr. LEXIS 910, at

*10 (Bankr. D.N.J. 2008); see In re FLYi, Inc., 2008 Bankr. LEXIS 4867, at *6 (Bankr. D. Del.

2008) (“The assertion of a different legal theory for the same claim is not a new claim.”). At

bottom, “amendment is freely permitted so long as the initial claim provides adequate notice of

the existence and nature of the claim, as well as the creditor's intent to hold the estate liable.” In

re Oscar, 2005 Bankr. LEXIS 3345, at *15 (Bankr. E.D. Pa. 2005) (citation omitted); see In re

Enron Corp., 298 B.R. 513, 520 (Bankr. S.D.N.Y. 2003) (“A court must first look to whether


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there was timely assertion of a similar claim or demand evidencing an intention to hold the estate

liable.”) (quotations omitted).

17. Here, Claimant’s proposed amendments are proper and are not a new claims.

Claimant’s Proof of Claim gave notice of the basis for his claims, namely that Claimant’s claims

arise from his engagement letter with EPX and the services he performed under the engagement

letter. The additional theories of recovery based upon the quasi-contract arise from the same set

of circumstances. Thus, Claimant’s amendment to add the additional theory of recovery, to the

extent necessary, is proper because his Proof of Claim gave “fair notice of the conduct,

transaction or occurrence that forms the basis of the claim asserted in the amendment”; In re

Edison Bros. Stores, 2002 Bankr. LEXIS 1228, at *12; and Claimant seeks to add a new theory

of recovery based upon the same set of facts; In re Bruno, 2008 Bankr. LEXIS 910, at *10; In re

FLYi, Inc., 2008 Bankr. LEXIS 4867, at *6.

18. The Court should conclude similarly with respect to the amendment for a

contingent claim for indemnification. Claimant resigned his engagement with EPX over three

(3) years before the Debtor’s bankruptcy. At no time before the Claim Objection was filed did

anyone associated with EPX or otherwise suggest that there were any grounds to assert claims

against Claimant on account of his services, and thus Claimant had no reason to believe that he

should include a contingent claim for indemnification in his Proof of Claim. By virtue of the

reservation made by the Debtor in the Claim Objection, it is apparent that the filing of the Proof

of Claim by Claimant gave the Debtor sufficient notice of the nature of Claimant’s claims such

that the Debtor responded by, for the first time, reserving the right to sue Claimant. Under these

circumstances, therefore, a contingent claim for indemnification should be no surprise to the

Debtor, and the Court should conclude that the Proof of Claim provided sufficient notice of the

existence and nature of a contingent claim for indemnification.


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19. Once the moving party demonstrates that its amendment is proper, the Court must

grant the amendment unless the opposing party can demonstrate that such relief would be

inequitable. Dole v. Arco Chemical Co., 921 F.2d 484, 488 (3d Cir. 1990); see Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). The United States Supreme Court enumerated five

factors the opposing party may rely upon to justify denying leave to amend: (1) undue delay, (2)

bad faith, (3) dilatory motive, (4) unfair prejudice, and (5) futility of amendment. Foman v.

Davis, 371 U.S. 178, 182 (1962); In re Burlington Coat, 114 F.3d at 1434. “Only when these

factors suggest that amendment would be 'unjust' should the court deny leave." Arthur v. Maersk,

Inc., 434 F.3d 196, 203 (3d Cir. 2006); Grayson, 293 F.3d at 108 (“[S]uch leave must be granted

in the absence of undue delay, bad faith, dilatory motive, unfair prejudice, or futility of

amendment.”); see In re Cudeyro, 213 B.R. 910, 918 (Bankr. E.D. Pa. 1997).

20. As demonstrated below, none of those factors weigh against granting the

Claimant’s motion for leave to amend his claims.

(1) No Undue Delay.

21. There will be no undue delay occasioned by the filing of the Amended Claim.

The bar date was only two (2) months ago, and Claimant filed his Proof of Claim pro se. The

issues to be raised in the Amended Claim have already been asserted in the Response to the

Claim Objection. To the extent that the Claim Objection is not resolved, the parties will need to

take discovery, and the Court will conduct a hearing on the Claim Objection at some future time

period. The Debtor has not yet filed its bankruptcy plan, which will be a liquidation plan as the

Debtor already sold itself as a going concern. Thus, the assertion of the Amended Claim now

would have no impact upon the confirmation process. As to the indemnification issue, the


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contingent claim is merely being reserved at this time if and to the extent any future claim is ever

asserted against Claimant.

22. Thus, Claimant has not committed undue delay. Howze v. Jones & Laughlin Steel

Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) (“Delay alone, is an insufficient ground upon which

to deny a motion to amend. ... Rather the touchstone is whether the non-moving party will be

prejudiced if the amendment is allowed.”); Hatzel & Buehler, Inc. v. Station Plaza Assoc., L.P.,

150 B.R. 560, 562 (Bankr. D. Del. 1993) (“‘The passage of time, without more, does not require

that a motion to amend a [claim] be denied.’ [quoting Adams v. Gould, Inc., 739 F.2d 858, 864

(3d Cir. 1984)]. Rather, according to the Adams Court, the delay must be motivated by bad faith

or result in prejudice to the opposing party.”)

(2) No Bad Faith.

