In re Tribune Media Co.
| Decision Date | 03 March 2020 |
| Docket Number | Case No. 08-13141 (BLS) |
| Citation | 616 B.R. 475 |
| Parties | IN RE: TRIBUNE MEDIA COMPANY, et al., Debtors. |
| Court | U.S. Bankruptcy Court — District of Delaware |
Amy C. Andrews, Sidley Austin LLP, Chicago, IL, Norman L. Pernick, Patrick J. Reilley, J. Kate Stickles, Cole Schotz P.C., Wilmington, DE, Nathan Siegel, Davis Wright Tremaine LLP, Washington, DC, for Debtors.
Kimberly A. Brown, Richard Scott Cobb, Jeffrey R. Drobish, J. Landon Ellis, Landis Rath & Cobb LLP, Holly M. Smith, Gellert Scali Busenkell & Brown, LLC, Wilmington, DE, Jason Goldsmith, Deborah J. Newman, David M. Zensky, Akin Gump Strauss Hauer & Feld LLP, Hal Neier, Friedman Kaplan Seiler Adelman LLP, New York, NY, for Trustees.
Herman Melville's Moby Dick is often held up as the greatest American novel. Grueling and esoteric, it follows a crew of sailors striking out on the seas, resisting illness and starvation to mete out a living in the dramatic backdrop of an untamed and hostile wilderness. At its center is the enigmatic Captain Ahab. Famously, Ahab leads his crew on an obsessive pursuit of an unnamed evil, embodied in a white whale, with the hope to ultimately "wreak [his] hate" upon the animal. Depending on the interpretation of the reader, Melville's account of Ahab could be seen as an exultation or an indictment of an individual's single-mindedness.
Mr. Robert Henke is not Captain Ahab. He was, however, the subject of an article that appeared in the Baltimore Sun newspaper2 in 2007 entitled "A Modern-Day Ahab – In pursuit of geologic immortality, inventor Robert Henke has sacrificed everything: comfort, career, family."3 Believing the article had caused him harm, Mr. Henke filed a defamation lawsuit against the Baltimore Sun in Maryland state court seeking $100 million in damages.4
Tribune Company and its affiliates, including the Baltimore Sun, (collectively, the "Debtors") filed Chapter 11 petitions on December 8, 2008. Mr. Henke filed two claims against the Debtors based on the state court defamation complaint.5 The Debtors objected to Mr. Henke's claims.6 Following a hearing before the Honorable Kevin J. Carey, the Court sustained the Debtors' objection to Mr. Henke's claims and the claims were disallowed.7
Mr. Henke appealed that decision to the United States District Court for the District of Delaware. On February 15, 2019, the District Court ruled that Mr. Henke, who represented himself pro se , did not receive adequate notice that his hearing before Judge Carey was an evidentiary hearing on the merits and "was not afforded a fair chance to submit evidence to support his claim."8 Therefore, the District Court vacated the Bankruptcy Court order sustaining the Debtors' objection to Mr. Henke's claims and remanded the matter to the Bankruptcy Court.9
After remand, the Bankruptcy Court held a status conference on the Claim Objection.10 On May 7, 2019, the Court approved a stipulated discovery schedule signed on May 2, 2019 by Mr. Henke and counsel for the Debtors.11 The Scheduling Order provided that Mr. Henke could prepare and serve discovery requests (including requests for production of documents, requests for admissions, or interrogatories), and the Baltimore Sun would respond to those requests no later than 18 days after receipt.12 The Scheduling Order also set June 20, 2019 as the date for the new evidentiary hearing on the Claim Objection.13
On May 14, 2019, Mr. Henke filed a document seeking, in part, to extend discovery deadlines.14 On May 23, 2019, the Court held an initial status conference to discuss, among other things, Mr. Henke's request. At the status conference, Mr. Henke confirmed that he sent discovery requests to the Debtors and was awaiting answers.15 The Court advised Mr. Henke that he should be prepared to submit "evidence in support of [his] claims ... any documents and any information and materials" at the June 20, 2019 evidentiary hearing.16 The Court further advised Mr. Henke that he should arrange for any witnesses who may have relevant testimony to appear at the hearing.17 The Court directed the parties to confer regarding documents to be submitted at the evidentiary hearing and the filing of any pretrial statements so that neither side would be surprised.18 The Court set a further status conference for June 17, 2019 (after Mr. Henke should have received responses to the discovery requests, but before the evidentiary hearing), to determine whether there was a basis for adjourning the June 20, 2019 hearing date.19
The Court held two further status conferences on the Claim Objection to ensure that any pre-trial discovery disputes were resolved and to ensure that the parties had adequate time to prepare to present evidence at the hearing.20 The Court agreed to move the evidentiary hearing to from June 20, 2019 to July 2, 2019. On June 27, 2019, Mr. Henke sent a document entitled "Evidence for evidentiary hearing of July 2, 2019"21 to the Debtors. The Debtors filed an Agenda with the Court prior to the evidentiary hearing which included a copy of the Henke Evidence Document.22
On July 2, 2019, the Court held an evidentiary hearing on the Claim Objection. The Debtors called one witness: the author of the article, Mr. Gadi Dechter, who testified credibly and at length. Mr. Henke declined to cross-examine Mr. Dechter and he did not call any witnesses of his own.23 Mr. Henke did, however, submit boxes of documents into evidence.24 On August 5, 2019, the parties gave their closing arguments on the Claim Objection via teleconference.25 This matter is now ripe for disposition.
