In what should be one of their last court appearances, lawyers for MTH, Lionel and Sanda Kan (Lionel’s principal manufacturer of trains) appeared in a New York Bankruptcy Court on March 27th.
At the end of the hearing, Judge Burton Lifland approved Lionel’s confirmation plan for reorganization. The court also approved Lionel’s settlement with MTH.
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The following appeared in the February '08 edition of The Lion Roars, the magazine of the Lionel Collectors Club of America and was reprinted here with permission from the authors.
Viewpoint I
by Erol Gurcan
During the last two years, my reviews in TLR have concentrated on less expensive locomotives and train sets. In my view, the two major commercial O-gauge magazines often ignore this segment of the market; they choose instead to concentrate on more expensive trains, as some car magazines focus on exotic, expensive, and powerful automobiles. However, not everyone can afford a $1,000-or more O-scale locomotive and/or has a large layout equipped with O72 minimum radius curves necessary to run it.
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The following article written by Erol Gurcan appeared in the December 2007 issue of The Lion Roars, a periodic publication of the Lionel Collectors Club of America. The '07 holiday season is behind us but there is some interesting info in the article you may not have known plus there is discussion about what to expect from Lionel in 2008.
I recently had the opportunity to speak with some of Lionel’s senior executives including President and CEO Jerry Calabrese, Product Manager Matt Ashba, Chief Technology Officer John Zahornacky, and K-Line by LionelTM Product Manager Nick Ladd. They described what the company is doing this holiday season and for 2008. Here’s a summary of the conversations.
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There was some model train litigation involving Lionel and MTH in two different courts on 1/10/08.
Firstly,
in the New York City Bankruptcy Court, Lionel’s motion for a 7th
extension of the exclusive period in which to file its reorganization
plan, was granted by Judge Lifland. MTH’s lawyer, Alec Ostrow did not
oppose the motion. The court’s order gives Lionel the exclusive right
until March 31 file its plan with the court. Others including MTH may
file alternative plans after that up and until May 30.
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In my last legal article,
(written at the request of the Coil Couplers web site), I stated that
in MTH’s fraudulent transfer of assets lawsuit against Korea Brass aka
Hagye Trading/Model Korea Trading (MKT), the court on November 20, 2007
issued a temporary restraining order (TRO) and entered an order
directing all monies paid by Lionel to Korea Brass were to be deposited
into a court approved interest bearing escrow account. The practical
effect of this was, Lionel, which is not a party in MTH’s lawsuit
against Korea Brass, will not be able to take delivery of trains that
it paid for and which were manufactured by KB, since the money is going
into a court escrow account rather than directly to KB. Ultimately, we
hobbyists will not be able to purchase the trains which are affected in
these legal proceedings, at least for now.
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Lionel’s Harry Potter Hogwarts Express Train Set has
been one of the most anticipated O-gauge train sets this year. Moreover, the fact that it is on the cover of Lionel’s current catalog establishes its significance to the company’s success. The set arrived at hobby and retail stores last month, just in
time for the holiday season.
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Over the last two days, there have been a few posts on the Coil Couplers of America website stating that MTH has cut off Lionel’s supply of locomotives, including some of the new Legacy models, from its supplier Model Korea Trading Company (aka MKT, the company named in the Coil Couplers post of the last two days) due to the court ordered stoppage of payments by Lionel.
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I was in Target this weekend and noticed 3 Lionel trains sets prominently displayed on an end cap in the toy department. The 2 O Gauge "Lionel Lines Super Sets, 1 steam and 1 diesel, were $199.00 each and branded with "Only at Target" on the boxes. There was also a battery operated Polar Express G Scale set for $129.99. "Super Set TrackPacks", a set of O Gauge track pieces and a Polar Express G Scale track pack are being sold for $29.99.
Target.com is also selling other Lionel sets including the O Gauge Polar Express set for $289.99 and the G Gauge Holiday Express set for $279.99. Last year's "Only at Target" Lionel set is also still available for $249.99. Target is offering free shipping on all Lionel sets.
