Vyaire - Motion for Final Decree Closing Certain Cases

Date: 2025-01-29

Summary

A plan administrator's motion for entry of a final decree, filed January 8, 2025 as Doc 924 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), the jointly administered Chapter 11 cases in the United States Bankruptcy Court for the District of Delaware. The motion asks the court to close the chapter 11 case of each debtor other than Vyaire Medical, Inc., and attaches a proposed order as Exhibit A. It recites the case history, including the June 9, 2024 petitions, the appointment of a creditors' committee on June 26, 2024, the appointment of a fee examiner on October 30, 2024, the confirmation order entered November 14, 2024 and the plan effective date of November 27, 2024. It describes the plan administrator's authority to wind down the debtors' businesses, resolve disputed claims, pay allowed claims and file tax returns. The caption sets a hearing for January 29, 2025.

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Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 1 of 10

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administered)
)
) Hearing Date: January 29, 2025 at 10:30 a.m. (ET)
) Obj. Deadline: January 22, 2025 at 4:00 p.m. (ET)

PLAN ADMINISTRATOR’S MOTION FOR ENTRY OF FINAL
DECREE CLOSING CERTAIN CASES

David M. Barse, solely in his capacity as the plan administrator (the “Plan Administrator”)

in the above-captioned chapter 11 cases (the “Chapter 11 Cases”), hereby submits this motion (the
2
“Motion”) for entry of a final decree, substantially in the form attached hereto as Exhibit A (the

“Proposed Order”), closing the chapter 11 cases of each of the Debtors other than the chapter 11

case of Vyaire Medical, Inc. (24-11217) (BLS)) (the “Remaining Case”). In support of this

Motion, the Plan Administrator states as follows:

Background

1. On June 9, 2024, Vyaire Medical, Inc. (“Vyaire”) and its affiliated debtors in the

above-captioned Chapter 11 Cases (collectively, the “Debtors”) each commenced a voluntary case

under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) with the United

States Bankruptcy Court for the District of Delaware (the “Court”).

1 The last four digits of Debtor Vyaire medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire. The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2 Capitalized terms used but not defined in this Motion shall have the meanings ascribed to them in the Plan (as
defined below).
Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 2 of 10

2. The Debtors’ Chapter 11 Cases are being jointly administered under the case styled

In re: Vyaire Medical, Inc., et al. for procedural purposes only pursuant to Rule 1015(b) of the

Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), Rule 1015-1 of the Local Rules

of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of

Delaware (the “Local Rules”) and the Order (I) Directing Joint Administration of Chapter 11 Cases

and (II) Granting Related Relief [Docket No. 84] entered by the Court on June 11, 2024. The

Debtors operated their business and managed their properties as debtors in possession pursuant to

sections 1107(a) and 1108 of the Bankruptcy Code.

3. On June 26, 2024, the Office of the United States Trustee for the District of

Delaware (the “U.S. Trustee”) appointed an official committee of unsecured creditors in the
3
Chapter 11 Cases [Docket No. 121] (the “Committee”). On October 30, 2024, the Bankruptcy

Court appointed a fee examiner [Docket No. 690]. No trustee has been appointed in these Chapter

11 Cases.

4. Information regarding the Debtors’ business and capital structure and the

circumstances leading to the commencement of the Chapter 11 Cases is set forth in the Declaration

of John Bibb, Group Chief Executive Officer of Vyaire Medical, Inc., in Support of Debtors’

Chapter 11 Petitions and First Day Motions [Docket No. 15].

5. On November 14, 2024, the Court entered the Findings of Fact, Conclusions of

Law, and Order Approving the Debtors’ Disclosure Statement for, and Confirming the Second

Amended Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates Pursuant to

Chapter 11 of the Bankruptcy Code [Docket No. 745] (the “Confirmation Order”), approving the

Disclosure Statement for the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor

3
Pursuant to Art. IV.I. of the Plan, except for certain limited purposes including to prosecute fee applications, the
Committee dissolved on the Effective Date (as defined herein).
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Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 3 of 10

Affiliates [Docket No. 582] (the “Disclosure Statement”) on a final basis and confirming the

Second Amended Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket

No. 719] (the “Plan”). The effective date of the Plan (the “Effective Date”) occurred on November

27, 2024. See Docket No 810.

6. The Plan provides that the Plan Administrator has the authority to, inter alia, (1)

wind down the Debtors’ businesses and affairs and liquidate all Wind-Down Debtor Assets, (2)

perform any obligations under any Transition Services Agreements, (3) enforce and prosecute

Claims, interests, and rights of the Debtors, (4) resolve any Disputed Claims, (5) pay or otherwise

satisfy Allowed Claims, and (6) file appropriate tax returns and pursue any refunds, credits, or

other tax benefits. See Plan Art. IV.C.

