Might not have been what you intended. But it does sort of come off like the funeral director handing out cards as people walk away from the grave.
You literally took the analogy off of my keyboard.
Deranged minds think alike?
Truth seems deranged thinking, for the narrow of mind.
Either that, or hypobrania.
Thatâs really an excellent idea. Thank you!
My only conjecture was related to the use of those email addresses, which is why I used the question mark. The rest was fact. Iâm not trying to ruin your reputation, but youâre doing a fantastic job on your own, at least for the audience thatâs reading and paying attention to this thread.
Alex - From your post count, it looks like youâre relatively new, so you may not have realized the customs that have developed. People in the business who participate here are generally VERY careful not to sound like they are pitching services or products, and you sounded like you were. Add to that the funeral-director-handing-out-cards aspect of the mining of the PC list, and people got their backs up.
I hope that helps.
John, I might add it not only sounded like he was pitching sales of his wine, he was. And this is not the commerce corner, and he is not s berserker business.
Back on the PC topic, there are reports today of a wine scam in Switzerland involving a company that sold the same trophy bottles several times over. Benoit Violier, the famous chef who committed suicide last week, may have been one of the victims.
already covered earlier in this thread
Youâll forgive me for not following everything here.
No, we wonât.
![[berserker.gif]](/uploads/db3686/original/2X/8/8600bbd4810d342b8fbd4ffb62b4f0026275fd37.gif "berserker"){kind=small}
Don, all of your points are good ones. I have no doubt that, when you and I originally purchased the 2002 Drouhin Musigny from PC, they did not have the wine under contract. This was the first offering of that wine I had seen anywhere, and I jumped on it. I donât currently have access to records of when I picked up that wine from PC, but my vague memory is that it was in about 2006, perhaps 2007. I was happy to see it and it had the effect of mollifying some of by doubts, unfortunately for me.
You wrote earlier that in 2007, Nishi âwas finally forced to admit in response to threats of litigation etc that PC had never owned a single bottle of the 2002 Musigny nor had they ever had any contractual commitment to supply it from any source.â That struck me as inconsistent with my experience. If my memory is off and they delivered the wine later than 2007 in my case, then we are probably both right. Either way, it is an interesting coincidence that this particular wine was the flash point for you with PC but the opposite for me.
The fundamental point on which I am sure we agree is that PC was not selling wine that it owned; rather, it was selling what amounted to open-ended futures contracts (i.e., the promise of obtaining and delivering the wine at some point in the future), and appears to have been systematically dishonest about this basic fact.
2/8 PC BANKRUPTCY UPDATE
The trustee, Michael Kasolas, submitted a Status Conference Statement regarding the PC case. Much of the statement is just a restatement of items which have already been reported, there were several items of interest. I have added commentary below several items. The usual disclaimer (opinions are my own, I am not an attorney, this is not legal advice) applies.
The Debtor, operating under the name of Premier Cru, has been a well-known seller of top-quality wines in the Bay Area since it opened in 1980. The Debtor made its reputation by selling top-tier wines at lower prices than competitors, but often selling them as âpre-arrivals.â In return for âunbeatableâ prices on sought-after wines offered as âpre-arrivals,âthe Debtor often took years to deliver orders. The Debtor also sold wine futures, wines which may not have been bottled yet. The Trustee is continuing his investigation into the operations, and so it is too early in the process to describe the Debtorâs business in detail. However, what is known, and of public record, is that many people and entities purchased fine wine from the Debtor and received those bottles. > However, many people and entities purchased wine from the Debtor and did not receive their orders for a variety of reasons ranging from not wanting to pay for the shipping, wanting the Debtor to store the wine for free, waiting for the wine to arrive, or waiting for the wine to be bottled by the winery and distributed. >
^^^ I completely disagree with the trusteeâs characterization regarding the reasons why customers did not receive their wine. For him to list ânot wanting to pay for the shippingâ as the first reason why people did not get their wine is frankly outrageous. His explanation is an injustice to those who were told excuse after excuse by PC, sometimes for years.
Although the Trustee is not operating the Debtor, the Trustee must spend money to protect the assets. The Trustee obtained authority to use cash collateral to pay for insurance and utilities. The > Trustee believes that until the wine is sold, and the estate can vacate the premises, he estimates that he will need approximately $25,000 a month. > This amount could increase if there are specific issues that arise that would require additional expenses. Therefore, the Trustee is looking at possible sources for additional sums and is in discussions with lenders, and others who may provide additional financing, and such financing would be subject to a further order of this Court.
The Trustee is in the process of choosing a claims agent to assist the estate in establishing a website for posting all pleadings filed, and assisting with the claims process.
There are other issues which the Trustee is investigating, the details of which cannot be disclosed at this time, and continue to be a work in progress. The Trustee believes that there are avoidance actions that may be recoverable. In addition the Trustee is looking into the outstanding wine futures, and wine which has been purchased, but not delivered. The Trustee is also analyzing the necessary scope of a forensic accounting. The FBI is investigating this matter, and the Trustee is cooperating with the FBI. >
^^^ Based on what has been said and implied at the hearings, it would appear there is much more going on behind the scenes, that has not been publicly discussed. The Judge seemed concerned that Fox and Ortega may be pleading the 5th in the future.
