UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

www.flsb.uscourts.gov 

In re: Chapter 11 Cases 

LIBERTY POWER HOLDINGS, LLC, Case No. 21-13797-SMG 

LPT, LLC, Case No. 21-15537-SMG 

LIBERTY POWER MARYLAND, LLC, Case No. 21-15539-SMG 

LIBERTY POWER DISTRICT OF 

COLUMBIA, LLC, Case No. 21-15540-SMG 

Debtors. (Jointly administered 21-13797-SMG) 

__________________________________/ 

DEBTORS’ RESPONSE AND OBJECTION TO 

REQUEST OF LYRIA O’BRIEN AND SHAWN O’BRIEN FOR 

ALLOWANCE AND PAYMENT OF AN ADMINISTRATIVE EXPENSE 

Liberty Power Holdings, LLC (“Holdings”), Liberty Power District of Columbia, LLC 

(“Liberty District of Columbia”), LPT, LLC (“LPT”) and Liberty Power Maryland, LLC (“Liberty 

Maryland”) (collectively, the “Debtors”), by and through their undersigned counsel, file this 

Response and Objection (the “Response”) to the Request of Lyria O’Brien and Shawn O’Brien for 

Allowance and Payment of an Administrative Expense [ECF No. 620]. In support thereof, the 

Debtors respectfully represent as follows: 

RELEVANT BACKGROUND 

1. On April 20, 2021, (the “Holdings Petition Date”), Holdings filed a voluntary 

petition in this Court for relief under Chapter 11 of Title 11 of the Bankruptcy Code. Since that 

time, Holdings has operated as a debtor-in-possession pursuant to Sections 1107 and 1108 of the 

Bankruptcy Code. 

2. On June 4, 2021 (the “Subsidiary Petition Date”), the Subsidiary Debtors each filed 

chapter 11 bankruptcy petitions, which bankruptcy cases were jointly administered with the 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 1 of 26
chapter 11 case of Holdings, including to facilitate the sale of all or substantially all of the Debtors’ 

assets, including without limitation, retail customer contracts, pursuant to Sections 363 and 365 of 

the Bankruptcy Code. 

3. As of the date hereof, no creditors’ committee has been appointed in these cases. 

In addition, no trustee or examiner has been appointed. 

4. For a detailed description of the Debtors and their operations, the Debtors 

respectfully refer the Court and parties in interest to the Declaration of Bob Butler, Chief 

Restructuring Officer, in Support of the Chapter 11 Petition and First Day Motions (the “First Day 

Declaration”) [ECF No. 10]. 

5. After the Debtors conducted a fulsome marketing and sale process of the Debtors’ 

assets pursuant to several orders of the Court [ECF Nos. 98, 156, 255, 264, 277, 282, 320, 323], 

on August 20, 2021, the Debtors filed their Expedited Motion (I) to Approve Designation of 

Stalking Horse Bidder, (II) to Approve Asset Purchase Agreement and Related Bid Protections, 

(III) to Clarify/Modify Bidding Procedures, and (IV) for Related Relief [ECF No. 324] (the 

“Stalking Horse Motion”),1

 which Stalking Horse Motion included a fully executed copy of that 

certain Asset Purchase Agreement, dated August 20, 2021, between the Debtors and NRG Retail, 

LLC (the “Buyer”), which agreement was subsequently modified and filed with the Court on 

August 23, 2021 by that certain Notice of Filing Modifications to Stalking Horse Agreement [ECF 

No. 339] (the “Stalking Horse Agreement”). On August 26, 2021, the Court entered an Order 

granting the Stalking Horse Motion [ECF No. 349]. 

6. On August 31, 2021, the Debtor selected the Buyer, NRG Retail LLC, as the 

Successful Bidder for the Purchased Assets as noted in that certain Notice of (I) Cancellation Of 

1 All capitalized terms used herein and not otherwise defined shall have the meanings ascribed them in the 

Stalking Horse Motion. 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 2 of 26
Auction Scheduled For September 1, 2021 At 9:00 a.m., and (II) Designation Of Stalking Horse 

Bidder As The Purchaser [ECF No. 352] (the “Notice of Successful Bidder”). 

7. On September 10, 2021, the Court conducted an evidentiary hearing (the “Sale 

Hearing”) on the proposed sale of the Purchased Assets to the Buyer pursuant to the Debtors’ 

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 [ECF No. 98]. 

