UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

In re: 

LIBERTY POWER HOLDINGS, LLC, 

Debtor. 

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Chapter 11 

Case No. 21-13797-SMG 

THE PUBLIC UTILITY COMMISSION OF TEXAS’S LIMITED OBJECTION 

TO DEBTOR’S EXPEDITED MOTION FOR THE ENTRY OF AN ORDER 

(1) APPROVING COMPETITITVE BIDDING PROCEDURES FOR THE SALE 

OF SUBSTANTIALLY ALL OF THE DEBTOR’S ASSETS, (2) SCHEDULING 

DATES TO CONDUCT AUCTION AND SALE HEARING, (3) APPROVING 

THE FORM AND MANNER OF NOTICES, (4) APPROVING THE SALE OF 

SUBSTANTIALLY ALL OF THE DEBTOR’S ASSETS FREE AND CLEAR OF 

LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS, (5) APPROVING 

ASSUMPTION AND ASSIGNMENT PROCEDURES FOR EXECUTORY 

CONTRACTS, AND (6) GRANTING RELATED RELIEF 

[Related to Doc. No. 98] 

COMES NOW, the Office of the Texas Attorney General on behalf of the Public Utility 

Commission of Texas (the “PUCT”), and hereby files this limited objection to Debtor’s Expedited 

Motion for the Entry of an Order (1) Approving Competitive Bidding Procedures for the Sale of 

Substantially All of the Debtor’s Assets, (2) Scheduling Dates to Conduct Auction and Sale 

Hearing, (3) Approving the Form and Manner of Notices, (4) Approving the Sale of Substantially 

All of the Debtor’s Assets Free and Clear of All Liens, Claims, Encumbrances and Interests, (5) 

Approving Assumption and Assignment Procedures for Executory Contracts, and (6) Granting 

Related Relief, (Doc. No. 98) (the “Motion”). In support of its limited objection, the PUCT 

respectfully states as follows: 

 

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I. OVERVIEW 

1. The PUCT does not oppose the Debtor’s request to obtain approval of bidding 

procedures. Rather, the PUCT files this limited objection to preserve the PUCT’s regulatory 

interests and rights. The PUCT asserts that the Order and bidding procedure language set forth 

herein regarding the application of utility laws and regulations post-acquisition, will make clear to 

potential bidders that such laws and regulations remain enforceable in the context of this sale and 

will allow for a smoother and faster sale and closing process. 

II. OBJECTION 

A. Potential Purchasers Must Comply with State Laws and Regulations 

2. Any Potential Bidder1

 that ultimately becomes the purchaser of the Assets, as the 

post-acquisition owner or operator, will be obligated to comply with all applicable state laws and 

regulations, just as if the property had been purchased outside of bankruptcy. See In re Oldco M. 

Corp., 438 B.R. 775, 785 (Bankr. S.D.N.Y. 2010) (noting that, even when a bankruptcy sale is 

“free and clear,” the purchaser must comply with applicable legal obligations “starting with the 

day it got the property”); see also In re Welker, 163 B.R. 488, 489 (Bankr. N.D. Tex. 1994) (stating 

that “[n]o subsection of § 363 applies to authorize the trustee to sell free and clear of [governmental 

regulatory] interests.”). 

3. To avoid any ambiguity or confusion on this point with respect to Assets involving 

the provision of electricity in the State of Texas, the PUCT respectfully requests that the following 

language, or language that is substantially similar, be included in the Order entered on the Motion, 

and in the body of the Bidding Procedures: 

 

1

 Any capitalized term not explicitly defined herein shall have the meaning ascribed to it, as applicable, in the 

underlying Motion and Bidding Procedures. 

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Requested Language: 

No Effect on Governmental Regulatory Authority: 

Nothing in the Bidding Procedures Order or the Bidding Procedures or related 

documents discharges, releases, precludes, or enjoins the enforcement of any police 

or regulatory liability to the Public Utility Commission of Texas that any entity 

would be subject to as the post-sale owner or operator of the property after the date 

of the entry of the Bidding Procedures Order or the Sale Order. Nothing in the 

Bidding Procedures Order or Bidding Procedures authorizes the transfer or 

assignment of any governmental (a) license, (b) permit, (c) registration, (d) 

authorization or (e) approval, or the discontinuation of any obligation thereunder, 

without compliance with all applicable legal requirements and approvals under 

police or regulatory law enforceable by the Public Utility Commission of Texas. 

4. Further, the PUCT requests that language similar to the above also be 

included in any Sale Order approving the sale of the Debtor’s Assets. 

B. The PUCT Requests that Potential Bidders be Required to Meet Threshold 

Qualifications to Provide Electric Services in Texas 

5. Under the Texas Administrative Code, Title 16, Section 25.107, in order to 

provide or seek to provide electric service to retail customers in an area in which customer 

choice is in effect, that entity must obtain a certificate to provide retail electric service, 

referred to as a Retail Electric Provider Certificate (“REP Certificate.”) 

6. To clarify this requirement, the PUCT requests that language be added to 

the Bidding Procedures Order and Bidding Procedures providing that to be a “Qualified 

Bidder,” for Assets involving providing electricity in the State of Texas, there must be 

evidence of the prospective purchaser having a valid Retail Electric Provider (REP) 

Certificate pursuant to applicable Public Utility Commission of Texas regulations. 

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PRAYER 

Wherefore premise considered, the PUCT requests that the requested language herein 

be included in the Bidding Procedures Order, Bidding Procedures, and Sale Order, and for 

any other relief that the Court finds the PUCT entitled. 

[Remainder of Page Intentionally Left Blank] 

 

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Dated: May 21, 2021 Respectfully submitted, 

KEN PAXTON 

Attorney General of Texas 

 

BRENT WEBSTER 

First Assistant Attorney General 

 

GRANT DORFMAN 

Deputy First Assistant Attorney General 

 

SHAWN E. COWLES 

Deputy Attorney General for Civil Litigation 

 

SEAN O’NEILL 

Assistant Attorney General 

Deputy Chief, Bankruptcy & Collections Division 

/s/ Jason B. Binford_______ 

JASON B. BINFORD 

Texas State Bar No. 24045499 

LAYLA D. MILLIGAN 

Texas State Bar No. 24026015 

Office of the Attorney General of Texas 

Bankruptcy & Collections Division 

P. O. Box 12548 MC008 

Austin, Texas 78711-2548 

Telephone: (512) 463-2173 

Facsimile: (512) 936-1409 

jason.binford@oag.texas.gov 

layla.milligan@oag.texas.gov 

ATTORNEYS FOR THE PUBLIC UTILITY COMMISSION 

OF TEXAS 

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CERTIFICATE OF SERVICE 

 I certify that a true and correct copy of the foregoing has been served via the Court’s 

Electronic Filing System on all parties requesting notice in this proceeding on May 21, 2021. 

 /s/ Jason B. Binford_________

JASON B. BINFORD 

Assistant Attorney General 

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