Abeinsa Holding Opinion – Motion For Relief From Stay Granted

Summary

In a 9 page decision dated October 6, 2016, Judge Carey of the Delaware Bankruptcy Court granted the motion of Portland General Electric ("PGE") for relief from the automatic stay of the Bankruptcy Code. Judge Carey's opinion is available here (the "Opinion"). PGE moved that the stay be lifted so that it could initiate litigation against various debtor entities arising out of alleged breaches of a construction agreement between PGE and the Debtors called the "Turnkey Engineering, Procurement & Construction Agreement for Carty Generating Station" (the "EPC Contract").

Background

In 2013, the Debtors entered into the EPC Contract for PGE. The Debtors' ultimate parent company, Abengoa, signed a Guaranty and the Debtors obtained a performance bond. In November the relationship between PGE and the Debtors began deteriorating and in December 2015, PGE terminated the EPC Contract.

Around the same time, PGE sought recovery pursuant to the performance bond, but its claim was denied. On December 31, 2015, in accordance with the provisions of the Guaranty, Abengoa commenced an ICC arbitration with PGE. Abengoa joined the Debtors and the bond providers to the arbitration, relying upon clauses in the Guaranty that provided for arbitration as the exclusive forum.

In February 2016, PGE sought to enjoin the arbitration. In March 2016, PGE commenced an action against the Sureties in the U.S. District Court for the District of Oregon. On March 29, 2016, the Debtors filed their voluntary petitions for relief under chapter 11. On May 25, 2016, PGE filed its Motion for Relief from the Stay to pursue claims against the Debtors in the District of Oregon.

Judge Carey's Opinion

Judge Carey started his discussion of applicable law by outlining the factors required to grant a motion for relief from stay as provided in Rexene Products, 141 B.R. 574, Judge Carey then cited 11 U.S.C. 362(g), which...