response thereto, but eventually determined it worth doing so in order to clarify several issues to the
Summary
A reply by Bernstein-Burkley, P.C. to objections to its First and Final Fee Application, filed December 14, 2020 as Doc 254 in In re Panthera Enterprises, LLC, No. 2:19-bk-00787, a Chapter 7 case in the U.S. Bankruptcy Court for the Northern District of West Virginia. The applicant, former debtor's counsel, responds to objections by Panthera Training, LLC and the Chapter 7 Trustee. It argues that the adversary proceeding against Training was necessary to resolve disputes under the Lease and Subcontract and to obtain financial information Training had not provided. On the debtor's monthly operating reports, it states that they reflected information the debtor provided and that the applicant recommended conversion to Chapter 7 once further issues were disclosed. The reply asks the court to overrule the objections and approve the fee application, and includes a certificate of service.
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No. 2:19-bk-00787 Doc 254 Filed 12/14/20 Entered 12/14/20 15:11:44 Page 1 of 7
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
In re:
Case Number: 2:19-BK-0787
PANTHERA ENTERPRISES, LLC,
Chapter 7
Debtor.
REPLY TO OBJECTIONS TO FIRST AND FINAL FEE APPLICATION
OF BERNSTEIN-BURKLEY, P.C.
NOW COMES, BERNSTEIN-BURKLEY, P.C. (“Applicant”), and hereby files this Reply
(“Reply”) to the Objections filed by Panthera Training, LLC (“Training”) and the Chapter 7 Trustee
(“Trustee”) (collectively, the “Objectors”) to the First and Final Fee Application of Bernstein-Burkley,
P.C. (the “Fee Application”) and states the following:
A. Introduction
Applicant hesitates to give any credence to the Objections by filing anything of record in
response thereto, but eventually determined it worth doing so in order to clarify several issues to the
Court. Ultimately, the Objections are baseless and serve only to spout conjecture, speculation and a
continuing misunderstanding and/or misrepresentation of these proceedings.
The Applicant served as Debtor’s counsel in what eventually became one of many failed
Chapter 11 bankruptcy cases seen by courts across the country. The Debtor was experiencing ongoing
financial difficulties and an ever-growing dispute with its tenant and subcontractor, Training. Despite
repeated requests for information and attempts to reconcile clear differences of opinion regarding the
mechanics of the contracts between the parties, the disputes carried on and, in many ways, contributed
to the filing of the bankruptcy. In addition, the Debtor’s primary asset, its 750 acre real property
training facility, was subject to imminent foreclosure by the Debtor’s secured creditor. As evidenced
by the proceedings and pleadings, the Debtor was engaged in various other disputes as well, all of
No. 2:19-bk-00787 Doc 254 Filed 12/14/20 Entered 12/14/20 15:11:44 Page 2 of 7
which led to its need to seek the breathing spell of a bankruptcy and explore potential avenues for
righting its ship. To be clear, the Debtor had a multitude of reasons for filing its Chapter 11 case. In
the end, the Debtor was not able to resolve its primary problems and develop a plan that would allow
for a successful exit from Chapter 11. The pleadings also reflect various actions taken by the Debtor
during the proceedings that hampered its own ability to seek consensual resolutions with key parties.
These circumstances are not unique. Unfortunate yes, but not unique. The idea and/or
suggestion that this case did not have a valid purpose or potential for resolution under the tools that the
Bankruptcy Code provides is misplaced, wholly illogical and unsupported by any fact or law.
Nevertheless, the Objectors assert various fanciful theories that fall squarely into the categories of
misplaced and unsupported. The Objectors’ complaints focus on two aspects of the case: 1) the
litigation between the Debtor and Training (the “Adversary”); and 2) the Debtor’s monthly operating
reports. For a myriad of reasons, summarized herein and as reflected by the record of these
proceedings, Applicant acted diligently and relied upon information provided by the Debtor in
attempting to assist the Debtor in an effort to restructure is business and financial relationships and
ultimately reorganize. The Objections should be overruled and the Applicant’s Fee Application should
be approved in its entirety.
B. The Adversary Proceeding
Without basis and completely contrary to the record and the actions and pleadings of Training,
the Objectors allege that the Adversary was unwarranted. It is notable that Training never made these
arguments in the actual Adversary proceeding. In fact, Training never moved to dismiss the allegedly
“unwarranted” Adversary proceeding. Rather, it answered the Debtor’s allegations, raised defenses,
engaged in fact discovery, and made legal arguments concerning the contracts between the parties.
That is litigation. It may very well have been that certain facts were discovered and defenses raised
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No. 2:19-bk-00787 Doc 254 Filed 12/14/20 Entered 12/14/20 15:11:44 Page 3 of 7
during the litigation that weighed in favor of Training. But those matters had to be borne out between
the parties in the context of the Adversary.
There is no question that the commencement of the Adversary was in fact necessary in order
to resolve various issues between the Debtor and Training and in order for the Debtor to gather certain
information and documentation that Training refused to provide voluntarily. Ironically, the Objectors
rely heavily on the financial reports of Training and the idea that those reports “vindicate” Training as
to the dispute with the Debtor. But much of that information is the very information that Training
refused to provide to the Debtor voluntarily. In particular, Training provided the Debtor with only
Profit and Loss Statements, but refused to provide (or allow access to) any financial reporting to
support the information contained on those P&L Statements. The P&L Statement were worthless to
the Debtor without allowing the Debtor to review and analyze the financial transactions underlying the
P&L Statements. The Trustee was given access to all of Training’s financial information and was able
to analyze that information in relation to Training’s P&L Statements. That is an opportunity that the
Debtor never had. Moreover, the need to perform that analysis was a key component of the Debtor’s
causes of action against Training.
