response to illinois ag motion for stay relief.final for

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION www.flsb.uscourts.gov

In re: Chapter 11 Cases LIBERTY POWER HOLDINGS, LLC, Case No. 21-13797-SMG LPT, LLC, Case No. 21-15537-SMG LIBERTY POWER MARYLAND, LLC, Case No. 21-15539-SMG LIBERTY POWER DISTRICT OF COLUMBIA, LLC, Case No. 21-15540-SMG

Debtors. (Jointly administered 21-13797-SMG) /

DEBTORS’ OBJECTION TO THE ILLINOIS ATTORNEY GENERAL’S MOTION

FOR ORDER DECLARING THE AUTOMATIC STAY INAPPLICABLE TO THE ILLINOIS ATTORNEY GENERAL’S ACTION, OR IN THE ALTERNATIVE,

FOR RELIEF FROM THE AUTOMATIC STAY

Liberty Power Holdings, LLC (“Holdings”), Liberty Power District of Columbia, LLC

(“Liberty District of Columbia”), LPT, LLC (“LPT”) and Liberty Power Maryland, LLC

(“Liberty Maryland”)(collectively, the “Debtors”), by and through their undersigned counsel, file

this objection (the “Objection”) to The Illinois Attorney General’s Motion for Order Declaring

the Automatic Stay Inapplicable to the Illinois Attorney General’s Action, or in the alternative,

for Relief from the Automatic Stay (the “Stay Relief Motion”) [ECF No. 195]1 and state as

follows:

RELEVANT BACKGROUND

1. On April 20, 2021 (the “Petition Date”), Holdings filed a voluntary petition in this

Court for relief under the Bankruptcy Code.

2. On June 4, 2021, Liberty District of Columbia, LPT and Liberty Maryland, each a

wholly-owned subsidiary of Holdings, filed chapter 11 bankruptcy petitions and thereafter

1 All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Motion.

Case 21-13797-SMG Doc 259 Filed 07/12/21 of 28

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obtained joint administration of such bankruptcy cases with the chapter 11 case of Holdings,

including to facilitate the sale of all or substantially all of the Debtors’ assets, including without

limitation, retail customer contracts, pursuant to Sections 363 and 365 of the Bankruptcy Code.

3. Since their respective bankruptcy filings, the Debtors have operated as debtors-in-

possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.

4. As of the date hereof, no creditors’ committee has been appointed in these cases.

In addition, no trustee or examiner has been appointed.

5. For a detailed description of the Debtors and their operations, the Debtors

respectfully refer the Court and parties in interest to the Declaration of Bob Butler, Chief

Restructuring Officer, in Support of the Chapter 11 Petition and First Day Motions (the “First Day

Declaration”) [ECF No. 10].

6. On May 18, 2021, Holdings filed the Debtor’s Expedited Motion For The Entry Of

An Order (1) Approving Competitive Bidding Procedures For The Sale Of Substantially All Of

The Debtor’s Assets, (2) Scheduling Dates To Conduct Auction And Sale Hearing, (3) Approving

The Form And Manner Of Notices, (4) Approving The Sale Of Substantially All Of The Debtor’s

Assets Free And Clear Of All Liens, Claims, Encumbrances And Interests, (5) Approving

Assumption And Assignment Procedures For Executory Contracts, And (6) Granting Related

Relief [ECF No. 98](the “Bid Procedures Motion”) seeking, among other things, entry of an Order

approving (1) the competitive bidding procedures for the sale of substantially all of Holdings’

Assets (as defined therein), (2) scheduling dates to conduct auction and sale hearing, (3) approving

the form and manner of notices, including the Sale Notice and the Cure Notice (as defined therein),

(4) approving the sale of substantially all of Holdings’ Assets free and clear of all liens, claims,

encumbrances and interests, (5) approving procedures for the assumption and assignment of


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executory contracts and unexpired leases, and (6) other related relief.

7. On May 28, 2021, the Court entered its Order granting the Bid Procedures Motion

[ECF No. 156] (the “Bid Procedures Order”). Pursuant to the Bid Procedures Order, the Bid

Deadline is August 19, 2021, an Auction is scheduled to take place on August 25, 2021, if

necessary, and the Court has scheduled the Sale Hearing for August 31, 2021. The Debtors

anticipate closing on the sale of all or substantially all of their assets shortly thereafter.

PRELIMINARY STATEMENT

In the Stay Relief Motion, the Illinois Attorney General (the “Illinois AG”) seeks a

declaratory judgment from this Court that the automatic stay provisions of section 362(a) do not

apply to the “consumer protection action” that it filed in state court in Illinois over seventeen (17)

months ago (the “State Court Action”) because, according to the Illinois AG, the State Court

Action is an exercise of Illinois’ police and regulatory powers that is excepted from the automatic

stay by the application of section 362(b)(4). The Debtors object to the relief sought in the Stay

Relief Motion, including because under the facts and circumstances of these Chapter 11 cases, the

State Court Action “primarily” seeks relief that is well outside the narrowly construed confines of

“police and regulatory powers.” In fact, as explained below in detail, the Complaint also seeks

relief that constitutes direct and willful violations of the automatic stay.

To be clear, other than attaching the operative complaint in the State Court Action (the

“Complaint”), the Stay Relief Motion does not contain any meaningful analysis of the facts of this

case, contains only bald assertions, and importantly overlooks certain critical issues that bear

directly on the relief sought. First, the Complaint seeks relief that goes well beyond the

enforcement of Illinois’ police and regulatory powers, including importantly (i) seeking to rescind

existing contracts that the Debtors have with customers in Illinois (which are clearly property of


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these bankruptcy estates), and (ii) seeking to revoke the Debtors’ Certificate of Authority to

operate as an alternative retail electric supplier in Illinois (which is also property of these

bankruptcy estates). In addition, despite a bald assertion to the contrary in the Stay Relief Motion,

the Complaint itself makes clear that the Illinois AG is, in fact, seeking to (i) obtain civil penalties

for its own pecuniary interest, and (ii) adjudicate private rights of Illinois customers by seeking

restitution and disgorgement from the Debtors for the purpose of refunding such monies to the

Illinois customers that the Illinois AG says were defrauded by the alleged conduct of the Debtors.2

