UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NORTH CAROLINA WILSON DIVISION ) ) NATIONAL GAS DISTRIBUTORS, LLC, ) ) Debtor. ) ) ) ________________________________________________) ) RICHARD M. HUTSON, II, TRUSTEE FOR ) NATIONAL GAS DISTRIBUTORS, LLC, ) f/k/a Paul Lawing, Jr., LLC, ) ) Plaintiff, ) ) v. ) ) THE SMITHFIELD PACKING COMPANY, ) INCORPORATED, ) ) Defendant. ) ) ________________________________________________) In re:
Case No. 06-00166-8-ATS Chapter 11
Adversary Proc. No. 06-00267-8-ATS
MOTION FOR LEAVE TO FILE "BRIEF AND MEMORANDUM OF LAW OF THE INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, AS AMICUS CURIAE, IN SUPPORT OF DEFENDANT'S MOTION (A) TO DISMISS TRUSTEE'S COMPLAINT FOR FAILURE TO STATE A CLAIM UNDER FEDERAL RULE OF BANKRUPTCY PROCEDURE 7012, OR, IN THE ALTERNATIVE, (B) FOR SUMMARY JUDGMENT UNDER FEDERAL RULE OF BANKRUPTCY PROCEDURE 7056"
Joshua D. Cohn Hugh McDonald Matthew D. North ALLEN & OVERY LLP 1221 Avenue of the Americas New York, NY 10020 (212) 610-6300 Counsel for The International Swaps and Derivatives Association
The International Swaps and Derivatives Association (“ISDA”) respectfully moves for permission to file a “Brief and Memorandum of Law of The International Swaps and Derivatives Association, as Amicus Curiae, in Support of Defendant's Motion (A) to Dismiss Trustee's Complaint for Failure to State a Claim Under Federal Rule of Bankruptcy Procedure 7012, or, in the Alternative, (B) for Summary Judgment Under Federal Rule of Bankruptcy Procedure 7056” (the “Amicus Brief”), in support of the motion to dismiss the complaint filed by the Trustee in the adversary proceeding Richard M. Hutson, II, Trustee for National Gas Distributors, LLC, f/k/a Paul Lawing, Jr., LLC v. The Smithfield Packing Co., Inc. (Adv. Pro. No. 06-00267-8ATS). This adversary proceeding seeks to avoid various pre-petition transfers of natural gas and to recover from the Smithfield Packing Company, Incorporated ("Defendant") the value of natural gas sold by National Gas Distributors, LLC (the "Debtor") to Defendant in 2005. Issues concerning the characterization of the underlying documentation have been raised and whether such documentation falls within the protections of the "safe harbors" in the U.S. Bankruptcy Code. ISDA respectfully seeks to have the views of its members heard by this Court. The issues before the court are important for the industry and the swap and derivatives markets. Given ISDA's experience and expertise, ISDA feels that the Court would be aided by its analysis of and commentary on the issues at hand. Accordingly, ISDA respectfully seeks leave to file an Amicus Brief. Further, given the importance and complexity of the issues, as well as ISDA's unique ability to assist the court, ISDA respectfully requests that it be given two additional weeks in which to brief the issue, so as to have time for adequate and thorough analysis.
Wherefore, ISDA respectfully requests that the Court enter an order granting ISDA permission to file its attached Amicus Brief.
Dated: New York, New York April 3, 2007
ALLEN & OVERY LLP By: /s/ Hugh McDonald Joshua D. Cohn Hugh McDonald Matthew D. North ALLEN & OVERY LLP 1221 Avenue of the Americas New York, NY 10020 (212) 610-6300 Counsel for The International Swaps and Derivatives Association