Attorneys Gather for Petters Clawback Hearing

A hearing on Tuesday-in which 85 attorneys were reportedly present-demonstrated the difficulty of dealing with the mountain of "clawback" lawsuits filed in the Tom Petters bankruptcy case.

It takes a lot of attorneys and a significant amount of time to work out the more than 200 “clawback” lawsuits filed by Doug Kelley, trustee in the Tom Petters bankruptcy case-and a hearing on Tuesday illustrated just how complex the issues are.

In anticipation of the huge number of attorneys expected to attend the hearing, U.S. Bankruptcy Judge Gregory Kishel issued an order last month to transfer the meeting to a large federal courtroom. Media reports indicate that roughly 85 lawyers were present to discuss procedural matters surrounding the suits, through which Kelley seeks to obtain funds from those who he says benefited from Petters' $3.65 billion Ponzi scheme.

The hearing began at 1:30 p.m. and continued until after 5:00 p.m.

“It took about half an hour just to read through the appearances of counsel,” Steve Mertz, an attorney present at the hearing, said in a Wednesday phone interview. Mertz's firm, Faegre & Benson, is representing a handful of clawback defendants, including GE Capital Corporation.

The purpose of the hearing was to determine procedures and a timeline for moving forward with the many lawsuits. A key decision that was made: The deadline for defendants to respond or seek dismissal of the suits they face has been extended to February 18.

Shane Barnes, an attorney from Minneapolis-based Meagher & Geer, said that the extended deadline will affect the three clients he represents who face suits filed by the trustee. He also said that Kishel is expected to issue an order adopting the majority of the procedures previously proposed by Kelley, including a few revisions, such as the deadline extension.

Kishel's order outlining the procedures established on Tuesday was not yet available on Wednesday morning. James Lodoen, an attorney from Lindquist & Vennum who is representing Kelley, told Twin Cities Business that the order would likely be filed Thursday, but it “didn't change in any real material way” from Kelley's proposed procedures.

“The point is that it's a set of procedures designed to maximize efficiency in the litigation process for all parties involved” and to move the process forward, Lodoen said.

Among the issues addressed by the attorneys at the hearing was mediation-including when it should be utilized and who should pay for it. According to Mertz, other bankruptcy judges will act as mediators in some cases, but defendants have the option to use private mediators. Some defendants argued that in those cases, the cost of mediation should be split with the trustee, but the court determined that if defendants choose that route, they alone must pick up the bill.

Another point of contention is the statute of limitations surrounding the clawback suits, as many defendants argue that transfers made prior to October 2002, should not be subject to Kelley's suits. The judge has not yet ruled on that matter.

Petters was found guilty in December 2009 of 20 felony counts relating to fraud, conspiracy, and money laundering. He was sentenced to 50 years in prison on April 8, and he filed an appeal shortly after.

Petters, who maintains his innocence, will be given a chance to voice his arguments in less than a month. Three circuit court judges will hear oral arguments in Petters' appeal case on February 17.