8. On September 14, 2021, the Court entered its Order (I) Approving Sale of the 

Purchased As Free and Clear of Liens, Claims, Encumbrances, and Other Interests, (II) 

Authorizing Assumption and Assignment of Certain Executory Contracts and Unexpired Leases 

in Connection Therewith, and (III) Granting Related Relief [ECF No. 385] (the “Sale Order”). 

9. On September 22, 2021, the Debtors and the Buyer closed on the sale of the 

Purchased Assets pursuant to the terms of the Stalking Horse Agreement and the Sale Order. In 

connection therewith, the Debtors and the Buyer have been working diligently to effect a transition 

and transfer of the Customer Contracts to the Buyer, including by providing all required notices to 

customers and regulatory agencies, and by complying with all applicable laws related thereto. 

Pursuant to the Stalking Horse Agreement, until the transfer of the Customer Contracts is 

completed, the Debtors will continue to provide electricity and all related services to their 

Customers whose contracts may be acquired by the Buyer, in accordance with the terms of the 

Customer Contracts. 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 3 of 26
10. On December 29, 2021, the Debtors filed the Debtors’ Expedited Motion (I) To 

Establish a Bar Date for the Filing of Motions Seeking the Allowance and/or Payment of 

Administrative Expense Claims, and (II) to Designate the Form and Manner of Notice of 

Administrative Claims Bar Date (the “Administrative Claim Motion”) [ECF No. 510] and on 

January 12, 2022, the Court entered the Order Granting the Administrative Claim Motion [ECF 

No. 526] (the “Administrative Claims Bar Date Order”) setting the deadline for any party to file 

and administrative claim on or before February 9, 2022. (the “Administrative Claims Bar Date”). 

11. On January 31, 2022, Lyria O’Brien and Shawn O’Brien (together, the “O’Briens”) 

filed Proof of Claim No. 126 in the amount of $125,000.00. The claim was filed as a priority claim 

under 11 U.S.C. § 507(a), but the O’Briens failed to specify the subsection that allegedly applied 

to their claim. On March 11, 2022, the O’Briens amended their Proof of Claim No. 126 to remove 

the priority designation of the proof of claim. 

12. On April 9, 2022, two months after the Administrative Claims Bar Date, the 

O’Briens filed the Request of Lyria O’Brien and Shawn O’Brien for Allowance and Payment of 

an Administrative Expense [ECF No. 620] (the “Request for Administrative Expense”). The 

Request for Administrative Expense seeks $125,000.00 in damages, consisting of time spent, 

emotional damages, and punitive damages, plus reasonable attorneys’ fees and costs. 

RELIEF REQUESTED 

13. Through this Response, the Debtors respond and object to the Request for 

Administrative Expense filed by the O’Briens as both untimely and unsupported by law. For the 

reasons discussed below in detail, the O’Briens are not entitled to the allowance or payment of any 

administrative expense claim in these Chapter 11 Cases as a matter of law. As a result, the Debtors 

assert that the Request for Administrative Expense be denied. 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 4 of 26
A. The Proof of Claim and the Claims Bar Date. 

14. The deadline to file a proof of claim in these Chapter 11 Cases was June 29, 2021. 

See ECF No. 7. The O’Briens filed their initial proof of claim on January 31, 2022, as a priority 

claim under 11 U.S.C. § 507 (the “Initial Proof of Claim”). The O’Briens later, on March 11, 2022, 

amended the Initial Proof of Claim signifying that their claim was not entitled to priority treatment 

(the “Amended Proof of Claim”). The O’Briens did not seek an extension of time to file a proof 

of claim, nor did they file a motion to allow their late filed claim. Accordingly, the O’Briens 

currently hold an unsecured claim pursuant to 11 U.S.C. § 726(a)(2)(C). 

15. On April 9, 2022, the O’Briens filed the Request for Administrative Expense, which 

seeks $125,000.00 of damages plus reasonable attorneys’ fees and costs. The Request for 

Administrative Expense alleges that the O’Briens “filed a timely Proof of Administrative Claim 

with Stretto...on January 31, 2022, prior to February 9, 2022, the Administrative Claim Bar Date.” 

See ECF No. 620 ¶ 3.

16. The O’Briens, both of whom are attorneys, had notice of the Chapter 11 Cases prior 

to the occurrence of the Administrative Claims Bar Date. This is evidenced by the fact that the 

O’Briens filed the Initial Proof of Claim prior to the Administrative Claims Bar Date. Further, Mr. 

