Professional Documents
Culture Documents
PRESENTERS
Martin J. Bienenstock
Dewey & LeBeouf
1301 Avenue of the Americas
New York, NY 10019
Michael R. Enright
Robinson & Cole
One Commercial Plaza
Hartford, Connecticut 06103
Judith W. Ross
Baker Botts L.L.P.
2001 Ross Ave.
Dallas, Texas 75201
Robert B. Millner
Sonnenschein Nath & Rosenthal
Sears Tower, Suite 8000
233 South Wacker Drive
Chicago, Illinois 60606
RECENT DEVELOPMENTS
REGARDING
CLAIMS IN BANKRUPTCY
Table of Contents
Page
INTRODUCTION ......................................................................................................................1
I. OVERVIEW OF THE CLAIMS PROCESS IN BANKRUPTCY..........................................1
II. FILING CLAIMS AND THE CLAIMS OBJECTION PROCESS.........................................3
A. Implications and Consequences of Filing a Claim............................................................3
B. Withdrawal of a Proof of Claim .......................................................................................4
C. Informal Proofs of Claim .................................................................................................4
D. Evidentiary Issues............................................................................................................5
1. Proofs of Claim..........................................................................................................5
2. Objections to Proofs of Claim ....................................................................................8
E. Untimely Proofs of Claims ..............................................................................................9
1. Chapter 9 and 11 Cases..............................................................................................9
2. Chapter 7, 12 and 13 Cases ......................................................................................10
F. Amending Proofs of Claim ............................................................................................11
G. Transferring Claims.......................................................................................................12
H. Claims Reconsideration .................................................................................................12
III. STATUTORY LIMITATIONS ON THE ALLOWANCE OF CLAIMS .............................13
A. The Scope of 11 U.S.C. 502........................................................................................13
B. Claims Not Enforceable in Bankruptcy..........................................................................13
C. Claims For Unmatured Interest ......................................................................................15
D. Tax Assessment Claims .................................................................................................15
E. Lease Rejection Claims .................................................................................................16
F. Estimation of Claims .....................................................................................................17
G. Claims of Entities From Which Property is Recoverable................................................17
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INTRODUCTION
This material is intended as an overview of certain trends and significant
decisions in recent case law relating to claims in bankruptcy. It deals primarily with unsecured
claims and does not include all recently decided cases or address all areas of law relating to
bankruptcy claims. Rather, this material is intended as a survey of certain recurring themes in
cases decided in the last year.
I.
(FRBP or Bankruptcy Rules) 3001, 3002, 3003, 3005, 3006, 3007 and 3008 govern the way
in which creditors and equity security holders present their claims or interests to the bankruptcy
court, and provide the guidelines within which such claims are allowed or disallowed in the
bankruptcy proceeding. There are different rules for filing and allowing claims in cases under
Chapters 9 and 11 than for filing and allowing claims in cases under Chapters 7, 12 and 13.
11 U.S.C. 501 and FRBP 3001 generally govern the filing of proofs of claim. A
proof of claim is a written statement setting forth a creditors claim which must conform
substantially to the appropriate Official Form by including (a) the name and address of the
creditor, (b) basis for the claim, (c) date the debt was incurred, (d) classification of the claim, (e)
amount of the claim, and (e) include copies of any documents supporting the claim. In re
Andrews, 394 B.R. 384 (Bankr. E.D.N.C. 2008); In re Rogers, 391 B.R. 317 (Bankr. W.D. La.
2008); In re Brooks, 2008 WL 2993948 (Bankr. E.D. Pa. 2008). In addition, the proof of claim
must be executed by the creditor or the creditors authorized agent. FBRP 3001(b). In re
North Bay General Hospital, Inc., 404 B.R. 443 (Bankr. S.D. Tex. 2009)(the unsecured creditor
agent under the confirmed plan in the debtors prior bankruptcy case did not have authority to
file a proof of claim on behalf of a group of unsecured creditors in the second bankruptcy case).
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and/or unliquidated, or (ii) the creditor disagrees with the amount of the claim as listed in the
Schedules. FRBP 3003(c)(2). If a proof of claim is filed, it supersedes the amount scheduled by
the debtor. In re Carraway Methodist Health Systems, 2008 WL 2937781 (Bankr. N.D. Ala.
2008). If, however, the proof of claim is subsequently disallowed because it was not timely
filed, the scheduled claim will be reinstated for purposes of distribution.
Neither the Bankruptcy Code (the Code) nor the Bankruptcy Rules provide a
time by which creditors asserting claims in cases under Chapters 9 and 11 must file proofs of
claim. Rather, the time is set either by local rule or by order of the Court upon motion of the
debtor or another party in interest. FRBP 3003(c)(3).
If a creditor relies on the debtors Schedules filed in a case under Chapter 11 (and
does not file a proof of claim), and the case is subsequently converted to a case under Chapter 7,
the creditor cannot continue to rely on the Chapter 11 Schedules. All unsecured creditors in a
case under Chapter 7 that did not file proofs of claim in the case under Chapter 11 must file
proofs of claim once the case is converted. FRBP 1019(6). If a case, however, is converted from
a case under Chapter 7 to a case under Chapter 13, a creditor may file a claim, even if the
creditor did not timely file a claim in the Chapter 7 case. In re Walter, 399 B.R. 714 (Bankr.
M.D. Fla. 2009).
If a creditor fails to file a proof of claim within the prescribed time period, the
debtor or trustee may file a claim on behalf of the creditor within thirty (30) days after the
applicable time period. FRBP 3004. In re Sacko, 394 B.R. 90, 96 (Bankr. E.D. Pa. 2008).
II.
process, and, accordingly, the bankruptcy courts core jurisdiction under 28 U.S.C.
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157(b)(2)(B).
In re Exide Technologies, 544 F.3d. 196, 217 (3rd Cir. 2008)(filing a proof of
claim subjects the claimant to the jurisdiction of the bankruptcy court, but does not transform
state law claims against non-debtor defendants into core matters to be resolved by the bankruptcy
court).
B.
objection to the claim has been filed, (ii) a complaint was filed against the creditor in an
adversary proceeding, (iii) the creditor accepted or rejected the plan, or (iv) the creditor
otherwise participated significantly in the case, at which time the creditor must have an order of
the court to withdraw its claim. FRBP 3006. In re Manchester, 2008 WL 5273289 (Bankr. N.D.
Tex. 2008); In re Bryant, 397 B.R. 903 (N.D. Ind. 2008); In re Teknek, 394 B.R. 884 (Bankr.
N.D. Ill. 2008).
C.
substantially to the appropriate Official Form, under certain circumstances, courts allow
informal proofs of claim. The informal proof of claim doctrine may allow a creditor's pre-bar
date filing to constitute an informal proof of clam if: (1) the proof of claim is in writing; (2) the
writing contained a demand by the creditor to the debtor's estate; (3) the writing expresses an
intent to hold the debtor liable for the debt; and (4) the proof of claim was filed with the
bankruptcy court. In re Dana Corp., 2008 WL 2885901 (Bankr. S.D.N.Y 2008). If the filing
The bankruptcy courts core jurisdiction under 28 U.S.C. 157(b)(2)(B) does not extend to the
liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims.
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meets these factors, the court may consider a fifth factor - whether it would be equitable to allow
an amendment of the informal proof of claim. While the informal proof of claim may be
recognized, a creditor may not be permitted to amend an informal proof of claim. Compare, In
re Nowak, 385 B.R. 799 (B.A.P. 6th Cir. 2008)(BAP agreed with the bankruptcy court that it
would be inequitable to allow creditor to amend an informal proof of claim when creditor failed
to explain why it had failed to file a timely proof of claim in four years and allowance of the
claim would substantially diminish the return for other unsecured creditors), and In Rowe
Furniture, Inc., 384 B.R. 732 (Bankr. E.D. Va. 2008)(because the creditor filed a pleading in the
case before the claims bar date, the formal proof of claim filed one month after the bar date was
held timely).
D.
Evidentiary Issues
1.
Proofs of Claim
claim based on writing must attach either the original or a copy of the writing. Rule 3001(c). In
re Stauder, 396 B.R. 609 (Bankr. M.D. Pa. 2008)(when the claim does not attach the
documentation required by Bankruptcy Rule 3001(c) the claim cannot served as prima facie
proof of its validity); In re Rogers, 391 B.R. 317 (M.D. La. 2008); In re Brooks, 2008 WL
2993948 (Bankr. E.D. Pa. 2008); In re Reyna, 2008 WL 2961973 (Bankr. W.D. Tex. 2008). A
summary may be used if the supporting documents are too voluminous. If the claim includes
pre-petition interest, attorneys' fees, or other charges, a statement providing a breakdown of the
elements of the claim is required. If the creditor is an assignee of the debtor's original creditor,
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the assignee must attach a copy of the assignment and sufficient other information to evidence
the assignee's ownership. In re King, 2009 WL 960766 (Bankr. E.D. Va. 2009)(claim may be
disallowed if it contains no evidence of the ownership of the debt by the claimant); In re
Gilbreath, 395 B.R. 356 (Bankr. S.D. Tex. 2008); In re White, 2008 WL 269897
(Bankr.N.D.Tex. 2008); In re Nosek, 2008 WL 1899845 (Bankr.D.Mass. 2008).
A proof of claim filed in conformity with these rules constitutes prima facie
evidence of the validity of the claim. Rule 3001(f). Claims not filed in accordance with the
Rules are not entitled to the presumption. In re Jacobsen, 2009 WL 1577992 (E.D. Tex. 2009);
In re Vasquez, 2008 WL 4425304 (S.D. Ga. 2008); In re Tracey, 394 B.R. 635 (B.A.P. 1st Cir.
2008); In re Melillo, 392 B.R. 1 (B.A.P. 1st Cir. 2008): In re Wells, 407 B.R. 873 (Bankr. N.D.
Ohio 2009); In re Hess, 404 B.R. 747 (Bankr. S.D.N.Y. 2009); In re Tammarine, 405 B.R. 465
(Bankr. N.D. Ohio 2009); In re Regan, 2009 WL 1067197 (Bankr. D. Mass. 2009); In re
Transcapital Financial Corp., 2009 WL 1116842 (Bankr. S.D. Fla. 2009); In re Keefer, 2009 WL
1587593 (Bankr. N.D. Ohio 2009); In re Freeman, 2009 WL 1107916 (Bankr. W.D. Pa. 2009);
In re Cramer, 406 B.R. 267 (Bankr. M.D. Pa. 2009); In re Peterson, 2009 WL 994945 (Bankr.
N. D. Ill. 2009); In re Pettingill, 403 B.R. 624 (Bankr. E.D. Ark. 2009); In re King, 2009 WL
960766 (Bankr. E.D.Va. 2009); In re Waston, 402 B.R. 294 (Bankr. N.D. Ind. 2009); In re
Nixon, 400 B.R. 27 (Bankr. E.D. Pa. 2008); In re Day, 2008 WL 5191683 (Bankr. D.N.M.
2008); In re Plastech, 399 B.R. 1 (Bankr. E.D. Mich. 2008); In re Charlton, 2008 WL 5539789
(Bankr. D. Kan. 2008): In re Plourde, 397 B.R. 207 (Bankr. D.N.H. 2008); In re Massaquoi,
2008 WL 4861513 (Bankr. E.D. Pa. 2008); In re Lundberg, 2008 WL 4829846 (Bankr. D. Conn.
2008); In re Briana, 2008 WL 4833083 (Bankr. D. Mass. 2008); In re Fleming, 2008 WL
4736269 (Bankr. E.D. Va. 2008); In re Taylor, 2008 WL 4723364 (Bankr. D. Mont. 2008); In re
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Jones, 2008 WL 4539486 (Bankr. D. Mass. 2008); In re Taylor, 2008 WL 4286500 (Bankr. D.
Mont. 2008); In re Simpson, 2008 WL 4216317 (Bankr. N.D. Ala. 2008); In re Rose, 2008 WL
4205364 (Bankr. E.D. Tenn. 2008); In re Hayes, 393 B.R. 259 (Bankr. D. Mass. 2008); In re
Purney, 2008 WL 3876130 (Bankr. N.D. Ohio 2008); In re Hight, 393 B.R. 484 (Bankr. S.D.
Tex. 2008); In re Prevo, 394 B.R. 847 (Bankr. S.D. Tex. 2008); In re Ginko Associates, L.P.,
2008 WL 3200713 (Bankr. E.D. Pa. 2008); In re Dugar, 392 B.R. 745 (Bankr. N. D. Ill. 2008);
In re Samson, 392 B.R. 724 (Bankr. N.D. Ohio 2008); In re Rouse, 2008 WL 2986281 (Bankr.
M.D.N.C. 2008); In re Reyna, 2008 WL 2961973 (Bankr. W.D. Tex. 2008); In re Rogers, 391
B.R. 317 (Bankr. M.D. La 2008); In re Dorway, 2008 WL 5111882 (Bankr. S.D. Fla. 2008); In
re Owens, 2008 WL 2937855 (Bankr. D. Dist. Col. 2008); In re Owens, 2008 WL 2705199
(Bankr. D. Dist. Col. 2008). Even if a proof of claim does not satisfy the requirements of Rule
3001(c) and thus, not prima facie evidence of a claim, absent objection, it will not be
automatically disallowed. In re Rogers, 391 B.R. 317 (Bankr. M.D. La. 2008); In re Todays
Destiny, Inc. 2008 WL 5479109 (Bankr. S.D. Tex. 2008).
A proof of claim is deemed allowed until an objection is filed. If a creditor
subsequently files a timely and properly executed proof of claim, such claim supercedes the
debtors Schedules. FRBP 3003(c)(4).
presented to overcome the prima facie validity, however, the claim will be disallowed. 11
U.S.C. 502(a). The objector must produce sufficient evidence to rebut the presumption raised
by the proof of claim.
preponderance of the evidence that the claim is valid. The claimant bears the ultimate burden of
persuasion. In re Baggett Brothers Farm, Inc., 2008 WL 3979493 (N.D. Fla. 2008); In re
Depugh, 2009 WL 1657473 (Bankr. S.D. Tex. 2009); In re Shafer, 2009 WL 1241307 (Bankr.
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E.D. N.C. 2009): In re Cordier, 2009 WL 890604 (Bankr. D. Conn. 2009); In re Briana, 2008
WL 4833083 (Bankr. D. Mass. 2008); In re Baltimore Emergency Services II, 2008 WL
4596619 (Bankr. D. Md. 2008); In re Cleveland, 396 B.R. 83 (Bankr. N.D. Okla. 2008); In re
Miller, 394 B.R. 114 (Bankr. D. S.C. 2008); In re Ealy, 392 B.R. 408 (Bankr. E.D. Ark. 2008);
In re Simon, 2008 WL 2953471 (Bankr. E.D. Va. 2008); In re Agway, Inc. 2008 WL 2827439
(Bankr. N.D.N.Y. 2008); In re Reading Broadcasting Inc., 2008 WL 2705547 (Bankr. E.D. Pa.
2008); In re Young, 390 B.R. 480 (Bankr. D. Me. 2008).
2.
In order to contest a proof of claim or interest, FRBP 3007 requires that the
objection be in writing, be filed and served on the creditor thirty (30) days prior to the hearing
date set for such objection. Most courts have determined that an objection to a claim must only
be served on the claimant at the address and pursuant to the information reflected on the proof of
claim.
Claims objections are contested matters which are governed by FRBP 9014. If an
objection to a claim, however, is joined by a demand for relief of a kind under Rule 7001, it
becomes an adversary proceeding. FRBP 3007. In re Hook, 2008 WL 4482247 (D. Colo. 2008);
In re Taylor, 2008 WL 4723364 (Bankr. D. Mont. 2008)(requesting attorneys fees and costs as
part of a claims objection, requires an adversary proceeding); In re Protected Vehicles, Inc. 392
B.R. 633 (Bankr. D.S.C. 2008); In re Rogers, 391 B.R. 317 (Bankr. M.D. La. 2008)(debtors
request for damages in connection with the filed proofs of claim is properly raised in an
adversary proceeding).
Generally, all parties in interest have standing to object to the filed claims. In re
Burke, 2008 WL 4452133 (D. Colo. 2008)(Chapter 7 debtor has standing to object to proofs of
claim when it appears that, if the contested claim is disallowed there will be a surplus after
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unsecured creditors claims are paid); In re Malsch, 2009 WL 1657475 (Bankr. N.D. Ohio
2009)(a Chapter 7 debtor will have standing to object to a proof of claim if there are sufficient
assets available for distribution to pay all administrative expenses and creditors in full or to any
claim for which the underlying debt is non-dischargeable); In re ULZ, 401 B.R. 321 (Bank. N. D.
Ill. 2009)(a party-in-interest allowed to object to a proof of claim is anyone who has a legally
protected interest that can be affected by the bankruptcy proceeding); In re Lona, 393 B.R. 1
(Bankr. N.D. Cal. 2008).
E.
As a general rule in cases under Chapters 9 and 11, claims that are not timely filed
are disallowed, and any creditor who files a late claim is prohibited from participating in the case
and receiving any payment with respect to its claim. FRBP 3003. In a Chapter 11 case, a proof
of claim is deemed filed if it appears in the Schedules and is not scheduled as disputed,
contingent, or unliquidated. In re Seaquest Diving, LP, 2008 WL 243670 (Bankr.S.D.Tex.
2008). Even if the debtor subsequently amends its schedule to reflect that the claim is disputed,
a claim will still be considered timely if the amendment to the schedule was made after the
deadline to file a proof of claim. Id.
There is, however, one exception to this rule. FRBP 9006(b)(1) allows the court
to enlarge the time for filing a proof of claim, if the claimant establishes that the delay in filing is
due to excusable neglect. In Pioneer Investment Services Company v. Brunswick Associates
Limited Partnership, 507 U.S. 380, 113 S. Ct. 1489, 1498 (1993), the United States Supreme
Court articulated a non-exclusive balancing test which examined the following factors to
determine whether a claimants neglect in filing a timely proof of claim was excusable:
1.
2.
The length of the delay and its potential impact on the judicial
proceedings;
3.
The reason for the delay, including whether the delay was beyond the
reasonable control of the person whose duty it was to perform; and
4.
As with the application of any balancing test, the courts, using the Pioneer
standard, have great discretion in deciding whether to allow an untimely-filed proof of claim.
Accordingly, all of the published decisions discussing the Pioneer balancing test are very fact
specific. For examples of cases in which the courts apply the Pioneer standard, see In re Delphi
Corp., 2009 WL 803598 (S.D.N.Y. 2009)(the bankruptcy court correctly applied the Pioneer
factors and denied the request of the claimant to file a late claim because the debtor would be
prejudiced and allowing late filings would open the door to the other late claimants); In re
Smidth & Co., 2009 WL 704062 (D. Del. 2009)(late-filed claim disallowed because of the
creditors failure to timely file the claim did not qualify as excusable neglect); In re Continuum
Care Services, 398 B.R. 708 (Bankr. S.D. Fla. 2008)(attorneys mistake of failing to timely file
proof of claim was not excusable neglect); In re Peninsular Oil Corp., 399 B.R. 532 (Bankr.
M.D. Fla. 2008)(failure of claimant to hire counsel or file the proof of claim until two years after
the claims bar date is not excusable neglect); In re Asarco, LLC, 2008 WL 4533733 (S.D. Tex.
2008)(claimants failed to establish that their failure to act is the result of excusable neglect and
all four of the Pioneer factors weigh in favor of the debtor).
2.
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reasons for a creditor not filing a proof of claim in a timely manner, and that the Pioneer
excusable neglect standard does not apply.
With the enactment of the 1994 amendments and the addition of 502(b)(9), most
courts have consistently held that untimely filed claims filed in Chapter 7 and 13 cases must be
disallowed, even if the creditor did not receive notice of the filing or the claims bar date. See In
re Mozingo, 2009 WL 703206 (Bankr. E.D.N.C. 2009)(the courts power to extend the deadline
for filing a proof of claim in a chapter 13 case is limited to the exceptions provided under FRBP
3002(c)); In re Todays Destiny, Inc., 2008 WL 5479109 (Bankr. S.D. Tex. 2008)(tardily-filed
proofs of claim in a chapter 7 case are automatically subordinated by law under 11 U.S.C.
726(a)(3)); In re Houston, 2008 WL 104076 (Bankr.D.Dist.Col. 2008).
F.
purpose is to cure a defect in the original claim, to describe the claim with greater particularity or
to plead a new theory of recovery on the facts set forth in the original claim. In re Sacko, 394
B.R. at 96 (a creditor will be allowed to amend the claim filed by the debtor under FRBP 3004
within a reasonable time after it was filed). But see In re Joy Global, Inc., 2009 WL 1442694
(D.Del. 2009)(claim amended over eight years after the claims bar date is untimely and will not
be considered by the court); In re Gilbreath, 395 B.R. 356, 367 (Bankr. S.D. Tex. 2008)(creditors
should not be permitted to file woefully deficient proofs of claim in hopes that the debtor will
not object and then file amendments at the eleventh hour and rely on the amendments at the
hearing). See also In re Winn-Dixie Stores, Inc., 2009 WL 980798 (M.D. Fla. 2009)(bankruptcy
court did not err in denying claimants post-confirmation amendment to their claims after stock
had been issued under the terms of the confirmed plan).
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G.
Transferring Claims
Claims may be transferred, both before and after a proof of claim is filed. FRBP
3001(e). Rule 3001(e) sets the procedures for transferring previously filed claims. Rule 3001(e)
was amended in 1991 to limit the court's role to the adjudication of disputes regarding transfers
of claims. If a timely objection is filed, the court's role is to determine whether a transfer has
been made that is enforceable under non-bankruptcy law. Only the transferor has standing to
object to the assignment of the claim.
(Bankr.D.Md. 2008).
H.
Claims Reconsideration
The Bankruptcy Code allows a court to reconsider an allowed or disallowed claim
for cause according to the equities of the case. 11 U.S.C. 502(j) and FRBP 3008. Factors to
be considered in determining cause are: 1) extent and reasonableness of the delay; 2) prejudice to
a party in interest; 3) effect on efficient court administration; and 4) moving party's good faith.
U.S. Bank National Association v. U.S. Environmental Protection Agency, 563 F.3d 199, 208
(6th Cir. 2009)(reconsideration of a claim is within the discretion of the court); In re Smith, 305
Fed. Appx. 683 (2nd Cir. 2008)(if reconsideration is granted, the court may allow or disallow the
claim according to the equities of the case); In re Best Payphones, Inc., 2008 WL 2705472
(Bankr. S.D.N.Y. 2008); In re Russell, 386 B.R. 229 (B.A.P. 8th Cir. 2008); In re Shepard, 2009
WL 1658124 (Bankr. W.D. Mo. 2009). Many courts look to Rule 60(b) for the standards for
reconsideration of claims and the definition of cause. See In re Tender Loving Care Health
Services, Inc., 562 F.3d 158 (2nd Cir. 2009)(an objection to claim is a contest triggering the one
year limitation in Rule 9024, therefore the reconsideration of the claim more than one year after
the claim was allowed was improper by the bankruptcy court); In re Butler, 2009 WL 103351
(S.D. Ohio 2009)(a bankruptcy court exercises broad discretion in determining whether to
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of a claim as of the date of the filing of the petition. 11 U.S.C. 502. The court must determine
the amount of the claim in United States currency by using the exchange rate that prevails as of
the petition date. In re LeBlanc, 404 B.R. 793, 798 (Bankr. M.D. Pa. 2009); In re Global Power
Equip. Group, Inc., 2008 WL 435197 (Bankr. D. Del. 2008).
A majority of bankruptcy courts have determined that a proof of claim may only
be disallowed based upon the nine statutory reasons enumerated in 11 U.S.C. 502(b). In re
Lentz, 405 B.R. 893, 897 (Bankr. N.D. Ohio 2009)(filing a proof of claim with debtors
unredacted Social Security number and her non-filing daughters full name and date of birth was
not grounds for disallowing the claim); In re Rogers, 391 B.R. at 322 (failure to attach
supporting documentation to a proof of claim is not grounds for disallowing the claim); In re
Hill, 399 B.R. 472 (Bankr. W.D. Ky. 2008)(that assignee of credit card debt may have paid
significantly less than face amount of credit card debt did not provide a basis for disallowing the
claim).
B.
"such claim is unenforceable against the debtor and property of the debtor, under any agreement
or applicable law for a reason other than because such claim is contingent or unmatured." In re
SNTL Corporation, ___ F.3d ___ (9th Cir. 2009)(rejecting the majority line of cases that finds
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that Section 502(b)(1) precludes the allowance of attorneys fees arising out of a pre-petition
contract but incurred post-petition, the court held that fees claims for post-petition attorneys fees
cannot be disallowed simply because the claim of the creditor is unsecured); In re Glatzer, 2008
WL 4449439 (S.D.N.Y. 2008)(any defense to a claim outside of bankruptcy is also available in
bankruptcy); In re Rogers, 405 B.R. 428 (M.D. La. 2009)(Section 502(b)(1) contemplates a
creditor filing a proof of claim on time-barred debt, therefore filing the claim cannot be the basis
for a cause of action by the debtor under the Fair Debt Collection Practices Act); In re Hess, 404
B.R. at 751 (claims barred by statute of limitations under applicable state law will be disallowed
if asserted in proofs of claim); In re Premier Entertainment Biloxi, LLC, 2009 WL 1230795
(Bankr. S.D. Miss. 2009)(liquidated damages are not allowed under Mississippi law and
therefore not enforceable in bankruptcy); In re Hall, 403 B.R. 224 (Bankr. D. Conn. 2009)(claim
based upon a judgment disallowed when the court determined that the State court lacked
personal jurisdiction over the debtor); In re ULZ, 401 B.R. 321 (Bankr. N.D. Ill. 2009)(a claim
based upon an assignment of a judgment against a debtor is not enforceable under Illinois law);
In re McGregor, 398 B.R. 561 (Bankr. N.D. Miss. 2008)(a proof of claim statutorily barred by a
period of limitations may be disallowed under Section 502(b)(1), but the filing of the claim does
not constitute a cause of action); In re Plastech Engineered Products, 399 B.R. 1 (Bankr. E.D.
Mich. 2008)(the bank was not a secured creditor under the terms of the security agreement); In re
Stauder, 396 B.R. 609 (Bankr. M.D. Pa. 2008)(failure to produce an assignment to the current
holder of the claim is sufficient to disallow the claim); In re W.R. Grace & Co., 397 B.R. 701
(Bankr. D. Del. 2008); In re Pearce, 2008 WL 5096009 (Bankr. E.D. La. 2008); In re Ginther,
2008 WL 4533714 (Bankr. S.D. Tex. 2008); In re Cleveland, 396 B.R. at 99 (when debtor
presents no evidence to rebut the claimants evidence with respect to validity, ownership or
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amount of the claim, the court cannot disallow it); In re Andrews, 394 B.R. at 389; In re
Williams, 395 B.R. 33 (Bankr. S.D. Ohio 2008); In re Partners Group Financial, LLC, 394 B.R.
68 (Bankr. E.D. Pa. 2008); In re Simpson, 2008 WL 4216317 (Bankr. N.D. Ala. 2008). In
determining the amount of a claim which has been objected to, the bankruptcy court must first
look to the law that gave rise to the claim.
2008)(alleged assignees failure to provide any proof of its ownership of the credit card account
as required under Massachusetts law for it to enforce the alleged debt is sufficient grounds for
disallowance of the claim); In re Van Eck, 2009 WL 981141 (Bankr. D. Conn. 2009)(bankruptcy
courts are required to consult state law in determining the validity of most claims); In re Brown,
403 B.R. 1 (Bankr. E.D. Ark. 2009)(the enforceability of the claim based upon credit card debt
was determined by state law); In re Baltimore Emergency Services II, 401 B.R. 209 (Bankr. D.
Md. 2008)(claim is disallowed when there is no evidence it would be enforceable under state
law).
C.
petition interest) on unsecured claims. In re Taylor, 2008 WL 4723364 (Bankr. D. Mont. 2008).
There is an exception to this rule, however, when a debtor is solvent. In re W.R. Grace & Co.,
2009 WL 1469831 (Bankr. D. Del 2009).
Although under section 502(b)(2), post-petition interest on unsecured claims
cannot be charged against the debtor, interest on non-discharged debts continues to run against
the individual debtor. In re Benum, 386 B.R. 59 (Bankr.D.N.J. 2008).
D.
that such claim is for a tax assessed against property of the Estate, and such claims exceed the
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value of the interest of the Estate of such property. In re Van Beckum, 2009 WL 122754
(Bankr. E.D. Wis. 2009)(real property tax claims are disallowed when the property has been sold
at foreclosure).
E.
(b) [T]he court . . . shall allow [a] claim . . ., except to the extent that -(6)
if such claim is the claim of the lessor for damages resulting from the termination of a lease of real
property, such claim exceeds-(A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to
exceed three years, of the remaining term of such lease, following the earlier of -(i) the date of the filing of the petition; and
(ii) the date on which such lessor repossessed, or the lessee surrendered the leased property; plus
(B)
any unpaid rent due under such lease, without acceleration, on the earlier of such dates.
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F.
Estimation of Claims
11 U.S.C. 502(c)3 allows the bankruptcy court to estimate, for purposes of
allowance, any contingent or unliquidated claim, if the liquidation of such claim would unduly
delay the administration of the bankruptcy case. Neither the Bankruptcy Code nor the Rules
provides any guideline for estimation. The bankruptcy judge may use any method suited to the
particular contingencies at issue. In re Kivler, 2009 WL 1545821 (Bankr. D. N.J. 2009)(court
estimated a malpractice claim); In re Cantu, 2009 WL 1374261 (Bankr. S.D. Tex. 2009)(court
estimated claim for voting purposes under the plan); In re Englehaupt, 2009 WL 691294 (Bankr.
C.D. Ill. 2009); In re Leidheiser, 2009 WL 1587431 (Bankr. N.D. Ohio 2009); In re Simon, 2008
WL 2953471 (Bankr. E.D. Va. 2008).
G.
avoidable transfer and must first return the transfer before it can participate in the distribution of
the estate. The courts are unsettled as to whether a judicial order is required to object to a claim
using 502(d). In re Falcon Products, Inc., 2009 WL 248596 (Bankr. E.D. Mo. 2009)(the use of
502(d) to disallow a claim is dependent upon establishing liability for an avoided transfer); In re
IFS Financial Corp., 2008 WL 4533713 (Bankr. S.D. Tex. 2008)(section 502(d) operates to
enforce orders and judgments and not to disallow claims based on theoretically avoidable
(c)
(1)
any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would
unduly delay the administration of the case; or
(2)
any right to payment arising from a right to an equitable remedy for beach of performance.
-17-
transfers). See also In re Popular Club Plan, Inc., 395 B.R. 587 (Bankr. D. N.J. 2008)(section
502(d) is limited in its application to providing a debtor with a defense to a creditors claim and
did not confer reciprocal rights on a creditor to dispute avoidance actions on the basis of
previously settled claims).
The bankruptcy court in In re Sentinental Management Group, Inc., 398 B.R. 281
(Bankr. N.D. Ill. 2008), however, held that the debtor could in its plan separately classify the
claims of creditors against which the debtor had an avoidance action and withhold distribution
until final resolution of the pending adversary proceeding without violating 11 U.S.C.
1123(a)(4).
In a case of first impression, the court in In re Plastech Engineered Products, 394
B.R. 147 (Bankr. E.D. Mich. 2008) held that 502(d) does not apply to administrative expenses,
including those arising under 11 U.S.C. 503(b)(9).
H.
contribution of a co-debtor, surety, or guarantor of any obligation of the debtor that is contingent
as of the time of allowance or disallowance of the claim. In re Altheimer & Gray, 393 B.R. 603
(N.D. Ill. 2008)(a claim for indemnification and reimbursement must be disallowed when the
underlying claim is disallowed); In re Agway, Inc., 2008 WL 2827439 (Bankr. N.D.N.Y. 2008);
In re Alper Holdings USA, 2008 WL 4186333 (Bankr. S.D.N.Y. 2008).
IV.
SUBORDINATION
A.
Subordination Agreements
11 U.S.C. 510(a) provides that a subordination agreement is enforceable in a
case under this title to the same extent that such agreement is enforceable under applicable
nonbankruptcy law. If the subordination provisions are clear on their face, the words should be
-18-
given their plan and ordinary meaning. In re Enron Creditors Recovery Corp., 380 B.R. 307
(S.D.N.Y. 2008)(affirming bankruptcy court's decision with regards to the respective rights of
the indentures). But see In re Bank of New England Corp., 404 B.R. 17 (Bankr. D. Mass.
2009)(ambiguous language in subordination provisions, which did not clearly provide whether,
in the event issuer filed for bankruptcy relief, payment of junior indebtedness would be
subordinate even to the payment of post-petition interest to senior indenture trustee, would be
interpreted in light of law in effect at the time and would not be subordinate to payment of postpetition interest to the senior indenture trustee).
B.
Sale of Stock
11 U.S.C. 510(b) subordinates claims arising from the purchase or sale of stock4
to the claims of general unsecured creditors. Brown v. Owens Corning Inv. Review Comm., 541
F.Supp.2d 958 (N.D.Ohio 2008). Therefore, the claims of a security holder based upon alleged
fraud, rescission, or other tort in the sale of the security cannot and will not be elevated to the
status of general unsecured claims. "Arising from" requires some nexus or casual link between
the claim and the purchase or sale of security. In re Patriot Aviation Services, Inc., 396 B.R. 780
(Bankr. S.D. Fla. 2008)(claim for damages for chapter 11 debtors alleged breach of a letter of
intent anticipating the sale of secured debt instruments which was never consummated possessed
For purposes of distribution under this title, a claim arising from recession of a purchase or sale of a
security of the debtor or of an affiliate of the debtor, for damages arising from the purchase or sale of such a
security, or for reimbursement or contribution allowed under section 502 on account of such a claim, shall be
subordinated to all claims or interests that are senior to or equal the claim or interest represented by such security,
except that if such security is common stock, such claim has the same priority as common stock.
-19-
the requisite causal connection to the sale of the secured debt instruments and had to be
subordinated to secured debt claims).
C.
Equitable Subordination
Congress enacted 11 U.S.C. 510(c) to codify case law, including Pepper v.
Litton, 308 U.S. 295 (1939). It allows claims to be subordinated under certain circumstances.5
Equitable subordination is remedial rather than penal; therefore, a claim should be equitably
subordinated only to the extent necessary to offset the harm suffered by the debtor and its
creditor as a result of the inequitable conduct.
2008)(subordination is not appropriate unless there is harm to other creditors even if there is
misconduct by insiders). In addition, a creditors claim may only be subordinated to the claims
of other creditors, not to equity interests. In re Winstar Communications, Inc., 554 F.3d 382 (3rd
Cir. 2009)(upheld the determination that equitable subordination was appropriate for the lender
and equipment supplier, but reversed on the subordination of the claim to equity interests).
The seminal case on equitable subordination is Benjamin v. Diamond (In re
Mobile Steel Co.), 563 F.2d 692, 699-700 (5th Cir. 1977), wherein the United States Court of
Appeals for the Fifth Circuit established three requirements for the application of the doctrine of
equitable subordination:
5
(c)
Notwithstanding subsections (a) and (b) of this section, after notice and hearing the court may --
(1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an
allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another
allowed interest; or
(2) order that any lien securing such a subordinated claim be transferred to the estate.
-20-
1.
2.
the misconduct must have resulted in injury to the creditors of the debtor
or conferred an unfair advantage on the claimant; and
3.
When reviewing the first prong of the Mobile Steel test, courts frequently look to
the following three non-exclusive categories of inequitable conduct, enunciated in Wilson v.
Huffman (In re Missionary Baptist Foundation, Inc.), 712 F.2d 206 (5th Cir. 1983), revd on
other grounds, 818 F.3d 1135 (8th Cir. 1997):
1.
2.
undercapitalization; or
3.
F.3d 859 (8th Cir. 2008)(merely receiving preferential transfers is not inequitable conduct, even if
those receiving the transfers are fiduciaries and there can be no equitable subordination without
inequitable conduct); In re Burns Excavating & Concrete Construction, Inc., 2008 WL 5064271
(S.D. Ill. 2008)(section 510(c) requires some evidence of wrongdoing); In re Morande
Enterprises, 2008 WL 4459143 (M.D. Fla. 2008)(section 510(c) requires inequitable conduct and
cannot be used to subordinate tax penalties); In re Montagne, 2009 WL 1065427 (Bankr. D. Vt.
2009)(an equitable subordination cause of action must allege misconduct); In re Thurston, 2008
WL 4866180 (Bankr. D. Neb. 2008)(a finding of inequitable conduct is fact specific); In re
Delphi Corp., 2008 WL 3486615 (Bankr. S.D.N.Y 2008)(section 510(c) requires more that an
breach of contract; it requires advantage taking).
A creditor sued for equitable subordination does not have the affirmative defense
of the unclean hands of the debtor. In re Automotive Professionals, Inc., 398 B.R. 256 (Bankr.
N.D. Ill 2008).
#11319806 v1
-22-
UPDATE ON EXEMPTIONS
JUDITH W. ROSS
BAKER BOTTS L.L.P.
2001 ROSS AVENUE
DALLAS, TX 75201-2980
214.953.6500
judith.ross@bakerbotts.com
DAL02:544284.3
UPDATE ON EXEMPTIONS
This paper reflects developments in the area of exemptions since November 2008. It
does not purport to include every case decided in the area, but includes cases that should be of
interest to most practitioners regardless of where they practice law.
Is the Homestead Exemption Available to Debtors Who Fraudulently Transferred the
Homestead but Cured Such Fraudulent Transfer Pre-Petition?
1.
In this case, the Court of Appeals for the First Circuit considered whether a debtors
homestead exemption may be denied under 11 U.S.C. 522(g) if the residential property was
fraudulently transferred but reconveyed pre-petition in response to actions taken by a creditor.
The bankruptcy court denied the debtors claimed homestead exemption; however the
bankruptcy appellate panel ruled in favor of the debtor on this issue. The Court of Appeals
ultimately affirmed the panels decision.
In May of 2004, the debtors, David Hill and Tina Hill, purchased a home with $550,000
in cash and $450,000 in the form of a mortgage loan. No homestead declaration was recorded on
the property. Prior to this purchase, in the year 2000, Mrs. Hill personally guaranteed a loan
made to a creditor corporation.
In August of 2004, the debtors transferred the home to be held exclusively by Mrs. Hill
for $1.00. Mrs. Hill then recorded a declaration of homestead. On January 18, 2005, the creditor
sued on the guaranty and sought to attach the home. In its suit, it alleged that the home had been
fraudulently conveyed. In effort to correct the potential problems caused by the conveyance, the
debtors reconveyed the home to their joint names and recorded a declaration of homestead.
In April of 2005, the debtors filed a bankruptcy petition under chapter 7. In so doing,
they claimed a $500,000 homestead exemption under Massachusetts law. The creditor objected.
The bankruptcy court capped the homestead exemption at $125,000 because the home had been
acquired within 1,215 days of the filing of the bankruptcy petition. In addition, the court held
the exemption was not available at all because the home had been voluntarily transferred and
then reconveyed as a result of a creditors efforts. Finally, the bankruptcy court refused to grant
the debtors a discharge because it found that the debtors transferred the property with the intent
to hinder, delay, or defraud a creditor. The bankruptcy appellate panel upheld the denial of the
discharge, but ruled that the statutory cap was inapplicable and that the exemption was available
because section 522(g) only applies to property that the trustee recovers, whereas here the home
was reconveyed as a result of the creditors actions.
The Court of Appeals for the First Circuit focused its analysis on the plain reading of
section 522(g). The court concluded that the words trustee and creditor are not synonymous
and the section only applies to property the trustee recovers under chapter 5 of the Bankruptcy
Code. The court also determined that the term recovers required that there be a net gain by the
bankruptcy estate. Here, the home was reconveyed prior to the filing of the petition and thus
prior to the existence of the estate.
DAL02:544284.3
-1-
As a matter of policy, the court agreed that most of the time, recoveries by trustees are for
the benefit of the estate and not the debtors. The court cited legislative history evidencing a
congressional desire to not have the trustee make the effort to recover fraudulently transferred
property only to have the debtor later exempt it. Here, however, the fraudulent transfer was
voluntarily cured pre-petition. Even though the suit by the creditor prompted the reconveyance,
the exemption was still available to the debtors.
Does the Supremacy Clause Preclude States from Opting Out of the Federal Exemption
Regime and Creating Exemptions That Apply Only to Bankruptcy Cases?
2.
This opinion resulted from consolidated appeals from eight bankruptcy cases filed by
individual debtors in West Virginia. In these cases, the debtors claimed that all of their property
was exempt from the bankruptcy estate under West Virginia Code 38-10-4. The trustee
objected, arguing that this statute is preempted by federal law or otherwise violated the
supremacy clause of the Constitution. The bankruptcy court overruled the trustees objection
and allowed the exemptions. The Court of Appeals for the Fourth Circuit affirmed the
bankruptcy courts decision, holding that state exemptions that apply only in bankruptcy
proceedings do not violate the supremacy clause.
The Bankruptcy Code allows debtors to choose either exemptions under federal
bankruptcy law (unless state law prohibits such option) or exemptions under state law together
with exemptions under federal non-bankruptcy law. However, states may opt out and remove
the federal bankruptcy exemptions as an option. West Virginia chose to opt out under that
statute. The West Virginia statute also provides exemptions that are similar to federal
bankruptcy exemptions, and which only apply in bankruptcy proceedings. The debtors relied on
these bankruptcy-like exemptions in claiming that all of their property was exempt.
The trustee argued that state exemptions that apply only in federal bankruptcy proceeding
are preempted by the federal bankruptcy exemptions provided in the bankruptcy code. The
trustee further argued that state exemption laws that apply only in bankruptcy cases are
inconsistent with the Bankruptcy Codes objectives regarding the distribution of assets. The
court held that Congress, through section 522(b)(1) of the Bankruptcy Code, gave states the
authority to grant residents only those exemptions allowed under state law. As a result, there is
an express delegation to the states of the power to create exemptions , and therefore there was no
preemption of West Virginias statute. By this holding, the Court of Appeals for the Fourth
Circuit determined that Congress did not mandate that state exemptions apply equally to
bankruptcy and non-bankruptcy cases.
Claiming a Homestead Exemption on Property Held by a Limited Partnership
3.
In this case, the debtor filed a Chapter 11 petition and claimed a homestead exemption on
certain property. However, debtors limited partnership, and not the debtor, owned the property.
The District Court held that on the date the chapter 11 petition was filed, the debtor did not have
DAL02:544284.3
-2-
the requisite ownership interest in the property to meet Floridas requirements for claiming a
homestead exemption.
The Florida statute (Fla. Const. Art. X, 4(a)) requires that the property subject to the
claim for a homestead exemption must be owned by a natural person. The debtor argued that
she, as the claimant, is a natural person. However, the court dismissed this argument as being
contrary to the express language of the statute. As a result, the court turned its focus to whether
the debtor owned the property on the filing date.
The debtor was the 100% stockholder of the general partner of the limited partnership
that held the property. In addition, the debtor was the sole beneficiary of a trust which was the
99% limited partner of the limited partnership. The debtor conceded that a stockholder could not
claim a homestead exemption. However, the debtor argued that she was claiming the exemption
as the beneficiary of the trust. In support of this argument, the debtor cited several cases
allowing beneficiaries of a revocable trust to claim property held by the trust as an exempt
homestead. The court ultimately held that these cases were distinguishable because in each of
them, the property was actually held by the trust. The debtor could not provide any cases
reaching the same conclusion for limited partnerships.
The court distinguished between revocable trusts and limited partnerships on the grounds
that a debtor could revoke a trust at any time and the property would revert to the debtor, which
results in a beneficial ownership that is sufficient to claim the homestead exemption. This is not
true, however, of limited partnerships.
What Factors May be Considered in Considering Whether a Private Retirement Plan is For
Retirement Purposes and Therefore Eligible for Exemption?
4.
In 1997, Loyd Rucker was sued by an individual and had judgment rendered against him.
In 2001, the Rucker established and began funding a defined benefit pension plan and several
401(k) plans. Rucker was the sole employee beneficiary of these plans. He had also over funded
these plans according to limits imposed by the Internal Revenue Code. In addition, Rucker
failed to accurately disclose these contributions. The pension plan purchased real property in
2003, where Rucker lived rent free for six months. Other than this free rent, Rucker did not
withdraw any other funds from the plans.
Rucker filed for chapter 7 relief in 2005 to avoid the collection efforts of the judgment
creditor. Under California law, a debtor is eligible for an exemption for all amounts held,
controlled, or in process of distribution by a private retirement plan. The judgment-creditor
objected to this exemption, arguing the plans did not qualify because they were not designed or
used primarily for retirement purposes. The bankruptcy court sustained the objection because it
found that the debtor used the plans to shield his assets from the judgment creditor. The court
emphasized that the debtor over funded the plans, that he took the free rent and that he did not
fully disclose the contributions to the IRS. The debtor appealed and the District Court reversed
based on the fact that the plans were designed and used primarily for retirement purposes.
DAL02:544284.3
-3-
The Court of Appeals for the Ninth Circuit first held that the District Court should not
have reviewed the decision of the bankruptcy court de novo, but rather should have used the
clear error standard for its review. The court acknowledged that the exemption itself has a
valid purpose in allowing a judgment debtor to place funds beyond the reach of creditors if they
qualify for the exemption under law. The plan must still be designed and used, however, for
retirement purposes. Certain other factors, including the subjective intent of the debtor, can be
considered in determining the purposes of the plan.
The Court of Appeals reasoned that the lack of loans or withdrawals was an important
factor, but only a review of the totality of the circumstances can fully answer the question of
whether the plan was used primarily for retirement purposes. Ultimately, the court held that
under a clear error standard and based on the totality of the circumstances, the Bankruptcy
Courts ruling should have been upheld. The Court emphasized the egregious and deceptive
conduct by the debtor in funding the plans; the debtor over funded the plans, lied to the IRS, and
secretly contributed money to the plans using an offshore corporation and foreign bank account.
The court decided that a debtor with a genuine retirement purpose would not engage in this kind
of conduct. Finally, the fact that the debtor caused the corporations to contribute more to the
plans than they paid to the debtor in wages and the fact that the debtor admitted that he never
intended to pay the judgment also influenced the courts decision.
When a married couple claims two homesteads, can one spouse release a homestead on
property that is solely owned by the other spouse?
5.
In Gunnison, a Massachusetts bankruptcy court was faced with two interesting issues of
first impression: (i) whether a husband and wife living apart can each claim a separate
homestead exemption on different properties where one property is solely owned, and
(ii) whether one spouse can release a prior homestead declared by, and covering a property solely
owned by, the other spouse by declaring a subsequent homestead on a different property.
Jennifer and Brian Gunnison filed a chapter 13 petition as co-debtors and listed two
residences as exempt on their bankruptcy schedules. Although married, the Gunnisons lived
apart, and together they sought to retain the equity in the two properties. Prior to the bankruptcy,
Jennifer had filed a homestead declaration on Property A in 2007, which she solely owned.
Brian had filed a homestead declaration on Property B in 2008. The chapter 13 trustee objected
to the exemption of Property A, claiming that the second filing on Property B divested the couple
of their homestead in Property A, rending $88,000 in equity non-exempt and available for
distribution through their chapter 13 plan.
In construing the Massachusetts homestead statute, the Bankruptcy Court first held that
although the Debtors were separated in fact, they remained legally married and thus constituted a
single family for purposes of the homestead statute. The result of this interpretation was that
only one of the two homestead declarations could be valid. The debtors argued that because
Jennifer owned Property A separately, Brian could not release the familys homestead thereon by
declaring a homestead on Property B. The Court disagreed and held that regardless of whether
Property A was held solely by Jennifer or jointly between the debtors, the acquisition of a new
DAL02:544284.3
-4-
homestead estate by Brian, as a member of her family and for her benefit, terminated the prior
homestead estate. The trustees objection was sustained and the debtors were denied the
exemption.
DAL02:544284.3
-5-
Martin J. Bienenstock
Dewey & LeBoeuf LLP
Table of Contents
1.
SECTION 363 SALES FREE AND CLEAR V. SUB ROSA CHAPTER 11 PLANS..................... 1
A.
INDIANA STATE POLICE PENSION TRUST V. CHRYSLER LLC (IN RE CHRYSLER LLC), ___ F.3D ___
(2D CIR., AUGUST 5, 2009).......................................................................................................................... 1
i. Facts ............................................................................................................................................... 1
ii. Issues .............................................................................................................................................. 1
iii.
Holdings ..................................................................................................................................... 2
iv.
Rationale..................................................................................................................................... 3
v. Analysis........................................................................................................................................... 3
2. THE BANKRUPTCY CODE DOES NOT PER SE DISALLOW PREPETITION CLAIMS FOR
ATTORNEYS FEES INCURRED LITIGATING POSTPETITION BANKRUPTCY ISSUES......... 5
A.
TRAVELERS CASUALTY & SURETY CO. OF AMERICA V. PACIFIC GAS & ELECTRIC CO., 549 U.S.
443 (2007)................................................................................................................................................... 5
i. Facts. .............................................................................................................................................. 5
ii. Issue ................................................................................................................................................ 6
iii.
Holding ....................................................................................................................................... 6
iv.
Rationale..................................................................................................................................... 6
B.
VIOLATION OF TRAVELERS? NATIONAL ENERGY & GAS TRANSMISSION, INC. V. LIBERTY
ELECTRIC POWER, LLC (IN RE NATIONAL ENERGY & GAS TRANSMISSION, INC.), 492 F.3D 297 (4TH CIR.
2007), REHEARING DENIED (AUGUST 6, 2007) ............................................................................................ 7
i. Facts ............................................................................................................................................... 7
ii. Issues .............................................................................................................................................. 8
iii.
Judgments ................................................................................................................................... 8
iv.
Rationale..................................................................................................................................... 9
v. Analysis and Implications ............................................................................................................... 9
1. The Judgments Reliance on principles of equity Does Not Identify the Equity Accomplished because
There is None....................................................................................................................................................... 9
2. The Judgment Yields Illogical and Absurd Consequences Demonstrating its Fallacy.............................. 10
3. The Judgment Resulted from Arbitrary Sequencing. ................................................................................ 11
4. The Judgment Undermines Public Policy ................................................................................................. 12
C. TRAVELERS AND 11 U.S.C. 1123(D) SUPPORT DEFAULT RATE INTEREST IN GENERAL ELECTRIC
CAPITAL CORP. V. FUTURE MEDIA PRODUCTIONS INC., 536 F.3D 969 (9TH CIR. 2008)...............................12
i.Facts ....................................................................................................................................................12
ii. Issues .................................................................................................................................................12
iii.
Holdings ....................................................................................................................................12
iv.
Rationale....................................................................................................................................13
v. Analysis..........................................................................................................................................13
3. NON-DEBTORS CAN NOT DEPRIVE DEBTORS POSTPETITION OF THE OPTION TO
ASSUME OR REJECT EXECUTORY CONTRACTS ..........................................................................14
A.COR ROUTE 5 CO. V. PENN TRAFFIC CO. (IN RE PENN TRAFFIC CO.), 524 F.3D 373 (2D CIR. 2008)......14
i. Facts ..............................................................................................................................................14
ii. Issues .............................................................................................................................................15
iii.
Holding ......................................................................................................................................15
iv.
Rationale....................................................................................................................................15
v. Analysis..........................................................................................................................................16
B.SPECIFIC PERFORMANCE ........................................................................................................................18
i. Specific Performance under the UCC ................................................................................................18
ii. Specific Performance of Real Property Sales Granted by the Bankruptcy Code ..........................20
iii.