23. Claimant’s Motion is filed in good faith to add alternative theories of recovery

arising from the same underlying facts and circumstances relied upon by the Proof of Claim, i.e.,

the services provided by Claimant to the Debtor. Moreover, Claimant’s Proof of Claim was

timely filed. On the other hand, there are no indicia of bad faith as Claimant merely desires to

ensure that all theories of recovery available to him are asserted, as well as to protect himself in

the event any future claim is directed toward him of which he had no reason for foresee at the

time he filed his Proof of Claim. See In re Burlington Coat, 114 F.3d at 1435; Hatzel & Buehler,

Inc., 150 B.R. at 562.1

(3) No Dilatory Motive.

24. Claimant has no dilatory motive. Claimant timely filed his Proof of Claim before

the bar date. Moreover, as explained above, Claimant’s Proof of Claim gave sufficient notice of

1 As stated, Claimant reserves the right to argue that the claim for indemnification arose post-petition or is entitled to administrative expense status.


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the basis for his claims. Claimant only became aware of his need to assert the additional theories

of recovery when the Debtor for the first time after the bar date questioned the enforceability of

his engagement letter and reserved claims back against him. This course of events does not

show dilatory motive.

(4) No Unfair Prejudice.

25. The Amended Claim will not cause the Debtor to suffer unfair prejudice. As

mentioned above, the underlying facts relied upon in the Amended Claim are substantially the

same as in the Proof of Claim, with just an additional theories of recovery being advanced.

Moreover, by virtue of the nature of the claims the Debtor has reserved against Claimant, the

Debtor cannot claim surprise or unawareness of Claimant’s potential claim for indemnification.

In re O'Brien, 188 F.3d 116, 128 (3d Cir. 1999) (stating that lack of surprise weighs in favor of

finding no prejudice). Additionally, the amendment should not require different discovery from

what the parties will require to prepare for a hearing on the Claims Objection.

(5) The Additional Theory of Recovery Is Viable.

26. This alternative quasi-contractual theories of recovery are not futile. As explained

in the Response to the Claim Objection, in the event Claimant’s engagement letter is not

enforceable, he is entitled to quasi-contractual recovery for the reasonable value of the services

rendered to EPX. See Response at p. 10. A contingent claim for indemnification would not be

futile either. Claimant believes that he would be entitled to indemnification for such claims

under multiple theories, including statute and likely the Debtor’s organizational documents.

Moreover, there may be insurance coverage applicable for the defense of such claims. At this

stage, the Court cannot conclude that any such contingent claim for indemnification would be

futile.


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27. Finally, a recent opinion from the Bankruptcy Court for the Northern District of

Illinois, captioned In re Xechem Intn’l., Inc., 424 B.R. 836 (Bankr. N.D. Ill. 2010), is

instructive. In that case, a former employee of the debtor filed a timely claim for unpaid

compensation. After the bar date, the former employee sought to amend his claim to include

additional claims for severance compensation, indemnification, repayment of a loan to the

company and interest on the loan. The amended proofs of claim reasserted the original claims,

although in different amounts. In fact, the amended proof of claim claimed an additional

$247,094.00 to the original amount of $1,699,000. Id. at 842. The court found that those claims

clearly involved the same core disputes as those in the original proof of claim, and thus related

back. Id. at 845. As for the severance and indemnification claims, the court found that those

claims arose from the parties' employment agreements and the debtor's bylaws and therefore

arose from the same ongoing conduct, transaction, or occurrence as those in the original proof of

claim. Id. The employee was permitted to file the amended proof of claim on all new theories,

except for the loss of personal property. Id.

28. Based on the foregoing, the Court should finding that Claimant’s amendments are

proper and that the Debtor cannot demonstrate that such relief would be inequitable, and grant

Claimant leave to amend his Proof of Claim.

II. IN THE ALTERNATIVE, THE COURT SHOULD FIND THAT EXCUSABLE NEGLECT PERMITS THE ASSERTION OF A NEW CLAIM BASED UPON THE THEORIES RAISED IN THE AMENDED CLAIM.

29. If the Court denies Claimant’s motion to amend, the Court should find that

excusable neglect permits the assertion of claims based upon the alternative theories of recovery

and for indemnification.

30. Under Fed. R. Bankr. P. 9006(b)(1), the Bankruptcy Court may accept a late

claim if the delay resulted from excusable neglect. In re Am. Classic Voyages Co., 405 F.3d 127,


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133 (3d Cir. 2005). “The determination whether a party's neglect of a bar date is 'excusable' is

essentially an equitable one, in which courts are to take into account all relevant circumstances

surrounding a party's failure to file.” Chemetron Corp. v. Jones, 72 F.3d 341, 349 (3d Cir.

1995). The preeminent case on excusable neglect, Fed. R. Bankr. P. 9006(b)(1), and proofs of

claim is Pioneer Invest. Servs. Co. v. Brunswick Assoc. Ltd. Pship., 507 U.S. 380 (1993). In

Pioneer, the Supreme Court instructed that excusable neglect be applied broadly, holding that

courts are “permitted, where appropriate, to accept late filings caused by inadvertence, mistake,

or carelessness, as well as by intervening circumstances beyond the party's control.” Id. at 395.

With that in mind, the determination is made by considering four factors: “the danger of

prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings,

the reason for the delay, including whether it was within the reasonable control of the movant,

and whether the movant acted in good faith.” Pioneer, at 395. The burden of proof is on the

movant to demonstrate excusable neglect by a preponderance of the evidence. Jones v.