O’Brien testified that he learned of the bankruptcy “sometime at the end of January”. See 

Transcript excerpt attached hereto as Exhibit A. 

17. The Request for Administrative Expense asserts that Proof of Claim No. 126 was a 

proper filing of the O’Briens’ administrative expense claim pursuant to the Administrative Claims 

Bar Date Order. However, the proof of claim form, executed by Mr. O’Brien, states, “Read the 

instruction before filing out this form. This form is for making a claim for payment in a 

bankruptcy case. Do not use this form to make a request for payment of an administrative 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 5 of 26
expense. Make such a request according to 11 U.S.C. § 503.” See ECF No. 620-1. (emphasis in 

original). 

18. Realizing their mistake, on April 9, 2022 – two months following the 

Administrative Claims Bar Date – the O’Briens filed the Request for Administrative Expense. 

However, the Administrative Claims Bar Date Order required all creditors and other parties-ininterest who wished to seek the allowance and/or payment of an administrative expense claim to 

file an appropriate motion or application with the court on or before the Administrative Claims 

Bar Date. See Administrative Claims Bar Order ¶ 2. Further, the Administrative Claims Bar Date 

Order specifically states that “any holder of an Administrative Claim who fails to comply with 

the terms of this Order shall be and is hereby barred from pursuing such Administrative 

Claim in these chapter 11 cases or otherwise. In addition, any such Administrative Claim not 

subject of an appropriate motion or application filed by the Administrative Claims Bar Date 

shall be and is hereby denied with prejudice.” See Administrative Claims Bar Date Order ¶ 3. 

19. Courts have found that failure to properly and timely file an administrative claim is 

a bar to relief. “The Bankruptcy Code, the Plan, and applicable case law require the filing of 

administrative expense claims—like those asserted in the Complaint—on the bankruptcy court's 

docket, not on another court's, for a claim to be deemed timely filed.” Charitable DAF Fund, L.P. 

v. Highland Cap. Mgmt. L.P. (In re Highland Cap. Mgmt. L.P.), 2022 Bankr. LEXIS 2780, *29 

(Bankr. N.D.Tex. 2022). 

20. As the Request for Administrative Expense was filed after the Administrative 

Claims Bar Date, and the Proof of Claim does not comply with Section 503 or this Court’s 

Administrative Claims Bar Date Order, the O’Briens’ request for an administrative expense claim 

should be disallowed. 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 6 of 26
B. The O’Brien’s claims do not qualify for administrative expense status because the 

Debtor was not operating. 

21. Since the Holdings Petition Date, the intent of Holdings has been to sell its assets 

for the benefit of creditors. Throughout this case, the Debtors have been acting in good faith to 

merely maintain the business of Holdings and the Subsidiary Debtors in the ordinary course so as 

to preserve the going concern value of the estate, to preserve jobs, to pay vendors, to service 

customers and to conduct and conclude an orderly sale process. 

22. As a provided for in the Debtor’s Emergency Motion for Entry of Interim and Final 

Orders (I) Authorizing Debtor to Obtain Secured Post-Petition Financing Pursuant to 11 U.S.C. 

§§ 105, 361, 362, and 364, (II) Granting Liens and Superpriority Administrative Claims in 

Connection Therewith, (III) Authorizing Use Cash Collateral Pursuant to 11 U.S.C. § 363, (IV) 

Granting Adequate Protection in Connection Therewith Pursuant to 11 U.S.C. §§ 361, 363 and 

507, and (V) Scheduling a Final Hearing Under Bankruptcy Rule 4001 [ECF No. 72] (the “DIP 

Financing Motion”), filed 15 days after the Holdings Petition Date, Boston Energy Trading and 

Marketing, LLC, the DIP Lender, required, and Holdings agreed, that Holdings would implement 

and proceed with a sale process for the marketing and sale of the Debtor’s business and assets. In 

connection therewith, certain sales milestones were established and complied with. 