Rights to Specific Performance Are Often Nondischargeable ...................................................27
4.
A.
5.
ALFS V. WIRUM (IN RE STRAIGHTLINE INVESTMENTS, INC.), 525 F.3D 870 (9TH CIR. 2008) ...........36
i. Facts ..............................................................................................................................................36
ii. Issues .............................................................................................................................................36
iii. Holdings ...........................................................................................................................................37
iv.
Rationale....................................................................................................................................37
v. Punitive Damages? ........................................................................................................................38
ARE TRIANGULAR SETOFF AGREEMENTS ENFORCEABLE IN TITLE 11 CASES? ......38
A.IN RE SEMGROUP, L.P., 399 B.R. 388 (BANKR. D. DEL. 2009) (BLS) ....................................................39
i.Facts ....................................................................................................................................................39
ii. Issues .............................................................................................................................................39
iii.
Holdings ....................................................................................................................................40
iv.
Rationale....................................................................................................................................41
v. Analysis..........................................................................................................................................43
6. MUCH DIMINISHED STATE SOVEREIGN IMMUNITY IN THE BANKRUPTCY COURT ....60
A.CENTRAL VIRGINIA COMMUNITY COLLEGE V. KATZ, 546 U.S. 356, 126 S. CT. 990 (2006)...................60
i. Facts. .............................................................................................................................................60
ii. Issue. ..............................................................................................................................................60
iii.
Holding ......................................................................................................................................60
iv.
Rationale....................................................................................................................................61
B.TENNESSEE STUDENT ASSISTANCE CORPORATION V. HOOD, 124 S. CT. 1905 (2004) ............................64
i. Facts. ..................................................................................................................................................64
ii. Issue...................................................................................................................................................64
iii.Holding..............................................................................................................................................65
iv.
Rationale....................................................................................................................................65
v. The Eleventh Amendment provides: ..............................................................................................65
C. SUPREME COURT PRECEDENTS GOVERNING ENFORCEMENT OF FEDERAL BANKRUPTCY LAW AGAINST
STATES .......................................................................................................................................................66
i. The Discharge of a Debt by a Bankruptcy Court ..............................................................................66
ii. States are Bound by Bankruptcy Discharges Whether They Participate or Not ...............................66
iii. But, Bankruptcy Court Enforcement of a Bankruptcy Discharge against a State is An Open
Question.................................................................................................................................................66
vi.
Sales Free and Clear .................................................................................................................67
D. HOODS UNANSWERED QUESTION: WHETHER CONGRESS CAN CONSTITUTIONALLY ABROGATE
STATES SOVEREIGN IMMUNITY FROM PRIVATE SUITS UNDER THE BANKRUPTCY CODE...........................67
7. STATE LAW CAN NOT OUST FEDERAL BANKRUPTCY COURTS OF SUBJECT
MATTER JURISDICTION GRANTED BY 28 U.S.C. 1334 ...............................................................70
A.
IN RE OAKWOOD HOMES CORPORATION, 449 F.3D 588 (3D CIR. 2006)(2-1) .................................72
i. Facts ..............................................................................................................................................72
ii. Issue ...............................................................................................................................................73
iii.
Holding ......................................................................................................................................73
iv.
Rationale....................................................................................................................................73
v. An Easier Way ...............................................................................................................................74
B.
WHEN DEBT IS RESTRUCTURED BY EXCHANGING DEBT, FOR DEBT IN THE SAME FACE AMOUNT
WITH DIFFERENT COVENANTS, THE DIFFERENCE BETWEEN THE NEW DEBTS TRADING VALUE AND PAR IS
NOT UNALLOWABLE ORIGINAL ISSUE DISCOUNT .......................................................................................74
i. Facts. .............................................................................................................................................75
ii
4.
iii
i. Facts. .............................................................................................................................................99
ii. Issue. ..............................................................................................................................................99
iii.
Holding. .....................................................................................................................................99
iv.
Rationale..................................................................................................................................100
v. Analysis........................................................................................................................................100
5. WHEN DO LEASE ASSIGNMENTS RENDER APPEALS MOOT PURSUANT TO 11 U.S.C.
363(M)? ......................................................................................................................................................100
A.WEINGARTEN NOSTAT, INC. V. SERVICE MERCHANDISE COMPANY, INC., 396 F.3D 737 (6TH CIR. 2005)
.................................................................................................................................................................100
i. Facts. ...........................................................................................................................................100
ii. Issue. ............................................................................................................................................101
iii.
Holding. ...................................................................................................................................101
iv.
Rationale..................................................................................................................................101
B.MADE IN DETROIT, INC. V. OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF MADE IN DETROIT,
INC. (IN RE MADE IN DETROIT, INC.), 414 F.3D 576 (6TH CIR., 2005) .......................................................102
i. Facts .................................................................................................................................................102
ii. Issue.................................................................................................................................................102
iii. Holding...........................................................................................................................................102
v. Rationale......................................................................................................................................102
13. DOES 11 U.S.C. 363(F) AUTHORIZE A SALE FREE OF A LESSEES POSSESSORY
INTERESTS PRESERVED ON LEASE REJECTION BY 11 U.S.C. 365(H)? ...............................103
A. PRECISION INDUSTRIES, INC. V. QUALITECH STEEL SBQ, LLC (IN RE QUALITECH STEEL CORP.), 327
F.3D 537 (7TH CIR. 2003) ..........................................................................................................................103
i. Facts. ................................................................................................................................................103
ii. Holding ............................................................................................................................................104
iii. Rationale ........................................................................................................................................104
iv.
Precision Industries Is Right for the Wrong Reasons: Section 365(h) Does Not Elevate a
Lessees Possessory Right Above a Prior Mortgagees Undersecured Lien; But Sections 363(f), 363(l),
and 365(h), Can Not Correctly be Interpreted to Empower a Court to Divest a Lessee of Its
Possessory Rights under Section 365(h) ..............................................................................................105
a) The Leases Susceptibility to Extinguishment in a Mortgage Foreclosure Is Dispositive ....................... 105
b) The Plain Meaning of Sections 363(l) and 365(h)(1)(A)(ii) Was Disregarded ....................................... 106
c) The Seventh Circuits Interpretation Yields Absurd Results Contrary to the United States Supreme
Courts Rule that Statutory Interpretation Should Avoid Absurd Results........................................................ 109
14. CRAM DOWN INTEREST RATES NEED NOT RENDER THE LENDER SUBJECTIVELY
INDIFFERENT BETWEEN PRESENT FORECLOSURE AND FUTURE PAYMENTS ................116
A. TILL V. SCS CREDIT CORP., 124 S. CT. 1951 (2004)(CHAPTER 13) .....................................................116
i. Facts. ...........................................................................................................................................116
ii. Issue. ............................................................................................................................................117
iii.
Holding. ...................................................................................................................................117
iv.
Rationale..................................................................................................................................118
v. A New Twist on Statutory Interpretation .....................................................................................119
B.
BANK OF MONTREAL V. OFFICIAL COMMITTEE OF UNSECURED CREDITORS (IN RE AMERICAN
HOMEPATIENT, INC.), 420 F.3D 559 (6TH CIR. 2005) .................................................................................120
i. Facts. ...........................................................................................................................................120
ii. Issue. ............................................................................................................................................120
iii.
Holding. ...................................................................................................................................120
iv.
Rationale..................................................................................................................................120
v. Other Cramdown Interest Rate Decisions Since Till ...................................................................121
C. OFFICIAL COMMITTEE OF UNSECURED CREDITORS V. DOW CORNING CORP., 456 F.3D 668 (6TH CIR.
2006)........................................................................................................................................................121
i. Facts .................................................................................................................................................121
ii. Issues ...............................................................................................................................................122
iv
B.
SMART WORLD TECHNOLOGIES, LLC V. JUNO ONLINE SERVICES, INC. (IN RE SMART WORLD
TECHNOLOGIES, LLC), 423 F.3D 166 (2D CIR. 2005) ...............................................................................145
i. Facts ............................................................................................................................................145
ii. Issue .............................................................................................................................................147
iii.
Holding ....................................................................................................................................147
iv.
Rationale..................................................................................................................................147
C.
ACC BONDHOLDER GROUP V. ADELPHIA COMMUNICATIONS CORP. (IN RE ADELPHIA
COMMUNICATIONS CORP.), 361 B.R. 337 (S.D.N.Y. 2007) .....................................................................147
i. Facts ............................................................................................................................................147
ii. Issue .............................................................................................................................................148
iii.
Holding ....................................................................................................................................148
iv.
Rationale..................................................................................................................................148
v. Subsequent History ......................................................................................................................149
B.
C.
DOES THE TRANSFER OF A CLAIM RENDER THE TRANSFERREE VULNERABLE TO DEFENSES
PERSONAL TO THE TRANSFEROR? ............................................................................................................159
1. Enron Corp. v. Springfield Associates, LLC (In re Enron Corp.), 379 B.R. 425 (S.D.N.Y. 2007),
motion for certification of interlocutory appeal denied, 2007 Dist. LEXIS 70731 (S.D.N.Y., Sept. 2,
2007)....................................................................................................................................................159
i.
ii.
iii.
iv.
v.
vi
D.
LOAN TO OWN: OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF RADNOR HOLDINGS CORP.
V. TENENBAUM CAPITAL PARTNERS (IN RE RADNOR HOLDINGS CORP.), 353 B.R. 820 (BANKR. D. DEL.
2006) 203
i. Facts ............................................................................................................................................203
ii. Issues ...........................................................................................................................................204
iii.
Holdings ..................................................................................................................................204
iv.
Rationale..................................................................................................................................204
22. CRITICAL VENDOR PAYMENTS OF PREPETITION CLAIMS: IN RE KMART CORP., 359
F.3D 866 (7TH CIR. 2004), REHEARING DENIED, 2004 U.S. APP. LEXIS 9050, (7TH CIR. MAY 6,
2004), CERT. DENIED, 2004 U.S. LEXIS 2649 (U.S., NOV. 15, 2004). ................................................208
i. Facts. ...........................................................................................................................................208
ii. Issues. ..........................................................................................................................................208
iii.
Holdings. .................................................................................................................................208
iv.
Rationale: ................................................................................................................................209
v. Analysis........................................................................................................................................210
(i) No Per Se Rule Barring Payment of Prepetition Debt with Court Approval ........................................... 210
(ii)
Acts to Collect Prepetition Debts May Be Automatic Stay Violations ............................................... 211
(iii)
Foreign Vendors Having No Minimum Contacts with United States ................................................. 211
(iv)
Procedure ............................................................................................................................................ 212
(v)
No Authority to Pay Unallowable Prepetition Claims ........................................................................ 212
(vi)
No Authority to Pay Prepetition Claims without Offsetting Benefit to Estate .................................... 213
(vii)
No Authority to Cross Collateralize Prepetition Debt with Postpetition Collateral without Offsetting
Benefit to Estate............................................................................................................................................... 213
(viii) Paying Prepetition Debt Does Not Violate Equitable Subordination Rules if the Unpaid Prepetition
Debt Benefits ................................................................................................................................................... 213
(ix) The Bankruptcy Code Allows Payment of Prepetition Debt in Numerous Instances ................................ 214
vii
(x)
(xi)
Prepetition Debt Can Not Be Paid without Court Approval ............................................................... 214
The Bankruptcy Codes Priority Scheme Includes Substantial Flexibility ......................................... 214
ATALANTA CORP. V. ALLEN (IN RE ALLEN), 300 F.3D 1055 (9TH CIR. 2002) ................................222
i. Facts ............................................................................................................................................222
ii. Holding ............................................................................................................................................223
iii. Rationale ........................................................................................................................................223
iv. Analysis...........................................................................................................................................223
THRIFTY OIL CO. V. BANK OF AMERICA, 310 F.3D 1188 (9TH CIR. 2002) .....................................223
i. Facts ............................................................................................................................................224
ii. Issue.................................................................................................................................................224
iii. Holding...........................................................................................................................................224
iv. Rationale.........................................................................................................................................225
viii
29. AVOIDANCE ACTIONS ARE PROPERTY OF NEITHER THE DEBTOR, NOR THE
DEBTOR IN POSSESSION, NOR THE ESTATE; BUT HOW ABOUT THEIR PROCEEDS? .....233
A. OFFICIAL COMMITTEE OF UNSECURED CREDITORS V. CHINERY (IN RE CYBERGENICS CORP.), 226 F.3D
237 (3D CIR. 2000). ..................................................................................................................................233
i. Facts. ...........................................................................................................................................233
ii. Holding ........................................................................................................................................234
iii.
What About Bankruptcy Code Section 541(a)(3)? ...................................................................234
B.
AVOIDANCE ACTIONS CAN ONLY BE BROUGHT TO BENEFIT CREDITORS ....................................235
30.
RELEASES OF NON-DEBTORS................................................................................................236
A.
THE GENERAL RULE.....................................................................................................................236
B. RES JUDICATA. ....................................................................................................................................237
C. IN RE INGERSOLL, INC., 562 F.3D 856 (7TH CIR. 2009)..........................................................................238
i. Facts ............................................................................................................................................238
ii. Issues ...........................................................................................................................................239
iii.
Holdings ..................................................................................................................................239
iv.
Rationale..................................................................................................................................240
v. Analysis........................................................................................................................................240
D.
AIRADIGM COMMUNICATIONS, INC. V. FEDERAL COMMUNICATIONS COMMISSION (IN RE
AIRADIGM COMMUNICATIONS, INC.), 519 F.3D 640 (7TH CIR. 2008) ........................................................241
i. Facts ............................................................................................................................................241
ii. Issues ...........................................................................................................................................242
iii.
Holdings ..................................................................................................................................242
iv.
Rationale..................................................................................................................................242
v. Analysis........................................................................................................................................244
E. TRAVELERS INDEMNITY CO. V. BAILEY, 129 S. CT. 2195 (2009) .....................................................244
i. Facts ............................................................................................................................................244
ii. Issues ...........................................................................................................................................245
iii.
Holdings ..................................................................................................................................245
iv.
Rationale..................................................................................................................................246
v. Does Travelers Implicitly Overrule Metromedia and Drexel Burnham? ....................................248
F. DEUTSCHE BANK, AG V. METROMEDIA FIBER NETWORK, INC. (IN RE METROMEDIA FIBER
NETWORK, INC.), 416 F.3D 136 (2D CIR. 2005) ........................................................................................249
i. Facts. ...........................................................................................................................................249
ii. Issue. ............................................................................................................................................249
iii.
Holding. ...................................................................................................................................250
iv.
Rationale..................................................................................................................................250
G. LACY V. DOW CORNING CORP. (IN RE DOW CORNING CORP.), 280 F.3D 648 (6TH CIR. 2002) ............250
i. Facts ............................................................................................................................................250
ii. Issue .............................................................................................................................................251
iii.
Holding ....................................................................................................................................251
iv.
Rationale..................................................................................................................................251
H.
GILMAN V. CONTINENTAL AIRLINES (IN RE CONTINENTAL AIRLINES), 203 F.3D 203 (3D CIR. 2000)
252
i. Facts ............................................................................................................................................252
ii. Holding ........................................................................................................................................252
iii.
Rationale..................................................................................................................................252
I. BRUNOS, INC. V. W.R. HUFF ASSET MANAGEMENT CO. (IN RE PWS HOLDING CORP.), 228 F.3D 224
(3D CIR. 2000)..........................................................................................................................................253
i. Facts ............................................................................................................................................253
ii. Holding ........................................................................................................................................253
iii.
Rationale..................................................................................................................................253
J. MONARCH LIFE INSURANCE CO. V. ROPES & GRAY, 65 F.3D 973 (1ST CIR. 1995). .........................254
i. Facts ............................................................................................................................................254
ix
ii. Holding. The confirmation order has collateral estoppel effect barring suits against Ropes &
Gray. Its ambiguity could have been litigated at confirmation. .........................................................255
K.
RESORTS INTERNATIONAL, INC. V. LOWENSCHUSS (IN RE LOWENSCHUSS), 67 F.3D 1394 (9TH CIR.
1995). 255
31. SUPERPRIORITY CLAIMS UNDER BANKRUPTCY CODE SECTION 507(B) HAVE MET
RESISTANCE; BUT HOW ABOUT NON-SUPER ADMINISTRATIVE CLAIMS? LNC
INVESTMENTS, INC. V. FIRST FIDELITY BANK, 247 B.R. 38 (S.D.N.Y. 2000) ...........................255
A. FACTS ..................................................................................................................................................255
B.
ISSUE ............................................................................................................................................255
C. HOLDING .............................................................................................................................................256
D. RATIONALE..........................................................................................................................................257
E. RATIONALE OR IRRATIONALE ..............................................................................................................258
F. SUBSEQUENT HISTORY: LNC INVESTMENTS, INC. V. NATIONAL WESTMINSTER BANK, 308 F.3D 169
(2D CIR. 2002), CERT. DENIED, 2003 U.S. LEXIS 3729 (2003) ................................................................260
i. Facts ............................................................................................................................................260
ii. Issue .............................................................................................................................................260
iii.
Holding ....................................................................................................................................260
32. AT ELECTROMAGNETIC LICENSE AUCTIONS, WHATS FOR SALE? .............................261
A.
FACTS...............................................................................................................................................267
ISSUE ................................................................................................................................................267
HOLDING ......................................................................................................................................268
RATIONALE ..................................................................................................................................268
34.
LESSONS FROM A FAILED LIMITED FUND SETTLEMENT CLASS ACTION ORTIZ
V. FIBREBOARD CORP., 119 S. CT. 2295 (1999) ................................................................................269
I.
II.
III.
FACTS...............................................................................................................................................269
HOLDING ..........................................................................................................................................271
RATIONALE ..................................................................................................................................271
(a)
Historical Limited Fund Mandatory Class Actions .................................................................271
(b)
Criteria for Limited Fund Class Actions under Fed. R. Civ. P. 23(b)(1)(B). ..........................271
(c)
Potential Constitutional Impediments to Application of Fed. R. Civ. P. 23 (b)(1) to Mass Torts
272
(d)
Causes of Reversal...................................................................................................................272
iv.
Certain Unanswered Questions ...............................................................................................276
V.
i.
ii.
iii.
a)
iv.
xi
C.
BONNEVILLE POWER ADMINISTRATION V. MIRANT CORP. (IN RE MIRANT CORP.), 440 F.3D 238
(5TH CIR. 2006)........................................................................................................................................302
i. Facts ............................................................................................................................................302
ii. Issue .............................................................................................................................................302
iii.
Holding ....................................................................................................................................303
iv.
Rationale..................................................................................................................................303
D.
WHEN FAILURE OF ADEQUATE ASSURANCE VALIDLY DEFEATS ASSIGNMENT: IN RE FLEMING
COMPANIES, INC.), 499 F.3D 300 (3D CIR. 2007) .....................................................................................304
i. Facts ............................................................................................................................................304
ii. Issues ...........................................................................................................................................304
iii.
Holdings ..................................................................................................................................304
iv.
Implications .............................................................................................................................305
38.
DEVAN V. SIMON DEBARTOLO GROUP, 180 F.3D 149 (4TH CIR. 1999). .........................305
i. Facts. ...........................................................................................................................................305
ii. Holding. .......................................................................................................................................306
iii.
Dangerous Dictum about Rejection .........................................................................................306
xii
1. Section 363 Sales Free and Clear v. Sub Rosa Chapter 11 Plans
A. Indiana State Police Pension Trust v. Chrysler LLC (In re
Chrysler LLC), ___ F.3d ___ (2d Cir., August 5, 2009)
i.
Facts
Chrysler commenced its chapter 11 case on April 30, 2009 with a proposal
to sell, pursuant to Bankruptcy Code section 363, substantially all its operating
assets (including manufacturing plants, brand names, certain dealer and supplier
relationships, etc.) to New Chrysler in exchange for New Chryslers assumption
of certain liabilities and $2 billion cash. Slip op. at 7-8. The bankruptcy court
approved the sale by order dated June 1, 2009. Slip op. at 9.
The United States Court of Appeals for the Second Circuit affirmed on
June 5, 2009, but entered a short stay pending Supreme Court review. The
Supreme Court extended the stay, but declined a further extension and the sale
closed on June 10, 2009. Slip op. at 9.
Under the sale, [n]ot one penny of value of the Debtors assets is going
to anyone other than the First Lien Lenders. Slip op. at 25. [A]ll the equity
stakes in New Chrysler were entirely attributable to new value including
governmental loans, new technology, and new management which were not
assets of the debtors estate. Slip op. at 25. The linchpin of [the bankruptcy
courts] analysis was that the only possible alternative to the Sale was an
immediate liquidation that would yield far less for the estate and for the
objectors. Slip op. at 25-26.
New Chryslers membership interests were 55% to an employee benefit
entity created by the United Auto Workers union, 8% to the United States
Treasury, and 2% to Export Development Canada. Slip op. at 8. Fiat, for its
contributions, would immediately own 20% of the equity with rights to acquire
more (up to 51%), contingent on payment in full of the debts owed to the United
States Treasury and Export Development Canada. Slip op. at 8-9. Fiat had
conditioned its commitment on the Sale being completed by June 15, 2009.
While this deadline was tight and seemingly arbitrary, there was little leverage to
force an extension. Slip op. at 27. The union employees would be working
under new union contracts containing a six-year no-strike provision. Slip op. at
28.
ii.
Issues
2. Does the sale conform to Bankruptcy Code section 363(f)? Does the
Sale impermissibly [subordinate the Indiana Pensioners] interests as
secured lenders and [allow] assets on which they have a lien to pass
free of liens to other creditors and parties, in violation of 363(f)? Slip
op. at 10.
3. Is it constitutional to use TARP funds to finance the sale?
4. Can the sale be made free and clear of present and future tort and
asbestos claims?
iii.
Holdings
1. No. On this record, and in light of the arguments made by the parties,
the bankruptcy courts approval of the Sale was no abuse of discretion.
With its revenues sinking, its factories dark, and its massive debts
growing, Chrysler fit the paradigm of the melting ice cube. Going
concern value was being reduced each passing day that it produced
no cars, yet was obliged to pay rents, overhead, and salaries.
Consistent with an underlying purpose of the Bankruptcy Code
maximizing the value of the bankrupt estate it was no abuse of
discretion to determine that the Sale prevented further, unnecessary
losses. See Toibb v. Radloff, 501 U.S. 157,163 (1991) (Chapter 11
embodies the general [Bankruptcy] Code policy of maximizing the
value of the bankruptcy estate.). Slip op. at 27-28.
2. [T]he secured lenders have consented to the Sale, as per 363(f)(2).
Slip op. at 10.
3. We conclude that the Indiana Pensioners lack standing to raise this
challenge to the use of TARP funds. Slip op. at 10.
4. The sale was legally approved free and clear of tort claims. Because
appellants claims arose from Old Chryslers property, 363(f)
permitted the bankruptcy court to authorize the Sale free and clear of
appellants interest in the property. Slip op. at 49-50. This includes
present asbestos claims. Bankruptcy Code section 524(g) only applies
to a chapter 11 plan, and the sale order did not violate it. Slip op. at
51. In respect of whether the sale order legally approved the transfer
of assets free of future asbestos claims: We affirm this aspect of the
bankruptcy courts decision insofar as it constituted a valid exercise of
authority under the Bankruptcy Code. However, we decline to
delineate the scope of the bankruptcy courts authority to extinguish
future claims, until such time as we are presented with an actual claim
for an injury that is caused by Old Chrysler, that occurs after the Sale,
2
and that is cognizable under state successor liability law. Slip op. at
52.
iv.
Rationale
Analysis
The term sub rosa plan has taken on two meanings. The original
meaning was shown in Pension Benefit Guaranty Corp. v. Braniff Airways, Inc.
(In re Braniff Airways, Inc.), 700 F.2d 935 (5th Cir. 1983), to be a sale transaction
that also included distributions of sale proceeds which would otherwise be
distributed in a chapter 11 plan. In Braniff, the appellate court held the
3
transaction was illegal because it included at least three elements outside the
scope of section 363, which would otherwise be subject to the Bankruptcy
Codes confirmation requirements. They were the requirements that: (a) Braniff
pay $2.5 million to the buyer for travel scrip which had to be distributed to former
Braniff employees or shareholders, (b) the secured lenders vote a portion of their
deficiency claim in favor of any future plan secured approved by a majority of the
creditors committee, and (c) all parties release Braniff, its secured lenders, and
its officers and directors. Braniff, 700 F.2d at 939-940. In Motorola, Inc. v.
Official Committee of Unsecured Creditors (In re Iridium Operating LLC), 478
F.3d 452 (2d Cir. 2007), a settlement between the debtor and the secured
lenders provided for left over funds for litigation, if any, to be distributed to
unsecured claimholders, rather than be available for unpaid administrative
claims. 478 F.3d at 459-460. At the time of the settlement, however, it was still
unclear whether there would be unpaid, allowed administrative claims. 478 F.3d
at 464. Therefore, the court declined to hold the bankruptcy court cannot
approve a settlement outside a plan, which settlement may violate the
Bankruptcy Codes distribution scheme. 478 F.3d at 464. Rather, the court
ruled: In the Chapter 11 context, whether a settlements distribution plan
complies with the Bankruptcy Codes priority scheme will often be the dispositive
factor. However, where the remaining factors weigh heavily in favor of approving
a settlement, the bankruptcy court, in its discretion, could endorse a settlement
that does not comply in some minor respects with the priority rule if the parties to
the settlement justify, and the reviewing court clearly articulates the reasons for
approving, a settlement that deviates from the priority rule. 478 F.3d at 465.
The second meaning of sub rosa plan has been a transaction that does
not distribute proceeds in lieu of a chapter 11 plan distribution, but disposes of a
crown jewel asset that may restrict the type of chapter 11 plan that must result.
See, e.g., Richmond Leasing co. v. Capital Bank, N.A., 762 F.2d 1303, 13121313 (5th Cir. 1985)(affirmed assumption of amended lease creating large
administrative claims based on valid exercise of debtors business judgment,
while cautioning that assumption and other factors could sometimes create sub
rosa plan) ; Inst. Creditors of Continental Air Lines, Inc. v. Continental Air Lines,
Inc. (In re Continental Air Lines, Inc.), 780 F.2d 1223 (5th Cir. 1986). In
Continental, the appellate court reversed the bankruptcy courts approval of the
debtor entering into leases of two large aircraft because the court had not
considered whether the objecting creditors would have been able to block the
leases if proposed in a chapter 11 plan. 780 F.2d at 1227-1228.
In Chrysler, the section 363 transaction included (a) the distribution of
sale proceeds to the first lien holders, rather than simply have the liens attach to
the proceeds, which distribution clearly eliminated the estates use of the funds
(subject to adequate protection requirements) for reorganization, and (b) the
payment of prepetition, unsecured trade debt. The objectors to the Chrysler
transaction did not raise either of these features in their objections, but they
clearly rendered the transaction a partial sub rosa plan.
The appellate courts deferral of its review of the enforceability of the sale
orders provision that the sale was free of successor liability for future claims,
sets up an interesting dynamic. When and if a claimant asserts a future claim
against the buyer, the buyer may attempt to enforce the sale order in the
bankruptcy court which issued it by suing the claimant for contempt of the
injunction in the sale order. Alternatively, the claimant may start out by
requesting relief from the injunction in the bankruptcy court. The bankruptcy
court will presumably have little choice but to enforce the order. The district court
and Second Circuit will then determine whether the order can be collaterally
attacked and, if so, whether it was valid. Travelers Indemnity Co. v. Bailey, 129
S. Ct. 2195 (2009), certainly creates a question as to whether the order can be
collaterally attacked.
2.
The Bankruptcy Code Does Not Per Se Disallow Prepetition Claims
for Attorneys Fees Incurred Litigating Postpetition Bankruptcy Issues
A.
Travelers Casualty & Surety Co. of America v. Pacific Gas &
Electric Co., 549 U.S. 443 (2007)
i. Facts.
Prepetition, PG&E had indemnified Travelers for the surety bonds
Travelers issued guaranteeing PG&Es payment of state workers compensation.
Pursuant to the indemnity agreements, PG&E was liable for any loss Travelers
incurs in connection with the bonds, including attorneys fees incurred in
pursuing, protecting, or litigating Travelers rights in connection with those bonds.
Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., 127 S.
Ct. 1199, 1202 (2007).
With bankruptcy court approval, PG&E agreed to include in its chapter 11
plan language protecting Travelers rights to indemnity and subrogation in the
event of a default by PG&E. But, PG&E and Travelers ended up litigating the
protective language and then settling the litigation in a bankruptcy court approved
stipulation. Id. at 1202-1203.
Travelers filed an amended proof of claim seeking to recover the
attorneys fees it incurred in connection with PG&Es chapter 11 case. PG&E
objected arguing on the basis of In re Fobian, 951 F.2d 1149 (9th Cir. 1991), that
Travelers can not recover attorneys fees incurred litigating issues of bankruptcy
law. Id. at 1203. The bankruptcy court, district court, and Ninth Circuit Court of
Appeals agreed those fees were not allowable claims in bankruptcy. Id.
Fobian was in conflict with the Fourth Circuits decision in In re ShangraLa, Inc., 167 F.3d 843, 848-849 (4th Cir. 1999).
ii. Issue
We are asked to consider whether federal bankruptcy law precludes an
unsecured creditor from recovering attorneys fees authorized by a prepetition
contract and incurred in postpetition litigation. Id. at 1202.
This case requires us to consider whether the Bankruptcy Code disallows
contract-based claims for attorneys fees based solely on the fact that the fees at
issue were incurred litigating issues of bankruptcy law. Id. at 1204.
iii. Holding
We conclude that it does not. Id.
Accordingly, we express no opinion with regard to whether, following the
demise of the Fobian rule, other principles of bankruptcy law might provide an
independent basis for disallowing Travelers claim for attorneys fees. We
conclude only that the Court of Appeals erred in disallowing that claim based on
the fact that the fees at issue were incurred litigating issues of bankruptcy law.
Id. at 1207-1208.
iv. Rationale
Pursuant to 11 U.S.C. 502(b), when a party in interest objects to a claim,
the court shall allow the claim except to the extent that the claim implicates
any of the nine exceptions enumerated in 502(b). Id. at 1204 (quoting from 11
U.S.C. 502(b)).
Section 502(b)(1) is most naturally understood to provide that, with limited
exceptions, any defense to a claim that is available outside of the bankruptcy
context is also available in bankruptcy. Id. at 1204. This reading of
502(b)((1) is consistent not only with the plain statutory text, but also with the
settled principle that [c]reditors entitlements in bankruptcy arise in the first
instance from the underlying substantive law creating the debtors obligation,
subject to any qualifying or contrary provisions of the Bankruptcy Code. Raleigh
v. Illinois Dept. of Revenue, 530 U.S. 15, 20 (2000). Id. at 1205
Indeed, we have long recognized that the basic federal rule in
bankruptcy is that state law governs the substance of claims, Congress having
generally left the determination of property rights in the assets of a bankrupts
estate to state law. Ibid. (quoting Butner v. United States, 440 U.S. 48, 57, 54
(1979); citation omitted). Accordingly, when the Bankruptcy Code uses the word
claim which the Code itself defines as a right to payment, 11 U.S.C.
101(5)(A)it is usually referring to a right to payment recognized under state
law. As we stated in Butner, [p]roperty interests are created and defined by
state law, and [u]less some federal interest requires a different result, there is no
reason why such interests should be analyzed differently simply because an
interested party is involved in a bankruptcy proceeding. 440 U.S., at 55; Id.
at 1205.
In Travelers, the lower courts did not conclude Travelers claim was
rendered unenforceable by any Bankruptcy Code provision. Id. at 1205.
11 U.S.C. 502(b)(4) disallows a particular category of attorneys fees,
which suggests that other categories are allowed. Id. at 1206.
B.
Violation of Travelers? National Energy & Gas Transmission,
Inc. v. Liberty Electric Power, LLC (In re National Energy & Gas
Transmission, Inc.), 492 F.3d 297 (4th Cir. 2007), rehearing denied
(August 6, 2007)
i.
Facts
claim against ET Power for the $17 million of postpetition interest. Id. at 300.
Therefore, by collecting the postpetition interest from GTN, it left principal
unpaid.
ii.
Issues
Judgments
accrual of interest on the debt across all parties liable for it. Id. 305. Not only is
there no provision in the Bankruptcy Code demanding this result, the dissent
observed, but it is contradicted by Section 524(e) of the Code, which provides
that the discharge of a debt of the debtor does not affect the liability of any other
entity on . . . such debt. 11 U.S.C. 524(e).
iv.
Rationale
The Primary Decision reasons that principles of equity, id. at 302, require
it to apply Bankruptcy Code section 502(b)(2) by disregarding Libertys
classification of GTNs payment: The 502(b)(2) bar to collection of interest is
not overcome by Libertys classification of the $17 million it now seeks as
principal.Because ET Powers debt was capped at $140 million by the filing of
the bankruptcy petition and because the debt was increased only by the accrual
of interest pursuant to the arbitration award, we view Libertys claim for an
additional $17 million as disallowed post-petition interest no matter how Liberty
chooses to classify it. Id. at 302-303.
Notably, no decision contends the bankruptcy court was clearly erroneous
in characterizing Libertys claim as a claim for principal.
v.
10
interest change if Liberty collects $140 million first from GTN. Manifestly,
Libertys rights of collection can not rationally or validly be impacted based on
whether it collects first from ET Power or first from GTN. But, the judgment is
totally dependent on the sequencing.
4. The Judgment Undermines Public Policy
Guaranties are a standard form of credit enhancement in the world of
commercial finance. Entities that are not themselves creditworthy, frequently
obtain credit when the lender can obtain a guaranty. Similarly, guaranties reduce
the cost of credit because they reduce the risk of loss. Equally obvious is that
interest is an essential component of credit because no lender can afford to lend
money for no return.
C. Travelers and 11 U.S.C. 1123(d) Support Default Rate Interest in
General Electric Capital Corp. v. Future Media Productions Inc., 536
F.3d 969 (9th Cir. 2008)
i.Facts
When the debtor commenced its chapter 11 case, GECC was an
oversecured creditor and its credit agreement provided that contract interest
would increase by 2 percentage points after default. 536 F. 3d at 971. The
debtor sold the collateral pursuant to 11 U.S.C. 363 prior to any chapter 11
plan. The proceeds inclusive of default interest and all fees were paid to GECC,
subject to the statutory creditors' committee's rights to litigate GECC's entitlement
to default interest and attorneys' fees. 536 F.3d at 972.
The bankruptcy court disallowed default interest based on In re EntzWhite Lumber and Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), and disallowed
attorneys' fees because GECC lost the litigation. 536 F.3d at 972.
ii. Issues
Does the Entz-White rule disallowing default interest on obligations reinstated
under a chapter 11 plan with defaults cured, apply to preplan sales, and if not,
should default rate interest be allowable?
iii.
Holdings
12
Entz-White does not apply to preplan sales, and its continued validity for
sales under a plan is questionable due to the enactment of 11 U.S.C. 1123(d).1
536 F.3d at 974, 974n.2.
"We read Travelers to mean the default rate should be enforced, subject
only to the substantive law governing the loan agreement, unless a provision of
the Bankruptcy Code provides otherwise...." 536 F.3d at 973.
"Because the Bankruptcy Code does not provide a 'qualifying or contrary
provision' to the underlying substantive law here, the bankruptcy court's
extension of Entz-White to the loan agreement's default rate was error.
Consistent with the Supreme Court's holding in Travelers, we hold that the
parties' arms length bargain, governed by New York law, controls." 536 F.3d at
974.
"[W]e remand to allow the bankruptcy court to decide whether the default
rate should apply under the rule adopted by the majority of federal courts. That
rule simply stated is: the bankruptcy court should apply a presumption of
allowability for the contracted for default rate, 'provided that the rate is not
unenforceable under applicable nonbankruptcy law.' 4 Collier on Bankruptcy,
506.04[2][b][ii] (15th Ed. 1996)" 536 F.3d at 974. Therefore, default rate
interest should be allowed if it is enforceable under New York law.
"We reject the creation of a bright line rule that would accept 2% as an
allowable default rate differential." 536 F.3d at 975.
iv.
Rationale
Analysis
Although the Ninth Circuit's decision makes the default rate issue a
function of its enforceability under state law, the Ninth Circuit cites two decisions
for the proposition that there is a presumption in favor of allowing default rate
1 11
Facts
14
ii.
Issues
Holding
Rationale
Sympathy for the non-debtor that may, through no fault of its own,
bear some significant burden from the debtors rejection of an executory
contract due to the happenstance of an unforeseen bankruptcy
proceeding is understandable. The notion that a non-debtor could prevent
the exercise of 365 rights with regards to an executory contract through
post-petition performance of the non-debtors contractual obligations is,
however, inconsistent with both the plain language and the policy of the
Code.The Code does not condition the right to assume or reject on lack
of prejudice to the non-debtor party, and the satisfaction of claims at less
than their full non-bankruptcy value is common in bankruptcy proceedings,
as is the disruption of non-debtors expectations of profitable business
arrangements. 524 F.3d at 382.
However long this process may take, however onerous the
dilemmas faced by the non-debtor party to an executory contract may be
while the non-debtor awaits the debtors decision, and whether or not the
bankruptcy judge grants a motion by the non-debtor party to accelerate
the debtors timetable for making its election to assume or reject, the
power to make that election is, as we made clear in In re Chateaugay
Corp., that of the debtor alone. 10 F.3d at 955 (Section 365 does not
confer any power of election upon the other contracting party.); 524
F.3d at 382-383.
15
v.
Analysis
16
the supermarket parcel in exchange for the $3.5 million and the lease. But, that
is hardly clear. When a contract is not assumed and the nondebtor party tenders
performance, the debtor is, by definition, not bound by the terms of the contract.
The contract provides a rebuttable presumption of what the debtor is obligated to
provide, but the presumption is rebuttable by the market value and the debtor
may have to provide more or less than what the contract would require. 4
Therefore, CORs tender of the $3.5 million and the lease, would not entitle it to
the conveyance of land worth $9.8 million absent the debtors assumption of the
project agreement which did not occur.
The issue the court acknowledged, but did not determine, was whether
upon rejection of the project agreement COR would be entitled to specific
performance of the conveyance of real property (the supermarket parcel), which
issue is discussed below. 524 F.3d at 383n.5. It does not appear, however, that
the court could properly determine the appeal of the project agreements
rejection without knowing the answer to the specific performance issue. If the
debtors rejection of the project agreement would entitle COR to conveyance of
the supermarket parcel, then it does not appear the debtors estate can satisfy
the business judgment test for rejection because the estate would not be better
off. Indeed, the estate may be worse off because in addition to having to convey
the parcel, the estate would be liable for breach (rejection) of contract and that
could add other damages such as attorneys fees and the like. It could even put
into question whether COR would have to pay $3.5 million once Penn Traffic
breaches the contract by rejecting it.
Finally, if the consequences of rejection have to be known before the court
can determine whether the business judgment test supports rejection, then the
matter before the circuit court may not have been a final order over which it had
appellate jurisdiction. Rather, because the rejection determination would have to
await a bankruptcy court determination as to whether COR would be entitled to
specific performance, the order on appeal may not amount to a final order.
4 NLRB v. Bildisco & Bildisco, 465 U.S. 513, 531 (1984); In re Thompson, 788 F.2d 560 (9th Cir. 1986)
(the fair and reasonable value of the benefits on the open market controls, not the value to the debtor);
Peoples Gas Sys., Inc. v. Thatcher Glass Corp. (In re Thatcher Glass Corp.), 59 B.R. 797 (Bankr. D. Conn.
1986) (same), but see American Anthracite & Bituminous Coal Corp. v. Leonardo Arrivabene, S.A., 280
F.2d 119, 126 (2d Cir. 1960); GATX Leasing Corp. v. Airlift Int'l, Inc. (In re Airlift Int'l, Inc., 761 F.2d
1503, 1508 (11th Cir. 1985); Philadelphia Co. v. Dipple, 312 U.S. 168, 174 (1941); Quincy M&PR Co. v.
Humphreys, 145 U.S. 82 (1892); Palmer v. Palmer, 104 F.2d 161, 163 (2d Cir. 1939); In re United Cigar
Stores Co., 69 F.2d 513 (2d Cir.), cert. denied sub nom. Reisenwebers, Inc. v. Irving Trust Co., 293 U.S.
566 (1934); In re Lane Foods, Inc., 213 F. Supp. 133, 166 (S.D.N.Y. 1963); In re O.P.M. Leasing Servs.,
Inc., 14 B.C.D. 83, 86 (Bankr. S.D.N.Y. 1986); In re Bohack, 1 B.C.D. 287 (Bankr. E.D.N.Y. 1974). One
court holds that even a postpetition lease entered into in the ordinary course of business without requiring
court approval gives rise to administrative expense claims only in the amount the court determines is the
fair market value of the debtor's use of the leased premises. Burlington N.R.R. Co. v. Dant & Russell, Inc.
(In re Dant & Russell, Inc.), 853 F.2d 700 (9th Cir. 1988).
17
B.Specific Performance
i. Specific Performance under the UCC
Pursuant to section 2-716 of the Uniform Commercial Code, a buyer may
be entitled to specific performance where the goods are unique or in other
proper circumstances, and the Official Comment makes crystal clear that supply
contracts for unique parts are the prototypical proper circumstances. Sections
2-716(1)-(2) of the Uniform Commercial Code provide:
(1)
Specific performance may be decreed where
the goods are unique or in other proper circumstances.
(2)
The decree for specific performance may
include such terms and conditions as to payment of the price,
damages, or other relief as the court may deem just.
Official Comment 2 to section 2-716 provides:
In view of this Articles emphasis on the commercial
feasibility of replacement, a new concept of what
are unique goods is introduced under this section.
Specific performance is no longer limited to goods
which are already specific or ascertained at the
time of contracting. The test of uniqueness under
this section must be made in terms of the total
situation which characterizes the contract. Output
and requirements contracts involving a particular or
peculiarly available source or market present today
the typical commercial specific performance
situation, as contrasted with contracts for the sale
of heirlooms or priceless works of art which were
usually involved in the older cases. However,
uniqueness is not the sole basis of the remedy
under this section for the relief may also be granted
in other proper circumstances and inability to
cover is strong evidence of other proper
circumstances.
Consistent with the Official Comment, specific performance is granted when the
buyer has an inability to cover.5
5 See International Casings Group, Inc. v. Premium Standard Farms, Inc., 358 F.
Supp. 2d 863, 876 (W.D. Mo. 2005) (holding that a buyer of hog casings could
not find cover goods to replace the casings manufactured by the seller because
those casings were not fungible and were not readily available on the spot
market); Software Customizer, Inc. v. Bullet Jet Charter, Inc. (In re Bullet Jet
18
would suffer irreparable harm [to its] customer goodwill, business reputation, and
existence if Lear ceased delivery of parts and DCC would not have an adequate
remedy at law.11
ii.
21
22
23
24
25
speaking, it may be said that specific performance, where permissible under the
terms of contract, will be granted when it is apparent from a view of all the
circumstances that it will serve the ends of justice, and it will be withheld when,
from a like view, it is apparent that performance will result in hardship or injustice
to either of the parties.). At least one court has noted (albeit in dicta) that Texas
law provides damages as an alternative remedy to specific performance for
breach of contract for the transfer of real property; as such, even in cases where
specific performance is available, damages may be awarded in its stead. See
Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d
865, 885 (Tex. App. 2001) (specific performance was not available because the
contract failed to satisfy the statute of frauds, but stating that, even if specific
performance were available, money damages are an alternative remedy for
breach of contract for the transfer of real property; as a result, the contract gave
right to a claim for bankruptcy purposes). The resolution to this apparent
conflict may depend upon the remedies the parties identify in their contract.
Indeed, in a case with particularly strong language favoring the theory that
specific performance is a right, the contract specifically provided that the seller
was entitled to elect as remedies either specific enforcement or termination of the
contract and liquidated damages; the court emphasized the agreed-upon
remedies in affirming the trial courts award of specific performance to the seller.
See Claflin, 645 S.W.2d at 632.
Maryland. Under Maryland law, specific performance is an extraordinary
equitable remedy; it may be granted where traditional remedies, such as
damages, are either unavailable or inadequate. Archway Motors, Inc. v.
Herman, 27 Md. App. 674, 681 (Md. Ct. Spec. App. 1977). Courts have held that
this remedy is particularly appropriate in the context of contracts for the sale of
land, because of the presumed uniqueness of land itself, no parcel being exactly
like another. Archway, 27 Md. App. at 681 (citing Restatement of Contracts
360 (1932)). In other words, when a contract is for the sale of land, traditional
remedies are generally presumed to be uncertain and inadequate. Id. at 683-84.
Under Maryland law, where all criteria are satisfied, it is as much a matter
of course for a court of equity to decree its specific performance as it is for a
court of law to give damages for its breach. Archway, 37 Md. App. at 684, 686
(noting that specific performance under these circumstances has been held to be
a matter of course or duty).16 The decree of special enforcement need not
be identical with that promised in the contract. Such a decree may be drawn so
as best to effectuate the purposes for which the contract was made, and it may
be granted on such terms and conditions as justice requires. Boyd, 28 Md. App.
at 23.
16
In addition to specific performance, the party seeking enforcement may be entitled to ancillary
money damages to compensate that party for losses caused by the defending partys breach of the contract.
Archway, 37 Md. App. at 687-88. Further, specific performance may be granted even though not identified
as a remedy in the contract at issue, unless the contract clearly indicates that the identified remedies are
exclusive. See Miller v. United States Naval Inst., 47 Md. App. 426, 435-36 (Md. Ct. Spec. App. 1980)
26
Virginia. Under Virginia law, suits for specific performance of contracts relating to
land are appropriately addressed to the discretion of a court sitting in equity
because of the unique nature of such a contract. In such cases, the court may
grant specific performance if: (1) there is a valid, certain, and definite contract
between the parties that is itself not inequitable; (2) specific performance is a
practical form of relief in the circumstances; (3) there are mutual performance
obligations, such that each party may comply with obligations under the contract;
and (4) there are no legal or equitable defenses to enforcement of the
agreement. Adams v. Doughtie, No. 03-0484, 2003 WL 23140076, at *11 (Va.
Cir. Ct. Dec. 31, 2003); see also City of Manassas v. Bd. of County Supervisors
of Prince William County, 250 Va. 126, 134 (1995) ([T]he terms of the contract
sought to be specifically enforced must be definite.); Firebaugh v. Hanback, 247
Va. 519, 526 (1994) (noting that the court has denied specific performance of
contracts executed under a mutual mistake of fact and further holding that he
who asks equity must do equity, and he who comes into equity must come with
clean hands.);17 Duke v. Tobin, 198 Va. 758, 760 (1957) (It is an elementary
principle that a court of equity will not specifically enforce a contract unless it be
complete and certain. All the essential terms of the contract must be finally and
definitely settled.). In addition, the party seeking enforcement must demonstrate
that he has been able, ready, prompt, eager and willing to perform the contract
on his part. Alaragy v. Dengler, No. 181411, 2004 WL 1662279, at *3 (Va. Cir.
Ct. June 9, 2004).
As a general matter, where a contract respecting real property is in its
nature and circumstances unobjectionable, it is as much a matter of course for
courts of equity to decree specific performance of it, as it is for a court of law to
give damages for a breach of it. Bond v. Crawford, 193 Va. 437, 444 (1952)
(quotations omitted). Specific performance of a contract is not a matter of
absolute right but rests in a sound judicial discretion. Alaragy, 2004 WL
1662279, at *3; Chesapeake Builders, Inc. v. Lee, 254 Va. 294, 300 (1997)
(Specific performance of a contract does not lie as a matter of right, but rests in
the discretion of the chancellor, and may be granted or refused under established
equitable principles and the facts of a particular case.). That discretion must be
exercised with a view to the substantial justice of the case. Chesapeake
Builders, 254 Va. at 300.
iii.
17
Although one seeking equity must have clean hands, the clean hands maxim does not operate to
bar a sinner forever from a court of equity. Bond v. Crawford, 193 Va. 437, 447 (1952). To defeat a
claim for specific performance, [t]he misconduct relied on must relate directly to the matter in litigation.
It is not sufficient that the wrongdoing is remotely or indirectly connected with the subject of the suit. Id.
27
18
19 11
U.S.C. 365(n).
20 Medical Malpractice Ins. Assn v. Hirsch (In re Lavigne), 114 F.3d 379, 386387 (2d Cir. 1997), affg, 183 B.R. 65, 72 (Bankr. S.D.N.Y. 1995) (Rejection . . .
does not extinguish all rights under an executory contract. . . . State-law rights
embodied within executory contracts survive rejection.); Eastover Bank for
Savings v. Sowashee Venture (In re Austin Development Co.), 19 F.3d 1077,
1081-1084 (5th Cir. 1994); In re Modern Textile, Inc., 900 F.2d 1184, 1191 (8th
Cir. 1990); Leasing Service Corp. v. First Tennessee Bank, Nat'l Ass'n, 826 F.2d
434, 436-37 (6th Cir. 1987); Michael T. Andrew, Executory Contracts in
Bankruptcy: Understanding Rejection, 59 U. Colo. L. Rev. 845, 931 (1988)
(quoted approvingly by Second Circuit in Lavigne at 114 F.3d at 387); Creators
Way Associated Labels, Inc. v. Mitchell (In re Mitchell), 249 B.R. 55, 58 (Bankr.
S.D.N.Y. 2000); Cohen v. Drexel Burnham Lambert Group Inc. (In re Drexel
Burnham Lambert Group, Inc.), 138 B.R. 687, 709 (Bankr. S.D.N.Y. 1992).
28
such rights that arise from rejected contracts.21 Accordingly, [b]ecause rejection
constitutes only a breach, not a termination, an obligation in a rejected contract
continues to bind a debtor unless the obligation is discharged.22
Only liabilities on claims are discharged by confirmation of a chapter 11
plan. Section 101(5) of the Bankruptcy Code defines claim as:
23
21 Drexel Burnham, 138 B.R. at 709 (quotations omitted); see also Licensing by
Paolo, Inc. v. Sinatra (In re Gucci), 126 F.3d 380, 389 (2d. Cir. 1997) (non-debtor
party has a reasonably strong argument that rejection of its licensing contract
[pursuant to which the non-debtor party had a right to license the prepetition
designs created by the debtor] does not eliminate the transfer of the property
right created under it).
22 Abboud v. Ground Round, Inc. (In re Ground Round, Inc.), Case No. 05-039,
2005 Bankr. LEXIS 2595, *19 (1st Cir. B.A.P. Dec. 15, 2005).
23 11 U.S.C. 1141(d)(1).
24 Id. 101(5) (emphasis added).
25 469 U.S. 274 (1985).
26 Id. at 275.
27 Id. at 283.
29
The Supreme Court held the injunction was a dischargeable claim precisely
because the cleanup order had been converted into an obligation to pay
money.28 The court went out of its way to caution it was not addressing what the
legal consequences would have been had Kovacs taken bankruptcy before a
receiver had been appointed and a trustee had been designated with the usual
duties of a bankruptcy trustee.29 Given that cleaning up and paying for cleanup
procure the identical result as occurred in Kovacs, the Supreme Court clearly did
not see the possibility of a money judgment as automatically rendering an
injunction dischargeable.
