Foss Creditors Try to Block Dismissal

Brief Cites Mass. Case as Mandate Not to Dismiss Suit

By Patrick Cronin

Hampton Union, Friday, May 18, 2007

[The following article is courtesy of the Hampton Union and Seacoast Online.]

HAMPTON — Creditors of Foss Manufacturing are still fighting to keep their suit alive against the company's former chief executive officer, Stephen Foss, and others the group alleges looted the company as it was going bankrupt.

Creditors boosted their case against the company's former board of directors recently by filing another legal brief asking the judge to deny the request by Foss and the directors to dismiss the suit.

Bankruptcy Judge Michael Deasy, who took Foss' and other motions to dismiss under advisement last November, has yet to make a ruling in the case.

The creditors' suit, filed in June 2006, alleges, among other things, that Foss used company money to pay out $3.7 million in illegal dividends, excessive compensation and improvements on the family's homes while the company was going broke.

It also alleges several company officials aided Foss and that the company's board of directors failed to live up to its fiduciary duties by keeping a watchful eye over the company.

In the latest brief filed, lawyers for the creditors cited a recent court decision by a Massachusetts bankruptcy judge that mirrors the Foss case. In that case, the judge denied a motion to dismiss charges against the former directors of CTC Communications, a Waltham-based telephone company, for breaching its fiduciary duties.

While CTC's former directors argued there was no proof and that they were unaware of what was going on, the court ruled that was no excuse.

The judge ruled that because the directors failed to establish an appropriate information and reporting system, it constituted a breach of their fiduciary duties.

"The CTC Communication decision mandates a denial of the motion to dismiss," stated lawyer Robert J. Feinstein, lead council for the creditors suing Foss.

Creditors filed the suit to collect money not repaid as part of bankruptcy proceedings. In all, more than $50 million in claims were made against Foss Manufacturing, but the company was sold while in bankruptcy proceedings for less than $35 million.

The company filed for bankruptcy in September 2005 after its chief lender, CapitalSource Finance, cut off credit, alleging the company fraudulently borrowed millions of dollars to benefit itself and company insiders.