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2021-01-13_GENERAL DOCUMENTS - C1980004
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2021-01-13_GENERAL DOCUMENTS - C1980004
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Last modified
1/13/2021 1:52:42 PM
Creation date
1/13/2021 10:26:48 AM
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DRMS Permit Index
Permit No
C1980004
IBM Index Class Name
General Documents
Doc Date
1/13/2021
Doc Name Note
Case No. 20-12043 (GRH) Hopedale Mining LLC
Doc Name
Bankruptcy Notice
From
US Department Of Justice Office of the Unired States Trustee J.W. Peck Federal Building
To
DRMS
Permit Index Doc Type
General Correspondence
Email Name
JRS
JDM
GRM
CMM
CCW
Media Type
D
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Plan's exculpation provision should be narrowed to apply only to estate fiduciaries in accordance with <br />Washington Mutual and related case law. <br />14. The United States Trustee is also aware of a recent decision from the Ninth Circuit <br />where the exculpation clause was extended to a non estate fiduciary. Blixseth v. Credit Suisse, 961 <br />F.3d 1074 (9th Cir. 2020). However, the facts of that case are distinguishable from the situation facing <br />this Court. <br />15. In Blixseth, the Court extended the exculpation clause to include creditor Credit Suisse, <br />who was closely involved in drafting the plan of confirmation, and who also had been the target of <br />much litigation by the Debtor himself. Id. at 1082. The extension of the exculpation clause was <br />specifically done to ensure a stay of the retaliatory litigation by the Debtor. Id. at 1084. In support of <br />the extension of the exculpation to Creditor Suisse, the Ninth Circuit relied on cases from the Third <br />Circuit, including PWS, which limit the liability of non -debtors to estate fiduciaries. See In re PWS <br />Holding Corp., 228 F.3d 224, 245-46 (3d Cir. 2000). Finding only that the PWS court allowed <br />exculpation of non -debtors, the Ninth Circuit did not address the substance of the United States <br />Trustee's current objection — that exculpation provisions should not extend beyond estate fiduciaries. <br />Because the Blixseth decision was based on facts specific to that case and misinterprets Third Circuit <br />law on the issue of exculpation, it should not be considered controlling authority in this matter. <br />WHEREFORE, the United States Trustee respectfully requests that this Court sustain the <br />Objection of the United States Trustee and grant such further relief as this Court deems equitable and <br />just. <br />5 <br />
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