Notably, the Supreme Court rejected the argument that its analysis of what
a claim is under section 101(5)(B) should differ according to whether a civil statute
is being enforced or a contract is breached.30 The Supreme Court also observed
that Congress had considered two versions of section 101(5)(B).31 One version
only discharged rights to payment and the other version discharged rights to
payment and equitable remedies. Congress enacted a compromise version.32
Significantly, the key question that the Supreme Court announced it did not
decide in Kovacs (i.e., whether the injunction against the debtor in possession to
clean up hazardous waste would have been dischargeable as giving rise to a right
to payment if the debtor had remained in possession and had the ability to
remediate) was later decided in United States v. LTV Corp. (In re Chateaugay
Corp.).33 There, LTV had deposited hazardous substances prepetition, which
substances continued to contribute to pollution postpetition.34 The United States
Environmental Protection Agency (EPA) had ordered LTV to clean up the
affected sites. LTV, unlike Kovacs, remained in possession of its property during
its chapter 11 case.
The United States Court of Appeals for the Second Circuit conceded: It is
true that, if in lieu of such an order, EPA had undertaken the removal itself and
sued for the response costs, its action would have both removed the accumulated
waste and prevented continued pollution.35 But, applying the definition of claim in
section 101(5)(B), the Second Circuit ruled the cleanup order was
nondischargeable because a portion of the cleanup order was not convertible to a
right to payment.36
28 Id.
29 Id. at 284.
30 Id. at 278-279.
31 Id. at 280.
32 Id.
33 944 F.2d 997 (2d Cir. 1991).
34 Id. at 999, 1008.
35 Id. at 1008.
36 Id. (Since there is no option to accept payment in lieu of continued pollution,
any order that to any extent ends or ameliorates continued pollution is not an
30
Under most or all state laws, specific performance is only given when
money damages do not suffice as shown above.
Significantly, the Second Circuit volunteered it could have decided
Chateaugay somewhat differently.37 The other possibility would have been more
in line with the Bankruptcy Codes fresh start policy because it would have relieved
the debtor of an ongoing liability to clean up prepetition hazardous releases. The
Court observed it could have placed on the non-claim side only those injunctions
ordering a defendant to stop current activities that add to pollution (e.g., depositing
new hazardous substances), while leaving on the claim side all other injunctions,
including those that direct the cleanup of sites from which hazardous substances,
previously deposited, are currently contributing to pollution.38 Previously,
however, the Second Circuit had warned:
Of course, the comprehensive nature of the bankruptcy statute
does not relieve us of the obligation to construe its terms, nor may
we resolve all issues of statutory construction in favor of the fresh
start objective, regardless of the terms Congress has chosen to
express its will. . . . But we are obliged to apply the bankruptcy
laws that Congress enacted, not to reformulate it as theorists
would prefer to see it.39
Then, the Second Circuit rejected its alternate resolution, explaining:
We think we must endeavor to apply the claim definition as
written, mindful of the purposes of bankruptcy law but without the
prerogative of rewriting it to maximize bankruptcy objectives that
Congress might not have fully achieved.40
In sum and substance, the Second Circuit (now joined by other circuits)41
logically determined that section 101(5)(B)s provision that a breach must give rise
order for breach of an obligation that gives rise to a right of payment and is for
that reason not a claim.).
37 Id. at 1009.
38 Id.
39 Id. at 1002, 1003.
40 Id. at 1007.
41 See In re: Udell, 18 F.3d 403, 406, 407-8 (7th Cir. 1994) (holding that the
ability of a party to obtain injunctive relief and liquidated damages gives rise to
non-dischargeable claim if, under state law, such remedies are cumulative, not
alternative); Air Line Pilots Assoc. v. Continental Airlines (In re Continental
Airlines), 125 F.3d 120, 135, 136 (3d Cir. 1997), cert. denied, 522 U.S. 1114
(1998) (adopting same test for whether an equitable remedy is a dischargeable
claim: whether money damages are only cumulative or independently will
31
Facts
The debtor, Straightline, operated a sawmill and did custom lumber milling
when it commenced its chapter 11 case. 525 F.3d at 875. Straightline requested
bankruptcy court approval to borrow up to $500,000 from Aalfs. 525 F.3d at
875. Straightlines president personally guaranteed Aalfs against all losses Aalfs
may incur from any lending to Straightline. 525 F.3d at 875. The bankruptcy
court authorized Straightline to borrow up to $100,000 from Aalfs secured by a
junior lien against equipment and a senior lien against inventory. But, the court
specifically denied requests to authorize any further borrowing, including loans
secured by accounts receivable. 525 F.3d at 876. Despite the order, from
September 30, 1997 through March 9, 1998 Aalfs advanced money to
Straightline in exchange for accounts receivable. 525 F.3d at 876. Aalfs paid
$186,455 for accounts having a face value of $200,600, and Aalfs collected
$163,007 from the accounts. 525 F.3d at 876. Aalfs referred to the transaction
as a factoring transaction. The Ninth Circuit notes that factoring is a sale of
accounts receivable at a discounted price that gives the seller the benefit of
immediate cash and the benefit that the factor assumes the risk of loss. 525
F.3d at 876n.1.
In April 1998, a chapter 11 trustee was appointed and then the case was
converted to chapter 7. The trustee commenced an action to avoid the factoring
transactions. The bankruptcy court ordered that the transfers of the accounts
receivable should be avoided which meant that Aalfs should return to the estate
the $163,007 it collected, the remaining accounts receivable it had not collected,
interest, and costs. 525 F.3d at 876. The Bankruptcy Appellate panel affirmed.
525 F.3d at 876.
ii.
Issues
Rationale
37
Punitive Damages?
Plainly, the lender who may have been doing the debtor a favor, ended up
being tagged with compensatory and punitive damages. He lost the accounts
receivable he purchased and lost his purchase price, while the estate obtained a
windfall. As a matter of fairness, this appears only justifiable if the transaction is
viewed as an intentional circumvention of the bankruptcy courts order. That
characterization, however, is unlikely because the court did not order the debtor
not to use the collections from its accounts receivable. Thus, if the account
debtors had paid quickly, the debtor could have used the money to continue its
business. What the decision demonstrates, however, is that a dispassionate
application of 11 U.S.C. 363(c), 549(a), and 550(a) yields an exceptionally
harsh result because no credit is given for the amount paid for the accounts
receivable.
Finally, who was in the wrong? Bankruptcy Code section 364(a) controls
what debt the debtor may incur, and the bankruptcy court ordered the debtor not
to incur more debt or to borrow against its accounts receivable. The debtor
violated the statute and the courts direction. But, the court punished the lender,
while the debtor and its creditors obtained a windfall benefit for the debtors
wrongful conduct.
5.
38
A.In re SemGroup, L.P., 399 B.R. 388 (Bankr. D. Del. 2009) (BLS)
i.Facts
Chevron entered into prepetition derivative transactions with three
affiliated debtors. As credit enhancement, Chevron held the guaranty of
SemGroup, L.P. for all its transactions with SemGroups affiliates, and all the
parties entered into agreements containing triangular setoff authorizations which
provided:
in the event either party fails to make a timely payment of monies
due and owing to the other party, or in the event either party fails to
make timely delivery of product or crude oil due and owing to the
other party, the other party may offset any deliveries or payments
due under this or any other Agreement between the parties and
their affiliates.
399 B.R. at 391.
Upon commencement of the chapter 11 cases of SemGroup and its
affiliates, Chevron owed SemCrude $1,405,878.40, while Chevron was owed
$10,228,439.34 by SemFuel, and an additional $3,302,806.03 by SemStream.
399 B.R. at 392. Accordingly, Chevron requested relief from the automatic stay
(11 U.S.C. 362(a)(7)) to effectuate a setoff against what it owed SemCrude of
amounts it was owed by SemFuel or SemStream.
ii.
Issues
39
[M]ay debts owing among different parties be considered mutual when there
are contractual netting provisions governing all parties business relationship
(sic)? 399 B.R. at 396.
Are triangular setoff arrangements permitted exceptions to the mutual debt
requirement in 11 U.S.C. 553(a)? 399 B.R. at 396.
iii.
Holdings
Chevron asserts that the terms of its contracts with the Debtors permit it to setoff
[sic] the debt it owes to one corporation, SemCrude, against the debt owed to it
by two other corporations, SemFuel and SemStream, thus effecting a triangular
setoff. The Court does not need to determine whether the specific terms of these
various contracts grant SemCrude this right, however. Instead, the Court holds
that Chevron is not permitted to effect such a setoff against the Debtors in this
case because section 553 of the Code prohibits a triangular setoff of debts
against one or more debtors in bankruptcy as a matter of law due to lack of
mutuality." 399 B.R. at 392-393.
Accordingly, the Court holds that non-mutual debts cannot be
transformed into a mutual debt under section 553 simply because a multi-party
agreement allows for setoff of non-mutual debts between the parties to the
agreement. 399 B.R. at 398.
The Court finds nothing in the language of the Code upon which to base a
conclusion that there is a contractual exception to the mutual debt requirement.
Absent a clear indication from the text of the Code that such an exception exists,
the Court deems it improper to recognize one. 399 B.R. at 399 (footnote
omitted).
40
For these reasons, the Court holds that no exception to the mutual debt
requirement in section 553 can be created by private agreement. 399 B.R. at
399.
iv.
Rationale
61 Piedmont
Having determined that mutual debts must exist, the SemGroup court
determined debts created by a tripartite agreement can not be mutual:
The court finds the definition of mutuality embraced by other
courts to be instructive in this matter. The overwhelming majority of
courts to consider the issue have held that debts are mutual only if
they are due to and from the same persons in the same capacity.
See, e.g., Westinghouse, 278 F.3d at 149; Garden Ridge, 338 B.R.
at 633; Westchester, 181 B.R. at 740. It is also widely accepted that
mutuality is strictly construed against the party seeking setoff. In re
Bennett Funding Group, Inc., 212 B.R. 206, 212 (2d Cir. BAP
1997). See also Garden Ridge, 338 B.R. at 634; In re Clemens,
261 B.R. 602, 606 (Bankr. M.D. Pa. 2001). The effect of this narrow
construction is that each party must own his claim in his own right
severally, with the right to collect in his own name against the
debtor in his own right and severally. Garden Ridge, 338 B.R. at
633-34 (quoting Braniff Airways, Inc., 814 F.2d at 1036).
Construing the generally accepted definition of mutuality
narrowly, as it is obliged to do, the Court concludes that mutuality
cannot be supplied by a multi-party agreement contemplating a
triangular setoff. Unlike a guarantee of debt, where the guarantor is
liable for making a payment on the debt it has guaranteed payment
of, an agreement to setoff funds does not create an indebtedness
from one party to another.62 An agreement to setoff funds, such as
the one claimed by Chevron in this case, does not give rise to a
debt that is due to Chevron and due from SemCrude. A party
such as SemCrude does not have to actually pay anything to a
creditor such as Chevron under a tripartite setoff agreement; rather,
it only sees one of its receivables reduced in size or eliminated.
SemCrude does not owe anything to Chevron, thus there are no
debts in this dispute owed between the same persons in the same
capacity.
Likewise, Chevron does not have a right to collect against
SemCrude under the agreement in this case. At most, the
agreement of the parties would give Chevron a right to offset a
right to pay less than it would otherwise have to pay to the extent of
62
This
42
the setoff. The agreement does not call for SemCrude to make a
payment to Chevron, however. Consequently, the agreement does
not call for Chevron to collect anything from SemCrude. Chevron
is thus without a right to collect from SemCrude. At bottom,
Chevron may enjoy privity of contract with each of the relevant
Debtors, but it lacks the mutuality required by the plain language of
section 553.
399 B.R. at 396-397.
Ultimately, the SemGroup court determines that Chevron can not have
mutual debts between it and SemCrude because Chevron does not even have a
claim against SemCrude:
Regardless of whatever contractual right to setoff these debts
against each other it might have under state law, the fact remains
that Chevron only owes a debt to one debtor, SemCrude, and
SemCrude owes nothing to Chevron. Chevron does not even have
a claim against SemCrude because to have a claim it must have a
right to payment from SemCrude. See 11 U.S.C. 101(5).63 As
noted above, a right to effect a setoff can never impose a right to
payment, it only can yield a right to pay less than one would
otherwise have to pay. Therefore, the setoff advocated by Chevron
falls outside the express terms of section 553, and is
impermissible.
399R. at 397-398.
v.
Analysis
Significantly, while SemCrude ruled with a broad brush, it did not and
could not rule that parties are not allowed to convert non-mutual debts into
mutual debts. For instance, if A owes B, and a subsidiary of B owes A, there is
no law barring B from assuming or becoming jointly and severally liable for the
debt its subsidiary owes A, thereby creating mutual debts between A and B.
101(5) of the Code defines a claim as a right to payment, whether or
not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured or a right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured. Although Chevron may be able to assert a
state law right to the equitable remedy of setoff, this right is not based on a
breach of performance that gives rise to a right to payment, as noted above. A
setoff agreement such as the one in this case only creates a right to pay less or
nothing, not a right to receive a payment. 399 B.R. at 398n.8.
63
Section
43
Such a debt assumption would only be voidable if B's incurrence of the debt
would be a fraudulent transfer. SemCrude did hold, however, that triangular
setoff agreements will not convert non-mutual debts into mutual debts.64
SemCrude raises, but leaves unanswered whether B's guaranty of its
subsidiary's debt will transform the non-mutual debts into mutual debts.65
Chevron's second argument raised the pivotal question, namely whether a
private agreement requiring triangular setoffs can transform non-mutual debts
into mutual debts. SemCrude says no. The crux of SemCrude's reasoning is
that granting A the right to reduce the amount A owes B, by the amount C owes
A, does not grant A the right to collect money from B. From the absence of A's
right to payment from B, SemCrude concludes A has no claim against B, and A
can not have a debt from B that is mutual with A's debt to B.66 This logic may
seem valid from the Bankruptcy Code's definition of claim in section 101(5) as a
"right to payment," and its definition of a debt in section 101(12) as a liability on a
claim. But, it is not valid for two reasons. The first reason is that Bankruptcy
Code section 102(2) eliminates the need for a right to payment. The second
reason is that section 101(5)(A) was misapplied.
SemCrudes logic is as follows:
Regardless of whatever contractual right to setoff these debts
against each other it might have under state law, the fact remains
that Chevron only owes a debt to one debtor, SemCrude, and
SemCrude owes nothing to Chevron. Chevron does not even have
a claim against SemCrude because to have a claim it must have a
right to payment from SemCrude. See 11 U.S.C. 101(5).67 As
noted above, a right to effect a setoff can never impose a right to
payment, it only can yield a right to pay less than one would
otherwise have to pay. Therefore, the setoff advocated by Chevron
falls outside the express terms of section 553, and is
impermissible.68
Accordingly, the Court holds that non-mutual debts cannot be transformed into a mutual debt
under section 553 simply because a multi-party agreement allows for setoff of non-mutual debts
between the parties to the agreement. 399 B.R. at 398.
65
399 B.R. at 397n.7.
66
399 B.R. at 396-398.
67
Section 101(5) of the Code defines a claim as a right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or a right to an equitable remedy for breach
of performance if such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured. Although Chevron may be able to assert a state law right to
the equitable remedy of setoff, this right is not based on a breach of performance that gives rise
to a right to payment, as noted above. A setoff agreement such as the one in this case only
creates a right to pay less or nothing, not a right to receive a payment. 399 B.R. at 398n.8.
68
S399 B.R. at 397-398.
64
44
69
Senate Report No. 95-989, 95 Cong., 2d Sess. (1978) at 315. After the Senate Report was
issued and during the House-Senate conference to reconcile their respective bankruptcy bills, 11
U.S.C. 1111(b)(1)(A) was added, see 124 Congressional Record H 11089 (September
28,1978)(statement of Congressman Don Edwards), which actually does entitle holders of
nonrecourse claims to distributions from property in which they do not have an interest in some
circumstances. See footnote 71 below.
45
sole function of the courts* at least where the disposition required by the text is
not absurd -- *is to enforce it according to its terms.*70
That a right to payment is not a required element of a claim is
independently corroborated by section 1111(b)(1)(A) of the Bankruptcy Code.
There, the Bankruptcy Code refers to an entity holding a nonrecourse lien
against property of the estate as holding a claim.71
Next, Bankruptcy Code section 101(12) provides that "debt" means
"liability on a claim." Given that Chevron holds a claim against SemCrude's
account receivable, and thus, SemCrude pursuant to section 102(2), Chevron
also holds a debt from SemCrude which is SemCrude's liability on Chevron's
claim. SemCrude's liabilities under the triangular setoff agreement include its
obligation to reduce its account receivable from Chevron to the extent of
Chevron's accounts receivable from SemFuel and SemStream. Conversely,
Chevron's liabilities to SemCrude are to reduce its account receivable from
SemCrude by the amounts of SemCrude's accounts receivable from Chevron's
affiliates.
Although section 102(2) shows a right to payment is an unnecessary
component of a claim (and a debt) if the creditor has a claim against the debtors
property, Chevron also has a right to payment that SemCrude overlooked. The
second reason SemCrude erroneously determined Chevron did not hold a claim
against SemCrude is that SemCrude misapplied Bankruptcy Code section
101(5). SemCrude tested whether Chevron had a right to payment from
SemCrude by looking to see whether the triangular setoff contract expressly
granted Chevron a right to payment. SemCrude reasoned that a right to effect a
setoff can never impose a right to payment, it only can yield a right to pay less
than one would otherwise have to pay.72
But, to determine whether a contractual right is a claim, section 101(5)
makes clear you must look at the remedy for breach, not just whether the
70
Hartford Underwriters Insurance Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000)(quoting
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241(1989), quoting Caminetti v. United
States, 242 U.S. 470, 485 (1917)).
71
11 U.S.C. 1111(b)(1)(A) provides:
A claim secured by a lien on property of the estate shall be allowed or disallowed
under section 502 of this title the same as if the holder of such claim had
recourse against the debtor on account of such claim, whether or not such holder
has such recourse, unless
(i) the class of which such claim is a part elects, by at least two-thirds in amount
and more than half in number of allowed claims of such class, application of
paragraph (2) of this subsection; or
(ii) such holder does not have such recourse and such property is sold under
section 363 of this title or is to be sold under the plan.
72
46
contract requires the debtor to pay money. In pertinent part, section 101(5)
provides a claim is a right to payment, whether or not such right is reduced to
judgment, or a right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment The Bankruptcy Code's references to
reduced to judgment and remedy for breach make clear that the inquiry goes
to what type of judgment the nonbreaching contract party can procure if the
debtor breaches the contract. Here, if SemCrude were to breach the triangular
setoff agreement and require that Chevron pay SemCrude without setting off,
there is no question Chevron could obtain a money judgment for the amount it
was wrongfully required to pay. Conceptually, it is also clear that the remedy for
the breach of a financial contract such as a triangular setoff agreement would be
money damages.
That the court must look to the remedy for breach and not to whether the
contract requires the debtor to pay money under the express terms of the
contract, is critical. For instance, if A has a contract with B under which A agrees
not to compete with B in a certain geographical area, and A commences a
chapter 11 case and rejects the contract, SemCrude would preclude B from filing
an allowable damage claim against A because B has no right to payment from A
under the contract, notwithstanding that under state law B would certainly be
entitled to a money judgment for damages.
Similarly, if A has a contract to sell widgets to B for $1 per widget, and A
commences a chapter 11 case and rejects the contract because widgets are
selling for $3 per widget, SemCrudes holding would bar B from filing an
allowable claim against A for damages because under the contract B does not
have a right to payment from A. B only has a right to widgets from A. Indeed,
Bankruptcy Code section 502(b) provides that except to the extent a claim is not
allowable, the court shall determine the amount of such claim in lawful currency
of the United States as of the date of the filing of the petition, and shall allow the
claim in such amount It would be unnecessary for the statute to require the
allowance of claims in U.S. dollars if the failure of a contract to require payment
of U.S. dollars would render unallowable any claim under it.
Manifestly, the right to payment is determined on breach. Otherwise, the
entire policy underlying the Bankruptcy Code to provide debtors fresh starts
would be frustrated because multiple contracts would not give rise to claims. If
contracts requiring performance not involving the payment of money do not
create claims, those contract rights will not be dischargeable because
Bankruptcy Code sections 727(b), 1141(d)(1)(A), 1228(a), and 1328(a) only
discharge claims. Thus, the consequences of SemCrudes reasoning undermine
the key purpose of the definition of "claim" in the Bankruptcy Code to permit "the
broadest possible relief in the bankruptcy court."73 It is beyond doubt that these
consequences were unintended by the SemCrude court. The consequences
73
th
47
leave no doubt that SemCrude's test for determining whether a claim exists is
erroneous.
Based on the foregoing analysis of Bankruptcy Code sections 101(5),
101(12), and 102(2), the triangular setoff agreement grants Chevron a prepetition
claim and debt against SemCrude recognized by the Bankruptcy Code because:
(a) the triangular setoff agreement grants Chevron a claim against
SemCrude's property which is its account receivable from Chevron,
(b) section 102(2) renders Chevron's claim against SemCrude's property a
claim against SemCrude, and Chevron's contract rights independently provide
Chevron a claim against SemCrude because Chevron would be entitled to a
money judgment on breach of the setoff agreement, and
(c) section 101(12) defines SemCrude's liability on Chevron's claim as a
debt.
Chevron and SemCrude had Mutual Debts
A given fact in the decision is that SemCrude has a prepetition claim and
debt against Chevron.74 Therefore, the remaining requirement for purposes of
setoff under Bankruptcy Code section 553(a) is whether Chevron and
SemCrude's respective debts are mutual debts.
SemCrude concluded mutual debts can not be created by a triangular
setoff agreement based on its reasoning that Chevron lacked any rights to
payment, claims, and debts against SemCrude. At the outset of its analysis of
the mutual debt question, however, SemCrude recited the accepted formula
defining mutual debts for setoff purposes, as follows:
"The overwhelming majority of courts to consider the issue have
held that debts are mutual only if 'they are due to and from the
same persons in the same capacity.' See, e.g., Westinghouse, 278
F.3d at 149; Garden Ridge, 338 B.R. at 633; Westchester, 181 B.R.
at 740. It is also widely accepted that 'mutuality is strictly construed
against the party seeking setoff.' In re Bennett Funding Group, Inc.,
212 B.R. 206, 212 (2d Cir. BAP 1997). See also Garden Ridge, 338
B.R. at 634; In re Clemens, 261 B.R. 602, 606 (Bankr. M.D. Pa.
2001). The effect of this narrow construction is that 'each party
must own his claim in his own right severally, with the right to
collect in his own name against the debtor in his own right and
severally.' Garden Ridge, 338 B.R. at 633-34 (quoting Braniff
Airways, Inc., 814 F.2d at 1036)."75
74
75
48
The first test is whether Chevron and SemCrude have debts "due to and
from the same persons in the same capacity."76 Here, a given fact is that
SemCrude holds a claim against and debt from Chevron of approximately $1.4
million.77 Based on the analysis above, pursuant to the triangular setoff
agreement, Chevron holds a claim against and debt from SemCrude. In each
instance, SemCrude and Chevron hold their respective debts in their corporate
capacities, and not as an agent, trustee, or other capacity. Thus, the first test is
satisfied.
The second test is that "each party must own his claim in his own right
severally, with the right to collect in his own name against the debtor in his own
right and severally." In re Garden Ridge Corp., 338 B.R. 627, 633-634 (Bankr. D.
Del. 2006). Here, there is no dispute that SemCrude owned its claim with the
right to collect in its name against Chevron. Based on the triangular setoff
agreement, Chevron owns a prepetition claim against SemCrude. Indeed, it was
entered into precisely to enable Chevron to collect from SemCrude by reducing
Chevron's account payable to SemCrude. If SemCrude were to breach and
disallow setoff, Chevron has a valid state law claim entitling it to collect money
damages from SemCrude. In each instance, Chevron and SemCrude hold the
claims in the same capacities and can collect against each other severally.
Accordingly, the second test for mutual debts is also passed.
Another way to determine whether Chevron and SemCrude owe each
other mutual debts is to look at the substance of the triangular setoff transaction.
Assume that after Chevron trades with SemCrude and SemStream for one day,
Chevron owes SemCrude $1.4 million and SemFuel owes Chevron $10.2 million.
Further assume the three parties have entered into a master agreement
providing that on each payment or settlement date, SemCrude must assume joint
and several liability for SemFuel's debt in the amount, if any, that Chevron would
otherwise have to pay SemCrude on that date. Once SemCrude assumes joint
and several liability for a SemFuel debt to Chevron, there can be no question that
SemCrude and Chevron owe each other mutual debts for purposes of
Bankruptcy Code section 553(a). While this would enable Chevron to sue
SemCrude severally to collect the amount of debt SemCrude assumed, Chevron
would not have to go to the trouble of doing so because, in or out of bankruptcy,
it would be able to set off its debt to SemCrude against the SemCrude debt to
Chevron that SemCrude assumed from SemFuel.
Rather than going to the trouble of having SemCrude assume SemFuel's
debt to Chevron on each payment date, the triangular setoff agreement
eliminates the formal assumption step by authorizing the setoff which grants
Chevron the right to collect from SemCrude by setting off, or suing severally for
76
77
Washington Credit Corp., v. D'Urso, 278 F.3d 138, 149 (2d Cir. 2002).
399 B.R. at 392.
49
the money if SemCrude breaches and does not allow a setoff.78 Thus, the
master agreement and the triangular setoff agreement put the parties in the exact
same place. Substantively they are equivalent.
Therefore, whatever test is used, Chevron and SemCrude have mutual
debts for purposes of Bankruptcy Code section 553(a). Here, the terms of the
triangular setoff agreement expressly grant the right of setoff only upon the
failure of a counterparty to timely pay what it owes. That does not appear to
impact any of the mutual debt tests, and SemCrude does not rely on it to
conclude the debts are not mutual.
Public Policy
SemCrude attempts to corroborate its conclusions that Chevron and
SemCrude do not hold mutual debts, and setoff is unauthorized, by looking to
policy:
"One of the primary goals if not the primary goal of the Code is
to ensure that similarly-situated creditors are treated fairly and
enjoy an equality of distribution from a debtor absent a compelling
reason to depart from this principle. By allowing parties to contract
around the mutuality requirement of section 553, one creditor or a
handful of creditors could unfairly obtain payment from a debtor at
the expense of the debtors other creditors, thereby upsetting the
priority scheme of the Code and reducing the amount available for
distribution to all creditors."79
SemCrude's policy argument is circular. The policy that similarly situated
creditors should be treated alike, does not help determine whether creditors
having triangular setoff agreements are similarly situated to creditors not having
them. It certainly appears, they are not similarly situated. More importantly,
SemCrude distorts the policy that similarly situated creditors should be treated
alike, into a destructive policy that courts should strive to treat creditors as if they
78
See, e.g., In re Lang Machinery Corporation (Equibank v. Lang Machinery Co.), 1988 WL
110429 (Bankr.W.D.Pa.1988)(For a valid triangular setoff to exist, Debtor must have formally
agreed to permit aggregation of debts by two creditors), cited with approval in U.S. Bank v.
Custom Coals Laurel (In re Custom Coals Laurel), 258 B.R. 597, 607 (Bankr. W.D. Pa. 2001); In
re Virginia Block Co., 16 B.R. 560, 562 (Bankr. W.D. Va. 1981) (citing Inland Steel Co. v. Berger
Steel Co., Inc., 327 F.2d 401, 403-04 (7th Cir. 1964)) ("The Berger court found that a setoff
arrangement accommodating a parent corporation and its subsidiary would be allowable only in
those unique situations in which the parties to the transaction had, at the outset of their
relationship, entered into a separate agreement clearly establishing the intention of the parties to
treat the parent and subsidiary as one entity. Given this strict construction, it is clear in this
proceeding that the debts are not mutual debts within the meaning of s 553."); In re Balducci Oil
Co., Inc., 33 B.R. 847, 853 (Bankr. D. Colo. 1983) (mutuality found between three parties, as a
matter of contract law, where there was an express contractual agreement clearly evincing the
intent of the parties to treat the parent and subsidiary as one entity).
79
399 B.R. at 399 (footnote omitted).
50
Chem. Bank N.Y. Trust Co. v. Kheel (In re Seatrade Corp.), 369 F.2d 845, 848 (2d Cir. 1966).
The triangular setoff agreement is governed by Texas law. Texas law recognizes the right of
setoff so long as such amounts are liquidated and calculable. See e.g., Alley v. Bessemer Gas
Engine Co., 228 S.W. 963, 966 (Tex. Civ. App. Amarillo 1991), writ dismissed (June 15, 1921);
Commercial State Bank v. Van Hutton, 208 S.W. 363 (Tex. Civ. App. San Antonio 1919); see also
In re Williams, 61 B.R. 567, (Bankr. N.D. Tex. 1986) (Under Texas law, debtor's bank that issued
a promissory demand note had a valid right of offset on date petition was filed, even though the
note had not matured by its terms.)
81
51
Bankruptcy Code section 102(2), or as its claim for damages for breach by
SemCrude of its triangular setoff agreement under Bankruptcy Code section
101(5), the amount of the claim appears fully liquidated.
Second, is Chevrons setoff right disallowed by 11 U.S.C. 553(a)(3)?82
To be disallowable under section 553(a)(3), Chevrons claim against SemCrude
would have had to have been outside the Bankruptcy Code's safe harbors
(discussed below) and incurred by Chevron within 90 days before SemCrudes
bankruptcy, while SemCrude was insolvent, and for the purpose of obtaining a
right of setoff against SemCrude (except for certain setoffs within the Bankruptcy
Codes safe harbors for derivative transactions). For arguments sake, let us
assume Chevrons claim was incurred within 90 days prior to SemCrudes
chapter 11 petition and that SemCrude was insolvent. The question becomes
whether it was incurred to obtain a right of setoff. This is a question of intent.
The decision does not tell us whether Chevron incurred its claim before or after
its affiliates incurred their respective claims. The existence of the triangular
setoff agreement shows both Chevron and SemCrude wanted their respective
net exposures to equal the net amount that would be owing if neither of them had
any affiliates. Thus, it is not possible from the SemCrude decision to determine
the intent issue. The jurisprudence, of necessity, is case specific, but logically
shows, for instance, that an assignment of a judgment claim between affiliates for
no apparent reason other than to create a right of setoff, implies an intent to incur
a right of setoff.83
Conversely, SemCrude did, in fact, incur SemFuel or SemStreams debt to
Chevron for the purpose of providing Chevron a right of setoff. This was required
by the triangular setoff agreement. This would not satisfy the literal terms of
section 553(a)(3), which requires the nondebtor to incur the debt. Even if the
statute were read to encompass the debtors incurrence of a debt to allow the
creditor a right of setoff, there is still a question as to timing. SemCrudes
incurrence of the debt was pursuant to the triangular setoff agreement
presumably entered into when the two parties started trading. Thus, even if
SemFuel and/or SemStreams trades occurred within 90 days before
SemCrudes bankruptcy, incurrence of their debts to Chevron may be traced
back to when SemCrude entered into the triangular setoff agreement. Whether
to place the incurrence of debt on the triangular setoff agreement date, the trade
date, or the settlement date is not yet addressed in the jurisprudence, but, as
seen below, is immaterial for trades falling within the safe harbors for derivatives
and expressly insulated from the operation of this avoidance power by
Bankruptcy Code sections 546 and 553.
To address this uncertainty, however, it appears trading parties desiring to
enforce triangular setoff should enter into mutual guaranties of their respective
82
52
affiliates debts at the outset of the trading relationship, which guaranties should
expressly provide for each affiliate to assume its affiliate's debt for purposes of
allowing setoffs on settlement dates. Here, that would have rendered SemCrude
liable in the first place for SemStream and SemFuels debts to Chevron so that
Chevron would have had a setoff right without the triangular setoff agreement
and section 553(a)(3) would be inapplicable.84 The guaranties could provide that
they should be enforced only to the extent of available setoffs on settlement
dates, if the parties want to replicate the effects of a triangular setoff agreement.
Of course, the uncertainty may also be addressed by having the affiliates
assume joint and several liability for each other's trades, but that could create
liability beyond the setoffs contemplated by triangular setoff agreements, unless
the affiliates assume joint and several liability only up to the amount available for
setoff which is substantively what happens under triangular setoff agreements.
Third, if the right of setoff is not otherwise allowable under section 553, is
it nevertheless rendered allowable by one of the safe harbors in the Bankruptcy
Code or in that section? Chevron is not reported to have asserted its setoff right
is enforceable due to a safe harbor, but it may well have that protection. For
example, if the contracts were qualifying85 forward contracts, the triangular setoff
agreement, which provides credit enhancement, would come within the portion of
84
In In re Ingersoll, 90 B.R. 168, 171 (Bankr. W.D. N.C. 1987), a corporation (Rosdon) owed a
husband and wife over $440,000, which debt was guaranteed by Rosdon's owner. The note
provided Rosdon could set off against its note, any amounts the husband or wife owed Rosdon.
Subsequently, the husband and wife became indebted to Rosdon's owner for $22,000, and the
husband orally advised the owner he could offset the $22,000 against Rosdon's note if the
$22,000 were not paid. When the wife commenced a chapter 13 case, the owner requested
leave to set off the $22,000 against the $440,000. The court denied the owner's request, ruling
"[a]ny comments [husband] may have made regarding [owner's] right to set off Rosdon's debt do
not constitute a contractual right for offset. Those statements lack the formality of a binding
contract and amount at most to a statement of opinion...." Id. In respect of the owner's
contention that his guaranty of Rosdon's note rendered the two debts mutual, the court ruled:
"While that may be the effect of his guaranty, it does not change the fact that the debts are
between different parties in different capacities, and, thus, not subject to offset. Id. The latter
ruling may be justified on the facts because there was no cross default and therefore the $22,000
debt was matured due to bankruptcy, while the $440,000 was unmatured. "An unmatured claim
may not be offset against a matured claim unless the indemnitor is insolvent. Collum v.
Commercial Credit Co., 134 S.W.2d 826, 827 (Tex.Civ.App.-Amarillo 1939, writ dism'd w.o.j.)." In
re The Charter Co., 63 B.R. 568, 571 (Bankr. M.D. Fla. 1986). Otherwise, Ingersoll is contrary to
Bloor v. Shapiro, 32 B.R. 993, 1002 (S.D.N.Y. 1983)(Bankruptcy Act Chapter X case), where the
court ruled: "If the guarantee agreements entitled the [guarantors] to assert the [primary obligors']
claims, which were closely related to the guarantees, then the trustee's liability under such claims
would be debts owed to the [guarantors], to the extent of the [guarantors'] liability under the
guarantees. Such claims could thus be asserted by the [guarantors] as set-offs." Accordingly,
as belt and suspenders, trading parties will better position themselves to avoid attacks on
triangular setoffs if they utilize guarantees containing express triangular setoff language. The
master agreements and termination provisions should assure the parties will be setting off
matured debts against matured debts.
85
References to qualifying contracts in this article are to contracts (a) held by one of the entities
listed in Bankruptcy Code sections 555, 556, 559, 560, or 561, and (b) constituting one of the
types of contracts whose liquidation, termination, and enforcement are protected by such sections
when held by one of such entities.
53
87
54
appears the plain language of the safe harbor provisions bars the limitation of
setoffs of debts whether mutual or not, if effective under state law.
The same analysis applies to any qualifying commodity contract because
its definition also includes credit enhancements related to them.88 Similarly,
securities contracts are defined to include credit enhancements,89 and are
protected by the safe harbor in Bankruptcy Code section 555. The same
analysis applies to qualifying repurchase agreements, swap agreements, and
master netting agreements.90
In addition to safeguarding contractual rights to liquidate, terminate, and
accelerate qualifying derivative contracts and their credit enhancements, the
Bankruptcy Code also insulates the holders of those contracts from most
avoidance powers such as preferences and fraudulent transfers, other than
fraudulent transfers with actual intent to hinder, delay, or defraud creditors.91
Thus, the liquidation of qualifying derivative contracts and the exercise of the
triangular setoff should not be voidable as a preference or constructively
fraudulent transfer (a fraudulent transfer not based on actual intent to hinder,
delay, or defraud creditors).
The entering into of the triangular setoff agreement, however, is not within
the safe harbor which only protects transfers under qualifying derivative
88
11 U.S.C. 761(4)(J).
11 U.S.C. 741(7)(A)(ix).
90
11 U.S.C. 101(38A)(A)(master netting agreement), 101(47)(A)(v)(repurchase agreement),
101(53B)(A)(vi)(swap agreement), 559, 560, 561.
91
11 U.S.C. 546(e-g) provide:
89
(e) Notwithstanding sections 544, 545, 547, 548 (a)(1)(B), and 548 (b) of this title,
the trustee may not avoid a transfer that is a margin payment, as defined in
section 101, 741, or 761 of this title, or settlement payment, as defined in section
101 or 741 of this title, made by or to (or for the benefit of) a commodity broker,
forward contract merchant, stockbroker, financial institution, financial participant,
or securities clearing agency, or that is a transfer made by or to (or for the benefit
of) a commodity broker, forward contract merchant, stockbroker, financial
institution, financial participant, or securities clearing agency, in connection with a
securities contract, as defined in section 741 (7), commodity contract, as defined
in section 761 (4), or forward contract, that is made before the commencement of
the case, except under section 548 (a)(1)(A) of this title.
(f) Notwithstanding sections 544, 545, 547, 548 (a)(1)(B), and 548 (b) of this title,
the trustee may not avoid a transfer made by or to (or for the benefit of) a repo
participant or financial participant, in connection with a repurchase agreement
and that is made before the commencement of the case, except under section
548 (a)(1)(A) of this title.
(g) Notwithstanding sections 544, 545, 547, 548 (a)(1)(B) and 548 (b) of this title,
the trustee may not avoid a transfer, made by or to (or for the benefit of) a swap
participant or financial participant, under or in connection with any swap
agreement and that is made before the commencement of the case, except
under section 548 (a)(1)(A) of this title.
55
contracts. Therefore, the entering into of the triangular setoff agreement may be
avoided as a constructively fraudulent transfer if, for instance, it is entered into
after the derivative trading has begun and its effect is to cause a debtor to
assume affiliate debt without any corresponding, reasonably equivalent benefit to
the debtor and while the debtor is insolvent or rendered insolvent. If the
agreement itself is avoided, transactions under it may be avoided.
The Bankruptcy Code also excludes from the operation of the automatic
stay, setoffs of mutual debts under or in connection with qualifying commodity
contracts, forward contracts, securities contracts, repurchase agreements, swap
agreements, and master netting agreements.92
Fourth, if Chevrons right of setoff against SemCrudes account receivable
from Chevron is conceptualized as Chevron having a security interest in that
account receivable, then should the security interest be avoided pursuant to
Bankruptcy Code section 544(a)(1)93 and preserved for the benefit of the debtors
estate pursuant to Bankruptcy Code section 551,94 thereby stripping Chevron of
its right to set off? If Chevrons setoff right were an unperfected security interest
and unprotected by a safe harbor, it would be subject to avoidance by the trustee
or debtor in possessions hypothetical status as a judicial lien creditor. If the
triangular setoff agreement, however, is a qualified derivative contract for which a
safe harbor exists, the safe harbor would insulate Chevron from attacks by a
trustee or debtor in possession pursuant to Bankruptcy Code section 544.95 The
safe harbor would not, however, insulate Chevron from an attack by an entity
holding a perfected security interest in SemCrudes account receivable from
Chevron because the Uniform Commercial Codes priority scheme gives the
perfected security interest priority over the unperfected security interest.96
92
93
94
95
96
56
97
U.S. Aeroteam, Inc. v. Delphi Automotive Systems LLC (In re U.S. Aeroteam, Inc.), 327 B.R.
852, 863 (Bankr. S.D. Ohio 2005)(triangular setoff right treated and referred to as contractual
right).
98
U.C.C. section 9-404(a)-(b) provide:
(a) [Assignee's rights subject to terms, claims, and defenses; exceptions.]
Unless an account debtor has made an enforceable agreement not to assert
defenses or claims, and subject to subsections (b) through (e), the rights of an
assignee are subject to:
(1) all terms of the agreement between the account debtor and assignor and any
defense or claim in recoupment arising from the transaction that gave rise to the
contract; and
57
Chevron obtained the setoff right against SemCrudes account receivable from
Chevron, prior to Chevrons receiving notification100 of a security interest in the
(2) any other defense or claim of the account debtor against the assignor which
accrues before the account debtor receives a notification of the assignment
authenticated by the assignor or the assignee.
(b) [Account debtor's claim reduces amount owed to assignee.]
Subject to subsection (c) and except as otherwise provided in subsection (d), the
claim of an account debtor against an assignor may be asserted against an
assignee under subsection (a) only to reduce the amount the account debtor
owes.
99
Pursuant to U.C.C. 9-109(d)(10)(B), article 9 of the U.C.C. does not apply to recoupments
and setoffs, except section 9-404 applies to defenses or claims of an account debtor.
100
U.C.C. 1-202 provides:
1-202. Notice; Knowledge.
(a) Subject to subsection (f), a person has "notice" of a fact if the person: (1) has
actual knowledge of it; (2) has received a notice or notification of it; or (3) from all
the facts and circumstances known to the person at the time in question, has
reason to know that it exists.
(b) "Knowledge" means actual knowledge. "Knows" has a corresponding
meaning.
(c) "Discover", "learn", or words of similar import refer to knowledge rather than
to reason to know.
(d) A person "notifies" or "gives" a notice or notification to another person by
taking such steps as may be reasonably required to inform the other person in
ordinary course, whether or not the other person actually comes to know of it.
(e) Subject to subsection (f), a person "receives" a notice or notification when:
(1) it comes to that person's attention; or (2) it is duly delivered in a form
reasonable under the circumstances at the place of business through which the
contract was made or at another location held out by that person as the place for
receipt of such communications.
(f) Notice, knowledge, or a notice or notification received by an organization is
effective for a particular transaction from the time it is brought to the attention of
the individual conducting that transaction and, in any event, from the time it
would have been brought to the individual's attention if the organization had
exercised due diligence. An organization exercises due diligence if it maintains
reasonable routines for communicating significant information to the person
conducting the transaction and there is reasonable compliance with the routines.
Due diligence does not require an individual acting for the organization to
communicate information unless the communication is part of the individual's
regular duties or the individual has reason to know of the transaction and that the
transaction would be materially affected by the information.
58
Notification is not satisfied by the filing of a security interest; it requires actual notice. Iowa Oil
Co. v. Citgo Petroleum Corp (In re Iowa Oil Co.) , 2004 U.S. Dist. LEXIS 20734, 2004 WL
2326377, *6 , 55 U.C.C. Rep. Serv. 2d (Callaghan) 48 (N.D. Iowa, September 30, 2004).
59
Facts.
Issue.
The Supreme Court granted certiorari to consider the question left open by
Tennessee Student Assistance Corporation v. Hood, 541 U.S. 440 (2005),
namely whether Congress attempt to abrogate state sovereign immunity in the
amendment of 11 U.S.C. 106(a) is valid. But, the Supreme Court ultimately
decided the case based on the more dramatic issue of whether the United States
Constitution itself abrogates sovereign immunity in the bankruptcy court,
rendering 11 U.S.C. 106(a) unnecessary.
iii.
Holding
Ct. at 1000n.9. *** As we explain in Part IV, infra, it is not necessary to decide
whether actions to recover preferential transfers pursuant to 550(a) are
themselves properly characterized as in rem. (footnote omitted). Whatever the
appropriate appellation, those who crafted the Bankruptcy Clause would have
understood it to give Congress the power to authorize courts to avoid preferential
transfers and to recover the transferred property. 126 S.Ct. at 1001-1002.
Insofar as orders ancillary to the bankruptcy courts in rem jurisdiction,
like orders directing turnover of preferential transfers, implicate States sovereign
immunity from suit, the States agreed in the plan of the Convention not to assert
that immunity. 126 S.Ct. at 960. *** [T]ext aside, the Framers, in adopting
the Bankruptcy Clause, plainly intended to give Congress the power to redress
the rampant injustice resulting from States refusal to respect one anothers
discharge orders. As demonstrated by the First Congress immediate
consideration and the Sixth Congress enactment of a provision granting federal
courts the authority to release debtors from state prisons, the power to enact
bankruptcy legislation was understood to carry with it the power to subordinate
state sovereignty, albeit within a limited sphere. 126 S.Ct. at 1004.
The ineluctable conclusion, then, is that States agreed in the plan of the
Convention not to assert any sovereign immunity defense they might have had in
proceedings brought pursuant to Laws on the subject of Bankruptcies. *** The
scope of this consent was limited; the jurisdiction exercised in bankruptcy
proceedings was chiefly in rem a narrow jurisdiction that does not implicate
state sovereignty to nearly the same degree as other kinds of jurisdiction. But
while the principal focus of the bankruptcy proceedings is an was always the res,
some exercises of bankruptcy courts powers issuance of writs of habeas
corpus included unquestionably involved more than mere adjudication of rights
in a res. In ratifying the Bankruptcy Clause, the States acquiesced in a
subordination of whatever sovereign immunity they might otherwise have
asserted in proceedings necessary to effectuate the in rem jurisdiction of the
bankruptcy courts. (footnote 15) 126 S.Ct. at 1004-1005.
To be sure, footnote 15 will provoke further litigation. It provides: We do
not mean to suggest that every law labeled a bankruptcy law could, consistent
with the Bankruptcy Clause, properly impinge upon state sovereign immunity.
126 S.Ct. at 1005n.15.
iv.
Rationale
The Supreme Court had agreed in Seminole Tribe of Fla. v. Florida, 517
U.S. 44 (1966), that Congress unequivocally expressed its intent to abrogate
state immunity, 517 U.S. at 56, but ruled the abrogation applicable there was not
pursuant to a valid exercise of power. Both the majority and dissent in Seminole
signaled the bankruptcy, antitrust, and copyright laws ought to correspondingly
fail to abrogate validly the states sovereign immunity. Seminole, 517 U.S. at 73
61
62
63
64
iii.Holding.
The United States Supreme Court affirmed on the ground the undue
hardship determination sought by Hood in this case is not a suit against a State
for purposes of the Eleventh Amendment. 124 S. Ct. at 1913. This is not to
say, a bankruptcy courts in rem jurisdiction overrides sovereign immunity,
United States v. Nordic Village, Inc., 503 U.S. 30, 38 (1992), but rather that
the courts exercise of its in rem jurisdiction to discharge a student loan debt is
not an affront to the sovereignty of the State. Nor do we hold that every exercise
of a bankruptcy courts in rem jurisdiction will not offend the sovereignty of the
State. No such concerns are present here, and we do not address them. 124
S. Ct. at 1913 n. 5.
The fact that the discharge proceeding had to be commenced by service
of a summons and complaint on the State did not violate the States sovereign
immunity based on the indignity of having to submit itself to personal jurisdiction
of the bankruptcy court because it doesnt have that effect in that only a
discharge is requested. 124 S. Ct. at 1913-1916.
iv.
Rationale.
65
66
state insolvency law would have granted the debtor relief unavailable under the
federal statute.
The United States Supreme Court ruled that even in the absence of
pending proceedings under the Bankruptcy Act, the operation of the state
insolvency law was unconstitutional because states are without power to make or
enforce any law governing bankruptcies that impairs the contracts of persons
outside their jurisdiction or conflicts with the national bankruptcy laws. 278 U.S.
at 263-264; Sturges v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12
Wheat. 213, 369; Baldwin v. Hale, 1 Wall. 223,228; Denny v. Bennett, 128 U.S.
489, 497-498; Brown v. Smart, 145 U.S. 454, 457; Stellwagen v. Clum, 245 U.S.
605, 613.
Significantly, the complaining creditor in Pinkus was not the federal
government; it was International Shoe Company. The United States Supreme
Court had no problem ruling the state courts could not enforce their insolvency
laws. That ruling implicitly suggests the states sovereign immunity against
enforcement of the federal bankruptcy laws is abrogated.
vi.
The bankruptcy court has authority to sell a debtors property free and
clear of a States tax lien. Van Huffel v. Harkelrode, 284 U.S. 225, 228-229
(1931).
D. Hoods Unanswered Question: Whether Congress Can
Constitutionally Abrogate States Sovereign Immunity from
Private Suits under the Bankruptcy Code
The key question answered affirmatively by the lower courts decision, but
left unanswered by the Supreme Courts affirmance in Hood, was whether at the
Constitutional Convention the states granted Congress the power to abrogate
their sovereign immunity under Article I, section 8 of the United States
Constitution. The lower court concluded that when the states granted Congress
in the Constitution the power to make uniform bankruptcy laws, they intended to
grant exclusive legislative power to the federal government on the subject of
bankruptcies and to cede their immunity to suit. Hood v. Tennessee Student
Assistance Corp., 319 F.3d 755, 767-768 (6th Cir. 2003), affd judgment on other
ground, 124 S. Ct. 1905 (2004).101
101 Five courts of appeal have ruled suits against states under the Bankruptcy Code in the bankruptcy court
are barred by sovereign immunity. Schlossberg v. State of Maryland (In re Creative Goldsmiths of
Washington, D.C., Inc.), 119 F.3d 1140 (4th Cir. 1997), cert. denied, 523 U.S. 1075 (1998); Dept of
Transp. & Dev. , State of Louisiana v. PNL Asset Mgmt. Co., LLC (In re Fernandez), 123 F.3d 241,
corrected, rehearing denied, 130 F.3d 1138 (5th Cir. 1997); Sacred Heart Hosp. of Norristown v.
Pennsylvania (In re Sacred Heart Hospital of Norristown), 133 F.3d 237 (3d Cir. 1998); Mitchell v.
67
The states sovereign immunity from suit in federal court presents perhaps
the grandest question of statutory interpretation in federal jurisprudence.
Moreover, those justices known for ruling the plain meaning of the statute ends
the inquiry unless the result is absurd, are in the position of arguing it is absurd to
interpret the Constitution to deprive states of the English monarchys traditional
insulation from suit based on the myth the king can do no wrong, when the
Constitution by its express terms provides subject matter jurisdiction over actions
between States and citizens of States and the Eleventh Amendment only bars
such actions when they involve judicial power and are between a State and
citizens of another State. See generally, Metromedia Fiber Network, Inc. v.
Various State and Local Taxing Authorities (In re Metromedia Fiber Network,
Inc.), 299 B.R. 251, 257-258 (Bankr. S.D.N.Y. 2003).
The United States Constitution provides plainly in Article III, section 2 that:
The Judicial Power shall extend, (5) To controversies between two or more
States; between a State and citizens of another State; between citizens of
different States How then can there even be a question as to the
susceptibility of states to suit in federal court?
The first time this question was presented to the Supreme Court, it
determined almost unanimously that a citizen of South Carolina could sue the
State of Georgia in federal court for assumpsit to recover money. Chisolm v.
State of Georgia, 2 U.S. 419 (1793). Justice Iredell, in dissent, looked to the
Judiciary Act of 1789 under which Congress carried out the Constitutions grant
of power to create federal courts and noted that section 13 provided:
That the Supreme Court shall have exclusive jurisdiction of all
controversies of a civil nature; where a State is a party, except
between a State and its citizens; and except also, between a State
and citizens of other States, or aliens, in which latter case it shall
have original, but not exclusive jurisdiction.
From section 13s grant of original, but not exclusive jurisdiction, Justice Iredell
deduced that Congress only granted the federal courts the same power the state
courts had and he opined they did not have power to sue the sovereign for
assumpsit. 2 U.S. at 431-438. Notably, Justice Iredell expressly left open the
possibility Congress may have the constitutional power to grant federal courts
power against states. 2 U.S. at 434; Seminole, infra, at 79 (Justice Stephens
dissent).
