- The Washington Times - Monday, April 9, 2012

Not yet two years after the Department of Energy awarded $43 million in loan guarantees for Beacon Power’s energy storage plant, government attorneys are calling the bankrupt solar company and its affiliates little more than “empty shells” benefiting lawyers and other bankruptcy professionals.

Often overshadowed by the high-profile collapse of another federally backed solar company, Solyndra LLC, Beacon Power also went bankrupt last year. But unlike Solyndra, which failed to find a buyer, Beacon Power announced last month that it had been acquired by a private equity firm.

Still, the deal, along with the fees for bankruptcy attorneys and other consultants, have come under sharp scrutiny from Justice Department lawyers representing the Department of Energy as a creditor in the ongoing bankruptcy case, according to newly filed court records.

Government attorneys also are criticizing what they said were early estimates by the Massachusetts-based company that its New York plant was worth $68 million and its so-called “flywheel intellectual property” held a value of $28 million to $47 million.

“Those representations proved to be wildly off the mark, and today debtors are empty shells with no interest in the disposition of their remaining assets, consisting of a pot of cash woefully insufficient to pay even its administrative claims,” Justice Department attorney Victor W. Zhao wrote in a filing last week in U.S. Bankruptcy Court in Delaware.

Mr. Zhao went on to state that “without regard to their fiduciary interests, the debtors are promulgating a construct to siphon the overwhelming portion of the estates’ remaining cash to pay their own professionals.”

The accusations were made in a legal motion in which Mr. Zhao also asked the bankruptcy judge overseeing the Beacon Power case to convert it from a Chapter 11 reorganization to a Chapter 7 liquidation under the federal bankruptcy code.

William Baldiga, managing director of litigation and restructuring at Brown Rudnick LLP, which represents Beacon Power, defended the firm’s fees and the sale of Beacon to the private equity firm Rockland Capital.

“We don’t think the case should be converted,” he said in a phone interview Monday. “Conversion doesn’t accomplish anything.”

He said the deal selling off Beacon’s assets was the best result, but it proved more complicated and expensive than a simple liquidation.

He also said the Energy Department stands to get back about 70 percent of what it was owed, a far better return compared with Solyndra, where taxpayers aren’t expected to recover anywhere near as high a percentage of their roughly half-billion-dollar investment.

“We appreciate that the DOE has an agenda and they need to say a lot of sharp things … but we’re not going to respond in kind,” he said, referring to publicity surrounding the Department of Energy’s loan program and the Solyndra bankruptcy.

“There’s no other way to explain the shrillness of their papers,” he said. “We’ve had a great result with no drama.”

In recent court filings, Beacon attorneys noted that “despite long odds, the debtors achieved a highly successful outcome” through the sale to Rockland Capital.

A judge is expected to take up the fee dispute in a hearing this week. Beacon also wants a judge to dismiss the bankruptcy case, asking that the court retain limited jurisdiction to oversee the fee dispute with the government.

Beacon attorneys said all of the company’s assets have been sold off, so there is no longer any business to reorganize, nor are there any funds to confirm a plan of liquidation.

“By continuing in bankruptcy, the debtors would likely incur additional administrative expenses beyond their ability to pay,” the company argued in court papers.

But government attorneys argued in court papers last week that the case ought to be converted to a Chapter 7. According to those filings, the conversion would allow for the appointment of a trustee to “make an independent and true fiduciary judgment” about millions of dollars in fees for bankruptcy professionals.

Beacon’s bankruptcy was filed less than two years after Energy Secretary Steven Chu announced a $43 million loan guarantee to the company for its flywheel energy storage plant in New York.

After the company’s bankruptcy last year, the Energy Department said in a statement that declining natural gas prices and increased competition, among other factors, had placed “enormous financial strain” on Beacon. The statement also noted that the Energy Department’s loan was awarded to Stephentown Regulation Services LLC, not to the parent company, Beacon Power.

Both Stephentown Regulation and Beacon Power filed for bankruptcy, and the cases were joined in U.S. Bankruptcy Court in Delaware.

• Jim McElhatton can be reached at jmcelhatton@washingtontimes.com.

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