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Bradley Cosman (AZ Bar No. 026223) bcosman@ssd.com
SQUIRE, SANDERS & DEMPSEY L.L.P.
Two Renaissance Square, Suite 2700
40 North Central Avenue
Phoenix, Arizona 85004-4498
(602) 528-4000
and
In re
Debtors. Chapter 11
NOTICE IS HEREBY GIVEN that on April 21, 2009, EUROFRESH, INC. and
EUROFRESH PRODUCE, LTD. (collectively, the “Debtors”), by and through undersigned
counsel, filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy
Code, 11 U.S.C. § 101-1532, in the United States Bankruptcy Court for the District of Arizona,
Phoenix Division, before the Honorable Charles G. Case II (the “Bankruptcy Court”).
Immediately on the bankruptcy filing, a broad “stay” automatically goes into effect that
prohibits creditors from taking or continuing most actions to collect money or property from the
Debtors, including the commencement or continuation of any judicial proceedings in any court
other than the Bankruptcy Court. Such a stay is now in effect as of April 21, 2009 as to the
Debtors. A creditor wishing to proceed with an action against the Debtors or any of the Debtors’
COLUMBUS/676188.2 1
property must obtain permission from the Bankruptcy Court, or face a potential claim for
damages, including costs and attorneys’ fees, and, in appropriate circumstances, punitive
damages. Creditors who are uncertain of their rights should seek legal advice.
-and-
Kristin E. Richner
Nicholas J. Brannick
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
(614) 365-2700
COLUMBUS/676188.2 2
Craig D. Hansen (AZ Bar No. 007405) chansen@ssd.com
Bradley A. Cosman (AZ Bar No. 026223) bcosman@ssd.com
SQUIRE, SANDERS & DEMPSEY L.L.P.
Two Renaissance Square, Suite 2700
40 North Central Avenue
Phoenix, Arizona 85004-4498
(602) 528-4000
and
In re
Debtors. Chapter 11
COLUMBUS/676159.1 1
EUROFRESH, INC. and EUROFRESH PRODUCE, LTD., debtors and debtors-in-
possession in the above-captioned Chapter 11 cases (the “Debtors”), file this Motion for an
order under 11 U.S.C. § 105(a), Rules 1001 and 1007(a)(5), (c), and (d) of the Federal Rules
of Bankruptcy Procedure, and Local Bankruptcy Rules 1007-1(a) and (b), authorizing the
Debtors to prepare a consolidated list of creditors in lieu of individual matrices, make the
consolidated list of creditors available only upon request, and file a consolidated list of the
Debtors’ 30 largest unsecured creditors. This Motion seeks immediate entry of an order
granting the Motion and is brought on an emergency basis on expedited notice under Local
Bankruptcy Rule 9013-1(h) to avoid immediate and irreparable harm to the Debtors’ estates.
The relief requested in this Motion would allow the Debtors to prepare a consolidated
list of creditors for these Cases in lieu of individual matrices, as well as file a
consolidated list of the Debtors’ 30 largest unsecured creditors. The basis for the
relief requested in this Motion is set forth in paragraphs 10 through 25 below
This Motion is supported by the entire record before the Court, the “Declaration of Frank
van Straalen in Support of Chapter 11 Petitions and First Day Motions” (the “Van Straalen
Dec.”) filed contemporaneously with Motion, and by the following memorandum of points and
authorities.
BACKGROUND
1. On April 21, 2009 (the “Petition Date”), the above-captioned Debtors filed
voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C.
§§ 101, et seq. (as amended, the “Bankruptcy Code”), which cases are pending before the
United States Bankruptcy Court for the District of Arizona (the “Court”).
2. The Debtors continue to operate their businesses and manage their assets as
COLUMBUS/676159.1 2
3. This Court has jurisdiction over these Chapter 11 cases (these “Cases”) under 28
U.S.C. §§ 157 and 1334. These matters constitute core proceedings under 28 U.S.C. § 157(b)(2).
Snowflake, Arizona and Willcox, Arizona. Eurofresh Produce, Ltd. is a wholly owned
subsidiary of Eurofresh, Inc. Accordingly, venue of these Cases is proper in this District under
5. The statutory predicates for the relief requested in this Motion are section 105(a)
of the Bankruptcy Code, Rules 1001 and 1007(a)(5), (c) and (d) of the Federal Rules of
Bankruptcy Procedure (the “Bankruptcy Rules”), and Local Rules 1007-1(a) and (b) of the
Local Bankruptcy Rules for the District of Arizona (the “Local Rules”) .