Second, the only plausible aspect of the Complaint that would fall under the police and

regulatory powers of Illinois is the injunctive relief sought therein, which the Illinois AG asserts

is necessary to protect Illinois consumers from the Debtors’ alleged fraudulent scheme. For the

record, the Debtors deny that they were engaged in, or are currently engaged in, any fraudulent

scheme as to any of their customers, including Illinois consumers. More to the point, however, is

the fact that the Complaint was filed on February 18, 20203 and the Illinois AG has not obtained a

temporary restraining order, or any type of injunctive relief, over the past 17 months. In fact, upon

information and belief, the Illinois AG sought to obtain a temporary injunction in the early stages

of the State Court Action and it was denied by the state court. Therefore, even if this Court were

to determine that the injunctive relief sought in the Complaint is typically not protected by the

automatic stay, then the Debtors assert that the Stay Relief Motion should still be denied because

the requested injunctive relief will be moot in approximately 6 weeks when the Debtors complete

the sale process for all or substantially all of their assets pursuant to the Court’s Bid Procedures

2 The bar date for governmental units to file a proof of claim in these Chapter 11 cases is October 18, 2021. The Illinois AG can simply file a proof of claim to address their claims for civil penalties or damages based on rescission or disgorgement. 3 For some reason, the Stay Relief Motion states that the action was filed on March 20, 2020. However, the Complaint attached to the Stay Relief Motion clearly shows that it was date stamped on February 18, 2020. In addition, a review of the docket of the State Court Action also shows that it was commenced on February 18, 2020.


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Order, at which point the Debtors will no longer be doing business in Illinois or any other state.

Alternatively, the Court could deny the Stay Relief Motion, without prejudice to be renewed if the

Debtors continue in business in Illinois for some reason after the completion of the sale process.4

In fact, the Illinois AG suggested this exact result in a motion that it filed in the State Court Action

in May 2021.

Third, as to the alternative relief sought by the Illinois AG, the Stay Relief Motion is devoid

of any statutory or factual basis establishing “cause” to grant the Illinois AG relief from the

automatic stay with respect to any aspect of the Complaint. As a result, such relief should be

denied.

Therefore, as outlined in detail below, the Stay Relief Motion should be denied under the

facts and circumstances of the present case. At best, the Illinois AG should only be allowed to

renew the Stay Relief Motion if the Debtors continue operating their business in Illinois for some

reason after consummating the sale of their assets pursuant to the Bid Procedures Order.

DEBTORS’ OBJECTIONS

A. The Automatic Stay Is a Fundamental Debtor Protection.

Upon the filing of a bankruptcy petition, § 362(a) of the Bankruptcy Code operates to stay

automatically the commencement or continuation of “virtually all proceedings against a debtor,

including enforcement of judgments, that were or could have been commenced before the debtor

filed for bankruptcy.” In re Dolen, 265 B.R. 471, 478 (Bankr. M.D. Fla. 2001) (citing Securities

& Exchange Commission v. Brennan, 230 F.3d 65, 70 (2nd Cir. 2000)); see also 11 U.S.C. §

362(a).

4 The Debtors also assert that the Court could extend the automatic stay over the Illinois AG on a temporary basis pending completion of the sale process and closing.


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“The automatic stay is among the most basic of debtor protections under bankruptcy law.”

Soares v. Brockton Credit Union (In re Soares), 107 F. 3d 969, 975 (1st Cir. 1997) (citing

Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Protection, 474 U.S. 494, 503 (1986); see also

In re Halo Wireless, Inc., 684 F.3d 581, 586 (5th Cir. 2012). (“Congress considered the automatic

stay one of the fundamental debtor protections provided by the bankruptcy laws when it was

instituted.”). The stay “is extremely broad in scope and, ‘aside from the limited exceptions of

subsection’ (b), applies to almost any type of formal or informal action taken against the debtor or

the property of the estate.” Montalvo v. Autoridad de Acueductos y Alcantarillados (In re

Montalvo), 537 B.R. 128, 140 (Bankr. D.P.R. 2015). This expansive scope serves the cardinal

purposes of bankruptcy: namely, to “prevent certain creditors from gaining a preference for their

claims against the debtor; to forestall the depletion of the debtor’s assets due to legal costs in

defending proceedings against it; and, in general, to avoid interference with the orderly liquidation

or rehabilitation of the debtor.” In re SCO Grp., Inc., 395 B.R. 852, 856 (Bankr. D. Del. 2007)

(internal quotation marks omitted)); In re Diaz, 647 F.3d 1073, 1085 (11th Cir. 2011); In re

Jefferson Cnty., 491 B.R. 277, 285 (Bankr. N.D. Ala. 2013) (explaining that a key purpose of

municipal bankruptcy is “the breathing spell provided by the automatic stay” and stating “[i]f the

automatic stay is to be lifted routinely to allow claimants to assert their claims in state court, a

municipality will not have the time, opportunity or ability to confirm a plan”).

B. Exceptions to the Automatic Stay Are Narrowly Construed

In light of these fundamental protections, an order lifting the automatic stay is an

“extraordinary remedy.” In re 234-6 West 22nd St. Corp., 214 B.R. 751, 757 (Bankr. S.D.N.Y.

1997). Congress created specific exceptions to the automatic stay “based on particular policy

objectives.” Diaz v. Texas (In re Gandy), 327 B.R. 796, 801–02 (Bankr. S.D. Tex. 2005); see 11


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U.S.C. § 362(b). Given the above-stated purpose of the automatic stay, courts construe the

automatic stay provisions broadly and exceptions narrowly. Dolen, 265 B.R. at 478 (applying §

362(b)(4) exception); see also In re Fulton, 926 F.3d 916, 927 (7th Cir. 2019) (collecting

authorities).

Section 362(b)(4) provides one such exception to the automatic stay for governmental units

or organizations to exercise their police and regulatory powers in certain contexts. Dolen, 265 B.R.

at 479; Brennan, 230 F.3d at 71. That section provides that:

(b) The filing of a petition under section 301, 302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay—

* * * * (4) under paragraph (1), (2), (3), or (6) of subsection (a) of this section, of the commencement or continuation of an action or proceeding by a governmental unit or any organization exercising authority under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature on January 13, 1993, to enforce such governmental unit's or organization's police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit's or organization's police or regulatory power.

