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August 15, 2005; as amended August 23, 2005, September 2, 2005 and November 1, 2007
On Appeal from the United States District Court for the District of Delaware. (D.C. Civil Action No. 00-cv-03837). District Judge: Honorable John P. Fullam.
Argued February 7, 2005
Before: ROTH, AMBRO and FUENTES, Circuit Judges
We consider under what circumstances a court exercising bankruptcy powers may substantively consolidate affiliated entities. Appellant Credit Suisse First Boston ("CSFB") is the agent for a syndicate of banks (collectively, the "Banks")*fn1 that extended in 1997 a $2 billion unsecured loan to Owens Corning, a Delaware corporation ("OCD"), and certain of its subsidiaries. This credit was enhanced in part by guarantees made by other OCD subsidiaries. The District Court granted a motion to consolidate the assets and liabilities of the OCD borrowers*fn2 and guarantors in anticipation of a plan of reorganization.
The Banks appeal and argue that the Court erred by granting the motion, as it misunderstood the reasons for, and standards for considering, the extraordinary remedy of substantive consolidation, and in any event did not make factual determinations necessary even to consider its use. Though we reverse the ruling of the District Court, we do so aware that it acted on an issue with no opinion on point by our Court and differing rationales by other courts.
While this area of law is difficult and this case important, its outcome is easy with the facts before us. Among other problems, the consolidation sought is "deemed." Should we approve this non-consensual arrangement, the plan process would proceed as though assets and liabilities of separate entities were merged, but in fact they remain separate with the twist that the guarantees to the Banks are eliminated. From this we conclude that the proponents of substantive consolidation request it not to rectify the seldom-seen situations that call for this last-resort remedy but rather as a ploy to deprive one group of creditors of their rights while providing a windfall to other creditors.
I. Factual Background and Procedural History
A. Owens Corning Group of Companies
OCD and its subsidiaries (which include corporations and limited liability companies) comprise a multinational corporate group. Different entities within the group have different purposes. Some, for example, exist to limit liability concerns (such as those related to asbestos), others to gain tax benefits, and others have regulatory reasons for their formation.
Each subsidiary was a separate legal entity that observed governance formalities. Each had a specific reason to exist separately, each maintained its own business records, and intercompany transactions were regularly documented.*fn3
Although there may have been some "sloppy" bookkeeping, two of OCD's own officers testified that the financial statements of all the subsidiaries were accurate in all material respects. Further, through an examination of the subsidiaries' books, OCD's postpetition auditors (Ernst & Young) have eliminated most financial discrepancies, particularly with respect to the larger guarantor subsidiaries.
B. The 1997 Credit Agreement
In 1997 OCD sought a loan to acquire Fibreboard Corporation. At this time OCD faced growing asbestos liability and a poor credit rating that hindered its ability to obtain financing. When CSFB was invited to submit a bid, it included subsidiary guarantees in the terms of its proposal. The guarantees gave the Banks direct claims against the guarantors for payment defaults. They were a "credit enhancement" without which the Banks would not have made the loan to OCD. All draft loan term sheets included subsidiary guarantees.
A $2 billion loan from the Banks to OCD closed in June 1997. The loan terms were set out primarily in a Credit Agreement. Among those terms were the guarantee provisions and requirements for guarantors, who were defined as "present or future Domestic Subsidiar[ies] . . . having assets with an aggregate book value in excess of $30,000,000." Section 10.07 of the Agreement provided that the guarantees were "absolute and unconditional" and each "constitute[d] a guarant[ee] of payment and not a guarant[ee] of collection."*fn4 A "No Release of Guarantor" provision in § 10.8 stated that "the obligations of each guarantor . . . shall not be reduced, limited or terminated, nor shall such guarantor be discharged from any such obligations, for any reason whatsoever," except payment and performance in full or through waiver or amendment of the Credit Agreement. Under § 13.05 of the Credit Agreement, a guarantor could be released only through (i) the unanimous consent of the Banks for the guarantees of Fibreboard subsidiaries or through the consent of Banks holding 51% of the debt for other subsidiaries, or (ii) a fair value sale of the guarantor if its cumulative assets totaled less than 10% of the book value of the aggregate OCD group of entities.
CSFB negotiated the Credit Agreement expressly to limit the ways in which OCD could deal with its subsidiaries. For example, it could not enter into transactions with a subsidiary that would result in losses to that subsidiary. Importantly, the Credit Agreement contained provisions designed to protect the separateness of OCD and its subsidiaries. The subsidiaries agreed explicitly to maintain themselves as separate entities. To further this agreement, they agreed to keep separate books and financial records in order to prepare separate financial statements. The Banks were given the right to visit each subsidiary and discuss business matters directly with that subsidiary's management. The subsidiaries also were prohibited from merging into OCD because both entities were required to survive a transaction under § 8.09(a)(ii)(A) of the Credit Agreement. This provision also prohibited guarantor subsidiaries from merging with other subsidiaries unless there would be no effect on the guarantees' value.
C. Procedural History
On October 5, 2000, facing mounting asbestos litigation, OCD and seventeen of its subsidiaries (collectively, the "Debtors") filed for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq.*fn5 Twenty-seven months later, the Debtors and certain unsecured creditor groups (collectively, the "Plan Proponents") proposed a reorganization plan (as amended, the "Plan") predicated on obtaining "substantive consolidation" of the Debtors along with three nonDebtor OCD subsidiaries.*fn6 Typically this arrangement pools all assets and liabilities of the subsidiaries into their parent and treats all claims against the subsidiaries as transferred to the parent. In fact, however, the Plan Proponents sought a form of what is known as a "deemed consolidation," under which a consolidation is deemed to exist*fn7 for purposes of valuing and satisfying creditor claims, voting for or against the Plan, and making distributions for allowed claims under it. Plan § 6.1. Yet "the Plan would not result in the merger of or the transfer or commingling of any assets of any of the Debtors or NonDebtor Subsidiaries, . . . [which] will continue to be owned by the respective Debtors or Non-Debtors." Plan § 6.1(a). Despite this, on the Plan's effective date "all guarantees of the Debtors of the obligations of any other Debtor will be deemed eliminated, so that any claim against any such Debtor and any guarantee thereof . . . will be deemed to be one obligation of the Debtors with respect to the consolidated estate." Plan § 6.1(b). Put another way, "the Plan eliminates the separate obligations of the Subsidiary Debtors arising from the guarant[e]es of the 1997 Credit Agreement." Plan Disclosure Statement at A-9897.
The Banks objected to the proposed consolidation. Judge Alfred Wolin held a hearing on this objection.*fn8 He was subsequently recused from the Debtors' bankruptcy proceedings in light of In re Kensington Int'l Ltd., 368 F.3d 289 (3d Cir. 2004), and Judge John Fullam was designated by the Chief Judge of our Court to replace him. Judge Fullam reviewed the transcripts and exhibits of the hearing, ordered additional briefing and on October 5, 2004, granted the consolidation motion in an order accompanied by a short opinion. In re Owens Corning, 316 B.R. 168 (Bankr. D. Del. 2004).
Judge Fullam concluded that there existed "substantial identity between . . . OCD and its wholly-owned subsidiaries." Id. at 171. He further determined that "there [was] simply no basis for a finding that, in extending credit, the Banks relied upon the separate credit of any of the subsidiary guarantors." Id. at 172. In Judge Fullam's view, it was "also clear that substantive consolidation would greatly simplify and expedite the successful completion of this entire bankruptcy proceeding. More importantly, it would be exceedingly difficult to untangle the financial affairs of the various entities." Id. at 171. As such, he held substantive consolidation should be permitted, as not only did it allow "obvious advantages . . . [, but was] a virtual necessity." Id. at 172. In any event, Judge Fullam wrote, "[t]he real issue is whether the Banks are entitled to participate, pari passu, with other unsecured creditors, or whether the Banks' claim is entitled to priority, in whole or in part, over the claims of other unsecured creditors." Id. But this issue, he stated, "cannot now be determined." Id.
CSFB appeals on the Banks' behalf.
