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UNITED STATES BANKRUPTCY COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

In re: 

PG&E CORPORATION 

 -andPACIFIC GAS AND ELECTRIC 

COMPANY, 

 Debtors. 

Bankruptcy Case No. 19 - 30088 (DM) 

Chapter 11 (Lead Case) (Jointly Administered)

RESPONSE OF THE CITY OF SAN JOSE TO 

THE MOTION OF DEBTORS PURSUANT TO 

11 U.S.C. § 1121(d) TO EXTEND THE 

EXCLUSIVE SOLICITATION PERIOD 

(THE “EXCLUSIVE SOLICITATION PERIOD 

MOTION”) 

Related to: Docket Nos. 4825 and 4826 

☐ Affects PG&E Corporation 

☐ Affects Pacific Gas and Electric 

 Company 

☒ Affects both Debtors 

* All papers shall be filed in the Lead 

Case, No. 19-30088 (DM)

Hearing Date: December 11, 2019 

Time: 10:00 a.m. (P.T.) 

Courtroom: Hon. Dennis Montali 

 450 Golden Gate Avenue 

 16th Floor, Courtroom 17 

 San Francisco, CA 94102 

Objections Due: December 4, 2019, 4:00 (P.T.) 

The City of San Jose, California, submits this response to the motion of PG&E Corporation 

(“PG&E Corp.”) and Pacific Gas and Electric Company (the “Utility” and together with PG&E Corp., 

“PG&E” or the “Debtors”) in the above-captioned chapter 11 cases (the “Chapter 11 Cases”), pursuant 

RICHARD DOYLE, City Attorney (88625) 

ED MORAN, Chief Deputy City Attorney (86992) 

ELISA T. TOLENTINO, Sr. Deputy City Attorney (228726) 

LUISA F. ELKINS, Sr. Deputy City Attorney (286703) 

Office of the City Attorney 

200 East Santa Clara Street, 16th Floor 

San José, California 95113-1905 

Telephone Number: (408) 535-1900 

Facsimile Number: (408) 998-3131 

E-Mail Address: cao.main@sanjoseca.gov 

Attorneys for Defendants

Attorneys for The City San Jose 

Case: 19-30088 Doc# 4981 Filed: 12/04/19 Entered: 12/04/19 15:35:59 Page 1 of

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to section 1121(d) of title 11 of the United States Code (the “Bankruptcy Code”), for a further 

extension of the Debtors’ exclusive solicitation period to and including March 20, 2020 (the “Motion”) 

and respectfully state as follows:1

I. INTRODUCTION 

Although the Court terminated the exclusive right of the Debtors to file a plan, the Debtors are 

now seeking to extend their exclusive right to solicit acceptances of a plan. This end run around the 

Court’s previous Order terminating exclusivity should be denied. 

II. BACKGROUND 

On October 9, 2019, the Court terminated exclusivity, holding in relevant part that: 

For the foregoing reasons, the court hereby GRANTS the joint motion of the 

Movants to terminate the exclusivity period of Bankruptcy Code section 1121(d). 

By a separate order, the court is denying the Debtors’ Second Exclusivity Motion 

(Dkt. No. 4005). 

Order Granting Joint Motion of the Official Committee of Tort Claimants and Ad Hoc Committee of 

Senior Unsecured Noteholders to Terminate the Debtors’ Exclusive Periods Pursuant to Section 

1121(d)(1) of the Bankruptcy Code entered on October 9, 2019 (Dkt. No. 4167) (defined in the Motion 

as the “Exclusivity Termination Order”) at p. 3. 

The Motion seeks to extend the Exclusive Solicitation Period to March 20, 2020, stating that 

“[t]he Exclusivity Termination Order did not modify the Debtors’ Exclusive Periods as to any other 

parties or plan.” (Motion at pp. 7-8). However, nowhere does the Exclusivity Termination Order 

provide that exclusivity was only terminated with respect to the TCC/Noteholders Plan. Indeed, as 

the Debtors acknowledge, “the Court denied a pending request by the Debtors to further extend their 

Exclusive Periods.” (Motion at p. 7). 

III. Objection 

A. Any Party in Interest May File a Plan Once Exclusivity is Terminated 

It is axiomatic that once exclusivity is terminated, any party in interest may file a plan. The 

Bankruptcy Code expressly provides that “[a]ny party in interest ... may file a plan” once exclusivity 

 

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 Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Motion. 

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has been terminated. 11 U.S.C. §1121(c). See, e.g., In re Whaley, Case No. 09-05130-8-JRL, 2010 

Bankr. LEXIS 1266 at *3, 2010 WL 1609293 (Bankr. E.D.N.C. April 20, 2010) (“Once the exclusivity 

period has expired or abated, any party in interest, including the debtor, may file a plan for 

reorganization.”); In re El Comandante Mgmt. Co., LLC, 359 B.R. 410, 416 (Bankr. D. P.R. 2006) 

(“If the debtor loses his or her exclusive right to file a plan, then any party in interest may file one.”) 

(quotations and citations omitted); In re Dark Horse Tavern, 189 B.R. 576, 583 (Bankr. N.D.N.Y. 

