Plan Supplement - Exhibit D Retained Causes of Action Schedule
Summary
Exhibit D, Schedule of Retained Causes of Action, to the Joint Chapter 11 Plan of Reorganization of Vyaire Medical, Inc. and Its Debtor Affiliates, dated September 30, 2024 [Docket No. 581]. It states that under Article IV(O) the Retained Causes of Action initially remain with the Debtors and vest with the Wind-Down Debtors as of the Effective Date. The Debtors reserve rights over Causes of Action including avoidance actions, insurance policies, tax obligations, litigation, and entities that owe money to the Debtors. Exhibit D(iv) names an action in the District Court of Hamburg (Germany), a New York Supreme Court action against Westchester Surplus Lines Insurance Company and others, and Sleep Management LLC (d/b/a VieMed) vs. Vyaire Medical Inc. in the Western District of Louisiana.
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- Date
- 2024-09-30
Cite this document
“Plan Supplement - Exhibit D Retained Causes of Action Schedule.”
Original at ecf.deb.uscourts.gov, dated 2024-09-30. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2024-09-30-microsoft-word-plan-supplement-exhibit-d-retained-causes-of-action-schedule-486/
, SHA-256 0ea692a310f06a40449247e12228e40945fff8404459cd40113afe86f60288b6.Full text
EXHIBIT D SCHEDULE OF RETAINED CAUSES OF ACTION Article IV(O) of the Joint Chapter 11 Plan of Reorganization of Vyaire Medical, Inc. and Its Debtor Affiliates, dated September 30, 2024 [Docket No. 581] (as may be amended, modified, or supplemented, the “Plan”),1 provides that the Retained Causes of Action shall initially remain with the Debtors and shall immediately vest with the Wind-Down Debtors as of the Effective Date. Unless otherwise released by the Plan, the Debtors or the Wind-Down Debtors, as applicable, expressly reserve their rights with respect to all Causes of Action that are not expressly released under the Plan, including the following: 1. Avoidance Actions arising under applicable state law and Chapter 5 of the Bankruptcy Code, including, without limitation, Bankruptcy Code sections 502, 510, 542, 544, 547 through 553 and 724(a), against any party who is not a Released Party and those entities identified in Exhibit D(i) attached hereto. 2. All Causes of Action relating to any and all insurance contracts and insurance policies to which the Debtors are a party or pursuant to which the Debtors have any rights whatsoever, regardless of whether such contract or policy is specifically identified in the Plan, including, without limitation, Causes of Action against insurance carriers, reinsurance carriers, insurance brokers, underwriters, occurrence carriers, or surety bond issuers relating to coverage, indemnity, contribution, reimbursement, or any other matters. Without limiting the generality of the foregoing, the Debtors expressly reserve all Causes of Action against the Entities identified in Exhibit (D)(ii) attached hereto. 3. All Causes of Action relating to any and all tax obligations to which the Debtors are a party or pursuant to which the Debtors have any rights whatsoever, including, without limitation, against or related to all entities that owe or that may in the future owe money related to tax refunds to the Debtors, regardless of whether such entity is specifically identified herein. Without limiting the generality of the foregoing, the Debtors expressly reserve all Causes of Action, including potential tax refund, reimbursement of overpayments resulting from ordinary course payments or payments of any filed proofs of claim, and any rights arising under section 505 of the Bankruptcy Code, against the Entities identified in Exhibit (D)(iii) attached hereto. 