Recent Developments

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Business Bankruptcy Issues Recent Developments

Supreme Court Bids Adieu To Plans Denying Secured Creditors The Right To Credit Bid

On May 29, 2012, only a little more than a month after the April 23, 2012 oral argument in the case, the U.S. Supreme Court issued its decision in RadLAX Gateway Hotel, LLC, et al. v. Amalgamated Bank on the question of "credit bidding." You can get a copy of the opinion by following the link in this sentence. (You are also welcome to follow my Twitter feed @BobEisenbach for updates; I tweeted a link to the opinion the afternoon it was issued.)

The Circuit Split. The Supreme Court took the case to resolve a split between the circuits on this issue. In an earlier case, In re Philadelphia Newspapers, LLC, 599 F.3d 298 (3d Cir. 2010), the Third Circuit had confirmed a plan of reorganization that prevented credit bidding, and the Fifth Circuit had done so in a case involving an asset transfer under a plan, which was considered to be a sale. However, in the RadLAX case, decided as River Road Hotel Partners, LLC, et al. v. Amalgamated Bank, 651 F.3d 642 (2011), the Seventh Circuit took the opposite view. It rejected proposed bidding procedures that would have precluded the secured creditor from credit bidding at an auction contemplated by the plan of reorganization.  For more analysis of these issues and the split in the circuits, follow the link in this sentence to the Winter 2012 edition of Cooley’s Absolute Priority newsletter.

The Supreme Court’s Decision. By an 8-0 vote (Justice Kennedy did not participate), the Supreme Court held that a secured creditor has a right to credit bid its secured debt under a Chapter 11 plan of reorganization that provides for a sale of its collateral. The decision affirmed the Seventh Circuit’s decision rejecting the bidding procedures in the RadLAX case.

  • The issue is important because with a "credit bid," a secured creditor is able to acquire the assets being sold by using its debt, up to the amount it’s owed, without having to pay cash upfront for the assets. It can be challenging for secured creditors to raise large amounts of cash, especially when a syndicate of lenders (or, as the Supreme Court noted, the Federal Government) is involved, even though presumably they will later be paid back out of the sale proceeds.
  • Secured creditors argue that, without the right to credit bid, for these reasons they would be unable to participate in the sale and their collateral could be sold for an unreasonably low price.
  • Debtors argue that a secured creditor’s credit bid could chill bidding by third parties, particularly if the secured creditor’s debt, and thus potential credit bid, is substantially higher than what a cash bidder would be likely to pay.

Indubitable What? The Bankruptcy Code requires that if a secured creditor objects to a plan, it must receive "fair and equitable" treatment, a term of art under Section 1129(b)(2)(A) of the Bankruptcy Code. That section provides that "fair and equitable" means that a secured creditor must either (i) retain its lien and be paid deferred cash payments, (ii) be entitled to credit bid at a sale of its collateral, or (iii) realize the "indubitable equivalent" of its claim. The RadLAX debtor was attempting to sell its assets (the secured creditor’s collateral) without permitting the secured creditor to credit bid, pay the resulting sale proceeds to the secured creditor, and "cram down" this treatment over the secured creditor’s objection, arguing that it constituted the "indubitable equivalent" of its claim. 

The legal issue at the core of the decision involved the interpretation of Section 1129(b)(2)(A)(ii) and (iii) of the Bankruptcy Code. In RadLAX, although the Supreme Court did not decide what "indubitable equivalent" means, it held that even though Section 1129(b)(2)(A)(iii) may appear to permit a plan to provide a secured creditor with the "indubitable equivalent" of its claim, when a plan provides for a sale of the secured creditor’s collateral, it must permit the secured creditor to credit bid under Section 1129(b)(2)(A)(ii).

  • Section 1129(b)(2)(A)(ii) provides that when a plan of reorganization calls for a sale of a secured creditor’s collateral, the sale is "subject to Section 363(k)," which permits a credit bid as discussed below.
  • The Supreme Court held that the "indubitable equivalent" alternative may be available in some situations, but it’s not an option when the Chapter 11 plan of reorganization calls for a sale of the secured creditor’s collateral.
  • Although the RadLAX case involved a Chapter 11 plan sale, typical bankruptcy sales do not. Far more often, sales are conducted, separately from a plan, under Section 363 of the Bankruptcy Code. Section 363(k) specifically provides that a secured creditor has a right to credit bid and offset its secured claim at such a non-plan Section 363 sale, absent "cause" to take that right away. No such "cause" was present in the RadLAX case, and the Supreme Court held that Section 363(k)’s credit bid right applied.

