Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00148-GMS Document 99 Filed O9/16/2005 Page 1 of 4
BLANK— ROMEttr
counselors AT raw
Phone: (302 J25-6-I2.!
Fax: (302)-l25-6400
Email: Fu1e·ll@Bl¤nkR0me.com
September 16, 2005
By Hand Deliverv
Electronic Filing
Honorable Gregory M. Sleet
U.S. District Court for the District of Delaware
844 North King Street, Room 4209
Lock Box 18
Wilmington, DE 19801
Re: Pre-Trial Conference, September 19, 2005
InaCom Corp., et al. v. Tech Data Corp CA No. 04-148 (GMS)
InaCom Corp., et al. v. Dell Computer Corp. CA No. 04-582 (GMS)
InaCom Corp., etal. v. Lexmark Intemational, Inc. CA No. 04-583 (GMS)
lnaCom Corp., et al. v. Ingram Entertainment Inc. CA No. 04-593 (GMS)
Dear Judge Sleet:
On behalfof the plaintiffs in these adversary matters, at our recent telephonic conference
with the Court, we proposed coordinating with the defendants’ counsel presentation ofthe
evidence at the trial in the now consolidated cases. To that end, on September 13, 2005, we
provided defendants’ counsel with an outline of the Proposed Order of Case Presentation and
invited the parties to participate in a telephonic conf`erence on September 15 to coordinate our
positions. I enclose a copy ofthe Proposed Outline for Your Honor’s consideration.
Unfortunately, we did not receive a coordinated response from the defendants, nor an
agreement by the four defendants to participate in a telephonic discussion of the issues. We did
receive a response from Mr. Tatelbaum solely on behalf of Tech Data suggesting that item B.6
be moved to the defendants’ affinnative defenses, and the plaintiffs’ sur rebuttal, identified as
item B.7, be moved to the end of the defendants’ affirmative offenses. On behalf of the
plaintiffs, we have not agreed to those changes because the defendants’ evidence regarding
§ 547(b)(5) is not an affirmative defense, but is in response to the defendants’ prima facie case to
prove element (b)(5) of the preference action.
Chase Manhattan Centra 1201 Market Street Suite 800 Wilmington, DE 19801
wvvw.B|a1§ne.c0m
Delaware • Florida • M R EE H E QE l°¤· DC


Case 1:04-cv-OO148—Gl\/IS Document 99 Filed O9/16/2005 Page 2 of 4
BLANl<— ROMEM
COcNSELORS AT LAW
September 16, 2005
Page 2
Mr. Powell, counsel for Dell, indicated that he would not agree to plaintiffs having an
opportunity for rebuttal after the defendants` opening statements and, generally questioned how
our proposal assisted in disposing ofthe cases more efficiently than a traditional procedure. Mr.
Powell did not elaborate on his comment, but we assume he is questioning the presentation ofthe
insolvency issue first. It is the plaintiffs’ view that since the insolvency issue has been treated by
all parties as a consolidated issue throughout discovery and preparation of this trial, and have
agreed that insolvency is a threshold issue, the Court should hear the arguments on insolvency
first. It is the plaintiffs’ view that the balance ofthe outline does follow the "traditional" fomiat
ofthe plaintiffs presenting their prima facie case, and then each ofthe defendants having an
opportunity to present their affirmative defenses.
Lastly, we are informed that Hewlett Packard, a third a party defendant in certain of the
actions, wishes to have a separate trial on all the issues relating to the allegations in the third
party complaints at a later date.
We provide this infomiation and the enclosed outline for the Court’s consideration prior
to the pretrial conference scheduled for Monday. We assume all ofthe defendants will express
their views more fully at the pretrial conference. l am available should Your Honor have any
questions conceming the enclosed.
Respectfully yours, `
Bonnie Glantz Fatell (3809)
BGFfeg
Cc: (Via E-mail)
Andrew Caine
Earl Foite
Robert Powell
Sabrina Streusand
Jonathan Hersey
Steven Hunt
Charles Tatelbaum
Culver Halliday
Cecily Dumas

Case 1:04-cv-00148-GMS Document 99 Filed 09/16/2005 Page 3 of 4
PROPOSED ORDER OF CASE PRESENTATION
InaCom Corp., et al. v. Tech Data Corp CA No. 04-148 (GMS)
lnaCom Corp., et al. v. Dell Computer Corp. CA No. 04-582 (GMS)
lnaCom Corp., et al. v. Lexmark International, Inc. CA No. 04-583 (GMS)
lnaCom Corp., etal. v. Ingram Entertainment Inc. CA No. 04-593 (GMS)
Opening Statements (Debtor, followed by each Defendant, with rebuttal by Debtor)(if
the Court wants them )
A. Insolvency (§ 547(b)(3))
1 . Debtor's direct case, with cross by Defendants and re-direct by the Debtor
2 . Rebuttal case by Defendants, with cross by Debtor and re-direct by Defendants
3 . Sur-rebuttal by Debtor, with cross by Defendants, re-direct by Debtor
B . Elements of the Debtor's Prima Facie Case (§ 547(b))
1. (b)(1) - stipulations from Pre-Trial Order re: transfers made and received,
amounts paid, check payments, etc.
