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In reviewing a facial attack, which is a challenge to the sufficiency of pleading in the complaint, the court must "`accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff.'" Id. First, Defendant argues that the "Bankruptcy Court's entry of judgment in this matter would be the unconstitutional exercise of `judicial power'" since Plaintiff's claims are state law "suits at common law and clearly could exist outside the context of bankruptcy." (Def.'s Br., at 10.) Defendant cites the recent Supreme Court decision Stern v. The factual attack challenges "the existence of subject matter jurisdiction in fact, quite apart from any pleadings." Mortensen v. Defendant here makes three arguments in support of dismissal for lack of subject matter jurisdiction. # 1341.) Specifically, the Plan "effects a transfer of all of the Debtors' Assets for the purposes, among others, of making distributions to the Holders of Allowed Claims and Interests, pursuing Causes of Action, and otherwise completing the liquidation of the Estates." (Plan, at 1.) The Plan further provides that "Debtors and the [Official Committee of Unsecured Creditors] will form the Liquidating Trust to administer certain post-confirmation responsibilities under the Plan, including but not necessarily limited to, those responsibilities associated with the pursuit and collection of Litigation Claims as specified in the Liquidating Trust Agreement." (Id. A court may treat a motion to dismiss under Rule 12(b)(1) as a facial attack or a factual attack on subject matter jurisdiction. made material misstatements, engaged in fraudulent accounting practices, and signed filings made with the Commission that they knew, or were reckless in not knowing, contained materially false and misleading financial statements.The Commission alleged that at the direction of Barnett and Stiner, and in contravention of Generally Accepted Accounting Principles, Astro Power improperly recognized approximately million in revenues from four transactions executed over the course of the second and third quarters of 2002. The Merrill Lynch defendants thereafter filed a motion to dismiss the amended complaint for lack of personal jurisdiction. The complaint was subsequently amended to add the Merrill Lynch defendants, the third-party purchasers of the Xantrex stock, as additional defendants.
Zazzali, as Trustee of the DBSI Estate Litigation Trust created by operation of the Second Amended Joint Chapter 11 Plan of Liquidation; and Conrad Myers, as Trustee of the DBSI Liquidating Trust created by operation of the Second Amended Joint Chapter 11 Plan of Liquidation, Plaintiffs, v. Greenspan, Blank Rome LLP, Philadelphia, PA, William Fillmore, Joseph Hepworth, Fillmore Spencer LLC, Provo, UT, for Individual Defendants. Stellar provided the financing for Wavetronix, and Arnold and Jensen supplied the intellectual property and the "technology knowhow." (Doc. 10-55592.) Trustees allege that these transfers were loans, as memorialized by yearly promissory notes Wavetronix signed for the amounts it received the prior year. On December 30, 2008, Stellar notified Wavetronix of its default, but the 10-day grace period had not yet expired and Stellar had not exhausted its legal remedies. Arnold, Michael Jensen, John Does 1-50, and ABC Entities 1-50, Defendants. Guilfoyle, Blank Rome LLP, Wilmington, DE, Norman E. (Id., ¶ gg.) Stellar owns approximately 60 percent of Wavetronix and defendants David Arnold ("Arnold") and Michael Jensen ("Jensen") own the remaining 40 percent. (Id.) Thus, the Guaranty provides that it covers only demands for payments made on or prior to December 31, 2008, and it provides that no demand for payment can be made until (i) Wavetronix has defaulted on the notes, (ii) the default has extended beyond the grace period, and (iii) Stellar has exhausted its legal remedies against Wavetronix. Wavetronix, an Idaho limited liability corporation, is one of the Technology Companies identified in the Complaint and is a defendant named in the Complaint. If the Company fails to pay, perform, or discharge any of the Obligations when due in accordance with the terms of the Replacement Notes, and such failure shall continue beyond any applicable grace period, and then upon Stellar's exhaustion of all legal remedies Stellar may have against the Company for payment of the same, Arnold, upon demand then made by Stellar, shall pay to Stellar an amount equal to Arnold's prorata share of any outstanding Obligations otherwise required to be paid by the Company under the Replacement Notes.While GE is expanding solar module production using cells from outside suppliers, does this event mark the end of the both recycled wafer and APex™ Silicon-Film™ solar cell technologies developed by solar industry pioneer Astro Power?As the worldwide solar photovoltaic industry expands production at a rapid pace and confronts silicon shortages and solar module demand growth fluctuations, the rapid decline of industry high flier Astro Power may provide some sobering lessons. today announced that it has signed an agreement to acquire Aplicaciones Tecnicas de la Energia, S.