An "Easy" Decision. Ultimately, as the unanimous decision reflects, the Supreme Court held that this was "an easy case," that the debtor’s reading of Section 1129(b)(2)(A) was "hyperliteral and contrary to common sense," and that the more specific provisions of subsection (ii) controlled over the general "indubitable equivalent" language of subsection (iii). The Supreme Court’s decision should put to rest efforts to sell a secured creditor’s collateral without allowing for credit bids, except in cases where there are issues with the validity of the secured creditor’s secured claim or cause exists under Section 363(k) of the Bankruptcy Code.

Business Bankruptcy Issues Recent Developments

Winter 2012 Edition Of Bankruptcy Resource Now Available

The Winter 2012 edition of the Absolute Priority newsletter, published by the Bankruptcy & Restructuring group at Cooley LLP, of which I am a member, has recently been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of the newsletter. You can also subscribe to the blog to learn when future editions of the Absolute Priority newsletter are published, as well as to get updates on other bankruptcy and insolvency topics.

The latest edition of Absolute Priority covers a range of cutting edge topics, including:

  • The Supreme Court’s recent Stern v. Marshall decision and its impact on the ability of bankruptcy courts to enter final judgments in certain cases;
  • Recent decisions on the ability of secured creditors to credit bid their debt in bankruptcy asset sales;
  • Issues involving the recharacterization of debt as equity; and
  • The ability of directors and officers to obtain coverage under a D&O liability policy purchased by a bankrupt company.

This edition also reports on some of our recent representations, including our work for official committees of unsecured creditors in Chapter 11 cases involving major retailers and others. Recent committee cases include Blockbuster, Orchard Brands, Alexander Gallo Holdings, Claim Jumper, Signature Styles, Urban Brands, and Mervyn’s Holdings, among others.

I hope you find the latest edition of Absolute Priority to be of interest.

Business Bankruptcy Issues Recent Developments

Amendments To Federal Bankruptcy Rules, Official Forms, And Federal Rules Of Evidence Are Now In Effect

Bankruptcy Rule Amendments. As reported in a post last month, this year’s amendments to the Federal Rules of Bankruptcy Procedure have now taken effect today, December 1, 2011.

Amended Official Bankruptcy Forms. In addition to the national bankruptcy rules, revisions have been made to a number of the official bankruptcy forms. This sentence contains a link to a set of these updated official forms.

Amended Federal Rules Of Evidence. Finally, a restyled edition of the Federal Rules of Evidence also goes into effect today; follow the link in this sentence for the revised evidence rules. Although the substance of the rules of evidence has not changed, revisions in the numbering of some subsections and the style of how the rules are phrased have been implemented.

Business Bankruptcy Issues Recent Developments

Amendments To The Federal Bankruptcy Rules, Including Rule 2019, To Take Effect December 1, 2011

Almost every year, changes are made to the set of rules that govern how bankruptcy cases are managed — the Federal Rules of Bankruptcy Procedure. The changes address issues identified by an Advisory Committee made up of federal judges, bankruptcy attorneys, and others. There are seven amendments to the national bankruptcy rules this year. Some affect bankruptcy cases involving individuals but major revisions have been made to Rule 2019, which governs disclosures by ad hoc committees and groups of creditors or equity security holders in Chapter 11 business bankruptcy cases and in Chapter 9 municipality cases. All of the new amendments will take effect on December 1, 2011, barring unlikely action by Congress.

Read All About It. A copy of the Advisory Committee’s report, together with a redline of the new rule amendments, is available by following the link in this sentence. The report also includes the Advisory Committee’s notes on each new or amended rule.

Significant Revisions to Rule 2019: Controversy Resolved? Over the past several years, Rule 2019, the national bankruptcy rule regarding disclosure by unofficial committees and groups of hedge fund and other investors, has been the subject of much litigation and a number of conflicting court decisions, including opposite views from different bankruptcy judges in Delaware. Follow the link in this sentence for a collection of previous posts on the blog discussing those past decisions and the controversy surrounding old Rule 2019.

