I was asked why I didn’t post my motion on the board; as my motion was quite long and I thought those that had an interest could read it on KCCLLC, of course my motion didn’t show up on KCCLLC, only the last two pages of my eight page document, which was the order I developed. Never the less the motion was denied, “In his motion, he misunderstands whether the derivative rights of shareholders under state law apply after a bankruptcy case has been commenced. Upon the commencement of a bankruptcy case, only the Trustee may sue for the Estate’s damages. State law giving derivative standing to shareholders is no longer applicable for redress for injuries to the Estate.”
As the motion was not seen by folks here, I have posted it below. I will take this issue up with the Texas Secretary of State as my claim is based on Equity holders rights denied.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN THE UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
In re: § Chapter 11 / 7
ATP Oil & Gas Corporation, § Case No: 12-36187
Debtor. § Hon. Marvin Isgur
A MOTION BY DOUGLAS A. MEYER, EQUITY HOLDER OF COMMON AND “PREFERRED” EQUITY SECURITIES IN ATP OIL AND GAS CORPORATION AND SECOND LIEN HOLDER OF ATP BONDS, IN CONNECTION WITH THE DEBTOR, ATP OIL AND GAS CORPORATIONS CIVIL SUIT; ATP OIL & GAS CORP. v. BP EXPLORATION & PRODUCTION, INC., ET AL, CASE NO. 2:13-cv-01962-CJB-SS PENDING BEFORE THE UNITED PENDING BEFORE THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA.
Mr. Meyer through this Charter 11 and Chapter 7 case has voiced his concerns with his letters, objections and motions to the court regarding stockholders rights of corporate governance, fiduciary responsibility to equity holders, due process rights of equity holders and equity holders being disenfranchised. Mr. Meyer’s perception then and now is that those who have a fiduciary duty to equity holders just do not care. Their lack of action speaks louder than words as Mr. Meyer did not received one letter and or phone call concerning any of his letters, objections and motions. Professionals in this case must remember what caused ATP to file bankruptcy protection, that cause BP and the other defendants in Case No. 2:13-cv-01962-CJB-SS pending before the United States District Court for the Eastern District of Louisiana.
RELIEF REQUESTED
In January 2013, with the assistance of the Firms, ATP submitted a claim to BP under the Oil Pollution Act of 1990 for loss of profits and earning capacity as a result of the Deepwater Horizon Spill in an amount “not less than” $3,011,534,889.00 (the “OPA Claim”). This BP claim was made prior to ATP’s loss of $3.6 billion of asset value through the course of the bankruptcy. ATP’s 2013 claim “not less than” $3.011 billion and ATP’s “loss” of $3.61 billion of asset value through bankruptcy, the claim, Mr. Meyer would think would and should grow to $6.62 billion.
On October 29, 2014, the Bankruptcy Court held a hearing (the “Hearing”) for the benefit of certain equity holders of ATP Oil & Gas Corporation (the “Debtor”). At the Hearing, the Bankruptcy Court directed the “Trustee” to file a status report each ninety (90) days relating to the litigation styled ATP Oil & Gas Corp. v. BP Exploration & Production, Inc., et al., Case No. 2:13-cv-01962-CJB-SS pending before the United States District Court for the Eastern District of Louisiana. This litigation concerns the OPA claim of “not less than” $3,011,534,889.00.
During this hearing the court assured equity holders that they would be given an opportunity to be heard, if any settlement offer was presented to the court for approval. Certain equity holders are concerned with the potential value of this damage suit being negotiated away in settlement negotiations that the trustee might engage with BP and the others. With this motion Mr. Meyer an equity holders is asking the court to add all equity holders, as a group, in the above mentioned suit against BP and others; as a joinder to this civil action for damages. The motion also addresses five additional actions.
On January 27, 2015, the Trustee filed his 90-Day Status Report [Docket No. 3466] (the “First Ninety-Day Status Report”). In the First Ninety-Day Status Report, the Trustee reported that he attempted to meet with BP to discuss settlement or mediation of the Debtor’s claims against BP, but BP rejected the Trustee’s request.