23. When determining if a creditor is entitled to an administrative expense claim, the 

terms “actual” and “necessary” should be strictly construed to keep “administrative expenses at a 

minimum so as to preserve the estate for the benefit of all its creditors.” Otte v. United States, 419 

U.S. 43, 53, 95 S.Ct. 247, 254, 42 L .Ed.2d 212 (1974). In certain cases, postpetition costs 

"ordinarily incident to operation of a business" that do not confer a benefit on the estate can indeed 

qualify as "actual, necessary". Reading Co. v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L. Ed. 2d 

751 (1968). 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 7 of 26
24. The 11th Circuit in N.P. Mining Co., Inc., 963 F.2d 1449 (11th Cir. 1992) ruled that 

claims incurred by a chapter 11 debtor in possession “receive first priority, but only to the extent 

that they were incurred as a consequence of [...] operations after the bankruptcy petition was filed 

and while the business was still “operating.” Id.at 1453. Additionally, the Court in N.P. Mining

went on to find that “penalties incurred when a trustee is merely maintaining an estate for later 

distribution of assets cannot be considered costs ordinarily incident to operation of a business.” 

N.P. Mining at *1460-1461. (internal quotations omitted). 

25. Courts routinely hold that when determining whether a tort under the Reading 

exception may be an administrative expense, the focus is on whether the tort occurred during the 

operation of the debtor’s business post-petition. See In re GT Advanced Techs., Inc., 547 B.R. 3, 

12-13 (Bankr. D.N.H. 2016); In re Corbett, 550 B.R. 170, 185 (Bankr. D. Mass. 2016); In re 

Energy Conversion Devices, Inc., 528 B.R. 697, 709 (Bankr. E.D. Mich. 2015) ("Courts applying 

the Reading doctrine have limited administrative expense priority to claims arising from the 

bankruptcy debtor’s operation of its business ... [Creditor’s] claim does not arise from the debtor 

in possession['s] operation of its business after filing bankruptcy."); In re RadLAX Gateway Hotel, 

LLC, 447 B.R. 570, 576-77 (Bankr. N.D. Ill. 2011); In re Old Carco LLC, No. 09-cv-50002, 2010 

U.S. Dist. LEXIS 118174, 2010 WL 4455648, at *4 (S.D.N.Y. Nov. 2, 2010) (stating that 

under Reading, a claim may be an administrative expense if the expense is "ordinarily incident to 

operation of a business"); Suntrust Bank v. Roberson (In re Baseline Sports, Inc.), 393 B.R. 105, 

130 (Bankr. E.D. Va. 2008) ("[P]ost-petition torts committed by the debtor-in-possession while 

acting in the furtherance of the operation of the business satisfy the second or 'burden' prong of the 

administrative expense test, and claims for such torts may be accorded priority as an administrative 

expense."); In re Unidigital, Inc., 262 B.R. 283, 290 (Bankr. D. Del. 2001) (denying administrative 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 8 of 26
claim where tort, if there even was one, did not arise from the operation of the debtor's 

business). This is because the "Reading exception provides that a post-petition tort committed by 

the debtor-in-possession within the course and scope of its continued operation of the estate's 

business may, itself, be considered a cost of doing business and is, therefore, entitled 

to administrative expense priority under § 503(b)(1)(A)." In re Krisu Hosp., LLC, 2021 Bankr. 

LEXIS 788, *15-16 (Bankr. N.D.Tex. 2021); quoting In re Blanchard, 547 B.R. 347, 353 

(Bankr. C.D. Cal. 2016). 

26. As the First Circuit stated in In re Hemingway Transport, Inc., most decisions 

employing the Reading rationale have arisen in the context of reorganization proceedings. See, 

e.g., In re Microfab, Inc., 105 B.R. 161, 168 n.20 (Bankr. D. Mass. 1989) (Reading rationale 

inapplicable in liquidating chapter 7 case). Application of the Reading rationale “in the context of 

an ordinary, nonoperating liquidation proceeding appears extremely problematic, as one 

fundamental justification for the priority is that general creditors stand to benefit from the 

postpetition operation of the debtor's business, either through the immediate generation of 

operating profits or through the ultimate reorganization of the debtor as a viable business entity.” 

954 F.2d at 5, n.5. In re Corbett, 550 B.R. 170, 186 (Bankr. D.Mass. 2016) (citing Woburn Assocs. 

v. Kahn (In re Hemingway Transport, Inc.), 954 F.2d 1, 5, n.5 (1st Cir. 1992).

27. This is a Chapter 11 case with a liquidating plan, and at the time of the O’Briens’ 

alleged injuries, the Debtors did not operate as a functioning business, and it did not anticipate 

reorganizing and continuing as a going concern. The Debtor has conducted a sale of substantially 

all of its assets and submitted a Plan of Liquidation rather than a plan designed for the continued 

operation of the business. Thus, the reasoning of Reading that fairness dictates that a party injured 

by a business that by "operation of law" continues to operate during the reorganization process 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 9 of 26
should be entitled to full recovery of its claim is inapplicable in this case and therefore the 

O’Brien’s request for an administrative claim should be disallowed. 