4. All Causes of Action against or related to all entities (other than Released Parties) that are party to or that may in the future become party to litigation, arbitration, or any other type of adversarial proceeding or dispute resolution proceeding, whether formal or informal, judicial or non-judicial, regardless of whether such entity is specifically identified in the Plan, except to the extent such entity is a Released Party. Without limiting the generality of the foregoing, the Debtors expressly reserve all Causes of Action against the Entities identified in Exhibit (D)(iv) attached hereto. 1 Capitalized terms used herein but not otherwise defined shall have the meaning ascribed to them in the Plan. Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 1 of 16 5. All Causes of Action against or related to all entities (other than Released Parties) that owe or that may in the future owe money to the Debtors, regardless of whether such entity is expressly identified in the Plan except to the extent such entity is a Released Party. The Debtors or the Wind-Down Debtors, as applicable, expressly reserve all Causes of Action against or related to all entities who assert or may assert that the Debtors owe money to them. The claims and Causes of Action reserved include without limitation Causes of Action against vendors, suppliers of goods and services, customers or any other parties, except to the extent such party is a Released Party: a. for overpayments, back charges, duplicate payments, improper holdbacks, deductions owing or improper deductions taken, deposits, warranties, guarantees, indemnities, recoupment, or setoff; b. for (i) wrongful or improper termination, suspension of services or supply of goods, or failure to meet other contractual or regulatory obligations; (ii) for failure to fully perform or to condition performance on additional requirements under contracts with any one or more of the Debtors before the assumption or rejection, if applicable, of such contracts; (iii) for payments, deposits, holdbacks, reserves or other amounts owed by any creditor, utility, supplier, vendor, insurer, surety, factor, lender, bondholder, lessor or other party; (iv) for any liens, including mechanics’, artisans’, materialmens’, possessory or statutory liens held by the Debtors; (v) for counter-claims and defenses related to any contractual obligations; (vi) for any turnover actions arising under Bankruptcy Code sections 542 or 543; and (vii) for unfair competition, interference with contract or potential business advantage, breach of contract, infringement of intellectual property or any business tort claims. 6. All Causes of Action based in whole or in part upon any and all postings of a security deposits, adequate assurance payment, or any other type of deposit, prepayment, or collateral, regardless of whether such posting of security deposit, adequate assurance payment, or any other type of deposit, prepayment or collateral is specifically identified herein. 7. All Causes of Action based in whole or in part upon the enforcement of the terms of the Sale Transactions Documentation. Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 2 of 16 Exhibit D(i) ACCENT PLASTICS INC ADVANCED MOTION CONTROLS ADVANCED PRINTING AEROTEK INC AGILITI HEALTH, INC. AIRGAS USA LLC ALL SEALS INC ALLIED ELECTRONICS AMAZON WEB SERVICES INC AMERICAN CRATING ANA CONCHEIRO GUISAN ANALYTICAL INDUSTRIES INC. ANTON VAN KAAM APPEXTREMES LLC APPLE RUBBER PRODUCTS ARTIQ NV ASCENSION HEALTH RESOURCE AND SUPPLY MANAGEMENT GROUP, LLC ASSURED PARTNERS CAPITAL INC AT&T MOBLILITY II LLC AUGUSTA HITECH SOFT SOLUTIONS LLC AUTOMATIC DATA PROCESSING INC AVNET, INC. BAY CORPORATION BCP SYSTEMS INC. BMW PRECISION MACHINING INC BRENNER-FIEDLER & ASSOC. BSI GROUP AMERICA INC CDW COMPUTER CENTERS CEVA LOGISTICS CHEMTREC CIWIT BV CLAYTON CONTROLS CLEO COMMUNICATIONS US, LLC COGNITIVE CONSULTING LLC COGNIZANT TECHNOLOGY SOLUTIONS US C CONNEXIO HEALTH LLC COPPER & BRASS SALES CORPORATION SERVICE COMPANY COVINGTON & BURLING LLP CULLIGAN WATER CONDITIONING DA/PRO RUBBER INC Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 3 of 16 DANIELE DELUCA DAVID M LEWIS COMPANY LLC DAWAR TECHNOLOGIES DEEL INC DELL MARKETING LP DELL REALTY COMPANY DEPARTMENT OF LABOR AND INDUSTRIES DEXTER RESEARCH, INC. DIGI-KEY CORP. 55348 DYMAX CORP E & S PRECISION SHEETMETAL MFG INC EDWARD A ROSE EIS, INC. FILE 98059 EMERGO GLOBAL REPRESENTATION LLC ENDICOTT RESEARCH GROUP INC ENHESA INC EPM PROS INC EUROFINS ELECTRICAL & EXETER 6201 GLOBAL DISTRIBUTION FEDEX GROUND PACKAGE SYSTEM FERMISH CLINICAL TECHNOLOGIES FLEXIM US CORP FOOD AND DRUG ADMINISTRATION FORTE DGTL LLC FRAGOMEN, DEL REY, BERNSEN & LOEWY FREYR INC FRONTIER COMMUNICATIONS CORPORATION GE HEALTH CARE GENERANT GISPATH INC GRAINGER GREATBATCH MEDICAL HAYNES AND BOONE LLP HEALTH CANADA HEALTHTRUST PURCHASING GROUP LP HEIDRICK & STRUGGLES INC HOGAN LOVELLS US LLP HOUSE OF BATTERIES HUGHES,R.S.,CO.INC. HYMAN PHELPS & MCNAMARA PC ILI INFODISK IN SITU TRAINING SA INDUSTRIAL HEARING & PULMONARY Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 4 of 16 INNOVATIVE DISCOVERY LLC INSIGHT ITD CORPORATION JABIL CIRCUIT (SHANGHAI) LTD. KENNETH JOSEPH ORR KEY INSTRUMENTS KILMAINHAM KPMG LLP KYLE PROUGH (KYOTE CREATIVE) LINKLATERS LLP LORI ANNE VOSSLER-YANG MARLEE MFG. MARY C TROUT MASTER BOND, INC MAXTEC MCKESSON MEDICAL-SURGICAL SUPPLY MCMASTER-CARR SUPPLY CO. MEGAN STOPEK MER MAR, INC. MESSNER REEVES LLP METALPRO INDUSTRIES MH CUSTOM DESIGN & MFG LC. MICROSOFT CORPORATION MMA SECURITIES LLC MOOG COMPONENTS GROUP, INC MOUSER ELECTRONICS MSC INDUSTRIAL SUPPLY CO. INC. NEWARK CORPORATION NEXGEN DIGITAL NORTHWELL HEALTH NUMATIC ENGINEERING OCEAN STATE STAINLESS, INC. OHIO BUREAU OF WORKERS' ORANGE COAST PNEUMATICS OXFORD GLOBAL RESOURCES LLC PALM SPRINGS PLATING PARKER HANNIFIN - PORTER DIVISION PARKER MEDICAL SYSTEMS DIVISION PATENTBURO PAUL ROSENICH AG PAX INDUSTRIES PEAK TECHNICAL SERVICES INC PENTAIR FILTRATION SOLUTIONS LLC PHOTOMACHINING Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 5 of 16 PINNACLE PRECISION SHEET METAL CORP PLANFUL INC PORZIO COMPLIANCE SERVICES, LLC PRECISION MEDICAL PRECISION METAL PROCESSING INC. PREETY TULI PREMIER HEALTHCARE ALLIANCE LP PRESIDIO HOLDINGS INC PRN STAFFING QOSINA CORP. RAINER KUEHNER REAL STAFFING GROUP RESTRUCTURING PARTNERS & ASSO LLC RINGCENTRAL INC SAFETY-KLEEN SALESFORCE.COM INC SCHMIDT BIOMED SDN BHD SCHROFF INC SEBASTIAN MASANET SELCO PRODUCTS SIEMENS INDUSTRY SOFTWARE INC SILMATES PRIVATE LTD SIMCO ELECTRONICS SPARK DSG LLC SPIRACLE TECHNOLOGY STAR EXHIBITS & ENVIRONMENTS INC SUPERIOR SPRING CO T C I PRECISION METALS TALX CORP TAW ELECTRONICS INC TDS UNLIMITED INC TECH-ETCH TELEDYNE ANALYTICAL INSTRUMENTS TESTEQUITY, INC THE WEST GROUP THERM-O-NAMEL, INC. THIEME CORPORATION THOMAS E BACHMAN TICIC SUB LLC T-MOBILE USA, INC. TOMASZ SZCZAPA TOOLING EXPRESS INC TPI - CUSTOM SOLUTIONS Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 6 of 16 TRADE TECHNOLOGIES INC TRANSITIONS INSTITUTE INC TRANSPERFECT TRANSLATIONS TRICON TRU-FORM PLASTICS INC. ULINE SHIPPING SUPPLIES UNITED AD LABEL (RR DONNELLY) UNITED FOAM TECHNOLOGIES UPS SUPPLY CHAIN SOLUTIONS INC VACUMETRICS INC / VACUMED DIV. VALUATION RESEARCH