11 U.S.C. § 362(b)(4). The legislative history of § 362(b)(4) shows that Congress intended this

exception to apply to suits by governmental units “to prevent or stop violation of fraud,

environmental protection, consumer protection, safety, or similar regulatory laws.” Dolen, 265

B.R. at 481 (citing S.Rep. No. 989, 96th Cong., 2d Sess. 52, reprinted in 1978 U.S.C.C.A.N. 5787,

5838) (emphasis added). By exempting regulatory proceedings from the automatic stay, the

Bankruptcy Code “discourages debtors” from using bankruptcy “either primarily or solely for the

purpose of evading impending governmental efforts to invoke the governmental police powers to

enjoin or deter ongoing debtor conduct which would seriously threaten the public safety and


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welfare.” Halo Wireless, Inc. v. Alenco Comm’cs, Inc. (In re Halo Wireless, Inc.), 684 F.3d 581,

587 (5th Cir. 2014) (quoting McMullen v. Sevigny (In re McMullen), 386 F.3d 320, 324–25 (1st

Cir. 2004)).5 A governmental unit’s police power, however, “must be distinguished, case-by-case

if necessary, from other governmental powers and activities such as raising revenue . . . .” Dolen,

265 B.R. at 481 (citations and internal quotations omitted).

The Debtors acknowledge that bankruptcy courts in the Eleventh Circuit have “set a strong

precedent that lawsuits filed by states alleging violations of consumer protection statutes fall

within the ‘police and regulatory power exception’ found in 11 U.S.C. § 362(b)(4).” In re Berry,

19-14527-BKC-RBR, 2019 WL 3992719, at *2 (Bankr. S.D. Fla. June 26, 2019); see also In re

Guardia, 522 B.R. 734, 735 (Bankr. S.D. Fla. 2014); In re Steffy, 494 B.R. 574, 585 (Bankr. N.D.

Ga. 2012) (finding that the State of Arkansas' action to enforce consumer protection laws and to

protect its citizens fell within the exception of Section 362(b)(4)). However, the Debtors assert

that such precedent focuses on injunctive relief seeking to “prevent or stop” continued violations

of consumer protection statutes because the “pursuit of injunctive relief falls squarely within the

police and regulatory power of the Attorney General.” Berry, 2019 WL 3992719, at *2; Dolen, 265

B.R. at 481 (holding that there “can be no question that the automatic stay does not preclude the

[Federal Trade] Commission from” obtaining and “enforcing ... [a] preliminary injunction...”).

In fact, the Third Circuit cautioned against a broad interpretation of Section 362(b)(4) and

expressly clarified that “the legislative history expressly supports a narrow construction of the

police power exception.” In re Nortel Networks, Inc., 669 F.3d 128, 140 n.13 (3d Cir.

2011)(emphasis added). Other courts have followed suit, finding that the § 362(b)(4) exception

5 As this Court knows, the Debtors filed these Chapter 11 cases in good faith in an expedited effort to sell and maximize the value of their assets for the benefit of all stakeholders. The Debtors’ Chapter 11 cases were not filed to evade any government actions, and there is no suggestion to the contrary in the Stay Relief Motion.


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should be read narrowly. See e.g., In re Americore Holdings, LLC, 6:20-CV-29-REW, 2021 WL

488330 at *3 (E.D. Ky. Feb. 10, 2021); see also, In re Royal, 137 F. App'x 537, 541 (4th Cir. 2005)

(“In other words, the legislative history supports the plain language of the statute indicating that

we should treat the Section 362(b)(4) exception narrowly…”); Brennan, 230 F.3d at 75 (“Section

362(b)(4) carves out a limited exception to” the Bankruptcy Code’s policies of centralizing “all

disputes concerning property of the debtor’s estate so that reorganization can proceed efficiently,

unimpeded by uncoordinated proceedings in other arenas.”).

In the present case, the Illinois AG has not obtained any injunctive relief from the state

court in the past 17 months. Moreover, upon information and belief, no motion for injunctive

relief is pending in the State Court Action. Rather, as set forth in the Stay Relief Motion, the

parties were “engaged in active discovery” when the Debtors filed their bankruptcy petitions

herein. As a result, it is highly unlikely that the Illinois AG will be able to obtain any injunctive

relief prior to the time that the Debtors complete their sale process in late August, at which time

the Debtors will no longer be doing business in Illinois and therefore the requested injunctive

relief will become moot.

The Debtors also acknowledge that certain bankruptcy courts have held that the exception

for police and regulatory powers includes not only the pursuit of injunctive relief, but also

obtaining monetary relief such as restitution and civil penalties. Berry, 2019 WL 3992719, at *2.

However and importantly under the facts of the present case, if the debtor is no longer operating,

then several courts have concluded that such monetary relief is not within the exception for police

and regulatory powers. For example, in In re Healthessentials Sols., Inc., 05-31218(1)(11), 2007

WL 1453018 (Bankr. W.D. Ky. May 17, 2007), the court concluded that the stay exception under

§ 362(b)(4) did not apply to the United States’ claims under the False Claims Act for improper


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healthcare services billing where the government only sought to fix the amount of the

government’s claim so that it can pursue collection through the claims process. 2007 WL

1453018, at *1-2. The court concluded that the purpose of the United States’ action was not to

stop or prevent fraud because the debtors were no longer operating, and the parties had entered

into as settlement agreement under which the United States would receive $1,850,000 from the

sale of the debtors’ assets and was permitted to file a general unsecured proof of claim. Id. The

court concluded that “the government can only be seeking a large judgment in an effort to better

its pecuniary stake in Debtors’ estate.” Id. at 2.