Chisolm was a very unpopular decision and Congress and the states
speedily passed the Eleventh Amendment in reaction to it.
Franchise Tax Bd., State of California (In re Mitchell), 209 F.3d 1111 (9th Cir. 2000); Nelson v. Lacrosse
County Dist. Attorney (State of Wisconsin) (In re Nelson), 301 F.3d 820 (7th Cir. 2002).
68
A hundred years later, the Supreme Court was faced with the question
whether a state can be sued by one of its own citizens in federal court. The
wording of the Eleventh Amendment only bars suits in federal court against
states by citizens of other states. Based on Alexander Hamiltons remarks in The
Federalist No. 81 where he announced state sovereignty would be preserved
except for surrenders of immunity in the plan of the convention, the court ruled a
state can not be sued in federal court by its own citizens. Hans v. Louisiana, 134
U.S. 1 (1890).
The portion of Alexander Hamiltons remarks in The Federalist No. 81 that
might convince a court of the absurdity of interpreting the Constitution to
abrogate states sovereign immunity provides:
The contracts between a nation and individuals are only binding
on the conscience of the sovereign, and have no pretension to a
compulsive force. They confer no right of action independent of the
sovereign will. To what purpose would it be to authorize suits
against States for the debts they owe? How could recoveries be
enforced? It is evident that it could not be done without waging war
against the contracting State; and to ascribe to the federal courts by
mere implication, and in destruction of a pre-existing right of the
state governments, a power which would involve such a
consequence, would be altogether forced and unwarrantable.
Over the years, states sovereign immunity has been rendered even
broader. For instance, in Federal Maritime Commission v. South Carolina, 535
U.S. 743 (2002), the Supreme Court held state sovereign immunity also bars a
federal agency (Federal Maritime Commission) from adjudicating a private
partys complaint against the state for violation of the Shipping Act of 1984, 46
U.S.C. 1701, even though judicial power was not being exercised and the
Eleventh Amendment only bars use of judicial power.
In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)(5 to 4), the
Supreme Court held the Indian Commerce Clause of the Constitution does not
grant Congress the power to allow a tribe to sue a state to enforce a federal
statute passed under that clause if the state does not consent to be sued, and
the Ex Parte Young doctrine (209 U.S. 123 (1908)) whereby a tribe may have
sued an official of the state for prospective injunctive relief was inapplicable
because Congress had legislated a remedial scheme. 517 U.S. at 47.
Interestingly, the statutory scheme ultimately provided for the Secretary of
the Interior to prescribe procedures under which gaming may be conducted on
Indian lands if mediation did not result in consensus, and the lower court granted
the Indians immediate recourse to the Secretary because it dismissed the
Indians suit due to sovereign immunity. Thus, the Indians obtained the ultimate
69
relief they sought and the States enforcement of its sovereign immunity was a
pyrrhic victory..
Although the Eleventh Amendment, by its terms, only bars use of judicial
power against a State in a diversity jurisdiction case and Seminole involved a
federal question case, the Supreme Court reaffirmed its prior rulings that the
Eleventh Amendment stands not so much for what is says, but for the
presuppositionwhich it confirms. Blatchford v. Native Village of Noatak, 501
U.S. 775, 779(1991). That presupposition, first observed over a century ago in
Hans v. Louisiana, 134 U.S. 1(1890), has two parts: first, that each State is a
sovereign entity in our federal system; and second, that it is inherent in the
nature of sovereignty not to be amenable to the suit of an individual without its
consent Seminole, 517 U.S. at 54.
The Supreme Court agreed in Seminole that Congress unequivocally
expressed its intent to abrogate state immunity, 517 U.S. at 56, but ruled the
abrogation was not pursuant to a valid exercise of power. The Supreme Court
had recognized only two sources of a valid power, the Fourteenth Amendment
(inapplicable here) and the Interstate Commerce Clause (Art. I, 8, cl. 3). The
Supreme Court overruled the plurality of Pennsylvania v. Union Gas Co., 491
U.S. 1 (1989), that held the Interstate Commerce Clause was a valid source of
power. Seminole, 517 U.S. at 66.
Based on the latter holding, both the majority and dissent in Seminole
signaled the bankruptcy, antitrust, and copyright laws might also fail to abrogate
validly the states sovereign immunity. Seminole, 517 U.S. at 73 (majority) and
93-94 (Justice Stephens dissent).
In the aftermath of Seminole, the Supreme Court also ruled nothing in
Article I of the United States Constitution authorizes Congress to subject
nonconsenting states to private suits for damages under federal statutes (the Fair
Labor Standards Act of 1938, as amended, 29 U.S.C. 201 et seq.) in state
courts. Alden v. Maine, 527 U.S. 706 (1999).
7. State Law Can Not Oust Federal Bankruptcy Courts of Subject Matter
Jurisdiction Granted by 28 U.S.C. 1334
A. Marshall v. Marshall, 126 S. Ct. 1735 (2006)
i.
Facts.
70
counterclaimed that the son had tortiously interfered with a gift she expected.
126 S. Ct. at 1742.
The bankruptcy court granted summary judgment against Mr. Marshall on
his proof of claim, ruled the claim and counterclaim were core proceedings, and
issued a judgment in favor of the debtor on her counterclaim in the amount of
$449 million compensatory damages and $25 million punitive damages. 126 S.
Ct. at 1742. The bankruptcy court also ruled Mr. Marshall waived the probate
exception to the courts subject matter jurisdiction and waived mandatory
abstention by untimely raising those issues. 126 S. Ct. at 1742, 1746 n.3. On
appeal, the district court determined the counterclaim was not a core proceeding
and treated the bankruptcy courts judgment as proposed rather than final. 126
S. Ct. at 1743.
The district court determined Mr. Marshall had tortiously interfered with the
debtors expectancy evidenced by her husbands having instructed his lawyers to
prepare a trust to provide her with half the appreciation of his assets from the
date of his marriage. The district court found the son conspired to suppress or
destroy the trust document and to strip his father of assets by backdating,
altering, and falsifying documents, arranging for surveillance of his father and the
debtor, and presenting documents to his father under false pretenses. 126 S. Ct.
at 1744. The district court awarded the debtor $44.3 million of compensatory
damages and $44.3 million of punitive damages. Id.
The United States Court of Appeals for the Ninth Circuit reversed, ruling
the probate exception bars federal jurisdiction as did the State of Texas grant of
exclusive jurisdiction to the state probate court. 126 S. Ct. at 1744.
In the meantime, after the bankruptcy court ruled in the debtors favor, the
debtor dismissed her claims in the Texas probate court that her husbands will
was invalid and that Mr. Marshall had tortiously interfered. 126 S. Ct. at 1743.
After a jury trial, the Texas probate court declared the living trust and the debtors
husbands will were valid. 126 S. Ct. at 1743. The state courts ruling became
final after the bankruptcy court issued its ruling that the district court treated as a
proposal and approximately one month before the district court issued its
judgment in favor of the debtor. 126 S. Ct. at 1750. The Ninth Circuit did not
address whether the debtors claim was core and whether Mr. Marshalls
arguments about claim and issue preclusion were valid. 126 S. Ct. at 1750.
ii.
Issue.
71
iii.
Holding.
We hold that the Ninth Circuit had no warrant from Congress, or from
decisions of this Court, for its sweeping extension of the probate exception. 126
S. Ct. at 1741.
It is also clear, however, that Texas may not reserve to its probate
courts the exclusive right to adjudicate a transitory tort. We have long
recognized that a State cannot create a transitory cause of action and at the
same time destroy the right to sue on that transitory cause of action in any court
having jurisdiction. Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354,
360, 34 S. Ct. 587, 58 L. Ed. 997 (1914)Directly on point, we have held that the
jurisdiction of the federal courts, having existed from the beginning of the
Federal government, [can] not be impaired by subsequent state legislation
creating courts of probate. McClellan v. Carland, 217 U.S. 268, 281, 30 S. Ct.
501, 54 L. Ed. 762 (1910) 126 S. Ct. at 1749.
On remand, the lower court can consider whether the debtors claim was a
core proceeding and whether claim and issue preclusion apply in respect of the
probate courts rulings. 126 S. Ct. at 1750.
8. When Must Valid Claims under State Law be Discounted to be Allowable
under Bankruptcy Law?
A. In re Oakwood Homes Corporation, 449 F.3d 588 (3d Cir.
2006)(2-1)
i.
Facts
72
ii.
Issue
Holding
We conclude that the language used in 502(b) does not clearly and
unambiguously require discounting an interest-bearing obligation to present
value in light of the words plain meanings and the language used elsewhere in
the Bankruptcy Code. The Bankruptcy Court erred: Interest-bearing debt should
not be discounted to present value after unmatured interest has been disallowed
pursuant to 502(b)(2). 449 F.3d at 603. We do not hold here that 11 U.S.C.
502(b) never authorizes discounting a claim to present value, but instead that the
statute does not clearly and unambiguously require it for all claims evalueated
under 502. 449 F.3d at 598. Once the Bankruptcy Court disallowed postpetition interest pursuant to 502(b)(2), the legislative history of the provision,
the economic reality of the transaction, and fundamental tenets of bankruptcy law
do not permit further discounting of the principal. 449 F.3d at 599.
iv.
Rationale
73
449 F.3d at 600 (quoting H.R. Rep. No. 95-595, at 352-54 (1977), same as S.
Rep. No. 95-989, at 62-65 (1978)). From this legislative history, the Third Circuit
concludes: To the extent that the Code in any way contemplates discounting to
present value, such discounting is not permitted where the claim is for principal
plus interest, and the interest has already been disallowed pursuant to
502(b)(2). 449 F.3d at 600.
v.
An Easier Way
The Third Circuit struggled with the notion of when a stream of principal
payments needs to be present valued, especially after the unmatured interest is
disallowed pursuant to 11 U.S.C. 502(b)(2). Significantly, the legislative history
quoted above provides section 502(b) does not cause disallowance of claims that
have not been present valued because of the irrebutable presumption the
discounting rate and the contract interest rate are equivalent even if the contract
rate is zero. This does not mean that a note providing for payment of its principal
amount in 10 years in a balloon payment with no interest, is not present valued if
the note was issued at a discount because the original issue discount is treated
as unmatured interest.
The Third Circuit would have had an easier time if it invoked 11 U.S.C.
502(b)(1) which disallows a claim to the extent such claim is unenforceable
against the debtor and property of the debtor, under any agreement or applicable
law for a reason other than because such claim is contingent or unmatured.
Thus, when nonbankruptcy law requires that a claim be present valued, it can
only be allowed in the amount of its value as of the petition date. For example, if
A lends $1,000 to B, to be repaid in 10 years in a balloon payment, but with
interest payable at 6% per year, nonbankruptcy law would allow A to obtain a
judgment for at least $1,000 if B defaults on the first interest payment. Similarly,
if the note did not carry interest, but provided for acceleration on bankruptcy,
state law would allow a judgment for at least $1,000 if B commences a
bankruptcy case.
Another guidepost the Third Circuit could have used is the practicality of
the law providing an allowed claim for less than an entity loans a moment after it
makes the loan. In other words, if A lends $1,000 to B at 8% interest for 20
years, and B commences a bankruptcy case the next day, what is As claim. We
know the unmatured interest is disallowed by 11 U.S.C. 502(b)(2). If the
$1,000 has to be present valued because it is not repayable for 20 years, then a
moment after making the loan for $1,000, A could have an allowed claim of only
about $200. If that were the law, then B should obtain that loan and go into
bankruptcy immediately to repay the $1,000 loan with $200. Clearly, the law is
not designed to produce that result.
B. When Debt is Restructured by Exchanging Debt, for Debt in
the Same Face Amount with Different Covenants, the
74
History
The bankruptcy court held the amount of the new debentures would be
disallowed as unmatured interest under Bankruptcy Code section 502(b)(2) to
the extent the value of the stock and face amount of the new debentures
exceeded the market value of the old debentures when exchanged. In re
Chateaugay Corp., 109 B.R. 51 (Bankr. S.D.N.Y. 1990), aff'd without analysis,
130 B.R. 403 (S.D.N.Y. 1991).
iii.
Analysis
v.
The Constant Interest Method Measures Original
Issue Discount
Finally, the Second Circuit affirmed that portion of Chateaugay Corp. (and
thereby disapproved that portion of Allegheny Int'l) which determined how original
issue discount is amortized. In Chateaugay Corp., the old debt had been issued
at a discount, thereby creating actual original issue discount, the unamortized
part of which is disallowable under Bankruptcy Code section 502(b)(2). The
dispute was whether the original issue discount is amortized by an equal amount
each day (the straight line method), or whether by a slightly greater amount each
day to take into account the compounding of a constant interest rate (the
constant interest method or yield to maturity method). Because the constant
interest method better describes economic reality, the Second Circuit adopted
that method.
9. Limits and Extensions of Official Unsecured Creditors' Committee v.
Stern (In re SPM Manufacturing Corp.), 984 F.2d 1305 (1st Cir. 1993)
A. Official Unsecured Creditors' Committee v. Stern (In re SPM
Manufacturing Corp.), 984 F.2d 1305 (1st Cir. 1993)
i.
Facts
The statutory creditors' committee representing creditors owed $5.5 million
determined a reorganization under existing management was unfeasible and a
liquidation would leave nothing for any creditor other than the secured
claimholder. 984 F.2d at 1307-1308. The committee agreed with the creditor
holding a $9 million claim secured by all estate assets except certain
encumbered real estate that the two entities would cooperate to (i) take all
actions reasonably necessary to replace the debtor's chief executive officer, (ii)
formulate a joint chapter 11 plan, and (iii) negotiate in good faith to reach
mutually acceptable agreements with respect to a number of details of the plan.
984 F.2d at 1307n.2, 1308. The secured creditor agreed to allocate the net
proceeds it obtains in reorganization or liquidation between itself and the
committee according to a schedule under which the committee obtains 10% of
the first $3 million, 20% of the next $3 million, 30% of the next $3 million, $40%
of the next $3 million, and 100% of any further proceeds the secured creditor
obtains. 984 F.2d at 1308.
The Internal Revenue Service held a $750,000 unsecured priority tax
claim for unpaid withholding taxes certain insiders would be responsible for if not
paid by the debtor. 984 F.2d at 1307. The IRS is not a party to the appeal and
appears not to have participated in the bankruptcy court.
76
The committee filed the agreement as an exhibit to a motion, and the court
expressed concern and characterized the agreement as a tax-avoidance
scheme. 984 F.2d at 1308. At no time did any creditor or insider object to the
agreement and it was never formally approved or disapproved until a chapter 7
trustee requested that the secured claimholder turn over to the estate the funds
allocable to unsecured claimholders under the agreement. Id.
The agreement expressly stated the committee was making the
agreement on behalf of general unsecured creditors "exclusive of the Internal
Revenue Service and potential 'insider' creditors." 984 F.2d at 1308.
When the case was converted to chapter 7, the chapter 7 trustee opposed
a joint motion of the secured claimholder and the committee to distribute the
secured claimholder's net proceeds in accordance with the agreement. The
bankruptcy court ruled the proceeds allocable to the committee should go to the
estate for distribution in accordance with chapter 7 priorities including the Internal
Revenue Service. 984 F.2d at 1309. The bankruptcy court treated the joint
motion as a motion to approve the agreement and refused to grant it. 974 F.2d
at 1309n.5. The district court affirmed. 974 F.2d at 1310.
ii.
Issue
Did the bankruptcy court err as a matter of law in ordering the secured
claimholder to pay a portion of its secured interest to the chapter 7 estate as
opposed to the unsecured claimholders under the agreement? 974 F.2d at 1310.
iii.
Holding
The court of appeals reversed and vacated the bankruptcy court's award
of the committee's allocation to the estate.
While a creditors committee and its members must act in accordance
with the provisions of the Bankruptcy Code and with proper regard for the
bankruptcy court, the committee is a fiduciary for those it represents, not for the
debtor or the estate generally. 974 F.2d at 1315.
The creditors committee is not merely a conduit through whom the debtor
speaks to and negotiates with creditors generally. On the contrary, it is
purposely intended to represent the necessarily different interests and concerns
of the creditors it represents. It must necessarily be adversarial in a sense, tough
its relation with the debtor may be supportive and friendly. There is simply no
other entity established by the Code to guard those interests. The committee as
the sum of its members is not intended to be merely an arbiter but a partisan
which will aid, assist, and monitor the debtor pursuant to its own self-interest.
974 F.2d at 1316.
77
Rationale.
The court of appeals explained the committee is not a fiduciary for the
debtor or estate as a whole. Rather, it is a fiduciary only for those whom it
represents. "It is charged with pursuing whatever lawful course best serves the
interests of the class of creditors represented....It must necessarily be adversarial
in a sense, though its relation with the debtor may be supportive and
friendly....The committee as the sum of its members is not intended to be merely
an arbiter but a partisan which will aid, assist, and monitor the debtor pursuant to
its own self-interest." Because the committee was only obtaining a share of
whatever would be distributed to the secured lender, the court did not believe any
other creditor, such as the IRS, was unfairly hurt.
In response to arguments that such agreements conflict with bankruptcy
policies, the court of appeals noted the bankruptcy court's power to disqualify
votes cast in bad faith and to reconstitute creditors' committees failing to be
properly representative enable it to control the tenor of proceedings. The court
noted the good faith requirement bars creditors from casting votes for ulterior
motives, such as coercing a higher payment from the estate, pure malice, and
advancing the interests of a competing business. 974 F.2d at 1317.
v.
Implications
78
fund of $1.8 billion, and shareholders would receive warrants worth $35 million to
$40 million. 432 F.3d at 509. The proposed plan provided that if the
nonasbestos claimants rejected the plan the warrants would be distributed to the
asbestos claimants; provided further, that the asbestos claimants would
automatically waive receipt of the warrants which would then be issued to the
shareholders. Id.
Although the commercial creditors committee initially approved of the
proposed plan, it later withdrew support largely because Armstrong would have
to pay only up to $805 million (instead of $1.8 billion) for asbestos claims if
Congress passed asbestos legislation. The class of commercial creditors then
rejected the plan and the commercial creditors committee objected to
confirmation on the ground it violated the absolute priority rule and because
commercial creditors would have a greater return if the legislation passed. 432
F.3d at 510.
The bankruptcy court recommended confirmation of the proposed plan on
the ground the waiver by the class of asbestos claimants did not violate the
absolute priority rule, and because the commercial creditors committee waived
its right to object to the plan when it entered into a consensual plan providing for
the waiver. 432 F.3d at 510. The district court denied confirmation on the
ground it violated the absolute priority rule and because no equitable exception to
the absolute priority rule applied. In re Armstrong World Indus., Inc., 320 B.R.
523 (D. Del. 2005).
ii. Issues
Does the absolute priority rule apply when the rejecting class is not an
intervening class between the class yielding value to a junior class and the junior
class?
Is the absolute priority rule violated when an accepting class of claims
having dissenting members (Class 7) agrees to transfer a portion of its
distribution to an equity class (Class 12) when a co-equal class of claims (Class
6) rejects the plan?
Is there a basis to create an equitable exception to the absolute priority
rule when (a) the creditors committee negotiates, endorses, and then withdraws
support for the plan, (b) the transfer to the junior class does not come at the
expense of the rejecting class, (c) the transfer to the junior class is of a relatively
small value, (d) the rejecting class has a majority in number (though not in
amount) accepting the plan, and (e) the rejecting class caused delay?
iii. Holdings
80
The plain language of the statute makes it clear that a plan cannot give
property to junior claimants over the objection of a more senior class that is
impaired, but does not indicate that the objecting class must be an intervening
class. 432 F.3d at 513.
In turn, Class 7 automatically waived the warrants in favor of Class 12,
without any means for dissenting members of Class 7 to protest. Allowing this
particular type of transfer would encourage parties to impermissibly sidestep the
carefully crafted strictures of the Bankruptcy Code, and would undermine
Congresss intention to give unsecured creditors bargaining power in this context.
See H.R. Rep. No. 95-595, at 416, reprinted in 1978 U.S.C.C.A.N. 5963, 6372 (
[Section 1129(b)(2)(B)(ii)] gives intermediate creditors a great deal of leverage in
negotiating with senior or secured creditors who wish to have a plan that gives
value to equity.). 432 F.3d at 514-515.
In addition, our application of equitable considerations in Penn Central
[596 F.2d 1127, 1142 (3d Cir. 1979)] did not mean that the absolute priority rule
was abandoned. Rather, we held firm to the idea that the rule still requiredthat
provision be made for satisfaction of senior claims prior to satisfaction of junior
claims. Id. at 1153. 432 F.3d at 517.
iv. Analysis
Armstrong, at its core, bars the expansion of SPM to enable an accepting
class with dissenting members or an accepting class having less than a
unanimous vote, to cause a portion of its distribution to be transferred to a junior
class when a class senior to the junior class rejects and is not paid in full.
Armstrong also answers the question as to whether the absolute priority
rule should be modified, as a matter of policy, to allow a class to transfer value to
a junior class when a senior class rejects. Armstrong explains, using legislative
history, that such a modification would deprive creditors of the negotiating
leverage Congress gave them with the absolute priority rule. One can easily
conjure up scenarios in which debtors or equity classes could use such a
modification to condition their proposal of a chapter 11 plan on a creditors class
agreement to transfer value to equity. This possibility would, in turn, cause
uncertainty in the capital markets as to how to value the creditor claims and
result in inefficient asset allocation.
B. Limits and Extensions of SPM
i. After Armstrong, Secured Claimholders Can Still
Voluntarily Cede Collateral Proceeds to General
Creditors, Skipping Priority Creditors (In re World
Health Alternatives, Case No. 06-10166 (Bankr. D.
Del., July 7, 2006))
81
82
before priority creditors. Significantly, the IRS could have prevented that result
by itself objecting to the lenders liens and thereby placing itself in the way of a
deal between the lender and the committee. It allowed its rights to expire. The
bankruptcy court did not take sides on the issue of whether the committee owed
fiduciary duties to priority creditors contrary to substantial authority,102 but did
opine that refusal to approve the settlement would only help the secured lender.
ii. Transferring Property Outside a Chapter 11 Plan
May Be Permissible when The Same Transfers Inside
a Plan May be Barred
In SPM, the secured claimholder transferred a portion of its collateral
proceeds in chapter 7 and the appeals court approved it while questioning
whether the bankruptcy court could be further involved in the actual distribution of
funds and determination of claims of the unsecured claimant recipients. 974
F.2d at 1319.
In In re Sentry Operating Co. of Texas, 264 B.R. 850 (Bankr. S.D. Tex.
2001), the secured claimholder allowed a portion of its collateral to be paid to one
of two classes of unsecured claims pursuant to a proposed chapter 11 plan. The
recipient class would receive 100% recovery while the other class would receive
a 1% recovery. 264 B.R. at 855. The debtors rationale for the different
treatment was that the class being paid 100% contained local trade creditors and
the funeral home operations would terminate or suffer if they were not paid. The
court found the debtors presidents testimony to that effect credible and true.
264 B.R. at 856.
The court ruled the rationale for separate classification was valid, but the
actual classification was invalid under 11 U.S.C. 1122 because the class being
paid 100% contained many national creditors whose payment was not tied to
maximizing the value of estate assets. 264 B.R. at 861. The court also held the
different treatment of the two classes of unsecured claims constituted unfair
discrimination under 11 U.S.C. 1129(b) because a secured creditor can not
decide which creditors get paid without reference to fairness. 264 B.R. at 865.
Accordingly, while no law prevents the secured creditor from paying
certain local trade creditors outside a chapter 11 plan, putting their payment into
the plan made a difference. The dilemma faced by the debtor was likely that
without a separate classification in the plan, it would not obtain an impaired
accepting class of unsecured claims for purposes of 11 U.S.C. 1129(a)(10).
102 In
re SPM, 984 F.2d 1305 ,1316 (1st Cir. 1993); Official Dalkon Shield
Claimants Comm. v. Mabey (In re A.H. Robins Co.), 880 F.2d 769, 771 (4th Cir.
1989); In re Intl Swimming Pool Corp., 186 F.Supp. 63, 64 (S.D.N.Y. 1960);
Creditors Comm. of Trantex Corp. v. Baybank Valley Trust Co., (In re Trantex
Corp.), 10 B.R. 235, 238 (Bankr. D. Mass. 1981).
83
But, the plan could easily have impaired the secured claimholder who could
provide the impaired accepting class.
Similarly, in In re Snyders Drug Stores, Inc., 307 B.R. 889 (Bankr. N.D.
Ohio 2004), the chapter 11 plan proposed by the debtor and creditors committee
contained 3 classes of unsecured claims: one for reclamation claimants, one for
trade creditors, and one for landlord claims. The reclamation claimants would
receive 27% distributions, the trade creditors 6-7%, and the landlords 0%. 307
B.R. at 892. The plan proponents argued against an unfair discrimination
objection that the return to the unsecured claims was not property of the estate.
The court ruled it was and sustained the objection, reasoning SPM did not apply
because its distribution was outside a plan and was not from property of the
estate. 307 B.R. at 896.
iii. Some Courts Allow Senior and Secured Creditors to
Use Chapter 11 Plans to Reallocate Their Distributions to
Other Creditors Not Otherwise Entitled to Them
By contrast, in In re Parke Imperial Canton, Ltd., 1994 Bankr. LEXIS 2274
(Bankr. N.D. Ohio 1994), two secured claimholders proposed a chapter 11 plan
under which the estates hotel leasehold would be sold with the proceeds
allocated to the secured claimholders, except for amounts a secured claimholder
may use to satisfy its guaranty to one class of unsecured claimholders that it
would receive at least a 10% return. The court did not sustain an objection that
the plan discriminated unfairly by providing one class of claims a 10% guarantee,
reasoning that the guarantee would not be paid from estate assets and was
allowed under SPM. 1994 Bankr. LEXIS 2274 at *32-33.
Similarly, in In re MCorp Financial, Inc., 160 B.R. 941 (S.D. Tex. 1993),
the court confirmed a chapter 11 plan under which the FDIC received a
distribution of $33.054 million in settlement of its claims against the estate and
the estates counterclaims, 160 B.R. at 948, based on the rationale that the FDIC
could receive a higher distribution than the estates subordinated bondholders
who were subordinate to senior bondholders, but not to the FDIC, based on
SPM. 160 B.R. at 960. Because the senior bondholders accepted the plan
under which the FDIC received a distribution that would otherwise have
increased only the senior bondholders distribution, the court confirmed the plan,
reasoning: That the creditor [in SPM] was secured is not relevant; it was the
creditors status as prior to the IRS that allowed it to share with those under the
IRS, just as the seniors priority over the juniors allows them to fund the FDIC
settlement. 160 B.R. at 960.
Citing MCorp and SPM, In re Genesis Health Ventures, Inc., 266 B.R. 591
(Bankr. D. Del. 2001), overruled an objection to classification under a chapter 11
plan that separately classified punitive damage claims from other unsecured
claims and provided no distribution to the punitive damage claims (except from
84
85
district judge reviewed the trial record and granted substantive consolidation, but
reserved for the confirmation hearing a determination of whether the banks are
entitled to a priority or secured claim for the guarantees they would lose in the
deemed consolidation. In re Owens Corning, 316 B.R. 168 (Bankr. D. Del.
2004). The banks appealed and the appellate court denied a motion to dismiss
the appeal as interlocutory. Credit Suisse First Boston v. Owens Corning (In re
Owens Corning), 419 F.3d 195, 202-204 (3d Cir. 2005), amended, 2005 U.S.
App. LEXIS 18043 (3d Cir., August 23, 2005).
iii. Holding
Reversed. Id. at 216. Substantive consolidation must be based on the
following principles:
(1) Limiting the cross-creep of liability by respecting entity separateness
is a fundamental ground rule[]. Kors, supra, at 410. As a result, the general
expectation of state law and of the Bankruptcy Code, and thus of commercial
markets, is that courts respect entity separateness absent compelling
circumstances calling equity (and even then only possibly substantive
consolidation) into play.
(2) The harms substantive consolidation addresses are nearly always
those caused by debtors (entities they control) who disregard separateness. n 18
Harms caused by creditors typically are remedied by provisions found in the
Bankruptcy Code (e.g., fraudulent transfers, 548 and 544(b)(1), and equitable
subordination, 510 (c)).
(3) Mere benefit to the administration of the case (for example, allowing a
court to simplify a case by avoiding other issues or to make postpetition
accounting more convenient) is hardly a harm calling substantive consolidation
into play.
(4) Indeed, because substantive consolidation is extreme (it may
profoundly creditors rights and recoveries) and imprecise, this rough justice
remedy should be rare and, in any event, one of last resort after considering and
rejecting other remedies (for example, the possibility of more precise remedies
conferred by the Bankruptcy Code).
(5) While substantive consolidation may be used defensively to remedy
the identifiable harms caused by entangled affairs, it may not be used offensively
(for example, having a primary purpose to disadvantage tactically a group of
creditors in the plan process or to alter creditor rights). Id. at 211.
The upshot is this. In our Court what must be proven (absent consent)
concerning the entities for whom substantive consolidation is sought is that (i)
prepetition they disregarded separateness so significantly their creditors relied on
the breakdown of entity borders and treated them as one legal entity, or (ii)
postpetition their assets and liabilities are so scrambled that separating them is
prohibitive and hurts all creditors. Id at 211.
86
87
In Owens Corning, the banks did the deal world equivalent of Lending
101, and undoing that bargain is a demanding task. Id. at 212. While the banks
actually did have considerable information about the subsidiary guarantors, even
if disregard of the debtors corporate form were proven, we cannot conceive of a
justification for imposing the rule that a creditor must obtain financial statements
from a debtor in order to rely reasonably on the separateness of that debtor.
Creditors are free to employ whatever metrics they believe appropriate in
deciding whether to extend credit free of court oversight. We agree with the
Banks that the reliance inquiry is not an inquiry into lenders internal credit
metrics. Rather, it is about the fact that the credit decision was made in reliance
on the existence of separate entities Id. at 213-214. Thus, even if Owens
Corning had made a prima facie case that creditors treated it as one entity, the
banks overcame that case with their separate guarantees and credit agreement.
Substantive consolidation was also inappropriate because (a) Owens
Corning was using it offensively to deprive the banks of voting rights in each
subsidiary and (b) Owens Corning was using it to eliminate the guarantees of the
bank debt rather than satisfy the Bankruptcy Code requirements of fraudulent
transfer law to avoid the guarantees. Id. at 215. But perhaps the flaw most fatal
to the consolidation sought was deemed (i.e., a pretend consolidation for all
but the Banks). If Debtors corporate and financial structure was such a sham
before the filing of the motion to consolidate, then how is it that post the Plans
effective date this structure stays largely undisturbed, with the Debtors reaping all
the liability-limiting, tax and regulatory benefits achieved by forming subsidiaries
in the first place? In effect, the Plan Proponents seek to remake substantive
consolidation not as a remedy, but rather a stratagem to deem separate
resources reallocated to OCD to strip the Banks of rights under the Bankruptcy
Code, favor other creditors, and yet trump possible Plan objections by the Banks.
Such deemed schemes we deem not Hoyle. Id. at 216.
No principled, or even plausible, reason exists to undo OCDs and the
Banks arms-length negotiation and lending arrangement, especially when to do
so punishes the very parties that conferred the prepetition benefit a $2 billion
loan unsecured by OCD and guaranteed by others only in part. To overturn this
bargain, set in place by OCDs own pre-loan choices of organization form, would
cause chaos in the marketplace, as it would make this case the Banquos ghost
of bankruptcy. Id. at 216.
b. Principles underlying Substantive Consolidation
i.
88
89
In re Combustion Engineering, Inc., 391 F.3d 190, 236 (3d Cir. 2004).
ii.
Some litigants believe that if a subsidiary does not operate to maximize its
own profit, then its corporate form need not be observed because it is not acting
like a real corporation. This contention is based on a fundamentally erroneous
premise that any legitimate corporation must operate for its own benefit. To the
contrary, as shown below, a corporation is supposed to operate for the benefit of
its shareholder(s). In reversing substantive consolidation, Owens Corning
acknowledges that many subsidiaries were used for liability-limiting, tax, and
regulatory benefits, id. at 200, 216, all of which benefits benefited only the parent
company and not the individual subsidiaries.
[I]n a parent and wholly-owned subsidary context, the
directors of the subsidiary are obligated only to manage the affairs
of the subsidiary in the best interests of the parent and its
shareholders.
91
Anadarko Petroleum Corp. v. Panhandle Eastern Corp., 545 A.2d 1171, 1174
(Del. 1988).
A wholly-owned subsidiary is to be operated for the benefit of
its parent. A subsidiary board is entitled to support a parent's
business strategy unless it believes pursuit of that strategy will
cause the subsidiary to violate its legal obligations. Nor does a
subsidiary board have to replicate the deliberative process of its
parent's board when taking action in aid of its parent's acquisition
strategies.
Trenwick America Litigation Trust v. Ernst & Young, 906 A.2d 168, 174
(Del. Ch. 2006).
The foregoing rule applies except when the subsidiary is not wholly owned
and the parent is causing the subsidiary to enter into a transaction that is
beneficial to the parent at the expense of the minority shareholders of the
subsidiary. Sinclair Oil Corp. v. Levien, 280 A.2d 717, 720 (Del. 1971)(business
judgment rule applies to parents transactions with subsidiary unless the parent,
by virtue of its domination of the subsidiary, causes the subsidiary to act in such
a way that the parent receives something from the subsidiary to the exclusion of,
and detriment to, the minority stockholders of the subsidiary.).
In Anardarko, Panhandle had spun off to its shareholders its subsidiary,
Anardarko. Anardarko sued its former directors and former parent claiming they
breached their fidicuciary duties before the spinoff by modifying various
agreements between Panhandle and Anardarko after the spinoff dividend was
declared but before it was made. The court affirmed summary judgment
dismissing the claim because prior to the spinoff, the subsidiarys directors were
supposed to manage it in the best interests of its corporate parent.
The duty of a subsidiary to act for the best interests of its parent is so clear
and strong that the directors of the parent have a duty to stop the subsidiary from
acting in its own interests if the subsidiarys action would be adverse to the
parent corporation and its shareholders. Grace Brothers v. UniHolding Corp.,
C.A. No. 17612, 2000 Del Ch. LEXIS 101 (Del. Ch. July 12, 2000).
It is by no means a novel concept of corporate law that a whollyowned subsidiary functions to benefit its parent. n. 31 (n 31 E.g.,
Stenberg v. ONeil, Del. Supr., 550 A.2d 1105, 1124 (1988);
Anadarko Petroleum Corp. v. Panhandle Eastern Corp., Del. Supr.,
545 A.2d 1171, 1174 (1988)). To the extent that members of the
parent board are on the subsidiary board or have knowledge of
propsosed action at the subsidiary level that is detrimental to the
parent, they have a fiduciary duty, as part of their management
92
93
of debtholders over obtaining the highest price for shareholders. Id. at 182;
accord Pittelman v. Pearce, 8 Cal. Rptr. 2d 359 (1992); C-T of Virginia, Inc. v.
Barrett, 124 B.R. 689, 692-293 (W.D. Va. 1990) (holding that directors owed no
fiduciary duties to creditors in connection with leveraged buyout since one
directors determined that the best way to serve shareholder interests was to
place the firm on the market.the directors duties were limited to gain[ing]
the highest price for its shareholders. [This] duty cannot extend to the interests
of current or future unsecured creditors of the company.).
Similarly, following the sale of Federated Department Stores, a debtholder
sued the company for causing the downgrading of its debt in violation of its duty
of good faith and fair dealing. The debtholder lost on the ground it was entitled to
no greater protection than that provided in its indenture. Hartford Fire Ins. Co. v.
Federated Dept Stores, 723 F. Supp. 976, 992 (S.D.N.Y. 1989); accord
Metropolitan Life Ins. v. RJR Nabisco Inc., 716 F. Supp. 1504 (S.D.N.Y. 1989);
Harff v. Kerkorian, 324 A.2d 215 (Del. Ch. 1974).
Owens Corning tried to use substantive consolidation to eliminate its
subsidiaries guarantees of the bank debt rather than satisfy the Bankruptcy
Code requirements of fraudulent transfer law to avoid the guarantees, id. at 215,
and the court rejected the tactic because substantive consolidation was being
deployed as a sword and not as a shield. Id. at 216.
Similarly, Owens Cornings effort to have the intercompany debt
eliminated in substantive consolidation on the ground the accounting was
imperfect was rejected, with the appellate court ruling the trial court could
oversee an accounting process that would sufficiently account for the claims. Id.
at 215.
It has long been the law that when one subsidiary has a claim against
another, the creditors of the first subsidiary can block a substantive consolidation
of the subsidiaries to protect their rights to their subsidiarys intercompany claim.
Flora Mir Candy Corp. v. R. S. Dickson & Co. (In re Flora Mir Candy Corp.), 432
F.2d 1060, 1062-1063 (2d Cir. 1970).
vi.
Time Inc., 571 A.2d 1140, 1150 (Del.1989) (emphasis added). It is self evident
that a principal way to enhance corporate profitability is to reduce expenses,
including the payment of unnecessary taxes.
There is nothing sinister in arranging ones affairs so as to
minimize taxes. Sullivan v. United States of America, 618 F.2d 1001, 1007 (3d
Cir. 1980) (citing Commr v. Newman, 159 F.2d 848, 850 (2d Cir. 1947) (Hand,
J., dissenting) ([O]ver and over again courts have said that there is nothing
sinister in so arranging ones affairs as to keep taxes as low as possible.
Everybody does so, rich or poor; and all do right, for nobody owes any public
duty to pay more than the law demands: taxes are enforced exactions, not
voluntary contributions. To demand more in the name of morals is mere cant.);
Gregory v. Helvering, 293 U.S. 465, 469 (1935) (The legal right of a taxpayer to
decrease the amount of what otherwise would be his taxes, or altogether avoid
them, by means which the law permits, cannot be doubted.); Commr v. First
Sec. Bank of Utah, 405 U.S. 394, 398 n.4 (1972) (Taxpayers are, of course,
generally free to structure their business affairs as they consider to be in their
best interests, including lawful structuring (which may include holding companies)
to minimize taxes.).
vii.
Industries and Vecco as they followed the liberal trend. Most recently, Veccos
purported trend has been criticized. See, e.g., World Access, 301 B.R. at 257,
n.57 (Although certain courts have observed a modern trend toward more
liberal application of the doctrine, see, e.g., Murray Indus., Inc., 119 B.R. at 828,
this Court is skeptical of the liberal approach).
Owens Corning (419 F.3d at 209n. 15) unabashedly declares we
disagree with the assertion of a liberal trend toward increased use of
substantive consolidation, citing as examples of decisions asserting it:
Eastgroup Props. v. S. Motel Assocs., Ltd., 935 F.2d 245 (11th Cir. 1991); In re
Murray Industries, Inc., 119 B.R. 820, 828 (Bankr. M.D. FLa. 1990), and Vecco.
Id
The problem with the so-called trend is it renders substantive
consolidation an unpredictable coin toss violating parties fundamental rights
which are not trendy. This is best illustrated in Eastgroup. Notably, virtually all
consolidation opinions cite the Second Circuit authorities, but some pay lip
service and some actually follow them. Eastgroup is in the former category.
In Eastgroup, common owners set up two partnerships, SMA and
GPH. SMA procured motels by purchasing or leasing them, and then leased or
subleased the motels to GPA which operated them. Eastgroup, 935 F.2d at 246247. SMA charged GPH the same amount SMA had to pay in rent or mortgage
payments for its motels. Id. at 247. Their common chapter 7 trustee requested
their substantive consolidation when SMA had $861,205 and GPH had $283,917.
Id. SMA was liable for $600,000 of chapter 7 expenses and $800,000 of chapter
11 expenses. GPH was liable for $1 million of chapter 11 expenses. Its chapter
7 expenses were unknown. The upshot of this is that consolidation would make
available from SMA another $261,205 for administrative expenses generated by
GPH. Absent consolidation, the $261,205 would be available to pay accrued
chapter 11 expenses of SMA such as rent and mortgage payments owed to the
persons objecting to consolidation.
Towards the end of SMAs tenure in chapter 11, GPH failed to pay
rent to SMA for three or four months. The treasurer testified it was likely GPH
paid some of SMAs unsecured obligations, but she couldnt recall any specific
instance and testified each entity had claims against the other. Eastgroup, 935
F.2d at 247 n. 8. The employees of each partnership were the same and they
didnt allocate expenses to SMA although most of the work was for GPH. Id. at
247. SMA and GPH did hold themselves out to creditors as separate
corporations. Id. at 248. At one point, GPH represented to a contractor that
GPH owned a motel that SMA actually owned and the contractor did work for
GPH on that property. Id. Although $12 million of total claims against SMA
would have to be reduced to less than $861,205 before a distribution to equity
would be possible, the trustee who wanted consolidation testified a distribution to
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97
98
99
iv. Rationale.
If appellants can keep their warrants, they would be able to buy the same
class of common stock allocated to the Senior Indebtedness giving appellants
and the Senior Indebtedness equal priority to any future distributions. Therefore,
allowing appellants to retain the warrants would effect an impairment of
seniority. Id. at 140-141. Based on the American Bar Foundations
Commentaries on Model Debenture Indenture Provisions
(1971)(Commentaries), the court reasoned that when subordinated and senior
note holders are given securities under a plan of reorganization, an X-Clause
allows the subordinated note holder to retain its securities only if the securities
given to the senior note holder have higher priority to future distributions and
dividends (up to the full amount of the senior notes). This provides for full
payment of the senior notes before any payment of the subordinated notes is
made. In such a case, the senior note holder enjoys unimpaired the priority to
payment that it had under its notes, i.e., payment on the subordinated note
holders securities are subordinateto the payment of all Senior Indebtedness.
Id. at 140 (quoting Commentaries, 14-5 at 570).
The MFN courts reasoning is consistent with In re Envirodyne Indus., 29
F.3d 301, 306 (7th Cir. 1994).
v. Analysis.
The theme of the X-Clause analysis is that subordinated notes can obtain
securities allowing them cash from the debtor on a basis junior to the securities
distributed to the senior noteholders if the senior noteholders receive securities
entitling them to distributions constituting payment in full. Otherwise, the
subordinated noteholders would have a right to a distribution when the senior
noteholders will not have been paid in full. Significantly, however, the junior
security itself may nevertheless have value that the junior noteholder can sell
immediately on receipt and thereby obtain cash before the senior noteholders are
paid in full. But, the cash the junior noteholder receives for its subordinated
security will not be cash from the debtor.
5. When Do Lease Assignments Render Appeals Moot pursuant to
11 U.S.C. 363(m)?
A.Weingarten Nostat, Inc. v. Service Merchandise Company,
Inc., 396 F.3d 737 (6th Cir. 2005)
i. Facts.
The bankruptcy court approved the assumption and assignment of a
shopping center lease over the landlords objections that it was not provided
100
101
Some circuits apply a per se rule that the absence of a stay pending
appeal moots the appeal under section 363(m). See, e.g., Pittsburgh Food &
Beverage, Inc. v. Ranallo, 112 F.3d 645, 650-51 (3d Cir. 1997)(citing decisions in
the 1st, 2d, 5th, 7th, and 11th circuits as adopting a per se rule). The Third Circuit
holds that even if section 363(m) applies, failure to obtain a stay does not
dispose of the appeal if some remedy can be fashioned that does not disturb the
validity of the sale at issue. Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc.,
141 F.3d 490, 499-500 (3d Cir. 1998).
B.Made In Detroit, Inc. v. Official Committee of Unsecured
Creditors of Made in Detroit, Inc. (In re Made In Detroit, Inc.),
414 F.3d 576 (6th Cir., 2005)
i. Facts
The debtor and its creditors committee proposed competing chapter 11
plans. The debtors plan was premised on obtaining a loan to develop the
property, while the committees plan provided for an immediate liquidation. Made
In Detroit, Inc. v. Official Committee of Unsecured Creditors of Made in Detroit,
Inc. (In re Made In Detroit, Inc.), 414 F.3d 576, 579 (6th Cir. 2005). The court
confirmed the committees plan. After every court addressing the debtors
request for a stay pending appeal (including the Sixth Circuit) denied the stay,
the committee closed the sale of its land and the land was subsequently resold.
Id. at 580.
ii. Issue
On appeal to the Sixth Circuit, the appeal was limited to the issue of
whether the purchaser was a good faith purchaser.
iii. Holding.
The purchaser was a good faith purchaser and the appeal is moot. Id. at
583.
v. Rationale.
Section 363(m) protects the reasonable expectations of good faith thirdparty purchasers by preventing the overturning of a completed sale, absent a
stay, and it safeguards the finality of the bankruptcy sale. Official Comm. of
Unsecured Creditors v. Trism, Inc. (In re Trism, Inc.), 328 F.3d 1003, 1006 (8th
Cir. 2003). As a result, section 363(m) maximizes the purchase price of assets
because without this assurance of finality, purchasers could demand a large
discount for investing in a property that is laden with the risk of endless litigation
as to who has rights to estate property. Made In Detroit, Inc. v. Official
102
committee of Unsecured Creditors (In re Made In Detroit, Inc.), 414 F.3d 576,
581 (6th Cir. 2005) (quoting In re Gucci, 126 F.3d 380, 387 (2d Cir. 1997)).
A good faith purchaser is one who purchases the assets for value, in
good faith and without notice of adverse claims. In re Rock Indus. Mach. Corp.,
572 F.2d 1195, 1197 (7th Cir. 1978). Id. at 581. Thus, good faith and value
must be proved. In re Abbotts Dairies of Pennsylvania, Inc., 788 F.2d 143, 147
(3d Cir. 1986). [T]o show lack of good faith, the debtor must demonstrate that
there was fraud or collusion between the purchaser and the seller or the other
bidders, or that the purchasers actions constituted an attempt to take grossly
unfair advantage of other bidders. 255 Park Plaza Assocs. Ltd. Pship v. Conn.
Gen. Life Ins. Co. (In re 255 Park Plaza Assocs. Ltd. Pship), 100 F.3d 1214,
1218 (6th Cir. 1996); . Made In Detroit, Inc. v. Official committee of Unsecured
Creditors (In re Made In Detroit, Inc.), 414 F.3d 576, 581 (6th Cir. 2005).
13. Does 11 U.S.C. 363(f) Authorize a Sale Free of a Lessees Possessory
Interests Preserved on Lease Rejection by 11 U.S.C. 365(h)?
A. Precision Industries, Inc. v. Qualitech Steel SBQ, LLC (In re
Qualitech Steel Corp.), 327 F.3d 537 (7th Cir. 2003)
i. Facts.
Precision had 2 prepetition agreements with the debtor, Qualitech. One
agreement was a supply agreement under which Precision would construct a
supply warehouse on Qualitechs property and operate it for 10 years while
providing supply services. The other agreement was a 10-year land lease
providing for rent of $1 per year. It provided Precision exclusive possession of
the warehouse with a right to remove all improvements and fixtures on early
termination of the lease. At the normal maturity of the lease, Qualitech had the
right to purchase the warehouse and fixtures and other improvements for $1.
The lease was not recorded. 327 F.3d at 540.
During Qualitechs chapter 11 case substantially all the estate assets were
sold to the secured claimholders for their credit bid of $180 million. Their
outstanding mortgage claim was more than $263 million. The order approving
the sale directed Qualitech to convey the assets free and clear of all liens,
claims, encumbrances, and interests. 327 F.3d at 541. Precision had notice
and did not object to the sale order. Id. Neither did it request adequate
protection of its interest. 327 F.3d at 548. The sale order reserved for the
purchaser the debtors right to assume and assign executory contracts pursuant
to 11 U.S.C. 365. The sale closed before assumption of either agreement, but
the parties extended the deadline for assumption on 4 occasions while
negotiating. Ultimately, the lease and supply agreement were de facto rejected.
327 F.3d at 541
103
106
107
omission on the part of the landlord, or anyone claiming under him, which
interferes with a tenants right to use and enjoy the premises for the purposes
contemplated by the tenancy. Petroleum Collections Incorporated v. Swords, 48
Cal. App. 3d 841 (1975); Friedman, Friedman on Leases, 29.201 (The
covenant [of quiet enjoyment] is to the effect that the tenant shall have quiet and
peaceful possession, as against the lessor or anybody claiming through or under
the lessor or anybody with a title superior to the lessor. ) at pp. 1462-1471
(collects authorities) (3d ed. 1990). Significantly, leases lacking express
covenants of quiet enjoyment have the best covenants of quiet enjoyment
because the best covenant is implied. Friedman, Friedman on Leases, 29.202
at p. 1468 (3d ed. 1990).
Thus, in section 365(h)(1)(A)(ii), Congress provided lessees retain their
rights to have quiet and peaceful possession against their lessors after their
leases are rejected. Congress choice of the word retain shows Congress
never intended that the nondebtor-tenant ever be deprived of the covenant of
quiet enjoyment before or after rejection of the lease. By itself, the
Congressional edict that the nondebtor-tenant retains the lessors covenant of
quiet enjoyment, bars lessors from invoking section 363(f) to nullify the quiet
enjoyment Congress safeguarded for them..106 Moreover, when Congress wants
to override nonbankruptcy law, it knows how to say so. See, e.g., 11 U.S.C.
1123(a) and 1142(a). While it certainly appears there is nothing unclear or
ambiguous about this, at the very least this meaning of section 365(h)(1)(A)(ii)
prevents any rote determination that section 365(f) does not impinge on section
365(h) before its implications are fully analyzed.
Thus, even if the foregoing meaning of section 365(h)(1)(A)(ii) is somehow
deemed less than fully dispositive of the issue the Seventh Circuit decided in
Precision Industries, it definitely raises sufficient doubt about the Seventh
Circuits interpretation of sections 363(f) and 365(h) to require consideration of
the statutory scheme and whether the Seventh Circuits interpretation yields
absurd results.
Notably, section 363(f) allows for sales under section 363(b) and (c) to be
free and clear of any interests in the property sold. But, section 363(l)107 renders
106 Under the facts of Precision Industries, the determination to assume or reject the lease was
left for after the closing of the sale under sections 363(b) and (f). 327 F.3d at 541. Even if
section 365(h)(1)(A)(ii) is interpreted to reimpose (rather than retain or safeguard) the debtorlessors covenant of quiet enjoyment, nothing in the facts suggests either party agreed to waive
the consequences of assumption or rejection. Significantly, the Seventh Circuits decision
squarely deals with the courts power to order property sold free of possessory rights under
section 365(h)(1)(A)(ii) and does not turn on entry of the sale order prior to the actual rejection of
the lease.
107 11 U.S.C. 363(l) provides:
Subject to the provisions of section 365, the trustee may use, sell, or lease
property under subsection (b) or (c) of this section, or a plan under chapter 11,
12, or 13 of this title may provide for the use, sale, or lease of property,
108
all sales under section 363(b) and (c) subject to 11 U.S.C. 365(h). While the
Seventh Circuit, whose decision does not mention section 363(l), takes comfort
from its own reading of section 365(h) that its preservation of possessory rights
only occurs on rejection of a lease, 327 F.3d at 547, every sale of property
subject to a lease is preceded by or results in the assumption or rejection of the
lease. Thus, section 363(l) is more than plausibly read to render section 363(f)
sales subject to section 365(h), even when section 365(h) is interpreted as the
Seventh Circuit interprets it to be effective only when a lease is rejected as
opposed to showing the nondebtor tenant has the benefit of the debtor-lessors
covenant of quiet enjoyment at all times.