II. Appellate Jurisdiction
The Plan Proponents moved to dismiss the appeal of the District Court's order granting consolidation on the ground that it is not a "final decision" from which an appeal may be taken pursuant to 28 U.S.C. § 1291.*fn9 We denied that motion prior to oral argument in this case and noted that our reasoning would follow in this opinion.
Recognizing the "protracted nature of many bankruptcy proceedings, and the waste of time and resources that might result if immediate appeal [is] denied," United States Trustee v. Gryphon at the Stone Mansion, Inc., 166 F.3d 552, 556 (3d Cir. 1999), "[w]e apply a broader concept of 'finality' when considering bankruptcy appeals under § 1291 than we do when considering other civil orders under the same section." In re Marvel Entm't Group, Inc., 140 F.3d 463, 470 (3d Cir. 1998). See also Buncher Co. v. Official Comm. of Unsecured Creditors of GenFarm Ltd. P'ship IV, 229 F.3d 245, 250 (3d Cir. 2000) (noting that we impose a "relaxed standard" of finality because of unique considerations in bankruptcy cases); 16 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3926.2 at 274 (2d ed. 1996) (describing the "Third Circuit's especially flexible approach to bankruptcy finality"). Particularly relevant to our case is that "[t]o delay resolution of discrete claims until after final approval of a reorganization plan . . . would waste time and resources, particularly if the appeal resulted in reversal of a bankruptcy court order necessitating re-appraisal of the entire plan." Clark v. First State Bank (In re White Beauty View, Inc.), 841 F.2d 524, 526 (3d Cir. 1988). We have also stressed that "issues central to the progress of the bankruptcy petition, those 'likely to affect the distribution of the debtor's assets, or the relationship among the creditors,' should be resolved quickly." Century Glove, Inc. v. First Am. Bank, 860 F.2d 94, 98 (3d Cir. 1988) (quoting Southeastern Sprinkler Co. Inc. v. Meyertech Corp. (In re Meyertech), 831 F.2d 410, 414 (3d Cir. 1987)).
We consider four factors in determining whether we should exercise jurisdiction over a bankruptcy appeal: "(1) [t]he impact on the assets of the bankrupt estate; (2) [the] [n]ecessity for further fact-finding on remand; (3) [t]he preclusive effect of [the Court's] decision on the merits of further litigation; and (4) [t]he interest of judicial economy." Buncher, 229 F.3d at 250. All four factors weigh heavily in favor of our jurisdiction to consider the appeal of an order granting substantive consolidation. We thus join the four Courts of Appeal that have exercised jurisdiction in this context. Alexander v. Compton (In re Bonham), 229 F.3d 750, 762 (9th Cir. 2000); First Nat'l Bank of El Dorado v. Giller (In re Giller), 962 F.2d 796, 797-98 (8th Cir. 1992); Eastgroup Props. v. S. Motel Ass'n., 935 F.2d 245, 248 (11th Cir. 1991); and Union Sav. Bank v. Augie/Restivo Baking Co., Ltd. (In re Augie/Restivo Baking Co., Ltd.), 860 F.2d 515, 516-17 (2d Cir. 1988).
First, substantive consolidation has a profound effect on the assets of the consolidated entities. See, e.g., Nesbit v. Gears Unlimited, 347 F.3d 72, 86-87 (3d Cir. 2003). Second, there is no need for additional fact-finding to assess the propriety of an order granting substantive consolidation. In this case, for example, Judge Fullam reached his decision after a thirteen-day evidentiary hearing was held by Judge Wolin, and after Judge Fullam reviewed "the transcript of the testimony, and . . . the voluminous documentary record compiled in the course of the hearing, and [had] the benefit of post-trial briefing and argument." In re Owens Corning, 316 B.R. at 169. Third, a substantive consolidation order clearly has a preclusive effect on the merits of further litigation. In this case, the order precludes at least the Banks from asserting any right compromised or eliminated by virtue of the substantive consolidation. Last, the interests of judicial economy are best served by an immediate review of a substantive consolidation order. A later reversal of such an order risks rendering meaningless any proceedings premised on the viability of a plan that calls for a consolidation (even if for only a temporary period).
Having concluded that we generally have jurisdiction to review appeals of substantive consolidation orders, we inquire whether anything is "different" about this case. The Plan Proponents argue that
[t]he District Court Order lacks finality because it will be implemented, if at all, only following approval of a disclosure statement, the solicitation and vote of creditors as to the terms of the Proposed Plan, and, assuming the requisite vote, final confirmation of the Proposed Plan, before which creditors other than the Bank Debt Holders shall be given the opportunity to contest substantive consolidation. [Bankruptcy Code] § 1129. Thus, the District Court Order is conditioned upon plan confirmation . . . . The District Court Order has no present impact on the Debtors' estates and does not change the status quo.
Plan Proponents' Mot. to Dismiss at 10. In support of this contention, the Plan Proponents rely primarily on In re A.S.K. Plastics, Inc., No. Civ. A. 04-2701, 2004 WL 1903322 (E.D. Pa. Aug. 24, 2004). Yet the conclusion that the Court lacked jurisdiction in A.S.K. Plastics was premised on the fact that "[u]nder no reasonable construction of the law could the Order's conditional consolidation be viewed as effect[ing] a 'practical termination' of anything." Id. at *2 (emphasis in original). That order "emphasized [that] . . . [w]hen a final reorganization plan [was] submitted to the Bankruptcy Court, [the party appealing the order] [was] free to object to consolidation." Id. In effect, the A.S.K. Plastics order was designed to postpone consideration of the substantive consolidation issue until the plan confirmation stage.
That is not our case. For the Banks the District Court's determination is hardly conditional. It concluded "that substantive consolidation should be permitted." In re Owens Corning, 316 B.R. at 172. It made no provision for the Banks to reassert their objection to substantive consolidation at the plan confirmation stage; the order is final against them and is thus a practical termination of the substantive consolidation litigation.
Lastly, we address the Plan Proponents' argument that a substantive consolidation order must immediately take effect in order to be final for purposes of our jurisdiction. What they ignore is that the order approving substantive consolidation is the foundation on which the Plan is built. To assert that the actual substantive consolidation can only be implemented in conjunction with the effectiveness of an approved plan puts form over function. As the Banks point out, "[t]here is no support for the proposition that final orders lose their finality because of a delay in implementation." CSFB Opp'n to Mot. to Dismiss at 13. Certainly, decisions resolving most disputes (notably, disputes over the validity and value of claims) are not implemented until a plan is confirmed and payment under the plan becomes obligatory. Yet we exercise jurisdiction to review many of these decisions before that "final" order issues. See, e.g., Hefta v. Official Comm. of Unsecured Creditors (In re Am. Classic Voyages Co.), 405 F.3d 127 (3d Cir. 2005). No reason exists for us to vary that routine here.
We conclude readily that we have appellate jurisdiction to consider the Banks' appeal under 28 U.S.C. § 1291.
III. Substantive Consolidation
Substantive consolidation, a construct of federal common law, emanates from equity. It "treats separate legal entities as if they were merged into a single survivor left with all the cumulative assets and liabilities (save for inter-entity liabilities, which are erased). The result is that claims of creditors against separate debtors morph to claims against the consolidated survivor." Genesis Health Ventures, Inc. v. Stapleton (In re Genesis Health Ventures, Inc.), 402 F.3d 416, 423 (3d Cir. 2005). Consolidation restructures (and thus revalues) rights of creditors and for certain creditors this may result in significantly less recovery.
While we have not fully considered the character and scope of substantive consolidation, we discussed the concept in Nesbit, 347 F.3d at 86-88 (surveying substantive consolidation case law for application by analogy to the Title VII inquiry of when to consolidate employers for the purpose of assessing a discrimination claim), and In re Genesis Health Ventures, 402 F.3d at 423-24 (examining, inter alia, whether a "deemed" consolidation for voting in connection with, and distribution under, a proposed plan of reorganization is a substantive consolidation for purposes of calculating U.S. Trustee quarterly fees under 28 U.S.C. § 1930(a)(6)). Other courts, including the Supreme Court itself in an opinion that spawned the concept of consolidation, have holdings more on point than heretofore have we. We begin with a survey of key cases, drawing from them when substantive consolidation may apply consistent with the principles we perceive as cabining its use, and apply those principles to this case.