C. No Benefit even if Reading applies. 

28. Even if Reading applies, the O’Briens request for an administrative expense claim 

fails as the Debtors have “not benefited from actions post-petition because this Debtor has not 

gained anything of value.” In re RadLAX Gateway Hotel, LLC, 447 B.R. 570, 577 (Bankr. 

N.D.ILL.2011). The O’Briens allege inter alia, that in June of 2021, an employee of LPT, without 

permission, entered the O’Briens into a service contract with the Debtors for electric service. The 

O’Brien made exactly one payment to the Debtors in the amount of $517.00 on September 8, 2021. 

Before the end of the following month, this service contract was terminated by the Debtors, the 

$517.00 payment was returned to the O’Briens in full, and the O’Briens’ electrical service was 

returned to their original electricity provider. See Transcript excerpt attached hereto as Exhibit B.

29. Given that the amounts paid by the O’Briens were returned and the contract was 

terminated, there was no economic benefit to the Debtors. Torts are permitted as administrative 

expense when the debtor gains a benefit, such as being able to contract and profit while attempting 

to reorganize during bankruptcy. See Ellis v. Westinghouse Elec. Co., LLC, 11 F.4th 221, 230-231 

(3rd Cir. 2021) (“The employment discrimination [administrative expense] claim arose out of 

Ellis's employment, which without dispute benefitted the Westinghouse estate.”). Here, there was 

no benefit arising out of the alleged tort. The Debtors retained no compensation and no contractual 

benefits. Thus, the lack of any benefit to the Debtors militates against the O’Briens receiving an 

administrative expense claim. 

D. The non-compensatory damages, punitive damages and other non-economic 

damages being sought by the O’Briens were not necessary. 

30. The O’Brien’s asserted remaining damages consist of lost time, emotional damage, 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 10 of 26
punitive damages, and attorneys’ fees. “A claimant’s claim for actual damages would be necessary 

for preserving the estate because the liability was incurred so that the debtor might receive the 

benefits of the contract.” NL Indus., Inc. v. GHR Energy Corp., 940 F.2d 957, 966 (5th Cir. 1991). 

Thus a claimant “can recover punitive damages from the estate as an administrative expense only 

if it can prove that this expense was an "actual, necessary cost[] . . . of preserving the estate." Id. 

However, the Fifth Circuit went on to state, “[t]his cannot be said of [claimant]'s claim for punitive 

damages. Under the facts of this case, we can conceive of no way in which allowing punitive 

damages would benefit [the debtor’s] estate.” Id. 

31. Similarly, the O’Briens’ Request for Administrative Expense provides no basis to 

show how the O’Briens’ alleged remaining damages were necessary for preserving the estate. 

Compensatory damages directly arising from a tort might be necessary when the Debtor receives 

the benefit of a contract. However, any compensatory damages were repaid by the return of the 

$517.00, and the several months of free electricity the O’Brien’s received from July 2021 through 

October 2021. The remaining claimed damages are not necessary and provide no benefit to the 

Debtors. 

WHEREFORE, the Debtors respectfully request the Court enter an order: (i) sustaining 

this Response and objection; (ii) denying the Request for Administrative Expense filed by the 

O’Briens; (iii) deeming Proof of Claim No. 126 filed by the O’Briens as an untimely unsecured 

claim; and (iv) awarding such other relief as the Court deems appropriate. 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 11 of 26
Dated: June 1, 2023. 

Respectfully Submitted, 

 VENABLE LLP 

 Attorneys for Debtors-in-Possession 

 100 Southeast Second Street, Suite 4400 

 Miami, Florida 33131 

 Telephone: (305) 349-2300 

 Facsimile: (305) 349-2310 

 By: /s/ Heather L. Harmon 

 Paul J. Battista, Esq. 

Florida Bar No. 884162 

pjbattista@venable.com

Mariaelena Gayo-Guitian, Esq. 

