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[Thanks, Danae.]
This column reported December 5, 2009 that Leo Donofrio Esq. and Steve Pidgeon Esq. would be filing two cases against the Obama Administration and Chrysler. The first a Bankruptcy case in the New York District which was originally filed by Chrysler (This column originally stated that the case was against the Government, indeed this case is a motion within the case originally filed by Chrysler, not the Government - Dianna C. Cotter 12-31-2009), and the second to be filed in Washington D.C., a Quo Warranto case directly challenging Barack Obama.
It can now be reported the Bankruptcy case for the Chrysler Dealers who were stripped of their dealerships by the Obama Administration has indeed been filed. Donofrio and Pidgeon have filed a Rule 60 Motion to reconsider on behalf of 21 rejected Chrysler dealers. As was expected, several more dealers have joined in the suit as well. Docket number 6137 was filed today, 12/29/2009 Motion for Relief from Stay to Allow Appeal to Continue filed by Randyl Meigs on behalf of Tommy Manuel Chrysler - Jeep, Inc.. with hearing to be held on 1/21/2010 at 10:00 AM at Courtroom 523 (AJG) Responses due by 1/14/2010. The Debtor in this case is the old Chrysler. (This statement is incorrect and I take full responsibility for the misinterpretation that caused it to be printed. The case filed by Randyl Miegs has nothing to do with the case who's lead Plaintiff is James "Island Jeep" Anderer. The Miegs case was filed in 2007 against Daimler Chrysler and has no relation to the case that was filed by Donofrio and Pidgeon on December 25, 2009. Those involved have my sincere apology for the confusion this has caused. Again, I take full responsibility for this error. - Dianna C. Cotter 12-31-2009)
In their briefing, Donofrio and Pidgeon assert that the Judge in the original case, the Honorable Robert J. Gonzalez, United States Bankruptcy Judge for the Federal Court, Southern District of New York, committed an unintentional fraud by miss interpreting an important witness statement. That witness was Fiat executive, Alfredo Altavilla, who stated that restructuring of the Dealer network needed to occur before the Fiat purchase of Chrysler could move forward. The Honorable Judge Gonzalez interpreted Altavilla’s answer to mean that a restructuring did not occur when indeed it did. (This last statement is a repeat of the error made by the Judge in the case. Altavilla testified that a restructuring of the Dealerships DID NOT NEED TO OCCUR before the the Fiat purchase of Chrysler could occur. The above statement is the mistake that the Judge in the case made. The executive from Fiat testified that a restructuring of the Dealerships did NOT need to occur. The Judge construed it incorrectly, and it resulted in the loss of hundreds of businesses for numerous Chrysler Dealers across the nation. Again, my sincere apologies to those involved for the confusion the above statement created. I take full and sole responsibility for it. - Dianna C. Cotter 12-31-2009)
Attorney Donofrio has confirmed a report in the Post and Email as accurately depicting the basis of their case:
Altavilla had testified that the dealers’ agreements need not be rejected prior to the sale be formalized; but Judge Gonzales mistakenly related it thus in his ruling. The Memorandum of the movants explains this in detail, the crucial part of which responds to Judge Gonzales’ footnote, in which he says:
“Altavilla also responded affirmatively to a question regarding whether a dealership network needed to be restructured for the Fiat Transaction to close, stating that a “restructuring needs to occur.”
The Memorandum responded to this:
The record indicates by clear and convincing evidence that this assertion by Judge Gonzalez is unequivocally false. It gives the appearance of judicial ventriloquism concerning the most important issue related to the Rejection Motion. Without this alleged affirmative response, the record of the case lacks any evidence whatsoever suggesting rejection of the dealership agreements was ever requested by Fiat, the US Government or the United Auto Workers as a condition precedent to the deal closing.
Footnote 21 parses, “restructuring needs to occur” by ignoring the very next sentence of the very same answer given by Altavilla. And the complete answer made it perfectly clear that restructuring did not need to occur before the sale closed.