A. History of Substantive Consolidation
The concept of substantively consolidating separate estates begins with a commonsense deduction. Corporate disregard*fn10 as a fault may lead to corporate disregard as a remedy.
Prior to substantive consolidation, other remedies for corporate disregard were (and remain) in place. For example, where a subsidiary is so dominated by its corporate parent as to be the parent's "alter ego," the "corporate veil" of the subsidiary can be ignored (or "pierced") under state law. Kors, supra, at 386-90 (citing as far back as I. Maurice Wormser, Piercing the Veil of Corporate Entity, 12 Colum. L. Rev. 496 (1912)). Or a court might mandate that the assets transferred to a corporate subsidiary be turned over to its parent's trustee in bankruptcy for wrongs such as fraudulent transfers, Kors, supra, at 391, in effect bringing back to the bankruptcy estate assets wrongfully conveyed to an affiliate. If a corporate parent is both a creditor of a subsidiary and so dominates the affairs of that entity as to prejudice unfairly its other creditors, a court may place payment priority to the parent below that of the other creditors, a remedy known as equitable subordination, which is now codified in § 510(c) of the Bankruptcy Code. See generally id. at 394-95.
Adding to these remedies, the Supreme Court, little more than six decades ago, approved (at least indirectly and perhaps inadvertently) what became known as substantive consolidation.*fn11 Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215 (1941). In Sampsell an individual in bankruptcy had transferred assets prepetition to a corporation he controlled. (Apparently these became the corporation's sole assets.) When the bankruptcy referee ordered that the transferred assets be turned over by the corporation to the individual debtor's trustee, a creditor of the non-debtor corporation sought distribution priority with respect to that entity's assets. In deciding that the creditor should not be accorded priority (thus affirming the bankruptcy referee), the Supreme Court turned a typical turnover/fraudulent transfer case into the forebear of today's substantive consolidation by terming the bankruptcy referee's order (marshaling the corporation's assets for the benefit of the debtor's estate) as "consolidating the estates." Id. at 219.
Each of these remedies has subtle differences. "Piercing the corporate veil" makes shareholders liable for corporate wrongs. Equitable subordination places bad-acting creditors behind other creditors when distributions are made. Turnover and fraudulent transfer bring back to the transferor debtor assets improperly transferred to another (often an affiliate). Substantive consolidation goes in a direction different (and in most cases further) than any of these remedies; it is not limited to shareholders, it affects distribution to innocent creditors, and it mandates more than the return of specific assets to the predecessor owner. It brings all the assets of a group of entities into a single survivor. Indeed, it merges liabilities as well. "The result," to repeat, "is that claims of creditors against separate debtors morph to claims against the consolidated survivor." In re Genesis Health Ventures, 402 F.3d at 423. The bad news for certain creditors is that, instead of looking to assets of the subsidiary with whom they dealt, they now must share those assets with all creditors of all consolidated entities, raising the specter for some of a significant distribution diminution.
Though the concept of consolidating estates had Supreme Court approval, Courts of Appeal (with one exception) were slow to follow suit. Stone v. Eacho (In re Tip Top Tailors, Inc.), 127 F.2d 284 (4th Cir. 1942), cert. denied, 317 U.S. 635 (1942), was the first to pick up on Sampsell's new remedy.*fn12 Little occurred thereafter for more than two decades, until the Second Circuit issued several decisions-Soviero v. National Bank of Long Island, 328 F.2d 446 (2d Cir. 1964); Chemical Bank New York Trust Co. v. Kheel (In re Seatrade Corp.), 369 F.2d 845 (2d Cir. 1966); Flora Mir Candy Corp. v. R.S. Dickson & Co. (In re Flora Mir Candy Corp.), 432 F.2d 1060 (2d Cir. 1970); and James Talcott, Inc. v. Wharton (In re Continental Vending Machine Corp.), 517 F.2d 997 (2d Cir. 1975)-that brought substantive consolidation as a remedy back into play and premise its modern-day understanding.
Other Circuit Courts fell in line in acknowledging substantive consolidation as a possible remedy. See, e.g., FDIC v. Hogan (In re Gulfco Inv. Corp.), 593 F.2d 921, 927-28 (10th Cir. 1979); Pension Benefit Guar. Corp. v. Ouimet, 711 F.2d 1085, 1092-93 (1st Cir. 1983); Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C. Cir. 1987); Eastgroup, 935 F.2d at 252; In re Giller, 962 F.2d at 799; First Nat'l Bank of Barnesville v. Rafoth (In re Baker & Getty Fin. Servs., Inc.), 974 F.2d 712, 720 (6th Cir. 1992); Reider v. FDIC (In re Reider), 31 F.3d 1102, 1106-07 (11th Cir. 1994); and In re Bonham, 229 F.3d at 771.
The reasons of these courts for allowing substantive consolidation as a possible remedy span the spectrum and often overlap. For example, Stone and Soviero followed the well-trod path of alter ego analysis in state "pierce-the-corporate-veil" cases. Stone, 127 F.2d at 287-89; Soviero, 328 F.2d at 447-48. Accord In re Giller, 962 F.2d at 798; In re Gulfco Inv., 593 F.2d at 928-29. Kheel dealt with, inter alia, the net-negative practical effects of attempting to thread back the tangled affairs of entities, separate in name only, with "interrelationships . . . hopelessly obscured." 369 F.2d at 847. See also, e.g., In re Augie/Restivo, 860 F.2d at 518-19. In re Continental Vending Machine balanced the "inequities" involved when substantive rights are affected against the "practical considerations" spawned by "accounting difficulties (and expense) which may occur where the interrelationships of the corporate group are highly complex, or perhaps untraceable." 517 F.2d at 1001. See also, e.g., In re Auto-Train, 810 F.2d at 276; Eastgroup, 935 F.2d at 249; In re Giller, 962 F.2d at 799; In re Reider, 31 F.3d at 1108. See generally Kors, supra, at 402-06.
Ultimately most courts slipstreamed behind two rationales-those of the Second Circuit in Augie/Restivo and the D.C. Circuit in Auto-Train. The former found that the competing "considerations are merely variants on two critical factors: (i) whether creditors dealt with the entities as a single economic unit and did not rely on their separate identity in extending credit, . . . or (ii) whether the affairs of the debtors are so entangled that consolidation will benefit all creditors . . . ." In re Augie/Restivo, 860 F.2d at 518 (internal quotation marks and citations omitted). Auto-Train touched many of the same analytical bases as the prior Second Circuit cases, but in the end chose as its overarching test the "substantial identity" of the entities and made allowance for consolidation in spite of creditor reliance on separateness when "the demonstrated benefits of consolidation 'heavily' outweigh the harm." In re Auto-Train, 810 F.2d at 276 (citation omitted).