Similarly, in In re Chateaugay Corp., the government brought an action for money

damages under the FCA alleging that the debtor engaged in fraudulent practices in connection

with a federal insured student loan program, and argued that such action was excepted from the

stay. 115 B.R. 28, 30-31 (Bankr. S.D.N.Y. 1988). The court rejected the argument and concluded

that the action “is only to fix damages” and not excepted from the stay. Id. at 33. The court applied

both the “pecuniary interest” test and the “public policy” test,6 and relied on the following

legislative history: “This section is intended to be given a narrow construction in order to permit

governmental units to pursue actions to protect the public health and safety and not to apply to

actions by a governmental unit to protect a pecuniary interest in property of the debtor or property

of the estate.” Id. at 31-33 (citing 124 Cong.Rec. 32,395 (1978) (Statement of Rep. Edwards); 124

Cong.Rec. 33,995 (1978) (identical Statement of Sen. Deconcini)). The court determined that the

6 As discussed in section C(ii) below in more detail, in order to determine whether a government action is an exercise of regulatory or police power, and thus exempted from the automatic stay, or a collection action and therefore stayed, the courts employ two tests: the (1) "pecuniary purpose" and (2) "public policy" tests. In re Cross, 584 B.R. 833, 844 (Bankr. N.D. Ill. 2018). Under the pecuniary purpose test, reviewing courts focus on whether the governmental proceeding relates primarily to protecting the government's pecuniary interest in the debtor's property, not to matters of public safety [or public policy]. Id. Under the public policy test, reviewing courts must distinguish between proceedings that adjudicate private rights and those that effectuate public policy; those proceedings that effectuate public policy are excepted from the stay. Id.


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government’s claims failed both tests because the alleged violations occurred over ten years ago,

the debtor was no longer in business, and the continuation of the action would have, at best, a

marginal impact on deterring others since the government had already brought criminal charges

against certain debtors ten years prior. Id. at 33. The court further noted that while the government

was able to cite to cases where the courts determined that a government’s action that included a

remedy other than injunctive relief was excepted from the stay, such cases were inapposite

because they involved enforcement action that would protect public health or safety. Id. at 32.

Because the Illinois AG has not and will not be able to obtain any injunctive relief before

the Debtors sell all or substantially all of their assets, the Debtors will be out of business and no

longer operating in Illinois in approximately 6 short weeks. As a result, allowing the Illinois AG

to continue to prosecute the State Court Action solely to obtain monetary relief and liquidate its

claims should not be excepted from the automatic stay.7 Rather, the Illinois AG should simply

file its proof of claim by the bar date of October 18, 2021, and allow that claim to be adjudicated

in the normal course of the claims process in these Chapter 11 cases. Further, in the event the

Debtors continue doing business in Illinois after the completion of the sale process for some

reason, then the Illinois AG can renew its Stay Relief Motion at that time.

In fact, the Illinois AG suggested the above relief to the state court when it filed its Motion

for Continuance on May 11, 2021 (a copy of which is attached hereto as Exhibit “A”). In the

Motion for Continuance, the Illinois AG stated “[w]hile the automatic stay does not preclude

our case from going forward, Liberty’s bankruptcy filing will likely have a significant impact

7 Section 362(a)(6) of the Bankruptcy Code prohibits any act to assess a claim against a debtor that arose pre-petition. “Post-petition attempts to assess, impose and/or liquidate a debt against a Chapter 11 debtor outside of the bankruptcy court go to the essence of the Chapter 11 claims process, and are the very reason why there is an automatic stay.” In re Nortel Networks Corp., 2010 WL 891263 at *6 (Bankr. D. Del. March 9, 2010). As a result, when the Illinois AG seeks to establish and liquidate its claims against the Debtors in a context untethered to “police and regulatory powers,” such action is a violation of section 362(a)(6) of the Bankruptcy Code.


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on how the parties should proceed in the current case, especially considering that Liberty has

asserted in its initial bankruptcy papers that it intends to wind down.” Id. at p. 2 (emphasis added).

Focusing on the amount of work that remained in the State Court Action, the Illinois AG further

asserted that “[c]ontinuing to litigate these discovery disputes, along with attempting to

complete the fact discovery by July 1 and begin depositions and expert discovery thereafter, all

as required under the current case management schedule, will require a significant amount of

resources from both parties and, potentially, the Court; all of this effort may be unnecessary given

Liberty’s assertion in the bankruptcy proceeding that it intends to wind down its operation.” Id.

(emphasis added). Based on the above, the Illinois AG concluded that it “believes that the best

course of action is a pause in the current case management schedule and a continuance so

that the parties can discuss the impact of concluded by bankruptcy proceeding on the current

matter and to explore whether an expeditious resolution is possible.” Id. (emphasis added).

The Debtors agree with the Illinois AG. The best course of action is to pause the State

Court Action, allow the Debtors to proceed through and complete the sales process during the next

6 weeks, which will moot any injunctive relief sought by the Illinois AG. Further, the Illinois AG

can simply file a proof of claim by the bar date, which will be resolved in the claims adjudication

process in the normal course. The alternative of allowing the State Court Action to proceed will

only result in both parties and the state court expending significant resources and time, ultimately

to no avail.

C. The Stay Relief Motion should be denied because the Illinois AG (i) is seeking to exercise control over property of the Debtors’ estates, (ii) is pursuing its own pecuniary interests, and (iii) is seeking to adjudicate private rights. (i) In the State Court Action, the Illinois AG seeks to rescind pre-petition contracts

that the Debtors have with their customers in Illinois and also to revoke the Debtors’ Certificate of Authority to operate as an alternative retail electric supplier in Illinois.


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Section 541(a)(1) of the Bankruptcy Code provides that the Debtor’s estate is comprised

of “all legal or equitable interests of the debtor in property as of the commencement of the case.”

This description is wide-ranging and all-inclusive. After analyzing the legislative history of § 541,

the Supreme Court held that a wide reading must be given to § 541 or “a reorganization effort

would have a small chance of success.” U.S. v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct.

2309.2311, 76 L.Ed.2d 515 (1983).

Section 362(a)(3) of the Bankruptcy Code prohibits any act to obtain possession of

property of the estate or to exercise control over property of the estate. In the present case, the

Complaint filed by the Illinois AG seeks, among other things, “rescission of contracts entered into

between the [Debtors] and Illinois consumers …” See Complaint at ¶¶175(c), 180(c), 185(c),

190(c), 201(c), 207(c), 215(c), and 219(c). In addition, the Complaint seeks to “revoke” the

Debtors’ authority to operate in Illinois as an alternative retail electric supplier. See Complaint at

¶¶5, 175(d), 180(d), 185(d), 190(d), 201(d), 207(d), 215(d), and 219(d).