Florida Bar No. 813818 

mgguitian@venable.com

Heather L. Harmon 

Florida Bar No. 13192 

hlharmon@venable.com 

 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 12 of 26
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that, on June 1, 2023, a true copy of the foregoing document has 

been furnished via CM/ECF notification to all parties entitled to receive notice via CM/ECF, and 

via First Class U.S. Mail and email to: 

Lyria O’Brien and Shawn O’Brien 

700 Louisiana Street, Suite 3400 

Houston, TX 77002 

shawnrobertobrien@gmail.com 

sobrien@mayerbrown.com 

By: /s/ Heather L. Harmon 

 Heather L. Harmon, Esq. 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 13 of 26
EXHIBIT A 

 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 14 of 26
(305) 358-8875

OUELLETTE & MAULDIN COURT REPORTERS, INC.

Page 1

1 UNITED STATES BANKRUPTCY COURT

 SOUTHERN DISTRICT OF FLORIDA

2 FORT LAUDERDALE DIVISION

3

4

5 IN RE: Chapter 11 Cases

6 LIBERTY POWER HOLDINGS, LLC, CASE NO. 21-13797-SMG

LPT, LLC, CASE NO. 21-15537-SMG

7 LIBERTY POWER MARYLAND, LLC, CASE NO. 21-15539-SMG

LIBERTY POWER DISTRICT OF CASE NO. 21-15540-SMG

8 COLUMBIA, LLC,

 (Jointly administered

9 Debtors. 21-13797-SMG)

_______________________________/

10

11

12

13

14

 August 26, 2022

15 10:55 a.m. to 1:30 p.m.

16

17

18

 DEPOSITION VIA ZOOM VIDEO CONFERENCE

19

 OF

20

 SHAWN O'BRIEN

21

22

23 Taken pursuant to Notice,

 on behalf of the Debtors.

24

25

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 15 of 26
(305) 358-8875

OUELLETTE & MAULDIN COURT REPORTERS, INC.

Page 2

1 APPEARANCES VIA ZOOM VIDEO CONFERENCE:

2

 GENOVESE JOBLOVE & BATTISTA, by

3 PAUL J. BATTISTA, ESQUIRE

 MARIAELENA GAYO-GUITIAN, ESQUIRE

4 On behalf of the Debtors

5

 BERGER SINGERMAN, by

6 JORDI GUSO, ESQUIRE

 On behalf of Boston Energy Trading and Marketing, LLC

7

8 MAYER BROWN, by

 SHAWN O'BRIEN, ESQUIRE

9 On behalf of Shawn and Lyria O'Brien

10

 - - - - - - -

11

12 I-N-D-E-X

13 WITNESS DIRECT CROSS

14 SHAWN O'BRIEN

 By Mr. Battista 3 --

15

16

 E-X-H-I-B-I-T-S

17

Debtors' Description Page

18 No. 1 Response to Debtors' Request for Production 12

 No. 2 O'Brien Initial Disclosures 16

19 No. 3 O'Brien Amended Disclosures 18

 No. 4 Administrative Claim Request 47

20 No. 5 Declaration of Shawn O'Brien 74

 No. 6 $517.61 Invoice 82

21 No. 7 $1054,42 Invoice 84

 No. 8 Receipt 85

22 No. 9 Check 85

23 **All Exhibits were electronically marked at the

conclusion of the deposition.

24

 - - - - - - -

25

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 16 of 26
(305) 358-8875

OUELLETTE & MAULDIN COURT REPORTERS, INC.

Page 51

1 A. There's a Supreme Court case, Reading, that

2 interpreted 507. I'm not sure which section of 507(a),

3 but it relates to postpetition torts, allowing for that to

4 have -- to be treated as an administrative claim with

5 priority.

6 Q. Okay. But other than reference to that

7 Supreme Court case, do you know what section of 507(a)

8 you're travelling under, and if you don't know, you don't

9 know, please tell me.

10 A. I think it's 507(a). Are you talking

11 about -- it's under 507(a).

12 Q. Okay. When did you first become aware that

13 Liberty Power Holdings was in bankruptcy?

14 A. I don't remember exactly the date, but it

15 was sometime at the end of January before -- right before

16 I filed -- I believe it was right before I filed that

17 lawsuit.

18 Q. So just before you filed the lawsuit and of

19 course just before you filed this proof of claim?

20 A. Yes.

21 Q. And when you filed this proof of claim,

22 which is now -- which is Exhibit A here, did you intend it

23 to be an administrative expense claim?

24 A. Yes.

25 Q. When you learned about the bankruptcy of

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 17 of 26
EXHIBIT B 

 

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 18 of 26
(305) 358-8875

OUELLETTE & MAULDIN COURT REPORTERS, INC.

