UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: ENERGY CONVERSION DEVICES, INC., et al., 1 Debtors. Chapter 11 Case No. 12-43166 (Jointly Administered) Judge Thomas J. Tucker DEBTORS OBJECTIONS TO CERTAIN CLAIMS OF SOLAR INTEGRATED TECHNOLOGIES GMBH Energy Conversion Devices, Inc. ( ECD ) and United Solar Ovonic LLC ( USO ), as debtors in the above-captioned cases (collectively, the Debtors ), object to Solar Integrated Technologies GmbH s ( SIT GMBH ) proofs of claim filed on or about June 14-20, 2012 in the amounts of $3,530,241.81, $1,806,701.00, $2,956,550.00, $9,061,401.00, $6,943,062.79, and $2,178,045.00 for a total of $26,476,001.60 against USO [registered by claims agent Kurtzman Carson Consultants as Claim Nos. 516, 518, 520, 523, 526, and 532, respectively] (the Claims ) for the following reasons: Introduction 1. SIT GMBH filed the Claims on or about June 14-20, 2012. In the Claims, SIT GMBH asserts a total of $26,476,001.60 in damages relating to unpaid invoices, refunds on certain purchase prices, devaluation of inventory, contract damages, and the cost to scrap/write off materials. 1 The Debtors in these jointly administered cases are Energy Conversion Devices, Inc. (Case No. 12-43166) and United Solar Ovonic LLC (Case No. 12-43167). 1 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 1 of 15
2. As set forth below, the Debtors object to the Claims on numerous grounds. Based on those objections, the Debtors request that the Court either disallow the Claims in their entirety or reduce the Claims in amounts to be determined by the Court. Jurisdiction 3. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 1334. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 4. Venue is proper pursuant to 28 U.S.C. 1408 and 1409. Background The Debtors Chapter 11 Cases 5. On February 14, 2012 (the Petition Date ), each of the Debtors filed voluntary petitions for relief (the Chapter 11 Cases ) under chapter 11 of Title 11 of the United States Code. The Debtors continue to operate their businesses and manage their financial affairs and properties as debtors in possession pursuant to 1107(a) and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in either of the Chapter 11 Cases. 6. ECD, through its wholly owned subsidiary Solar Integrated Technologies, Inc. ( SIT ), was involved in a business that specialized in installing and servicing rooftop PV systems. Prior to 2009, SIT was independently owned from ECD and engaged in the business of designing, manufacturing and installing PV roofing systems, and was one of USO s largest customers. In 2009, SIT was merged with and into a subsidiary of ECD, resulting in SIT as the surviving entity and wholly owned subsidiary of ECD. The surviving entity was not merged with ECD, but is a separate legal entity. SIT filed a voluntary petition under chapter 7 of the Bankruptcy Code on the Petition Date. SIT GMBH is a wholly owned subsidiary of SIT. 7. The Debtors are in the process of liquidating their assets and have filed their Second Amended Joint Plan of Liquidation of Energy Conversion Devices, Inc. and United Solar 2 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 2 of 15
Ovonic LLC [Docket No. 611] (as amended, modified or supplemented from time to time, the Plan ). Argument A. Claims Objections Under The Bankruptcy Code 8. A proof of claim must set forth the facts necessary to support the claim for it to receive the prima facie validity accorded under the Bankruptcy Rules. 9 COLLIER ON BANKRUPTCY 3001.09[1] (Alan N. Resnick & Henry J. Sommer eds., 16th ed.); see also Ashford v. Consol. Pioneer Mortgage, 178 B.R. 222, 226 (B.A.P. 9th Cir. 1995); In re Allegheny Int l, Inc., 954 F.2d 167, 173-74 (3rd Cir. 1992); In re Chain, 255 B.R. 278, 280 (Bankr. D. Conn. 2000); 9. Section 502(b)(1) of the Bankruptcy Code provides, in relevant part, that a claim may not be allowed to the extent that such claim is unenforceable against the debtor... under any agreement or applicable law. 11 U.S.C. 502(b)(1). B. Claim No. 516 - $3,530,241.81 10. SIT GMBH filed Claim No. 516 against USO asserting a total claim of $3,530,241.81. Claim No. 516 is comprised of 21 invoices, with no supporting documentation attached to demonstrate USO s obligation to pay such invoices. 11. The Debtors object to the invoices because each invoice is part of an integrated inventory transfer relating to a single transaction, and the individual invoices attached must be recouped or setoff against related obligations arising from the same transaction. C. Claim No. 518 - $1,806,701.00 12. SIT GMBH filed Claim No. 518 against USO in the amount of $1,806,701.00. 13. The Debtors object to Claim No. 518 because it asserts claims based on invoiced amounts, however, each invoice is part of an integrated inventory transfer relating to a single 3 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 3 of 15
