NMSBPCSLDHB, L.P. v. Integrated Telecom Express, Inc. (In Re Integrated Telecom Express, Inc.) , 389 F.3d 423 ( 2004 )

AMBRO, Circuit Judge, Dissenting to the Denial of Rehearing En Banc, joined by Judge Rendell.

SUR PETITION FOR REHEARING

SMITH, Judge.

The petitions for rehearing filed by ap-pellees in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular service not having voted for rehearing, the petitions for rehearing by the panel and the Court en banc, are denied. Judge Rendell and Judge Ambro would grant the petitions for rehearing.

AMBRO, Circuit Judge, Dissenting to the Denial of Rehearing Banc, joined by Judge Rendell:

We voted for rehearing en banc not because we believe that the panel has necessarily reached the wrong result. The core effect, as we perceive it, of the panel’s holding — that equity holders of a debtor may not file a chapter 11 bankruptcy petition solely “to reap [for themselves] a sub stantial gain through bankruptcy ... at the expense of the [debtor’s] sole creditor,” Op. n.4 — may pass muster with the unique facts this case presents. Our problem is this: counsel in other cases may argue the panel’s opinion to go further in requiring good faith than anyone on the panel intended. We thus voted for rehearing en banc to allow the full Court to dispel this argument, for we believe the panel’s opinion is limited to its snow in August facts.