As this Court is aware, some of the Debtorâs wine buyers have asserted that some of the wine that the Debtor is holding belongs to them. The Trustee has received many telephone calls from some of the buyers, and has analyzed the Debtorâs records and reviewed the premises carefully to obtain a more complete understanding of the situation. As set forth below, the Trustee is working on developing a strategy to resolve the title issues so that the wine inventory can be sold. Time is of the essence, as there are approximately 35,000 bottles of wine, and the cost of maintaining the inventory is substantial. In addition, the building that the Debtor leases is on the market, and will be sold. Therefore, we must develop a method of resolving the title issues quickly, so that the wine can be sold.
The Debtor maintained a sophisticated computerized inventory system and means of communicating with buyers by email. Many buyers received emails providing information as to the status of their wine, and such emails may or may not reflect the same information as is in the
Debtorâs inventory.
12. Under California law where there is an agreement to sell goods and the buyer is to pay for shipping, absent an agreement to the contrary, the transaction is a shipping contract under Section 2401 of the California Commercial Code. That code section provides that title transfers at the time and place when the seller has completed performance â with reference to the physical delivery of the goodsâ. Cal. Comm. Code Section 2401(2). > Therefore, the Trustee contends that the wine that is listed in the Debtorâs computer system as being identified to a buyer, but not segregated, is property of the estate and can be sold and there should be little debate on that issue. > Cases such as In re Carolina Wine Company, Inc, 2008 Bankr. LEXIS 2156 ( Bankr. E.D.N.C. 2009) support this conclusion. There is no case that holds anything to the contrary that the Trustee could locate, and in fact, in many commercial settings when a debtor files bankruptcy, there are customer orders that have been paid for at the time the debtor files a bankruptcy, and those customers do not have priority over any other creditor even though there is inventory in the warehouse that could be used to satisfy that order. That is the situation here as to those customers.
A different legal analysis may apply to those claims of customers whose wine was physically segregated, as was the case for approximately 120 customers of Premier Cru. The levels and extent of segregation among customers vary, ranging from boxes getting ready to be shipped or picked up with a packing slip with the customerâs name on it, to wine stored in boxes with the customerâs name on it that has been so held for an indefinite period of time, to returns. > While such customers may argue that goods contracted to be sold that are separated and set apart for the buyer may be recovered > (by specific performance) under Commercial Code Section 2502, a decision in the Northern District of California concluded that Section 2502 did not apply in the context of a bankruptcy case because there is no express exception set forth in the Bankruptcy Code for buyers to receive goods not delivered prior to the commencement of the case. See, In re Paoletti, Inc., 205 B.R. 251, 262 ( Bankr. N.D. Cal. 1997). > Such buyers were entitled only to a general unsecured claim. >
^^^ If you think you may be one of these customers, it might be wise to consult Tom Gâs post and/or contact an attorney. Link to the post is here: http://www.wineberserkers.com/forum/viewtopic.php?p=1942628#p1942628
The Trustee proposes that he or the court serve notice of the order setting the title resolution process and schedule, notice of the website as resource for the motion, notice of the posting of the title evidence by the Trustee on the website, notice of the opportunity to object to or supplement such evidence, notice of the appointment or opportunity for appointment of any class representative or legal counsel for parties whose wine is segregated and whose wine is not, notice of any order limiting notice relative to the case and any motion in connection with the title
resolution process (the âNotice of Order(s)â).
There are two primary classes of potential customer title claimants: those whose
wine is segregated under their name and those whose wine in held in general inventory. The size
of the former class appears to be about 120 customers. (The Trustee proposes to post a list of
those customers and the wines held in their boxes as part of the initial posting in the document
room.) The size of the class of customers who may assert an interest in wine held in general
inventory is not yet determined but is likely to be so numerous that joinder of all members is
impractical.In view of the exigencies of the case, a full class certification process under
Bankruptcy Rule 7023 is substantially impractical. However, having a class representative and
class counsel will expedite and promote fairness in the process. The court can streamline the
FRCP Rule 23 requirements under Bankruptcy Code Section 105 to find that the prerequisites
under FRCP Rule 23 (a) apply, that the conditions of FRCP Rule 23(b) (1)(A) or (B) or (2) apply
and based thereon select counsel who the court finds is competent and properly motivated to
represent the interests of the class.At least some if not all of the customers whose wine is segregated also may claim
to own wine that is not segregated, and the Court may find that the appointment of counsel for two
classes is unnecessary: that a claim to title may be sufficiently based purely on documentation
rather than physical placement. Accordingly, one counsel may be sufficient to represent the
interests of both types of claimants.
The Trustee needs the services of Brian Nishi to navigate the debtorâs accounting systems and to assist him in the understanding of the debtorâs business and transactions. Nishi is a recipient of apparent preferential transfers and the U.S. Trustee objects to his employment because
he is therefore not disinterested. If the Trustee is not allowed to employ him, the process proposed above most likely will not be fair and will not work.
Thanks, Ryan! ![[cheers.gif]](/uploads/db3686/original/2X/0/0ff9bfcdb0964982cd3240b6159868fbdf215b1a.gif "cheers"){kind=small}
Ryan,
Yes, thank you for these updates. Please keep them coming, much appreciated.
Where in-stock but undelivered wine is considered part of the bankruptcy estate,
because the intended buyer has not taken physical possession and not perfected
a security interest, becoming a general unsecured creditor is reasonable. Moreover,
filing an insurance claim for property theft may also be difficult, unless the insurer
chooses to pay for fraud loss or to maintain customer good will.
Well done, Ryan. I appreciate the updates!
Victor: so if wine is in stock, boxed with my name on it and PC took my cc for shipment Jan 11, are you saying that wine too should be part of debtors estate? If in doubt, is there preference issue?