An Agripool catcher bag.
The Bankruptcy Appellate Panel of the Sixth Circuit today upheld a bankruptcy judge’s failure to infer that missing emails would have hurt a creditor’s "ordinary course of business" defense. The trustee of the debtor, a lawn mower maker, sought to recover a "preference" payment that the debtor made to a catcher bag manufacturer within 90 days before the debtor filed for bankruptcy protection. The bag supplier, an Italian company, Agripool, invoked the ordinary course of business defense, contending that it made no unusual efforts to collect from the debtor during the 90-day preference period. The trustee, in turn, asked the bankruptcy judge to infer the opposite as a result of the vendor’s failure to produce emails from the relevant time period. The bankruptcy judge didn’t draw the inference and concluded that Agripool established its defense. The Sixth Circuit’s Bankruptcy Appellate Panel held that the court didn’t abuse its discretion in that respect. Kaye v. Agripool, SRL (In re Murray, Inc.), No. 07-8064 (6th Cir. B.A.P. July 23, 2008).
The Panel nonetheless reversed, concluding that Agripool’s expert relied on, um, unreliable information in opining that the payments to Agripool fell within ordinary commercial terms for the relevant industry.