Wherefore, after a detailed analysis, the Movants request Gonzales’ order be vacated (i.e. canceled):We respectfully submit that the averment by Judge Gonzalez in Footnote 21 of the Rejection Opinion has caused the judicial machinery to work in an alien and wholly improper manner by subverting a clear response by a key witness as to the most important issue before the Court. Judge Gonzalez, in taking this action, has caused the appearance of impartiality to be disturbed by reckless disregard for the truth. The record of the case should not be allowed to remain so defiled. Accordingly, we request complete relief from the Rejection Order.
Further noted by the Post and Email, the Chrysler dealers are contesting that Business Standards were met in the rejection of 789 dealership agreements and the court completely overlooked many facts that would have altered the conclusions that resulted in the Rejection Order and following Opinion. In plain language, the court ignored what would normally be considered normal business practices in order to reject the Dealers claim and back the Governments deal, allowing the purchase of Chrysler by Fiat. It seems as if the court either intentionally or unintentionally bent over backwards to make sure that the Government and the Administrations desires were met regarding the sale of Chrysler to Fiat. That will certainly be determined in the hearings and case to come.
The Post and Email concludes:
In this regard the Memorandum challenges various aspects of the business judgment standard, such as:
• “Section 365(a) of the Bankruptcy Code requires that before a Debtor may assume or reject an executory contract, the bankruptcy court must approve the Trustee’s (or Debtor In Possession’s) decision thereto.”
• “Judge Gonzalez also failed to discuss how the controlling authorities define “benefit to the estate”. The definition was established in the oft-quoted 2d Circuit precedent of In re Minges, 602 F.2d 38 (2d Cir. 1979) which held that “general creditors” must benefit from the debtor’s rejection of an executory contract.”
• and . . . “overlooked the fact that Old Co would receive no benefit whatsoever from a streamlined dealership network as Old Chrysler was not going to be selling automobiles anymore.”
• Cost allegations;
• and that “the Court overlooked the fact that had the 789 dealership contracts been assumed on May 14th instead of rejected, the Debtor in Possession Budget would not have been affected at all.”
• “The Debtor – as Debtor in Possession – had a fiduciary duty to consider the impact of rejection damage claims upon the Debtor’s estate and to weigh such damages against any perceived benefit of rejection. Judge Gonzalez overlooked this breach of fiduciary duty.”
• “There is no evidence whatsoever in the record of the case indicating that Fiat, the US Government, the Canadian Government or the United Auto Workers ever requested dealers be rejected by the Debtor.”
Finally, the movants appeal to the Court on the basis of its failure to use its powers of equity to safeguard the jobs of more than 39,000 employees of Chrysler LLC, and the financial assets of the Dealers, many of whom purchased excessive quantities of stock from the Corporation in an attempt to save it prior to the bankruptcy.
The Bankruptcy case originally filed by Chrysler is a pre-existing case. Anderer's case is challenging the dealer rejections. Because neither Fiat nor the Government requested the dealer rejections, there was no basis for old Chrysler to reject them.
This is the first of two cases that Donofrio and Pidgeon have planned publicly to file. This first filing is certainly indicative that the second does indeed exist, and is forthcoming. The second case will be filed in Washington D.C. in the District court, and this is the Quo Warranto case being brought by the Chrysler Dealerships, which will directly challenge Barack Obama’s qualifications for the office he holds. If that filing proves successful, it will result in the removal of a sitting President.
Memorandum Supporting Motion for Reconsideration
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A post script regarding corrections: I wish to apologize to the individuals involved for my personal misinterpretations of the case brought by the Chrysler Dealers. I offer no defense other than my own misinterpretations. I have been properly corrected and chastised by the right people, who have interest in the truth being published. In light of my own philosophy in Journalism and in light of a press uninterested in correcting their own mistakes, I take full responsibility for my errors, and further promise to do my utmost not to repeat them in the future. If further errors are found with this article, I can be reached directly at cotter.d.c@gmail.com. Any confirmed errors will be corrected immediately and with clarity. Again, my sincere apologies for the confusion this has created. -Dianna C. Cotter 12-31-2009
Ping to important corrections!
There are corrections in the article that MUST be posted and given wide dispersion!
... Check out corrections and updates.
[Thanks, Danae.]