7. The Plan further provides that the Plan Administrator has the authority to (1) File,

withdraw, or litigate to judgment objections to Claims and Interests, (2) settle or compromise any

Disputed Claim without any further notice to or action, order or approval of the Bankruptcy Court;

and (3) administer and adjust the Claims Register to reflect any such settlements or compromises

without any further notice to or action, order or approval by the Bankruptcy Court. See Plan Art.

VII.B.

8. Pursuant to the Plan, “[t]he Plan Administrator shall, promptly after the full

administration of the Chapter 11 Cases, File with the Bankruptcy Court all documents required by

Bankruptcy Rule 3022 or Local Rule 3022-1, including the motion required by Local Rule 3002-1,

and any applicable order necessary to close the Chapter 11 Cases.” See Plan Art. XII.J.

9. The Debtors’ claims register (the “Claims Register”), prepared and maintained by

Omni Agent Solutions, Inc. (the “Claims Agent”), reflects that, to date, approximately 341 proofs of

claim (each a “Proof of Claim”) have been filed in the Chapter 11 Cases. In addition, numerous

motions for allowance of Administrative Claims have been filed by various parties. To the extent
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Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 4 of 10

that any outstanding Proofs of Claim or Administrative Claims assert claims against, or interests in,

the Chapter 11 Cases of the Closing Debtors (defined below), the Plan Administrator requests that

such Proofs of Claim or Administrative Claims be treated, for administrative purposes only (i.e.,

with no effect on parties’ substantive rights), as though they were filed against the Debtor in the

Remaining Case.

Jurisdiction

8. The Court has jurisdiction to consider this matter pursuant to 28 U.S.C. §§ 157 and

1334, and the Amended Standing Order of Reference from the United States District Court for the

District of Delaware, dated February 29, 2012.

9. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper before

the Court pursuant to 28 U.S.C. §§ 1408 and 1409.

10. Pursuant to Local Rule 9013-1(f), the Plan Administrator consents to the entry of a

final order by the Court in connection with this Motion to the extent that it is later determined that the

Court, absent consent of the parties, cannot enter final orders or judgments consistent with Article III

of the United States Constitution.

Relief Requested

11. By this Motion, pursuant to section 350(a) of the Bankruptcy Code, Bankruptcy Rule

3022 and Local Rule 3022-1, the Plan Administrator requests entry of the Proposed Order,

substantially in the form attached hereto as Exhibit A, closing the Chapter 11 Cases of each of the

Debtors other than the Remaining Case, Vyaire Medical, Inc., 24-11217 (BLS). Specifically, by this

Motion, the Plan Administrator seeks to close the Chapter 11 Cases of the following Debtors (the

“Closing Debtors” and their cases, the “Closing Cases”):

a. Bird Products Corporation, Case No. 24-11218 (BLS);
b. Breathe US Holdco, Inc., Case No. 24-11219 (BLS);
c. Breathe US Holdings LP, Case No. 24-11220 (BLS);

4
Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 5 of 10

d. EME Medical, Inc., Case No. 24-11221 (BLS);
e. Revolutionary Medical Devices, Inc., Case No. 24-11222 (BLS);
f. SensorMedics Corporation, Case No. 24-11223 (BLS);
g. VIASYS Holdings, Inc., Case No. 24-11224 (BLS);
h. VM Finance Sub, LLC, Case No. 24-11225 (BLS);
i. Vyaire Company, Case No. 24-11226 (BLS);
j. Vyaire Finance B.V., Case No. 24-11227 (BLS);
k. Vyaire Financial Holdings LLC, Case No. 24-11228 (BLS);
l. Vyaire Holding Company, Case No. 24-11229 (BLS);
m. Vyaire Medical 202, Inc., Case No. 24-11230 (BLS);
n. Vyaire Medical 203, Inc., Case No. 24-11231 (BLS);
o. Vyaire Medical 205, Inc., Case No. 24-11232 (BLS);
p. Vyaire Medical 206, Inc., Case No. 24-11233 (BLS);
q. Vyaire Medical 211, Inc., Case No. 24-11234 (BLS);
r. Vyaire Medical BR LLC, Case No. 24-11235 (BLS);
s. Vyaire Medical Capital LLC, Case No. 24-11236 (BLS);
t. Vyaire Medical Consumables LLC, Case No. 24-11237 (BLS);
u. Vyaire Medical International LLC, Case No. 24-11238 (BLS);
v. Vyaire Medical LLC, Case No. 24-11239 (BLS);
w. Vyaire Medical Payroll LLC, Case No. 24-11240 (BLS);
x. Vyaire Receivables LLC, Case No. 24-11241 (BLS);
y. Vyaire Respiratory Diagnostics LLC, Case No. 24-11242 (BLS);
z. Vyaire TSR MidCo, LLC, Case No. 24-11243 (BLS); and
aa. Vyaire TSR Sub, LLC, Case No. 24-11244 (BLS).

