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In re Conco, Inc.

United States Court of Appeals, Sixth Circuit

April 28, 2017

In Re: Conco, Inc., Debtor.
v.
The Oversight Committee; Conco, Inc., Appellees. Tom Harper; Sandra Krumma; Peggy Sue Leake; Samuel Zane Leake; Jon Souder; Conco Acquirement, LLC; Delfasco LLC, Appellants,

          Argued: March 8, 2017

         Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:16-cv-00125-Joseph H. McKinley Jr., Chief District Judge.

         United States Bankruptcy Court for the Western District of Kentucky at Louisville No. 12-34933(1)(11)-Joan A. Lloyd, Judge.

         ARGUED:

          David S. Kaplan, KAPLAN & PARTNERS LLP, Louisville, Kentucky, for Appellants Harper, Krumma, Leake, and Souder.

          Cory J. Skolnick, FROST BROWN TODD LLC, Louisville, Kentucky, for Appellants Delfasco and Conco Acquirement.

          James R. Irving, BINGHAM GREENEBAUM DOLL LLP, Louisville, Kentucky, for Appellee Oversight Committee.

          Neil C. Bordy, SEILLER WATERMAN LLC, Louisville, Kentucky, for Appellee Conco, Inc.

         ON BRIEF:

          David S. Kaplan, Casey L. Hinkle, KAPLAN & PARTNERS LLP, Louisville, Kentucky, for Appellants Harper, Krumma, Leake, and Souder.

          Cory J. Skolnick, John S. Egan, Edward M. King, FROST BROWN TODD LLC, Louisville, Kentucky, Gilbert Backenroth, HAHN & HESSEN LLP, New York, New York, for Appellants Delfasco and Conco Acquirement.

          James R. Irving, John K. Bush, C.R. Bowles, Jr., BINGHAM GREENEBAUM DOLL LLP, Louisville, Kentucky, for Appellee Oversight Committee.

          Neil C. Bordy, Keith J. Larson, SEILLER WATERMAN LLC, Louisville, Kentucky, for Appellee Conco, Inc.

          Before: DAUGHTREY, SUTTON, and DONALD, Circuit Judges.

          OPINION

          BERNICE BOUIE DONALD, Circuit Judge.

         This matter is before the court on appeal from a February 18, 2016 Memorandum Opinion and Order (the "February 18, 2016 Decision) of the United States Bankruptcy Court for the Western District of Kentucky ("Bankruptcy Court") in the Chapter 11 bankruptcy case In re Conco, Inc., No. 12-34933-jal (Bankr. W.D. Ky.). In that opinion and order, the Bankruptcy Court interpreted Conco Inc.'s Confirmed Plan to prohibit the sale of the ESOP-held Conco stock (the "Equity Security Interests" in the Debtor) from being sold or transferred through December 31, 2018, and enjoined any such sale until that time. The United States District Court for the Western District of Kentucky ("District Court") affirmed, finding that the Bankruptcy Court properly found that the Confirmed Plan prohibited the sale of the Equity Security Interests through December 31, 2018, and the Disclosure Statement containing identical language was adequate. Since the proper standard of review is abuse of discretion, and the Bankruptcy Court did not abuse its discretion, we AFFIRM the Bankruptcy Court's opinion and order.

         I.

         Conco, Inc. ("Conco" or the "Debtor") manufactures containers used by the United States Armed Forces and contractors who provide ammunition to the United States Armed Forces. All of the stock of Conco is held by the Conco, Inc. Employee Stock Ownership Plan and Trust (the "ESOP"), a defined contribution employee benefit plan. Appellant-Participants are all former employees of the Conco who are participants in the ESOP (the "Appellant-Participants").

         On November 5, 2012 (the "Petition Date"), Conco filed a petition for voluntary relief under title 11 of the United States Code. Shortly after the Petition Date, and throughout the course of the Chapter 11 proceedings, Delfasco, LLC, ("Delfasco" and together with the Appellant-Participants, the "Appellants") Conco's primary competitor, expressed interest in acquiring Conco's assets. These attempts proved to be unsuccessful. Conco's main customers, General Dynamics and the United States Department of the Army, opposed Delfasco's efforts to acquire ...


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