2 . (b)(2) - Stipulations from the PTO (all but Tech Data) and Debtor's direct
evidence on antecedent debt for each of the four Defendants, with cross by Defendants,
re-direct by Debtor
3 . (b)(3) - insolvency - addressed above
4 . (b)(4) - made within 90 days of the petition date - addressed above with respect
to (b)(1) and in stipulations
5. (b)(5) - received more than in a Chapter 7 case - Stipulations from the PTO
(Ingram) and Debtor's direct, with cross by Defendants, re-direct by Debtor
6. Defendants' rebuttal case on (b)(5)(Dell, then Lexmark and then Tech
Data), with cross by Debtor , re-direct by Defendants
7. Debtor's sur-rebuttal case on (b)(5), with cross by Defendants , Dell, Lexmark
and Tech Data, redirect by Debtor
Debtor Rests
C. Defendants' affirmative defenses
1. Dell
a. DeIl's direct case on ordinary course of business (§ 547(c)(2)(B)), cross by
Debtor, redirect by Dell
b. Rebuttal by Debtor of DeIl's § 547(c)(2)(B) direct case, with cross by Dell, re-
direct by Debtor
c. Dell's direct case on ordinary business terms (§ 547(c)(2)(C)). with cross by
Debtor, redirect by Dell
d. Rebuttal by Debtor of DeII's § 547(c)(2)(C) direct case, with cross by Dell, re-
direct by Debtor
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Case 1:04-cv-OO148—GI\/IS Document 99 Filed O9/16/2005 Page 4 of 4
e. Dell's direct case on subsequent new value (§ 547 (c)(4))(if permitted by the
Court), with cross by Debtor, re-direct by Dell
r. Rebuttal by Debtor of DelI's § 547(c)(4) direct case, with cross by Dell, redirect
by Debtor
2. Lexmark
a. Lexmark's direct case on ordinary course of business (§
547(c)(2)(B)), with cross by Debtor, re-direct by Lexmark
b. Rebuttal by Debtor of Lexmark's § 547(c)(2)(B) direct case, with cross by
Lexmark, re-direct by Debtor
c. Lexmark's direct case on ordinary business terms (§ 547(c)(2)(C)), with cross
by Debtor, re-direct by Lexmark.
d. Rebuttal by Debtor of Lexmark's § 547(c)(2)(C) direct case, with cross by
Debtor, re-direct by Lexmark
e. Stipulations from the PTO re: Lexmark's direct case on subsequent new
value (§ 547(c)(4)), with cross by Debtor, re-direct by Lexmark
f. Rebuttal by Debtor of Lexmark's § 547(c)(4) direct case, with cross by
Lexmark, re-direct by Debtor.
3 . Ingram
a. Ingram's direct case on ordinary course of business
(§547(c)(2)(B)), with cross by Debtor, re-direct by Ingram
b. Rebuttal by Debtor of Ingram's § 547(c)(2)(B) direct case, with cross by
Ingram, re-direct by Debtor
c. lngram's direct case on ordinary business terms (§ 547(c)(2)(C)), with cross
by Debtor, re-direct by Ingram
d. Rebuttal by Debtor of Ingram's § 547(c)(2)(C) direct case, with cross by
Ingram, re-direct by Debtor
e. Ingram's direct case on subsequent new value (§ 547(c)(4)), with cross by
Debtor, re-direct by Ingram
f. Rebuttal by Debtor of Ingram's § 547(c)(4) direct case, with cross by Ingram,
re-direct by Debtor
4. Tech Data - only challenged (b)(2)(antecedent debt, addressed above in (b)(‘l)),
(b)(3)(insolvency, addressed above) and (b)(5)(Chapter 7 element, addressed above) -
no afhrmative defenses to be presented.
Closing arguments by Debtor, then each Defendant, with rebuttal by Debtor (if the Court
wants them)
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