Page 1

1 UNITED STATES BANKRUPTCY COURT

 SOUTHERN DISTRICT OF FLORIDA

2 FORT LAUDERDALE DIVISION

3

4

5 IN RE: Chapter 11 Cases

6 LIBERTY POWER HOLDINGS, LLC, CASE NO. 21-13797-SMG

LPT, LLC, CASE NO. 21-15537-SMG

7 LIBERTY POWER MARYLAND, LLC, CASE NO. 21-15539-SMG

LIBERTY POWER DISTRICT OF CASE NO. 21-15540-SMG

8 COLUMBIA, LLC,

 (Jointly administered

9 Debtors. 21-13797-SMG)

_______________________________/

10

11

12

13

14

 August 26, 2022

15 10:55 a.m. to 1:30 p.m.

16

17

18

 DEPOSITION VIA ZOOM VIDEO CONFERENCE

19

 OF

20

 SHAWN O'BRIEN

21

22

23 Taken pursuant to Notice,

 on behalf of the Debtors.

24

25

Case 21-13797-SMG Doc 914 Filed 06/01/23 Page 19 of 26
(305) 358-8875

OUELLETTE & MAULDIN COURT REPORTERS, INC.

Page 2

1 APPEARANCES VIA ZOOM VIDEO CONFERENCE:

2

 GENOVESE JOBLOVE & BATTISTA, by

3 PAUL J. BATTISTA, ESQUIRE

 MARIAELENA GAYO-GUITIAN, ESQUIRE

4 On behalf of the Debtors

5

 BERGER SINGERMAN, by

6 JORDI GUSO, ESQUIRE

 On behalf of Boston Energy Trading and Marketing, LLC

7

8 MAYER BROWN, by

 SHAWN O'BRIEN, ESQUIRE

9 On behalf of Shawn and Lyria O'Brien

10

 - - - - - - -

11

12 I-N-D-E-X

13 WITNESS DIRECT CROSS

14 SHAWN O'BRIEN

 By Mr. Battista 3 --

15

16

 E-X-H-I-B-I-T-S

17

Debtors' Description Page

18 No. 1 Response to Debtors' Request for Production 12

 No. 2 O'Brien Initial Disclosures 16

19 No. 3 O'Brien Amended Disclosures 18

 No. 4 Administrative Claim Request 47

20 No. 5 Declaration of Shawn O'Brien 74

 No. 6 $517.61 Invoice 82

21 No. 7 $1054,42 Invoice 84

 No. 8 Receipt 85

22 No. 9 Check 85

23 **All Exhibits were electronically marked at the

conclusion of the deposition.

24

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25

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1 A. No.

2 Q. Okay. Do you know sitting here today, when

3 Liberty transferred the power back or the billing back to

4 Varsity?

5 A. I want to say it was sometime in -- around

6 the October 16th date or somewhere in October.

7 Q. And how do you know that?

8 A. Just because I remember receiving a call

9 from somebody at Liberty, which I think is recorded, it's

10 in the discovery, saying that they terminated the

11 contract.

12 Q. So you learned about that from the discovery

13 that you received in this case, in the Texas case?

14 A. Well, I also received the PUC response to my

15 complaint, I want to say that was October 18th, but that

16 was like a couple days after I spoke to -- this person

17 called me about saying they terminated the contract.

18 Q. Okay. You don't have any understanding that

19 the transfer was made as early as September 9th of 2021,

20 do you?

21 A. No, I was never notified of that. I wasn't

22 notified of what actually was going on with the

23 termination until I think that October 16th date.

24 Q. Okay. Did your power get turned off again

25 after September 9th through the October 16th date?

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1 A. No.

2 Q. Did Liberty Power refund the payment that

3 you did make of $517 and change?

4 A. Yes, sometime in late October.

5 Q. Did Liberty Power write off, to your

6 knowledge, the balance that they had originally alleged

7 was due, roughly $600 as you testified to?

8 A. I don't have any knowledge of whether they

9 wrote it off.

10 Q. Okay. Did Liberty Power ever make further

11 demand of you to pay that roughly $600 charge?

12 A. I don't know because the address was

13 different, the billing address. So I don't know if they

14 made any demands by mail or -- they certainly didn't

15 respond to me.

16 Q. Okay. Have you checked your credit report

17 with any of the credit bureaus to see whether or not you

18 had an adverse credit report based on these events from

19 Liberty Power?

20 A. I'm not aware of -- of that. Although I do

21 note that there was -- my wife's credit was -- there was

22 some type of credit check done on hers. I get alerts from

23 Experian whenever there's a credit alert, and I don't

24 remember seeing a credit alert, plus I was not the -- I

25 was not the one on the contract.