12. The Remaining Case will remain open to allow (i) professionals to file and

prosecute any remaining fee applications and (ii) the Plan Administrator to resolve any contested

matters, pursue any claims, including through adversary proceedings, and finalize the process of

reconciling, objecting to and resolving claims, as applicable. Upon the filing of a further motion

to close the Remaining Case, the Plan Administrator, as applicable, will file a final report with

respect to all of the Chapter 11 Cases (including the Closing Cases) pursuant to Local Rule 3022-

1(c).

Basis For Relief

13. Section 350(a) of the Bankruptcy Code provides that “[a]fter an estate is fully

administered and the court has discharged the trustee, the court shall close the case.” 11 U.S.C. §

350(a). Bankruptcy Rule 3022, which implements section 350 of the Bankruptcy Code, further

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Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 6 of 10

provides that “[a]fter an estate is fully administered in a chapter 11 reorganization case, the court,

on its own motion or on motion of a party in interest, shall enter a final decree closing the case.”

FED. R. BANKR. P. 3022. Local Rule 3022-1(a) provides that, “[u]pon written motion, a party in

interest may seek the entry of a final decree at any time after the confirmed plan has been fully

administered provided that all required fees due under 28 U.S.C. § 1930 have been paid.” DEL.

BANKR. L.R. 3022-1(a).

14. The term “fully administered” is not defined in either the Bankruptcy Code or the

Bankruptcy Rules. The Advisory Committee Note to the 1991 amendments to Bankruptcy Rule

3022 (the “Advisory Committee Note”), however, sets forth the following non-exclusive factors

to be considered in determining whether a case has been fully administered:

(a) whether the order confirming the plan has become final;

(b) whether deposits required by the plan have been distributed;

(d) whether the debtor or the successor to the debtor under the plan has
assumed the business or the management of the property dealt with by the
plan;

(e) whether payments under the plan have commenced; and

(f) whether all motions, contested matters and adversary proceedings have
been finally resolved.

See Advisory Committee Note.

15. Bankruptcy courts, including in this District, have adopted the view that “these

factors are but a guide in determining whether a case has been fully administered, and not all factors

need to be present before the case is closed.” In re SLI, Inc., 2005 WL 1668396, at *2 (Bankr. D.

Del. June 24, 2005) (citing In re Mold Makers, Inc., 124 B.R. 766, 768 (Bankr. N.D. Ill. 1990)); see

also In re Ginko Assocs., L.P., 2009 WL 2916917, at *2 (Bankr. E.D. Pa. June 25, 2009) (stating

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Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 7 of 10

Bankruptcy Rule 3022 “is intended to allow bankruptcy courts flexibility in determining whether

an estate is fully administered,” and not all factors need to be present before closing a case) (quoting

In re Federated Dep’t Stores, Inc., 43 F. App’x 820, 822 (6th Cir. 2002)).

16. In addition to the factors set forth in the Advisory Committee Note, courts have

considered whether a plan has been substantially consummated. See In re Motors Liquidation Co.,

625 B.R. 605, 615 (Bankr. S.D.N.Y. 2021) (stating that courts consider substantial consummation

as a factor) (citations omitted); see also In re Gates Cmty. Chapel of Rochester, Inc., 212 B.R. 220,

224 (Bankr. W.D.N.Y. 1997) (considering substantial consummation as a factor in determining

whether to close a case).

17. The Advisory Committee Note also indicates that the entry of a final decree

“should not be delayed solely because the payments required by the plan have not been

completed,” and the Court “should not keep the case open only because of the possibility that the

court’s jurisdiction may be invoked in the future.” See Advisory Committee Note. Additionally,

“a final decree closing the case after the estate is fully administered does not deprive the court of

jurisdiction to enforce or interpret its own orders and does not prevent the court from reopening

the case for cause pursuant to § 350(b) of the [Bankruptcy] Code.” Id.

18. Indeed, Bankruptcy Rule 3022 was amended in order to:

set forth a flexible Rule to permit the court to determine that an estate is
fully administered and should be closed even though payments or other
activities involving the debtor and its creditors might continue . . . . As is
evident by the Committee note, the Advisory Committee interprets “fully
administered” very loosely and encourages courts to use substantially more
discretion in deciding whether to close a [c]hapter 11 case th[a]n Code §
350 and the Rule literally read.

In re Gould, 437 B.R. 34, 37-38 (Bankr. D. Conn. 2010) (citation omitted).

19. Further, courts have also noted that entry of a final decree is appropriate to stop the

accrual of fees debtors are obliged to pay pursuant to 28 U.S.C. § 1930(a)(6) (the “Statutory Fees”).