Chemetron Corp., 212 F.3d 199, 205 (3d Cir. 2000).

31. These factors have been discussed at length above and will not be repeated here.

The Pioneer factors weigh in favor of finding excusable neglect and permitting the filing of the

Amended Claim which asserts the quasi-contractual theories of recovery as well as the

contingent claim for indemnification.

32. The Third Circuit in In re O'Brien enumerated several factors to consider in the

Pioneer prejudice analysis. Those factors include: (1) the size of the claim compared to universe

of claims; (2) whether allowing the late claim would adversely impact the judicial administration

of the case; (3) whether the plan was filed or confirmed with knowledge of the existence of the

claim; whether late filing would disrupt the plan; and (4) whether allowing the claim would open

the floodgates to other similar claims. In re O'Brien, at 126 (citing In re Keene Corp., 188 B.R.


12

903). Applying those factors to this case seriatim: (1) Claimant’s quasi-contractual claim is no

greater than his current contractual claim and small compared to the universe of claims in this

case; (2) Claimant’s quasi-contractual claim will not require substantial additional discovery or

extended delay of any hearing on the Claim Objection; (3) the plan has not yet been filed, and

thus will account for claims such as Claimant’s; and (4) there is no reason to believe that the

theories raised in the Amended Claim would have any impact upon the claims of others such that

it would open the floodgates to many other claims. See In re FLYi, Inc., 2008 Bankr. LEXIS

4867 at *9-13.

33. The factors should be viewed the same as to the contingent claim for

indemnification. As explained in the Response to Claim Objection, Claimant terminated his

services with EPX more than three (3) years before the Debtor’s bankruptcy, and until the Claim

Objection was filed after the bar date, no one had ever suggested that he was potentially subject

to claims arising out of his services. Claimant now merely seeks to reserve a contingent claim

for indemnification if and to the extent claims are asserted against him. While the amount of the

indemnification claim amount is presently unknown, it should not impact the administration of

the case as no plan has yet been filed, and the Debtor should have anticipated that Claimant

would reserve the right to seek indemnification once it raised the issue in the Claim Objection.

CONCLUSION

34. For the foregoing reasons, Claimant’s Motion should be granted.

WHEREFORE, Claimant respectfully requests that this Court allow Claimant to file his

Amended Claim and have it relate back to his timely filed Proof of Claim. Alternatively, if the

Court denies Claimant’s motion to amend, the Court should find that excusable neglect permits


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the assertion of claims based upon the alternative theory of recovery and for indemnification.

Dated: December 23, 2014 Respectfully submitted, Wilmington, Delaware

BROWN WYNN McGARRY NIMEROFF LLC By:/s/ Jami B. Nimeroff

Jami B. Nimeroff (No. 4049) 901 N. Market Street, Suite 1300 Wilmington, DE 19801 Telephone: 302-428-8142 Fax: 302-351-2744 Email: [email protected] Attorneys for Claimant, David Hogan


EXHIBIT 1

Case 14-11848-MFW Doc 473-1 Filed 12/23/14 Page 1 of 39



Debtor.

Chapter 11 No. 14-11848(MFW) RE: DI 382 Hearing Date: January 6, 2015 at 10:30 am

DAVID HOGAN’S RESPONSE TO DEBTOR’S OBJECTION TO DAVID HOGAN PROOF OF CLAIM

David Hogan (“Claimant” or “Hogan”), by and through his undersigned counsel, hereby

responds to the Debtor’s Objection (the “Objection”) to David Hogan Proof of Claim filed by

Claimant (the “Proof of Claim”). In support hereof, Claimant respectfully states as follows:

1. On or about October 24, 2014, Claimant filed his Proof of Claim with the

Debtor’s claims agent, a copy of which is attached hereto as Exhibit 1. Claimant filed the Proof

of Claim pro se.

2. In the Proof of Claim, Claimant asserts a claim against the Debtor in the sum of

$191.653.22 as a result of non-payment by the Debtor of fees due to him for services rendered

pursuant to an agreement entered into with EPX in June of 2009, years before the Debtor’s

bankruptcy filing. Claimant attached to the Proof of Claim a letter explaining the basis for his

claim as well as supporting documentation thereof.

3. In the Objection, the Debtor seeks to disallow the Proof of Claim and/or reduce it

to zero pursuant to 11 U.S.C. §§502(b)(1) and 502(b)(4).

4. For the reasons set forth in detail below, Claimant requests that the Court overrule

the Objection to his claim and to allow the claim in the amount set forth in his Proof of Claim.

Case 14-11848-MFW Doc 424 Filed 12/11/14 Page 1 of 12Case 14-11848-MFW Doc 473-1 Filed 12/23/14 Page 2 of 39

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Factual Background

5. During 2009, Claimant was the Senior Vice President of Retail Operations and

CIO of the National Retail Federation, which is the world’s largest Retail Industry trade

association.

6. Due to Claimant’s extensive experience and connections with the retail industry

and technical expertise on industry data security matters, in or about April 2009 Ray Moyer, then

CEO of EPX (“Moyer”) reached out to Claimant to see if there were ways that EPX could

benefit from Claimant’s extensive experience and industry connections. Claimant is recognized

as one of the “Top 50 Most Influential People in Retail” by Executive Technology Magazine, has

been interviewed by 60 Minutes and has testified to Congress on cybercrime and securing the

credit card payment system.