Significantly, the Seventh Circuit buttresses its interpretation by observing
that while sections 363(d) and 365(a) contain cross references making certain of
their provisions subject to other statutory mandates, neither section 363(f) nor
section 365(h) contains a cross reference indicating the broad right to sell estate
property free of any interest is subordinate to the section 365(h) protections for
lessees. 327 F.3d at 547. As explained above, section 365(h) doesnt need a
cross reference because its language declaring the lessee retains its rights to
possession and quiet enjoyment stops a debtor-lessor from exercising section
363(f). But, the Seventh Circuits observation is also incomplete. Not only does
it fail to mention the cross reference in section 365(l), the Seventh Circuit doesnt
mention that in other Bankruptcy Code sections (i.e., sections 303(f), 303(k),
363(e), 363(h), 365(b)(4), 502(d), 505(c), 510(c), 522(f)(1), 522(g), 522(j), 546(e),
546(f), 546(g), 1107(b), 1112(f), 1123(d), 1125(f), 1126(f), 1126(g), 1129(b)(1),
1129(c), and 1129(d)) Congress uses the terminology notwithstanding section x
of this title, when it wants to show that one section trumps another. Section
363(f) has no such notwithstanding section 365(h) language to indicate
Congress wanted it to trump section 365(h).
Because Congress has used various linguistic techniques to cause one
section to curtail another, it would be incorrect to argue that because section
363(f) does not contain the language notwithstanding section 365(h), section
363(f) can not override section 365(h). Rather, the point is that the Seventh
Circuits observation that sections 363f) and 365(h) do not cross reference each
other is no more support for arguing section 363(f) is not curtailed by section
365(h), than section 363(f)s lack of notwithstanding section 365(h) language is
support for arguing section 363(f) does curtail section 365(h).
c)
The Seventh Circuits Interpretation Yields
Absurd Results Contrary to the United States
notwithstanding any provision in a contract, a lease, or applicable law that is
conditioned on the insolvency or financial condition of the debtor, on the
commencement of a case under this title concerning the debtor, or on the
appointment of or the taking possession by a trustee in a case under this title or a
custodian, and that effects, or gives an option to effect, a forfeiture, modification,
or termination of the debtors interest in such property.
109
110
Its rehabilitation may well be enhanced if the debtor can eliminate a lessees
possessory rights when it has a better use for the property.
Significantly, the consequence of the Seventh Circuits ruling is not limited
to the fact that it will almost always enable the debtor to defeat the lessees
section 365(h) possessory rights by proposing a plan that transfers the
underlying property. Contrary to the comfort the Seventh Circuit took from the
adequate protection requirement in 11 U.S.C. 363(e), the transfer of the
property will frequently result in no payment to the lessee notwithstanding that it
sustains material economic harm.
The measure of the value of a lease is the present value of the positive
difference, if any, between the market rent and the lease rent. See Connecticut
Ry. & Lighting Co. v. Palmer, 305 U.S. 493 (1939), after remand, 311 U.S. 544
(1941), rehg denied, 312 U.S. 713 (1941). The lessees claim for loss of its
lease will be zero when the lease rent and market rent are equivalent. Even
when the lease rent is less than the market rent, the lessees damage claim does
not include components for the lessees economic injury by being dispossessed.
For instance, a tenant operating a retail store advertises its location, develops a
clientele in the vicinity, has trained employees whose families live in the vicinity,
and so forth. If the tenant has to move, none of these items figure in the value of
the lost leasehold. Adequate protection is designed by the terms of 11 U.S.C.
361 to compensate for loss of the value of an interest in property. The market
value is based on a comparison of lease rent to market rent, not on the original
lessees individual investment in advertising, clientele, employee training, and the
like.
Thus, the value Congress preserved for lessees in section 365(h), is not
reimbursed to them under section 363(e). But, under the Seventh Circuits
holding, lessees retain this value if the debtors estate does not sell the property,
but do not retain it if it does sell. As a practical matter, if Congress had only
intended to preserve for lessees the value of their leaseholds, Congress could
quite simply have provided them administrative claims for the values of their
leases when rejected, regardless of whether the estate sells the property.
Congress did not have to give them the right to retain possession if Congress
was only concerned about furnishing them their leasehold values. Clearly,
Congress gave lessees a possessory remedy in section 365(h) that protects
certain lessee investments independently of what is covered by adequate
protection under section 363(e). Why would Congress do that in a manner the
estate can so easily circumvent under the Seventh Circuits interpretation of
section 363(f)?
Why would Congress create uncertainty in the real estate finance industry
for lenders, lessees, and title insurers? Based on the holding in Precision
Industries, imagine the dilemma of a leasehold lender when an entity leases land
for 100 years and wants financing to build an office building on the land. How is
111
the lender supposed to evaluate the risk the lessor will sell the property free of
the land lease during bad economic times under section 363(f), and a judge will
determine how much value out of the sale price goes to the lessee? Who would
write title insurance for the lessee and its financer? The mere possibility of an
undervaluation will make the initial financing more expensive or unavailable. If
the financing is done and the lessor ultimately commences a chapter 11 case,
the mere prospect of a section 363(f) sale and an undervaluation by the judge
will provide the debtor-lessor enormous leverage over the leasehold financers.
Significantly, Congress knew before the Bankruptcy Code became
effective on October 1, 1979, that the uncertainty about a lessees possessory
rights in bankruptcy was a material issue and the court in charge of the
reorganization of Penn Central Transportation Company had ruled it would be
inequitable to deprive lessees of their possessory rights, even in the context of
the railroads reorganization. See In re Penn Cent. Transp. Co., 458 F. Supp.
1346 (E.D. Pa. 1978).
Finally, other subsections of section 365 show the Seventh Circuits
statutory interpretation is at odds with the statutory regimen. Just as possessory
interests are preserved on rejection for lessees by section 365(h)(1), sections
365(h)(2) and 365(i) preserve leased and sold time share interests and rights to
acquire real property by purchasers in possession of it, and section 365(n)
preserves licensed intellectual property rights. Just as upon rejection section
365(h)(1)(A)(ii) preserves for the lessee its right to quiet enjoyment of the
premises for the duration of the lease inclusive of renewals, section 365(i)(2)(B)
requires that the time share or real property purchaser be granted title in
accordance with the purchase contract, and section 365(n)(3) requires that the
intellectual property licensee be granted continued use of the license and that the
debtor-licensor not interfere with the licensees rights in the license. In each
situation, the debtors estates sale of the time share property, real property, or
intellectual property free of the purchasers interests would violate these
subsections of section 365.
Indeed, section 365(n) was enacted to protect licensees against the
financial nightmare of building a $100 million factory to make use of a license,
and then losing the license when the licensor rejects it in the licensors title 11
case. The Intellectual Property Bankruptcy Protection Act, Pub. L. No. 100-506,
102 Stat. 2538-2540 (1988), thereby overturned Lubrizol Enterprises, Inc. v.
Richmond Metal Finishers, Inc., 756 F.2d 1043 (4th Cir. 1985), cert. denied, 106
S. Ct. 1285 (1986), which allowed the rejection of a license to deprive the
licensee of its use. There is no assurance whatsoever that if the licensor sells its
intellectual property free of the license, the sale proceeds allocable to the license
will compensate the licensee for the factory as well as continued exploitation of
the license would.108
th
108 Notably, in FutureSourceLLC v. Reuters Limited, 312 F.3d 281 (7 Cir. 2002), cert. denied,
155 L. Ed. 513 (2003), without citing section 365(n), in dicta the court observed a debtor can sell
112
113
114
115
Facts.
116
ii.
Issue.
Holding.
117
Rationale
v.
required such an approach, that would be the end of the matter. We think,
however, that 1325(a)(5)(B)(ii)s reference to value, as of the effective date of
the plan, of property to be distributed under the plan is better read to incorporate
all of the commonly understood components of present value, including any risk
of nonpayment. 124 S. Ct. at 1964.
B. Bank of Montreal v. Official Committee of Unsecured
Creditors (In re American Homepatient, Inc.), 420 F.3d 559 (6th
Cir. 2005)
i.
Facts.
Issue.
How should the cramdown interest rate for a secured loan be computed in
chapter 11 cases?
iii.
Holding.
This means that the market rate should be applied in Chapter 11 cases
where there exists an efficient market. But where no efficient market exists for
a Chapter 11 debtor, then the bankruptcy court should employ the formula
approach endorsed by the Till plurality. This nuanced approach should obviate
the concern of commentators who argue that, even in the Chapter 11 context,
there are instances where no efficient market exists. 420 F.3d at 568.
iv.
Rationale.
Although the lenders argue that the rate chosen by the bankruptcy court was
not the rate produced by an efficient market, this is a question that was fully
considered by that court. Its conclusion that the appropriate market rate
would be 6.785% was reached only after carefully evaluating the testimony of
various expert witnesses. The fact that the bankruptcy court utilized the rubric
of the "coerced loan theory" that was criticized in Till provides no basis to
reverse the bankruptcy court's decision because Till pointed out that, if
anything, the coerced loan theory "overcompensates creditors . . . ." Till , 542
U.S. at 477 (emphasis added). We therefore concur in the result reached by
both the bankruptcy court and the district court on this issue. 420 F.3d at 569.
120
v.
At least one court that has examined cramdown interest rates post- Till
has concluded that Till does not apply in a Chapter 11 context. See In re
Prussia Assocs., 322 B.R. 572, 585, 589 (Bankr .E.D. Pa. 2005) (holding that
" Till is instructive, but it is not controlling, insofar as mandating the use
of the 'formula' approach described in Till in every Chapter 11 case," and
noting that "[ Till 's] dicta implies that the Bankruptcy Court in such
circumstances (i.e., efficient markets) should exercise discretion in evaluating
an appropriate cramdown interest rate by considering the availability of market
financing").
Several outside commentators, however, have argued that Till 's formula
approach should apply to Chapter 11 cases as well as to Chapter 13 cases,
noting that the two are not all that dissimilar. See 7 Collier on Bankruptcy P
1129.06[1][c][i] ("The relevant market for involuntary loans in chapter 11 may
be just as illusory as[**20] in chapter 13."); Ronald F. Greenspan & Cynthia
Nelson, 'Un Till ' We Meet Again: Why the Till Decision Might Not Be the Last
Word on CramdownInterest Rates, Am. Bankr. Inst. J., Dec.-Jan. 2004, at 48
("So we are left to wonder if footnote 14 nullifies Till in a chapter 11 context
(or at least where efficient markets exist), modifies its application or is
merely an irrelevant musing."); Thomas J. Yerbich, How Do You Count the
Votes--or Did Till Tilt the Game?, Am. Bankr. Inst. J., July-Aug. 2004, at 10
("There is no more of a 'free market of willing cramdown lenders' in a chapter
11 (or a chapter 12, for that matter) than in a chapter 13."). And at least one
court has concluded that Till does apply in a Chapter 11 context. See
Official Unsecured Creditor's Comm. of LWD, Inc. v. K&B Capital, LLC (In re
LWD, Inc.), -- B.R. --, 2005 Bankr. LEXIS 384, 2005 WL 567460 (Bankr. W.D.
Ky. Feb. 10, 2005) . American Homepatient, 420 F.3d at 567-568.
C. Official Committee of Unsecured Creditors v. Dow Corning
Corp., 456 F.3d 668 (6th Cir. 2006)
i. Facts
Class 4 rejected Dow Cornings chapter 11 plan. The class consisted of
approximately $1 billion of unsecured commercial debt The estate was solvent.
456 F.3d at 671-672. The bankruptcy court had interpreted the plan to provide
the class with interest at the nondefault contract rate on the debtors petition
date, and denied requests for default interest, attorneys fees, costs, and
expenses because none of them were incurred in the litigation of the validity of
their claims. The district court affirmed. 456 F.3d at 673-674.
121
ii. Issues
Did the bankruptcy court abuse its discretion in interpreting the plan not to
require default interest in a solvent case for unsecured claimholders entitled to
interest at the default rates in their contracts if that interpretation would cause the
plan to violate 11 U.S.C. 1129(b), 456 F.3d at 677, and are they entitled to their
attorneys fees, costs, and expenses incurred in enforcing their claims (and not
for litigating the validity of their contracts) if they have valid claims under state
law?
iii. Holdings
Despite the equitable nature of bankruptcy proceedings, the bankruptcy
judge does not have free-floating discretion to redistribute rights in accordance
with his personal views of justice and fairness, Id. at 528 [quoting In re Chicago,
791 F.2d 524 (7th Cir. 1986)]. Rather, absent compelling equitable
considerations, when a debtor is solvent, it is the role of the bankruptcy court to
enforce the creditors contractual rights. See Chicago, 791 F.2d at 528([I]f the
bankrupt is solvent the task for the bankruptcy court is simply to enforce creditors
rights according to the tenor of the contracts that created those rights.). 456
F.3d at 679. We conclude like the other courts to have considered this issue,
that there is a presumption that default interest should be paid to unsecured
claim holders in a solvent debtor case. 456 F.3d at 680.
In this circuit, an unsecured creditor may recover those costs to which it
has a state-law based right against a solvent debtor, regardless of the nature of
the federal proceedings. State law may, of course, require an examination of the
nature of the proceedings in federal court, but absent such state law concerns,
the federal law of this circuit does not limit contractual awards of attorneys fees
to situations where the issue of contract enforceability was litigated in bankruptcy
court. [footnote omitted]. Although arguably in tension with the Ninth Circuit, our
decision is consistent with that of other courts that have awarded attorneys fees
to which a party was contractually entitled, despite the fact that the litigation did
not involve enforcement of the contract itself. 456 F.3d at 686.
Both issues were remanded for determination by the bankruptcy court as
to whether there are compelling equitable considerations that overcome default
interest and whether state law enforces claims for attorneys fees, costs, and
expense of enforcement of contract claims.
iv.
Rationale
company is solvent or insolvent in either the equity or the bankruptcy sense, any
arrangement of the parties by which the subordinate rights and interests of the
stockholders are attempted to be secured at the expense of the prior rights of
credtiors comes within judicial denunciation. (quoting Consolidated Rock
Prods. Co. v. Du Bois, 312 U.S. 510, 527 (1941)).
11 U.S.C. 506(b) expressly allows postpetition interest for secured
claims to the extent the collateral value can pay it; but that is necessary because
section 502(b)(2) disallows unmatured interest. Because there is no general
prohibition against claims for attorneys fees, costs, and expenses, there is no
need for an express allowance of such claims against solvent debtors. 456 F.3d
at 682. The Sixth Circuit does not follow Thrifty Oil Co. v. Bank of Am., 322 F.3d
1039, 1040-1042 (9th Cir. 2003), which held that even if provided for by
contractual provisions valid under state law, creditors may never be awarded
attorneys fees expended litigating issues solely of federal bankruptcy law. 456
F.3d at
15. Barton v. Barbour, 104 U.S. 126 (1881), Is Alive and Well.
A. Beck v. Fort James Corp. (In re Crown Vantage, Inc.), 421
F.3d 963 (9th Cir. 2005)
i. Facts.
In 1995, James River spun off assets related to its communications
papers and packaging business by transferring the assets to subsidiaries (the
Crown Entities) and dividending their stock. Prior to the spinoff, James River
entered into a contribution agreement with the Crown entities. That agreement
led to various disputes, all of which were settled in 1998. The settlement
agreement provided each side with releases and provided the sole forum to
litigate disputes arising out of it would be the state and federal courts in
Delaware. 421 F.3d at 967.
In 2000, the Crown Entities commenced chapter 11 cases in the Northern
District of California. During the chapter 11 cases, the creditors committee
requested authority to investigate whether an action should be commenced
against Fort James (successor by merger to James River) relating to the spinoff.
Fort James commenced an adversary proceeding for a declaration that the
spinoff was not a fraudulent transfer and that, in any event, the settlement
agreement released Fort James. 421 F.3d at 967-968. The debtors in
possession commenced an adversary proceeding against Fort James asserting
the settlement agreement release was a fraudulent transfer. 421 F.3d at 968. All
the actions were consolidated into one action, 421 F.3d at 968, and the reference
was withdrawn to the district court in the Northern District of California. 421 F.3d
at 969.
123
124
representative of the Crown entities and not in his personal capacity; and there
was a presumptively valid forum selection clause. 421 F.3d at 970.
The California district court ruled the bankruptcy court should determine
the Fort James entities issues in the first instance. 421 F.3d at 970. The
liquidating trustee commenced an adversary proceeding in the California
bankruptcy court requesting an order enjoining the Fort James entities from
prosecuting the Delaware action. The Delaware Chancery Court stayed a ruling
on the liquidating trustees motion to dismiss pending resolution of the adversary
proceeding. 421 F.3d at 970.
Next, the bankruptcy court enjoined prosecution of the Delaware action on
the ground it violated Barton, and the court ruled the settlement agreements
forum selection clause did not control. 421 F.3d at 970. On appeal to the district
court, the district court ruled the liquidating trustee would likely prevail that the
Delaware action violated Barton, but vacated the preliminary injunction enjoining
the Delaware action because the liquidating trustee had not proven irreparable
harm. 421 F.3d at 970.
ii. Issues.
Does the Barton doctrine apply to liquidating trustees under chapter 11
plans?
To enforce Barton with an injunction, must the movant prove irreparable
harm?
iii. Holdings.
We join our sister circuits in holding that a party must first obtain leave of
the bankruptcy court before it initiates an action in another forum against a
bankruptcy trustee or other officer appointed by the bankruptcy court for acts
done in the officers official capacity. See Muratore v. Darr, 375 F.3d 140, 147
(1st Cir. 2004); Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir. 2000); In re
Linton, 136 F.3d 544, 546 (7th Cir. 1998); Lebovits v. Scheffel (In re Lehal Realty
Assocs.), 101 F.3d 272, 276 (2d Cir. 1996); Allard v. Weitzman (In re DeLorean
Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). In our circuit, the doctrine was
recognized by our Bankruptcy Appellate Panel in Kashani v. Fulton (In re
Kashani), 190 B.R. 875, 883-85 (9th Cir. BAP 1995). 421 F.3d at 970.
Further, the fact that the officer involved is not a bankruptcy trustee, but
rather a liquidating trustee, is of no moment. As the Sixth Circuit has observed,
under the Barton doctrine, court appointed officers who represent the estate are
the functional equivalent of a trustee Delorean, 991 F.2d at 1241. Here, as
part of a liquidating Chapter 11 reorganization proceeding, the bankruptcy court
125
chose the mechanism of a liquidating trust to liquidate and distribute the assets
of the estate. The bankruptcy court retained jurisdiction over the case. In this
context, the Liquidating Trustee is the functional equivalent of the bankruptcy
trustee and is entitled to Barton protection. Id. 421 F.3d at 973.
Pursuant to 11 U.S.C. 105(a), injunctions can be issued to prevent
impairment of the bankruptcy courts jurisdiction without regard to irreparable
harm. It would thwart the purpose of the Barton doctrine to add an additional
requirement that the party show irreparable harm before being able to obtain
relief. The essence of the Barton doctrine is that parties may not commence or
maintain unauthorized litigation. The only appropriate remedy, therefore, is to
order cessation of the improper action. There is no requirement in Barton or any
of its progeny that the aggrieved party bear the additional burden of showing
irreparable harm, nor does such a requirement make any sense in the Barton
context. Indeed, even in the non-bankruptcy context, we have held that courts
appointing a receiver are invested with broad power to issue orders barring
actions which would interfere with its administration of that estate. Diners Club,
Inc. v. Bumb, 421 F.2d 396, 398 (9th Cir. 1970). 421 F.3d at 976.
iv. Rationale.
Barton held that if leave of court were not obtained, then the other forum
lacked subject matter jurisdiction over the suit. Barton, 104 U.S. at 127. Part of
the rationale underlying Barton is that the court appointing the receiver has in
rem subject matter jurisdiction over the receivership property. Id. at 136. As the
Supreme Court explained, allowing the unauthorized suit to proceed would have
been a usurpation of the powers and duties which belonged exclusively to
another court. Id. n5. 421 F.3d at 971.
This explains why the forum selection clause has no effect. The Delaware
forum lacked subject matter jurisdiction over the action commenced by the Fort
James entities.
Thus, the district court in which the bankruptcy case is commenced
obtains exclusive in rem jurisdiction over all of the property in the estate. Hong
Kong and Shanghai Banking Corp., Ltd. V. Simon (In re Simon), 153 F.3d 991,
996 (9th Cir. 1998). The courts exercise of in rem bankruptcy jurisdiction
essentially creates a fiction that the property regardless of actual location is
legally located within the jurisdictional boundaries of the district in which the court
sits. Id. (citations omitted). Thus, the jurisdiction of the bankruptcy court
exceeds that of any other court-appointed receiver. The requirement of uniform
application of bankruptcy law dictates that all legal proceedings that affect the
administration of the bankruptcy estate be brought either in bankruptcy court or
with leave of the bankruptcy court. 421 F.3d at 971.
126
128
129
iv.
Lessons Learned.
130
ii. Issue.
The question on appeal is whether the decision of the United States
Supreme Court in Hartford Underwriters Ins. Co. v. Union Planters Bank, 530
U.S. 1(2000), a Chapter 7 case which interpreted the text of 11 U.S.C. 506(c)
to foreclose anyone other than a trustee from seeking to recover administrative
costs on its own behalf, operates to prevent the Bankruptcy Court from
authorizing a creditors committee to sue on the estates behalf to avoid a
fraudulent transfer in a chapter 11 case. 330 F.3d at 552.
iii. Holding.
[B]ankruptcy courts can authorize creditors committees to sue
derivatively to avoid fraudulent transfers for the benefit of the estate. 330 F.3d
at 580.
iv.
Rationale.
131
vi.
132
112 11
133
the circuit court was clearly opining Hartford Underwriters does not apply to suits
brought on behalf of the estate.
Prior to Pillowtex, but after Hartford Underwriters, a creditors committees
standing to prosecute the estates avoidance actions was upheld by the Second
Circuit in Commodore International Limited, by and through the Official
Committee of Unsecured Creditors v. Gould, 262 F.3d 96 (2d Cir. 2001), without
any reference to Hartford Underwriters. In Commodore, bankruptcy cases for the
debtors were pending in the Bahamas and under the Bankruptcy Code. The
Bahamian liquidators of the debtors consented to the creditors committee
appointed under the Bankruptcy Code prosecuting the estates claims for fraud,
mismanagement, and waste. 262 F.3d at 98. The lower courts decisions show
these claims included claims for preferences and fraudulent transfers, thereby
invoking Bankruptcy Code sections 544(b)(1) and 547. In re Commodore
International Limited, 231 B.R. 175, 176 (Bankr. S.D.N.Y. 1999); see also In re
Commodore International, Limited, 242 B.R. 243, 247 (Bankr. S.D.N.Y. 1999).
The committee commenced its action, and subsequently the liquidators
brought identical claims in a separate action because defendants moved to
dismiss the committees action. 262 F.3d at 98. The committees action was
dismissed for lack of standing and the committee appealed to the Second Circuit
raising 2 issues: whether it validly obtained standing by consent and whether the
standing can be unilaterally revoked. 262 F.3d at 98-99. The Second Circuit
reviewed numerous decisions allowing creditors or committees to sue in the
name of the debtor in possession under section 544(b) and otherwise, and held a
committee can obtain standing if the trustee or debtor in possession unjustifiably
refuses to bring an action or if the trustee/debtor in possession consents and the
committees action is necessary and beneficial to resolution of the bankruptcy.
262 F.3d at 99-100. Because the liquidators had commenced their own action
and the Bahamian court ruled they should not have consented, the Second
Circuit upheld the dismissal of the committees action because it was no longer
necessary and beneficial. 262 F.3d at 100.
Significantly, appellant and appellee in Commodore were represented by
Stroock & Stroock & Lavan, LLP and Cahill Gordon & Reindel, respectively. 262
F.3d at 96. The Second Circuit judges on the Commodore panel were Chief
Circuit Judge Walker and Circuit Judges Cabranes and Straub, with the opinion
written by Chief Judge Walker. Id. at 96-97. It is impossible that these eminent
judges and law firms were unaware of Hartford Underwriters. The only possible
explanation is they did not mention Hartford Underwriters because they didnt
view it as having any application to derivative standing.
In section 506(c), Congress grants the trustee/debtor in possession a
cause of action to collect from a creditors collateral security under certain
circumstances. In general, section 506(c) provides that if the trustee or debtor in
possession uses estate resources to preserve a creditors collateral, the trustee
134
(3)
(B)
(emphasis supplied).
Section 503(b)(3)(B) expressly provides for creditors to obtain allowed
administrative claims to reimburse them for recovering property if they recover it
after procuring court approval. The wording of section 503(b)(3)(B) shows clearly
it is referring to avoidance actions to retrieve property the debtor fraudulently or
preferentially transferred. If under section 544(b)(1) the courts cannot grant
approval to a creditor to recover property for the estate, then section 503(b)(3)(B)
serves no purpose. Put differently, section 503(b)(3)(B) shows Congress did not
intend that section 544(b)(1) be interpreted to bar derivative actions.
There is no application for the words after the courts approval in section
503(b)(3)(B) if section 544(b)(1) is interpreted to mean the court can not approve
a creditor pursuing recovery of property transferred by a debtor. This runs afoul
of hornbook law set forth in Bank of America National Trust and Savings
Association v. 203 North LaSalle Street Partnership, 526 U.S. 434, 452 (1999),
that there is an interpretive obligation to try to give meaning to all the statutory
136
language. (In 203 North LaSalle, the Supreme Court rejected an interpretation
of 1129(b)(2)(B)(ii) that would have made the words on account of a
redundancy. Id.).
The foregoing analysis is consistent with and required by the Supreme
Courts statutory interpretation of 11 U.S.C. 362(d)(1) in United Savings
Association of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365
(1988). There, an undersecured creditor contended it was entitled to relief from
the automatic stay because the debtors failure to pay it monthly use or interest
payments on the secured portion of its claim deprived it of adequate protection
for purposes of section 362(d)(1). 484 U.S. at 368-369. 11 U.S.C. 362(d)(1)(2) provide:
On request of a party in interest and after notice and a
hearing, the court shall grant relief from the stay provided
under subsection (a) of this section, such as by terminating,
annulling, modifying, or conditioning such stay
(1) for cause, including the lack of adequate protection of
an interest in property of such party in interest; or
(2) with respect to a stay of an act against property under
subsection (a) of this section, if -(A) the debtor does not have an equity in such property;
and
(B) such property is not necessary to an effective
reorganization.
The Supreme Court remarked that statutory construction is a holistic
endeavor often clarified by the remainder of the statutory scheme. 484 U.S. at
371. Then, it interpreted section 362(d)(1) by reference to section 362(d)(2). If
an undersecured creditor not receiving use or interest payments would be
entitled to stay relief for lack of adequate protection under section 362(d)(1), then
why would any creditor resort to section 363(d)(2) for stay relief which requires
both that (a) the creditor be undersecured (which assures the debtor has no
equity in the property), and (b) the property not be necessary to an effective
reorganization. The Supreme Court ruled petitioners interpretation of
362(d)(1) makes nonsense of 362(d)(2)..This renders 362(d)(2) a practical
nullity and a theoretical absurdity. 484 U.S. at 374, 375.
Here, the interpretation of section 544(b)(1) to bar derivative actions would
render section 503(b)(3)(B) nonsense, a practical nullity, and a theoretical
absurdity. Section 503(b)(3)(B)s grant of reimbursement to a creditor who
recovers property after the courts approval, is all of those things if the court
cant give approval.
137
reTogether Development Corp., 262 B.R. 586, 589 (Bankr. D.Mass. 2001),
also finds statutory authority to grant derivative standing to a committee in 11
U.S.C. 1103(c)(5) and 1109(b).
138
115 11
4.
Similarly, in Kelly v. Robinson, 479 U.S. 36, 50 (1986), the Supreme Court
interpreted 11 U.S.C. 523(a)(7) to render restitution obligations
nondischargeable when part of a state courts criminal sentence, based on preCode practice.
It is acknowledged that pre-Code law was even more clear in allowing
creditors and committees to sue derivatively for a bankruptcy trustee. See, e.g.,
Trimble v. Woodhead, 102 U.S. 647 (1881); Moyer v. Dewey, 103 U.S. 301
(1881); Gochenour v. Cleveland Terminals Bldg. Co., 118 F.2d 89 (6th Cir.
1941). Even the panel decision in Cybergenics acknowledged the existence of
the pre-Code practice. 304 F.3d at 331 (court admits pre-Code practice of
derivative actions on fraudulent transfers is more compelling than the practice
on section 506(c)).
In United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989), the
Supreme Court interpreted section 506(b) of the Bankruptcy Code to grant
holders of involuntary oversecured liens postpetition interest, notwithstanding
that the debtor asserted the result was contrary to pre-Code law. 489 U.S. at
243. Referring to Midlantic and Kelly, the Supreme Court explained it preserved
pre-Code law or practice in those decisions, but was not doing so in Ron Pair
because this natural interpretation of the statutory language does not conflict
with any significant state or federal interest, nor with any other aspect of the
Code. 489 U.S. at 245.
In Cybergenics, there is no natural interpretation of the statute that bans
derivative standing.
5. The Panel Decision in Cybergenics Undermined Two
Vital Congressional Policies
.
At the conclusion of the panel decision, Cybergenics announced its
holding leaves a creditor or committee several options when a debtor in
possession refuses to sue. Specifically, the court ruled:
Section 1103(c)(4) expressly authorizes a
creditors committee to move for the appointment of a
trustee under 1104. In addition, as a party in interest,
the Committee could have moved to dismiss the
bankruptcy petition under 1112 so that it could pursue its
state law avoidance claims in state court.
304 F.3d at 333.
141
142
143
144
145
146
ii. Issue
Did the bankruptcy court err in granting Smart Worlds creditors standing
to settle the adversary proceeding between Smart World and Juno, without
Smart Worlds participation and over Smart Worlds objections? 423 F.3d at 174.
iii. Holding
[W]hile authority to pursue a Rule 9019 motion may, in certain limited
circumstances, be vested in parties to the bankruptcy proceeding other than the
debtor-in-possession, those circumstances are not present here. 423 F.3d at
174. We do not rule out that in certain, rare cases, unjustifiable behavior by the
debtor-in-possession may warrant a settlement over the debtors objection, but
this is not such a case. 423 F.3d at 177.
iv. Rationale
Bankruptcy Rule 9019 and Bankruptcy Code section 323 show that only
the trustee and debtor in possession are authorized to bring a settlement motion
and be the estate representative. 423 F.3d at 174. Bankruptcy Code section
1106(a) holds the debtor in possession accountable to maximize value. 423 F.3d
at 175. Derivative standing is available when the debtor in possession
unjustifiably fails to bring suit, In re STN Enterprises, 779 F.2d 901 (2d Cir.
1985), or the debtor consents, Commodore Intl Ltd. v. Gould (In re Commodore
Intl Ltd.), 262 F.3d 96, 100 (2d Cir. 2001). Bankruptcy Code section 1109(b)
allows creditors to intervene in adversary proceedings, not to take ownership of
the debtors claims. 423 F.3d at 182. [T]he bankruptcy courts power to act
pursuant to 105(a) does not provide an independent basis upon which to grant
appellees standing. 423 F.3d at 184.
C. ACC Bondholder Group v. Adelphia Communications Corp.
(In re Adelphia Communications Corp.), 361 B.R. 337 (S.D.N.Y.
2007)
i.
Facts
147
Issue
Holding
Rationale
creditors in Smart World could not settle the claims out from under the Debtor,
two individual creditors (acting without court authority) could not settle the claims
out from under the ACC Noteholders Committee, acting on behalf of and in place
of the Debtor. 361 B.R. at 356-357.
v.
Subsequent History
While the district court ruled there were at least 4 independent grounds on
which there was a substantial possibility of reversal, the court required a $1.3
billion bond. Later, the court considered lowering the bond to $250 million, but
appellants maximum upside was not more than $250 million and it made no
sense for appellants to post a bond to protect all debtors estates when
appellants claims were only against one debtor. When the court determined to
require the bond even though Bankruptcy Rule 8005 does not render it
mandatory, appellants did not post it and the appeal was dismissed as equitably
moot. ACC Bondholder Group v. Adelphia Communications Corp. (Inn re
Adelphia Communications Corp.), 367 B.R. 84, 99 (S.D.N.Y. 2007). Notably, the
extreme result was not necessarily required. "[W]hen a court can fashion 'some
form of meaningful relief,' even if it only partially redresses the grievances of the
prevailing party, the appeal is not moot." Resolution Trust Corp. v. Swedeland
Development Group, Inc. (In re Swedeland Development Group, Inc.), 16 F.3d
552, 560 (3d Cir. 1994)(in banc) (quoting Church of Scientology v. United States,
113 S. Ct. 447, 450 (1992)). Significantly, Swedeland also points out in the
context of an appeal from an order approving a borrowing secured by a priming
lien under 11 U.S.C. 364(d), that there is a "practical consideration that it may
be impossible for a pre-petition creditor with a meritorious appeal to obtain a stay
of a section 364(d) order." Resolution Trust Corp. v. Swedeland Development
Group, Inc. (In re Swedeland Development Group, Inc.), 16 F.3d 552, 561 (3d
Cir. 1994). Swedeland reasons that this practical consideration justifies and
makes fair its determination to affirm the granting of some relief on appeal rather
than dismissing the appeal for mootness. The reasoning is even more
compelling in the context of a confirmation order when a few creditors who are
wronged are told they must post a bond in an amount creating a risk that no
prudent investor should take.
The latter decision demonstrates that confirmation orders riddled with
reversible error can avoid article III review and any review if courts do not
expedite appeals rapidly while not requiring a bond. Notably, district courts can
revoke the reference of confirmation, while allowing the bankruptcy court to try
confirmation and propose findings of fact and conclusions of law to the district
court. Using that procedure, the district court is able to review the bankruptcy
courts proposals before an order is entered and before any bond could be
required.
149
Facts
Holding
Rationale
150
other than the trustee without first seeking court approval. Unlike other sections
of the code, 510(c), the Committee contends, does not provide that only the
trustee may bring equitable subordination claims. See, e.g., 11 U.S.C. 547,
548 (preference and fraudulent conveyance claims). Citing only out-of-circuit
authority In re Vitreous Steel Prods. Co., 911 F.2d 1223 (7th Cir. 1990) the
Committee urges us to adopt a bright-line rule, under which equitable
subordination claims may be brought directly by a creditor, creditors, or a
creditors committee, without Bankruptcy Court approval. We are not
persuaded. 493 F.3d at 86.
In any event, regardless of how the Committee characterizes it, any
equitable subordination claim brought by the Committee would allege harm to the
Debtor generally and would seek to subordinate the Lenders to other creditors.
Since the Committee is not itself a creditor, it does not have any rights held by
any creditor to assert such a claim against another creditor. In other words, the
Committee has not sustained an injury for which a direct claim might otherwise
be available. 493 F.3d at 87.
iv.
Analysis
151
152
Taylor v. Standard Gas & Elec. Co., 306 U.S. 307, 83 L. Ed. 669,
59 S. Ct. 543 (1939), the Fifth Circuit, in its influential opinion in In
re Mobile Steel Co., 563 F.2d 692, 700 (CA5 1977), observed that
the application of the doctrine was generally triggered by a showing
that the creditor had engaged in "some type of inequitable
conduct." Mobile Steel discussed two further conditions relating to
the application of the doctrine: that the misconduct have "resulted in
injury to the creditors of the bankrupt or conferred an unfair
advantage on the claimant," and that the subordination "not be
inconsistent with the provisions of the Bankruptcy Act." Ibid.120
The fact that the remedy for equitable subordination only benefits
some creditors against another creditor and provides no benefit to the
debtor or estate, shows that the trustee or debtor in possession have little
or no interest in a claim for equitable subordination.
Applied Theory also reasons the committee had no direct claim for
equitable subordination of a secured claim.121 That is technically true. It
is the committees constituency, general unsecured claimholders, who
held the direct claim. Applied Theory, however, in attempting to show the
trustee owned the equitable subordination action appears to overlook that
the debtor in possession or trustee are not allowed to bring creditors
claims other than avoidance actions. Caplin v. Marine Midland Grace
Trust Co., 406 U.S. 416 (1972); Shearson Lehman Hutton Inc. v.
Wagoner, 944 F.2d 114, 118 (2d Cir. 1991)( It is well settled that a
bankruptcy trustee has no standing generally to sue third parties on behalf
of the estate's creditors, but may only assert claims held by the bankrupt
corporation itself. Caplin, 406 U.S. at 434 (trustee in Chapter 10
reorganization has no standing to sue indenture trustee, who allegedly
permitted corporation to violate indenture, on behalf of holders of
debentures issued by the corporation). Of course, debtors in possession
and trustees, as parties in interest, are authorized by section 502(a) to
object to claims, including their priorities. In sum, the trustee is authorized
by statute to object to the claim, as is every party in interest such as the
creditors committee. But, the trustee is barred by lack of statutory
authorization and the jurisprudence from suing a creditor on behalf of
other creditors for money damages except for avoidance actions whose
proceeds are made property of the estate by 11 U.S.C. 541(a)(3).
Bankruptcy Rule 7001(7) and (8) provide a proceeding for equitable relief
or to subordinate a claim is an adversary proceeding. Applied Theory appears to
give weight to the notion that because under the Bankruptcy Rules, equitable
subordination requires an adversary proceeding, the committee needs court
approval to commence it. Applied Theory asserts the Bankruptcy Code contains
120 United States v. Noland, 517 U.S. 535, 538-539 (1996).
121 Slip Op. at 8.
153
154
this harm can be avoided by timely citing of 11 U.S.C. 502(a) and the other
authorities listed above.
19. Can Creditors Commence Derivative Actions without Consent or
Court Approval?
A. PW Enterprises, Inc. v. North Dakota Racing
Commission (In re Racing Services, Inc.), 540 F.3d 892
(8th Cir. 2008)
i.
Facts
Three days before the statute of limitations would expire, a creditor owed
$2 million filed a preference and fraudulent transfer complaint against a
governmental entity holding a $6 million tax priority claim. 540 F.3d at 896. The
creditor contended the government had received a payment improperly classified
as a tax payment. Before the filing, the creditor showed its draft complaint to the
chapter 7 trustee who declined to bring the action. 540 F.3d at 896. Two months
later, the creditor requested bankruptcy court permission to pursue the claims.
The trustee did not oppose the request, but obtained a clarification that the
creditor was bringing it for the estates benefit and was advancing the fees and
costs. 540 F.3d at 897.
The bankruptcy court denied the creditors request for derivative standing
on the ground it had not shown the trustee abused his discretion or acted
unjustifiably by failing to pursue the avoidance claims. 540 F.3d at 897. The
court did not address the consent issue. The bankruptcy appellate panel
affirmed. 540 F.3d at 897. On appeal to the circuit appellate court, the state
argued the bankruptcy courts denial of derivative standing was correct because
the creditor waited till after filing the complaint to request permission. 540 F.3d at
897.
ii.
Issues
155
iii.
Holdings
156
Analysis
Facts
157
against its bank lenders and investment banks, the court granted the equity
committee derivative standing to do so, and the debtor neither objected nor
supported the equity committees request to do so. 544 F.3d at 422-423.
Subsequently, the bankruptcy court confirmed Adelphias chapter 11 plan
under which the action controlled by the equity committee would be transferred to
a litigation trust managed by 5 trustees appointed by the creditors committee.
544 F.3d at 423. The bankruptcy court determined creditors would have to
recover $6.5 billion before there would be money to flow to shareholders, and
that rendered the equityholders hopelessly out of the money. In re Adelphia
Communications Corp., 368 B.R. 140, 272 (Bankr. S.D.N.Y. 2007), quoted at .
544 F.3d at 423. The class of equityholders accepted the plan. 544 F.3d at
426n.7. The equity committee appealed and the district court dismissed the
appeal as equitably moot. In re Adelphia Communications Corp., 371 B.R. 660
(S.D.N.Y. 2007).
b)
Issues
Holding
158
d)
Analysis
Facts
159
Issue
The question presented, as the Court stated in its January 30, 2007 Opinion
granting leave to file this interlocutory appeal, is whether equitable subordination
under 510(c) and disallowance under 502(d) can be applied, as a matter of law,
to claims held by a transferee to the same extent they would be applied to the
claims if they were still held by the transferor based on alleged acts or omissions
on the part of the transferor." 379 B.R. at 427-28. (quoting Enron Corp. v.
Springfield Assocs., L.L.C. (In re Enron Corp.), No. M47, 2007 U.S. Dist. LEXIS
9151, 2007 WL 313470, at *1 (S.D.N.Y. Feb. 1, 2007).
iii.
Holding
Rationale
160
Inc., No. MO 88 CA 011, 1988 U.S. Dist. LEXIS 19501 (W.D. Tex. June 17,
1988), because, although it refused to attribute to the transferee the conduct of
the transferor, it focused on the conduct of the transferee instead of analyzing
whether the claim was transferred by sale or assignment. 379 B.R. at 444-445.
To determine whether a claim is transferred by sale or assignment, the
district court noted that the transfer documents will sometimes provide the
answer, but in other situations it will be obvious. Specifically, the court notes that
sales of claims on the open markets are indisputably sales and subrogation of a
surety to the rights under a claim is indisputably an assignment. 379 B.R. at
446 n. 104.
Finally, although the district court observes that its decision is driven by
the statutes and case law, and it will not make policy decisions reserved for the
legislature, the district court explains that its decision will only allow for claims
washing in limited circumstances (when the claim is sold to a bona fide
purchaser for value) and there the debtor can sue the claim-transferor, albeit the
timing and standard of proof may be longer and higher. 379 B.R. at 448.
v.
Analysis
162
the transferrer, before notice of the transfer 124 A transfer includes both
sales and assignments as the district court acknowledges. 379 B.R. at 435 n.
52.
Likewise, the district court overlooked UCC 9-404(a)(2) and (b) 125 which
provide an assignee of bank debt takes the claim subject to any other defense
or claim of the account debtor, to reduce the amount the account debtor owes.
Equitable subordination is subsumed within reducing the amount the account
debtor owes because its effect is to lower the assigned claims priority which may
result in the account debtor paying the claim amount or a reduced amount.
New York General Obligations Law 13-105 provides:
124
163
164
Facts.
165
SGL also proposed a plan impairing only the plaintiffs. It provided the
plaintiffs could purchase SGLs product at discounts for 30 months after
confirmation and barred plaintiffs from bringing any action against SGLs affiliates
arising out of their claims against SGL. Id. at 157
The bankruptcy court found the antitrust litigation posed a serious threat to
SGLs continued operations and a judgment could cause the company financial
and operational ruin. Id. at 158-159.
ii.
Holding.
The Court of Appeals held the findings clearly erroneous because the
evidence showed the company was not losing customers and was meeting its
targets and because the officers were insisting the company was financially
healthy. Also, there was no evidence of the amount being sought by plaintiffs
and SGLs records showed an estimate of $54 million. Id. at 163. Then, the
court ruled there is a requirement under Bankruptcy Code section 1112(b) that a
filing have a valid reorganizational purpose.
The mere possibility of a future need to file, without more does not
establish that a petition was filed in good faith. Id. at 164.
Significantly, the court conceded the Bankruptcy Code encourages early
filing.It is well established that a debtor need not be insolvent before filing for
bankruptcy protection.It also is clear that the drafters of the Bankruptcy Code
understood the need for early access to bankruptcy relief to allow a debtor to
rehabilitate its business before it is faced with a hopeless situation.Such
encouragement, however, does not open the door to premature filing, nor does it
allow for the filing of a bankruptcy petition that lacks a valid reorganizational
purpose. Id. at 163.
Although the proposed plan would be subject to a good faith
determination, where a debtor attempts to abuse the bankruptcy process,
proceedings should end well before formal consideration of the plan." Id. at
167n.19.
iii.
Analysis.
have explained that in the record. Presumably, SGS did not take good attorneys
advice to emphasize the need to quickly resolve the litigation to avoid a
downward spiral in the business.
SGLs initial proposed plan was also suspect. Although it was a good idea
to file a proposed plan at the outset of the case to demonstrate the debtor wants
to reorganize its balance sheet and move on, the terms of the plan were
offensive. Clearly, the plaintiffs would reject a plan offering them nothing but
discounts. There does not appear to be any basis to discriminate against the
plaintiff class. To determine the value of the discounts as a percentage of
plaintiffs claims, the bankruptcy court by estimation or otherwise (or another
tribunal) would have to try the claims. In short, the plan was not well conceived.
Clearly, SGL should not have postured the case as a litigation tactic. It
should have postured it as a prudent method of preserving its assets for all
creditors while resolving its litigation in a responsible way without the threat of
judgments and levies that could destabilize its operations.
Second, the appellate court overlooked the fact that chapter 11 is a
process to cause a fair allocation of a companies asset value. Notwithstanding
SGLs proposed chapter 11 plan, creditors may have proposed competing plans
and the court was not required to confirm SGLs plan because section 1129(a)(3)
does require that plans be proposed in good faith. Theres the rub. It was
unnecessary for the court to impose a good faith filing requirement. That
requirement suffers from 2 major problems.
First, the chapter 11 process is conditioned on the mindset of the
individuals determining to file the petition. That makes no sense. The fair
allocation of value should not depend on the mindset of the control persons. The
filing puts SGL at risk of having a plan that will sell the company and pay off all
claims leaving the shareholders with nothing. The chapter 11 process may well
not favor the debtor!
Second, the holding will create much litigation over petitions due to its
carefully couched language on the one hand acknowledging the need to file
early, while on the other hand imposing a hard-to-define requirement for a valid
reorganizational purpose.
B. Solow v. PPI Enterprises (U.S.), Inc. (In re PPI Enterprises (U.S.),
Inc.) 324 F.3d 197 (3d Cir. 2003)
i. Facts
Solow leased office space in 1989 to PPI Enterprises (PPIE) for 10
years. Annual rent was $620,000 per year for the first five years, then $650,000
167
per year thereafter. Poly Peck, the indirect corporate parent of PPIE guaranteed
the lease and Sanwa Bank issued Solow a stand-by letter of credit for $650,000
which the lease required PPIE to replenish or replace with a security deposit to
the extent the letter of credit was used. 324 F.3d at 200. The lease required a
security deposit, but provided a letter of credit would satisfy the requirement. 324
F.3d at 210. About two years after the lease commenced, Polly Peck
commenced insolvency proceedings in Great Britain and PPIE faced defaults
exceeding $17 million. 324 F.3d at 200.
Solow contended PPIE engaged in transactions designed to reduce his
eventual damages claim. For instance, PPIEs parent sold stock for $15 million
to a third party, transferred the $15 million to Sanwa Bank, and treated the
transfer as a loan to PPIE, even though PPIE owed no obligation to Sanwa Bank.
324 F.3d at 200n. 3. Also, PPIE acquired a 2% interest in Del Monte Food Co.
for $12.6 million, but transferred the interest to Polly Peck for an accounting
credit. Later, Polly Pecks English administrators sold the stock back to PPIE for
$12. 6 million and PPIEs vice president for finance reduced its balance sheet
value to $3.5 million. 324 F.3d at 200n.3. When during PPIEs chapter 11 case
Del Monte agreed to repurchase the interest for $1.6 million subject to higher
offers, Solow objected and ultimately purchased the interest for $11 million and
resold it to Texas Pacific Group for $30 million. 324 F.3d at 201n. 5.
In 1991, PPIE abandoned the office space and ceased paying rent. After
liability was established and the parties negotiated, Solow asked the court to
schedule a damages hearing. On the eve of that hearing, PPIE commenced its
chapter 11 case in 1996. PPIE stated its chapter 11 case had 4 objectives: (a)
the Polly Peck wind down, (b) liquidating PPIE, (c) invoking provisions to reject
the restriction on the sale of the Del Monte stock, and (d) limiting Solows lease
termination damages under Bankruptcy Code section 502(b)(6). 324 F.3d at
201. Solow moved to dismiss the chapter 11 case for bad faith alleging it was
filed to create value for Polly Peck and its creditors at his expense and without
any intent to effectuate a corporate reorganization. The bankruptcy court denied
the motion without prejudice. 324 F.3d at 201.
PPIE proposed a chapter 11 plan in which Solow was in Class 2 (noninsider general unsecured claims), which was to be paid 100 cents on the dollar
in cash and other consideration as required. 324 F.3d at 201n. 6. In Class 2,
PPIE solicited votes even though it contended the class was unimpaired. Solow
voted no and one creditor voted yes. Solow contends the class rejected the
plan. 324 F.3d at 202.
At confirmation, Solow renewed his motion to dismiss and contended his
claim was improperly classified as unimpaired. The bankruptcy court determined
Solows damage claim of $4,757,824.94 was subject to the statutory cap in
Bankruptcy Code section 502(b)(6) and had to be further reduced by the
$650,000 Solow had drawn on the letter of credit. The court also ruled the
168
chapter 11 case was filed in good faith and that Solow was unimpaired and
therefore deemed to have accepted the plan. 324 F.3d at 202. The district court
affirmed without opinion.
ii. Issues
Does 11 U.S.C. 502(b)(6) render Solows claim impaired under 11
U.S.C. 1124126?
Is a claim impaired under 11 U.S.C. 1124 if it is paid in full in cash
without postpetition interest?
126 Bankruptcy Code section 1124 provides:
Impairment of claims or interests. Except as provided in section
1123(a)(4) of this title, a class of claims or interests is impaired
under a plan unless, with respect to each claim or interest of such
class, the plan
(1)
(2)
169
Does the amount of the letter of credit held by the lessor reduce the
lessors allowable claim under 11 U.S.C. 502(b)(6)127?
Is a chapter 11 petition filed in good faith for purposes of 11 U.S.C.
1112(b) and a chapter 11 plan proposed in good faith for purposes of 11 U.S.C.
1129(a)(3) if filed and proposed to avail the debtor of 11 U.S.C. 502(b)(6)?
iii. Holdings
Impairment based on Statute. Accordingly, we hold that where
502(b)(6) alters a creditors nonbankruptcy claim, there is no alteration of the
claimants legal, equitable, and contractual rights for the purposes of impairment
under 1124(1). 324 F.3d at 204.
Impairment based on Lack of Postpetition Interest. In other words,
1124(1) and (3) were different exceptions to the presumption of impairment, and
the repeal of one should not affect the other. We agree with the Bankruptcy
Courts analysis. Contrary to Solows representations, the legislative history
does not reflect a sweeping intent by Congress to give impaired status to
creditors more freely outside the postpetition interest context. Instead, as the
Bankruptcy Court noted, the legislative history accompanying the repeal of
1124(3) indicated the principal change in the repeal relates to the award of post
petition interest. The congressional committee specifically referenced the New
Valley decision without referencing the text of 1124(1) or the many cases
addressing its provisions, including Solar King. Therefore, the legislative history
supports our holding. 324 F.3d at 207.
127 Bankruptcy Code section 502(b)(6) provides:
If an objection to a claim is made, the court, after notice and a
hearing, shall determine the amount of such claim in lawful
currency of the United States as of the date of the filing of the
petition, and shall allow such claim in such amount, except to the
extent that if such claim is the claim of a lessor for damages
resulting from the termination of a lease of real property, such claim
exceeds
(A)
the rent reserved by such lease, without acceleration,
for the greater of one year, or fifteen percent, not to exceed three
years, of the remaining term of such lease, following the earlier of
(i) the date of the filing of the petition; and (ii) the date on which
such lessor repossessed, or the lessee surrendered, the leased
property; plus
(B)
any unpaid rent due under such lease, without
acceleration, on the earlier of such dates.