It is clear that a debtor’s interests in its pre-petition contracts become property of the

debtor’s estate upon the filing a bankruptcy petition. Grant v. Lathan Construction Corp. (In re

Construction Contractors of Ocala, Inc.), 196 B.R. 188, 194 (Bankr. M.D. Fla. 1996); see also

Hutchins v. Fordyce Bank and Trust Co. (In re Hutchins), 216 B.R. 1, 7 (Bankr. E.D. Ark. 1997)

(“a debtor’s interest in a contract, even if it is nonassumable, constitutes property of the estate.”)

(citing Bell v. Alden Owners, Inc., 199 B.R. 451, 462 (S.D.N.Y. 1996)); In re Thomas, 516 Fed.

App’x 875, 877 (11th Cir. 2013) (ruling that debtor’s pre-petition option contract giving debtor

legal interest in underlying property constituted property of the estate); Carrier Enterprise, LLC

v. City of Dunedin (In re Climate Control Mech. Services, Inc.), 570 B.R. 673, 677 (Bankr. M.D.

Fla. 2017) (citing In re Evaluation Sols., LLC, 2013 WL 3306216, at *3 (Bankr. M.D. Fla. June


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27, 2013)) (providing that a “debtor's interest in its pre-petition contracts becomes property of

the debtor's estate upon the filing of a bankruptcy petition” such that “the bankruptcy estate

inherits all of the rights and obligations of the debtor under contracts as of the commencement of

the bankruptcy case” (internal quotation marks omitted). Because a debtor’s contracts are

property of the estate, Section 362(a)(3) of the Bankruptcy Code acts as a stay of any act to

“exercise control” over the debtor’s pre-petition contracts. See In re Hutchins, 216 B.R. at 7

(“[u]pon the filing of the petition in bankruptcy, the automatic stay prohibited any action against

both the debtor and estate property, including the rights associated with the contracts in which the

debtor had an interest”).

Licenses and permits granted by government agencies also constitute property of the estate

when a debtor files for bankruptcy protection. See Professional Sales Corp. v. United States (In

re Professional Sales Corp.), 48 B.R. 651, 660 (N.D.Ill. 1985), vacated on other grounds, 56 B.R.

753 (N.D.Ill. 1985); see also In re Central Arkansas Broadcasting Co., 68 F.3d 213 (8th Cir.

1995) (FCC radio station operating license is property of the estate); In re Nejberger, 934 F.2d

1300 (3d Cir. 1991) (state liquor license held to constitute property of the estate); Matter of Fugazy

Exp., Inc., 114 B.R. 865 (Bankr. S.D. N.Y. 1990), decision aff'd, 124 B.R. 426 (S.D. N.Y. 1991)

(license for a radio call sign is property of the estate); In re Terwilliger's Catering Plus, Inc., 86

B.R. 937 (Bankr. S.D. Ohio 1988) (state liquor license held to constitute property of the estate);

Lambillotte v. Charlotte County, 25 B.R. 392 (Bnkr.M.D.Fla.1982) (building contractor's

Certificate of Competency is property of the estate).

Because the Debtors’ pre-petition contracts and the Debtors’ license to do business each

constitute property of the estate under Section 541(a)(1), the actions taken by the Illinois AG in


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the Complaint to rescind such contracts and revoke the Debtors’ license are direct violations of

section 362(a)(3) of the Bankruptcy Code, requiring that the Stay Relief Motion be denied.

(ii) The Illinois AG is pursuing its own pecuniary interests and seeking to adjudicate private rights of consumers in Illinois.

Several circuit courts of appeal have developed cohesive tests to tether § 362(b)(4) to its

underlying purpose to protect the health and welfare of the public at large rather than serve

pecuniary interests of the state. For example, the Third, Fifth, and Ninth Circuits have adopted

two “related, and somewhat overlapping” tests to determine whether a particular governmental

lawsuit falls within police or regulatory power exception to the automatic stay. Halo Wireless,

684 F.3d at 588; see also In re Nortel Networks, Inc., 669 F.3d 128, 140 (3d Cir. 2011)

(citing Lockyer v. Mirant Corp., 398 F.3d 1098, 1108 (9th Cir. 2005)). “The public policy test

asks whether the government is effectuating public policy rather than adjudicating private rights.”

Halo Wireless, 684 F.3d at 588 (citation omitted). “The pecuniary purpose test asks whether the

government primarily seeks to protect a pecuniary governmental interest in the debtor’s property,

as opposed to protecting the public safety and health.” Id. (citation omitted). Both tests get at the

same thing: They “are designed to sort out cases in which the government is bringing suit in

furtherance of either its own or certain private parties’ interest in obtaining a pecuniary advantage

over other creditors.” Nortel Networks, Inc., 669 F.3d at 140 (emphasis omitted) (citation

omitted); Halo Wireless, 684 F.3d at 588 (citation omitted).

These complementary tests serve to confine the police power exception within

appropriate bounds. No one questions the States’ historic police power to enact laws “appropriate

or needful for the protection of the public morals, the public health, or the public safety,” Mugler

v. Kansas, 123 U.S. 623, 660–61 (1887), and “[i]t is clear from the legislative history that one of

the purposes of this exception is to protect public health and safety,” Midlantic Nat’l Bank v.


16

N.J. Dep’t of Env’t Prot., 474 U.S. 494, 503–04 (1986); see also Corporacion de Servicios

Medicos Hospitalarios de Fajardo v. Mora (In re Corporacion de Servicios Medicos

Hospitalarios de Fajardo), 805 F.2d 440, 445 (1st Cir. 1986) (collecting legislative history).

As the Third Circuit has explained, courts have traditionally applied the police power

exception to “regulatory proceedings related to environmental hazards, health and safety

violations, . . . employment discrimination,” and the like. Nortel Networks, 669 F.3d at 140; see

also In re Massenzio, 121 B.R. 688, 691 (Bankr. N.D.N.Y. 1990). Limiting the exception to

these kinds of core health and safety proceedings is consistent with the principle that exceptions

to the automatic stay are narrowly construed. Nortel Networks, 669 F.3d at 140.