Whatever the rationale, courts have permitted substantive consolidation as an equitable remedy in certain circumstances.*fn13 No court has held that substantive consolidation is not authorized,*fn14 though there appears nearly unanimous consensus that it is a remedy to be used "sparingly." In re Augie/Restivo, 860 F.2d at 518; see also In re Bonham, 229 F.3d at 767 (explaining that "almost every other court has noted [that substantive consolidation] should be used 'sparingly'") (citing In re Flora Mir, 432 F.2d at 1062-63).*fn15
B. Our View of Substantive Consolidation
Substantive consolidation exists as an equitable remedy. But when should it be available and by what test should its use be measured? As already noted, we have commented on substantive consolidation only generally in Nesbit, 347 F.3d at 86-88, and In re Genesis Health Ventures, 402 F.3d at 423-24. The latter nonetheless left little doubt that, if presented with a choice of analytical avenues, we favor essentially that of Augie/Restivo. Id. at 423. The Auto-Train approach (requiring "substantial identity" of entities to be consolidated, plus that consolidation is "necessary to avoid some harm or realize some benefit," 810 F.2d at 276) adopts, we presume, one of the Augie/Restivo touchstones for substantive consolidation while adding the low bar of avoiding some harm or discerning some benefit by consolidation. To us this fails to capture completely the few times substantive consolidation may be considered and then, when it does hit one chord, it allows a threshold not sufficiently egregious and too imprecise for easy measure. For example, we disagree that "[i]f a creditor makes [a showing of reliance on separateness], the court may order consolidation . . . if it determines that the demonstrated benefits of consolidation 'heavily' outweigh the harm." Id. at 276 (citation omitted); see also Eastgroup, 935 F.2d at 249. If an objecting creditor relied on the separateness of the entities, consolidation cannot be justified vis-à-vis the claims of that creditor.*fn16
In assessing whether to order substantive consolidation, courts consider many factors (some of which are noted in Nesbit, 347 F.3d at 86-88 nn. 7 & 9). They vary (with degrees of overlap) from court to court. Rather than endorsing any prefixed factors, in Nesbit we "adopt[ed] an intentionally open-ended, equitable inquiry. . . to determine when substantively to consolidate two entities." Id. at 87. While we mentioned that "in the bankruptcy context the inquiry focuses primarily on financial entanglement," id., this comment primarily related to the hopeless commingling test of substantive consolidation. But when creditors deal with entities as an indivisible, single party, "the line between operational and financial [factors] may be blurred." Id. at 88. We reiterate that belief here. Too often the factors in a check list fail to separate the unimportant from the important, or even to set out a standard to make the attempt. Accord Br. of Law Professors*fn17 as Amici Curiae at 11-12. This often results in rote following of a form containing factors where courts tally up and spit out a score without an eye on the principles that give the rationale for substantive consolidation (and why, as a result, it should so seldom be in play). Id. ("[D]iffering tests with . . . agreed . . . factors run the risk that courts will miss the forest for the trees. Running down factors as a check list can lead a court to lose sight of why we have substantive consolidation in the first instance . . . and often [to] fail [to] identify a metric by which [it] can . . . [assess] the relative importance among the factors. The . . . [result is] resort to ad hoc balancing without a steady eye on the . . . [principles] to be advanced . . . .").
What, then, are those principles? We perceive them to be as follows.
(1) Limiting the cross-creep of liability by respecting entity separateness is a "fundamental ground rule[]." Kors, supra, at 410. As a result, the general expectation of state law and of the Bankruptcy Code, and thus of commercial markets, is that courts respect entity separateness absent compelling circumstances calling equity (and even then only possibly substantive consolidation) into play.
(2) The harms substantive consolidation addresses are nearly always those caused by debtors (and entities they control) who disregard separateness.*fn18 Harms caused by creditors typically are remedied by provisions found in the Bankruptcy Code (e.g., fraudulent transfers, §§ 548 and 544(b)(1), and equitable subordination, § 510(c)).
(3) Mere benefit to the administration of the case (for example, allowing a court to simplify a case by avoiding other issues or to make postpetition accounting more convenient) is hardly a harm calling substantive consolidation into play.
(4) Indeed, because substantive consolidation is extreme (it may affect profoundly creditors' rights and recoveries) and imprecise, this "rough justice" remedy should be rare and, in any event, one of last resort after considering and rejecting other remedies (for example, the possibility of more precise remedies conferred by the Bankruptcy Code).
(5) While substantive consolidation may be used defensively to remedy the identifiable harms caused by entangled affairs, it may not be used offensively (for example, having a primary purpose to disadvantage tactically a group of creditors in the plan process or to alter creditor rights).
The upshot is this. In our Court what must be proven (absent consent) concerning the entities for whom substantive consolidation is sought is that (i) prepetition they disregarded separateness so significantly their creditors relied on the breakdown of entity borders and treated them as one legal entity,*fn19 or (ii) postpetition their assets and liabilities are so scrambled that separating them is prohibitive and hurts all creditors.*fn20
Proponents of substantive consolidation have the burden of showing one or the other rationale for consolidation. The second rationale needs no explanation. The first, however, is more nuanced. A prima facie case for it typically exists when, based on the parties' prepetition dealings, a proponent proves corporate disregard creating contractual expectations of creditors*fn21 that they were dealing with debtors as one indistinguishable entity. Kors, supra, at 417-18; Christopher W. Frost, Organizational Form, Misappropriation Risk and the Substantive Consolidation of Corporate Groups, 44 Hastings L.J. 449, 457 (1993). Proponents who are creditors must also show that, in their prepetition course of dealing, they actually and reasonably relied on debtors' supposed unity. Kors, supra, at 418-19. Creditor opponents of consolidation can nonetheless defeat a prima facie showing under the first rationale if they can prove they are adversely affected and actually relied on debtors' separate existence.*fn22
C. Application of Substantive Consolidation to Our Case
With the principles we perceive underlie use of substantive consolidation, the outcome of this appeal is apparent at the outset. Substantive consolidation fails to fit the facts of our case and, in any event, a "deemed" consolidation cuts against the grain of all the principles.
To begin, the Banks did the "deal world" equivalent of "Lending 101." They loaned $2 billion to OCD and enhanced the credit of that unsecured loan indirectly by subsidiary guarantees covering less than half the initial debt. What the Banks got in lending lingo was "structural seniority"-a direct claim against the guarantors (and thus against their assets levied on once a judgment is obtained) that other creditors of OCD did not have. This kind of lending occurs every business day. To undo this bargain is a demanding task.
Despite the Plan Proponents' pleas to the contrary, there is no evidence of the prepetition disregard of the OCD entities' separateness. To the contrary, OCD (no less than CSFB) negotiated the 1997 lending transaction premised on the separateness of all OCD affiliates. Even today no allegation exists of bad faith by anyone concerning the loan.*fn23 In this context, OCD and the other Plan Proponents cannot now ignore, or have us ignore, the very ground rules OCD put in place. Playing by these rules means that obtaining the guarantees of separate entities, made separate by OCD's choice of how to structure the affairs of its affiliate group of companies, entitles a lender, in bankruptcy or out, to look to any (or all) guarantor(s) for payment when the time comes. As such, the District Court's conclusions of "substantial identity" of OCD and its subsidiaries, and the Banks' reliance thereon, are incorrect. For example, testimony presented by both the Banks and the Debtors makes plain the parties' intention to treat the entities separately. CSFB presented testimony from attorneys and bankers involved in negotiating the Credit Agreement that reflected their assessment of the value of the guarantees as partially derived from the separateness of the entities. As OCD concedes, these representatives "testified that the guarant[e]es were . . . intended to provide 'structural seniority' to the banks," and were thus fundamentally premised on an assumption of separateness. Debtors Ans. Br. at 26.
In the face of this testimony, Plan Proponents nonetheless argue that the Banks intended to ignore the separateness of the entities. In support of this contention, they assert, inter alia, that because the Banks did not receive independent financial statements for each of the entities during the negotiating process, they must have intended to deal with them as a unified whole. Because the Banks were unaware of the separate financial makeup of the subsidiaries, the argument goes, they could not have relied on their separateness.*fn24
This argument is overly simplistic. Assuming the Banks did not obtain separate financial statements for each subsidiary, they nonetheless obtained detailed information about each subsidiary guarantor from OCD, including information about that subsidiary's assets and debt. Moreover, the Banks knew a great deal about these subsidiaries. For example, they knew that each subsidiary guarantor had assets with a book value of at least $30 million as per the terms of the Credit Agreement, that the aggregate value of the guarantor subsidiaries was over $900 million and that those subsidiaries had little or no debt. Additionally, the Banks knew that Fibreboard's subsidiaries (including the entities that became part of ESI) had no asbestos liability, would be debt-free post-acquisition and had assets of approximately $700 million.
Even assuming the Plan Proponents could prove prepetition disregard of Debtors' corporate forms, we cannot conceive of a justification for imposing the rule that a creditor must obtain financial statements from a debtor in order to rely reasonably on the separateness of that debtor. Creditors are free to employ whatever metrics they believe appropriate in deciding whether to extend credit free of court oversight. We agree with the Banks that "the reliance inquiry is not an inquiry into lenders' internal credit metrics. Rather, it is about the fact that the credit decision was made in reliance on the existence of separate entities . . . ." CSFB Opening Br. at 31 (emphasis in original).*fn25 Here there is no serious dispute as to that fact.