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1 Q. Do you know whether that credit alert was a

2 function of what Liberty Power did or somebody else?

3 A. I'm not -- I don't know.

4 Q. Okay. Have you checked your wife's credit

5 report to see whether there's anything on there that

6 involves Liberty Power?

7 A. I have not, no. I have not personally.

8 Q. Okay. Back to the motion. Go to

9 Paragraph 8, Mary.

10 Do you see, Mr. O'Brien, Paragraph 8 says,

11 as a result of the fraudulent actions by defendants,

12 plaintiffs' existing electric service contract was

13 terminated, and unbeknownst to plaintiffs, debtor LPT

14 became plaintiffs' electric service provider -- sorry,

15 electric provider at significantly higher rates.

16 Do you see that?

17 A. Yeah.

18 Q. Are you claiming any damages related to what

19 you describe here as the significantly higher rates

20 charged, assuming that's true?

21 A. Well, the emotional distress damages

22 certainly this factors into because they were not -- you

23 know, if you compare the rates from Varsity to what was in

24 the contract, they were significantly higher. I want to

25 say Varsity was nine cents per kilowatt or so, and then

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1 this one was 13 cents per kilowatt, and -- and the fear of

2 just being left without any information from September 8th

3 through the time we got notified that the contract was

4 actually terminated, there was a fear that we would owe,

5 you know, those additional rates.

6 Q. Okay. Do you know -- have you done the

7 calculation as to what the additional charges would have

8 been as -- by Liberty Power, as compared to the Varsity

9 contract from September 9th to the middle of October?

10 A. It's roughly 45 percent higher, 40 percent

11 higher, I think like that. So it would have been probably

12 during -- and I don't know what timeframe you're talking

13 about. On a monthly average, it would have been probably

14 $200 a month more.

15 So over the course of June, July, through

16 October, you know, you're talking about, I don't know,

17 a thousand, 800 more.

18 Q. So it was from June 23rd through --

19 A. Well, it was effective July 1st.

20 Q. So July 1st. So the month of July, the

21 month of August, and the month of September?

22 A. Yeah, it would have, and those -- in

23 Houston, those are big months for electricity. So I don't

24 know, it would have been a difference of about 800 to a

25 thousand dollars, but if it continued for two years, you

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1 know, then, you know, take, let's say, $200 a month times

2 24 months.

3 Q. Right, but that's not -- okay. So we can do

4 that, but right now we're talking about the months of

5 June -- sorry, July, August, September, maybe even

6 October --

7 A. Correct.

8 Q. -- of 2021; right?

9 A. Right.

10 Q. So is your testimony that --

11 A. But at the time you have to remember that

12 this -- this relates to a contract, a 24-month contract

13 that was being put in place, and at the time, there was a

14 fear that we would have to pay the full contract

15 difference.

16 Q. So your testimony is that the possibility of

17 having to pay, if I were to do the calculation, roughly

18 $4800 over two years caused you fear and emotional

19 distress?

20 A. Yes.

21 Q. Are you seeking, as part of your damages

22 today, any portion of the increase in the electric charges

23 that result from Liberty Power having higher rates than

24 Varsity?

25 A. Not in the actual damages.

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1 Q. Okay. Is that because you were refunded the

2 amount you paid and you were not charged for the balance?

3 A. Yeah, in hindsight it was terminated on

4 October 16th.

5 Q. Okay. Let's go to Paragraph 12, Mary,

6 please.

7 So in this paragraph at the conclusion, in

8 addition to the $125,000 number, plus reasonable

9 attorney's fees and all costs, which we talked about a

10 little bit before. Can you tell me how much you have

11 incurred in your attorney's fees and costs through today

12 in connection with these matters?

13 A. Well, not -- not the exact number, but

14 probably at a minimum 40,000 between attorney's fees and

15 costs.

16 Q. And that's on top of the 40,000 that

17 reflects the time that you testified earlier that you put

18 in to deal with these events, as opposed to the

19 litigation; is that right?

20 A. Yeah, it's the time from the preparation of

21 the original complaint through 12:16 p.m. Central on

22 August 26, 2022.

23 Q. Through today, is that what you said?

24 A. Yeah, I think that's a -- that's a minimum.

25 Q. Do you keep time sheets for the work that

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