On April 28, 2015, the Trustee filed his Second 90-Day Status Report on BP Litigation [Docket No. 3527] (the “Second Ninety-Day Status Report”). At the time of the Second Ninety Day Status Report, the Trustee reported that he was working with “his” counsel in the BP litigation, Motley Rice, LLC, to prepare a motion to be filed in the United States District Court Case 12-36187 (Document 3586) for the Eastern District of Louisiana to lift the current stay on discovery and seek authority for the Debtor’s estate to proceed with discovery in the BP Litigation.
On April 28, 2015, the Trustee filed his Supplement to Second 90-Day Status Report on BP Litigation (Docket No. 3528) Exhibit A to the Supplement was a copy of the Motion to Lift Stay and Provide Direction for Limited Reference to Bankruptcy Court (the “Motion”) filed by the Trustee on April 27, 2015 in the BP Litigation.
On July 24,2015 the Trustee filed his Third 90-Day Status Report on BP Litigation [Docket No. 3586] (the “Third Ninety-Day Status Report”). The Trustee reported that since the filing of the Second Ninety-Day Status Report and the Supplement, the District Court where the BP Litigation is pending has taken no action on the Motion, and the Trustee is not able to predict when the District Court will take any action on the Motion. In effect, the BP Litigation remains status quo with the case stayed and no discovery allowed.
As of November 15, 2015, the Fourth required 90 reporting has not been filed with the court. Regardless of the court’s order the trustee has not filed the required reporting. This fact is concerning to equity holders. This lack of action amplifies Mr. Meyer’s comments made in the first paragraph.
ATP Oil & Gas Corporation was the damaged party in Case No. 2:13-cv-01962-CJB-SS against BP and others and the Chapter 7 trustee dissolved the Texas Corporation, ATP Oil and Gas without due process involving the owners of the corporation and the requirements of the Texas Business Corporation Act, Involuntary Dissolution. The potential claim of $3.01billion should have been enough to preserve the corporation. This dissolution was done without a vote and approval of the equity holders and there was never a hearing in the bankruptcy court regarding the dissolution where equity holders could object as required by Texas Business Corporation Act. On January 20, 2014 ATP Oil and Gas filed their yearly Resignation of Registered Agent. On June 2, 2014 the Office of the Secretary of State of Texas issued a certificate of involuntary termination of ATP Oil and Gas Corporation. Stating the entity has failed to maintain a registered agent or registered office address. This required yearly filing was done in January 2014; the document was signed by Mr. Paul Bulmahn. The trustee chose the path where ATP Oil and Gas would be Involuntary Terminated as a Texas Corporation without due process to the equity holders. This tactic to disenfranchise equity holders was also used in having the SEC delist ATP’s securities. Those professionals who were to have a fiduciary responsibility to ATP equity holders were also included in the correspondence between the SEC and Mr. Meyer regarding the delisting activity. This action amplifies Mr. Meyer’s comments made in the first paragraph.
By the actions of the professionals who have a fiduciary responsibility to the equity holders, the owners of ATP Oil and Gas, and have demonstrated their disregard for process and procedure requirements of the Texas Business Corporation Act; including Involuntary Dissolution section 7.12 B., Mr. Meyer asks the court to consider “general rights of succession” and equity holders should be added as a joinder to this case. Whether a shareholder of a forfeited corporation may sue individually or derivatively on behalf of the corporation to enforce a right belonging to the corporation has been addressed in a number of cases over the years. Forfeiture of a corporation’s charter does not prohibit stockholders from obtaining relief and redressing wrongs that injure their right and interest in corporate assets including seeking relief as a damaged party, the owner of the forfeited corporation, in civil damage suits brought by corporation prior to forfeiture.