There also is no meaningful evidence postpetition of hopeless commingling of Debtors' assets and liabilities. Indeed, there is no question which entity owns which principal assets and has which material liabilities. Likely for this reason little time is spent by the parties on this alternative test for substantive consolidation. It is similarly likely that the District Court followed suit.
The Court nonetheless erred in concluding that the commingling of assets will justify consolidation when "the affairs of the two companies are so entangled that consolidation will be beneficial." In re Owens Corning, 316 B.R. at 171 (emphasis added). As we have explained, commingling justifies consolidation only when separately accounting for the assets and liabilities of the distinct entities will reduce the recovery of every creditor-that is, when every creditor will benefit from the consolidation. Moreover, the benefit to creditors should be from cost savings that make assets available rather than from the shifting of assets to benefit one group of creditors at the expense of another. Mere benefit to some creditors, or administrative benefit to the Court, falls far short. The District Court's test not only fails to adhere to the theoretical justification for "hopeless commingling" consolidation-that no creditor's rights will be impaired-but also suffers from the infirmity that it will almost always be met. That is, substantive consolidation will nearly always produce some benefit to some in the form of simplification and/or avoidance of costs. Among other things, following such a path misapprehends the degree of harm required to order substantive consolidation.
But no matter the legal test, a case for hopeless commingling cannot be made. Arguing nonetheless to the contrary, Debtors assert that "it would be practically impossible and prohibitively expensive in time and resources" to account for the voluntary bankruptcies of the separate entities OCD has created and maintained. Debtors Ans. Br. at 63. In support of this contention, Debtors rely almost exclusively on the District Court's findings that
it would be exceedingly difficult to untangle the financial affairs of the various entities . . . [and] there are . . . many reasons for challenging the accuracy of the results achieved [in accounting efforts thus far]. For example, transfers of cash between subsidiaries and parent did not include any payment of interest; and calculations of royalties are subject to question.
In re Owens Corning, 316 B.R. at 171. Assuming arguendo that these findings are correct, they are simply not enough to establish that substantive consolidation is warranted.
Neither the impossibility of perfection in untangling the affairs of the entities nor the likelihood of some inaccuracies in efforts to do so is sufficient to justify consolidation. We find R 2 Investments, LDC v. World Access, Inc. (In re World Access, Inc.), 301 B.R. 217 (Bankr. N.D. Ill. 2003), instructive on this point. In World Access the Court noted that the controlling entity "had no uniform guidelines for the recording of intercompany interest charges" and that the debtors failed to "allocate overhead charges amongst themselves." Id. at 234. The Court held, however, that those accounting shortcomings were "merely imperfections in a sophisticated system of accounting records that were conscientiously maintained." Id. at 279. It ultimately concluded that "all the relevant accounting data . . . still exist[ed]," that only a "reasonable review to make any necessary adjustments [was] required," and, thus, that substantive consolidation was not warranted. Id.
The record in our case compels the same conclusion. At its core, Debtors' argument amounts to the contention that because intercompany interest and royalty payments were not perfectly accounted for, untangling the finances of those entities is a hopeless endeavor. Yet imperfection in intercompany accounting is assuredly not atypical in large, complex company structures. For obvious reasons, we are loathe to entertain the argument that complex corporate families should have an expanded substantive consolidation option in bankruptcy. And we find no reason to doubt that "perfection is not the standard in the substantive consolidation context." Id. We are confident that a court could properly order and oversee an accounting process that would sufficiently account for the interest and royalty payments owed among the OCD group of companies for purposes of evaluating intercompany claims-dealing with inaccuracies and difficulties as they arise and not in hypothetical abstractions.
On the basis of the record before us, the Plan Proponents cannot fulfill their burden of demonstrating that Debtors' affairs are even tangled, let alone that the cost of untangling them is so high relative to their assets that the Banks, among other creditors, will benefit from a consolidation.*fn26
Other considerations drawn from the principles we set out also counsel strongly against consolidation. First of all, holding out the possibility of later giving priority to the Banks on their claims does not cure an improvident grant of substantive consolidation. Among other things, the prerequisites for this last-resort remedy must still be met no matter the priority of the Banks' claims.
Secondly, substantive consolidation should be used defensively to remedy identifiable harms, not offensively to achieve advantage over one group in the plan negotiation process (for example, by deeming assets redistributed to negate plan voting rights), nor a "free pass" to spare Debtors or any other group from proving challenges, like fraudulent transfer claims, that are liberally brandished to scare yet are hard to show. If the Banks are so vulnerable to the fraudulent transfer challenges Debtors have teed up (but have not swung at for so long), then the game should be played to the finish in that arena.*fn27
But perhaps the flaw most fatal to the Plan Proponents' proposal is that the consolidation sought was "deemed" (i.e., a pretend consolidation for all but the Banks). If Debtors' corporate and financial structure was such a sham before the filing of the motion to consolidate, then how is it that post the Plan's effective date this structure stays largely undisturbed, with the Debtors reaping all the liability-limiting, tax and regulatory benefits achieved by forming subsidiaries in the first place? In effect, the Plan Proponents seek to remake substantive consolidation not as a remedy, but rather a stratagem to "deem" separate resources reallocated to OCD to strip the Banks of rights under the Bankruptcy Code, favor other creditors, and yet trump possible Plan objections by the Banks. Such "deemed" schemes we deem not Hoyle.
IV. Conclusion
Substantive consolidation at its core is equity. Its exercise must lead to an equitable result. "Communizing" assets of affiliated companies to one survivor to feed all creditors of all companies may to some be equal (and hence equitable). But it is hardly so for those creditors who have lawfully bargained prepetition for unequal treatment by obtaining guarantees of separate entities. Accord Kheel, 369 F.2d at 848 (Friendly, J., concurring) ("Equality among creditors who have lawfully bargained for different treatment is not equity but its opposite . . . ."). No principled, or even plausible, reason exists to undo OCD's and the Banks' arms-length negotiation and lending arrangement, especially when to do so punishes the very parties that conferred the prepetition benefit-a $2 billion loan unsecured by OCD and guaranteed by others only in part. To overturn this bargain, set in place by OCD's own pre-loan choices of organizational form, would cause chaos in the marketplace, as it would make this case the Banquo's ghost of bankruptcy.
With no meaningful evidence supporting either test to apply substantive consolidation, there is simply not the nearly "perfect storm" needed to invoke it. Even if there were, a "deemed" consolidation-"several zip (if not area) codes away from anything resembling substantive consolidation," In re Genesis Health Ventures, 402 F.3d at 424-fails even to qualify for consideration. Moreover, it is here a tactic used as a sword and not a shield.
We thus reverse and remand this case to the District Court.
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Months of the Year Poster
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Would it be possible to have this poster as a 4xA4? Thank you so much!
Hi amkbradley,
That sounds like a great idea, thank you! I'll get our design team to produce it shortly.
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This has been completed now and we have emailed the new resource to you! It will also be available on the website within 48 hours, and you can find it either as a main resource, or under 'Alternative versions' above. I hope you find it useful!
I still can't seem to find the 4x A4 version on this resource - the link you sent me doesn't seem to work?
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Year 2008
Photoshop + Content Management System (Joomla)
This website was built on Joomla CMS. Designed for my business classmates at Savannah College of Art and Design to learn and understand the basics of economics and finance. They are invited to join the website and discussed the related topics (even the assignments) on the Finance Study site.
This entry was posted on Friday, December 10th, 2010 at 12:11 pm. It is filed under Professional Works and tagged with 2008. You can follow any responses to this entry through the RSS 2.0 feed.
Year 2011 – 2012 Client: Carrier Role: User Experience Designer (SapientNitro) Wireframes + Interaction Design OmniGraffle Visit the site: Go Live Soon Take a client without a brand in an industry where every product is a box and try and make something cool. Carrier, the world's largest heating, ventilation and air conditioning (HVAC) company and […]
Year 2010 Client: BerkleeMedia | Berklee College of Music Information Architecture + Web Design Photoshop + HTML + CSS User flow and sample demo of the Berklee College of Music online catalog page redesign.