6. No trustee or examiner has been appointed in these Cases, nor has an official
7. In support of this Motion, the Debtors hereby incorporate by reference the factual
statements contained in the “Omnibus Statement of Fact in Support of First Day Motions”, filed
RELIEF REQUESTED
8. By this Motion, the Debtors seek an order authorizing the Debtors to: (a) prepare
format only, identifying their creditors (without claim amounts) in the format(s) currently
maintained in the ordinary course of their businesses in lieu of preparing the requisite creditor
matrices for each Debtor required by Bankruptcy Rule 1007 and Local Rule 1007-1(a) using the
format requirements of Bankruptcy Rule 1007 and the Local Rules; (b) not file the Consolidated
COLUMBUS/676159.1 3
Matrix with the Court concurrently with the filing of their bankruptcy petitions, but instead to
make such list available to parties in interest only upon request; and (c) file a single consolidated
list of their 30 largest unsecured creditors in these Cases in lieu of filing lists of each Debtor’s
top 20 general unsecured creditors as required by Bankruptcy Rule 1007(d) and Local Rule
1007-1(b).
9. Under the facts and circumstances of these Cases, the Debtors respectfully assert
that such relief is not only appropriate, but necessary for the efficient and orderly administration
of these Cases.
Basis and Authority to Prepare, But Not File, the Consolidated Matrix
10. Bankruptcy Rule 1007(a)(l) and Local Rule 1007-1(a) require a debtor, in a
voluntary case, to file with its petition a list, or creditor service matrix, containing the name and
the Official Forms. These rules, however, do not specifically address complex Chapter 11 cases
where: (a) multiple bankruptcy cases will be jointly administered by the Court; and (b) a court
appointed claims, noticing, and balloting agent will be handling the service of all Notices (as
11. Rule 1001 of the Bankruptcy Rules provides, among other things, that the
Bankruptcy Rules “shall be construed to secure, the just, speedy and inexpensive determination
COLUMBUS/676159.1 4
B. Ample Cause Exists for Authorizing the Debtors to Prepare, But Not File, the
Consolidated Matrix in the Format(s) Maintained by the Debtors in the Ordinary Course
of Business
12. Authorizing the Debtors to prepare, but not file, the Consolidated Matrix using the
format(s) currently maintained by the Debtors in the ordinary course of their businesses is
appropriate in these Cases and is in the best interests of the Debtors and the efficient
administration of their estates for reasons set forth below. Doing so will contribute to the just,
13. The Debtors have identified approximately 5,000 potential entities to which
notice of certain proceedings and events in these Cases must be provided and who will need to
be included in the Debtors’ creditor matrix. The Debtors anticipate that such notices will
include, among other things, notice of the following: (a) the filing of the Debtors’ voluntary
petitions under Chapter 11 of the Bankruptcy Code; (b) the Bankruptcy Code § 341 meeting of
creditors; (c) the deadline to file proofs of claim in these Cases; (d) the hearing on any disclosure
statement with respect to any plan of reorganization that the Debtors may propose; (e) the
commencement of voting and solicitation procedures and the distribution of any ballots and
master ballots that may be used to solicit acceptances of a plan of reorganization; and (f) the
14. At this nascent stage of these Cases, the Debtors need to focus their time and
efforts on stabilizing their business operations, transitioning into operating under the numerous
Chapter 11 restrictions, and otherwise addressing the issues that necessarily arise upon the filing
Eurofresh Inc.’s computer files (or those of its agents), may be utilized efficiently to provide
interested parties with the Notices and other similar documents. Van Straalen Dec.
COLUMBUS/676159.1 5
15. Furthermore, requiring the Debtors to convert their computerized information to a
format compatible with the matrix requirements would be an exceptionally burdensome task and
would greatly increase the risk and recurrence of error with respect to information already intact
on computer systems maintained by the Debtors or their agents. Van Straalen Dec.
16. Finally, concurrently herewith, the Debtors have also filed a motion (the “Claims
Agent Motion”) seeking the appointment of Kurtzman Carson Consultants LLC (“KCC”) as
claims, noticing, and balloting agent in these Cases. If the Claims Agent Motion is granted,
KCC will, among other things, (a) assist with the consolidation of the Debtors’ computer records
into a creditor database, and (b) complete the mailing of the Notices to the parties in such
database, thereby alleviating the need for the Bankruptcy Court to maintain a list of creditors.
Upon consulting with KCC, the Debtors believe preparing the Consolidated Matrix in the format
or formats currently maintained in the ordinary course of the Debtors’ businesses will be
sufficient to permit KCC to promptly notice all applicable parties. Van Straalen Dec.
17. Avoiding the costs and risks associated with preparing and filing separate
matrices for each Debtor is: (a) in the best interests of the Debtors’ estates; and (b) will serve to
18. Regarding the Debtors’ request to not file the Consolidated Matrix, but rather to
make it available upon request, Bankruptcy Rule 1007(a)(5) and (c) provide that an extension of
time for the filing of such a list “may be granted only on motion for cause shown and on notice
to the United States trustee and to any trustee, committee elected under § 705 or appointed under
§ 1102 of the Code, or other party as the court may direct.” Fed. R. Bankr. P. 1007(a)(5).