transaction, and the individual invoices referenced must be recouped or setoff against related obligations arising from the same transaction. Additionally, SIT GMBH failed to object to transfer pricing at the time such prices were invoiced, including the mark-up now claimed as a damage. Therefore, SIT GMBH has waived its right to seek refunds of the purchase prices and the account is stated. 14. Furthermore, SIT GMBH has failed to attach evidence or otherwise set forth facts necessary to support its assertion that would entitle SIT GMBH to any refund of the purchase price. D. Claim No. 520 - $2,956,550.00 15. SIT GMBH filed Claim No. 520 against USO in the amount of $2,956,550.00, which it asserts as the damages it suffered as a result of devaluation of its inventory upon the Debtors bankruptcy filings. 16. SIT GMBH has failed to attach evidence or otherwise set forth facts necessary to support its assertion that USO is liable for, or has any contractual obligation related to, lost profits or value on SIT GMBH s inventory. E. Claim No. 523 - $9,061,401.00 17. SIT GMBH filed Claim No. 523 against USO in the amount of $9,061,401.00 for reduced contract revenue. Attached to Claim No. 523 is a contract between Winch Energy 9 Di Winch Energy-Sicilia Srl, Societa in Accomandita Semplice ( Winch ) and SIT GMBH, dated February 25, 2011 (as amended, the Winch Contract ). The Winch Contract references ECD as a guarantor and attaches a form of guarantee, which is unsigned. SIT GMBH fails to attach the signed guarantee to Claim 523. 4 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 4 of 15
18. USO is not a party to the Winch Contract or any guarantee of the Winch Contract. None of the documentation attached to the Claim is signed by or references USO, except for the summary attached as the second page of the Claim. 19. Claim No. 523 alleges that ECD s failure to fulfill role of a guarantor under the Winch Contract caused damages to SIT GMBH. 20. The Debtors object to Claim No. 523 for the following reasons: SIT GMBH fails to demonstrate a contractual obligation between SIT GMBH and USO. SIT GMBH alleges damages caused by ECD but Claim No.523 was filed against USO. Claim No. 523 alleges claims against Winch or its affiliates for amounts owing pursuant to the Winch Contract, which it should assert against those parties and not the Debtors. SIT GMBH may have settled its claims under the Winch Contract with Winch and its affiliates and has therefore waived its contractual claim by satisfaction, accord or otherwise. ECD s alleged guarantor obligation extends to Winch and its affiliates. SIT GMBH is not a beneficiary entitled to enforce the guarantee to the Winch Contract because ECD guaranteed SIT GMBH s performance to Winch and its affiliates. F. Claim No. 526 - $6,943,062.79 21. SIT GMBH filed Claim No. 526 against USO in the amount of $6,943,062.79, which is the total of the 15 invoices attached to the Claim. 22. The Debtors object to the invoices because each invoice is part of an integrated inventory transfer relating to a single transaction, and the individual invoices attached must be recouped or setoff against related obligations arising from the same transaction. 5 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 5 of 15
G. Claim No. 532 - $2,178,045.00 23. SIT GMBH filed Claim No. 532 against USO in the amount of $2,178,045.00 for damages resulting from the scrapping of materials purchased by SIT GMBH because of the cancellation of projects by ECD and its affiliates. 24. The Debtors object to Claim No. 532 for the following reasons: SIT GMBH has failed to attach evidence or otherwise set forth facts necessary to support its assertion that ECD is liable for the scrapped material. H. USO s Set Off Rights Against Any and All SIT GMBH Claims 25. In addition to the objections raised above as to each of the Claims, USO holds set off and/or recoupment rights well in excess of the Claims filed by SIT GMBH against USO. Indeed, in SIT GMBH s own Claim No. 516, it attaches internal records which demonstrate affiliate intercompany balances, with line amounts owed by SIT GMBH to USO of $8,756,944.04, $20,096,264.50 and $1,227,861.01 for a total of $30,081,069.58 as of December 31, 2011. These amounts are recorded under the names United Solar Ovonic-Winch and United Solar Ovonic Detroit (Warren) which the Debtors believe are owed to USO. 26. Therefore, the Debtors object to SIT GMBH s claims because USO has rights of setoff against the Claims in excess of the amounts of the Claims. 27. The Debtors do not waive and expressly reserve their right to assert additional objections to the Claims and to amend and modify this Objection. Conclusion The Debtors respectfully request that the Court enter an order, substantially in the form attached as Exhibit 1, disallowing SIT GMBH s Claims in their entirety. 6 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 6 of 15
HONIGMAN MILLER SCHWARTZ AND COHN LLP Counsel for the Debtors Date: July 2, 2012 By: /s/ Aaron M. Silver Aaron M. Silver (P65481) 2290 First National Building 660 Woodward Avenue Detroit, MI 48226 Telephone: (313) 465-7000 Facsimile: (313) 465-8000 Email: asilver@honigman.com 7 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 7 of 15
EXHIBIT 1 Proposed Order 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 8 of 15