1995) (“As Debtor’s period of exclusivity to file a plan has terminated, any party in interest, including 

equity security holders, may file a disclosure statement and a plan of reorganization.”); In re Mother 

Hubbard Inc., 152 B.R. 189, 196 (Bankr. W.D. Mich. 1993) (“Pursuant to the plain language of 

§ 1121(c)(3), a creditor may file a reorganization plan if the debtor has not filed a plan which has been 

accepted by all impaired classes within the exclusive period.”); In re First Humanics Com., 124 B.R. 

87, 93 (Bankr. W.D. Mo. 1991) (stating that the “Code specifically authorizes the filing and 

distribution of more than one plan after expiration of the debtor’s exclusive period. If Congress had 

intended for only one plan to be distributed at a time, it would have written that restriction into the 

Bankruptcy Code.”); In re J.F. Toner & Son. Inc., 40 B.R. 461,462 (Bankr. W.D. Va. 1984) (holding 

that after the exclusive period has ended, any party in interest may file a plan and the “Debtor cannot 

be heard to complain that the creditors have exercised their rights.”) (quotations and citations omitted); 

In re Kun, 15 B.R. 852, 853 (Bankr. D. Ariz. 1981) (holding that upon expiration of the exclusive 

period “any party in interest ... may file a plan as provided for under Section 1121(c) of the Bankruptcy 

Code.”). 

B. The Exclusive Solicitation Period May Not be Extended 

Once the exclusive right to file a plan has been terminated, the exclusive right to solicit

acceptances may not be extended so as to maintain exclusivity. Such an end run around the clear 

statutory right under Bankruptcy Code section 1121(c) of any party in interest to file a plan is 

impermissible. 

The cases cited by the Debtors in the Motion do not stand for the proposition that the Exclusive 

Solicitation Period may be extended even though the exclusive right to file a plan has been terminated. 

For example, the Debtors cite to In re United Press Int’l, Inc., 60 B.R. 265 (Bankr. D.D.C. 1986) 

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(Motion at p. 10), but in that case the court held that the continued exclusive right to file a plan was a 

necessary pre-condition to consider whether to grant a motion to extend the exclusive right to solicit 

acceptances, finding that: 

Sections 1121(c)(2) [the exclusive right to file a plan] and (c)(3) [the exclusive right 

to solicit acceptances of a plan] relate to two different acts, within two consecutive 

time periods. But unless and until the first act takes place, the second act-- and its 

time period -- simply do not yet come into play. 

Id. at 269. By the same logic, here, the Debtors cannot maintain their Exclusive Solicitation Period 

where their exclusive right to file a plan has previously been terminated. 

The Debtors also rely on In re Hermanos Torres Perez, Inc., 491 B.R. 316 (Bankr. D.P.R. 

2010) (Motion at p. 10). In that case, the court found that the extension of the debtor’s exclusive right 

to file a plan did not automatically extend the debtor’s exclusive right to solicit acceptances of a plan, 

and instead found that both exclusivity provisions had been terminated and did not operate to “bar any 

party in interest from filing a competing plan at this time.” Id at 323. 

The only court to squarely address the unusual circumstance where a debtor’s right to exclusive 

right file a plan has been terminated and the debtor seeks to extend to its exclusive right to solicit 

acceptances rejected that attempt. See In re Grant Family Farms, Inc., Case No. 06-11795 ABC, 2007 

Bankr. LEXIS 2779 (Bankr. D. Colo., Aug. 13, 2007), where the court held: 

Section 1121(d)(2)(B) concerning extension of the period for acceptance where a 

debtor has timely filed a plan in the exclusive period, is not a back door that allows 

extension of the exclusivity period where a debtor has failed to file a plan in the 

exclusivity period for plan filing provided for in § 1121. The triggering events in 

§ 1121(c) that allow for competing plans -- i.e. the termination of the debtors’ 

exclusive right to file a plan -- are in the disjunctive. Once the debtor fails to file a 

plan in the initial 120-day exclusivity period, as it may be extended under 

§ 1121(d)(2)(A), the debtor’s exclusive rights concerning plan filing are over. 

Id. at *3-*4 (emphasis in the original). 

Here, the Court should not countenance the Debtors’ attempt to maintain the Exclusive 

Solicitation Period where the Debtors’ exclusive right to file a plan has already been terminated. To 

do so would be to render the Court’s previous Exclusivity Termination Order meaningless. See In re 

Hermanos Torres Perez, Inc., 491 B.R. at 320 (Once the debtor's exclusive right to file a plan ends, 

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“competing plans are fai[r] game") (quoting In re Grant Family Farms, 2007 Bankr. Lexis at *3); 7 

Collier on Bankruptcy ¶ 1121.04 (Richard Levin & Henry J. Sommer eds., 16th ed. 2019) (“If the 

debtor fails to file a plan in the initial 120-day exclusivity period, or within such period as extended 

under section 1121(d)(2)(A), then the debtor’s exclusive right to file a plan is over, as well as the 

debtor’s right to seek an extension of the extended time”). 

IV. CONCLUSION 

For the foregoing reasons, the Court should deny the Motion and grant such other and further 

relief as the Court may deem just and appropriate. 

Dated: December 4, 2019 

Respectfully submitted, 

RICHARD DOYLE, City Attorney 

By: ____/s/ Elisa T. Tolentino ___________ 

ELISA T. TOLENTINO 

Sr. Deputy City Attorney 

Attorneys for The City San Jose

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