7. After speaking, Moyer requested that Claimant join EPX’s board of directors and

provide other consulting services to EPX, which were set forth in an engagement letter dated

June 30, 2009 executed by both EPX and Claimant.1 A copy of the engagement letter is attached

to the Proof of Claim as Exhibit A.

8. The engagement letter offers Claimant a position as a member of EPX’s board of

directors, and provides that as a member, Claimant will be responsible for attending any

scheduled board meetings in person or by telephone. Exhibit A to Proof of Claim, p. 1.

1 When Claimant returned the executed engagement letter he requested a schedule of board meetings. On November 3, 2009, Claimant met with Moyer at Claimant’s offices, during which they discussed how Claimant’s addition to EPX’s board would help EPX in retail industry. At that meeting, Claimant again requested the schedule of board meetings.


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9. The engagement letter also provides for Claimant to perform consulting services

for EPX. It states:

In addition, from time to time, we would like to have the benefit of your experience and insight regarding various Company related matters through telephone and email communications. We would also appreciate your assistance in helping us gain access to individuals and organizations that may be helpful to the Company’s objectives.

Exhibit A to Proof of Claim, p. 1.

10. As consideration for his services, the engagement letter provides that Claimant

would receive a fee of $25,000 per quarter, which equates to approximately $8,333 per month.

The engagement letter also contemplates that Claimant would receive options to purchase stock

in EPX. Exhibit A to Proof of Claim, p. 1.

11. Over a period of two (2) years, Claimant provided valuable services to EPX

including performing all tasks requested of him by Moyer and EPX, which services directly

benefitted EPX. Claimant provided EPX with access to some of the largest retail companies in

the United States. For example, Claimant connected EPX with decision-makers at QVC home

shopping television network, which according to the Debtor’s bankruptcy schedules, is a client

of EPX that owed the Debtor as of the petition date in excess of $600,000. Claimant ultimately

resigned from his engagement with EPX in July 2011.

12. Claimant received a portion of the agreed-upon fees from EPX in 2010, and

received a 1099 form from EPX for tax reporting purposes. While the balance of the fees

remained unpaid to Claimant as of the bankruptcy, at no time did EPX, through Moyer or

through Nancy Reilly, who was EPX’s Chief Financial Officer and until recently the Debtor’s

Chief Executive Officer, challenge the engagement letter and/or Claimant’s entitlement to

payment of the unpaid fees. See correspondence, copies of which are collectively attached

hereto as Exhibit 2.


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13. While it is unknown whether there were formal or informal board meetings during

the time of Claimant’s engagement by EPX, it is absolutely clear that, despite the allegations

made in the Objection, Claimant spent significant time providing valuable services to EPX

through in-person meetings, telephone conferences and email communications with Moyer and

other senior EPX representatives during the two (2) year period that Claimant was engaged by

EPX.2 Among the services Claimant provided to EPX were the following:

• Arranging introductions between EPX and large national retailers;

• Meeting with EPX executives on potential business targets;

• Meeting with EPX executives on branding and marketing opportunities;

• Meeting with EPX executive regarding payment trends in the retail industry;

• Providing research to EPX on mobile smartphone payments and mobile wallets.

• Giving a presentation to seventy-five (75) retail industry executives on EPX’s

credit card processing capabilities at the National Retail Federation’s Annual

Convention in New York City;

• Providing input on; and quotes for EPX’s press releases on various topics;

• Giving press interviews on credit card security mentioning EPX’s security

solutions;

• Providing exposure to EPX by highlighting it on the National Retail Federation’s

website; and

• Assisting EPX in getting involved with key industry conferences.

2 In the Objection, the Debtor suggests that Claimant provided these services to EPX out of his kindness and generosity.


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14. Those services were contemplated by the engagement letter and were performed

with the expectation of payment, a fact confirmed by Claimant’s repeated requests for payment

from EPX, and EPX’s payments to him, described below.

15. Moreover, at no time during the two years he was engaged by EPX did anyone

from EPX ever dispute the services he was providing or his entitlement to payment from EPX for

such services. See Exhibit 2.

16. In fact, in 2010, Claimant met with Moyer at EPX’s offices to discuss payment

trends in the retail industry. At the end of meeting Moyer called in Ms. Reilly to discuss

processing delinquent compensation to be paid to Claimant for his services, as well as the grant

of stock options to him. Thereafter, in August 2010, Moyer emailed to Claimant that he was

meeting with Ms. Reilly to finalize the fees due to him and stock options. See Exhibit 2.

17. In October and December of 2010, Claimant received two (2) payments of $8,340

for back installments of fees due to him for his services. In early 2011, Ms. Reilly reached out to

Claimant to request information for Form 1099 purposes, but at no time indicated that Claimant

had not earned any fees for his services and would be received no further payments. See Exhibit

B to Proof of Claim.

18. In June 2011, when Claimant sent EPX’s Finance Department an invoice for

delinquent fees due to him, no one from EPX responded that Claimant had not been engaged and

was not entitled to any compensation for the services he had rendered to the company.

19. Shortly thereafter in July 2011, Claimant resigned from his engagement with

EPX.

20. Even after he was no longer providing services to the company, no one at EPX

disputed Claimant’s services to EPX or entitlement to payment for the services he provided. See

Exhibit 2.