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: ENERGY CONVERSION DEVICES, INC., et al. 1, Debtors. Chapter 11 Case No. 12-43166 (Jointly Administered) Judge Thomas J. Tucker ORDER DISALLOWING CERTAIN CLAIMS FILED BY SOLAR INTEGRATED TECHNOLOGIES GMBH Upon the objection (the Objection ) 2 of the above-captioned debtors (collectively, the Debtors ) for entry of an order disallowing Solar Integrated Technologies GmbH s ( SIT GMBH ) proofs of claim filed on or about June 14-20, 2012 in the amounts of $3,530,241.81, $1,806,701.00, $2,956,550.00, $9,061,401.00, $6,943,062.79, and $2,178,045.00 for a total of $26,476,001.60 against USO [Claim Nos. 516, 518, 520, 523, 526, and 532, respectively] (the Claims ); it appearing that the relief requested is in the best interest of the Debtors estates, their creditors and other parties in interest; it appearing that this Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334; it appearing that this proceeding is a core proceeding pursuant to 28 U.S.C. 157(b); it appearing that venue of this proceeding and this Objection in this District is proper pursuant to 28 U.S.C. 1408 and 1409; it appearing that notice of this Objection and the opportunity for a hearing on this Objection was appropriate under the particular circumstances and that no other or further notice need be given; and after due deliberation and sufficient cause appearing therefor; 1 The Debtors in these jointly-administered cases are Energy Conversion Devices, Inc. (Case No. 12-43166) and United Solar Ovonic LLC (Case No. 12-43167). 2 Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Objection. 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 9 of 15
IT IS HEREBY ORDERED THAT: 1. The Objection is granted in its entirety. 2. The Claims are disallowed pursuant to section 502(b) of the Bankruptcy Code and shall be expunged from the claims registry. 3. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. 2 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 10 of 15
EXHIBIT 2 Notice of Objection 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 11 of 15
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: ENERGY CONVERSION DEVICES, INC., et al. 1, Debtors. Chapter 11 Case No. 12-43166 (Jointly Administered) Judge Thomas J. Tucker NOTICE OF OBJECTION TO CLAIMS Energy Conversion Devices, Inc. ( ECD ) and United Solar Ovonic LLC ( USO ), as debtors in the above-captioned cases (collectively, the Debtors ), have filed an objection to certain of your claims in these bankruptcy cases. Your claims may be reduced, modified, or denied. You should read these papers carefully and discuss them with your attorney, if you have one. If you do not want the court to deny or change your claims, then on or before August 15, 2012, you or your lawyer must: 1. File with the Court a written response to the objection, 2 explaining your position at: United States Bankruptcy Court 211 W. Fort Street, Suite 2100 Detroit, MI 48226 If you mail your response to the Court for filing, you must mail it early enough so the Court will receive it on or before the date stated above. All attorneys are required to file pleadings electronically. You must also mail a copy to: Aaron M. Silver, Esq. Honigman Miller Schwartz and Cohn LLP 1 The Debtors in these jointly-administered cases are Energy Conversion Devices, Inc. (Case No. 12-43166) and United Solar Ovonic LLC (Case No. 12-43167). 2 Response or answer must comply with Fed. R. Civ. P. 8(b), (c) and (e). 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 12 of 15
2290 First National Building 660 Woodward Avenue Detroit, MI 48226 2. Attend the hearing on the objection, scheduled to be held on August 22, 212, at 11:00 a.m. in Courtroom 1925, United States Bankruptcy Court, 211 W. Fort Street, Suite 2100, Detroit, MI 48226, unless your attendance is excused by mutual agreement between yourself and the objector s attorney. (Unless the matter is disposed of summarily as a matter of law, the hearing shall be a pre-trial conference only; neither testimony nor other evidence will be received. A pre-trial scheduling order may be issued as a result of the pre-trial conference.) If you or your attorney do not take these steps, the Court may deem that you do not oppose the objection to your claims, in which event the hearing will be canceled, and the objection sustained. HONIGMAN MILLER SCHWARTZ AND COHN LLP Counsel for the Debtors Date: July 2, 2012 By: /s/ Aaron M. Silver Aaron M. Silver (P65481) 2290 First National Building 660 Woodward Avenue Detroit, MI 48226 Telephone: (313) 465-7000 Facsimile: (313) 465-8000 Email: asilver@honigman.com 2 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 13 of 15
EXHIBIT 3 Certificate of Service 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 14 of 15
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: ENERGY CONVERSION DEVICES, INC., et al. 1, Debtors. Chapter 11 Case No. 12-43166 (Jointly Administered) Judge Thomas Tucker CERTIFICATE OF SERVICE Debtors have engaged a Noticing Agent, which will serve this Objection and file a subsequent Proof of Service after it has performed the service. HONIGMAN MILLER SCHWARTZ AND COHN LLP Counsel for the Debtors Date: July 2, 2012 By: /s/ Aaron M. Silver Aaron M. Silver (P65481) 2290 First National Building 660 Woodward Avenue Detroit, MI 48226 Telephone: (313) 465-7000 Facsimile: (313) 465-8000 Email: asilver@honigman.com ACTIVE.11059618.3 1 The Debtors in these jointly administered cases are Energy Conversion Devices, Inc. (Case No. 12-43166) and United Solar Ovonic LLC (Case No. 12-43167). 12-43166-tjt Doc 882 Filed 07/02/12 Entered 07/02/12 23:16:48 Page 15 of 15