Year 2012 Client: Philips Healthcare, Global Customer Service Department Role: Lead User Experience Designer (SapientNitro) Wireframes + User Testing + Interaction Design OmniGraffle This project is to detangle the customer services online offering into "support/maintenance" and "consulting/services" categories and for the Healthcare home page to reflect this new organization. There are three phases on this […]
Year 2009 Client: Freescale Graphic User Interface Design Photoshop + Illustrator + AfterEffect Team up with Matt Cole and Qianru Zhang Scenario Video A video prototype/narrative based on contextual research Concept Video: TouchScreen GUI Download: ProcessBook_TouchUI Check out the processbook for detail information.
Year 2010 Client: Graduate Program Office at Massachusetts College of Art and Design Print Design + Web Design Photoshop + InDesign + HTML + CSS [Selected Works] Image 1-3: Graduate Program 2010 Enrollment Package (required B&W design) Image 4: Graduate Program 2010 Catalog Page
Year 2010 Client: BerkleeMedia | Berklee College of Music Web Design Photoshop + HTML + CSS One Month Left Promotional HTML Email Design.
Year 2011 Client: Dunkin' Donuts Role: User Experience Designer (SapientNitro) Wireframes + Interaction Design OmniGraffle I worked on this digital menu board project as a Jr. Information Architect. My task is to organize and structure menu items, local special items and limited-time offer items and then make initial plan and designs for digital menu layout […]
Year 2012 Client: Staples – Copy and Print Service Role: Lead User Experience Designer (SapientNitro) Wireframes + Interaction Design OmniGraffle Visit the site: Staples Copy & Print
Year 2010 Client: BerkleeMedia | Berklee College of Music Web Design Photoshop + HTML + CSS Selected single web page design including: – Berklee Music Promotion Page – Berklee Music Youtube Page – Berklee Music Page for Sponsor's Site
Year 2014 Client: Amazon Project: Shopping Cart & Add to Cart Confirmation Page Redesign (Desktop, Mobile & Tablet) Role: User Experience Design Lead Wireframe + Interaction Design Axure RP The redesign increased Amazon projected revenue by US$176.2MM.
Alexander Wang is an award winner interaction designer and consultant who has background in Industrial Design, Information Architecture, UX Design, Web Design and Finance (Economics).
Currently, Alex is a Sr. UX Design Lead at Groupon. Please see Resume Page for more information.


text:
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decided: January 7, 1980.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.GEOFFREY DISSTON, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 CR 881 -- Thomas R. McMillen, Judge.
Before Swygert, Cummings and Bauer, Circuit Judges.
Appellant-defendant Geoffrey Disston and co-defendant Roger K. Camp were convicted of six counts of engaging in a scheme to defraud by using false, fraudulent and fictitious certificates of deposit, drafts and other obligations of the Bank of Sark in violation of 18 U.S.C. §§ 1341, 1343 and 371. After his conviction was affirmed on direct appeal, United States v. Disston, 525 F.2d 694 (7th Cir. 1975), Disston petitioned for a writ of habeas corpus, 28 U.S.C. § 2255, and moved for a new trial on the basis of newly discovered evidence concerning alleged informant activities of co-defendant Camp. We vacated the denial of his petition and remanded for an evidentiary hearing. United States v. Disston, 582 F.2d 1108 (7th Cir. 1978). After the mandated hearing, the district court again dismissed Disston's petition and denied his motion for a new trial. We affirm.
During pretrial discovery, defendant Disston requested a report of statements of co-defendant Camp and also requested a report of any electronic surveillance of Camp. When it responded, the Government did not disclose that Camp had recently attempted to become an informer for the Government in another investigation. Camp had offered to arrange the purchase of counterfeit money or stolen securities and had given the Secret Service a tape recording of a conversation between Camp and an attorney who was to act as a middleman in the sale transaction. The investigation was unrelated to the Bank of Sark fraud, and none of the proposed transactions were ever effectuated.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), obligates the Government to turn over all "evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S. Ct. at 1197. Even if the withheld evidence is not conclusively material, nondisclosure of information is reversible error when "the prosecutor's failure to reveal the evidence was not in good faith." United States v. Esposito, 523 F.2d 242, 249 (7th Cir. 1975), Cert. denied, 425 U.S. 916, 96 S. Ct. 1517, 47 L. Ed. 2d 768 (1976). The propriety of the Government's failure to turn over the requested material in this case turns, therefore, on both the materiality of the evidence and the Government's alleged bad faith in not disclosing its existence.
In our remand decision, we directed the district court to conduct a hearing to determine whether the withheld information was material to Disston's guilt or punishment or whether it was withheld in bad faith. United States v. Disston, 582 F.2d 1108, 1110, 1112 (7th Cir. 1978).
The district court, after the mandated hearing, held adversely to appellant on both issues. The court found first that the prosecutors acted in good faith in not disclosing the tape recording or Camp's attempt to become a Government informer. Second, the court found that the information withheld was not material to Disston's trial.
The district court based its findings of immateriality on the irrelevancy of the information to any aspect of the Bank of Sark case. Camp, the court found, had attempted to cooperate with the Government on matters completely unrelated to the Bank of Sark indictments or the Disston-Camp trial. Once Camp proved unsuccessful in arranging the proposed transactions, the Secret Service refused to participate further. Neither the Secret Service nor the United States Attorney's office made any "deals" with Camp relating to the Disston-Camp trial.
The Government is, of course, under "no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor." United States v. Agurs, 427 U.S. 97, 106, 96 S. Ct. 2392, 2399, 49 L. Ed. 2d 342 (1976). The court must be convinced that the suppressed evidence might have affected the outcome of the trial. Id. at 104, 96 S. Ct. at 2397. The record here reveals no more than an unsuccessful attempt by Camp to ingratiate himself with the Government. The withheld information was in no way material to Disston's guilt or punishment. Compare Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (promise of leniency to key Government witness not revealed to defendant a violation of Brady rule).
Disston asserts that the withheld information was material to his motion to sever his trial from Camp's based on an antagonistic defense. The district court found that the information, even if produced, "would not have shown any conflict between the defendants' theories or between their evidence and, since they were charged with a conspiracy, they would have still been tried together." We agree. Appellant's claim of an antagonistic defense never materialized; the two co-defendants testified favorably to one another at trial.
Second, appellant claims that the information was subject to production under Rule 16(a) of the Federal Rules of Criminal Procedure. Rule 16(a), however, applies only to statements relevant to the indictment. The district court specifically found that the withheld information was in no way relevant and would not have been allowed to come out in the presence of the jury. Moreover, Rule 16(a) applies only to statements of the defendant. While we have occasionally held that statements of co-defendants may be produced under Rule 16(a), United States v. McMillen, 489 F.2d 229, 231 (7th Cir. 1972), Cert. denied, 410 U.S. 955, 93 S. Ct. 1420, 35 L. Ed. 2d 687 (1973), we have expressly stated that it is a matter left to the trial judge's discretion. United States v. Zarattini, 552 F.2d 753, 757-58 (7th Cir.), Cert. denied, 431 U.S. 942, 97 S. Ct. 2661, 53 L. Ed. 2d 262 (1977).
Finally, appellant argues that his request for Camp's statements qualified as a request for exculpatory material under the Jencks Act, 18 U.S.C. § 3500. Camp's statements were not producible under that Act because he was not called as a Government witness, a prerequisite to the Act's applicability. Id.
Appellant next argues that the information was withheld in bad faith. The Government acted in bad faith, according to appellant, because Government counsel made a conscious decision not to disclose the information known to them.
A conscious decision, however, is not tantamount to bad faith. The Government attorneys testified that they believed the information was not relevant to the Disston-Camp trial and not subject to production under Rule 16(a). The court found that the attorneys did not "intentionally and knowingly . . . deprive the defendant of something which he should otherwise have received." The prosecutors also categorically denied that they received any confidential trial strategy or other defense information; appellant presented no contrary evidence. The court's determination that the prosecutors acted in good faith was well-founded and not clearly erroneous. Since the information was not withheld in bad faith, we are less inclined to hold the unproduced evidence material. United States v. Esposito, 523 F.2d at 248.*fn*
We are convinced that the trial court properly found, upon an examination of the entire record, that the withholding of information was not material and thus did not deprive appellant of a fair trial under the rule of Brady v. Maryland. We further affirm his ruling that Disston was not entitled to a new trial under Rule 33 of the Federal Rules of Criminal Procedure because the withheld information was not relevant. The judgment of the district court is
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24 weeks already @JulieMalooley! wow that's gone quick. how's everything going?