ATP Oil & Gas Corporation was the damaged party in Case No. 2:13-cv-01962-CJB-SS against BP and others. This civil action is not an “Asset” of the debtor estate in the true meaning of the word. By itself there is no value where commercial lenders would use the possible outcome of this civil action as collateral for any commercial loan, nor would any bonds be sold based on a possible outcome and vendors would not grant credit terms based on this action. In addition to the suit of $3,011,534,889.00 (claim) against BP and others, ATP Oil and Gas Corporation lost $3.62 billion of asset value in this bankruptcy! This lost asset value through bankruptcy should also be claimable. None of the commercial lenders, nor the bondholders and the creditors in this bankruptcy case saw any value in this suit, as none were willing to wait for the possible outcome of this civil suit to receive payment. They were not a damaged party in this civil suit.
This motion is to insure equity holders have a voice as a damaged party in this civil suit against BP and others. First, in insuring that ATP’s claim of not less than $3.01 billion is not negotiated away for the benefit of a few who hold no plaintiff status, and second to insure that ATP’s $3.61 billion of lost assets through bankruptcy are also included in this suit for damages.
This motion asks the court to:
A) As owners of ATP Oil and Gas and a damaged party in this civil action Mr. Meyer asks the court to add the “group” of equity holders as a joinder, plaintiff, to ATP Oil & Gas Corp. v. BP Exploration & Production, Inc., et al., Case No. 2:13-cv-01962-CJB-SS pending case before the United States District Court for the Eastern District of Louisiana.
B) In addition to ATP’s claim of “not less than” $3,011,534,889.00; ATP’s $3.61 billion of lost assets through bankruptcy is to be included in this suit for damages.
C) As owners of ATP Oil and Gas and a damaged party to this civil action, the court will appoint a legal representative that will assume a fiduciary responsibility to the equity holders, owners of ATP Oil and Gas; and actively participate as counsel for the debtor, and the equity holders, both damaged parties in this civil action.
D) That legal representative shall manage the legal team hired to present our case to the United States District Court for the Eastern District of Louisiana and actively participate in any settlement negotiations between the parties. They will preserve and protect the value of this case to the benefit of the estate and all stakeholders. They will insure the damaged parties in this case receive the justice they seek and will not be pressured into a settlement for the benefit of a few who hold no plaintiff status in this case.
E) I would suggest that the court appoint the Counsel to ATP Oil & Gas Corporation, Mayer Brown LLP, Charles Kelley, Howard S Beltzer and Frederick D Hyman, who have been the counsel to the debtor, ATP Oil and Gas and who has maintained their fiduciary responsibility to ATP Oil & Gas and those that managed the estate in the chapter 11 process. As ATP Oil and Gas Corporation has been involuntary terminated and Mayer Brown still remains counsel to ATP Oil and Gas, they still have a fiduciary responsible to the equity holders, owners of ATP.
F) As ATP Oil and Gas Corporation has been involuntary terminated as a Texas Corporation and without corporate governance I ask the court to allow the Official Committee of Equity Holders to act on behave of the equity ownership group. The court appointed “legal representative” would have the fiduciary responsibility to this committee of equity holders. That committee has been established and if those members are no longer equity holders and or have no interest in serving, the court shall replace these members with equity holders that have an interest in serving on the committee. The court would appoint these replacement members based on equity holders nominations to the court.
ATP case against BP is being handled by Motley Rice LLC and Fayard & Honeycutt. I believe these firms will do an excellent job representing ATP and the owners of the corporation the damaged parties. In addition to their fiduciary responsibility to the court, I believe they also have a fiduciary responsibility to the equity holders, as owners of APT Oil & Gas Corporation. This fiduciary responsibility may be conflicted when confronted with a settlement negotiation; what might be acceptable to the trustee might not be acceptable to the damaged parties.
Equity holders feel compelled to seek this motion to insure as owners of ATP and a damaged party in this civil case, their “due process rights” are protected. The potential claim of $3.01billion should have been enough to preserve the corporation. Regardless of the reasons the professionals in this case might have had, they disenfranchised equity holders and disregarded ATP’s articles of incorporation and the Texas Business Corporation Act, along with ATP equity holder’s rights to corporate governance.