19. Here, assuming that the Court will grant the Claims Agent Motion, KCC will be
handling the service of all of the Notices. This service alleviates the need for the Debtors to file
COLUMBUS/676159.1 6
a creditor matrix with the Court at all. Thus, the Debtors respectfully request authority to not file
the Consolidated Matrix with the Court. Alternatively, the Debtors request that the Court grant
the Debtors an extension to file the Consolidated Matrix indefinitely, with the Court reserving
the right to order the Debtors to file the Consolidated Matrix later in these Cases should the
20. Under § 105(a), the Court “may issue any order . . . that is necessary or
appropriate to carry out the provisions of [the Bankruptcy Code].” 11 U.S.C. § 105(a). The
relief requested herein will save the Debtors the time and expense of generating new creditor
matrices, and it will reduce the risk and error that might result if the Debtors were required to
generate new creditor matrices. Such relief will also allow the Debtors to utilize the time saved
to focus on the numerous other issues which will necessarily arise as a result of the Debtors’
Chapter 11 filings. Accordingly, the relief requested is necessary and appropriate to carry out
the filing requirements and notice provisions of the Bankruptcy Code, the Bankruptcy Rules, and
the Local Rules, and it is necessary and appropriate to allow the Debtors the opportunity and
21. Relief similar to that requested in this Motion has been granted in comparable
complex Chapter 11 cases in this District. In re PFP Holding, Inc., Case No. 08-00899 (Bankr.
D. Ariz. Feb. 19, 2008); In re Union Power Partners, L.P., et al., No. 2:05-bk-01143-CGC
(Bankr. D. Ariz. Jan. 31, 2005). Therefore, for the reasons stated above, the Debtors request
authority to prepare, but not file, the Consolidated List, and to make such list available to parties-
COLUMBUS/676159.1 7
Basis and Authority to File Consolidated List of 30 Largest Unsecured Creditors
22. Bankruptcy Rule 1007(d) also provides that a Chapter 11 debtor must file with its
voluntary petition a list setting forth the names, addresses, and claim amounts of the creditors
that hold the 20 largest unsecured claims in the debtor’s case (the “Top 20 List”).
23. This Top 20 List is primarily used by the United States trustee (the “U.S.
Trustee”) to evaluate the types and amounts of unsecured claims against the debtor and thus
identify potential candidates to serve on the official committee of unsecured creditors appointed
in the debtor’s case under section 1102 of the Bankruptcy Code. See In re Dandy Doughboy
Donuts, Inc., 66 B.R. 457, 458 (Bankr. S.D.F.L 1986) (“The purpose of the separate list of 20
largest creditors required by this provision in the rules is to enable the clerk to identify members
and the court to appoint immediately an unsecured creditors' committee in compliance with 11
U.S.C. § 1102(a)(1).”); 9 Collier on Bankruptcy ¶ 1007.05 (15th rev. ed. 2009) (“[T]he larger
[unsecured creditor] list and information about the claims of the creditors on the list enables the
United States trustee to determine the different types of claims existing in order to assure that a
24. Here, the main operations of the Debtors are those run by Eurofresh, Inc., while
Eurofresh Produce, Ltd. currently has few, if any, creditors. Because the creditors are all paid in
the ordinary course of business by Eurofresh, Inc., the Debtors respectfully submit that it is not
necessary to file a separate Top 20 List in both cases. The Debtors do not believe such a file
would facilitate the U.S. Trustee’s review of creditors’ claims or appointment of a creditors’
committee in these Cases. Accordingly, the Debtors seek authority to file a single consolidated
list of the 30 largest unsecured creditors in these Cases. The Debtors respectfully assert that such
COLUMBUS/676159.1 8
25. Under Bankruptcy Code § 105(a), the Court “may issue any order . . . that is
necessary or appropriate to carry out the provisions of [the Bankruptcy Code].” 11 U.S.C.
§ 105(a). The relief requested herein will not only save the Debtors the time and expense of
preparing separate Top 20 Lists, but will allow the Debtors to provide the U.S. Trustee with the
information most relevant for forming a committee of unsecured creditors in these Cases.
WHEREFORE, the Debtors respectfully request that the Court enter an order: (a)
authorizing the Debtors to prepare the Consolidated Matrix, in electronic format only,
identifying their creditors (without claim amounts) in the format or formats currently
maintained in the ordinary course of their businesses in lieu of preparing the requisite creditor
matrices, (b) authorizing the Debtors not to file the Consolidated Matrix with the Court
concurrently with the filing of their bankruptcy petitions, but instead to make such list available
only upon request; (c) authorizing the Debtors to file a single consolidated list of their 30 largest
unsecured creditors, and (d) granting such other relief as the Court deems just and proper.
COLUMBUS/676159.1 9
Dated this 21st day of April, 2009.
-and-
Kristin E. Richner
Nicholas J. Brannick
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
COLUMBUS/676159.1 10