In an attempt to put the controversy to rest, the Advisory Committee drafted, and the Supreme Court has approved, a new Rule 2019, which will take effect on December 1, 2011. It requires disclosure in Chapter 11 and Chapter 9 cases by unofficial committees, groups and entities consisting of or representing multiple creditors or equity security holders that are (1) acting in concert to advance common interests, and (2) not composed entirely of affiliates or insiders of each other, and which take a position before the court or solicit votes on confirmation of a plan.

The new rule focuses on the nature and purpose of the committee or group, rather than how it names itself. In contrast, old Rule 2019 covered entities and committees, leading to disputes over whether a self-designated "group" had to make disclosures. Also dropped from the final version of new Rule 2019 was language from the initial proposed rule amendments that would have permitted the court to require disclosure of the amount paid for a disclosable economic interest, another topic of much prior controversy. 

Disclosable Economic Interest. Amended Rule 2019 is built around the defined term "disclosable economic interest," which is defined to mean the following:

Any claim, interest, pledge, lien, option, participation, derivative instrument, or any other right or derivative right granting the holder an economic interest that is affected by the value, acquisition, or disposition of a claim or interest.

Required Disclosures Under Rule 2019. A covered group or committee will be required to file a verified statement disclosing facts and circumstances on the following topics listed in new Rule 2019(c):

  • The group or committee’s formation;
  • Any entity’s employment and the party at whose instance the employment was arranged;
  • Each member’s and entity’s name, address, and nature and amount of their disclosable economic interest;
  • For each member of a group or committee claiming to represent any entity beyond the group’s members, the date of acquisition by quarter and year of each disclosable economic interest, unless acquired more than a year before the bankruptcy petition was filed; and
  • Where applicable, a copy of any instrument authorizing the entity, group, or committee to act on behalf of creditors or equity security holders.

If any material changes have occurred since the group or committee’s last statement, a supplemental statement must be filed whenever the group or committee takes a position before the court or solicits votes on confirmation of a plan.

Consequences of Non-Compliance With Rule 2019. A party in interest or the court on its own motion can determine whether there has been any failure to comply with the new Rule 2019’s requirements. If so, the court may refuse to permit the group or committee from being heard in the case and/or hold invalid any authority, objection, or plan votes made or obtained by the non-complying entity, group or committee, as well as grant any other appropriate relief.

Other Business Bankruptcy Rule Amendments. In addition to Rule 2019, three of the other new amendments directly impact business bankruptcy cases.

  • New Rule 1004.2 applies in Chapter 15 cross-border bankruptcy cases. It requires that any petition for recognition of a foreign proceeding under Chapter 15 of the Bankruptcy Code state the center of the debtor’s main interests (aka, "COMI"), as well as each country in which a foreign proceeding involving the debtor is pending. The rule is designed to help identify whether the foreign proceeding is a foreign main or nonmain proceeding.
  • Amended Rule 2003(e) will require the United States Trustee or designee to file a statement specifying the date and time to which any Section 341(a) meeting of creditors has been adjourned. This rule amendment was included to be sure that creditors who did not attend a meeting of creditors could learn when the continued meeting will take place, information that sometimes was known only to those who attended the original meeting.
  • Rule 6003, discussed in this prior blog post on the 2007 rule amendments, has been amended to clarify that although a court cannot, absent immediate and irreparable harm, enter an order during the 21 days after a petition has been filed on certain matters, including employment of professionals, it can enter an order after those first 21 days that grants relief effective as of a date prior to entry of the order, i.e., as of the petition date.

Rule Amendments for Individual Bankruptcy Cases. The balance of the new rule amendments involve cases in which the debtor is an individual.