170
class to reject, but the plan is still confirmable, then section 1129(b)(2)(B) is
triggered and the same plan can be confirmed as long as the rejecting class is
paid in full before any junior class participates. In that scenario, the rejection
does not yield a different result than the deemed acceptance by an unimpaired
class. If, however, the rejection makes confirmation impossible because there is
no impaired accepting class without counting insider votes, then there are 2
potential consequences. One is that the case is converted to chapter 7 and the
rejecting capped claim receives the same or less than what is would receive
under the plan. This can not possibly be a result desired by Congress or the
rejecting landlord. The other potential consequence is that the case is
dismissed. This would mean that if a landlord doesnt like the statutory cap on its
claim and has enough voting power, the landlord can prevent all parties in
interest from obtaining the benefits of chapter 11. Put differently, the statutory
cap imposed by Congress for fairness purposes, would be used to create
unfairness to all other parties. It is inconceivable Congress intended such a
result.
No Impairment Due to Lack of Postpetition Interest in Insolvent Estate.
The United States Court of Appeals for the Third Circuit opined based on
references to In re New Valley Corp., 168 B.R. 73 (Bankr. D.N.J. 1994), in the
legislative history accompanying Congress repeal of 11 U.S.C. 1124(3) (a
class of claims is impaired unless the plan (3) provides that, on the effective
date of the plan, the holder of such claim or interest receives, on account of such
claim or interest, cash equal to (A) with respect to a claim, the allowed amount
of such claim.) that Congress only intended to render fully paid claims
impaired when, as in New Valley, they were entitled to postpetition interest from
a solvent estate. 324 F.3d at 206-207.
Although some courts have held allowed claims against insolvent estates
that are fully paid in cash on the effective date are impaired due to the repeal of
section 1124(3), see, e.g., In re Seasons Apartments, L.P., 215 B.R. 953, 955956 (Bankr. W.D. La. 1997); In re Crosscreek Apartments, Ltd., 213 B.R. 521,
536 (Bankr. E.D. Tenn. 1997); Equitable Life Ins. Co. of Iowa v. Atlanta-Stewart
Partners, 193 B.R. 79, 80 (Bankr. N.D. Ga. 1996); In re David Green Property
Management, 1994 Bankr. LEXIS 206 (Bankr. W.D. Mo. 1994), the legislative
history and the wording of section 1124(1) convinced the appellate court that
denial of postpetition interest from insolvent estates is not a basis for impairment.
The jurisprudence has long entitled unsecured claimholders to postpetition
interest from solvent estates. See, e.g., Consol. Rock Prods. Co. v. Dubois, 312
U.S. 510 (1941); Debentureholders Protective Committee of Continental Inv.
Corp. v. Continental Inv. Corp., 679 F.2d 264, 269 (1st Cir. 1982).
Those courts that treat claims paid in full in cash as impaired, enable plan
proponents in certain cases to obtain an impaired accepting class for purposes of
11 U.S.C. 1129(a)(10) and to deploy section 1129(b)(2) against rejecting
172
classes. The notion that a fully paid class should satisfy the impaired accepting
class requirement is contrary to the democratic theme built into the Bankruptcy
Code. That said, even prior to the elimination of section 1124(3), a class paid
99.9 cents on the dollar was indisputably impaired and its acceptance would
count for purposes of section 1129(a)(10).
The Claim Limited by Section 502(b)(6) is Reduced by Letter of
Credit Draws. It has long been the law that a landlord holding a security deposit
from its debtor-tenant must reduce its claim capped by the bankruptcy statutes
by the amount of the security deposit. Oldden v. Tonto Realty Corp., 143 F.2d
916, 921 (2d Cir. 1944). The issue here is whether proceeds from outside the
estate, namely from the letter of credit issuer, should also count to reduce the
landlords remaining allowable claim.
After explaining that under Solows view, Solow could keep the letter of
credit proceeds and claim the same amount again against the debtors estate
while the letter of credit issuer could also claim against the estate to recover that
amount, the court determined it did not need to determine the effect of the letter
of credit because the lease made clear the parties intended the letter of credit to
operate as a security deposit. 324 F.3d at 210. The lease provided the tenant
could provide a letter of credit in place of a security deposit.
That rationale is less than meritorious because it provides no rationale
why a lease providing for a security deposit or a letter of credit must yield the
same bankruptcy results regardless of which option is chosen. Put differently,
had the lease provided how the landlords claim would be treated in bankruptcy,
the court would clearly declare the parties are powerless to change the
bankruptcy law by contract. Moreover, it makes no more sense to limit the
landlords claim to its amount as if it had a security deposit when it really had a
letter of credit, than it makes sense to treat the landlords claim as if it had a letter
of credit when it really had a security deposit defined as a letter of credit.
Thus, the question remains whether the landlords claim under section
502(b)(6) is reduced by the landlords recovery on a letter of credit. In the
context of preferences, a creditor can not evade receipt of a voidable preference
by having the debtor provide collateral to a letter of credit issuer rather than
directly to the creditor. Kellogg v. Blue Quail Energy, Inc. (In re Compton Corp.),
831 F.2d 586, 595 (5th Cir. 1987). Thus, if the debtor provides collateral to a
letter of credit issuer instead of providing a security deposit directly to a landlord,
the debtors estate should not be reduced more simply because it passed the
security deposit through a middleman. If a debtor convinces the letter of credit
issuer to issue the letter of credit without first receiving collateral security for the
issuers reimbursement claim, the damage cap in section 502(b)(6) would be
circumvented if the estate could be liable both to the landlord and to the letter of
credit issuer for the same amount in the form of reimbursement. The language of
section 502(b)(6) which caps the claim of a lessor for damages appears broad
173
enough to enable the court to subtract what the lessor received from the letter of
credit given that it enables the court to subtract what the lessor receives from a
security deposit under Oldden.
If, however, the debtor convinces a bank to issue to the debtors landlord a
letter of credit for an amount in excess of the landlords capped claim in the
debtors title 11 case, what happens? Under Oldden, if the debtor provides a
security deposit in excess of the capped damage claim, the landlord must return
the excess. If the debtor provides the letter of credit issuer with collateral for the
letter of credit, does the letter of credit issuer return the excess or does the
landlord return it? Because the monies the letter of credit issuer pays the
landlord are not property of the debtors estate, it appears the landlord may retain
them. But, must the letter of credit issuer return the collateral in excess of the
damage cap to the estate? If the letter of credit issuers reimbursement claim in
excess of the statutory cap is disallowed under section 502(e)(1)(A), then the
issuer must return the excess collateral. As a corollary, if the issuer determines
to pursue subrogation to the landlords claim rather than reimbursement, the
issuer will have to return the excess collateral because the landlord has been
paid its maximum claim. Finally, if the issuers reimbursement claim is not
disallowed under section 502(e)(1)(A) (i.e., if the issuer is not deemed liable with
the debtor on or to have secured the claim of a creditor), then the issuer may
be allowed to retain the collateral unless the transaction is collapsed and the
court determines it can not be enforced because it circumvents section 502(b)(6).
Notably, in EOP-Colonnade of Dallas Limited v. Faulkner (In re
Stonebridge Technologies, Inc.), 430 F.3d 260, 274 (5th Cir. 2005), the court held
502(b)(6) does not apply to cap the proceeds that EOP [lessor] may claim
against the Letter of Credit because EOP never filed a claim for damages against
the Stonebridge estate. Stonebridge explains that section 502(b)(6) allows only
one thing, namely disallowance of the filed claim to the extent it exceeds the cap.
430 F.3d at 270. It appears, therefore, that Stonebridge went an extra mile to
avoid ruling that PPI Enterprises is wrong. Stonebridge could more properly
have ruled that the section 502(b)(6) cap has no impact on a landlords right to
draw on a letter of credit, but that a landlords proof of claim is still subject to the
cap.
C. NMSBPCSLDHB, L.P. v. Integrated Telecom Express, Inc. (In re
Integrated Telecom Express, Inc.), 384 F.3d 108 (3d Cir. 2004),
rehearing denied, 389 F.3d 423 (3d Cir. 2004)
i. Facts.
The debtor, Integrated, was a supplier of software and equipment to the
broadband communications industry. In the summer of 2000, Integrated entered
into a 10- year lease in Silicon Valley at $200,000 per month increasing 5%
annually. 2001 was a very poor year for Integrated and it retained Lehman
174
Brothers to help evaluate its alternatives. Unable to find a third party willing to
enter into a merger and unable to identify an alternative business model,
Integrateds board of directors prepared a plan of liquidation and dissolution. A
securities class action arising out of Integrateds initial public offering
commenced, requesting $93.24 million.
Integrated had $105 million in cash, a $20 million insurance policy for the
class action, and $1.5 million of other assets. Its liabilities consisted of the class
action claim which Integrated believed would be resolved inside its insurance
policy limits, its liability on the lease of approximately $26 million, and another
$430,000 of miscellaneous obligations. [I]n a smoking gun resolution approved
by the Board, and notwithstanding its strong financial position, Integrated
authorized a letter to the Landlord threatening that if it did not enter into a
settlement of the lease in the amount of at least $8 million, Integrated would file
for bankruptcy so as to take advantage of 502(b)(6), which sharply limits the
amount that a landlord can recover in bankruptcy for damages resulting from the
termination of a lease. 384 F.3d at 129.
Integrated managed to sell its assets during its chapter 11 case for $1
million more than the sale price it negotiated outside bankruptcy. 384 F.3d at
126.
Integrated proposed a chapter 11 plan and the bankruptcy court confirmed
it. The plan provided for the securities class action claimants to receive up to the
insurance policy proceeds and another $5 million, and the claimants accepted
that treatment. The landlords allowable claim for rejection of its lease was set at
$4.3 million. Confirmation was stayed pending appeal.
ii. Issue
The issue on appeal is whether, on the facts of this case, a Chapter 11
petition filed by a financially healthy debtor, with no intention of reorganizing or
liquidating as a going concern, with no reasonable expectation that Chapter 11
proceedings will maximize the value of the debtors estate for creditors, and
solely to take advantage of a provision in the Bankruptcy Code that limits claims
on long-term leases, complies with the requirements of the Bankruptcy Code.
384 F.3d 112.
iii. Holding.
To be filed in good faith, a petition must do more than merely invoke
some distributional mechanism in the Bankruptcy Code. It must seek to create or
preserve some value that would otherwise be lost not merely distributed to a
different stakeholder outside of bankruptcy. This threshold inquiry is
particularly sensitive where, as here, the petition seeks to distribute value directly
175
176
177
the plan was not proposed in good faith under 11 U.S.C. 1129(a)(3), the case
would have remained extant so that 11 U.S.C. 502(b)(6) may still have been
applied. Thus, the decision strongly suggests that just as avoidance actions are
supposed to benefit creditors and not shareholders (Although the Bankruptcy
Code contains many provisions that have the effect of redistributing value from
one interest group to another, these redistributions are not the Codes purpose.
Instead, the purposes of the Code are to preserve going concerns and to
maximize the value of the debtors estate. 384 F.3d at 128-129), the cap in 11
U.S.C. 502(b)(6) should similarly be used only for creditors, at least when other
uses of chapter 11 are unnecessary.
21. The Interface of State Law Corporate Governance and Bankruptcy Law
A. Esopus Creek Value LP v. Marks, 913 A.2d 593 (Del. Ch. 2006)
i. Facts
A Delaware corporation, Metromedia International Group, Inc.
(Metromedia), had publicly traded preferred stock and common stock. Its
principal asset was a 50.1% equity interest in Magticom, the Republic of
Georgias leading mobile telephony provider. The equity interest generated
sizable free cash flow and EBITDA, and Metromedias stock had increased from
3 cents a share to more than $1.50 per share since February 2003. The
corporation had no substantial long term or secured debt.
Since March 2005, however, Metromedia had delayed filing its SEC
Forms 10K and 10 Q, blaming its auditor for not signing off on its audited
financials due to an issue involving only 2 cents a share.
In mid-2006, Metromedia received an offer for its Magticom stake that far
exceeded any previous offer and was an objectively fair valuation of the stake.
Pursuant to 8 Del. C. 271(a), a majority vote of common shareholders was
required to approve the sale because it was a sale of all or substantially all
Metromedias assets. Metromedia was advised, however, that because its
shares were registered under section 12 of the Securities Exchange Act of 1934,
section 14c barred it from calling a shareholders meeting or soliciting proxies
while it was not current in its SEC filings. Metromedia had not considered
requesting an exemption from the SEC.
Accordingly, Metromedias board negotiated a sale to be implemented in a
chapter 11 case and locked up approximately 80% of its preferred shares to vote
for it after providing their holders under a confidentiality agreement much nonpublic information to value their interests. In a liquidation (which the sale did not
constitute under Metromedias certificate of designation) Metromedias preferred
shareholders were entitled to a liquidation preference of $50 per share plus all
accrued but unpaid dividends. Pursuant to the lockup for the $480 million offer,
178
the preferred shareholders would take a discount on their claims, but if the sale
price increased over the range of $506 million to $535 million, they would receive
more than the certificate of designation would provide them. Metromedia
planned to commence a chapter 11 case, request sale approval under 11 U.S.C.
363, and then propose a chapter 11 plan. By locking up 80% of the preferred
shares, Metromedia assured itself that the class of preferred shares would
accept the plan under 11 U.S.C. 1126(d). Metromedias proposed chapter 11
plan presumed the common shares would be unimpaired and that, in any event,
they would receive at least as much as they would in a liquidation in a chapter 7
case for purposes of 11 U.S.C. 1129(a)(7).
Holders of 8.2% of the common shares commenced an action to
preliminarily enjoin Metromedia from executing an agreement with the buyer
absent an affirmative vote of a majority of Metromedias common shares. At oral
argument, the parties agreed (a) the sale would be subject to a common
shareholder vote under 8 Del. C. 271(a), (b) the directors would make a
concerted effort to obtain exemptive relief from the SEC to solicit proxies and
provide robust financial information, (c) regardless of exemptive relief, the
company would distribute all information required under Delaware law to ensure
the section 271 vote is informed, (d) the company would encourage common
shareholders to attend the section 271 meeting, and (e) the Delaware court
would reserve jurisdiction over the dispute and to adjust any terms of the agreed
order. Notably, approximately 44% of the common shares were already known
to support the terms of the sale.
ii.
Issue
Holding
works a profound inequity upon the companys common stockholders and is thus
prohibited by the teachings of Schnell v. Chris-Craft Industries, Inc. [285 A.2d
437 (1971)]. And while the defendants are correct that the Supremacy Clause of
the United States Constitution and federal preemption jurisprudence prevent this
court from issuing an order enjoining them from filing a bankruptcy petition, this
court unquestionably has the power to prevent the board of directors from
binding the company to a transaction to sell Magticom before first complying with
the mandates of 8 Del. C. 271. (footnotes omitted).
iv.
Rationale
Analysis
Did the Delaware Chancery Court overlook whether the bankruptcy court
would have subject matter jurisdiction over Metromedias chapter 11 case
brought to evade state law corporate governance?
Yes, although it strongly implied the case would be dismissed for lack of
good faith. All federal bankruptcy legislation emanates from the bankruptcy
power granted Congress by article I, section 8 of the United States Constitution.
180
Facts
182
ii.
Issue
Holding
Rationale
183
184
Aftermath
185
vi.
186
using the term in the sense that we have said it was used." 150
U.S. at 385.
Based on Brierfield, modern day courts conclude: "The doctrine doesnot,
in fact, involve the application of any actual 'trust' at allAmerican National Bank
of Austin v. Mortgageamerica Corp. (In re Mortgageamerica Corp.), 714 F.2d
1266, 1269 (5th Cir. 1983).
The Delaware Chancery Court addressed the trust fund doctrine when a
judgment creditor sued an insolvent corporation claiming its directors could not
prefer some non-insider creditors over other non-insider creditors. Amussen v.
Quaker City Corp., 18 Del. Ch. 28 (Del. Ch. 1931). The court ruled:
"as among creditors, no trust exists which prevents the directors
of an insolvent corporation from preferring some over others,
notwithstanding the corporation is in failing circumstances and
manifestly headed for disaster." 18 Del. Ch. at 31.
"So that any creditor, who is unwilling to entrust his chances of
fair treatment to the officers and directors of the corporation, has
recourse open to him to resort to the courts where he may ask that
the corporate assets be drawn under judicial administration upon a
basis of equality. The creditor is therefore not helpless. While it
may be said that to compel creditors to seek protection by
receivership proceedings casts upon them the burden of vigilance,
the reply is that such is a burden that creditors have always been
generally expected to assume." 18 Del. Ch. at 34.
The Delaware Chancery Court again addressed the trust fund doctrine
when it was faced with the question whether an insolvent corporation can prefer
an insider (director) creditor over non-insider creditors:
"The principle upon which the rule rests that forbids a directorcreditor to enjoy a preference over others in the circumstance of the
company's insolvency, is variously stated. By most of the
authorities it is posited on the so-called 'trust fund theory' by which
capital assets are said to constitute a trust fund for creditors. By
others it is said to be based on the inequity of allowing a director to
take advantage of the superior means of information which he
enjoys over other creditors, conjoined as it is with a power or
influence which enables the possessor to reap a personal
advantage over others whose claims are equally meritorious."
Pennsylvania Company v. South Broad St. Theatre Co., 20 Del.
Ch. 220, 228 (Del. Ch. 1934).
C. Deepening Insolvency: Trenwick America Litigation Trust v.
Ernst & Young, L.L.P., 906 A.2d 168 (Del. Ch. 2006), affd Trenwick
187
America Litigation Trust v. Billett, 2007 Del LEXIS 357 (Del., Aug.
14, 2007)
i. Facts
On December 31, 1998, the Trenwick Group had assets of $1.4 billion,
stockholders equity of $348 million, and a stock price of $31.49 per share.
Trenwick, 906 A.2d at 176. The parent holding company embarked on a strategy
of growth by acquisition and acquired 3 insurance companies in 2 years. In
connection with two of the acquisitions, the holding companys top U.S.
subsidiary assumed or guaranteed hundreds of millions of dollars of debt,
although its financial statement still showed a positive asset value over $200
million. The trust contends the book numbers were the product of creative
accounting and hid insolvency. Trenwick, 906 A.2d at 184. Five years after the
growth strategy started, the holding company and its U.S. subsidiary commenced
chapter 11 cases because the insurance companies acquired turned out to have
more liabilities than assets. The chapter 11 plan of the U.S. subsidiary created a
litigation trust holding the subsidiarys claims. That trust brought an action
against the holding companys directors (10 of 11 of which were independent
directors) and its advisors, as well as the subsidiarys directors. The corporate
charter exculpated directors from breaches of their duty of care.
The action essentially alleges that the directors embarked, due to a lack of
diligence, on an imprudent strategy as shown by its result. The action seeks to
hold defendants liable for breach of duties of care and loyalty, deepening
insolvency, and aiding and abetting it. The advisors are accused of malpractice
and breach of their duties as advisors to the parent to protect the subsidiary from
harm. Trenwick, 906 A.2d at 188. The action attempts to capitalize on the
companies insolvencies. Trenwick, 906 A.2d at 172-173. Defendants moved to
dismiss the action for failure to state a claim.
ii. Issues
Can a litigation trust formed by a debtors chapter 11 plan bring actions belonging
to the debtors creditors if the creditors do not assign them to the trust?
Does Delaware law recognize a cause of action for deepening insolvency?
Does a parent corporation owe duties to its subsidiary or its creditors?
What must be shown to overcome a corporate charters exculpation of directors
from a duty of care?
What must be shown to state a claim for breach of duty of loyalty?
188
iii. Holding
No. Based on Caplin v. Marine Midland Grace Trust Co.,406 U.S. 416
(1972), a litigation trust is not allowed to bring its creditors claims. Trenwick, 906
A.2d at 191.
What Delaware law does not do is to impose retroactive
fiduciary obligations on directors simply because their chosen
business strategy did not pan out. That is what the Litigation Trust
seeks here, to emerge from the wreckage wielding the club that the
holding company's own failed subsidiary can now accuse the
holding company's directors of a breach of fiduciary duty. To
sanction such a bizarre scenario would undermine the wealthcreating utility of the business judgment rule.
Trenwick, 906 A.2d at 173-174.
Equally important, however, is that Delaware law does not
recognize this catchy term as a cause of action, because catchy
though the term may be, it does not express a coherent concept.
Even when a firm is insolvent, its directors may, in the appropriate
exercise of their business judgment, take action that might, if it
does not pan out, result in the firm being painted in a deeper hue of
red. The fact that the residual claimants of the firm at that time are
creditors does not mean that the directors cannot choose to
continue the firm's operations in the hope that they can expand the
inadequate pie such that the firm's creditors get a greater recovery.
By doing so, the directors do not become a guarantor of success.
Put simply, under Delaware law, "deepening insolvency" is no more
of a cause of action when a firm is insolvent than a cause of action
for "shallowing profitability" would be when a firm is solvent.
Existing equitable causes of action for breach of fiduciary duty, and
existing legal causes of action for fraud, fraudulent conveyance,
and breach of contract are the appropriate means by which to
challenge the actions of boards of insolvent corporations.
Trenwick, 906 A.2d at 174.
Under settled principles of Delaware law, a parent corporation does not
owe fiduciary duties to its wholly-owned subsidiaries or their creditors.66
66 E.g., Anadarko Petro. Corp. v. Panhandle Eastern Corp., 545 A.2d
1171, 1174 (Del. 1988). Although it is said in general terms that a parent
corporation owes a fiduciary obligation to its subsidiaries, this obligation
does not arise as such unless the subsidiary has minority stockholders.
See DAVID A. DREXLER, LEWIS S. BLACK, JR., & A. GILCHRIST
SPARKS, III, DELAWARE CORP. LAW AND PRACTICE 15.11, at 15-72
(2002).
189
190
191
192
193
In March 2005, TBS filed chapter 7 petitions. Id. The chapter 7 trustee
filed a complaint against MDC, the director MDC installed at TBS, and Winstead.
Defendants filed motions to dismiss which were granted in part with permission
to replead. Miller v. McCown DeLeeuw & Co. (In re The Brown Schools), 368
B.R. 394 (Bankr. D. Del. 2007). Although the complaint alleged creditors were
damaged, the Trustee in every instance also asserts that the Debtors were
damaged. 368 B.R. at 400. On that basis, the court denied the first motion to
dismiss on standing grounds because even though a trustee lacks standing to
assert claims on behalf of creditors, it can assert claims on behalf of the estate.
Id.
"The Trustee asserts that MDC wrongfully prolonged the existence of the
Debtors so that MDC could profit at the expense of the Debtors and their
creditors, in violation of its duties of good faith, honest governance, and loyalty
which required a prompt bankruptcy filing and liquidation of the Debtors. As an
example, the Trustee points to the April 2003 transaction where the Debtors sold
all of their residential treatment centers for $64 million and paid MDC $1.7
million. In addition, the Trustee asserts that MDC effectuated the July 2004
Restructuring in breach of its fiduciary duty to the Debtors' creditors in order to
prefer MDC over non-insider creditors. Therefore, the Trustee seeks to recover
$18 million in damages caused by the Debtors paying TIAA as part of the
restructuring." Id. at 45.
The repleaded complaint, among other things, alleged (a) defendants
were liable for deepening insolvency, (b) MDC was liable, in the amount of the
$18 million paid to TIAA, for breach of fiduciary duties by wrongfully prolonging
TBS' existence and damaging TBS, so MDC could profit at the expense of TBS
and its creditors, such as by receiving the $1.7 million, (c) aiding and abetting
fraudulent transfers, (d) the MDC director was liable for the fraudulent transfers
received by MDC because he benefited based on his affiliation with MDC, (e) the
MDC director was liable for aiding and abetting fraudulent transfers, (f) the MDC
director was liable for civil conspiracy and aiding and abetting a civil conspiracy,
namely MDC and other defendants caused TBS to retain Winstead to devise a
strategy to prefer MDC over other creditors in breach of MDC's fiduciary duties to
other creditors, and (g) Winstead was liable for breach of fiduciary duty, aiding
and abetting breach of fiduciary duty, conspiracy, fraudulent transfers, and aiding
and abetting fraudulent transfers.
2. Issues
Is there a valid cause of action for deepening insolvency?
11. If a cause of action for breach of fiduciary duty to creditors and the debtor is
brought to recover damages measured by deepening insolvency, is the cause
of action a disguised action for deepening insolvency?
12. Is there a cause of action for aiding and abetting a fraudulent transfer?
10.
194
2.
3.
4.
5.
No. Miller v. McCown DeLeeuw & Co. (In re The Brown Schools), 386 B.R.
37, 44 (Bankr. D. Del. 2008). There is no cognizable cause of action In
Delaware for deepening insolvency. Trenwick Am. Litig. Trust v. Billett, 2007
Del. LEXIS 357, at *1 (Del. 2007).
Deepening insolvency can be a valid theory of damages for breach of
fiduciary duties. Id. at 48.
Under Delaware law, there is no valid cause of action for aiding and abetting
a fraudulent transfer. Id. at 53.
Being an employee of a transferee of a fraudulent transfer, does not alone
establish that the employee was a transferee or benefited from the transfer.
Id. at 54.
The allegations that the MDC installed director conspired with Winstead to
have Winstead act to prefer MDC's interests over the interests of other
creditors and that the purpose was achieved through the restructuring in 2004
state claims against the director and Winstead for civil conspiracy and aiding
and abetting civil conspiracy (which is a confederation of two or more persons
to do an unlawful act in furtherance of the conspiracy which results in actual
damages to plaintiff). Id. at 55-56.
4. Analysis
Miller v. McCown DeLeeuw & Co. (In re The Brown Schools), 386 B.R. 37
(Bankr. D. Del. 2008), poses the ultimate predicament for investors in distressed
companies. Namely, once distress is recognized, what actions can the investor
take to try to recoup some of its investment without incurring personal liability to
the company in amounts equaling or exceeding other creditors' unpaid claims?
Here, the private equity investor that paid $63 million for its ownership stake, put
in another $12.5 million on a subordinated basis once trouble surfaced, but is
being sued for over $18 million because it allegedly breached fiduciary duties by
trying to prefer itself and by not earlier depositing the company into bankruptcy.
The chapter 7 trustee also complains of and demands disgorgement from the
investor of the $1.7 million it was paid when the first lien debt was reduced and
the $2.9 million it received from a paydown of the second institution's debt, but no
fraud or dishonesty is alleged.128
128 MDC
is also accused of having taken collateral security for its $12.5 million.
But, it appears MDC never benefited from that collateral security and the
company commenced its chapter 7 case less than a year after the security was
195
130 North
loyalty to the enterprise."135 While these are broad sounding terms, they
certainly do not mean that whenever a corporation loses money, the directors are
personally responsible. Obviously, such a rule would undermine the entire
purpose of using the corporate form and would deter most persons from serving
as director.
In the case of TBS, the trustee's contention that the directors violated their
duties of care and loyalty to the enterprise arises in the awkward scenario where
the trustee is contending the enterprise should have been killed earlier.
Prior to the bankruptcy courts decision on PEs motion to dismiss, the
Delaware Supreme Court held that (a) creditors of a Delaware corporation that
is either insolvent or in the zone of insolvency have no right, as a matter of law,
to assert direct claims for breach of fiduciary duty against the corporation's
directors.,136 and (b) Delaware has no cognizable cause of action for
deepening insolvency.137 Put simply, under Delaware law, deepening
insolvency is no more of a cause of action when a firm is insolvent than a cause
of action for shallowing profitability would be when a firm is solvent.138
(Pennsylvania law does recognize a cause of action for deepening
insolvency).139 The bankruptcy court explained that if the trustee were asserting
a claim for breach of the fiduciary duty of care, claims alleging a duty of care
violation could be viewed as a deepening insolvency claim by another name.140
Additionally, the court observed that duty of care violations are indemnifiable
under Delaware law and can be defeated by proving the process of reaching the
final decision was not the result of gross negligence.141 But, the bankruptcy court
denied PEs motion to dismiss because [f]or breach of loyalty claims, on the
other hand, the plaintiff need only prove that the defendant was on both sides of
the transaction, after which the defendant has the burden to prove that the
transaction was entirely fair.142
Whether the trustee stated a claim for a breach of the fiduciary duty of
loyalty is quite significant. Our nations underlying public policy driving economic
growth is to encourage others to assume entrepreneurial and risk-taking
135 E.
198
activities by protecting them against personal liability when they have performed
in good faith and with due care, however unfortunate the consequence.143
Half of new businesses fail within their first five years.144 Should their
creators be sued for the losses on the ground they allowed personal goals to
overshadow risks to their creditors?
A glance at recent economic history further illustrates the issue.
Routinely, American enterprise makes bets. A few years ago, Wall Street bet the
country needed stadium movie theaters and invested billions to build them, which
were mostly lost.145 Stadium theaters in the face of growing movie distribution
over the internet and in competition with pre-existing theaters was a high wire act
which went awry. If, using hindsight, the directors and officers were sued for
making that bet in breach of their duty of loyalty on the ground they approved use
of investors funds in a risky bet so they could collect directors fees,
compensation, and bonuses, should they have had to prove it was fair to bet the
funds and endanger creditors while they collected benefits regardless of the
outcome? Today, the public airlines are losing billions and are destined to fail if
oil prices do not subside dramatically in a relatively short time. Which way oil
prices will go is no more predictable than a roulette ball -- maybe less. If their
directors and officers are sued for not having placed the airlines in bankruptcy
now to avoid future losses, while instead preferring to continue their positions
and benefits, should they have to prove it is fair to bet the funds and endanger
creditors while they collect benefits? Should the directors and officers of our auto
manufacturers be sued for breach of loyalty and have to prove that they have not
put the auto companies into bankruptcy even though they are losing billions
because they are making a good bet that they can solve the auto companies
declining market shares, retiree expenses, uncompetitive wage structures, and
not because they want to maintain their jobs and benefits?
When the issue in TBS is replicated for the stadium theaters, airlines, and
auto manufacturers, a fundamental question occurs across each scenario.
Namely, why would bankruptcy produce a better result for shareholders or
creditors? In TBS, the trustee alleged that while PE kept TBS out of bankruptcy,
its insolvency deepened by over $22 million, leaving shareholders with zero and
creditors further in the red. But, the TBS trustee nowhere alleged that (a) an
earlier bankruptcy could have attained as much sale proceeds as TBS procured
outside bankruptcy to retire over $98 million in debt and (b) an earlier bankruptcy
would not have cost millions of dollars more while all the properties were
143 Continuing Creditors Committee of Star Telecomm., Inc. v. Edgecomb, 385 F.Supp.2d 449,
458 (D.Del. 2004) (quoting Duesenberg, The Business Judgment Rule and Shareholder
Derivative Suits: A View from Inside, 60 Wash. U.L.Qu. 311, 314 (1982)).
144
http://www.sba.gov/smallbusinessplanner/plan/getready/SERV_SBPLANNER_ISENTFORU.html.
145 See, e.g., In re UA Theatre Co., Case No. 00-3514 (PJW) , 2004 Bankr. LEXIS 1258 (Bankr.
D.Del. August 25, 2004); In re Winstar Communications Inc., 378 B.R. 756 (Bankr. D.Del. 2007);
In re GC Companies, Inc., 274 B.R. 663 (Bankr. D.Del. 2002);
199
146 See Venhill Limited Partnership v. Hillman, 2008 Del. Ch. LEXIS 67, *9 (Del. Ch. June 3,
2008)(not released for publication; subject to revision or withdrawal); In re RJR Nabisco, Inc.
S'holders Litig., 1989 WL 7036, at *15 (Del. Ch. Jan. 31, 1989).
147 Id. at *68.
th
148 See Block, Barton, Radin, The Business Judgment Rule (5 ed. 1991) at 264.
149 Unitrin, Inc. v. American Gen. Corp., 651 A.2d 1361, 1380 (Del. 1995); Tabas v. Mullane, 608
F. Supp. 759, 766 (D.N.J. 1985).
150 OBerly v. Kirby, 592 A.2d 1268 (Del. 1991).
200
151 Strougo v. Scudder, Stevens & Clark, Inc., 964 F. Supp. 783, 794 (S.D.N.Y. 1997),
reargument denied, [1997 Transfer Binder] Fed. Sec. L. Rep. (CCH) 99,533 (S.D.N.Y. Aug. 18,
1997).
152 Stanziale v. Nachtomi (In re Tower Air, Inc.), 416 F.3d 229, 238 (3d Cir. 2005).
153 See, e.g., Nelson v. Emerson, 2008 Del. Ch. LEXIS 56, *6 (Del. Ch. May 6, 2008)(Strine,
V.C.)(not released for publication and subject to revision and withdrawal).
154 6 Del.C. 1305(b); Joseph v. Frank (In re Troll Communications, LLC), 385 B.R. 110, 122
(Bankr. D.Del. 2008).
155 Pennsylvania Co. v. South Broad St. Theatre Co., 20 Del. Ch. 220, 227, 229-230 (Del. Ch.
1934).
156 Amussen v. Quaker City Corp., 18 Del. Ch. 28 (Del. Ch. 1931).
157 See North American Catholic Educational Programming Foundation, Inc., v. Gheewalla, 930
A.2d 92 (Del. Sup. Ct. 2007).
201
Similarly, the grant of the junior lien to PE for its subordinated claim of
$12.5 million would likewise be a voidable preference if granted within a year of
TBS' bankruptcy while it was insolvent and if TBS benefited from it which is
unclear.158 Notably, while Congress enacted a preference statute applicable to
insiders that recovers transfers to them up to a year before bankruptcy as
opposed to ninety days for non-insiders, Congress thereby knowingly allowed
insiders to keep repayments of debt received more than a year before
bankruptcy.
The trustee's complaint proceeds on the premise that the combination of
PE's failure to put TBS into chapter 7 earlier and PE's receipt of potentially
voidable transfers creates a larger damage award equal to the deepening
insolvency of TBS by more than $22 million. The larger damages are said to
arise from PE's breach of its duty of loyalty. As explained above, it is not clear
that the deepening insolvency was a harm to TBS or its creditor body because an
earlier liquidation in bankruptcy may have produced a much worse result.
Notably, the use of deepening insolvency as a damage measure is rejected by
many courts.159 The bankruptcy court in TBS did not reject it, but ironically relied
on a decision that refused to disclaim deepening insolvency as a damage
measure,160 but expressly explains that the correct damage measure would
require the plaintiff to prove "that the defendants' actions forced the debtors to
dissipate corporate assets that would have been retained otherwise (and then
quantify the value of those assets)."161 Applying that to TBS, the trustee would
have to prove that PE's operation of the business outside bankruptcy realized
less or cost more than what could have been realized in bankruptcy, which is not
pled in the complaint.
Finally, history also has some bearing on the trustee's complaint against
PE. The Bankruptcy Act of 1898, as amended, contained an indemnity
requirement. Bankruptcy courts were authorized to order debtors to post bonds
to indemnify the estate against subsequent loss or diminution.162 Congress
discontinued that requirement under the Bankruptcy Code. Now, the remedy for
substantial or continuing losses is that a chapter 11 case may be converted to
chapter 7 or dismissed, but only if there is an absence of a reasonable likelihood
of rehabilitation.163 Rehabilitation does not have to repay creditors in full or any
such thing. It only requires that the business survives. This was not raised by
PE in the context of its motion to dismiss, but this history clearly shows Congress
158 11 U.S.C. 547(b)(4)(B).
159 See, e.g., Seitz v. Detweiler, Hershey and Associates (In re CITX Corp.), 448 F.3d 672, 678
th
(3d Cir. 2006); Wooley v. Faulkner (In re SI Restructuring, Inc.), 2008 U.S. App. LEXIS 13140 (5
Cir. 2008); Joseph v. Frank (In re Troll Communications, LLC), 385 B.R. 110, 122 (Bankr. D.Del.
2008).
160 Alberts v. Tuft (In re Greater Southeast Community Hospital Corp.), 353 B.R. 324, 338
(Bankr. D.D.C. 2006).
161 Id.
162 Former 11 U.S.C. 326 (Chapter XI), 426 (Chapter XII).
163 11 U.S.C. 1112(b)(4)(A).
202
has quite a tolerance for investors attempting to continue their businesses in the
hope of rehabilitation, even at the expense of incurring losses to creditors who
will not be made whole for such losses. That tolerance may preempt
jurisprudence disallowing the continuation of businesses.
The world is still safe for capitalism for those who learn from history.
Whether starting a business or rescuing one, the control persons should bring
themselves under the umbrella of the business judgment rule by the use of
independent directors, expert opinions, or comparable methods. The preliminary
decision in TBS, does not mean private equity funds should not collect consulting
fees from their portfolio companies and should not collect additional fees for
arranging capital transactions. It means the services for such fees should be
carefully documented. Indeed, private equity firms can save their portfolio
companies small fortunes by providing treasury functions that few executives can
provide. It is only a matter of making that clear and having independent directors
objectively assess it. Private equity firms can also rescue their portfolio
companies and can do so with secured debt, so long as independent directors
are satisfied. Breaches of the fiduciary duty of loyalty can be avoided, with good
planning by experts who have seen what can go wrong. That is the lesson of
TBS.
D. Loan to Own: Official Committee of Unsecured Creditors of
Radnor Holdings Corp. v. Tenenbaum Capital Partners (In re
Radnor Holdings Corp.), 353 B.R. 820 (Bankr. D. Del. 2006)
i. Facts
After Radnors financial advisor (Lehman Brothers) had contacted 40
potential investors, Tenenbaum Capital Partners agreed to purchase $25 million
of preferred stock and $95 million of senior secured debt. 353 B.R. at 828.
Tenenbaum was granted the right to designate a board member and a person to
monitor board meetings, and had the right to name more board members if
certain financial targets were not met. 353 B.R. at 828. Tenenbaum also had
the right to veto certain employment agreements and transactions with affiliates.
The court found it would be irrational to believe Tenenbaum invested in stock
while believing the company was insolvent. 353 B.R. at 830. When Radnor
failed to meet its projections, Tenenbaum made an additional $23.5 million
secured loan. 353 B.R. at 832. The unsecured noteholders consented. 353
B.R. at 834. Tenenbaum refrained from declaring certain defaults such as a
failure to satisfy and ebitda covenant while the banks insisted on the debtors
retention of a turnaround consultant. 353 B.R. at 834. Radnor commenced its
bankruptcy case because its bank creditors determined they had overadvanced
against their collateral and they stopped lending. 353 B.R. at 834.
203
Tenenbaum did not want to be a stalking horse bidder for Radnor, but was
convinced by the board that without Tenenbaum as stalking horse, the case
could result in a chapter 7 liquidation. 353 B.R. at 834. The Tenenbaum
representative resigned from the board and the asset purchase agreement was
negotiated at arms length. Id.
As part of the order approving bidding procedures, the bankruptcy court
authorized the statutory creditors committee to sue Tenenbaum and others.
Tenenbaum would be allowed to credit bid at the sale, whatever amount of its
$128.8 million secured claim survived the committees complaint. 353 B.R. at
826-827.
ii. Issues
Should Tenenbaums claim be recharacterized as equity?
Should Tenenbaums claim be equitably subordinated to general
unsecured claims?
Is Tenenbaum or the director it nominated liable for breach of fiduciary
duty or aiding and abetting breach of fiduciary duty?
iii. Holdings
Neither Tenenbaum nor the director it nominated have any liability on the
foregoing counts.
iv. Rationale
The overriding consideration in a recharacterization case is the intent of
the parties. Cohen v. KB Mezzanine Fund II (In re SubMicron Systems Corp.),
432 F.3d 448 (3d. Cir. 2006). Tenenbaums knowledge that Radnor was
experiencing a liquidity crisis when it made its $23.5 million loan, does not
change the loan into equity because its rational for an existing lender to protect
its debt with an additional loan. Id. at 457. Thus, the loan cannot be
recharacterized on the ground no prudent lender would make a loan in those
circumstances. 353 B.R. at 840. Here, the parties at all times treated the loan
as a loan and not equity. 353 B.R. at 839.
Tenenbaum engaged in no inequitable conduct that harmed other
creditors. Moreover, its access to inside information did not make it an insider or
put it in control for purposes of applying to it a more stringent standard. 353 B.R.
at 841.
204
Based on Trenwick Am. Litig. Trust v. Ernst & Young, LLP, 906 A.2d 168
(Del. Ch. 2006) and Seitz v. Detweiler, Hershey & Assoc. (In re CitX Corp), 448
F.3d 672 (3d Cir. 2006), there is no breach of fiduciary duty simply because a
board attempts to rehabilitate an insolvent company while maintaining
operations:
As I conclude below, the Trenwick opinion made quite clear
that under Delaware law, a board is not required to wind down
operations simply because a company is insolvent, but rather may
conclude to take on additional debt in the hopes of turning
operations around.
353 B.R. at 842.
Delaware law allows a corporations certificate of incorporation to
exculpate directors from their duty of care: 8 DEL. CODE ANN. 102(b)(7).
Section 102(b)(7) provisions act as a complete bar to liability
even when creditors or a trustee, rather than stockholders, are
suing derivatively. Production Res. Group, L.L.C. v. NCT Group,
Inc., 863 A.2d 772, 793 (Del. Ch. 2004); Pereira v. Farace, 413
F.3d 330, 342 (2d Cir. 2005), cert. denied, 126 S. Ct. 2286, 2006
U.S. LEXIS 3965, 164 L. Ed. 2d 812.
However, the fact that the Committee has dropped its duty of
care claims does not render Article Seventh and 102(b)(7)
meaningless to this case. To the contrary, much of the Committee's
case at trial at best would have implicated the duty of care, not the
duty of loyalty. By way of example only, if the Radnor board should
not have approved a $ 55 million EBITDA maintenance covenant
because that number was too high (and the Court need not and
does not make such a finding here), it did not do so in bad faith;
rather, the only potential breach would have been in not
understanding that the Company's projections were optimistic and
that the maintenance covenant, set at the $ 55 million level, ran too
high of a risk of causing a default. That is a quintessential duty of
care claim. Simply alleging that Mr. Kennedy desired funding at any
cost does not convert this claim into one implicating the duty of
loyalty. Thus, Article Seventh and 102(b)(7) would have barred
any such claims against the board, and Tennenbaum and Mr.
Feliciano therefore could not have possibly been held liable for
aiding and abetting such claims.
353 B.R. at 842-843.
205
Tenenbaum was also not liable for aiding or abetting a breach of fiduciary
duty and deepening insolvency is not a recognized cause of action in Delaware:
TCP never aided and abetted a breach of fiduciary duty.
The elements for aiding and abetting a breach of fiduciary duty
under Delaware law are as follows: "(1) the existence of a fiduciary
relationship, (2) a breach of the fiduciary's duty and (3) a knowing
participation in the breach by the non-fiduciary defendant." Cantor
Fitzgerald, L.P. v. Cantor, 724 A.2d 571, 584 (Del. Ch. 1998). The
evidence does not support a finding that any of these elements
have been satisfied.
.Even if the Debtors were insolvent at the time of the
Tranche A, B and C transactions, the Radnor [**50] Board's
actions would not have breached any fiduciary duties owed to the
Debtors' unsecured creditors. As the Court of Chancery
acknowledged in Trenwick, Delaware law does not impose an
absolute obligation on the board of an insolvent company to cease
operations and liquidate. See Trenwick, 906 A.2d at 204. Rather,
directors of an insolvent company may pursue strategies to
maximize the value of the company, including continuing to operate
in the hope of turning things around. See id.; Equity-Linked
Investors, L.P. v. Adams, 705 A.2d 1040 (Del. Ch. 1997) (permitting
board of company within days of a bankruptcy filing to incur new
secured debt in aid of funding risky but promising new products
over the objection of preferred stockholders with liquidation
preference).
The Court holds that Mr. Feliciano did not breach his duty of
loyalty. The Committee has failed to prove that Mr. Feliciano was
interested in any transaction and voted in favor of it due to his
outside financial interests rather than voting in the best interests of
Radnor. Cede & Co. v. Technicolor Inc., 634 A.2d 345, 363 (Del.
1993) ("to establish a breach of duty of loyalty, [plaintiff] must
present evidence that the director either was on both sides of the
transaction or 'derive[d] any personal financial benefit from it in the
sense of self-dealing, as opposed to a benefit which devolves upon
the corporation or all stockholders generally."') (emphasis in
original).
206
207
Facts.
Issues.
Does the Bankruptcy Code grant the bankruptcy court authority to prefer
some vendors over others? 359 F.3d at 872.
Can the critical payments be recovered after confirmation? 359 F.3d at
869-870.
Does the failure to have named a critical vendor in the appeal of the
critical vendor order prevent the appellate decision from affecting the unnamed
vendor? 359 F.3d at 870.
iii.
Holdings.
208
Rationale:
209
Analysis.
While Kmart affirms the reversal of a critical vendor order, it also provides
a potential roadmap for using section 363(b)(1) to authorize critical vendor
orders. To do so, debtors must show their critical vendors really wont supply
goods as long as they are assured of payment by the debtor having a line of
credit, posting a letter of credit, or other means, as well as showing the noncritical vendors will not be worse off due to the payments.
The United States District Court for the Northern District of Illinois in
Capital Factors Inc. v. Kmart Corp., 291 B.R. 818 (N.D. Ill. 2003), corrected by
Capital Factors, Inc. v. Kmart Corp.,2003 U.S. Dist. LEXIS 17437 (N.D. Ill.,
Sept. 29, 2003), had reversed the order of the bankruptcy court in the Kmart
chapter 11 case authorizing payment of critical vendor prepetition claims. It
announced a per se rule that critical vendor payments simply are not
authorized under the Bankruptcy Code. 291 B.R. at 823 (Nevertheless, it is
clear that however useful and practical these payments may appear to
bankruptcy courts, they simply are not authorized by the Bankruptcy Code.
Congress has not elected to codify the doctrine of necessity or otherwise
permit pre-plan payment of prepetition unsecured claims. Because we hold
that the bankruptcy court did not have either the statutory or equitable power to
authorize the pre-plan payment of prepetition unsecured claims, we need not
address the second and third issues Capital raises on appeal.)(unchanged by
corrected opinion).
(i) No Per Se Rule Barring
Payment of Prepetition Debt with
Court Approval
Notably, the affirmance by the United States Court of Appeals for the
Seventh Circuit leaves the order in the Kmart case vacated, but effectively
undoes the district courts announcement of the rule barring payment of critical
210
Foreign Vendors
Having No Minimum
Contacts with United
States
211
While there are many situations where the issuance of critical vendor
orders is warranted, the courts need to guard against abuse. For instance, no
vendor should be paid simply because of its relationships with management.
(iv)
Procedure
Significantly, debtors and their estates and creditors are better off not
naming the creditors who are critical. That eliminates the possibility of the debtor
convincing the vendor to supply new goods and services without having its
prepetition debt paid. Thus, the debtors showing might include evidence that the
estate can not take the risk of a cessation of supplies and must have the
authority to do the necessary to obtain supplies vital to maintaining their
operations as a going concern and to a successful reorganization. The courts
power to revise its orders and the creditors committees later ability to review the
debtors basis for each critical vendor payment can provide sufficient restraint on
the debtors management not to abuse the authority it gets to make such
payments. Notably, by recognizing the critical vendor order was issued the first
day of the case and by verifying that payments made can be recovered if
wrongful, the Kmart decision does not prohibit the issuance of critical vendor
orders, if needed, on the first day of a case, but sets very rational parameters for
entry of such orders.
(v)
No Authority to Pay Unallowable Prepetition
Claims
The various authorities and theories used to reject critical vendor orders
as illegal on a per se basis, are each inapplicable to situations where the estate
gains more value than it loses by paying a critical vendors prepetition claim. For
example, in the A.H. Robins chapter 11 case resulting from injuries to women
using the Dalkon Shield, the debtor and examiner wanted to make $15 million
available to fund reconstructive surgery for women whose child bearing ability
might terminate prior to plan confirmation. Official Comm. of Equity Sec. Holders
v. Mabey, 832 F.2d 299 (4th Cir. 1987).
The United States Court of Appeals for the Fourth Circuit reversed the
district court order approving the emergency fund because the womens claims
were not allowed claims and the payments would precede plan confirmation.
There was also no certainty the payments could be recovered from women who
later turned out not to have had allowed claims. In short, the A.H. Robins
situation was a sympathetic attempt to pay prepetition debt without any offsetting
benefit to the estate. Section 363(b), therefore, could not help and the decision
appears inapplicable to critical vendor payments that do create value or avoid
harm to a debtors estate.
212
(vi)
No Authority to Pay
Prepetition Claims
without Offsetting
Benefit to Estate
213
(x)
214
215
Issue
The United States trustee objected that the agreement exempted HLHZ
from its own negligence, violating the Bankruptcy Code, public policy, and basic
tenets of professionalism. The United States trustee contended the indemnity
was unreasonable under sections 327(a) and 328(a) because they undermine
the principal purpose of bankruptcy to conserve debtors assets to pay creditors.
315 F.3d at 224. The district court approved the retention and a chapter 11 plan
was subsequently confirmed containing certain exculpation provisions under
which, among other things, the debtors released HLHZ from all claims related in
any way to the chapter 11 case and each creditor accepting the plan released
HLHZ from all claims. 315 F.3d at 224. The plan also provided that the debtors
professionals shall not incur to any person any liability in respect of the plan,
provided that this provision would have no effect on any liability determined in a
final order to have been gross negligence or willful misconduct. 315 F.3d at 225.
iii.
Holding
The upshot for this case is that, to the extent that fiduciaries may obtain
indemnity for their negligence, financial advisors in bankruptcy (who may or may
not be fiduciaries) may do the same.***Delaware courts have resolved the
negligence conundrum in the corporate sphere by evaluating the process by
which boards reach decisions, rather than the final result of those decisions. A
boards failure to inform itself of all material information reasonably available
results in a finding of gross negligence.*** Delaware has navigated the Scylla of
condoning directors misconduct and the Charybdis of stifling their business
decisions with a rule that stresses not the end result, but the path taken to reach
it. Under this approach, courts do not interfere with advice by financial advisors
when they (1) have no personal interest, (2) have a reasonable awareness of
available information after prudent consideration of alternative options, and (3)
provide that advice in good faith.In the corporate sphere this is known as the
business judgment rule. A creature of common lawit acknowledges a judicial
syllogism derived from five fundamental tenets. 315 F.3d at 231, 232-233.
Here, where a debtors financial affairs the pith of a reorganization are
shaped by its financial advisors, they lay out the economic choices and assess
216
their risks, and (though not sureties of success) can be held accountable for not
advising with the level of care or loyalty expected, transposing the business
judgment rule from its corporate ambit to bankruptcy appears well suited. For by
this transposition we have a means to distinguish gross from simple negligence,
and thus a benchmark for approving as reasonable an arrangement for indemnity
that includes common negligence. 315 F.3d at 233.
We reach this result with two caveats. The first is that Houlihan Lokey
attempted to supplement its retention agreement with a provision in the retention
application and approving order that in effect mandates indemnification to
Houlihan Lokey for even its gross negligence if that negligence is not judicially
determined to be solely the cause of its damages. In other words, the Debtors
would be bound to indemnify Houlihan Lokey when its gross negligence
contributed only in part to its damages. This attempted end run goes out of
bounds for acceptable public policy. 315 F.3d at 234.
SecondlyHoulihan Lokey in the Plan sought indemnity only for actions in its
professional capacity. The retention agreement arguably goes further, for it
requires indemnification of Houlihan Lokey for contractual disputes with the
Debtors. To the extent Houlihan Lokey seeks indemnity for a contractual dispute
in which the Debtors allege the breach of Houlihan Lokeys contractual
obligations, this is hardly an indemnity-eligible activity. 315 F.3d at 234.