6

Response to Objection

21. The Objection is grounded on sections 502(b)(1) and 502(b)(4) of the Bankruptcy

Code. Neither section provides a basis to disallow Claimant’s claim or reduce it to zero.

Section 502(b)(1)

22. Under Section 502(b)(1) of the Bankruptcy Code, a claim may be disallowed to

the extent that it is unenforceable against the Debtor. See 11 U.S.C. §502(b)(1).

23. According to the Debtor, Claimant’s claim is unenforceable under the

engagement letter because its effectiveness was conditioned upon the occurrence of the first

board meeting after Claimant signed the engagement letter, which according to the Debtor never

occurred. Objection, pp. 3-4. At this time and without discovery, Claimant is not in a position to

say whether any board meeting officially or unofficially occurred after he signed the engagement

letter. Even if none took place, however, and even if Claimant did not formally become a

director, his claim for unpaid fees is nonetheless enforceable against the Debtor.

24. The Debtor would have this Court construe the language of the engagement letter

as a condition of effectiveness of the entire agreement. A condition is “[a]n act or event, other

than a lapse of time, that must exist or occur before a duty to perform something promised

arises.” Seaford Assocs. Ltd. P’ship v. Subway Real Estate Corp., No. Civ.A. 2248, 2003 WL

21254847, at *5 n. 30 (Del.Ch. May 21, 2003). Therefore, the Debtor argues, since the

engagement letter never became effective, Claimant is not entitled to any of the fees

contemplated by the agreement for his services.3 However, Delaware courts generally do not

3 Even though Claimant resigned from his services to the Debtor over three (3) years before the bankruptcy, and even though the Debtor’s asset sale appears to have generated proceeds sufficient to pay unsecured creditors in full, the Debtor has reserved the right to assert claims against Claimant for being a “derelict director” if he is found to have been one. Inasmuch as the Objection was the first suggestion by anyone that Claimant may not have acted properly in the performance of his services for EPX, Claimant


7

favor conditions and have stated that “[f]or a condition to effect a forfeiture, it must be

unambiguous.” Martin v. Hopkins, 2006 WL 1915555, at *6 (Del.Super.2006) (citing Old Time

Petroleum Co. v. Turcol, 156 A. 501, 505 (Del.Ch.1931)).

25. The Debtor’s interpretation of the engagement letter would cause a forfeiture and

would not give meaning to the agreement as a whole, including all relevant provisions. “In

upholding the intentions of the parties, a court must construe the agreement as a whole, giving

effect to all provisions therein.” E.I. du Pont de Nemours & Co., Inc. v. Shell Oil Co., 498 A.2d

1108, 1113 (Del.1985). A court should interpret the contract “in such a way as to not render any

of its provisions illusory or meaningless.” Sonitrol Holding Co. v. Marceau Investissements, 607

A.2d 1177, 1183 (Del.1992). The engagement letter contemplated that Claimant would perform

both services as a member of the board of directors and on a consulting basis. The Debtor would

have the Court believe that the consulting services aspect of the engagement letter was

completely gratuitous and not subject to any payment by the Debtor. While it is true that the

engagement letter described the fees to be paid to Claimant as a fee for service on the board,

years before the bankruptcy EPX accepted the scope of the services provided by Claimant,

acknowledged his entitlement to payment from EPX for such services, and in fact paid him a

portion of the fees provided for in the engagement letter. See Exhibits 1 and 2. Therefore,

Claimant’s claim for payment of unpaid fees for service under the engagement letter is

enforceable and thus, allowable against the Debtor.

26. Even if the engagement letter did not become effective, however, Claimant’s

claim for payment for services rendered to EPX remains valid and enforceable against the Debtor

reserves the right to seek indemnification from the Debtor in the event any such claims are asserted against him, including with respect to any applicable insurance coverage.


8

under the doctrine of quantum meruit.4 Quantum meruit allows a party to recover in the absence

of an express agreement. To prove a claim for quantum meruit, a plaintiff must establish that (1)

the party performed the services with the expectation that the recipient of the benefit would pay

for them; (2) that the services were performed, absent a promise to pay; and (3) the

circumstances were such that the recipient should have known that the party expected to be paid.

C & C Drywall Contractor, Inc. v. Milford Lodging, LLC, 2010 WL 1178233 (Del.Super. Jan.

13, 2011) at *3; Petrosky v. Peterson, 859 A.2d 77, 79 (Del. 2004).

27. Here, Claimant provided to EPX the exact type of consulting services it desired

(and noted in the engagement letter). For that two (2) year period, Claimant made his extensive

industry expertise, contacts and relationships and technical expertise available to EPX as and

when desired. It is apparent that Claimant provided his services with the expectation of payment

by EPX. He invoiced EPX for the quarterly fees and he repeatedly followed up to request

payment of outstanding fees. See Exhibits 1 and 2. EPX never challenged his entitlement to the

quarterly fees, and in fact, paid some to him, reflecting EPX’s understanding that Claimant’s

services were not gratuitous. Id. It would be entirely unjust for the Debtor to claim all these

years later that Claimant was not entitled to any further payment for his services, even though he

did everything he was asked to do. Thus, under the doctrine of quantum meruit, Claimant would

be entitled to the value of his services to the Debtor even if the engagement letter never became

effective.