  • Amended Rule 3001(c), governing proofs of claim, requires in an individual debtor’s case that an itemized statement of interest, fees, expenses or other charges be filed with the proof of claim. If a security interest is claimed in the debtor’s property, a statement must also be included giving the amount required to cure any default. If the property involved is the debtor’s principal residence, the proof of claim must attach, and give the information required by, a new official form addressing this rule change, and also must include information related to any escrow account. Penalties for non-compliance can include barring the claimant from presenting the omitted information in any contested matter or adversary proceeding, and an award of reasonable attorney’s fees and expenses caused by the failure.
  • New Rule 3002.1, related to claims secured by a Chapter 13 debtor’s principal residence, sets forth a number of additional requirements when the claim is provided for under Section 1322(b)(5) of the Bankruptcy Code. The new rule details required information related to post-petition fees, expenses, and charges, as well as procedures for determining those amounts and the final cure amount.
  • Rule 4004(b) has been amended to allow a party in interest, under certain circumstances, to seek an extension of time to file an objection to a debtor’s discharge after the deadline for filing such objections to discharge has already expired.

Updated Official Forms. As mentioned, some of the pending amended rules will require revisions in official bankruptcy forms. You can find the proposed revised forms, which will be formally released on December 1, 2011 (unless Congress surprises us and prevents the amendments from taking effect), by following the link in this sentence.

Conclusion. For business bankruptcy professionals, and companies and investors involved in Chapter 11 bankruptcy cases, the most important change to the Federal Rules of Bankruptcy Procedure this year is the newly revised Rule 2019. However, several of the other amendments also will impact Chapter 11 cases, and all are worthy of note.

Recent Developments The Financially Troubled Company

Delaware Supreme Court Affirms Ruling Protecting Managers Of Insolvent LLCs

Creditor Derivative Claims Against Fiduciaries Of Insolvent Corporate Entities. In a 2007 decision in North American Catholic Educational Programming, Inc. v. Gheewalla, et al., 930 A.2d 92 (Del. 2007), the Delaware Supreme Court held that directors of an insolvent Delaware corporation could be sued derivatively by creditors for breaches of fiduciary duty. For a discussion of the case, you may find this earlier post of interest: "Delaware Supreme Court Addresses, For The First Time, Whether Creditors Can Sue Directors For Breach Of Fiduciary Duty When The Corporation Is Insolvent Or In The Zone Of Insolvency." 

What About LLCs? The Gheewalla decision clarified that creditors of a Delaware corporation that is insolvent (but not one only in the "zone of insolvency") can assert derivative claims against the corporation’s directors. That led many to wonder whether the same ruling would be extended to managers of Delaware limited liability companies ("LLCs"), the LLC equivalent of a corporation’s directors. 

The Chancery Court’s Decision. In November 2010, the Delaware Chancery Court answered the question, somewhat surprisingly, with a decisive "no." In CML V, LLC v. Bax, 6 A.3d 238 (Del.Ch. 2010), the Chancery Court held that creditors could not bring derivative actions for breach of fiduciary duty against managers of insolvent LLCs, chiefly because the relevant Delaware LLC Act provision limited standing to bring such suits only to LLC members and their assignees. For a discussion of the Chancery Court decision, follow the link to a November 2010 post on the blog entitled "New Ruling Finds Important Protection For Managers Of Insolvent Delaware LLCs."

The Delaware Supreme Court Decision. The decision was appealed to the Delaware Supreme Court. On September 2, 2011, the Delaware Supreme Court issued an opinion analyzing the Delaware LLC Act and affirming the Chancery Court’s decision. A copy of the Delaware Supreme Court’s opinion is available through this link.

  • The Delaware Supreme Court held that the literal terms of the Delaware LLC Act, specifically 6 Del. C. section 18-1002, limits standing to bring derivative claims only to LLC members and their assignees because the LLC Act provides that only they are "proper plaintiffs." The Delaware Supreme Court held that this statute was unambiguous and expressly limits standing only to LLC members and their assignees. The creditor plaintiff argued that it was "absurd" for the result to be different as between a corporation and LLC, but the Delaware Supreme Court held that the Delaware General Assembly "was well suited to make that policy choice and we must honor that choice." 
  • The plaintiff also claimed that by limiting standing, the statute violated the Delaware Constitution’s prohibition against curtailing the Chancery Court’s jurisdiction to less than the general equity jurisdiction of the High Court of Chancery of Great Britain as it existed in 1792, when Delaware ratified its first constitution. The Delaware Supreme Court rejected the argument holding that, among other reasons, Delaware limited liability companies, unlike corporations, came into existence only in 1992 and therefore did not exist in 1792. In addition, the LLC statute was properly able to both grant and limit derivative standing.