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Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 8 of 10

In re Junior Food Mart of Arkansas, Inc., 201 B.R. 522, 524 (Bankr. E.D. Ark. 1996) (closing

case “in order that no further [Section 1930] [F]ees accrue”); In re Jay Bee Enters., Inc., 207 B.R.

536, 539 (Bankr. E.D. Ky. 1997) (concluding that “it seems appropriate to close this case to stop

the financial drain on the debtor” on account of the continuing accrual of section 1930 fees).

20. As of the filing of this Motion, the Closing Cases have been “fully administered”

within the meaning of section 350 of the Bankruptcy Code, making it appropriate for the Court to

enter a final decree closing such cases. Among other things:

(a) the Confirmation Order is final and non-appealable;

(b) the Effective Date of the Plan has occurred;

(d) the Plan Administrator is authorized to do all things and to execute and
deliver all agreements, documents, instruments, notices and certificates as
are contemplated by the Plan and the Plan Administrator Agreement, and
to take all necessary actions required in connection therewith, in the name
of and on behalf of the Debtors; and

(e) the Wind-Down Debtor Assets have vested in the Wind-Down Debtors free
and clear of all Claims, Liens, and Interests, except as otherwise expressly
provided in the Plan.

21. The foregoing factors support closing the Closing Cases. The fact that the Plan

Administrator is still reviewing and resolving claims does not require the Closing Cases to remain

open until all such claims are resolved and final distributions are made. In re Jay Bee Enters., Inc.,

207 B.R. at 539 (finding that Bankruptcy Rule 3022 “does not require that a chapter 11 case be

kept open until all awarded fees and allowed claims have been paid in accordance with the

confirmed plan or until the statutory fees . . . have been paid”).

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Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 9 of 10

22. Further, to the extent necessary, the Court can retain jurisdiction over any issues
4
related to the Closing Cases, including the resolution of claims and any pending contested matters.

There are no adversary proceedings currently pending. Therefore, no party in interest will be

prejudiced if the Closing Cases are closed because the Remaining Case will provide an avenue for

resolving any issues that relate to the Closing Cases.

23. In addition, as of the filing of this Motion, all outstanding Statutory Fees have been

paid and any further Statutory Fees that may arise will be paid as and when such fees come due.

See Plan Art. II.E. As such, closing the Closing Cases complies with Local Rule 3022-1.

24. Finally, closing the Closing Cases will relieve the Court, the U.S. Trustee and the

Plan Administrator from the administrative burdens with respect to the Closing Cases, thus

promoting judicial efficiency and preserving the assets of the Wind-Down Debtors. The Plan

Administrator estimates that if the Closing Cases remain open, the Wind-Down Debtors will incur

substantial Statutory Fees. Closing the Closing Cases will save a substantial expense that would

otherwise continue to incur while the Closing Cases unnecessarily remain open. That fact further

supports the relief requested in this Motion. See Junior Food Mart, 201 B.R. at 524; Jay Bee,

207 B.R. at 539.

Notice

25. The Plan Administrator has provided notice of the Motion to all parties that are

required to receive notice under Local Rule 3022-1(b). The Plan Administrator submits that,

considering the nature of the relief requested, no other or further notice is required.

4 In addition, the Proposed Order provides that the entry of such decree is without prejudice to the rights of any
party in interest to, among other things, object to any claim and/or commence and prosecute any potential cause
of action. See Proposed Order ¶ 5.

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Case 24-11217-BLS Doc 924 Filed 01/08/25 Page 10 of 10

No Prior Motion

26. The Plan Administrator has not made any prior motion for the relief sought herein

to this Court or any other court.

WHEREFORE, the Plan Administrator respectfully requests that the Court enter the

Proposed Order granting the relief requested in this Motion and such other and further relief as

may be just and proper.

Dated: January 8, 2025
Wilmington, Delaware

/s/ Stacy L. Newman
COLE SCHOTZ P.C.
Patrick J. Reilley (No. 4451)
Stacy L. Newman (No. 5044)
500 Delaware Avenue, Suite 1410
Wilmington, Delaware 19801
Telephone: (302) 652-3131
Facsimile: (302) 652-3117
Email: preilley@coleschotz.com
snewman@coleschotz.com

- and -

Michael D. Sirota, Esq. (admitted pro hac vice)
Warren A. Usatine, Esq (admitted pro hac vice)
Matteo Percontino, Esq. (admitted pro hac vice)
Court Plaza North, 25 Main Street
Hackensack, New Jersey 07601
Telephone: (201) 489-3000
Facsimile: (201) 489-1536
Email: msirota@coleschotz.com
wusatine@coleschotz.com
mpercontino@coleschotz.com

Counsel to the Plan Administrator

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Vyaire - Motion for Final Decree Closing Certain Cases

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