28. For these reasons, Claimant’s claim against the Debtor is enforceable and should

not be disallowed under Section 502(b)(1). EPX contracted with Claimant to provide services at

4 Claimant filed his proof of claim pro se. After the filing of this Response, Claimant, through counsel, intends to move to amend his Proof of Claim as may be necessary or appropriate to include other theories of recovery and potential indemnification claims.


9

a fee of $25,000 per quarter (or $8,333 per month). Claimant provided valuable services to EPX

for two years, during which EPX never complained about the quantity or quality of Claimant’s

services or the fee contracted therefor. Even if the engagement letter did not become effective,

Claimant is entitled an allowed claim for the value of the services provided to EPX from July

2009 through June 2011, which is discussed in further detail below.

Section 502(b)(4)

29. Alternatively, the Debtor relies upon Section 502(b)(4) in arguing that Claimant’s

claim should be reduced to zero because his services had no value. The Debtor’s argument

should be rejected because Section 502(b)(4) does not apply to Claimant’s claim.

30. Section 502(b)(4) applies to claims “for services of an insider or attorney of the

debtor,” and disallows such claims to the extent they exceed “the reasonable value of such

services.” Under the Code definitions, a director of a corporation does qualify as an insider.

31. Even if Claimant became an actual director of EPX, however, Section 502(b)(4)

still would not apply to Claimant’s claim. The purpose of Section 502(b)(4) is to prevent

insiders from “extracting inflated amounts for their services.” In re Delta Air Lines, 2010 WL

423279 (Bankr. S.D.N.Y. Feb. 3, 2010) at *5, citing In re Allegheny Int’l., Inc., 158 B.R. 332,

339 (Bankr. W.D.Pa. 1992). Thus, for purposes of Section 502(b)(4), the important issue is not

whether the claimant was an insider at the time of the bankruptcy, but “whether the claimant was

an insider when the employment contract with the debtor was formed.” Id. See also In re

Russell Cave Co., Inc., 254 B.R. 815 (Bankr. E.D.Ky. 2000) (claimant was insider at the time the

compensation contract at issue was formed).

32. Here, at the time he was requested to become a board member, Claimant was a

retail industry executive with no connection to EPX other than a passing acquaintance with

EPX’s CEO. He was in no more position in June 2009 to extract inflated payments from EPX


10

for his services than he was in extracting any payments from EPX whatsoever. EPX sought out

Claimant, a complete outsider to EPX, for his industry connections and expertise, and that is

exactly what EPX received, whether it was through formal board service or through consulting

services done with the expectation of receiving compensation in return. The Debtor misses the

mark with its reliance upon Section 502(b)(4) as a basis to expunge and/or reduce entirely

Claimant’s claim.

33. Even if Section 502(b)(4) does apply, however, Claimant’s claim should not be

reduced to zero. According to the Debtor, Claimant’s services had zero value to the Debtor to

the extent they were not traditional director services. To the contrary, Claimant performed all

tasks requested of him by EPX, and his services would satisfy the reasonableness standard

established by Section 502(b)(4).

34. In support of its arguments, the Debtor relies upon In re Delta Air Lines, supra.

In Delta, the court considered the applicability of Section 502(b)(4) to a former executive’s

claim and also the appropriate standard for reasonableness. In doing so, the court looked to the

case In re Food Management Group, LLC, 2008 WL 2788738 (Bankr. S.D.N.Y. July 16, 2008)

for the appropriate standard. As explained in Delta Air Lines, Inc., Food Management Group,

LLC held that value is synonymous with the concept of market value and does not require a

showing that the claimant’s services provided a tangible benefit to be deemed valuable. Delta

Air Lines, Inc., 2010 WL 423279 at *7 citing Food Management Group, LLC, 2008 WL

2788738 at *5.

35. There is a similar concept of value under the doctrine of quantum meruit.

“Recovery under a quasi-contract action is the value of the services provided, not the value of the

benefit received.” Hynansky v. 1492 Hospitality Group, Inc., 2007 WL 2319191, *1 (Del.Super.

Aug.15, 2007). The standard for measuring the value of the performance under quantum meruit


11

is the amount for which such services could have been purchased from one in the plaintiff’s

position at the time and place the services were rendered. Id.

36. Here, while Claimant believes that his services surely provided a tangible benefit

to EPX, for example, with respect to the introductions he made for EPX to the decision-makers

at QVC, such tangible benefit need not be shown. Value for purposes of both Section 502(b)(4)

and quantum meruit, to the extent they apply, is based on the concept of market value to the

Debtor for such services.

37. As explained above, Claimant provided the benefit of his retail industry

knowledge, contacts and experience to EPX over the course of a two (2) year period. The exact

services he provided were expressly contemplated by the engagement letter, and were accepted

by EPX. Claimant performed all services requested of him by EPX. EPX was clearly pleased

with his services. EPX did not terminate him and acknowledged the obligation to compensate

him pursuant to the fee structure of the engagement letter. Even if Claimant’s services were not

traditional director services, EPX would have been unable to obtain Claimant’s services without

compensation to him, and the Debtor has not so alleged.5

38. Under these circumstances, it would be inappropriate to reduce Claimant’s claim

to zero as argued in the Objection. To the extent that the Court believes Claimant’s claim should

not be allowed in the amount provided for in the parties’ agreement, but should be limited to the

concept of value or reasonable value, Claimant respectfully requests that the Court set a further

hearing to consider such issue and take any necessary evidence.

