IN RE: INTEGRATED TELECOM EXPRESS, INC. a/k/a INTEGRATED TECHNOLOGY EXPRESS, INC.… v. Integrated Telecom Express, Inc.

*The votes of the Honorable Edward R. Becker and the Honorable Morton I.
Greenberg, Senior United States Circuit Judges for the Third Circuit, are limited to panel
rehearing.
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-2411
IN RE: INTEGRATED TELECOM EXPRESS, INC.
a/k/a INTEGRATED TECHNOLOGY EXPRESS, INC.
a/k/a DELAWARE INTEGRATED TELECOM EXPRESS, INC.,
Debtor
NM SBPCSLDHB, L.P.,
Appellant
v.
INTEGRATED TELECOM EXPRESS, INC.;
and THE OFFICIAL COMMITTEE OF EQUITY HOLDERS, et al.
__________________
SUR PETITION FOR REHEARING
Present: SCIRICA, Chief Judge, SLOVITER, NYGAARD,
ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO,
FUENTES, SMITH, CHERTOFF, FISHER, VAN ANTWERPEN,
BECKER and GREENBERG, Circuit Judges*
The petitions for rehearing filed by appellees in the above-entitled case having

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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.
BY THE COURT,
/s/ D. Brooks Smith
Circuit Judge
Dated: November 23, 2004
CMD/cc: Craig Goldblatt, Esq.
Christopher J. Meade, Esq.
Seth P. Waxman, Esq.
Robert K. Rasmussen, Esq.
David W. Carickhoff Jr., Esq.
Kevin Gross, Esq.
Laura D. Jones, Esq.
Tobias S. Keller, Esq.
Ali M. Mojdehi, Esq.
AMBRO, Circuit Judge, Dissenting to the Denial of Rehearing En 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 substantial gain through bankruptcy... at the expense of

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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.

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