CORPORATION VALUE PLASTICS VAN DOORNE N V VENDORMATE INC VERA ROSAS REGISTRO E LEGALIZACAO VERITIV OPERATING COMPANY VERTEX INC VIZIENT INC WAGEWORKS INC WEBER PRECISION GRAPHICS WILLIAM W STRINGER MD WOLFE PROCUREMENT INC YUSEN LOGISTICS AMERICAS INC ZENSAR TECHNOLOGIES INC Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 7 of 16 Exhibit D(ii) Legal Entity Insurance Carrier Policy Type Policy Number Policy Term Vyaire Holding Company Federal Insurance Company General Liability 3606-61-89 Annual Vyaire Holding Company Federal Insurance Company US Auto Liability (24) 7363-96-04 Annual Vyaire Holding Company Chubb National Insurance Company Workers’ Compensation (25) 7183-97-95 Annual Vyaire Holding Company Federal Insurance Company Commercial Umbrella 5672-07-51 Annual Vyaire Holding Company ACE American Insurance Company Foreign Auto PHFD38688571 001 Annual Vyaire Holding Company ACE American Insurance Company Foreign General Liability PHFD38688571 001 Annual Vyaire Holding Company ACE American Insurance Company Foreign Voluntary Workers’ Compensation PHFD38688571 001 Annual Vyaire Holding Company LifeScience Risk Products Liability LSR-PCO-00539-24 Annual Vyaire Holding Company Illinois Union Insurance Company Products Liability XSP G47393942 002 Annual Vyaire Holding Company Euclid Life Science Specialty, LLC Products Liability LSS2000275 Annual Vyaire Holding Company ProAssurance Specialty Insurance Company Products Liability EX24IL380003 Annual Vyaire Holding Company Ironshore Specialty Insurance Company Products Liability HC7TAB7TUL004 Annual Vyaire Medical Products Ltd HDI Global SE – UK Foreign Products Liability 110-01164144-14072 Annual Vyaire Holding Company Beazley Group Cyber Liability W1EFF2220701 Annual Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 8 of 16 Legal Entity Insurance Carrier Policy Type Policy Number Policy Term Vyaire Holding Company Indian Harbor Insurance Company Cyber Liability MTE904194703 Annual Vyaire Holding Company National Union Fire Insurance Company of Pittsburgh, PA Crime 1-544-18-54 Annual Vyaire Holding Company Great American Insurance Company Crime Excess XSC E776448 02 00 Annual Vyaire Holding Company Berkshire Hathaway Specialty Insurance Director & Officer Side A Liability 47-EMC-312437-04 Annual Vyaire Holding Company Illinois National Insurance Co. Director & Officer Side A Liability 01-545-03-57 Annual Vyaire Holding Company Twin City Fire Insurance Co. Director & Officer Side A Liability 83 PE 0401876-23 Annual Vyaire Holding Company Axis Insurance Company Director & Officer Side A Liability P-001-000712001-03 Annual Vyaire Holding Company. ACE American Insurance Company Director & Officer Side A Liability G71089022 003 Annual Vyaire Holding Company Old Republic Professional Liability, Inc. Director & Officer Side A Liability ORPRO 13 101883 Annual Vyaire Holding Company Midvale Indemnity Company Director & Officer Side A Liability ACL-144453387-02 Annual Vyaire Holding Company Federal Insurance Company Fiduciary Liability J06349456 Annual Vyaire Holding Company Federal Insurance Company Employment Practices Liability J06349456 Annual Vyaire Holding Company Illinois National Insurance Co. Fiduciary Liability 01-545-03-53 Annual Vyaire Holding Company Great American Insurance Co. Special Risk SCI273611442 Annual Vyaire Holding Company Allied World Assurance Company (U.S.) Inc. Pollution Liability 0310-3558 Annual Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 9 of 16 Legal Entity Insurance Carrier Policy Type Policy Number Policy Term Vyaire Holding Company Lloyd’s Syndicate 1036 COF Marine Cargo Liability B0509MARCW2351091 Annual Vyaire