I did notice that the Target web site's description of the Lionel diesel set is a bit different than what was offered in the store. The following is from the website:
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Below is a review of a couple of conventional Lionel locomotives, the Baby Trainmaster and the Junior Mikado, that first appeared in the October '07 issue of the LCCA magazine "The Lion Roars." Articles like this is one of the many benefits in being a member of the LCCA. Enjoy. Erol
I have reviewed two new, inexpensive conventional locomotives – one diesel and one steam.
I. The Baby Trainmaster
In its 2007 Volume 1 Catalog (page 85), Lionel® introduced an all-new locomotive, the Fairbanks Morse H16-44 in New York Central décor, commonly known as the Baby Trainmaster (6-18385). The loco arrived in stores in June 2007. It is also shown in the current 2007 Volume 2 Catalog (page 95).
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My goal is to keep this report short and sweet (a novel concept for a lawyer). Here is the current status of the MTH Lionel settlement as of this morning.
MTH's and Lionel's lawyers were back in bankruptcy court on October 25th. Lionel CEO Jerry Calabrese and Mrs. Martin Davis were present. MTH's Mike Wolf was not. It was not necessary for him to be. I also attended the proceedings.
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It's been about 2 months since I have written anything substantive about the Lionel MTH Trade secrets case or about the status of Lionel's bankruptcy. That's because there was little going on in the proceedings during this period of time. As you may recall, on August 13, MTH filed an appeal concerning Judge Lifland's August 2 rulings in favor of Lionel. On August 2, Judge Lifland ruled that any future trial (the Bankruptcy Code 502(c) damages estimation hearing) in the trade secrets case would be held before him, instead of in the Federal District Court in Detroit Michigan, and granted a fifth extension of time to Lionel to file an exclusive bankruptcy plan with the court. MTH had opposed Lionel's motion for exclusivity and proposed three alternative plans which were rebuffed by Judge Lifland.
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Lionel won two major and important rulings from Judge Lifland in the bankruptcy court this morning. The more important of these was the decision that the future trial (in others words,the Bankruptcy Code section 502c "damages estimation hearing') in the trade secrets case would be tried before the judge, instead of a jury trial in the Federal District Court in Detroit, Michigan. The second important ruling was Lionel was granted a fifth extension of time, giving it the exclusive right to file its bankruptcy reorganization plan.
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Attorneys for both MTH and Lionel were back in a New York Bankruptcy Court on July 10th. Both MTH's Mike Wolf and Lionel's Jerry Calabrese were present. I was present for part of the day.
On the docket were several items, including Lionel's motions seeking court approval to pay its lawyers and accountants etc. the fees earned between January 1, 2007 to April 30, 2007. These motions were unopposed. Judge Lifland approved all of them and entered an order to that effect.
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In my last article, I summarized that Lionel and MTH were in court on June 27th, with Lionel’s attorneys were attempting to convince Bankruptcy Judge Burton Lifland that he should try the trade secrets and separate $17.5 million dollar patent infringement case to expedite their exit from bankruptcy. MTH’s attorneys had cross-moved to send the trade secrets case back for trial to the Federal District Court in Michigan, the court where a jury awarded them $40.7 million dollars in June 2004.
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Lionel and MTH’s attorneys were back in a New York bankruptcy court on June 27th before Judge Burton Lifland. Interestingly, the courtroom was crowded since a lot was potentially riding on the hearing. Lionel’s CEO and President Jerry Calabrese, and Chief Financial Officer Scott Turkington were present in court. They were scheduled to testify and later did. More about that later. Mrs. Martin Davis was present as well. MTH’s Mike Wolf was not.
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In my last article, I stated that Lionel's motion for the damages estimation hearing (which would actually be a trial on this issues of potential liability and damages in the trade secrets case) and MTH's cross-motion to have the trial take place in the Federal District Court in Michigan (the court where the jury awarded MTH $40.7 million dollars on June 7, 2004) were scheduled to be heard in the New York Bankruptcy Court today. However, both motions were adjourned to June 27, 2007. Thus, nothing occurred in court today on this matter.