BlondeinBrisvegas (18-02-2016),Blossom74 (19-02-2016),Precious40 (18-02-2016),Summer (18-02-2016)
oh @Gagingi that's terrible news about the 5 embies. hugs. I hope you're ok. I hope the frozen one is a good one - fwiw I think the slower/lower ones often work too. and transferring it on a non-medicated cycle might be all the difference you need. I hope Wazza has some ideas for you. take care
BlondeinBrisvegas (18-02-2016),Blossom74 (19-02-2016),Bongley (18-02-2016),Gagingi (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016)
@Gagingi Im sorry the update you received wasn't better. Ive not made it to a 5day transfer before, and I don't know if we get an update or not. I am hoping no news is good news.
Can I ask if you all use acupuncture along with your IVF? Im on a thread with ladies all from the same clinic and they ALL use acupuncture. One put it in my head that those that have been successful because of acupuncture and I strongly disagree with that suggestion. But it was enough to make me book an appt pre-transfer early Saturday morning. I couldn't get one for a post transfer session. I hate people planting doubt. I don't have any room for doubt.
BlondeinBrisvegas (18-02-2016),Blossom74 (19-02-2016),Charlie74 (18-02-2016),Gagingi (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016),winsor (18-02-2016)
For Her: Folic Acid (Megafol brand usually over the counter at the chemist) 1x5mg tab a day, Berroca 1x day (I substituted a Mega B capsule instead), Fish Oil 1000mg's a day, Zinc- 40mg's a day, Vitamin E 500mg's (1000iu) a day, Co-Enzyme Q10 200-400mg's a day (I did 300 mg's a day), Low dose aspirin 100mg's a day, DHEA 3x25mg caps a day, Melatonin 1x5mg capsule at night. I also added Vit D as I was low in it and Fresh Royal Jelly (1/2tsp a day) but you could take it capsule form too.
For Him: Aloe Vera Juice 20mls at night, Zinc 40mg's, Pumpkin seeds >10 per day (I just gave DP 1 tbs of peppita's every day), Folic Acid 5mg's a day, Goji berries 1xtbs a day or 20 mls a day of Goji berry juice, Selenium 100mcg/day.
You can take all of these right up until EPU (except the DHEA, you have to decrease to 1 capsule a day from Day 2 of stimms until EPU). You also need a script for the DHEA/Melatonin here in Aus and have it made up at a Compounding Chemist.
Some of the Girls here on BH buy it online from o/seas. I think they use sites like iherb to purchase it??
Blossom74 (19-02-2016),Charlie74 (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016),winsor (18-02-2016)
Oh Luv, am so sorry to hear that It's totally frucked!!!!
I don't think Wazza will be keen on doing a Day 3 PGD as my understanding is it's a bit risky to the embryo to test it then but you never know what he'll say/suggest.
Just because it wasn't good enough to biopsy doesn't mean it won't be good enough to give you a BFFP Luv. See what The Man says
Blossom74 (19-02-2016),Gagingi (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016),winsor (18-02-2016)
@Billie2 I did accupuncture on my second cycle (but it was a bust). it was really relaxing though. I haven't done it for either bfp cycle. if that helps.
Billie2 (18-02-2016),BlondeinBrisvegas (18-02-2016),Blossom74 (19-02-2016),Gagingi (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016)
Gagingi fwiw my current frostie was day5 (the second one, not leading) and untested. at the time, testing was really expensive so we didn't try it & I asked my FS (months) later if it was suitable for testing and she said no. they froze it. and it's stuck so far. so this very much could be your take home bub. (plus mine is much older than yours so I think you have a better chance)
BlondeinBrisvegas (18-02-2016),Blossom74 (19-02-2016),Charlie74 (18-02-2016),Gagingi (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016)
@Gagingi im sorry hun it wasnt better news. I do acupuncture and think it has improved my egg quality who knows?
BlondeinBrisvegas (18-02-2016),Blossom74 (19-02-2016),Gagingi (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016),winsor (18-02-2016)
Afm i just rung the clinic the bloods are back and i have appt next friday to meet with the scientists and hopefully start shortly afterwards.
BlondeinBrisvegas (18-02-2016),Blossom74 (19-02-2016),Charlie74 (18-02-2016),Gagingi (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016),winsor (18-02-2016)
Gagingi - sorry to hear that, I know how crap it feels when the cycle is a bust. As you know I have two day 6 frozen untested ones but am still very undecided as to whether I will ever transfer them as logically I can't reconcile in my mind that they could possibly be normal when all the other ones haven't been. But then again since when did logic prevail in IVF?
My two cents worth is that an immediate fresh transfer following stim is not the preferred option for you given your propensity for OHSS ( and I think you had some internal bleeding last time after EPU??). I know frozen cycles are more expensive but I think there is a lot of evidence supporting giving your body a rest for a cycle before doing a transfer ( at least for some people). But I'm no expert by any means having never actually been in position to transfer.
Last edited by Green lady; 18-02-2016 at 13:42.
BlondeinBrisvegas (18-02-2016),Blossom74 (19-02-2016),Gagingi (18-02-2016),Precious40 (18-02-2016),Summer (18-02-2016),winsor (18-02-2016)
Pregnant for the first-time?
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Talents View in Talent Calculator
- Icy Talons
- Frozen Pulse
- Avalanche
- Winter is Coming
- Permafrost
- Runic Attenuation
- Obliteration
Icy Talons
Frost Strike also increases your melee attack speed by 10% for 6 sec, stacking up to 3 times.
Frozen Pulse
While you have fewer than 2 full Runes, your auto attacks radiate intense cold, inflicting 14,416 Frost damage on all nearby enemies.
While Pillar of Frost is active, your melee critical strikes cause jagged icicles to fall on your nearby enemies, dealing 10,921 Frost damage.
Winter is Coming
Enemies struck 5 times by Remorseless Winter while your Pillar of Frost is active are stunned for 4 sec.
When you deal damage with auto attacks, gain an absorb shield equal to 30% of the damage dealt.
Runic Attenuation
Auto attacks generate 1 Runic Power.
1.5 min cooldown Instant
For the next 8 sec, every Frost Strike hit triggers Killing Machine, and Obliterate costs 1 less Rune.
- Heartbreaker
- Rapid Decomposition
- Ossuary
- Red Thirst
- Tightening Grasp
- Foul Bulwark
- Bonestorm
Heart Strike generates 3 additional Runic Power per target hit.
Rapid Decomposition
Your Death and Decay deals damage 50% more often, and while in your Death and Decay you generate 15% more Runic Power.
While you have at least 5 Bone Shield charges, the cost of Death Strike is reduced by 5 Runic Power.
Additionally, your maximum Runic Power is increased by 10.
Additionally, your maximum Runic Power is increased by 10.
Red Thirst
Spending Runic Power will decrease the remaining cooldown on Vampiric Blood by 1 sec per 6 Runic Power.
Tightening Grasp
1 min cooldown Passive
Reduces the cooldown on Gorefiend's Grasp by 60 sec, and your Death and Decay also reduces the movement speed of enemies within its radius by 70%.
Foul Bulwark
Each charge of Bone Shield increases your maximum health by 2%.
20 Runic Power
1 min cooldown Instant
A whirl of bone and gore batters nearby enemies every 1 sec, dealing 25,314 Shadow damage every 1 sec, and healing you for 1% of your maximum health every time it deals damage. Lasts 1 sec per 10 Runic Power spent.
- Bursting Sores
- Pestilent Pustules
- Castigator
- Sludge Belcher
- Spell Eater
- Infected Claws
- Dark Arbiter
Bursting Sores
Festering Wounds deal 50% more damage when burst, and all enemies within 8 yds of a burst Festering Wound suffer 19,657 Shadow damage.
Pestilent Pustules
Every 6 Festering Wounds you burst, you gain 1 Rune.