Holding Company Lloyd’s Syndicate No.4472 LIB. Marine Cargo Liability B0509MARCW2351092 Annual Vyaire Holding Company Federal Insurance Company Global Property 3606-61-72 DTO Annual Vyaire Holding Company Starr Surplus Lines Insurance Company Global Property 23SSLDOND316061 Annual Vyaire Holding Company Princeton Excess and Surplus Lines Insurance Company Global Property 78-A3-XP-0001068-00 Annual Vyaire Holding Company Mt. Hawley Insurance Company Global Property MPC0606018 Annual Vyaire Holding Company Endurance American Specialty Insurance Global Property ARP30048538600 Annual Vyaire Holding Company Lloyd’s of London Global Property B0509BOWPN2352774 B0509BOWPN2352775 B0509BOWPN2352776 B0509BOWPN2352777 Annual Vyaire Holding Company Lloyd’s of London Global Property B0509BOWPN2352776 Annual Vyaire Holding Company Ascot Specialty Insurance Company Property DIC UB211270B00463 Annual Vyaire Holding Company Princeton Excess and Surplus Lines Insurance Company Property DIC B2A3IM0003894-00 Annual Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 10 of 16 Exhibit D(iii) Taxing Authority Alabama - Revenue Discovery Systems Autauga, Birmingham, Chilton, Clanton, Dale, Dothan, Florence, Hamilton, Henry, Jackson, Lauderdale, Pike, Scottsboro City of Montgomery Alabama - STACS City of Sheffield Colbert County Franklin County Alabama Department of Revenue Alabama Department of Revenue Alaska Department of Revenue Arizona Department of Revenue Arizona Department of Revenue Arkansas Department of Finance & Administration Ascension Parish Sales and Use Tax Authority Avoyelles Parish School Board Baldwin County Bureau of Revenue & Taxation Caddo Shreveport Sales & Use Tax Commission Calcasieu Parish California Department of Tax and Fee Administration City of Alabaster City of Arvada City of Aurora Revenue Division City of Baton Rouge Parish of East Baton Rouge City of Boulder City of Bremerton City of Colorado Springs City of Craig City of Daphne City of Durango City of Englewood City of Everett City of Foley Revenue Department City of Fort Collins City of Golden Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 11 of 16 Taxing Authority City of Grand Junction City of Greeley City of Greenwood Village City of Gunnison City of Huntsville City of Lakewood City of Lamar City of Littleton City of Lone Tree City of Longmont City of Longview City of Mobile City of Monroe/Ouachita Parish City of New Orleans City of Parker City of Pueblo City of Seattle City of Steamboat Springs City of Thornton Colorado Department of Revenue Commerce City Tax Division Comptroller of Maryland Connecticut Department of Revenue Services Cullman County Dekalb County Revenue Department Delaware Division of Revenue Denver Department of Finance Department of the Treasury Internal Revenue Service District of Columbia District of Columbia Evangeline Parish Sales/Use Tax Commission Florida Department of Revenue Georgia Department of Revenue Georgia Department of Revenue Hawaii Department of Taxation Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 12 of 16 Taxing Authority Hawaii Department of Taxation Iberia Parish School Board Sales & Use Tax Department Idaho State Tax Commission Idaho State Tax Commission Illinois Department of Revenue Illinois Department of Revenue Indiana Department of Revenue Indiana Department of Revenue Iowa Department of Revenue Iowa Department of Revenue Jefferson County Department of Revenue Kansas Department of Revenue Kansas Department of Revenue Kentucky Department of Revenue Kentucky Revenue Cabinet Lafayette Parish School System Lafourche Parish School Board Lincoln Parish Louisiana - St. Charles