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MTH has abandoned its plans to seek redress in the United States Supreme Court concerning the trade secrets case. On May 30, 2007, MTH filed a motion (an application for a court order) with the Sixth Circuit Court of Appeals to vacate the 90 day stay that was previously granted by it so they could file a write of certiorari with the US Supreme Court. The Sixth Circuit has not decided the motion yet, but there is no reason to think that they will not grant it. Certainly, Lionel is not going to oppose it, and it will make less work for the US Supreme Court.
So the question becomes, Where do we go from here, or what happens next?
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Lionel filed its bankruptcy reorganization plan with the court on May 21. This was an important and necessary step in moving the trade secrets and patent infringement litigation forward, and in beginning the process to exit from bankruptcy.
I recently reviewed Lionel’s bankruptcy reorganization plan filed with the court. It contains some surprising and interesting legal, financial and hobby related information. Is Lionel opening a new office, now much does Lionel spend a year on new tooling, how much does it earn a year in royalties based on its trademark, and what are MTH’s annual sales based on Lionel’s estimates? If you would like to know the answers to these questions and more, then read on. The information for this post was obtained from Lionel’s reorganization plan filed with the bankruptcy court.
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Lionel and MTH's attorneys were back in a New York bankruptcy court 5/22/07. Lionel CEO Jerry Calabrese was present in court. MTH's Mike Wolf was not.
Lionel's lawyer, Adam Harris quickly informed Judge Lifland that Lionel filed their bankruptcy reorganization plan with the court yesterday. Among the items in the plan is payment in full of all unsecured claims with interest. The plan is necessary in order for Lionel to begin their exit from bankruptcy. Lionel has been in bankruptcy since November 15, 2004, a period of over 2 1/2
years.
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As you may recall, on April 19, 2007, the Sixth Circuit Court of Appeals denied MTH's petition for a rehearing of its December 14, 2006 decision in the trade secrets case. That earlier decision vacated the jury's $40.8 million dollar judgment against Lionel and codefendant Korea Brass, and remanded the case to the District Court in Detroit, Michigan for another trial. Bankruptcy Judge Burton Lifland in New York has stated in the past he will hold a damages estimation hearing in the trade secrets case rather than let another trial take place in Detroit. The two model train rivals were recently holding mediation talks in New York in both the trade secrets case and patent infringement case. The next court date in the bankruptcy court is May 22.
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On April 19, The Sixth Circuit Court of Appeals denied MTH's petition
for a rehearing of its December 14, 2006 decision. That earlier
decision vacated the jury's $40.8 million verdict in favor of MTH in
the trade secrets case, and remanded it to the Eastern District of
Michigan for another trial. While the above news is certainly
important, it is not unexpected. I stated in a post in January that
MTH's chances of prevailing on the petition were small. Additionally,
MTH's Attorney Alec Ostrow stated at least twice at the bankruptpcy
court conference on January 9, 2007 that is was unlikely MTH would
prevail on the petition.
The more important question now
becomes, what is going to happen now that the appeals process is over.
Where do we go from here?
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Lionel's monthly operating report for March 2007, filed with the
bankruptcy court on April 13, 2007, showed net earnings, or profit of
$189,000. While the amount itself is small, it is a profit nonetheless,
which is significant for this time of year. During the calendar year
2006, Lionel did not post a monthly profit during the first seven
months of that year. Additionally, in March 2006, Lionel showed a loss
of $349,000 and in March 2005, a loss of $534,000.
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To model railroad purists the presence of the unrealistic third rail running down the center of O Gauge track is a major drawback to O Gauge model railroading. Even with today's realistic looking modern offerings from Atlas, Lionel, MTH, Gargraves and Ross Custom Switches, that third rail is hard to hide. Back in the heyday of O Gauge railroading, modelers were basically stuck with using the unrealistic looking three rail tinplate track Lionel was manufacturing at the time. Modelers came up with ways to enhance the look of tinplate track by adding extra home made railroad ties and weathering the rails but the third rail still stuck out like a sore thumb. O Gauge enthusiasts didn't seem to mind but those looking to create a more realistic model railroad layout opted for 2 rail O Scale, S Gauge or HO scale. Despite its unrealistic appearance, running electricity through a third rail did simplify the control of automatic accessories and eliminated the need for special wiring on layouts with reversing loops.
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