Each Festering Strike critical strike applies 2 additional Festering Wounds.
Each Scourge Strike critical strike bursts 1 additional Festering Wound.
Each Scourge Strike critical strike bursts 1 additional Festering Wound.
Sludge Belcher
Raise Dead now summons an abomination instead of a ghoul, with improved innate abilities.
Spell Eater
Your Anti-Magic Shell is 20% larger and lasts 5 sec longer.
Infected Claws
Your ghoul's Claw attack has a 35% chance to cause a Festering Wound on the target.
Dark Arbiter
30 yd range
3 min cooldown Instant
Summon a Val'kyr to attack the target for 15 sec. The Val'kyr will gain 1% increased damage for every 1 Runic Power you spend.
- Empty
- Empty
- Empty
- Empty
- Empty
- Empty
- Empty
- Health2372520
- Runic100
- Strength 26980
- Agility 7529
- Intellect 3999
- Stamina 39542
- Damage 28304–33194
- Speed 1.88/1.88
- Mana Regen --
- Armour 4718
- Dodge 5.00%
- Parry 12.88%
- Block 0.00%
- Crit 28.35%
- Haste 38.04%
- Mastery 29.19%
- Leech 0.00%
- Versatility 2.51%
- Avoidance 0.00%
Recent Activity
- Obtained Lei Shen's Final Orders.
- 1 day ago
- Obtained Hood of Focused Energy.
- 1 day ago
- Obtained Magnetized Leggings.
- 1 day ago
- Obtained Tihan, Scepter of the Sleeping Emperor.
- 1 day ago
Player vs. Player
- 28941 Honourable kills
Raid Progression
Last updated on 05/12/2016


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Chirayu Pharmaceuticals Kamdudha rasa moti:- Benefits: It is used in Ayurvedic treatment of Gastritis, diarrhea with blood discharge and diabetes.
Chirayu Pharmaceuticals Kamdudha rasa moti:-
Kamdudha Ras is an Ayurvedic medicine, with herbal and mineral ingredients, in tablet form. It is used in treating gastritis and bleeding diseases. This medicine is used more in North Indian Ayurvedic treatment method and should only be taken strictly under medical supervision.
effect on Tridosha – Balances Pitta
125 mg – 1 – 2 tablets once or twice a day before or after food or as directed by Ayurvedic doctor.
In female conditions, it is given along with cow milk or rice washed water.
In Pitta imbalance, it is given ialon g wth sugar and cow milk.
In diabetes, it is given along with long pepper.
In Bleeding disorders, it is given along with Durva svarasa (Cynodon dactylon)
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Having unwanted fat in various locations of your body can have a substantial influence on your health and self-esteem. While traditional weight loss through exercise and diet is a terrific way to drop weight in general, even the very best workouts cannot target problem areas like the stomach, inner thighs, arms, and butts. Liposuction is a time checked treatment that is used to get rid of excess fat from specific areas of the body, permitting a specific to shape and contour their body to their preference. Is liposuction right for you? Find out now.
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Kerry County Council is to install more lifebuoys along part of the Big River in Tralee.
Councillor Pa Daly raised the issue at the recent meeting of Tralee Municipal District, after locals called for additional lifesavers along the popular route.
The local authority is to place more lifebuoys along the Big River near Casement's Avenue over the coming weeks.


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Grant County High School will be hosting the Coach G's Braves Basketball Camp from 9 a.m. to noon for kindergarten through fourth grade and from 1 to 4 p.m. for grades fifth through eighth on June 16 through June 18. This camp is for boys currently in grades K-8.
The Williamstown Lady Demons were their own worst enemy in first round action of the District 32 tournament that kicked off May 19 at Grant Co. High School.
The Lady Demons committed no fewer than eight errors and allowed four more runners to reach base via walks while managing just two base hits themselves in an 8-1 loss to district favorites Walton-Verona.
• Brianna Cid 100m finals; placed 17th with a time of 15.43.
• Tristan Ensminger; 100m finals; placed 12th with a time of 12.41.
• Summer Dearing; 1600m finals; placed seventh with a time of 5:57.16.
• Mollie Pelfrey; 200m finals; placed ninth with a time of 28.91.
• Tristan Ensminger; 200m finals placed 13th with a time of 25.44. • 4x400m finals with a time of 4:55.16
A year ago, Grant County baseball coach Darrin Robinson watched his Braves peak at mid-season and look like one of the region's best teams before faltering down the stretch and having their season end in the first round of postseason play.
The veteran skipper wants to make sure his Braves do not follow the same path again this season, which is why he's pushing his squad to finish strong and enter district tournament play with momentum this time around.
Copyright © 2016
The Grant County News is your source for local news, sports, events, and information in Dry Ridge, KY and the surrounding area.


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These are my favorite books I read for the first time in 2016 (here's last year's list). Well, technically, my favorite books I read from December 2015-November 2016, since I always put this list together in time for people to grab Christmas gift ideas.And, if you're looking for other book recommendations from me, you can check out the list of books I managed to reference in my own book. Or, of course, there's always my book, Arriving at Amen: Seven Catholic Prayers That Even I Can Offer. If … [Read more...]
My Favorite Books of 2016
The Boring, Quiet Rituals that Sustain Us Spiritually
When I worked as an instructor at the Center for Applied Rationality, a lot of our curriculum on cognitive biases felt secretly virtue ethics-y: Here's how small choices you make (including ones about what environments you exist in) shape your big choices and who you grow up to be.I really enjoyed reading James K. A. Smith's You Are What You Love: The Spiritual Power of Habit and reviewing it for Commonweal because it seems to cover spiritual life in the same kind of way. Here's one of my … [Read more...]
Theology nerds (who are also generally nerds) come to Toronto!
I had a great time last year at Doxacon DC, a day of talks, revelry, and occasional cosplay for people who are deeply interested in both Christianity and fantasy/science fiction. So I'm thrilled to tell you that I'll be the keynote speaker this fall for Doxacon Toronto (and that my now-fiancé, then-husband will be giving a talk on "Authority and the Marvel Cinematic Universe" there, too).I'll be speaking on Chesterton, Lewis and Card on Worldbuilding and Our Tolerance of MysteryI'll be … [Read more...]
Dissecting the Catholic Vote for FiveThirtyEight
Over at FiveThirtyEight, I'm taking a close look at a recent Pew survey of religious voters. More mass-going Catholics are planning to vote for Clinton than planned to support Obama four years ago, but it's not because Clinton won them over: Catholics who attend Mass weekly have increased their support for the Democratic nominee by 22 percentage points relative to 2012. They support Hillary Clinton at about the same rate as fallen-away Catholics; even though among white, non-Hispanic Catholics, … [Read more...]
My Good Catch Catches Them All
I've gone to Poland to speak at World Youth Day, so, in the meantime, I've got a few good posts from my fiancé to recommend. He's been alternately playing Pokemon Go and writing about the way its reenchanting the city for players.Even though I'm not playing, I'm still enjoying all the people I run into, and the fact that, unprompted, they'll tell me if there's a really cool Pokemon nearby, so I don't miss it.Alexi wrote about the way that looking at their phones prompts players to look … [Read more...]
Starving Laypeople of Devotion in Church
I just wrapped up (and really enjoyed) Eamon Duffy's The Stripping of the Altars: Traditional Religion in England, 1400-1580. One of the themes that jumped out at me were the ways laypeople were pushed aside during the English Reformation. Although Protestant reformers were ostensibly giving power to the ordinary people of the parish (though translations of the Mass and other reforms), by attacking traditional devotions, they cut parishioners off from the kinds of worship they had known and the … [Read more...]
Rational Faith: More working hypothesis than logical proof
Editors' Note: This article is part of the Patheos Public Square on Faith and Reason. Read other perspectives here.This month, Patheos asked bloggers to contribute to a Public Square symposium on the question "Is Faith Rational, Irrational, or Arational?" Since I used to work teaching Bayesian statistics for the Center for Applied Rationality and I'm now a statistician for FiveThirtyEight, I'm coming down firmly on the "Rational" side of this trilemma.But "rational" may not mean what you … [Read more...]