5 Claimant notes that on the Debtor’s Statement of Financial Affairs, the Debtor states that within the months leading up to the bankruptcy filing it made monthly payments of $10,000 and $15,000, respectively, to two (2) individuals apparently as outside directors. While those payments appear to have been for director fees and not true consultant services, such payments are evidential of the market value for non-insider services.


12

39. Claimant further respectfully requests the opportunity to conduct discovery with

respect to the issues raised in the Objection. In this regard, Claimant respectfully requests that

the hearing on the Objection presently scheduled for January 6, 2015 go forward as a status

conference to enter a scheduling order permitting discovery and a further hearing with respect to

the Objection.

40. Claimant further respectfully requests permission of the Court to submit

additional briefing on the issues raised in the Objection after discovery or further hearings on the

Objection have concluded, as may be necessary or appropriate.

WHEREFORE, for all of the foregoing reasons, Claimant, David Hogan respectfully

requests that the Court overrule the Objection to Claimant’s Proof of Claim and allow such

claims in full in the amounts provided in Claimant’s Proof of Claim, and grant such other relief

as the Court deems just and equitable.

Date: December 11, 2014 Respectfully submitted, Wilmington, Delaware

BROWN WYNN McGARRY NIMEROFF LLC By:/s/ Jami B. Nimeroff

Jami B. Nimeroff (No. 4049) 901 N. Market Street, Suite 1300 Wilmington, DE 19801 Telephone: 302-428-8142 Fax: 302-351-2744 Email: [email protected] Attorneys for Claimant, David Hogan


EXHIBIT 1

Case 14-11848-MFW Doc 424-1 Filed 12/11/14 Page 1 of 13Case 14-11848-MFW Doc 473-1 Filed 12/23/14 Page 14 of 39

EXHIBIT 2


1

From: Ray Moyer [mailto:[email protected]] Sent: Tuesday, August 10, 2010 7:38 AM

To: Hogan, David Subject: RE: PCI SSC 2010 Community Meeting Reminder

Dave:

Matt is attending the conference. I let Matt know that you were attending. He will find you to compare notes. Incidentally, I spoke with Nancy last week regarding your agreements, distribution and fees. She needed a couple of more days to put everything in place. Nancy and I are meeting on Thursday at 3:00 pm, at which time she will have everything completed and we can distribute your shares and fees. I will call you immediately after that meeting.

I am arranging a meeting with MasterCard to discuss new, lower interchange categories for certain merchants. The meeting will probably be in September. NCR plans to attend. If you would like to attend, please let me know.

Talk to you on Thursday.

Ray

Ray Moyer, CEO Electronic Payment Exchange Phone: 302-288-0550 Mobile: 302-420-5966 Email: [email protected] Web: www.epx.com

CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.

From: Matt Ornce

Sent: Monday, August 09, 2010 3:07 PM To: Ray Moyer

Subject: RE: PCI SSC 2010 Community Meeting Reminder

Yes. The PPISC also has a meeting either the day before or the day after the PCI, so it’s a 2-fer.

REDACTED


2

From: Ray Moyer

Sent: Monday, August 09, 2010 2:08 PM To: Matt Ornce

Subject: FW: PCI SSC 2010 Community Meeting Reminder Importance: Low Are you going to this conference?

Ray Moyer, CEO Electronic Payment Exchange Phone: 302-288-0550 Mobile: 302-420-5966 Email: [email protected] Web: www.epx.com

CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.

From: Hogan, David [mailto:[email protected]]

Sent: Monday, August 09, 2010 9:43 AM To: Ray Moyer

Subject: FW: PCI SSC 2010 Community Meeting Reminder Importance: Low Ray… by chance, is anyone from your team going to the PCI SSC meeting next month in Orlando? I am planning to attend. David Hogan SVP Retail Operations & CIO 202.626.8126 From: PCI Security Standards Council [mailto:[email protected]]

Sent: Monday, August 09, 2010 9:01 AM

To: Hogan, David Subject: PCI SSC 2010 Community Meeting Reminder


3

Dear Participating Organization,

This is just a reminder that only a few weeks remain to register for the 2010 Annual

Community Meetings taking place this fall in Orlando, Florida and Barcelona, Spain!

If you haven't registered yet, please visit the new website dedicated to the Community

Meetings. If you have already done so, please disregard this message and accept our

thanks. We look forward to seeing you!

Attendance at the 2010 Community Meetings is an exclusive benefit of Council

membership and your opportunity to meet face to face with the PCI Security Standards

Council and industry stakeholders to discuss and share feedback on revisions and new

standards to be released, network with peers across global regions and industry

markets, register for PCI training sessions and gain insight into other Council programs

and resources. You will also have the chance to engage in dialog with representatives

from each of the payment card brands in question and answer forums.

Remember, this is your chance to have your voice heard, get answers to your PCI

questions and learn what the future of the standards will be, while cultivating

relationships with key stakeholders across the global payment chain. We'll also be

holding Standards and ISA training sessions at this year's meetings, which you can

learn more about in the Education section of the PCI SSC website.

I strongly encourage you to take advantage of your Council membership and attend this

year's Community Meeting. As a Participating Organization , you receive two free

registrants, so we hope to see you in Orlando and Barcelona!