Louisiana - St. John Louisiana - St. Landry Louisiana - St. Mary Louisiana - St. Tammany Louisiana - Vernon Louisiana - Washington Louisiana - Webster Louisiana Department of Revenue Louisiana Department of Revenue Madison County Maine Department of Revenue Maine Revenue Services Maryland Revenue Administration Massachusetts Department of Revenue Massachusetts Department of Revenue Michigan Department of Treasury Michigan Department of Treasury Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 13 of 16 Taxing Authority Minnesota Department of Revenue Minnesota Department of Revenue Mississippi Department of Revenue Mississippi Department of Revenue Missouri Department of Revenue Missouri Department of Revenue Mobile County Montana Department of Revenue Montgomery County Commission Tax & Audit Department Nebraska Department of Revenue Nebraska Department of Revenue Nevada Department of Taxation New Hampshire Department of Revenue Administration New Jersey Division of Taxation New Jersey Division of Taxation New Mexico Taxation & Revenue Department New Mexico Taxation & Revenue Department New York Department of Taxation and Finance New York Department of Taxation and Finance North Carolina Department of Revenue North Carolina Department of Revenue North Dakota Office of State Tax Commissioner North Dakota Office of State Tax Commissioner Ohio Department of Taxation Oklahoma Tax Commission Oklahoma Tax Commission Oregon Department of Revenue Oregon Department of Revenue Parish Of Acadia Pennsylvania Department of Revenue Pennsylvania Department of Revenue Plaquemines Parish Rapides Parish Rhode Island Division of Taxation Rhode Island Division of Taxation Shelby County Business Revenue Office Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 14 of 16 Taxing Authority South Carolina Department of Revenue South Carolina Department of Revenue South Dakota Department of Revenue State of Arkansas Tennessee Department of Revenue Tennessee Department of Revenue Texas Comptroller of Public Accounts Texas Comptroller of Public Accounts Utah State Tax Commission Utah State Tax Commission Vermont Department of Taxes Vermont Department of Taxes Virginia Tax Office of Customer Services Virginia Tax Office of Customer Services Washington State Department of Revenue West Virginia State Tax Department West Virginia Tax Division Wisconsin Department of Revenue Wisconsin Department of Revenue Wyoming Department of Revenue Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 15 of 16 Exhibit D(iv) 1. All properties, rights, interests and assets related to or arising out of the following cause of action: Vyaire Medical Holdings B.V. vs. Florian Kienle, Sonja Kienla, William Franz, Roland Holtz and Peter Biro, District Court of Hamburg (Germany); Docket No. 313 O 251/19 2. All properties, rights, interests and assets related to or arising out of the following cause of action: Vyaire Holding Company and Vyaire Medical, Inc. v. Westchester Surplus Lines Insurance Company, Allianz Underwriters Insurance Company, Lloyd’s of London Syndicate 2003 (aka Caitlin Syndicate Limited and North American Insurance Company), Supreme Court of the State of New York, County of New York, Index No. 652428/2020 (the. 3. All properties, rights, interests and assets related to or arising out of the following cause of action and any counterclaims related thereto: Sleep Management LLC (d/b/a VieMed) vs. Vyaire Medical Inc. (d/b/a CareFusion Respiratory Technologies), Western District of Louisiana (Lafayette) No. 6:20-cv-00969-MJJ-PJH. Case 24-11217-BLS Doc 689-4 Filed 10/28/24 Page 16 of 16
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