The bankruptcy of defunct ticket reseller and possible Ponzi scheme vehicle National Events has entered a wait-and-see mode after a New York bankruptcy judge on Wednesday approved a final $280,000 loan that will fund dueling investigations into possible causes of action.
The debtor-in-possession loan will advance $280,000 to the debtor, with $135,000 to fund an investigation by “estate fiduciary” Edward J. LoBello and $45,000 for another investigation by Alan D. Halperin, an independent examiner appointed by the U.S. trustee, after a $100,000 roll-up is accounted for.
Both investigations will be aimed at untangling the web of transactions that led to National Events’ $70 million downfall and uncovering possible causes of action.
Gerard S. Catalanello of Alston & Bird LLP, which represents DIP lender Hutton Ventures LLC, told the court that the DIP is “a pure litigation financing” play.
U.S. Bankruptcy Judge James L. Garrity approved the loan over the objections of certain unsecured creditors who worried the final order gave too many protections to DIP lenders and prepetition creditors Hutton, Taly USA Holdings Inc. and SLL USA Holdings.
In an unusual twist, the investigations won’t just be looking for causes of action against third parties; they’ll also be looking at claims against the DIP lenders themselves, some of which were intimately involved with the debtor before the Ponzi scheme allegations came to light in May.
Jason Nissen, the disgraced founder and former CEO of National Events, acknowledged he’d been running the formerly legit ticket reseller as a Ponzi scheme for at least two years at a May meeting with Taly executives at their offices, for example.
Nissen has since been indicted, and his criminal case is ongoing. Counsel for Nissen appeared at Tuesday’s hearing but did not speak before the court.
James M. Sullivan of Windels Marx Lane & Mittendorf LLP, who represents an ad hoc group of former employees and unsecured creditors, had previously objected to a provision in the proposed DIP order that would grant the lenders superpriority administrative liens on all of the debtor’s assets, including potential claims.
Sullivan said he worried that if the investigations did end up uncovering sizable claims against the DIP lenders, they’d be able to engineer a default of the DIP loan somehow and then effectively foreclose those claims by collecting on the administrative liens. He asked that those liens provide a carveout for any claims against the DIP lenders.
At Tuesday’s hearing the DIP lenders said they’d amended the order so that the liens would only attach to the proceeds of the claims and not the claims themselves, but Sullivan said that didn’t go far enough.
Judge Garrity pointed out that however the liens were structured, however, the DIP lenders were entitled to be paid back ahead of any other party, even if the money was generated through recovery actions against the DIP lenders themselves.
“Even if nobody had a lien on it, at the end of the case if we end up with any money from recovery actions and we say ‘who has to get paid first,’ it will always be the superpriority lenders,” Judge Garrity said. “I will approve and authorize on a final basis and respectfully overrule the final objection.”
Counsel for LoBello also told the court the receiver has recently unlocked QuickBooks files that were previously password-protected, allowing the investigation to proceed at full steam in the months ahead.
Wednesday’s hearing took place as part of the bankruptcy case for National Events of America Inc. and New World Events Group Inc., two holding companies referred to collectively as “the Inc.’s” that were controlled by Nissen.
Meanwhile, a separate bankruptcy case is in progress for National Events Holdings LLC, the operational company that actually carried out the buying and selling of tickets, and several affiliated companies. The lawyers involved in the cases have taken to calling those companies “the LLCs.”
Secured creditor Falcon Investment Advisors LLC had sought to put in place a structure similar to the one approved for the Inc.’s in the case of the LLCs, but that proposal fell apart after Judge Garrity expressed concern over allowing “the debtor to investigate itself.”
The creditors in the Inc.'s case avoided the same fate by agreeing to the appointment of an independent examiner who will be chosen by the U.S. Trustee's Office.
Silverman is represented by David J. Mahoney of SilvermanAcampora LLP.
Taly is represented in the bankruptcy by Joseph T. Moldovan and Robert K. Dakis of Morrison Cohen LLP.
Falcon is represented by Joel H. Levitin, Brian T. Markley and Richard A. Stieglitz Jr. of Cahill Gordon & Reindel LLP.
Edward J. LoBello, the court-appointed receiver in the related bankruptcy, is represented by William C. Heuer of Westerman Ball Ederer Miller Zucker & Sharfstein LLP.
An unofficial group of unsecured creditors is represented by James M. Sullivan of Windels Marx Lane & Mittendorf LLP.
The National Events Holdings LLC bankruptcy is In re: National Events Holdings LLC, case number 1:17-bk-11556, in the U.S. Bankruptcy Court for the Southern District of New York.
The National Events of America Inc. bankruptcy is In re: National Events of America Inc. et al., case number 17-11798, in the U.S. Bankruptcy Court for the Southern District of New York.
The state court case is Taly USA Holdings Inc. et al. v. Nissen et al., case number 652865/2017, in the Supreme Court of the State of New York, County of New York.
The criminal case is U.S. v. Nissen, case number 1:17-cr-00477, in the U.S. District Court for the Southern District of New York.