Importantly, however, when evaluating whether a governmental suit fits within the

police or regulatory power exception, courts applying these above-referenced tests have looked

beyond labels to the “totality of the circumstances.” E.g., Halo Wireless, 684 F.3d at 588

(citations omitted). In Halo Wireless, the Fifth Circuit carefully scrutinized the individual

“proceedings” to determine whether the government was truly exercising its police and

regulatory powers to effectuate public policy or, rather, acting for a private benefit or in service

of a pecuniary interest. See id. The question, then, is “whether the particular regulatory

proceeding at issue is designed primarily to protect the public safety and welfare.” Id. at 595

(emphasis added).

Other courts of appeals agree that assessing whether a governmental suit fits within the

exception is a practical inquiry. In McMullen, for example, the First Circuit recognized that the

“two interrelated, fact dominated inquiries” determine “whether a particular governmental

proceeding comes within the subsection 362(b)(4) exception.” 386 F.3d at 325; see also id.

(assessing “the totality of the circumstances” to “determine whether the particular regulatory


17

proceeding at issue is designed primarily to protect the public safety and welfare, or represents

a governmental attempt to recover from property of the debtor estate, whether on its own claim,

or on the nongovernmental debts of private parties” (emphasis omitted)). The Third Circuit has

similarly reasoned that “[i]nstead of making a broad generally applicable pronouncement as to

how the police power exception should be interpreted, [courts] must look to the purpose of the

proceeding at issue.” Nortel Networks, 669 F.3d at 140; accord Chao v. Hosp. Staffing Servs.,

Inc., 270 F.3d 374, 386 (6th Cir. 2001).These tests are not foreign to bankruptcy courts in the

Eleventh Circuit, either. For example, Judge Williamson cited these tests approvingly in In re

Bayou Shores SNF, LLC, 525 B.R. 160, 171 (Bankr. M.D. Fla. 2014):

As AHCA contends, Bankruptcy Code § 362(b)(4) does, in fact, except from the automatic stay actions to enforce a state's police or regulatory powers. In determining whether a government's actions qualify as police powers, courts generally apply the “pecuniary” purpose and “public policy” tests. Under those tests, courts consider whether the government action is intended to protect the public safety or welfare or effectuate public policy, on the one hand, or protect the government's pecuniary interest or adjudicate private rights . . . . Under the pecuniary purpose test, the court determines whether the government action relates primarily to the protection of the government's pecuniary interest in the debtor's property or to matters of public safety and welfare. If the government action is pursued solely to advance a pecuniary interest of the governmental unit, the stay will be imposed. The public policy test “distinguishes between government actions that effectuate public policy and those that adjudicate private rights.

Id. (citing In re Pollock, 402 B.R. 534, 536–38 (Bankr.N.D.N.Y.2009); In re Allegheny Health,

Educ. and Research Found., 252 B.R. 309, 327 (W.D.Pa.1999); In re Selma Apparel Corp., 132

B.R. 968, 969–70 (Bankr.S.D.Ala.1991)).

Based on the totality of the circumstances of the present case, it is clear that the Illinois

AG is principally seeking to pursue its own pecuniary interests and to adjudicate the private rights

of Illinois consumers. First, as set forth above, the Illinois AG has not obtained any injunctive

relief during the 17 months that the State Court Action has been pending, and no such relief is


18

being sought imminently. Second, the Debtors are in the middle of their sale process pursuant to

which they will sell all or substantially all of their assets by late August 2021, and after the closing

of such sale the Debtors will no longer be doing business in Illinois or any other state. The Illinois

AG has likewise recognized this practical reality and sought to continue the State Court Action as

a result.

In addition and as set forth above, a simple reading of the relief sought in each Count of

the Complaint makes clear that the Illinois AG is primarily seeking to recover tens of millions of

dollars, obtain civil penalties, revoke the Debtors’ license to do business, redress injuries to the

Illinois consumers, obtain restitution of in excess of $77 million, refund monies to consumers,

and rescind the Debtors’ contracts with Illinois customers. Each of these requests for relief

involves either the pecuniary interest of the Illinois AG, or the Illinois AG seeking to adjudicate

the private rights of the Illinois consumers who have contracts with the Debtors.

Under the above-referenced “public policy test,” the “police or regulatory power

exception” excludes suits that “adjudicate[e] private rights.” E.g., Halo Wireless, 684 F.3d at

588 (citations omitted). And, the overlapping “pecuniary purpose test” asks “whether the

government primarily seeks to protect a pecuniary governmental interest in the debtor’s property,

as opposed to protecting the public safety and health.” Id. (citation omitted). By seeking over

$77 million in damages and the rescission of private contracts entered into between the Debtor(s)

and private Illinois consumers in order to provide a “refund of monies paid” to those private

consumers, the Illinois AG is seeking to adjudicate private pecuniary interests rather than to

protect the public health and safety. In fact, because the injunctive relief sought in the Complaint

is not imminent and will be moot in approximately six (6) weeks, the Complaint “primarily”

seeks (i) to exercise control over property of the Debtors’ estate, (ii) to adjudicate private


19

contractual rights, and (iii) to pursue the pecuniary interest of the State of Illinois. Martin v.

Safety Elec. Constr., Co., 151 B.R. 637, 639 (D. Conn. 1993). That is not what the police power

exception encompasses. E.g., Hillis Motors, Inc. v. Haw. Auto. Dealers’ Ass’n, 997 F.2d 581,

591 (9th Cir. 1993) (“We agree with the Eighth Circuit that the terms ‘police or regulatory power’

as used in those exceptions refer to the enforcement of state laws affecting health, morals, and

safety but not regulatory laws that directly conflict with the control of the res or property by the

bankruptcy court.’” (citing Missouri v. U.S. Bankr. Ct. for E.D. of Ark., 647 F.2d 768, 776 (8th

Cir. 1981))).

The case of Chao v. Hosp. Staffing Servs., Inc. is instructive here. In Chao, the Sixth

Circuit addressed a lawsuit that, while ostensibly in service of a “declared public polic[y],” was

really “largely in furtherance of private interests”: “[A] suit by a state attorney general on behalf

of a supplier against its debtor-customer to enforce a contract obligation.” Chao, 270 F.3d at 389.