Creditor Options. Recognizing that this standing provision could limit creditor remedies in the event of insolvency, the Delaware Supreme Court discussed one remedial option available to creditors. In footnote 20 of the opinion, the Court stated:

Admittedly, this approach is not the only option the General Assembly had, and we make no normative comment on the General Assembly’s policy choice. Our only purpose here is to explain that limiting derivative standing to members and assignees in a contractual entity like an LLC is not absurd because other interest holders–like creditors–have other options–as, for example, negotiating automatic assignment of membership interests upon insolvency clauses into the credit agreement and requiring the members and governing board to amend the LLC agreement accordingly.

Key Observations. As the Delaware Supreme Court noted, certain creditors may require that the LLC agreement be amended to provide for automatic assignment of membership interests to the creditors upon insolvency. If so, those creditors would then have standing to bring derivative claims. However, absent such provisions, under the Delaware Supreme Court’s decision:

  • Managers of a Delaware LLC will not be subject to derivative claims by creditors if the entity becomes insolvent, although it is far less certain that the standing statute would preclude a bankruptcy trustee from bringing claims on behalf of the LLC itself;
  • An insolvent LLC’s creditors will not have derivative standing to bring potential D&O type claims; and
  • These creditors will be limited to contractual remedies against the LLC to protect themselves. 

Although Delaware LLCs and corporations share many common features, this new Delaware Supreme Court decision makes clear that the automatic derivative standing of creditors upon insolvency is one important distinction.

Business Bankruptcy Issues Recent Developments

Summer 2011 Edition Of Bankruptcy Resource Now Available

The Summer 2011 edition of the Absolute Priority newsletter, published by the Bankruptcy & Restructuring group at Cooley LLP, of which I am a member, has just been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of the newsletter. You can also subscribe to the blog to learn when future editions of the Absolute Priority newsletter are published, as well as to get updates on other bankruptcy and insolvency topics.

The latest edition of Absolute Priority covers a range of cutting edge topics, including:

  • Recent case law on the impact of a confirmed plan on a second bankruptcy filing by a successor to the original debtor;
  • The Second Circuit’s recent decision limiting "gifting" in a Chapter 11 plan;
  • The reach of the Section 546(e) securities transaction safe harbor defense in avoidance actions; and
  • An update on litigation by the Madoff trustee against feeder funds and its broader implications.

This edition also reports on some of our recent representations, including the Chapter 11 bankruptcy case for our client Metropark USA, Inc., and our work for official committees of unsecured creditors in Chapter 11 cases involving major retailers and others. Recent committee cases include Blockbuster, Orchard Brands, ArchBrook Laguna Holdings, Signature Styles, Claim Jumper Restaurants, OTC Holding Corp., Urban Brands, Mervyn’s Holdings, Sierra Snowboard, Trade Secrets, Mt. Diablo YMCA, and Pacific Metro, among others.

I hope you find the latest edition of Absolute Priority to be of interest.

Business Bankruptcy Issues Recent Developments

First Published Court Of Appeals Opinion Issued Answering Whether Trademark Licenses Are Assignable In Bankruptcy

It’s been a long wait, but we finally have a published decision from a U.S. Court of Appeals answering whether a trademark license is assignable in bankruptcy without the licensor’s consent. On July 26, 2011, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in In re: XMH Corp., written by Circuit Judge Richard A. Posner, and a copy of the opinion is available by following the link in this sentence. Until now, the closest we had come to a Court of Appeals decision on this issue was an unpublished affirmance by the U.S. Court of Appeals for the Ninth Circuit of the district court’s decision in In re N.C.P. Marketing Group, Inc., 337 B.R. 230 (D. Nev. 2005). For more on the Ninth Circuit case  including the Supreme Court’s interest in one of the issues in the case, take a look at these earlier posts on the blog, here, here, and here.

The Context. The dispute that led to the Seventh Circuit’s decision arose in the Chapter 11 bankruptcy case of Hartmarx Corporation (which later changed its name to "XMH"). One of its subsidiaries, Simply Blue ("Blue"), which was also in bankruptcy, sold its assets in a Section 363 sale to two buyers (the "purchasers").

