Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2003

In Re: USN Comm Inc
Precedential or Non-Precedential: Non-Precedential

Docket 02-2865




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Recommended Citation
"In Re: USN Comm Inc " (2003). 2003 Decisions. Paper 713.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/713


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                                                    NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 02-2865


                         IN RE:

             USN COMMUNICATIONS, INC.,
                          Debtor

          SCOTT PELTZ, as Liquidating Trustee
              of the USN Liquidating Trust,
          Successor to USN Communications, a
                  Delaware Corporation,
                                   Appellant

                           v.

                 MARK HATTEN;
 TRIUMPH-CONNECTICUT LIMITED PARTNERSHIP,
          a Connecticut Limited Partnership;
SOLOMON SCHECHTER DAY SCHOOL OF GREATER
         HARTFORD, INC., a non-for-profit
                educational institution;
   FSC CORPORATION, a Massachusetts corporation;
HATTEN COMMUNICATIONS HOLDING COMPANY,
              a Connecticut corporation


APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE DISTRICT OF DELAWARE
                D.C. Civil No. 00-cv-00996
   District Judge: The Honorable Roderick R. McKelvie


        Submitted Under Third Circuit LAR 34.1(a)
                    March 4, 2003
                         Before: ROTH, BARRY, and FUENTES, Circuit Judges

                                     (Opinion Filed: March 25, 2003)


                                                OPINION
                                              ____________


BARRY, Circuit Judge

          Appellant Scott Peltz, liquidating trustee for the USN Liquidating Trust, successor

to debtor USN Communications, Inc. (“USN”), brought this action seeking to avoid USN’s

transfer of approximately $68 million to appellees, owners of Connecticut Telephone and

Connecticut Mobilecom (collectively “CT Tel”), in exchange for all of their equity in CT

Tel and retirement of all of CT Tel’s outstanding debt. Appellant alleged that the $68

million transfer was constructively fraudulent under 11 U.S.C. § 548(a)(1)(B) because

USN did not receive “reasonably equivalent value” in exchange for the transfer, and because

the acquisition rendered USN insolvent. After a bench trial, the District Court found that

appellant had not satisfied his burden of proving by a preponderance of the evidence that

$68 million was an unreasonable price for CT Tel at the time it was purchased or that the

acquisition rendered USN insolvent. The District Court had jurisdiction pursuant to 28

U.S.C. § 1334(b). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and will

affirm.

          Because the parties in this case consented to a bench trial, we must affirm the

District Court’s factual findings unless they were clearly erroneous. Fed. R. Civ. P. 52. At


                                                      2
trial, the primary evidence introduced by appellant consisted of expert testimony and

analysis concerning the actual reasonable value of CT Tel and the insolvency of USN at the

time of the acquisition, which was countered in turn by expert testimony and analysis

presented by appellees. Our thorough review of the record yields no evidence which

suggests that the District Court’s factual findings that the $68 million price paid by USN to

acquire CT Tel was reasonable and that the acquisition did not render USN insolvent were

clearly erroneous. Accordingly, we will affirm the judgment of the District Court for

substantially for the reasons articulated in its thorough, accurate, and well-reasoned 82-

page memorandum opinion. It was well within the District Court’s prerogative as finder of

fact to choose not to rely on the speculative testimony of appellant’s experts as colored by

hindsight and the interests of litigation, especially when the $68 million price paid for CT

Tel was the product of arm’s-length negotiations between knowledgeable, sophisticated

parties, advised by reputable financial and legal professionals.




                                                          /s/ Maryanne Trump Barry
                                                          Circuit Judge