“Although the suit would effectuate the state’s public policy in favor of enforcing contractual

obligations or requiring payment of damages, the suit essentially enforces the supplier’s private

rights against the debtor and would result in a pecuniary advantage to the state-favored supplier

vis-a-vis other creditors of the debtor’s estate.” Id.; see also id. (“The existence of the public policy

test naturally presumes that some suits by governmental units, even though they would effectuate

certain declared public policies, will nevertheless be regarded as largely in furtherance of private

interests.”); In re Pan Am. Hosp. Corp., 364 B.R. 832, 837 (Bankr. S.D. Fla. 2007) (“While the

legislative history of § 362(b)(4) reports a noble purpose and wide scope, the exception is intended

to avoid a procedural bar where a governmental unit is suing the debtor to prevent or stop violation

of fraud, environmental protection, consumer protection, safety or similar police or regulatory laws


20

or attempting to fix damages for violation of such a law, not to collect a pre-petition debt on

behalf of a community of creditors.”)(emphasis added).

In addition, in a case also involving energy providers, the Sixth Circuit in FirstEnergy

Solutions Corp. applied the reasoning in Chao to the Federal Energy Regulation Commission’s

(FERC) assertion that its regulatory and oversight functions over electricity-purchase contracts

were primarily designed to pursue public policy within the meaning of § 362(b)(4). In re

FirstEnergy Sols. Corp., 945 F.3d 431, 447 (6th Cir. 2019). The court weighed Congress’s goals

of protecting energy markets and consumers in enacting the Federal Power Act compared to

Congress’s goals in permitting liberal restructuring in the Bankruptcy Code. Id. at 451. The court

recognized that “to be effective, restructuring must also be expeditious and possibly unfair or

harmful to other concerned parties, even including the general public. It would not be reasonable

in all cases to permit public interest concerns to overrule a restructuring decision….” Id.

Ultimately, the Sixth Circuit did not disturb the bankruptcy court’s finding that FERC’s action

“would ‘only incidentally serve public interests but more substantially adjudicate private rights.’”

Id. at 448. As the bankruptcy court noted, “the action would be litigating who gets what from the

insolvent enterprise.” Id. at 447.8

In the present case, the Debtors will cease their operations in approximately six (6) weeks

upon the closing of the sale of all or substantially all of their assets through the Court’s Bid

Procedures Order. As a result and consistent with the authorities set forth above, the remaining

8 See also In re Americore Holdings, LLC, 6:20-CV-29-REW, 2021 WL 488330 (E.D. Ky. Feb. 10, 2021)(Attorney General asserted pre-petition claims against the owners of a shuttered non-profit hospital that was not paying its obligations pursuant to a state-court sanctioned sale. The district court found that the action did not satisfy the public policy test because “[t]he request for enforcement of a contract or damages for its breach (by divestiture of the asset or money damages) is a request to adjudicate the private rights of the citizens of Lawrence County and not a matter of public policy.” The central focus of the proceeding was, in fact, pecuniary because all but one of the underlying counts sought a monetary award for pension contributions and for unemployment contributions.)


21

relief sought in the Complaint is primarily focused on pursuing the pecuniary interests of Illinois

and adjudicating the private rights of the Illinois consumers who are customers of the Debtors.

Such relief is simply not what the police and regulatory powers under Section 362(b)(4) were

designed to protect. Therefore, the Stay Relief Motion should be denied.9

D. The Illinois AG has Failed to Meet its Burden to Demonstrate “Cause” for Relief from the Stay. A court may grant relief from the automatic stay imposed by 11 U.S.C. § 362(a) only “for

cause,” 11 U.S.C. § 362(d)(1), and the burden of establishing a prima facie case of “cause” falls

squarely on the movant. See, e.g., In re Rothstein Rosenfeldt Adler, P.A., Case No. 09-34791-

RBR, 2011 Bankr. LEXIS 591, at *6 (S.D. Fla. Bankr. Jan. 24, 2011). “The party asserting that

cause exists has the burden of establishing the legally sufficient basis for such relief.” In re Louis,

20-62841-JWC, 2020 WL 2843013, at *2 (Bankr. N.D. Ga. May 29, 2020). The Bankruptcy Code

does not provide a definition of “cause” and “so courts often analyze cause by considering the

totality of the circumstances in each case.” In re Honh-Yin Chan, Case No. 6:18-bk-03297-KSJ,

2019 WL 3948202 at *2 (Bankr. M.D. Fla. June 3, 2019); In re Bryan Road, LLC, 382 B.R. 844,

854 (S.D. Fla. Bankr. 2008). Therefore, the court must determine whether discretionary relief from

the stay is appropriate on a case by case basis. In re Errico, 618 B.R. 41, 48 (Bankr. M.D. Fla.

2020). “Generally, the court should balance the potential hardship that will be incurred by the

moving party if the stay is not lifted against the potential prejudice to the debtor and the debtor’s

estate. In re Gulfstream Crane, LLC, Case No. 09-37091-BKC-RBR, 2010 Bankr. LEXIS 5665,

at *4 (S.D. Fla. Bankr. Mar. 4, 2010).

9 The Debtor reserves the right to seek a temporary injunction against the Illinois AG under Section 105(a) of the Bankruptcy Code and the traditional nonbankruptcy requirements for such relief under Rule 65 of the Federal Rules of Civil Procedure, See Otero Mills, Inc. v. Security Bank & Trust (In re Otero Mills, Inc.), 25 B.R. 1018 (D.N.M. 1982).


22

While there is no set list of circumstances that a bankruptcy court is required to consider

in evaluating whether § 362(d)(1) “cause” exists to lift the automatic stay, the Eleventh Circuit has

considered: (1) whether the debtor has acted in bad faith; (2) the “hardships imposed on the parties

with an eye towards the overall goals of the Bankruptcy Code”; and (3) the status of pending state

court proceedings. In re Feingold, 730 F.3d 1268, 1277 (11th Cir. 2013); Barclays–Am./Bus.

Credit, Inc. v. Radio WBHP, Inc. (In re Dixie Broad., Inc.), 871 F.2d 1023, 1026 (11th Cir.1989);

In re Ellingsworth Residential Cmty. Ass'n, Inc., 6:20-BK-01346-KSJ, 2020 WL 6803154, at *2

(Bankr. M.D. Fla. Oct. 16, 2020); Honh-Yin Chan, 2019 WL 3948202 at *2; Siewe v. Locci (In re

Siewe), 730 Fed. App’x 871, 877 (11th Cir. 2018).

