Free Designated Record on Appeal - District Court of Delaware - Delaware

Case 1:08-cv-00188-SLR

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: BUFFETS HOLDINGS, INC., a Delaware Corporation, et al. Debtors. ) ) ) ) ) ) Chapter 11 Case No. 08-10141 (MFW) (Jointly Administered)

APPELLANTS' DESIGNATION OF ITEMS TO BE INCLUDED IN RECORD AND STATEMENT OF ISSUES TO BE PRESENTED Pursuant to Federal Rule of Bankruptcy Procedure 8006, Appellants Delmarva Power & Light Company, Atlantic City Electric Company, Potomac Electric Power Company, Florida Power and Light Company, Gexa Energy and Sacramento Municipal Utility District (hereinafter collectively, the "Objecting Utilities") submit the following with respect to their appeal of the Final Order Pursuant To Section 366 Of The Bankruptcy Code (I) Prohibiting Utility Companies From Altering, Refusing, Or Discontinuing Utility Services, (II) Deeming Utilities Companies Adequately Assured Of Future Performance, And (III) Establishing Procedures For Determining Adequate Assurance Of Payment of the Honorable Mary F. Walrath, entered on February 28, 2008 (Docket No. 414). A. Items To Be Included In The Record: Docket No. 6

Item Motion for Interim and Final Orders Pursuant to Section 366 of the Bankruptcy Code (I) Prohibiting Utility companies from Altering, Refusing, or Discontinuing Utility Services, (II) Deeming Utility Companies Adequately Assured of Future Performance, and (III) Establishing Procedures for Determining Adequate Assurance of Payment filed on January 22, 2008 ("Utility Motion").

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Interim Order Pursuant to Section 366 of the Bankruptcy Code (I) Prohibiting Utility Companies from Altering, Refusing, or Discontinuing Utility Services, (II) Deeming Utility Companies Adequately Assured of Future Performance, and (III) Establishing Procedures for Determining Adequate Assurance of Payment filed on January 23, 2008. Objection Of Pepco Holdings, Inc., Florida Power & Light Company, Sacramento Municipal Utility District And Gexa Energy To Debtors' Motion For Interim And Final Orders Under Section 366 Of The Bankruptcy Code filed on February 6, 2008. Transcript of hearing held on January 23, 2008. Transcript of hearing held on February 13, 2008 and entered on the docket on February 26, 2008. Final Order (I) Prohibiting Utility companies From Altering, Refusing, or Discontinuing Utility Services, (II) Deeming Utilities Companies Adequately Assured of Future Performance, and (III) Establishing Procedures for Determining Adequate Assurance of Payment. Order Signed on 2/27/2008 and filed on 02/28/2008. Notice of Appeal filed on March 10, 2008. Docket Entries through March 10, 2008 for Bankruptcy Case 08-10141

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201 375

414

467

B. Statement Of The Issues To Be Presented: 1. Did the Bankruptcy Court err when holding that the Utility Deposit Account (as defined in the Utility Motion, Interim Order and Final Order) was an acceptable form of an assurance of payment under 11 U.S.C. § 366(c) despite the fact that such form was not satisfactory to the Objecting Utilities. 2. Did the Bankruptcy Court err when holding that the Utility Deposit Account (as defined in the Utility Motion, Interim Order and Final Order) met the definition of an assurance set forth in 11 U.S.C. § 366(c)(1)(A).

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3.

Did the Bankruptcy Court's Interim and Final Orders violate the requirement of 11 U.S.C. 366(c)(2) that each Objecting Utility actually receive an assurance of payment within the first 30 days of the case.

4.

Did the Bankruptcy Court's Interim and Final Orders granting Debtors' Utility Motion and approving the Debtor's Procedures reverse the burden imposed by the statute and effectively terminate each Objecting Utility's rights under 11 U.S.C. 366(c)(2).

5.

Did the Bankruptcy Court err in granting the Debtors' Utility Motion on an ex parte basis.

6.

Did the Bankruptcy Court's Interim and Final Orders granting Debtors' Utility Motion and approving the Debtor's Procedures violate the requirements of Bankruptcy Rule 9014 and 7004.

7.

Did the Bankruptcy Court's Interim and Final Orders approving Debtors' request for injunctive relief violate the requirements of Bankruptcy Rule 7001 and other applicable requirements for the imposition of injunctive relief.

8.

Did the Bankruptcy Court's Interim and Final Orders permit Debtors to ignore requirements imposed upon a debtor in possession under applicable state law and 28 U.S.C 959(b).

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Dated: 03/20/2008

Respectfully submitted,

Michael P. Morton Michael Morton, P.A. #2492 1203 North Orange Street Wilmington, DE 19801 302-426-1313 And McCarthy & White, PLLC

/s/William Douglas White William Douglas White McCarthy & White, PLLC 8180 Greensboro Drive, Suite 875 McLean VA 22102 703-770-9265 (phone) 703-770-9266 (fax) [email protected] Attorneys for Objecting Utilities and Appellants

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CERTIFICATE OF SERVICE I hereby certify that on this 20th day of March, 2008 I caused to be sent via the Court's ECF filing system a copy of the foregoing to the following: United States Trustee 844 King Street, Room 2207 Lockbox #35 Wilmington, DE 19899-0035 Pauline K. Morgan Young, Conaway, Stargatt & Taylor The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 Eric T. Ray Balch & Bingham LLP 1901 Sixth Avenue North Suite 2600 Birmingham, AL 35203

/s/William Douglas White William Douglas White McCarthy & White, PLLC 8180 Greensboro Drive, Suite 875 McLean VA 22102

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