Financial advisors are an essential part of reorganizations. Our decision today
recognizes the need for safeguards from the second-guessing of creditors and,
ultimately, the courts. At the same time, it assigns courts their accustomed task
of evaluating the process by which advice is given. If financial advisors take the
appropriate steps to arrive at a result, the substance of that result should not be
questioned. So understood, agreements to indemnify financial advisors for their
negligence are reasonable under section 328(a) of the Bankruptcy Code. 315
F.3d at 234.
iv.
Rationale
In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833 (3d Cir. 1994), shows that
reasonable compensation is based on a market driven approach. Indemnity
against negligence is becoming a common market occurrence. Although marketdriven does not mean the market is determinative, the market should be
considered subject to the courts special supervisory role. 315 F.3d at 229-230.
Though directors and officers are fiduciaries of the corporations they
serve, we do not hold financial advisors like Houlihan Lokey to be fiduciaries.
Still, in the bankruptcy context they may owe a higher level of care than in
ordinary practice. 315 F.3d at 231n.14.
217
218
1146(a).164 Ten days after the sale closed, Piccadilly filed its proposed plan and
later amended it. The plan provided for distributions in a manner consistent with
the settlement agreement. Florida objected to the plan contending its stamp tax
assessment of $39,200 was outside the exemption because the transfer had not
been under a plan confirmed.
The bankruptcy court granted summary judgment for Piccadilly and the
district court affirmed. Then, the Eleventh Circuit affirmed, finding the statute
was ambiguous and should be interpreted consistent with the principle that a
remedial statute such as the Bankruptcy Code should be liberally construed. In
re Piccadilly Cafeterias, Inc., 484 F.3d 1299, 1304 (11th Cir. 2007).
ii. Issue
Does the 11 U.S.C. 1146(a) stamp tax exemption apply to
preconfirmation transfers?
iii. Holding
In the context of 1146(a), the decision whether to transfer a given asset
under a plan confirmed must be made prior to submitting the Chapter 11 plan to
the bankruptcy court, but the transfer itself cannot be under a plan confirmed
until the court confirms the plan in question. Only at that point does the transfer
become eligible for the stamp-tax exemption. (Footnote omitted).
"Because Piccadilly transferred its assets before its Chapter 11 plan
was confirmed by the Bankruptcy Court, it may not rely on 1146(a) to avoid
Florida's stamp taxes."
iv. Rationale
While both sides present credible interpretations of 1146(a), Florida has
the better one. To be sure, Congress could have used more precise language
i.e., under a plan that has been confirmedand thus removed all ambiguity.
But the two readings of the language that Congress chose are not equally
plausible: Of the two, Floridas is clearly the more natural. (Emphasis in
original).
164
The Dissent
Analysis
implement that concept either because under a confirmed plan the exemption is
available whether it's a reorganization plan or liquidation plan.
The dissent's essential point is that no rational theory explains why
Congress would want to make the exemption available after confirmation, but not
before. But, Congress did not make the exemption available in chapters 7, 12, or
13 at any time.
Notably, while the majority wrote the placement of section 1146(a) in the
subchapter entitled "POSTCONFIRMATION MATTERS," "undermines
Piccadilly's view that 1146(a) covers preconfirmation transfers," neither the
majority nor the dissent observed that section 1146(b) authorizes the bankruptcy
court to authorize a plan proponent to request an advance ruling on the tax
effects of a plan and to determine the debtor's state and local tax liability prior to
confirming a plan if there are any disputes. Senate Report No. 95-989, 95th
Cong., 2d Sess. (1978) at p. 133. Thus, it is fairly clear that Congress placed in
the subchapter on postconfirmation matters, provisions that will affect
postconfirmation economics, but that contemplate actions and results prior to
confirmation.
vii.
Consequences
The majority's determination that section 1146(a) sets forth "a simple,
bright-line rule," will likely be used to come within the stamp tax exemption.
Perhaps real property will be transferred into a wholly-owned subsidiary of a
debtor without recording a deed and incurring stamp taxes, and then the
subsidiary will transfer the property to the buyer pursuant to a simple confirmed
chapter 11 plan for the subsidiary. Such mechanisms are likely to flourish now
that the simple, bright-line rule is articulated.
viii.
Prior Law
Prior to the enactment of section 267, section 77B(f) of the Bankruptcy Act
exempted the issuance, transfers, exchanges of securities or making or delivery
of conveyances to make effective any plan of reorganization confirmed under the
221
legislative history of the Bankruptcy Code shows Congress intent to continue it.
S. Rep. No. 95-989, 95th Cong., 2d Sess. (1978) at p. 132; House Report No.
95-595, 95th Cong., 1st Sess. (1977) at p. 421.
25. Can Confirmation Negate Stay Relief?
A. Atalanta Corp. v. Allen (In re Allen), 300 F.3d 1055
(9th Cir. 2002)
i.
Facts
provisions of this section from certain federal tax provisions. Thus, section 267
amplified the exemption.
222
ii. Holding
A preconfirmation stipulation and order modifying the automatic stay, but
not providing it will bind the debtor or the court in a chapter 11 plan does not do
so.
iii. Rationale
The court reasoned the requirements for confirming a plan are not
complied with in connection with approving a stipulation affecting the automatic
stay and notice is not given all interested parties unless the stipulation provides it
will bind any plan. Therefore, the stipulation only lasts until confirmation and the
rule against overturning stipulations has no role to play. 300 F.3d at 1059.
iv. Analysis
This is a situation where the important thing is to know the rule, not so
much what the rule is. Now, we all know that if a stipulation regarding the
automatic stay does not provide it can not be changed in a chapter 11 plan, then
it can be. Because an order terminating the automatic stay only allows a
lienholder to foreclose, it is not necessarily inconsistent with such an order for a
chapter 11 plan to restructure the lien. Indeed, the chapter 11 plan can
restructure all debts of the estate and until a foreclosure is completed, the debt
and lien remain in existence. There is nothing inherent in stay relief that renders
the debt and lien immune to restructuring or to repayment pursuant to a plan.
Moreover, courts sometimes terminate the automatic stay to allow the lienholder
to foreclose up to but not including the foreclosure sale. That way, if the debtor
does not reorganize, no time is lost. But, if the debtor does reorganize, it can
retain the use of the encumbered property.
Significantly, the notion that approval of a stipulation regarding the
automatic stay will be noticed to all interested parties is an interesting issue.
Normally, requests for stay relief are served on a shortened service list that
includes the debtor, the statutory creditors committee, and all entities that
requested notice. Absent a settlement, the court will grant complete stay relief if
the requirements of section 362(d) are satisfied. That relief may well affect the
balance of the case.
26. Can Unmatured Interest Be Allowed as Damages under an Interest
Rate Swap?
A. Thrifty Oil Co. v. Bank of America, 310 F.3d 1188 (9th Cir. 2002)
223
i.
Facts
damages is, for all purposes, indistinguishable from a claim filed by a non-lending
swap dealer. Allowing the lender to collect termination damages in such a case
offends none of the principles and policies of Section 502(b)(2). 310 F.3d at
1201-1202.
The swap claim was neither unallowable unmatured interest under
Bankruptcy Code section 502(b)(2), nor unallowable under the Bucket Shop Law.
iv. Rationale
Bankruptcy Code section 502(b)(2) provides a claim shall not be allowed if
such claim is for unmatured interest. It has 3 underlying reasons: (1) to avoid
penalizing a debtor by making it pay interest for delays due to the laws
prohibition on its paying interest during a case; (2) to avoid the inconvenience of
forcing a debtor to constantly recalculate the amount owed each creditor; and (3)
to prevent each party from gaining or suffering due to delays inherent in
liquidation and distribution of the estate. 310 F.3d at 1195-1196.
Payments made under an interest rate swap cannot possibly compensate
for the delay and risk associated with borrowed money because no loan has
taken place between the counter-parties. 310 F.3d at 1197.
If the swap dealer had been an entity different from the lender, it would be
clear that the dealers interest rate swap claim is not for interest because no
money would have been borrowed between the dealer and the debtor. Notably,
swap agreements can have money being owed from the swap dealer to the
debtor. Therefore, interest rate swaps are not inherently unmatured interest
claims.
27. Is Good Faith Too Ambiguous a Standard?
A. In re Coram Healthcare Corp., 271 B.R. 228 (Bankr. D. Del.
2001).
i. Facts.
In 1997, 3 investors purchased $250 million of the debtors unsecured
notes. The debtors, Coram, had become a leading provider of alternative site
infusion therapy services. From Junje 1998 through July 24, 2000, a
representative of one of the noteholders, Cerberus, served as one of Corams
directors. In 1998 or 1999, Crowley joined Cerberus bench of ceo consultants
available to work for Cerberus with troubled companies. Cerberus principal
orally agreed that Cerberus would pay Crowley $80,000 per month plus
expenses to serve as a consultant to distressed companies in which Cerberus
had a stake. In August 1999, at Cerberus suggestion, the debtors hired Crowley
225
226
tainted the restructuring of the debtors debt and operations, and its negotiations.
As a result, the court determined it was unable to find the plan was proposed in
good faith for purposes of Bankruptcy Code section 1129(a)(3).
On February 26, 2001, the bankruptcy court granted the debtors motion to
retain Goldin Associates, LLC to investigate the extent of Crowleys conflict and
the damage, if any, that was done to the debtors as a result of the conflict.
Goldin was also directed to try to mediate a plan.
Goldin concluded that while Crowley and Cerberus should have disclosed
the full extent of their relationship to the debtors other directors and officers,
there was neither evidence Cerberus ever instructed Crowley to act contrary to
the debtors interests, nor evidence Crowley or Cerberus expected Crowley wold
seek to advance Cerberus interests to the detriment of the debtors. Goldin
found the $6.3 million payment did not affect the noteholders position vis--vis
other creditors or impact other creditors. The debtors were found to have
suffered damages from the undisclosed conflict comprised of the expense up to
$6 million of professional fees for the failed confirmation and possible business
losses of $7 million to $9 million resulting from the inability to obtain confirmation.
Goldin recommended that Crowleys bonus be reduced by $7.5 million to $5.9
million.
The debtors proposed a second chapter 11 plan that treated Crowley as
Goldin recommended, gave the new equity to the noteholders, and offered $10
million to the equity holders if they accepted the plan and if the creditors do not
object on the basis of the absolute priority rule. The equity did not accept the
plan and the equity committee objected to confirmation again.
At the confirmation hearing on the second proposed plan, the court found
Goldin had not investigated the continuation after December 2000 of Crowleys
conflict and whether he continued to get payments from Cerberus. Goldin
testified, however, that he assumed Crowley would do no harm to the debtors
after his arrangement with Cerberus was revealed because he had done no harm
beforehand. A member of the debtors board testified Goldin was hired to
sprinkle holy water on the situation and make everything all right.
ii.
Holding
Rationale
Crowley cannot serve the interests of both the Debtors and a large
creditor, Cerberus. Under the Consulting Agreement, Cerberus has the
227
discretion to fire Crowley if he fails to follow its instructions, resulting in the loss of
$1 million per year in compensation to Crowley. 271 B.R. at 236. Crowley
has a fiduciary duty to the estate which includes a duty of loyalty to avoid a
direct, actually conflict of interest. Id. For instance, Crowley did not cause the
debtors to sue to avoid the $6.3 million interest payment. Although that action is
preserved under the proposed plan, it will not likely be brought because the
noteholders would control the reorganized debtor. Crowleys conflict of
interest is a violation of his fiduciary duty to the Debtors and the estate and is so
pervasive as to taint the Debtors restructuring of its debt, the Debtors
negotiations towards a plan, even the Debtors restructuring of its
operationsThe Debtors hiring of Goldin to sprinkle holy water on the
situation does not cure the conflict or evidence good faith. 271 B.R. at 240.
Given the fact that Crowley had not disclosed the agreement in the first place,
the Debtors should have asked for full disclosure and required that Crowley
sever all agreements with Cerberus as a condition of continued employment.
The dont ask, dont tell approach adopted by the Debtors and their Special
Committee does not fulfill their fiduciary duty to these estates. 271 B.R. at 238.
iv.
While the failure to disclose the consulting agreement to all creditors and
the directors disrespectful (and apparently unprepared and unlawyered)
testimony that Goldin was retained to sprinkle holy water on the process create a
prima facie violation making denial of confirmation seem natural, the courts
ruling creates potentially unjustified leverage for equity holders rather than any
potential remedy for any wrong committed. The decision contains no indication
the estate was anywhere near solvent, and the creditor litigants contend the
estate was at least $100 million insolvent.
In short, the question is why the court should not have confirmed the plan
while preserving for shareholders any actions they had against Crowley or
Cerberus.
Put differently, what if the noteholders had proposed the chapter 11 plan
instead of the debtors? Certainly, no one can contend the noteholders lack good
faith for proposing a plan that maximizes their benefit. Perhaps they would also
have been held to lack good faith for not disclosing Crowleys consulting
agreement. The trade creditors, however, could propose the same plan without
being blameworthy for failure to disclose. No evidence suggests the equity could
have been in the money in any scenario. The failure of the Crowley to seek to
recover the $6.3 million interest payment from the noteholders, may have had no
impact because the money would simply go back to the company the
noteholders would own.
228
Notably, while Crowley and Cerberus were found not to have disclosed
their agreement, the court also found the debtors employed Crowley as a
condition to obtaining a forbearance agreement from Cerberus and the other
noteholders. Therefore, it was certainly disclosed and known that Crowley was
there because Cerberus and the other noteholders wanted him as the debtors
ceo. Once that was known, there can be little doubt that anyone involved in the
case would assume Crowley had an incentive to try to please the entities that put
him there, namely the noteholders. The incremental allegiance that Crowley had
due to the consulting agreement appears marginal. Although the court makes
much of the fact that Cerberus could cancel its obligation to pay Crowley $1
million per year if he didnt follow Cerberus instructions, Crowley was actually
getting more than $1 million from the debtors and therefore under the consulting
agreement, Cerberus would not have to pay Crowley. Moreover, its certainly
possible to interpret the consulting agreement as deferring to Crowleys duties to
any company that employed him and not requiring him to obey Cerberus if that
meant violating duties to the debtors.
B. In re Bidermann Industries U.S.A., Inc., 203 B.R. 547 (Bankr.
S.D.N.Y. 1997)
i. Facts.
Prior to bankruptcy, the debtor had retained turnaround consultants, one
of whom served as ceo at $700,000 per year and one of whom was retained at
$350,000 per year. When the chapter 11 case commenced, the bankruptcy court
approved the arrangement.
The debtor requested the bankruptcy court to approve a letter agreement
setting up a process to accomplish a leveraged buy out of the debtor under which
the turnaround consultants and an investor they procured would acquire the
debtor. The turnaround consultant serving as ceo would remain ceo and the
amount of the equity investment would be probably $40 million and up to $60
million in the discretion of the buyers. The cooperation of the prepetition majority
shareholder was assured by providing him a 10-year option to acquire 2% of
the common stock at the same price as the buyers pay as well as numerous
other options to purchase stock and assets of the company. 203 B.R. at 549-50.
Additionally, the shareholder would receive a consulting agreement paying him
$300,000 per year for 5 years and $750,000 for his covenant not to compete.
Reimbursement, Topping Fee, No Shop Clause, etc Under the letter
agreement, the investor would be entitled to up to $2 million in expense
reimbursement, a topping fee of $2 million and up to $3.8 million, a broad
indemnification, no solicitation or competing bid encouragement by the debtor
except to the extent the debtors fiduciary duties would be violated, the
229
230
NGC purchased the debtors operating assets. That agreement provided New
NGC would not assume any asbestos liability including unknown claims. Then,
the plan was consummated and New NGC issued its securities which were
traded in the public markets.
In May 1996, the Georgine settlement was overturned. The trust created
under the plan returned to the bankruptcy court and requested a determination
that New NGC has liability for the future/unknown asbestos liability by reason of
the bankruptcy courts having denied the permanent injunction. The bankruptcy
court ruled:
[T]he plan as confirmed by order of this court implicitly
imposes or maintains liability on New NGC for asbestos
disease non-Bankruptcy Code claims not discharged by the
confirmation order and not satisfied by the Trust.By
implicitly addressing this asbestos liability, rather [than]
explicitly doing so, and by deferring the matter as
provided in the plan, the court enabled New NGC to
emerge in the marketplace post-confirmation as an
effective entity, poised, under the right market conditions
to prosper, and thereby benefit all the constituencies.
(Emphasis supplied).
The bankruptcy court admitted there are no express statements
in the plan or confirmation order that affirm New NGCs liability for
unknown claims. In fact, the bankruptcy court opined at a February
1993 hearing: in the event that theres anything to fight about, in the
event that some claims in the futurethey can proceed with their rights,
and new NGC can defend and say were not a successor.
The channeling portion of the confirmation order provided
nothing therein shall preclude an Unknown Asbestos Disease
Claimant form pursuing his rights, if any, under applicable nonbankruptcy law against any Person who may be liable to such Unknown
Claimant after exhausting the remedy or remedies provided by the
[Trust]. (Emphasis supplied).
The confirmation order also provided that New NGC was
purchasing assets free and clear of all Liens, Claims, Interests and
other liabilities, obligations, charges or encumbrances thereon or there
againstto the maximum extent permitted by the Bankruptcy Code.
The bankruptcy court did bar unknown claimants from asserting
punitive damage claims against New NGC.
ii. Holdings
232
Facts.
233
Holding
The United States Court of Appeals for the Third Circuit reversed. It
reasoned that the fraudulent transfer claims being brought under Bankruptcy
Code section 544(b) were initially creditors claims. 226 F.3d at 245. Although
the debtor in possession is empowered to pursue those claims for the benefit of
all creditors, [t]he avoidance power itself, which we have analogized to the
power of a public official to carry out various responsibilities in a representative
capacity, was likewise not an asset of Cybergenics, just as this authority would
not have been a personal asset of the trustee, had one been appointed. 226
F.3d at 245. Issues relating to property of the estate are simply not relevant to
the inquiry into whether the fraudulent transfer claims in the Committees
complaint were assets of Cybergenics as debtor or debtor in possession. 226
F.3d at 246.
In a footnote, the appellate court explained that even if an analysis of
property of the estate were necessary, its analysis would not change because
[s]ubject to a few specifically enumerated exceptions, the bankruptcy estate
contains only the interests of the debtor in property as of the time of the
bankruptcy filing, no more, no less. In re Jones, 768 F.2d 923, 927 (7 th Cir.
1985) (citation omitted). As we already have explained, the fraudulent transfer
action belonged ot Cybergenics creditors as of the time of the bankruptcy filing.
It bears emphasis that we focus here on the cause of action to avoid the transfer,
not on any sort of equitable interest that some courts have said may be retained
by a debtro in fraudulently-transferred property. 226 F.3d at 247n.16.
iii.
Notably, the Bankruptcy Code does not render avoidance actions property
of the estate. But, pursuant to Bankruptcy Code section 541(a)(3), the estate
includes [a]ny interest in property that the trustee recovers under section 329(b),
363(n), 543, 550, 553, or 723 of this title. In turn section 550(a) provides for
234
235
236
constitutional question, while other courts skip that step and start by looking at
the statutory jurisdictional grant to the bankruptcy court. Because 11 U.S.C.
1334(b) broadly grants the bankruptcy court power over all civil proceedings
"related to cases under title 11," it is clear the court has the raw statutory power
to grant discharges to nondebtors.
The courts that start their analysis with section 1334(b) next wrestle with
the unfairness of a nondebtor obtaining a discharge or a release from certain
liability without subjecting its assets to the provisions of title 11. 11 U.S.C.
105(a) empowers the court to issue any ordernecessary or appropriate to
carry out the provisions of title 11. Given that title 11 prescribes an elaborate
set of requirements before any entity can receive a discharge, the question
becomes whether granting a nondebtor a discharge of one or more debts without
satisfying all title 11 requirements is consonant with section 105(a). Courts
granting such discharges or releases attempt to limit the unfairness by restricting
such discharges to situations where they are necessary for the reorganization
and are unlikely to harm creditors materially.
Bankruptcy Rule 3016(c)167 requires the plan and disclosure statement, if
the plan enjoins conduct not otherwise enjoined by the Bankruptcy Code, to
disclose in bold, italic, or underlined text "all acts to be enjoined and identify the
entities that would be subject to the injunction." Normally, releases are
accompanied by injunctions against suing to enforce the released claims.
Bankruptcy Code section 524(a)(2) automatically imposes an injunction against
enforcing claims against the debtor or estate that are discharged pursuant to
section 1141(d)(1)(A).
B. Res Judicata.
Notwithstanding the illegalities of discharging nondebtors, when it does
occur on notice to an affected creditor and is not reversed, the discharge is
binding due to res judicata and may not be collaterally attacked except perhaps
in extraordinary circumstances. Travelers Indemnity Co. v. Bailey, 129 S. Ct.
2195 (2009); Stoll v. Gottlieb, 305 U.S. 165 (1938); Levy v. Cohen, 19 Cal. 3d
165 (Sup. Ct. 1977).
Significantly, notice of the discharge must pass constitutional muster and
the rules. In Century Indemnity Co. v. National Gypsum Company Settlement
Trust (In re National Gypsum Company), 208 F.3d 498 (5th Cir. 2000), cert.
167 Bankruptcy
denied, 121 S.Ct. 172 (2000), the reorganized debtor asserted it discharged the
cure amount claim of the nondebtor party to one of its executory contracts by
providing in its chapter 11 plan that the contract to be assumed had a cure
amount of zero. The evidence on summary judgment did not show the
nondebtor party had notice other than a general notice of the pendency of the
chapter 11 case.
On appeal, the Fifth Circuit affirmed the district courts affirmance of the
bankruptcy court and held 1141(d) cannot be read to provide for discharge of
amounts in default under assumed contracts in a manner that would nullify the
cure requirement of section 365(b)(1). 208 F.3d at 509.
But, the bankruptcy court had also held the nondebtor party was bound to
the zero cure amount based on res judicata. The district court reversed and the
Fifth Circuit affirmed the reversal. Notably, the appellate courts did not require
that the nondebtor party receive a standalone motion to assume listing the cure
amount as zero. Rather, the Fifth Circuit held the debtor must demonstrate
delivery of the proposed plan of reorganization or some other court-ordered
notice that set forth National Gypsums intent to assume the Wellington
Agreement with a $0 cure amount. 208 F.3d at 513. The court approved other
decisions holding the motion to assume was made when the non-debtor party
to the lease was served notice of the plans filing. 208 F.3d at 513 (citing Riddle
v. Aneiro (In re Aneiro), 72 B.R. 424, 428 (Bankr. S.D. Cal. 1987); In re Hall, 202
B.R. 929, 932-933 (Bankr. W.D. Tenn. 1996).
C. In re Ingersoll, Inc., 562 F.3d 856 (7th Cir. 2009)
i. Facts
Ingersoll Cutting Tool Company ("ICTC"), and its parent company,
Ingersoll International, Inc. ("Ingersoll") had been controlled by the Gaylords.
When the Gaylords learned that the outside ceo and directors were trying to
cause ICTC to be sold, the Gaylords retained a law firm to stop the sale, 562
F.3d at 859, which firm explained it would need help from an attorney at another
firm. 562 F3d at 859. The parties negotiated fee arrangements that led to
multiple disputes down the road. Ultimately, ICTC was sold and Ingersoll ended
up in chapter 11.
Ultimately, Ingersoll's liquidation plan was confirmed and contained a
release of the Gaylords, providing the Gaylords:
"shall be released from any and all claims and causes of action by
all creditors, parties-in-interest, directors, officers, shareholders,
agents, affiliates, parent entities, successors, assigns,
predecessors, members, partners, managers, employees, insiders,
agents and representatives of the Debtors and their estates arising
from or relating to the Gaylord Actions, including, without limitation,
238
Was the release "by its terms broad enough to cover [the
attorney's] claim?
2.
1.
2.
3.
239
iv. Rationale
Section 105 of title 11 "authorizes a bankruptcy court to 'issue any order,
process, or judgment that is necessary or appropriate to carry out the provisions
of [the bankruptcy code]." 562 F.3d at 864. "This 'residual authority' is consistent
with a bankruptcy court's 'traditionally broad' equitable powers, In re Airadigm
Comm., Inc., 519 F.3d 640, 657 (7th Cir. 2008)" 562 F.3d at 864. The
equitable powers "also make an appearance within the context of reorganization
plans. Similar to 105, 11 U.S.C. 1123(b)(6) allows a court ot include in a plan
'any other appropriate provision not inconsistent with the applicable provisions of
[the bankruptcy code].'" 562 F.3d at 864.
"[T]he release does not provide blanket immunity. As in Airadigm and in
contrast to Metromedia it is narrowly tailored and critical to the plan as a whole.
The release only covers claims arising from or relating to two cases (the Gaylord
Actions), so it is far from a full-fledged 'bankruptcy discharge arranged without a
filing and without the safeguards of the Code.'Just as importantly, the
bankruptcy court found that the release was an 'essential component' of the plan,
the fruit of 'long-term negotiations' and achieved by the exchange of 'good and
valuable consideration' by the Gaylords that 'will enable unsecured creditors to
realize distribution in this case.'" 562 F.3d at 865.
"When the plan was confirmed (following an objection period), the debtors
served copies of the plan on creditors and parties in interest. Miller received a
copy as a party-in-interest." 562 F.3d at 862.
v. Analysis
The appellate decision analyses the issue from the viewpoint of whether
the release of a nondebtor is authorized by sections 105 and 1123. The decision
skips right to the statute, and nowhere asks whether the bankruptcy power
granted in article I of the U.S. Constitution grants authority to Congress to pass
laws discharging nondebtors from any claims. While the court does observe that
the release of the Gaylords was not a blanket release, thereby not creating a
discharge without the Gaylords abiding by all the other provisions of title 11, the
court does not determine whether the power granted to Congress to discharge
debtors, can be applied to nondebtors. Indeed, in Kuehner v. Irving Trust Co.,
299 U.S. 445, 450, 452, 455 (1937), the Supreme Court ruled exercise of the
bankruptcy power to discharge debt can not be constitutionally accomplished
absent a contemporaneous fair allocation of the debtor's assets to the debtors
creditors. Accord ACC Bondholder Group v. Adelphia Communications Corp. (In
re Adelphia Communications Corp.), 361 B.R. 337, 358n. 98 (S.D.N.Y. 2007)(" In
order for the implementation of the Bankruptcy law to be constitutional, it must
provide for a fair distribution of assets to a debtor's creditors. See Kuehner v.
Irving Trust Co., 299 U.S. 445, 451, 57 S. Ct. 298, 81 L. Ed. 340 (1937).).
240
Finally, the attorney who lost his claim against the nondebtors, received a
copy of the confirmed plan, but the facts do not show he received a copy in time
to object to confirmation. Conversely, the decision does not discuss that issue,
so the attorney presumably did not raise it on appeal. Perhaps the attorney did
not raise it because he was able to argue his objection to the bankruptcy court
when the issue arose after confirmation.
D. Airadigm Communications, Inc. v. Federal Communications
Commission (In re Airadigm Communications, Inc.), 519 F.3d
640 (7th Cir. 2008)
i. Facts
During Airadigm's first chapter 11 case commenced in 1999, the FCC
cancelled Airadigm's personal communications services licenses which Airadigm
had purchased at a 1996 auction for cash and debt. Airadigm owed the FCC
$64.2 million when it commenced its chapter 11 case. That case resulted in a
confirmed chapter 11 plan that assumed the FCC had properly cancelled the
licenses. The chapter 11 plan was financed by Telephone and Data Systems
("TDS"), which would pay the FCC different amounts on its proof of claim
depending on whether the FCC would reinstate the licenses during two years
after confirmation.
Then, in 2003, the United States Supreme Court decided FCC v.
NextWave Personal Communications, Inc., 537 U.S. 292 (2003), where it
overturned the FCC's license cancellation in similar circumstances to Airadigm
and the FCC acknowledged its cancellation of the Airadigm licenses was
ineffective. Airadigm then commenced a second chapter 11 case in 2006 and
commenced an adversary proceeding against the FCC requesting a divesting of
the FCC of any further interest in the licenses. The bankruptcy court granted the
FCC summary judgment rejecting Airadigm's claims.
Later in 2006, the bankruptcy court confirmed Airadigm's chapter 11 plan.
Based on the licenses then being worth $33 million, the plan treated the FCC as
having a $33 million secured claim and a deficiency claim for the balance of the
$64.2 million. The FCC could take an immediate payout of $33 million and lose
its liens in the licenses, or it could make the section 1111(b)(2) election. If it
made the election, the debtor would purchase and hold $33 million of
government-backed or low risk securities having different maturities, such that
over time (no more than 30 years) the principal and interest from the securities
would pay the FCC $64.2 million. If the reorganized debtor were to sell the
licenses, the FCC would receive the sale proceeds, and if less than $64.2 million,
would retain its lien against the licenses.
The FCC objected to its treatment. First, it objected that its lien was not
being preserved because its regulations provided that on a sale, the entire
241
balance becomes due. Second, the FCC objected to the plan's release of its
third party financer from "any act or omission arising out of or in connection with
theconfirmation of this Planexcept for willful misconduct." The bankruptcy
court determined that without the financer the debtor would have to finance $188
million and the financer would not go forward without the release.
ii. Issues
1.
Airadigm asserts its first chapter 11 plan extinguished the FCC's
liens.
2.
Airadigm also asserts the FCC's interests in the licenses were
avoidable by its strongarm powers.
3.
The FCC challenged the interest rate being paid on its claim if it
made the section 1111(b)(2) election.
4.
The FCC contended its liens were not being preserved due to the
absence of a 'due-on sale' sale clause in the plan.
iii. Holdings
1.
Airadigm's first chapter 11 plan did not extinguish the FCC's liens.
2.
3.
The FCC waived its interest rate argument by not raising it in the
bankruptcy court.
4.
The FCC's liens were preserved because the due-on sale clause is
not part of the lien.
In light of these provisions, we hold that this 'residual authority' permits
the bankruptcy court to release third parties from liability to participating creditors
if the release is 'appropriate' and not inconsistent with any provision of the
bankruptcy code."
iv. Rationale
Bankruptcy Code section 1141(c) provides that "after confirmation of a
plan, the property dealt with by the plan is free and clear of all claims and
interests of creditors" But for the plan to 'deal[ ] with' property for purposes of
1141(c), the plan itself must give some indication that it has compensated the
creditor for or otherwise impliedly affected its interest." Here, the plan
assumed the licenses were cancelled and did not deal with them.
242
243
v. Analysis
Both section 524(e) and its predecessor, section 34, solely provide that
the debtor's discharge does not discharge liability of a third party. The distinction
the court makes between section 34 which uses the word "shall" and section
524(e) which does not, is a distinction without a difference because neither
section talks to the court's power to release third parties. Accordingly, by
bypassing the constitutional issue and by overlooking the big picture, namely that
the Bankruptcy Code has an elaborate set of requirements preceding the release
of liability which is not satisfied by the nondebtor, the court manages to conclude
the court is empowered to and can validly release a nondebtor.
As a practical matter, however, there is nothing in the facts indicating the
FCC or any creditor had any claim against the financer. The bankruptcy court
clearly could have ordered that any claims against the financer arising out of the
chapter 11 case be filed in its court by a date certain. Thus, the equivalence of
the release could likely have been achieved.
E. Travelers Indemnity Co. v. Bailey, 129 S. Ct. 2195 (2009)
i. Facts
As what was called the "cornerstone" of the reorganization, and as part of
Johns-Manville Corp.'s ("Manville") settlement with its insurers for $770 million,
Travelers, as Manville's primary insurer, paid nearly $80 million. 129 S. Ct. at
2199. "There would have been no such payment without the injunction"
providing "'all Persons are permanently restrained and enjoined from
commencing and/or continuing any suit, arbitration or other proceeding of any
type or nature for Policy Claims against any or all members of the Settling Insurer
Group.'" 129 S. Ct. at 2199. "'Policy Claims'" were defined as "'any and all
claims, demands, allegations, duties, liabilities and obligations (whether or not
presently known) which have been, or could have been, or might be asserted by
any Person against any or all members of the Settling Insurer Group based
upon, arising our of or relating to any or all of the Policies.'" Id.
Various plaintiff groups subsequently filed direct action lawsuits against
Travelers and other insurers on a variety of legal theories falling into two broad
categories: violation of state consumer-protection statutes by conspiring with
other insurers and asbestos manufacturers to hide dangers of asbestos and to
raise a fraudulent 'state of the art' defense to personal injury claims; and violation
of common law duties by failing to warn the public about the dangers of asbestos
or by acting to keep its knowledge of those dangers from the public. 129 S. Ct.
at 2200.
Travelers requested the bankruptcy court to enjoin the lawsuits. 129 S.
Ct. at 2200. After a mediation, 3 classes of plaintiffs settled with Travelers
paying over $400 million. Id. The settlements were conditioned on entry of a
244
bankruptcy court order clarifying that the direct action lawsuits are and have
always been prohibited by the 1986 confirmation order and related orders. Id.
The bankruptcy court issued the order after finding that Travelers learned
virtually everything it knew about asbestos from its relationship with Manville and
that "'[t]he gravamen of [the] Direct Action Claims were acts or omissions by
Travelers arising from or relating to Travelers['] insurance relationship with
Manville.'" 129 S. Ct. at 2201. The bankruptcy court also reasoned that the
Second Circuit's earlier decision, MacArthur Co. v. Johns-Manville Corp., 837
F.2d 89, 93-94 (2d Cir. 1988), was controlling. 129 S. Ct. at 2202. That decision
rejected a claim that the provisions of the confirmation order and settlement order
exceeded the bankruptcy court's jurisdiction.
ii. Issues
1.
After the bankruptcy court confirmed Manville's chapter 11 plan and
enjoined certain lawsuits against Manville's insurers including Travelers, does the
injunction bar "state-law actions against Travelers based on allegations either of
its own wrongdoing while acting as Manville's insurer or of its misuse of
information obtained from Manville as its insurer? 129 S. Ct. at 2198.
2.
"[W]hether the Bankruptcy Court had subject-matter jurisdiction
to enter the Clarifying Order." 129 S. Ct at 2205.
iii. Holdings
1.
"We hold that the terms of the injunction bar the actions and that
the finality of the Bankruptcy Court's orders following the conclusion of direct
review generally stands in the way of challenging the enforceability of the
injunction." 129 S. Ct at 2198.
2. "The answer is easy: as the Second Circuit recognized, and
respondents do not dispute, the Bankruptcy Court plainly had jurisdiction to
interpret and enforce its own prior orders. See Local Loan co. v. Hunt, 292 U.S.
234, 239, 54 S. Ct. 695, 78 L. Ed. 1230 (1934)" 129 S. Ct. at 2205.
"Our holding is narrow. We do not resolve whether a bankruptcy court, in
1986 or today, could properly enjoin claims against nondebtor insurers that are
not derivative of the debtor's wrongdoing. As the Court of Appeals noted, in 1994
Congress explicitly authorized bankruptcy courts, in some circumstances, to
enjoin actions against a nondebtor 'alleged to be directly or indirectly liable for the
conduct of, claims against, or demands on the debtor to the extent such alleged
liability . . . arises by reason of . . . the third party's provision of insurance to the
debtor or a related party,' and to channel those claims to a trust for payments to
asbestos claimants. 11 U.S.C. 524 (g)(4)(A)(ii). On direct review today, a
channeling injunction of the sort issued by the Bankruptcy Court in 1986 would
have to be measured against the requirements of 524 (to begin with, at least).
245
But owing to the posture of this litigation, we do not address the scope of an
injunction authorized by that section. 8
8
Section 524(h) provides that under some circumstances 524(g)
operates retroactively to validate an injunction. We need not decide
whether those circumstances are present here.
Nor do we decide whether any particular respondent is bound by the 1986
Orders. We have assumed that respondents are bound, but the Court of Appeals
did not consider this question. Chubb, in fact, relying on Amchem Products, Inc.
v. Windsor, 521 U.S. 591, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997), and Ortiz v.
Fibreboard Corp., 527 U.S. 815, 119 S. Ct. 2295, 144 L. Ed. 2d 715 (1999), has
maintained that it was not given constitutionally sufficient notice of the 1986
Orders, so that due process absolves it from following them, whatever their
scope. See 340 B. R., at 68. The District Court rejected this argument, id., at 6869, but the Court of Appeals did not reach it, 517 F.3d at 60, n. 17. On remand,
the Court of Appeals can take up this objection and any others that respondents
have preserved." 129 S. Ct. at 2207.
iv. Rationale
"Respondents seek further refuge in evidence that before entry of the
1986 Orders some parties to the Manville bankruptcy (including Travelers)
understood the proposed injunction to bar only claims derivative of Manville's
liability. They may well be right about that: we are in no position to engage in
factfinding on this point, but there certainly are statements in the record that
seem to support respondents' contention. See App. for Respondent Chubb 1a3a, 5a, 13a-14a. But be that as it may, where the plain terms of a court order
unambiguously apply, as they do here, they are entitled to their effect. See, e.g.,
Negron-Almeda v. Santiago, 528 F.3d 15, 23 (CA1 2008) ('[A] court must carry
out and enforce an order that is clear and unambiguous on its face'); United
States v. Spallone, 399 F.3d 415, 421 (CA2 2005) ('[I]f a judgment is clear and
unambiguous, a court must adopt, and give effect to, the plain meaning of the
judgment' (internal quotation marks omitted)). If it is black-letter law that the
terms of an unambiguous private contract must be enforced irrespective of the
parties' subjective intent, see 11 R. Lord, Williston on Contracts 30:4 (4th ed.
1999), it is all the clearer that a court should enforce a court order, a public
governmental act, according to its unambiguous terms. This is all the Bankruptcy
Court did." 129 S. Ct. at 2204.
"Those orders are not any the less preclusive because the attack is on the
Bankruptcy Court's conformity with its subject-matter jurisdiction, for '[e]ven
subject-matter jurisdiction . . . may not be attacked collaterally.' Kontrick v. Ryan,
540 U.S. 443, 455, n. 9, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004). See also
Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376, 60 S. Ct.
317, 84 L. Ed. 329 (1940) ('[Federal courts] are courts with authority, when
246
parties are brought before them in accordance with the requirements of due
process, to determine whether or not they have jurisdiction to entertain the cause
and for this purpose to construe and apply the statute under which they are
asked to act. Their determinations of such questions, while open to direct review,
may not be assailed collaterally'). So long as respondents or those in privity with
them were parties to the Manville bankruptcy proceeding, and were given a fair
chance to challenge the Bankruptcy Court's subject-matter jurisdiction, they
cannot challenge it now by resisting enforcement of the 1986 Orders. See
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
702, n. 9, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982) ('A party that has had an
opportunity to litigate the question of subject-matter jurisdiction may not . . .
reopen that question in a collateral attack upon an adverse judgment'); Chicot
County, supra, at 375, 60 S. Ct. 317, 84 L. Ed. 329 ('[T]hese bondholders, having
the opportunity to raise the question of invalidity, were not the less bound by the
decree because they failed to raise it'). 6
6 The rule is not absolute, and we have recognized rare situations in
which subject-matter jurisdiction is subject to collateral attack. See, e.g.,
United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514,
60 S. Ct. 653, 84 L. Ed. 894 (1940) (a collateral attack on subject-matter
jurisdiction is permissible "where the issue is the waiver of [sovereign]
immunity"); Kalb v. Feuerstein, 308 U.S. 433, 439-440, 444, 60 S. Ct. 343,
84 L. Ed. 370 (1940) (where debtor's petition for relief was pending in
bankruptcy court and federal statute affirmatively divested other courts of
jurisdiction to continue foreclosure proceedings, state-court foreclosure
judgment was subject to collateral attack). More broadly, the Restatement
(Second) of Judgments 12, p. 115 (1980), describes three exceptional
circumstances in which a collateral attack on subject-matter jurisdiction is
permitted:
'(1) The subject matter of the action was so plainly beyond the court's
jurisdiction that its entertaining the action was a manifest abuse of
authority; or
'(2) Allowing the judgment to stand would substantially infringe the
authority of another tribunal or agency of government; or
'(3) The judgment was rendered by a court lacking capability to make an
adequately informed determination of a question concerning its own
jurisdiction and as a matter of procedural fairness the party seeking to
avoid the judgment should have opportunity belatedly to attack the court's
subject matter jurisdiction.'
This is no occasion to address whether we adopt all of these
exceptions. Respondents do not claim any of them, and we do not see how
any would apply here. This is not a situation, for example, in which a
bankruptcy court decided to conduct a criminal trial, or to resolve a custody
dispute, matters "so plainly beyond the court's jurisdiction" that a different
result might be called for." 129 S. Ct. at 2205-2206.
247
248
Corp.), 517 F.3d 52 (2d cir. 2008), rev'd, 129 S. Ct. 2195 (2009), that was not
reached by the Supreme Court eliminates the Second Circuit's holdings in Drexel
and Metromedia that releases of third parties from claims that are not paid from
estate assets are still available when "important" to the reorganization. In Drexel,
the Second Circuit affirmed approval of a class action settlement with the debtor
in possession under which one subclass was permanently enjoined from bringing
any future actions against Drexel's directors and officers and another subclass
was given the exclusive right to share in a portion of the settlement funds. Drexel
Burnham Lambert Trading Corp. v. Drexel Burnham Lambert Group, Inc. (In re
Drexel Burnham Lambert Group, Inc.), 960 F.2d 285, 288-89 (2d Cir. 1992). The
Second Circuit's decision reversed on jurisdictional grounds by Travelers, sub
silencio harkens back to the old subject matter jurisdictional regimen under the
Bankruptcy Act of 1898, as amended, which turned on property of the estate, the
res. The new statutory jurisdictional grant goes beyond limiting subject matter
jurisdiction to the res as conceded in Celotex, supra. To be sure, in a case
where insurance proceeds were very important as in Manville, had the issue
arisen at confirmation as to whether Travelers and the other insurers would have
entered into the settlement at the same amount if they had known their release
would not include a release of claims not payable from their insurance policies,
the answer would almost certainly have been no. Under the Drexel and
Metromedia standard, their releases would have been approved under the
'important to reorganization' standard. The Second Circuit's decision reversed on
jurisdictional grounds by Travelers makes it uncertain at best whether that
standard has survived.
F. Deutsche Bank, AG v. Metromedia Fiber Network, Inc. (In re
Metromedia Fiber Network, Inc.), 416 F.3d 136 (2d Cir. 2005)
i. Facts.
Pursuant to MFNs chapter 11 plan, the Kluge Trust together with its
insiders would receive a release from all claimholders against MFN of all claims
arising out of any matter related to MFN or its affiliates through the effective date
of the plan. Deutsche Bank, AG v. Metromedia Fiber Network, Inc. (In re
Metromedia Fiber Network, Inc.), 416 F.3d 136, 141 (2d Cir. 2005). In exchange
for the release, the Kluge Trust would forgive approximately $150 million of
claims, convert $15.7 million of senior secured claims to equity, invest $12.1
million in the reorganized debtors and purchase up to $25 million of common
stock in the reorganized debtors. Id.
Additionally, the chapter 11 plan released former and current MFN
personnel from claims related to the bankruptcy, except for claims based on
gross negligence or willful misconduct, and from claims related to MFN, the
debtors, or the chapter 11 plan. Id. at *141n. 5.
ii. Issue.
249
250
released from all further liability on claims arising out of settled personal injury
claims and claimants would be permanently enjoined from bringing related claims
against them. 280 F.3d at 255. The bankruptcy court interpreted the plan to
mean the release and injunction would only apply to consenting claimants. But,
the district court interpreted it to apply to all creditors and affirmed confirmation.
280 F.3d at 655-666.
ii. Issue
Whether a bankruptcy court has the authority to enjoin a non-consenting
creditors claims against a non-debtor to facilitate a reorganization plan under
Chapter 11 of the Bankruptcy Code? 280 F.3d at 656.
iii. Holding
We hold that when the following seven factors are present, the
bankruptcy court may enjoin a non-consenting creditors claims against a nondebtor: (1) There is an identity of interests between the debtor and the third
party, usually an indemnity relationship, such that a suit against the non-debtor
is, in essence, a suit against the debtor or will deplete the assets of the estate;
(2) The non-debtor has contributed substantial assets to the reorganization; (3)
The injunction is essential to reorganization, namely, the reorganization hinges
on the debtor being free from indirect suits against parties who would have
indemnity or contribution claims against the debtor; (4) The impacted class, or
classes, has overwhelmingly voted to accept the plan; (5) The plan provides a
mechanism to pay for all, or substantially all, of the class or classes affected by
the injunction; (6) The plan provides an opportunity for those claimants who
choose not to settle to recover in full and; (7) The bankruptcy court made a
record of specific factual findings that support its conclusions. 280 F.3d at
658.
iv. Rationale
The Bankruptcy Code provides in section 105(a) that the bankruptcy court
can issue any order necessary or appropriate to carry out the provisions of the
Bankruptcy Code. 280 F.3d at 658. The statutory grant of power in section
105(a) renders Grupo Mexicano v. Alliance Bond Fund Inc., 527 U.S. 308 (1999),
inapplicable to bar equitable relief, and brings the case within the realm of United
States v. First National City Bank, 379 U.S. 378 (1965), which upheld use of an
injunction granted pursuant to a statute (26 U.S.C. 7402(a)(1964)) granting
courts power to issue injunctions necessary or appropriate for the enforcement
of the internal revenue laws. 280 F.3d at 657-658. Notably, the court did not
rely on the general jurisdictional grant in 28 U.S.C. 1334.
251
252
253
The examiner in the chapter 11 case had concluded the avoidance claims
had little or no value. 228 F.3d at 242. Nevertheless, the objector had offered
$100,000 and sharing of proceeds in exchange for the claims. The appellate
court affirmed their release for no consideration, reasoning the District Court did
not err in concluding that the potential cost of defending and paying
indemnification claims, cross claims, and counterclaims arising out of the
prosecution of the claims was high, and that the claims were extinguished not on
account of KKRs interest in the Debtors, but because the Debtors determined
that they were unlikely to have any value. 228 F.3d at 242. [T]he claims were
extinguished because, in the judgment of the plan proponents, extinguishment
was the approach most likely to provide the greatest possible addition to the
bankruptcy estate. Id.
The appellate court concluded the protections granted to the creditors
committee and professionals who rendered services to the debtor do not violate
11 U.S.C. 524(e) because they do not affect liability of another entity on a debt
of the debtor. Rather, the protections are consistent with the limited immunity
granted to committees and professionals who serve the debtors. See, e.g., Pan
Am Corp. v. Delta Air Lines, Inc., 175 B.R. 438, 5114 (S.D.N.Y. 1994); In re L.F.
Rothschild Holdings, Inc., 163 B.R. 45, 49 (S.D.N.Y. 1994); In re Drexel Burnham
Lambert Group, Inc., 138 B.R. 717, 722 (Bankr. S.D.N.Y. 1992), affd, 140 B.R.
347 (S.D.N.Y. 1992); In re Tucker Freight Lines, Inc., 62 B.R. 213, 216, 218
(Bankr. W.D. Mich. 1986).
J. Monarch Life Insurance Co. v. Ropes & Gray, 65 F.3d 973 (1st
Cir. 1995).
i.
Facts
ii.
255
257
E. Rationale or Irrationale
It is unclear why the court believed the language of section 507(b) means
its superpriority claim is not triggered when an adequate protection or stay relief
motion is denied. Bankruptcy Code section 363(e) grants every secured
claimholder an unconditional, absolute right to adequate protection. It provides:
Notwithstanding any other provision of this section, at
any time, on request of an entity that has an interest in property
used, sold, or leased, or proposed to be used, sold, or leased, by
the trustee, the court, with or without a hearing, shall prohibit or
condition such use, sale, or lease as is necessary to provide
adequate protection of such interest. (emphasis supplied).
Likewise, Bankruptcy Code section 363(d)(1) mandates the court to
grant stay relief if the secured claim is not adequately protected. It
provides:
On request of a party I interest and after notice and a hearing,
the court shall grant relief from the stay provided under
subsection (a) of this section, such as by terminating,
annulling, modifying, or conditioning such stay -(1) For cause, including lack of adequate protection of an
interest in property of such party in interest; or (emphasis
supplied).
Therefore, the only time a court can deny a motion for adequate
protection or for stay relief is when adequate protection is being provided
by the trustee or debtor in possession. Such protection can take multiple
or alternate forms such as equity cushions, procurement of insurance,
maintenance of the collateral, etc. But, it must always be provided. The
court appears to have been influenced by semantics, namely that an
order denying adequate protection would be an order than no adequate
protection is needed. The statute rebuts that interpretation by granting
an absolute right to adequate protection to every secured claimant.
Once it is recognized that such motions can only be denied when
adequate protection is being provided, the plain meaning of section
507(b) becomes the reverse of what the court inferred. Section 507(b)
then plainly means that whenever the stay is maintained in effect and it
turns out the creditors secured position erodes while the creditor is
restrained from possessing its collateral, the creditors loss from that
erosion qualifies as a superpriority claim.
The courts second rationale does not comport with logic or
practice. The overhanging, intimidating presence of a multimillion dollar
258
superpriority claim will exist no matter which way the court decides the
issue. Thus, it is illogical for the court to deny the triggering of the
superpriority claim in the current instance. Entities doing business with
debtors in possession or trustees will still have to be concerned about
superpriority claims emanating from each court decision that grants
adequate protection.
In practice, trade creditors and others do not grant credit to
debtors in possession based on their analyses of the esoterics of section
507(b). Rather, they look at the credit available to the debtor in
possession and determine whether they want to take the risk of granting
unsecured or secured credit.
The courts theory that it should interpret section 507(b) so as not
to trigger a superpriority claim because the contrary holding would
imperil reorganizations is both demonstrably wrong and contrary to the
Bankruptcy Code. It is demonstrably wrong because the courts own
conclusion that the creditor, in any event, has an allowable, nonsuprepriority administrative claim for its losses due to the automatic stay
and the debtors use of the collateral, makes the creditors claim for such
losses payable in full in cash on the effective date of the chapter 11 plan.
Once that is established, the fact that the creditors claim should be paid
as a suprepriority before other administrative claims has no effect
whatsoever on the prospects for reorganization because all
administrative claims of whatever priority must be paid in full in cash on
the effective date of the plan unless the claimant consents otherwise.
Bankruptcy Code section 1129 (a)(9)(A).
It is contrary to the Bankruptcy Code because sections 362(d)(1)
and 363(e) expressly make clear that a secured claimholders right to
adequate protection is absolute and unconditional. There is no room to
deny adequate protection or stay relief if the claimholder is not
adequately protected regardless of its effect on the prospects for
reorganization. It is also illogical to conclude that the superpriority claim
granted under section 507(b) should be denied when the creditors
absolute and unconditional right to adequate protection or stay relief is
denied. That is the very instance when the creditor needs the
superpriority claim!
Finally, the courts acknowledgment of the anomaly caused by its
decision satisfies the courts own standard that its reading of section
507(b) must yield absurd results before the court will interpret it
differently. Based on the courts reading of section 507(b), an adequate
protection order directing the debtor to provide one additional dollar of
collateral would yield a superpriority claim if its insufficient, while an
259
Facts
At the jury trial, the court instructed the jury that if the bankruptcy court
grants a motion for adequate protection or denies stay relief and the protection
proves insufficient, the creditor is entitled to a superpriority claim. But, if the
motion is denied, the creditor is not entitled to a superpriority claim. 308 F.3d at
174-175. The trial court denied the bondholders the right to claim imprudence by
the indenture trustees for not pursuing an ordinary administrative claim because
they raised it at the eleventh hour before trial. 308 F.3d at 175. The jury
returned a special verdict finding the indenture trustees did not act imprudently
and judgment was entered in their favor. 308 F.3d at 175. The bondholders
appealed claiming the trial court should have instructed the jury that the making
of an adequate protection or stay relief motion would have resulted in a
superpriority claim under section 507(b) regardless of whether the bankruptcy
court granted any additional protection or denied the motion. 308 F.3d at 175.
ii.