In the present case, the Stay Relief Motion is completely devoid of any legal or factual analysis that

would even remotely justify cause for granting the Illinois AG relief from the automatic stay as an

alternative form of relief. As a result, the Illinois AG’s alternative request for relief from the automatic

stay should be denied.

WHEREFORE, the Debtor respectfully requests that the Court deny the Stay Relief

Motion, and grant such other and further relief as is proper.

Dated this 12th day of July, 2021.

Respectfully Submitted, GENOVESE JOBLOVE & BATTISTA, P.A. Counsel for Debtors-in-Possession 100 Southeast Second Street, Suite 4400 Miami, Florida 33131 Telephone: (305) 349-2300 Facsimile: (305) 349-2310 By: /s/ Paul J. Battista Paul J. Battista, Esq.

Florida Bar No. 884162 [email protected] Mariaelena Gayo-Guitian, Esq. Florida Bar No. 813818


23

[email protected] Heather L. Harmon Florida Bar No. 13192 [email protected]


24

EXHIBIT A

MOTION FOR CONTINUANCE


1

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

THE PEOPLE OF THE STATE OF ILLINOIS,

ex rel. KWAME RAOUL, Attorney General of

the State of Illinois,

Plaintiff,

v.

LIBERTY POWER HOLDINGS LLC,

a Delaware Limited Liability Company,

Defendant.

Case No. 2020 CH 1954

Hon. Raymond W. Mitchell

PLAINTIFF’S MOTION FOR A CONTINUANCE

On April 20, 2021, Liberty Power Holdings LLC filed for bankruptcy in the Southern

District of Florida. Plaintiff did not learn of the bankruptcy filing from Liberty or its counsel.

Instead, Plaintiff learned of the bankruptcy filing from press reports. Since learning of the

bankruptcy Plaintiff has tried repeatedly to engage with Liberty’s counsel to discuss the impact of

the bankruptcy on the current case, and Plaintiff has suggested to Liberty’s counsel that the parties

jointly agree to a pause in the case management schedule so that the parties could have adequate

time to have these discussions, all of which Liberty’s counsel has refused.

Nonetheless, it appears as though Liberty itself, through its Florida bankruptcy counsel and

not through its counsel in this matter, filed a Suggestion of Bankruptcy on May 6, 2021, a copy of

which has been attached as Exhibit 1, that asserts that the current Chancery case should be

automatically stayed by the bankruptcy proceeding. Plaintiff only learned of this filing on May 9,

2021, when Plaintiff happened to check the online docket, and Plaintiff only obtained a copy of

the filing by affirmatively reaching out to the Clerk of the Circuit Court’s Office on May 10.

FILED5/11/2021 1:11 PMIRIS Y. MARTINEZCIRCUIT CLERKCOOK COUNTY, IL2020CH01954

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Hearing Date: 5/18/2021 10:15 AM - 10:15 AMCourtroom Number: Location:


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Liberty’s assertion in the Suggestion of Bankruptcy that the automatic stay applies to the

current action is wrong. The automatic bankruptcy stay does not apply to police and regulatory

actions like consumer protection claims brought by the Attorney General. See In re Towers, 162

F.3d 952, 956 (7th Cir. 1998); In re Guardia, 522 B.R. 734, 736 (S.D. FL 2014). While the

automatic stay does not preclude our case from going forward, Liberty’s bankruptcy filing will

likely have a significant impact on how the parties should proceed in the current case, especially

considering that Liberty has asserted in its initial bankruptcy papers that it intends to wind down.

See Declaration of Bob Butler, Proposed Chief Restructuring Officer of the Debtor, In Support of

Chapter 11 Petition and First Day Motions, ¶ 30, filed in Liberty’s bankruptcy case, 21-13797-

PDR, and attached as Exhibit 2.

The current Chancery case is in active discovery, and there are disputes between the parties.

Plaintiff is ready to file a motion to compel on Liberty’s refusal to produce all of the audio

recordings of sales transactions in its possession and control, in addition to other issues. And

Liberty has a pending motion to compel before this Court, which Plaintiff has responded to.

Continuing to litigate these discovery disputes, along with attempting to complete the fact

discovery by July 1 and begin depositions and expert discovery thereafter, all as required under

the current case management schedule, will require a significant amount of resources from both

parties and, potentially, the Court; all of this effort may be unnecessary given Liberty’s assertion

in the bankruptcy proceeding that it intends to wind down its operation. Finally, if the Court denies

the motion for a continuance, Plaintiff would nonetheless likely need to seek modifications to the

current case management order in light of the recent ransomware attack on its network.

Accordingly, Plaintiff believes that the best course of action is a pause in the current case

management schedule and a continuance so that the parties can discuss the impact of the

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bankruptcy proceeding on the current matter and to explore whether an expeditious resolution is

possible.

Wherefore, Plaintiff respectfully requests that this Court:

A. Grant Plaintiff’s request for a pause in the current case management schedule

in light of Liberty’s bankruptcy filing;

B. Set this matter for a case management status hearing in approximately 30 days;

and

C. Grant such further relief as this Court deems reasonable and just.

Dated: May 11, 2021 THE PEOPLE OF THE STATE OF ILLINOIS,

by KWAME RAOUL,

Attorney General of the State of Illinois

BY: /s/ Michele Casey

Andrew Dougherty

Michele Casey

Ronak Shah

Amanda Palmer

Daniel Edelstein

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

Phone: (708) 872-7882

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

Attorney No: 99000

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CERTIFICATE OF SERVICE

Under penalties as provided by law pursuant to 735 ILCS 5/1-109, the undersigned

hereby certifies the statements set forth in this certificate of service are true and correct and that

on May 11, 2021, she caused an electronic copy of the foregoing to be served upon the

following:

David H. Hoffman

Kevin M. Fee

Natalie C. Chan

SIDLEY AUSTIN LLP

One South Dearborn Street

Chicago, Illinois 60603

[email protected]

[email protected]

[email protected]

/s/ Michele Casey

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response to illinois ag motion for stay relief.final for

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