The litigation was based primarily on a contract dispute arising from the Lease between the
Debtor and Training. Frankly, the record will reflect that the Lease was poorly drafted in many
respects, leading to multiple ambiguities and avenues for disputes. The parties had distinctly different
interpretations of certain language in the Lease and how and when to apply it. To further complicate
matters, the Debtor and Training were also parties to a Subcontract that governed their relationship
and itself led to additional ambiguities and disputes. The Bankruptcy Court (Judge Flatley) certainly
recognized the different interpretations that could be made under the Lease and Subcontract. The
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No. 2:19-bk-00787 Doc 254 Filed 12/14/20 Entered 12/14/20 15:11:44 Page 4 of 7
Parties’ disagreement on these issues and whether additional monies were owed under the Lease and/or
Subcontract contributed significantly to commencement of the Adversary.
Applicant understands that the Trustee eventually came to the conclusion that no additional
monies were owed to the Debtor by Training. However, that conclusion required not only a thorough
analysis of Training’s internal financial records, which Training refused to provide to the Debtor, but
also required a legal conclusion regarding interpretation of the Lease and Subcontract. That is the legal
opinion of the Trustee. Although the Trustee may now have his reasons for abandoning any causes of
action against Training, that decision has no bearing on the Debtor’s initial need to commence the
Adversary in order to have these issues vetted and determined. Lastly, it is worth reiterating that
Training could have at any time raised the arguments that it now attempts to raise regarding the
“validity” of the litigation, but it never did so. Applicant would assert that is because Training knew
and knows that any such arguments are baseless.
C. Debtor’s Operating Reports
The Objectors’ complaints about the Debtor’s operating reports continue to be baffling. The
Operating Reports were prepared by the Debtor, reflected what the Debtor’s internal records reflected
and show how the Debtor was accounting for various financial transactions. That is what monthly
operating reports are supposed to do – they show the Debtor’s financial transactions and how the
Debtor is accounting for and characterizing those transactions. If the Objectors disagreed with how
the Debtor was accounting for any transactions, it would have been productive for them to raise those
concerns. As Applicant has pointed out numerous times, Training’s counsel never brought its concerns
to anyone’s attention, particularly not to Applicant’s attention. If Applicant had been made aware of
such concerns, it could have questioned the Debtor regarding them and attempted to remedy any issues.
To be sure, the Operating Reports reflect the information provided by the Debtor and Applicant’s
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No. 2:19-bk-00787 Doc 254 Filed 12/14/20 Entered 12/14/20 15:11:44 Page 5 of 7
resulting understanding of how transactions between the Debtor and Training were to be accounted
for, both by the Debtor and Training. To the extent that there were communications between the
Debtor and Training inconsistent with that understanding, Applicant was not made aware of any
such conversations, either by the Debtor or Training.
Importantly, when Applicant became aware (after the fact) of certain transfers that the Debtor’s
principals had made, Applicant instructed the Debtor’s principals to correct such issues. This message
was delivered by Applicant on numerous occasions, each time more strenuously than before. When
Applicant was eventually made aware of additional issues and irregularities, which were only first
disclosed to Applicant in the Motion to Dismiss proceedings, Applicant itself recommended that this
case be converted so that a trustee could be appointed to investigate and oversee the Debtor.
To be sure, Applicant was operating with the information that the Debtor made available and
expressly provided to Applicant. Again, when it became clear to Applicant that certain withheld
information warranted serious consideration, Applicant recommended that this case be converted to a
Chapter 7 and advised the Debtor to consent to the conversion. Applicant contacted the United States
Trustee Office directly regarding these concerns and Applicant’s recommendation for conversion.
WHEREFORE, based on the foregoing and the record in these proceedings, Applicant hereby
respectfully requests that this Court overrule the Objections and approve Applicant’s First and Final
Fee Application, and to enter any further relief the Court deems just and appropriate.
Dated: December 14, 2020 Respectfully Submitted,
BERNSTEIN-BURKLEY, P.C.
By: /s/ John J. Richardson
John J. Richardson, Esq., WV ID: 13140
jrichardson@bernsteinlaw.com
Mark A. Lindsay, Esq., PA ID: 89487
Admitted Pro Hac Vice
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No. 2:19-bk-00787 Doc 254 Filed 12/14/20 Entered 12/14/20 15:11:44 Page 6 of 7
mlindsay@bernsteinlaw.com
Salene Mazur Kraemer, Esq., WV ID: 10687
skraemer@bernsteinlaw.com
707 Grant Street, Ste. 2200
Pittsburgh, PA 15219
Phone: (412) 456-8101
Fax: (412) 456-8135
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No. 2:19-bk-00787 Doc 254 Filed 12/14/20 Entered 12/14/20 15:11:44 Page 7 of 7
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
In re:
Case Number: 2:19-BK-0787
PANTHERA ENTERPRISES, LLC,
Chapter 7
Debtor.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 14th day of December, 2020, a copy of the
REPLY TO OBJECTIONS TO APPLICANT’S FIRST AND FINAL FEE APPLICATION
was served via the CM/ECF system upon all parties and counsel of record.
Dated: December 14, 2020 Respectfully Submitted,
/s/ John J. Richardson
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