For the reasons that follow, the Court will sustain the Reorganized Debtors' Claim Objection and disallow Mr. Henke's claims.
Mr. Henke and his wife, through their small firm called Dynamic In Situ Geotechnical Testing, spent years developing a new earthquake engineering geotechnical (soil) testing technology (the "Technology"), and bringing the Technology into practice.26 The Technology was described as:
intended solely to advance the ability to engineer critical constructed facilities (for instance, highway bridges, hospitals, schools, and power plants) to resist earthquakes. The test provides, for soil deposits that may support such facilities, information on soil deformation characteristics that can greatly affect how facilities behave during earthquakes. Such information is needed in earthquake engineering to predict, for example, the motions of constructed facilities.27
Mr. Henke and his wife, however, faced numerous hurdles in completing their research and development of the Technology. In 2006, Mr. Henke was pressing various sources for an investigation of "three decades of official and professional misconduct" that prevented the advancement of the Technology and drove Mr. Henke, his wife and their firm to a state of ruin.28 Mr. Henke alleged that the misconduct included "the possibilities of the manipulation of grant competitions, theft from proposals, retaliation and a breakdown in safeguards."29
Mr. Henke alleges that the campaign to thwart the advancement of the Technology began with his time on the faculty at Johns Hopkins University (the "University") between 1985 and 1989.30 He alleges that the University became hostile and retaliated against him for his actions as an academic "whistleblower" when he charged students with plagiarism and was unwilling to engage in grade inflation.31
After leaving his position at the University, Mr. Henke devoted his full efforts to his firm and the Technology. Mr. Henke avers that he, his wife and the firm made "remarkable progress" with the Technology, paid for through government and private support, as well as their own significant personal investment.32 Such progress included designing and constructing three costly prototype systems, laboratory testing, field tests, and publishing their work in a series of articles in a leading international journal on earthquake matters.33
However, as Mr. Henke submitted funding proposals to governmental agencies, including the National Science Foundation (the "NSF"), he grew concerned that the process was being "manipulated to insure the failures of our proposals."34 He alleges that his proposals were "being treated improperly," for example, being placed in inappropriate competitions or receiving comments by reviewers that were "technically absurd."35 Suspecting bias, Mr. and Ms. Henke sued the NSF and the National Institute of Standards and Technology ("NIST") in the early 1990's for refusing to reveal the names of the peer reviewers who examined their proposals.36 Ultimately, the lawsuits were unsuccessful.37
Mr. Henke also became concerned about the possibility of theft of ideas from his proposals and he requested that the Office of the NSF's Inspector General investigate the matter.38 The investigation took place over 2½ years, but the investigator wrote in a letter dated April 1, 1996 that there was "insufficient substance to support further inquiry."39 Mr. Henke questioned the results of the investigation, and a second investigator was assigned to review the inquiry. Around August 23, 2000, the second inquiry ended without satisfaction to Mr. Henke.40
Mr. Henke also found it suspicious when his long-standing relationship with the Federal Highway Administration dissolved in May 2001 under "highly irregular circumstances."41 Similar questions arose when his firm's "good faith collaborative arrangement" with a Japanese research institute fell apart.42
In 2006, Mr. Henke wrote letters seeking investigations into the perceived irregularities he faced in obtaining government funding for his research. He wrote to a United States senator who, at the time, was the "ranking member of the committee charged with oversight of the Offices of the Inspectors General," and to the Chair of the University's Board of Trustees.43
On November 30, 2006...
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Henke v. Tribune Media Co. (In re Tribune Media Co.)
...timely filed claims in the bankruptcy against the Sun in 2009, one of which he amended in 2012. In re Tribune Media Co. , 616 B.R. 475, 479 nn. 4 & 5 (Bankr. D. Del. 2020). The Sun objected. Id . at 479 n.6. The bankruptcy court held a hearing in 2012. Id. at 479. In 2016, it denied the cla......