Sincerely,

Bob


4

Bob Russo

General Manager

PCI Security Standards Council

www.pcisecuritystandards.org

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UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE


Debtor.

Chapter 11 No. 14-11848(MFW)

DECLARATION OF DAVID HOGAN I, David Hogan, hereby declare under the penalty of perjury as follows:

1. I am adult individual, and am the claimant who filed the proof of claim that is at

issue in the Debtor’s Objection to David Hogan Proof of Claim.

2. I make this declaration based upon my personal knowledge.

3. The facts set forth in the foregoing David Hogan’s Response to Debtor’s

Objection to David Hogan Proof of Claim (the “Response”) are true and correct.

4. The documents attached as exhibits to the foregoing Response, as well as to the

filed proof of claim, are true and correct copies of the documents attached thereto.

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

knowledge, information, and belief.

DAVID HOGAN




Debtor.

Chapter 11 No. 14-11848(MFW)

CERTIFICATE OF SERVICE

I, Jami B. Nimeroff, hereby certify that on this 11th day of December, 2014, I caused a

true and correct copy of David Hogan’s Response to Debtor’s Objection to David Hogan Proof

of Claim to be served via hand delivery upon the following:

Mark D. Collins, Esquire Russell C. Silberglied, Esquire

Zachary I. Shapiro, Esquire Marisa A. Terranova, Esquire

Richards, Layton & Finger, P.A. 920 N. King Street

Wilmington, DE 19801

/s/ Jami B. Nimeroff Jami B. Nimeroff


EXHIBIT 2




Debtor.

Chapter 11 No. 14-11848 (MFW) Hearing Date: February 26, 2015 at 2:00 p.m. ET Obj. Deadline: January 13, 2015 at 4:00 p.m. ET

NOTICE OF MOTION, RESPONSE DEADLINE AND HEARING DATE

PLEASE TAKE NOTICE that Claimant David Hogan has filed a Motion for an Order

Authorizing Filing of Amended Proof of Claim (the “Motion”) with the United States

Bankruptcy Court for the District of Delaware, 824 Market Street, Third Floor, Wilmington,

Delaware 19801.

PLEASE TAKE FURTHER NOTICE that objections or responses to the Motion, if

any, must be made in writing, filed with the Clerk of the Bankruptcy Court, 824 Market Street,

Third Floor, Wilmington, Delaware 19801, and served upon the undersigned counsel so as to be

received on or before January 13, 2015 by 4:00 p.m. ET.

PLEASE TAKE FURTHER NOTICE that a hearing with respect to the Motion will be

held on February 26, 2015 at 2:00 p.m. ET, before the Honorable Mary F. Walrath at the

Bankruptcy Court, 824 Market Street, 5th Floor, Courtroom #4, Wilmington, Delaware 19801.

PLEASE TAKE FURTHER NOTICE that if no objection to the Motion is timely filed,

served and received in accordance with this Notice of Motion, the Bankruptcy Court may grant

the relief requested without further notice or a hearing.


2

Dated: December 23, 2014 BROWN WYNN McGARRY NIMEROFF LLC Wilmington, Delaware

By:/s/ Jami B. Nimeroff Jami B. Nimeroff (No. 4049)

901 N. Market Street, Suite 1300 Wilmington, DE 19801 Telephone: 302-428-8142 Fax: 302-351-2744 Email: [email protected] Attorneys for Claimant, David Hogan


CERTIFICATE OF SERVICE

I, Jami B. Nimeroff, hereby certify that on this 23rd day of December, 2014, I caused to

be served a true and correct copy of Motion of Claimant David Hogan for an Order

Authorizing Filing of Amended Proof of Claim upon the parties listed on the attached Service

List via the method indicated.

Dated: December 23, 2014 BROWN WYNN McGARRY NIMEROFF LLC Wilmington, Delaware

By:/s/ Jami B. Nimeroff Jami B. Nimeroff

901 N. Market Street, Suite 1300 Wilmington, DE 19801 Telephone: 302-428-8142 Fax: 302-351-2744 Email: [email protected]


Service List

Mark D. Collins Zachary I Shapiro Richards, Layton & Finger, P.A. One Rodney Square 920 North King Street Wilmington, DE 19801 Via Hand Delivery Michael G. Menkowitz William H. Stassen Fox Rothschild LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103-3222 Via First Class U.S. Mail Seth A. Niederman Fox Rothschild LLP 919 North Market Street, Suite 1300 P.O. Box 2323 Wilmington, DE 19899 Via Hand Delivery David J. Wolfsohn DUANE MORRIS LLP 30 South 17th Street Philadelphia, PA 19103-4196 Via First Class U.S. Mail

Benjamin A. Hackman Office of the United States Trustee 844 King Street Suite 2207 Wilmington, DE 19801 Via Hand Delivery Marc Stephen Casarino White and Williams LLP 824 Market Street Suite 902 Wilmington, DE 19899 Via Hand Delivery Earl M. Forte Amy E. Vulpio White and Williams LLP 1650 Market Street, 18th Floor Philadelphia, PA 19103 Via First Class U.S. Mail Wojciech F. Jung Sharon L. Levine Kenneth A. Rosen Lowenstein Sandler LLP 65 Livingston Avenue Roseland, NJ 07068 Via First Class U.S. Mail


hogan final motion to amend proof of claim - · pdf filethe threshold inquiry is whether the...

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