  • Among Blue’s assets was an executory contract with Western Glove Works ("Western"), which Blue sought to assign to the purchasers. Western objected, arguing that the contract could not be assigned because it was a sublicense to Blue of a trademark licensed by Western. The bankruptcy court agreed with Western and XMH appealed. 
  • That’s when things got a little complicated. While XMH’s appeal was pending, Blue and the purchasers amended the contract. Under the amendment, title to the contract was left with Blue but the purchasers assumed all of Blue’s contractual duties, together with the right to receive all fees to which Blue was otherwise entitled. The bankruptcy court approved the amendment and Western appealed from that decision.
  • In the meantime, the district court reversed the bankruptcy court’s original decision holding that the contract could not be assigned, effectively allowing the original contract to be assigned. Western appealed the district court’s decision and that brought the case to the Seventh Circuit. 

The Court’s Decision. After disposing of a few jurisdictional issues springing from the complicated way the case had played out, the Seventh Circuit reached the merits. The Court first looked to Section 365(c)(1) of the Bankruptcy Code, which limits assignment of an executory contract if "applicable law" permits the non-debtor party to the contract to refuse to accept performance from an assignee, regardless of whether the contract prohibits or restricts assignment. In the XMH Corp. case, the contract did not prohibit or restrict assignment (but neither did it permit it). Western argued that "applicable law" was trademark law because the contract stated that Western was a licensee of a trademark for "Jag Jeans." The Court noted that "Jag" is a federally registered trademark, although "Jag Jeans" is not.

The Court held that if the contract included a trademark sublicense when XMH attempted to assign the contract, it was not assignable. This was true regardless of whether federal trademark law applied, any particular state’s trademark law applied, and also, apparently, even if Canadian law applied (Western is a Canadian company). The Seventh Circuit put it this way:

None of this matters, though, because as far as we’ve been able to determine, the universal rule is that trademark licenses are not assignable in the absence of a clause expressly authorizing assignment. Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 988 (9th Cir. 2006)(per curiam); In re N.C.P. Marketing Group, Inc., 337 B.R. 230, 235-36 (D. Nev. 2005); 3 McCarthy on Trademarks § 18:43, pp. 18-92 to 18-93 (4th ed. 2010).

After describing how consumers rely on a trademark as an indicator of a good’s quality, the Court explained that if a trademark owner (or licensee sublicensing the mark) allows another company to produce the trademarked goods, it

will not want the licensee to be allowed to assign the license (that is, sublicense the trademark) without the owner’s consent, because while the owner will have picked his licensee because of confidence that he will not degrade the quality of the trademarked product he can have no similar assurance with respect to some unknown future sublicensee.

Because this is the normal reaction of a trademark owner, it makes sense to make the rule that a trademark license is not assignable without the owner’s express permission a rule of contract law–what is called a ‘default’ rule because it is the rule if the parties do not provide otherwise (as they are allowed to do).

Ultimately, the Seventh Circuit held that although the contract included a trademark sublicense, the sublicense had expired and the parties had not designated the contract, post-expiration, as a trademark sublicense. Further, the Court held that the balance of the contract was only a service agreement and not an implied trademark license. The Court also refused to go down the "dark path" of whether a contract could be a trademark license for some purposes but not others. As such, with no actual trademark sublicense in existence at the time of assignment, the default rule discussed above did not apply and the executory contract could be assigned. The Seventh Circuit affirmed the lower courts’ decisions approving the assignment of the contract as amended.

An IP Attorney’s Observations. For the perspective of an in-house intellectual property attorney on the Seventh Circuit’s decision, including helpful links to the trademark and the parties’ underlying agreements, you may find Pamela Chestek’s discussion of the case on her "Property, intangible" blog, interesting reading.

Good News For Trademark Owners. With the Seventh Circuit’s XMH Corp. decision, we now have two Courts of Appeals (the Seventh and Ninth Circuits) on record holding that trademark licenses are not assignable in bankruptcy absent the consent of the trademark owner or sublicensor. While the full force of a decision depends on whether other courts follow its holding, trademark owners will likely find the guidance provided by this decision meaningful, especially given the Seventh Circuit’s observation that the non-assignability of trademark licenses is "the universal rule." That said, how the decision is viewed in other circuits, particularly in Delaware and New York where many large Chapter 11 cases are filed, remains to be seen, so stay tuned.