WHEREFORE, Mr. Meyer respectfully requests that the Court enter an order granting the relief requested herein and such other and further relief as is just and proper. Mr. Meyer reserves his rights to supplement and amend this Motion at any time and to raise any other arguments in respect of the proposed Motion. In addition, certain issues raised in Objections could, arguably, also implicate other facets of the above-captioned case. Accordingly, in an abundance of caution, Mr. Meyer, in all of his capacities as an equity holder in ATP Oil and GAS Corporation, reserves all of his rights in the above-reference cases, and nothing herein shall be deemed a waiver of any such rights.
Dated: November 16, 2015
Respectfully submitted,
Douglas A. Meyer
429 Suncrest Loop West
Slidell, LA 70458
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN THE UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
In re: § Chapter 11 / 7
ATP Oil & Gas Corporation, § Case No: 12-36187
Debtor. § Hon. Marvin Isgur
ORDER APPROVING THE MOTION OF DOUGLAS A. MEYER, EQUITY HOLDER OF COMMON AND “PREFERRED” EQUITY SECURITIES IN ATP OIL AND GAS CORPORATION GRANTING ATP EQUITY HOLDERS JOINDER STATUS IN ATP OIL AND GAS CORPORATIONS CIVIL SUIT; ATP OIL & GAS CORP. v. BP EXPLORATION & PRODUCTION, INC., ET AL, CASE NO. 2:13-cv-01962-CJB-SS PENDING BEFORE THE UNITED PENDING BEFORE THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA.
Came on for consideration the Motion filed by Douglas A. Meyer, equity holder in ATP Oil and Gas Corporation and after considering the Motion and any response thereto, and being of the opinion that said motion should be granted; it is hereby ORDERED THAT:
A) As owners of ATP Oil and Gas and a damaged party in this civil action, ATP Equity holders shall be added as a joinder, plaintiff, in ATP Oil & Gas Corp. v. BP Exploration & Production, Inc., et al., Case No. 2:13-cv-01962-CJB-SS pending case before the United States District Court for the Eastern District of Louisiana.
B) ATP’s $3.61 billion of lost assets through bankruptcy shall be included in this suit for damages.
C) The court will appoint a legal representative that will assume a fiduciary responsibility to the equity holders, owners of ATP Oil and Gas; actively participating as counsel for the debtor, ATP Oil and Gas and the equity holders.
D) That legal representative shall manage the legal team hired to present ATP’s case to the United States District Court for the Eastern District of Louisiana and actively participate in any settlement negotiations between the parties. They will preserve and protect the value of this case to the benefit of the estate and all stakeholders. They will insure the damaged parties in this case receive the justice they seek and will not be pressured into a settlement for the benefit of a few who hold no plaintiff status in this case.
E) That legal representative shall be Counsel to ATP Oil & Gas Corporation, Mayer Brown LLP, Charles Kelley, Howard S Beltzer and Frederick D Hyman, who have been the counsel to the debtor, ATP Oil and Gas and who has maintained their fiduciary responsibility to ATP Oil & Gas and those that managed the estate in the chapter 11 process. As ATP Oil and Gas Corporation has been involuntary terminated and Mayer Brown still remains counsel to ATP Oil and Gas, they still have a fiduciary responsible to the equity holders, owners of ATP.
F) As ATP Oil and Gas Corporation has been involuntary terminated as a Texas Corporation and without corporate governance the Official Committee of Equity Holders is to act on behalf of the equity ownership group. The court appointed “legal representative” would have the fiduciary responsibility to this committee of equity holders. This committee has been established and if those members are no longer equity holders and or have no interest in serving, the court shall replace these members with equity holders that have an interest in serving on the committee. The court would appoint these replacement members based on equity holders nominations to the court.
Signed this ___ day of ____________________, 2015
____________________________________
MARVIN ISGUR
UNITED STATES BANKRUPTCY JUDGE
AI