Issue
The appellate court ruled the issue of whether the bondholders were
correct in their interpretation of section 507(b) would only be relevant if the
hypothetical prudent indenture trustee must be presumed to know the true legal
effect of such a motion. 308 F.3d at 175.
iii.
Holding
At the time the indenture trustees were supposed to have made a motion
for adequate protection or stay relief, the meaning of section 507(b) was
unsettled. Accordingly, the hypothetical prudent indenture trustee should not be
presumed to know the true legal effect of such a motion. Therefore, the jurys
special verdict that the trustees did not act imprudently should not be overturned.
The true meaning of section 507(b) would go to the issue of causation of
damages, but is not reached if the indenture trustees did not act imprudently in
the first place, 308 F.3d at 175-176, and the court expressly concluded it would
not decide that issue, 308 F.3d at 171.
In a concurring opinion, Judge Parker ruled the interpretation of section
507(b) did need to be determined because if the bondholders were correct, the
indenture trustees failure to have made a motion would appear a clear decision
not to take steps that would surely protect the bondholders. 308 F.3d at 179.
260
Judge Parker concurred because he concluded the denial of a motion for stay
relief or adequate protection would not create a superpriority claim under section
507(b). 308 F.3d at 179-180.
32. At Electromagnetic License Auctions, Whats For Sale?
A. Federal Communications Commission v.
NextWave Personal Communications, Inc. (In re
NextWave Personal Communications, Inc.), 200
F.3d 43 (2d Cir. 1999), cert. denied, 121 S.Ct. 298
(2000)
i. Facts
At the FCC auction in May and July 1996, NextWave made the winning
bid of $4.74 billion for 63 C-block licenses. On January 3, 1997, the FCC
conditionally granted the licenses to NextWave after NextWave submitted a plan
to bring its capital structure into compliance. On February 14, 1997, the FCC
granted NextWave the licenses conditioned on receiving the promissory notes.
On February 19, 1997, NextWave executed the notes in the amount of $4.27
billion for the unpaid portion of the purchase price. By then, the licenses were
worth less than a quarter of their purchase price. 200 F.3d at 47.
Three times, the FCC issued restructuring orders allowing winning bidders
to return their licenses in exchange for forgiveness of debt or to return some
licenses. The FCC determined not to allow bidders to retain licenses at reduced
prices. 200 F.3d at 48.
NextWave commenced a chapter 11 case on June 11, 1998 after the FCC
denied its request for more time to consider its options. The bankruptcy court
determined in an adversary proceeding that NextWave incurred its debt on
February 19, 1997 when the licenses were worth $1,023,211,000 and it had
already paid $474,364,806. Accordingly, the bankruptcy court ruled NextWaves
issuance of $4.27 billion of notes for licenses worth a little over $1 million was a
constructively fraudulent transfer, and avoided NextWaves note debt down to a
level of $548,846,194 (which together with its down payments equaled the full
value of the licenses). The district court affirmed. 241 B.R. 311 (S.D.N.Y. 1999).
261
ii. Holding
We are merely holding that NextWave may not collaterally attack or
impair in the bankruptcy courts the license allocation scheme developed by the
FCC. 200 F.3d at 55. By holding that for a price of $1.023 billion NextWave
would retain licenses for which it had bid $4.74 billion, the bankruptcy and district
courts impaired the FCCs method for selecting licensees by effectively awarding
the Licenses to an entity that the FCC determined was not entitled to them.
200 F.3d at 55.
We limit ourselves here to finding that NextWaves obligations were incurred
at the close of auction and that the transaction in which they were incurred was
therefore not constructively fraudulent. 200 F.3d at 59.
iii. Rationale
The appellate court explained that licenses are not property. Additionally,
the FCC was simply using an auction to help perform its function of allocating
electromagnetic spectrum. Congress therefore enacted 47 U.S.C. 309(j)
authorizing the FCC to develop a system for allocating spectrum through a
competitive bidding process. 200 F.3d at 51. The fact that market forces are
the technique used to achieve that regulatory purpose does not turn the FCC into
a mere creditor, any more than it turns an FCC license won at auction into a
property estate in spectrum. 200 F.3d at 54-55.
Accordingly, the court held the bankruptcy court had no authority to
allocate spectrum licenses in defiance of the FCCs determination to take the
allocation away from NextWave. If the conditions to which a license is subject
are not met, the FCC may revoke the license. It is beyond the jurisdiction of a
court in a collateral proceeding to mandate that a licensee be allowed to keep its
license despite its failure to meet the conditions to which the license is subject.
200 F.3d at 54.
The radio (or electromagnetic) spectrum belongs to no one. It is not
property that the federal government can buy or sell. It is no more governmentowned than is the air in which Americans fly their airplanes or the territorial
waters in which they sail their boats. 200 F.3d at 50. Although not owned by
the federal government, the radio spectrum is subject to strict governmental
regulation. 200 F.3d at 50. A license does not convey a property right; it
merely permits the licensee to use the portion of the spectrum covered by the
license in accordance with its terms. 200 F.3d at 51 (quoting FCC v. Sanders
Bros. Radio Station, 309 U.S. 470 (1940) ([N]o person is to have anything in the
nature of a property right as a result of the granting of a license.)).
On the issue of the constructively fraudulent transfer, the appellate court
held the date NextWave incurred its debt for the full purchase price was the date
262
of the close of the auction because the FCCs own interpretation of its own
regulations deserve a presumption of correctness. 200 F.3d at 58.
iv. Consequences of Holding
Significantly, the Second Circuits ruling that the licenses are not property
and do not create property rights changes the landscape for the fraudulent
transfer analysis. The underpinning of the courts analysis was that if NextWave
became liable for the full amount of the winning bid at the auction, then the
incurrence of debt can not be voidable because it was by definition the amount of
the market tested value of the licenses NextWave was purchasing. Therefore,
NextWave must have been receiving reasonably equivalent value in exchange
for the debt. But, if NextWave is now deemed not to have received any property
at the auction or subsequently, then how could it have received fair value in
exchange for its debt?
B. In re GWI PCS 1 Inc., 230 F.3d 788 (5th Cir. 2000)
i. Facts
On May 6, 1996, GWI was the high bidder for 14 PCS licenses. On
January 27, 1997, the FCC approved the granting of the licenses to GWI. On
March 10, 1997, GWIs subsidiaries executed notes to the FCC for the unpaid
portion of the purchase price, $954 million. 230 F.3d at 792-793. On October
20, 1997, GWIs subsidiaries commenced their chapter 11 cases and on October
29, 1997 they commenced an adversary proceeding to avoid the notes. 230
F.3d at 794.
At trial, the bankruptcy court found that although the licenses were worth
$1.06 billion when the auction closed, they had declined to $166 million by
January 27, 1997. 230 F.3d at 794. The court ruled the transfer would be
evaluated as of January 27, 1997, the date the licenses were issued. Therefore,
the transfer was constructively fraudulent because the debt incurred was $894
million in excess of the value of the licenses received.
Then, the bankruptcy court confirmed a chapter 11 plan with some
modifications it imposed to provide the FCC larger secured and unsecured
claims depending on what relief the FCC obtains on appeal.
Ultimately, the district court dismissed parts of the FCCs appeal of the
adversary proceeding and the confirmation order on the ground of equitable
mootness. 245 B.R. 59, 64 (N.D. Tex. 1999). The court affirmed the balance of
the judgments. 230 F.3d at 799.
ii. Holding
263
264
265
Second, Bankruptcy Code section 525 prohibits the FCC from revoking
licenses held by a debtor in bankruptcy upon the debtors failure to make timely
payments owed to the FCC for purchase of the licenses.
Third, [t]he FCC has not denied that the proximate cause for its
cancellation of the licenses was NextWaves failure to make the payments that
were due. It contends, however, that 525 does not apply because the FCC had
a valid regulatory motive for the cancellation.In our view, that factor is
irrelevant. When the statute refers to failure to pay a debt as the sole cause of
cancellation (solely because), it cannot reasonably be understood to include,
among the other causes whose presence can preclude application of the
prohibition, the governmental units motive in effecting the cancellation. Such a
reading would deprive 525 of all force. It is hard to imagine a situation in which
a governmental unit would not have some further motive behind the cancellation
assuring the financial solvency of the licensed entity, 123 S. Ct. at 838-839.
Some may think (and the opponents of 525 undoubtedly thought) that there
ought to be an exception for cancellations that have a valid regulatory purpose.
Besides the fact that such an exception would consume the rule, it flies in the
face of the fact that, where Congress has intended to provide regulatory
exceptions to provisions of the Bankruptcy Code, it has done so clearly and
expressly, rather than by a device so subtle as denominating a motive a
cause. 123 S. Ct. at 839.
Fourth, the FCC contended NextWaves license obligations are not debts
dischargeable in bankruptcy. This is nothing more than a retooling of
petitioners recurrent theme that regulatory conditions should be exempt from
525. No matter how the FCC casts it, the argument loses. Under the Bankruptcy
Code, debt means liability on a claim,and claim, in turn, includes any right
to paymentWe have said that claim has the broadest available definition,
and have held that the plain meaning of a right to payment is nothing more nor
less than an enforceable obligation, regardless of the objectives the State seeks
to serve in imposing the obligationIn short, a debt is a debt, even when the
obligation to pay it is also a regulatory condition. 123 S. Ct. at 839. The
appellate court had rejected the FCCs argument that timely payment of the
license obligation was a regulatory requirement and not a dischargeable debt.
The court reasoned the FCC was creating a regulatory purpose exception to
section 525. 254 F.3d at 152. The court pointed out that section 525 carves out
the regulatory purposes and statutes Congress wanted to carve out, showing
Congress did not intend a general regulatory purpose exception. 123 S. Ct. at
839.
Fifth, it is not beyond the bankruptcy courts jurisdictional authority to
discharge a debt unless it falls within an express exception to discharge. The
appellate court had rejected the FCCs argument that section 525 is inapplicable
because the U.S. Court of Appeals for the Second Circuit held the bankruptcy
court lacked jurisdiction to discharge Nextwaves license obligation and section
266
525 by its terms only applies to dischargeable debts. The D.C. Circuit Court of
Appeals reasoned the issue is whether the license obligation is dischargeable
under the Bankruptcy Code by a court of competent jurisdiction, not whether the
bankruptcy court can discharge or modify it. 254 F.3d at 152. The United States
Supreme Court agreed that except for the 9 kinds of debts saved from discharge
in 11 U.S.C. 523(a), a discharge in bankruptcy discharges the debtor from all
debts that arose before bankruptcy. 123 S. Ct. at 840.
Notably, the U.S. Court of Appeals had also rejected the FCCs argument
that section 525 does not bar actions not exempted from the automatic stay
under section 362(b)(4) as governmental regulatory actions. Such an
interpretation would be inconsistent with the plain language of section 525. 254
F.3d at 150. Moreover, section 362(b)(4) does not exempt any acts from the
automatic stay of actions to create, perfect, or enforce liens under section
362(a)(4). Therefore, the FCC is wrong that its actions were not automatically
stayed. 254 F.3d at 151.
33. Purchasing Distressed Debt Claims with Intent to
Prosecute Them Is Still Legal Elliott Associates, L.P. v.
Banco De La Nacion, 194 F.3d 363 (2d Cir. 1999)
i. Facts
In October 1995, an investment fund whose primary types of investment
included investments in distressed debtors purchased $28.75 million of
Panamanian sovereign debt for $17.5 million. In July 1996, it brought suit
against Panama for full payment. The fund was guided by a consultant and
attorney having previously purchased sovereign debt of several other countries
prior to filing lawsuits for full payment. 194 F.3d at 365-366. Panama was
finalizing its Brady Plan restructuring which is not binding on creditors unless
they consent. 194 F.3d at 366. Between January and March 1996, the fund
purchased for $11.4 million, $20.7 million of bank debt guaranteed by Peru. The
trial court found the fund timed its purchases with key events in litigation by
another fund to enforce its debt. 194 F.3d at 367.
When the fund sued to enforce its Peruvian debt claims, the district court
denied its motion for prejudgment attachment of U.S. Treasury bonds and
ultimately dismissed the funds complaint on the ground the fund violated Section
489 of the New York Judiciary Law because it purchased the Peruvian debt with
the intent and purpose to sue. 194 F.3d at 368 (quoting from 12 F. Supp. at
332).
ii. Issue
The pivotal issueis whether, within the meaning of Section 489 of the
New York Judiciary Law, Elliotts purchase of Peruvian sovereign debt was with
267
the intent and for the purpose of bringing an action or proceeding thereon,
thereby rendering the purchase a violation of law. 194 F.3d at 371.
Section 489 provides:
No person or co-partnership, engaged directly or
indirectly in the business of collection and adjustment of claims,
and no corporation or association, directly or indirectly, itself or
by or through its officers, agents or employees, shall solicit, buy
or take an assignment of, or be in any manner interested in
buying or taking an assignment of a bond, promissory note, bill
of exchange, book debt, or other thing in action, or any claim or
demand, with the intent and for the purpose of bringing an action
or proceeding thereon; provided however, that bills receivable,
notes receivable, bills of exchange, judgments or other things in
action may be solicited, bought, or assignment thereof taken,
from any executor, administrator, assignee for the benefit of
creditors, trustee or receiver in bankruptcy, or any other person
or persons in charge of the administration, settlement or
compromise of any estate, through court actions, proceedings or
otherwise. Nothing herein contained shall affect any assignment
heretofore or hereafter taken by any moneyed corporation
authorized to do business in the state of New York or its
nominee pursuant to a subrogation agreement or a salvage
operation, or by any corporation organized for religious,
benevolent or charitable purposes. Any corporation or
association violating the provisions of this section, and any
officer, trustee, director, agent or employee of any person, copartnership, corporation or association violating this seciton who,
directly or indirectly, engages or assists in such violation, is guilty
of a misdemeanor.
iii.
Holding
[W]e are convinced that, if the New York Court of Appeals, not us, were
hearing this appeal, it would rule that the acquisition of a debt with intent to bring
suit against the debtor is not a violation of the statute where, as here, the primary
purpose of the suit is the collection of the debt acquired. Consequently, we must
reverse the judgment of the district court. 194 F.3d at 372. [W]e hold that
Seciton 489 is not violated when, as here, the accused partys primary goal is
found to be satisfaction of a valid debt and its intent is only to sue absent full
performance. 194 F.3d at 381.
iv. Rationale
New York cases show Section 489s predecessor was intended to curtail
the practice of attorneys filing suit merely to obtain costs, which at that time
268
included attorney fees. 194 F.3d at 373. To violate Section 489 the primary
purpose of the debt purchase must be to enable the attorney to commence a
suit, rather than to be paid and to commence suit only if payment is not
forthcoming.
As policy matters, the appellate court also recognized that a holding
rendering debt unenforceable when purchased with the intent to sue for full
payment would add to the risk of lending to developing nations and would disrupt
or destroy the secondary market for defaulted debt. 194 F.3d at 380. Such a
holding sould also create a perverse result because it would permit defendants
to create a champerty defense by refusing to honor their loan obligations. 194
F.3d at 380 (quoting Banque de Gestion PriveeSib v. La Republica de Paraguay,
787 F. Supp. 53, 57 (S.D.N.Y. 1992)).
34. Lessons from a Failed Limited Fund Settlement
Class Action Ortiz v. Fibreboard Corp., 119 S.
Ct. 2295 (1999)
i. Facts.
To try to settle all its present and future asbestos liability, Fibreboard
approached certain leading plaintiffs attorneys. The plaintiffs attorneys
represented plaintiffs holding then pending claims. But, they also negotiated on
behalf of potential future claimants. Fibreboards insurance companies had been
contesting coverage, but also agreed to join the settlement and to provide $1.535
billion. Fibreboard had a net worth of approximately $235 million (excluding
asbestos liability), and agreed to furnish $10 million to the settlement fund of
which all but $500,000 came from other insurance. Just prior to the proposed
class action settlement, one of the plaintiffs law firms procured a separate
settlement for its 45,000 pending claims. In that settlement, the settlement
amounts were higher than average with one-half due on closing and the
remainder contingent on either a global settlement or Fibreboards success in its
litigation against its insurers.
At the plaintiffs firms insistence, the insurers reached an additional
settlement under which they would provide $2 billion in coverage if the class
action settlement did not win approval.
Under the putative settlement, Fibreboard and the insurers would obtain
full releases from class members in exchange for setting up the settlement fund
in a trust. Claimants would be required to try to settle with the trust and had to
exhaust mediation, arbitration, and a mandatory settlement conference before
litigating. Once litigating, the claimants would be limited to no more than
$500,000 and would be unable to obtain prejudgment interest or punitive
damages. Claims resolved without litigation would be paid over 3 years. Claims
resolved with litigation would be paid over 5 to 10 years.
269
Rationale
(a) Historical Limited Fund Mandatory
Class Actions
In Dickinson v. Burnham, 197 F.2d 973 (2d Cir.), cert. denied, 344 U.S.
875 (1952), investors furnished $600,000 to save a failing company. The
monies were misused, but a pool remained of secret profits on the investment.
To allocate the fund, the court approved the class action.
In Guffanti v. National Surety Co., 196 N.Y. 452 (1909), the defendant
converted money furnished him for steamship tickets, but had posted a $15,000
bond before being adjudicated bankrupt. The appellate court sustained the
equitable class suit citing the limited fund subject to pro rata distribution.
In early creditors bills equity would order a master to call for all creditors
to prove their debts, to take account of the entire estate, and to apply the estate
in payment of the debts. See 1 J. Story, Commentaries on Equity Jurisprudence
547, 548 (I. Redfield 8th rev. ed. 1861).
(b) Criteria for Limited Fund Class
Actions under Fed. R. Civ. P.
23(b)(1)(B).
There are 3 requirements. First, the fund must be insufficient to pay all
the claims when the maximum fund is compared to the maximum potential
claims. The limited fund creates the necessity for the class action.
Second, the whole of the inadequate fund must be devoted to the
overwhelming claims. Otherwise, the defendant may procure a deal better than
available to claimants in seriatim litigation.
271
Causes of Reversal
The trial court failed to demonstrate that the fund was limited except by
the agreement of the parties, and it showed exclusions from the class and
allocations of assets at odds with the concept of limited fund treatment and the
structural protections of Rule 23(a) explained in Amchem.170 119 S. Ct. at 2316
(footnote added).
In Amchem, the Supreme Court was asked to reverse the Third Circuits
reversal of the district courts approval of an asbestos class action settlement
under Fed. R. Civ. P. 23(b)(3). To satisfy the requirements of Rule 23(b)(3), the
requirements of Rule 23(a)171 must be satisfied and (1) common questions must
169 Fed.
272
predominate over any questions affecting only individual members and (2) class
resolution must be superior to other available methods for the fair and efficient
adjudication of the controversy. Amchem, 521 U.S. at 615.
The Supreme Court ruled common questions did not predominate. For
instance, some claimants manifested injury from asbestos and some were simply
exposed. Some had cancer. Some had only asymptomatic pleural changes.
Moreover, the state law applicable to each varied. Amchem, 521 U.S. at 624.
The Supreme Court also ruled the settlement flunked the adequacy-ofrepresentation requirement in Fed. R. Civ. P. 23(a)(4). This focuses on both the
plaintiffs and the competency and conflicts of class counsel. 521 U.S. at 625,
625n.20. The plaintiffs had diverse medical conditions, yet no subclasses were
established to deal with the conflicts between the currently injured who want
generous immediate payments and the exposure-only plaintiffs who want an
inflation protected fund for the future. 521 U.S. at 626. The settlement embodied
implicit allocation decisions. For instance, there would be no adjustments for
inflation. Only a few claimants a year could opt out. And, loss-of-consortium
claims were extinguished with no compensation. 521 U.S. at 627. There was no
assurance the named plaintiffs operated under a proper understanding of their
representational responsibilities. 521 U.S. at 628.
On the issue of whether constitutional notice could ever be given to
exposure-only claimants, the Supreme Court opined: In accord with the Third
Circuit, however, see 83 F.3d at 633-634, we recognize the gravity of the
question whether class action notice sufficient under the Constitution and Rule
23 could ever be given to legions so unselfconscious and amorphous. 521 U.S.
at 628. Notably, the limited fund situation makes this problem more soluble
because the appointment of a guardian ad litem to obtain for future claimants
what might otherwise cease to exist (i.e., their fair share of the fund) has no real
alternative.
The limited fund finding is comprised of two elements, namely, the
maximum claim amount and the maximum fund amount. Here, the fund assets
would be limited if the total of demonstrable claims would render the insurers
insolvent or if the policies had limits less than the total claims, in either case by
274
claims will inescapably compromise the claims of absent class members, while
others require a showing of only a substantial probability (less than a
preponderance, but more than a mere possibility) that claims will exceed fund
assets. 119 S. Ct. at 2316n.26.
Thus, the Supreme Court demonstrated acute insights into the workings of
the industry of plaintiffs attorneys in the asbestos industry. In short, these
attorneys obtain percentages of all collections. They have obvious economic
motivations to collect sooner rather than later. Therefore, from any fund, they
would have an economic motivation to allocate more to the current claimants
than the future claimants because they would receive the money faster. This
conflict led the Supreme Court to reverse the approval of a settlement these
attorneys made between the present and future claimants, both represented, at
least in part, by the same attorneys.
Additionally, the Supreme Court ruled the settlement fell short in respect of
the inclusiveness of the class. The class excluded 45,000 pending claims as well
as claimants who had previously sued Fibreboard and withdrew their claims with
a right to reassert them on development of an asbestos related malignancy. The
Supreme Court observed the 45,000 excluded claims may be as much as a third
of the class and were represented by class counsel. 119 S. Ct. at 2319. The
Supreme Court left open the issue of how far a mandatory settlement class may
be depleted by prior dispositions of claims and still qualify as such a class. 119
S. Ct. at 2319. The Supreme Court also mentioned without deciding that it might
make a difference if the excluded claimants were receiving comparable benefits.
Id. Here, that was not the case.
The Supreme Court also overturned the settlement due to the lack of
fairness of distribution within the class. When it is not possible to do a straight
forward pro rata distribution, the settlement must seek equity by providing for
procedures to resolve the difficult issues of treating such differently situated
claimants with fairness as among themselves. 119 S. Ct. at 2319. First, there
were no homogenous subclasses of present claimants and future claimants with
separate attorneys for each. The named plaintiffs were not named until after the
settlement was reached. The adequacy of the named plaintiffs and counsel are
both important for fairness purposes. Id. Moreover, the class distribution
scheme did not differentiate between persons exposed to asbestos before and
after 1959 even though the insurance policies did not cover liability for exposure
after 1959. Therefore, claimants exposed before 1959 had more valuable
claims, but did not receive more under the settlement.
The Supreme Court rejected the argument that all claimants common
interests in a global settlement override the foregoing deficiencies. The court
ruled the settlement can not under Fed. R. Civ. P. 23(e) override Fed. R. Civ. P.
23(a) and 23(b). 119 S. Ct. at 2320-2321.
275
276
v.
277
The mortgagee's secured claim must be in its own class. If the secured
claim is fully repaid in cash by refinancing, it remains impaired and may reject the
plan, unless it is also paid postpetition interest and all other valid charges in
which case it appears unimpaired under section 1124(1). Neither will its
279
280
C.
According to most courts, the cardinal rule is: "Thou shalt not classify
similar claims differently in order to gerrymander an affirmative vote on a
reorganization plan...." In re Greystone III Joint Venture, 948 F.2d 134, 139 (5th
Cir. 1991), withdrawn in part, reinstated in part on reh'g (5th Cir. 1992),173 cert.
denied, 113 S.Ct. 72 (1992). Accord Boston Post Road Limited Partnership v.
FDIC (In re Boston Post Road Limited Partnership), 21 F.3d 477 (2d Cir.
1994)(absent a legitimate business reason for separately classifying mortgagee's
deficiency claim and trade claims held by claimants not essential to debtor's
future, separate classification is unlawful), cert. denied, 513 U.S. 1109 (1995);
John Hancock Mutual Life Insurance Co. v. Route 37 Business Partner
Associates (In re Route 37 Business Partner Associates), 987 F.2d 154, 23 BCD
1537 (3d Cir. 1993); In re 500 Fifth Avenue Associates, 148 B.R. 1010, (Bankr.
S.D.N.Y. 1993), aff'd No. 93 Civ. 844 (May 21, 1993) (Freeh, D.J.)(stayed
pending appeal to Second Circuit); In re One Times Square Associates, 159 B.R.
695 (Bankr. S.D.N.Y. 1993); In re Pine Lake Village Apartment Co., 19 B.R. 819
(Bankr. S.D.N.Y. 1982); cf. In re Lumber Exchange Bldg. Ltd. Partnership, 968
F.2d 647 (8th Cir. 1992); In re Bryson Properties, XVIII, 961 F.2d 496 (4th Cir.
1992). In the instance of a nonrecourse, undersecured mortgage which only has
a deficiency claim by virtue of Bankruptcy Code section 1111(b), the deficiency
claim can not be separately classified on the basis that it does not exist outside
bankruptcy while the trade claims do. In re 500 Fifth Avenue Associates, 148
B.R. 1010 (Bankr. S.D.N.Y. 1993), aff'd No. 93 Civ. 844 (May 21, 1993) (Freeh,
D.J.)(stayed pending appeal to Second Circuit); In re D&W Realty Corp., 165
B.R. 167 (S.D.N.Y. 1994). reversing 156 B.R. 140 (Bankr. S.D.N.Y. 1993)
(section 1111(b)(1)(A) mandates separate classification of mortgagee's
deficiency claim).
Conversely, based on any of three theories, some courts allow or even
mandate separate classification of the nonrecourse mortgagee's section 1111(b)
deficiency claim. One theory is that the section 1111(b) deficiency claim is not
substantially similar to the other unsecured claims because the deficiency claim
will not exist in other chapters of the Bankruptcy Code. Another theory is that the
best interests test in Bankruptcy Code section 1129(a)(7) can almost never be
satisfied if the deficiency claim is in the same class as the other unsecured
claims because it dilutes what would be available to the other unsecured claims
that would not have to share with it in chapter 7. The third theory is that the
mortgagee was not supposed to have a veto power over every single asset
173In re Woodbrook Associates, 19 F.3d 312 (7th Cir. 1994), takes issue with Greystone,
observing:
"Thus, we cannot accept the proposition implicit in Greystone that separate
classification of a 1111(b) claim is nearly conclusive evidence of a debtor's
intent to gerrymander an affirmative vote for confirmation...."
281
282
1129(a)(10). The bankruptcy court's opinion in D&W Realty Corp. creates the
result opposite to what section 1111(b) was intended to create.
Notably, when there is a good business reason for separate classification,
the nonrecourse mortgagee's deficiency claim can be separately classified, as
recognized by the same circuit that decided Greystone. Heartland Federal
Savings & Loan Assoc. v. Briscoe Enterprises, Ltd. (In re Briscoe Enterprises,
Ltd.), 994 F.2d 1160 (5th Cir. 1993). In Briscoe the first mortgagee's deficiency
claim and the city's deficiency claim were separately classified, but given the
same treatment. By that means, an accepting class of impaired claims was
created because the city accepted. The court applied the clearly erroneous
standard, apparently viewing classification as a fact question, and found the
bankruptcy court was not clearly erroneous in approving the separate
classification because the city's $20,000 per month rental assistance was
essential to the underlying project. Significantly, the test applied by the Fifth
Circuit was whether "the debtor's ongoing business would be affected if separate
classification were not permitted." 994 F.2d at 1167.
Similarly, in Steelcase Inc. v. Johnston (In re Johnston), 21 F.3d 323 (9th
Cir. 1994), the court affirmed confirmation of a plan separately classifying one
claim arising from a guaranty given by the debtor because (i) the claim was being
litigated, (ii) the claim was partially secured by assets of an affiliate of the debtor,
and (iii) to the extent the claim were allowed, it would be paid faster than all other
unsecured claims. All claims in the case were supposed to obtain full payment
plus interest over time.
Regrettably, the United States Supreme Court did not rule on the
classification issue because it was not raised in Bank of America v. 203 North
LaSalle Street Partnership, 119 S. Ct. 1411, 1415n.7 (1999).
D. When Separate Classification is Allowed, Unfair
Discrimination Is Not.
In the unlikely event that the mortgagee's unsecured deficiency claim is
separately classified for a valid reason, the plan proponent must still obtain an
accepting, impaired creditor class. If the plan proponent must offer the class of
trade claims 50 cents on the dollar to accept, it can not offer the mortgagee's
deficiency claim 2 cents on the dollar. That treatment would run afoul of the
prohibition against unfair discrimination in respect of a dissenting class (the
mortgagee's deficiency class). Bankruptcy Code section 1129(b)(1). Not so,
however, in the Seventh Circuit. There, based on the rationale of In re
Woodbrook Associates, 19 F.3d 312 (7th Cir. 1994), the mortgagees
nonrecourse deficiency claim must be separately classified, and because the
deficiency claim would receive nothing in chapter 7, it is okay to pay it 16% of its
claim while other trade claims are paid in full, and in fact, artificially impaired to
create an impaired accepting class. In re 203 N. LaSalle Street Partnership, 126
283
F.3d 955 (7th Cir. 1997), reversed on other ground, Bank of America v. 203
North LaSalle Street Partnership, 119 S. Ct. 1411 (1999).
In the unlikely event that the mortgagee's unsecured deficiency claim is
separately classified for a valid reason, the plan proponent must still obtain an
accepting, impaired creditor class. If the plan proponent must offer the class of
trade claims 50 cents on the dollar to accept, it can not offer the mortgagee's
deficiency claim 2 cents on the dollar. That treatment would run afoul of the
prohibition against unfair discrimination in respect of a dissenting class (the
mortgagee's deficiency class). Bankruptcy Code section 1129(b)(1). Not so,
however, in the Seventh Circuit. There, based on the rationale of In re
Woodbrook Associates, 19 F.3d 312 (7th Cir. 1994), the mortgagees
nonrecourse deficiency claim must be separately classified, and because the
deficiency claim would receive nothing in chapter 7, it is okay to pay it 16% of its
claim while other trade claims are paid in full, and in fact, artificially impaired to
create an impaired accepting class. In re 203 N. LaSalle Street Partnership, 126
F.3d 955 (7th Cir. 1997).
E. When The Obstacles of Separate Classification and Unfair
Discrimination are Overcome, The New Value Obstacle
Remains.
Assuming the debtor can separately classify the trade claims and the
mortgagee's deficiency claim to create an accepting class for purposes of
Bankruptcy Code section 1129(a)(10), and assuming the mortgagee deficiency
class rejects the plan, but that there is no unfair discrimination, the absolute
priority rule remains an obstacle. Pursuant to Bankruptcy Code section
1129(b)(2)(B)(ii), no class junior to the rejecting mortgagee deficiency class can
receive or retain any property under the plan on account of such junior claim or
interest unless the mortgagee's deficiency claim is paid in full. Therefore, the
only basis on which the debtor may potentially retain ownership of the
reorganized debtor is based on the dictum in Case v. Los Angeles Lumber
Products Co., 308 U.S. 106 (1939), suggesting old owners my retain property by
making a new contribution of value in money or moneys worth, necessary for the
reorganization and in an amount commensurate with the value of the reorganized
entity. Notably, not all courts believe the new value exception survived
enactment of the Bankruptcy Code, and in any event, it is clear that promises of
future labor (sweat equity) do not count as new value. Norwest Bank
Worthington v. Ahlers, 485 U.S. 197 (1988). In Bank of America v. 203 North
LaSalle Street Partnership, 119 S. Ct. 1411, 1417 (1999), the Supreme Court
again wrote it was not deciding whether the statute includes a new value
corollary or exception because the plan at issue would not satisfy the statute.
The Supreme Court did opine that while it has doubt old equity is the only source
of significant capital for reorganizations, old equity may well be in the best
position to make a go of the reorganized enterprise and so may be the party
most likely to work out an equity-for-value reorganization. 119 S. Ct. at 1421.
284
The circuit courts are split as to whether the new value exception survived.
Compare Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner
Mall Partnership), 2 F.3d 899 (9th Cir. 1993)(new value exception survived and is
actually not an exception to the absolute priority rule under which an exclusive
warrant to repurchase the debtor is granted to old equity before creditors are paid
in full, but rather a corollary principle describing limitations of the rule), cert.
granted, 114 S. Ct. 681 (1994); with Coltex Loop Central Three Partners, L.P. v.
BT/SAP Pool C Associates, L..P. (In re Coltex Central Three Partners, L.P.), 138
F.3d 39 (2d Cir. 1998) (debtors principals exclusive right to retain the debtors
property on making a capital contribution is itself property and is on account of
principals prior subordinated position in the debtor when the market for the
property is not adequately tested and other creditors unsuccessfully seek to
propose chapter 11 plan), and Travelers Ins. Co. v. Bryson Properties, XVIII (In
re Bryson Properties, XVIII), 961 F.2d 496, 504 (4th Cir.), cert. denied, 113 S.Ct.
191 (1992) (granting old equity the exclusive right to purchase equity in the
reorganized debtor violates Bankruptcy Code section 1129(b)(2)(B)(ii)).
Bonner Mall recites the requirements from Case v. Los Angeles Lumber,
308 U.S. 106, 121-122 (1939), to satisfy the new value "corollary principle," 2
F.3d at 906, as follows: The new value must be new, substantial, money or
money's worth, and necessary for a successful reorganization, and reasonably
equivalent to the value or interest received. 2 F.3d at 908. The court's rationale
for holding the principle survived enactment of the Bankruptcy Code and does
not violate the rule in section 1129(b)(2)(B)(ii) that equity shall not receive
property "on account of" its old interests if a more senior rejecting class is not
paid in full, is that there is not a sufficient level of causation. 2 F.3d at 899.
Only money paid by the effective date counts as new value, and a
$32,000 payment amounting to less than 0.5% of the unsecured claims does not
pass the substantial test. Liberty National Enterprises v. Ambanc La Mesa
Limited Partnership (In re Ambanc La Mesa Limited Partnership), 115 F.3d 650
(9th Cir. 1997).
In Steelcase Inc. v. Johnston (In re Johnston), 21 F.3d 323 (9th Cir. 1994),
the court held that once the bankruptcy court finds a plan is feasible and will pay
each dissenting class in full as of the effective date, it is not a violation of the
absolute priority rule to distribute property and funds to the debtor's owner after
the effective date, but prior to completion of a stream of payments to the rejecting
classes.
In Coltex, the mortgagee held a $7.2 million mortgage claim against a 10story office building, the debtors sole asset. The bankruptcy court found the
property was worth $2.95 million. There were tax claims of $355,000 and
unsecured trade claims of $123,000. The case was filed the day of the
foreclosure sale.
285
286
the secured and tax claims, the Coltex plan creates an impression there was little
or no new value because, presumably, the property can be mortgaged to
replenish a good portion of the $3.4 million new value infusion.
The Coltex plan, however, may have been more realistic than the
mortgagees plan which would pay unsecured claims in full, other than insider
claims and the mortgagee deficiency claim. The Second Circuit is somewhat
contradictory when it reasons the property should have been exposed to market
forces, but also emphasizes the mortgagees plan would pay unsecured claims.
If the market had shown the property would sell for more than $2.95 million, then
the mortgagees secured claim would have increased. There still would be no
value available for unsecured claims. Thus, the question becomes why
distributions to unsecured claimholders should matter if the claims are being paid
in accordance with their entitlements.
Lets assume the property had been marketed and was shown to be worth
$3.5 million. If the principals had borrowed $3 million against the property and
infused the last $500,000, then there would be no issue as to whether the
mortgagee obtained fair value. Next, lets assume the principals infuse another
$125,000 to pay all the unsecured claims other than the mortgagees deficiency
claim. If the mortgagee objects, would the payment of unsecured trade claims be
unfair discrimination under section 1129(b)(1)? Would the principals retention of
the property be on account of their prior subordinated position in the debtor?
F.
287
ii.
The Issue
Background.
Virtually all the section 1111(b)(1) decisions agree that the Bankruptcy
Code grants deficiency claims to undersecured nonrecourse mortgagees to
prevent the recurrence of the result in In re Pine Gate Associates, Ltd., 2 B.C.D.
1478 (Bankr. N.D. Ga. 1977) (cramdown in undersecured, nonrecourse, single
asset, real estate case). Taken to its logical extreme, if any sale under a plan
deprives the mortgagee of its deficiency claim, then all chapter 11 plans should
provide for sales ten or twenty years in the future as mechanisms to circumvent
the law.
b)
Paradoxically, some courts will grant stay relief to a mortgagee if there will
be assets left in the estate after the mortgagee's foreclosure and without
foreclosure the mortgagee's nonrecourse claim will convert into a recourse
deficiency claim that will consume the bulk of the remaining estate.
In In re Canal Place Ltd. Partnership, 921 F.2d 569, 578 (5th Cir. 1991),
the Fifth Circuit affirmed a bankruptcy court's order granting stay relief, based in
part, on the beneficial effect of using foreclosure to eliminate a recourse claim
against the remaining estate.
In Canal Place the bankruptcy court granted stay relief to the first
mortgagees on the grounds there was concededly no equity (the deficiency was
$130 million) and "the implicit objective of the Plan is to delay foreclosure by
Aetna and Travelers until the Debtor can either sell Canal Place or wait for the
return of the favorable office and retail market." 921 F.2d at 577. Notably, the
principals were offering to infuse $18.4 million into the property.
Notably, to buttress its result, the bankruptcy court had ruled that by
granting stay relief to the first mortgagees it was improving prospects for other
unsecured claimholders because they will obtain more from the few
288
unencumbered assets when the first mortgagees are deprived of their deficiency
claims under section 1111(b)(1). In sum and substance, the court held that a
transfer of the collateral security by foreclosure would deprive the mortgagees of
their deficiency claims if the foreclosure were before or contemporaneous with
confirmation. The court was not asked whether the deficiency claims would be
lost if the transfers were delayed for up to two years after confirmation, as here.
iii.
Mortgagor Cannot Gamble with Mortgagee's
Collateral.
In In re Western Real Estate Fund, Inc., 75 B.R. 580, 589 (Bankr. W.D.
Okla. 1987), reversed in part on other grounds, see In re Western Real Estate
Fund, Inc., 109 B.R. 455, 457 (Bankr. W.D. Okla. 1990), the court wrote it "is not
required to, and does not, determine the length of time which may be allowed to
transpire after confirmation before a proposed sale or the degree of specificity
required in the terms and conditions of any proposed sale in order to permit the
application the ' 1111(b)(1)(A)(ii) exception to the 'preferred status' afforded by '
1111(b)(1)(A)." The court denied confirmation of the plan because, among other
things, it deprived the mortgagee of its deficiency claim based on a
postconfirmation sale "at some unspecified future time, to some unspecified
purchaser, at an unspecified price and on unspecified terms." 75 B.R. at 589.
After the foregoing decision, the debtor amended its plan to provide the first
mortgagees with secured and unsecured claims. The court confirmed the plan
and the first mortgagees appealed on the ground the interest rate was too low.
On appeal, the first mortgagees won. Because the debtor could not afford to pay
a higher interest rate, it again amended its plan to provide for the abandonment
of the collateral security to the first mortgagees. The debtor contended the
abandonment was equivalent to a sale under the plan, which would deprive the
first mortgagees of their deficiency claims. The first mortgagees argued they
should have deficiency claims because the abandonment was occurring two and
one half years after confirmation. Significantly, the court disagreed, not because
a sale could occur two and one half years after confirmation, but rather because
as to the first mortgagees they were obtaining their collateral on confirmation.
The court reasoned the reversal had undone the first confirmation and started the
clock all over again. 109 B.R. at 466.
In In re Georgetown Park Apartments, Ltd., 103 B.R. 248 (Bankr. S.D. Cal.
1989), the debtor tried to eliminate the mortgagee's deficiency claim by proposing
a plan calling for a sale of the property four years after confirmation, with interest
payments to be made from confirmation to sale. The court denied approval of
the disclosure statement because the plan was not confirmable. The court
reasoned that Congress granted nonrecourse mortgagees deficiency claims to
prevent the debtor from speculating with the mortgagee's collateral value. Only if
the collateral is sold will the mortgagee's lien be satisfied before equity holders
realize any value. The court opined that:
289
entity's stock would be owned by the reorganized debtor. The court precluded
that result by ruling the mortgagee must be allowed to credit bid at the sale. That
would prevent confirmation. Therefore, the court granted stay relief. 71 B.R. at
193.
John Hancock Mutual Life Insurance Co. v. California Hancock, Inc. (In re
California Hancock, Inc.), 88 B.R. 226 (B.A.P. 9th Cir. 1988), also held the
mortgagee must be allowed to credit bid at the sale. There, the debtor proposed
a plan attempting to eliminate the mortgagee's deficiency claim by selling the
collateral to a third party subject to the secured portion of the mortgage claim
while requiring the buyer to grant the reorganized debtor a net profits interest in
the collateral.
Notably, the court ruled the purpose of allowing the mortgagee to credit
bid was to enable it to obtain "the full amount of any value in the property..." 88
B.R. at 231 (emphasis in original). The court ruled that the retention by the
debtor of the profits interest caused the mortgagee to obtain less than the full
value. Id.
In re 222 Liberty Associates, 108 B.R. 971 (Bankr. E.D. Pa. 1990), also
holds the undersecured mortgagee must be allowed to credit bid at a sale of
collateral under the plan.
iv.
291
Facts.
Holding
The Supreme Court, without deciding whether the new value exception
exists, ruled the plan violated 1129(b)(2)(B)(ii) in any event because the
interest holders were retaining interests on account of their preexisting interests
292
notwithstanding that the mortgagee rejected the plan in its capacity as the holder
of the deficiency claim which was the only claim in its class. 119 S. Ct. at 1417.
Under a plan granting an exclusive right, making no
provision for competing bids or competing plans, any
determination that the price was top dollar would necessarily
be made by a judge in bankruptcy court, whereas the best
way to determine value is exposure to a market.This is a
point of some significance, since it was, after all, one of the
Codes innovations to narrow the occasions for courts to make
valuation judgments, as shown by its preference for the
supramajoritarian class creditor voting scheme in
1126(c)In the interest of statutory coherence, a like disfavor
for decisions untested by competitive choice ought to extend
to valuations in administering subsection (b)(2)(B)(ii) when
some form of market valuation may be available to test the
adequacy of an old equity holders proposed contribution.
Whether a market test would require an opportunity to
offer competing plans or would be satisfied by a right to bid for
the same interest sought by old equity, is a question we do
not decide here. It is enough to say, assuming a new value
corollary, that plans providing junior interest holders with
exclusive opportunities free from competition and without
benefit of market valuation fall within the prohibition of
1129(b)(2)(B)(ii).
Bank of America v. 203 North LaSalle Street Partnership, 119 S. Ct. 1411, 142324 (1999) (Souter, J.) (citations and footnotes omitted)
293
iii.
Rationale
294
here. It is enough to say, assuming a new value corollary, that plans providing
for junior interest holders with exclusive opportunities free from competition and
without benefit of market valuation fall within the prohibition of
1129(b)(2)(B)(ii). 119 S. Ct. at 1424.
iv.
How can the prepetition interest holders compete with the mortgagee?
Clearly, at an auction of the property free and clear of the mortgage lien, the
mortgagee can bid up to the amount of the sum of its secured claim and
deficiency claim because the amount bid, less administrative expenses, will all go
back to the mortgagee. If this is the test, the old interest holders cant win!
Alternatively, perhaps the test is whether a third party would bid for the
property (subject to the secured claim) more than the present value of $4.1
million that the old interest holders were offering. Indeed the Supreme Court
suggested as much when it wrote: Whether a market test would require an
opportunity to offer competing plans or would be satisfied by a right to bid for
the same interest sought by old equity, is a question we do not decide here.
119 S.Ct. at 1424 (emphasis supplied). Notably, the Supreme Court rendered its
ruling in the context of figuring out whether the amount of new value was
sufficient. Accordingly, it would be illogical to assume the Supreme Court
intended that the mechanism for determining whether the old interest owners are
paying sufficient new value would be a mechanism to ensure that they would be
unsuccessful.
The Supreme Court also alluded to the possibility of having competing
plans. How is the court supposed to decide which plan to confirm?
v.
295
330 (citing Chemical Bank v. First Trust of New York (In re Southeast Banking
Corp.), 156 F.3d 1114 (2d Cir. 1998)).
On the voting issue the court ruled the senior claimant could not enforce
the provision of the subordination agreement entitling the senior claimant to vote
the subordinated debt. 246 B.R. at 330-332. The court reasoned that (a) it
would defeat the purpose of the Code to allow parties to provide by contract that
the provisions of the Code should not apply, 246 B.R. at 331, (b) the definition of
subordination shows it affects priorities, but not voting rights, and (c) Bankruptcy
Rule 3018(c) requires the claimholder to vote. Id.
The decision does not cite jurisprudence showing a subordination is an
equitable assignment of a claim to the senior claimant. In re Itemlab Inc., 197 F.
Supp. 194 (E.D.N.Y. 1961); In re Credit Indus. Corp, 366 F.2d 402 (2d Cir. 1966);
In re Alda Commercial Corp., 300 F.Supp. 294 (S.D.N.Y. 1969); Meinhard, Greeff
& Co. v. Brown, 199 F.2d 70 (4th Cir. 1952); Walker v. Brown, 165 U.S. 654
(1987) (equitable lien). Additionally, parties can easily transfer voting rights by
having the junior claimant take a junior participation in the senior creditors claim.
H.
The Answer.
Except in jurisdictions following Woodbrook, whenever the dissident,
undersecured mortgagee's deficiency claim in a single asset case would equal
more than one-third of total general unsecured claims, the debtor can only
confirm a plan if:
the plan validly provides for sale of the collateral and deprives
the nonrecourse mortgagee of a deficiency claim under
Bankruptcy Code section 1111(b)(1)(A)(ii);
the plan provides for a sale of the collateral within the meaning
of Bankruptcy Code section 1129(b)(2)(A)(ii).
296
297
Facts
Holding
299
The court reasoned the plain language of section 365(c) bars assumption
(absent consent) when an executory is not assignable due to the identity of the
contracting party because the plain language does not produce a patently
absurd result. But, the court reached a patently absurd result. Catapult had 2
licenses and improved its balance sheet with the help of chapter 11. If Catapults
license was enforceable prior to bankruptcy, how is it not absurd that Catapult
should lose its license after it improves its balance sheet?
The court rebuts the argument that its reading of section 365(c)(1) effaces
section 365(f)(1) by agreeing with other circuits that section 365(c)(1) only
impairs the operation of section 365(f)(1) when applicable law prohibits
assignment on the rationale the identity of the contracting party is material to the
agreement. In re James Cable Partners, 27 F.3d 534 (11th Cir. 1994); In re
Magness, 972 F.2d 689 (6th Cir. 1992).
The court discounts the legislative history because it believes the statute
is not ambiguous and the legislative history actually relates to a bill that was
ultimately superceded by the actual legislation. The legislative history, however,
shows Congress intended exactly the opposite of the courts holding. It provides:
This amendment makes it clear that the
prohibition against a trustees power to assume
an executory contract does not apply where it
is the debtor that is in possession and the
performance to be given or received under a
personal service contract will be the same as if
no petition had been filed because of the
personal service nature of the contract.
H.R. Rep. No. 1195, 96th Cong., 2d Sess. 27(b) (1980).
To rebut the policy argument that its reading of section 365(c)(1) is contrary to
sound bankruptcy policy, the court simply rules that Congress is the policy
maker, not the courts. Notably, numerous courts have held section 365(c)(1)
should be interpreted based on the actual test (i.e., is the debtor in possession
actually assigning the contract to a third party, which assignment would run afoul
of applicable law?), rather than the hypothetical test (i.e., if the debtor in
possession attempted to assign the contract, would the assignment be permitted
under applicable law?). See, e.g., Institut Pasteur v. Cambridge Biotech Corp.,
104 F.3d 489 (1st Cir.), cert. denied, 117 S. Ct. 2511 (1997); Texaco Inc. v.
Louisiana Land and Expl. Co., 136 B.R. 658 (M.D. La. 1992); In re GP Express
Airlines, Inc., 200 B.R. 222 (Bankr. D. Neb. 1996); In re Am. Ship Bldg. Co., 164
B.R. 358 (Bankr. M.D. Fla. 1994); In re Fulton Air Service, Inc., 34 B.R. 568
(Bankr. N.D. Ga. 1983). Contra In re West Electronics, Inc., 852 F.2d 79 (3d Cir.
1988); In re James Cable Partners, L.P., 27 F.3d 534 (11th Cir. 1994); In re
Catron, 158 B.R. 629 (E.D. Va. 1993), affd without opinion, 25 F.3d 1038 (4th Cir.
1994).
300
B.
Facts.
Issue.
The instant decision resolved only one ground Kmart asserted to block
assumption, namely that 11 U.S.C. 365(c)(1) bars assumption of the
agreement if the agreement can not be assigned.
iii.
Holding.
Without deploying either the actual test or the hypothetical test, the court
held Footstar could assume the agreement even if it could not assign the
agreement. 323 B.R. at 570.
iv.
Rationale.
The court ruled the plain meaning of 11 U.S.C. 365(c)(1) does not bar
Footstars assumption of the agreement because it bars the trustee and not the
debtor in possession from assuming contracts under certain circumstances. 323
B.R. at 570.
11 U.S.C. 1107(a) provides:
Subject to any limitations on a trustee serving in a case under this
chapter, and to such limitations or conditions as the court
prescribes, a debtor in possession shall have all the rights, other
than the right to compensation under section 330 of this title, and
powers, and shall perform all the functions and duties, except the
duties specified in sections 1106(a)(2),(3), and (4) of this title, of a
trustee serving in a case under this chapter.
Footstar observes that no provision of the Banrkuptcy Code states in
words or substance that references in the Code to trustee are to be construed to
meandebtor or debtor in possession. A basic misconception, in this Courts
view, underlies the three Circuit Court decisions adopting the hypothetical test,
in that all three proceed from the premise, expressed or unstated, that trustee
as used in Section 365(c)(1) means debtor in possession. 323 B.R. at 571.
301
Facts
Issue
302
iii.
Holding
No. Review of this Circuits law, however, reveals that our adoption today
of the actual test, in resolving the availability of 365(e)(2)(A)s exception, is
consistent with prior caselaw. 440 F.3d at 249.
iv.
Rationale
303
D.
i.
Facts
Fleming was a wholesale supplier of grocery products. It had two supply
contracts with Albertsons, one of which specified that Fleming would supply
Albertsons from its Tulsa facility which had been constructed and operated by
Albertsons. Use of the Tulsa facility allowed Albertsons to continue using its
electronic ordering systems and order codes, "recognizing the critical importance
of consistency in the competitive grocery industry." 499 F.3d at 302-303.
After Fleming commenced its chapter 11 case, it sold and assigned its
assets to C&S Acquisition LLC, and provided it the right to designate third party
purchasers for certain assets including the supply contracts with Albertsons. 499
F.3d at 303. C&S designated AWG. Fleming closed the Tulsa facility and at
AWG's direction, rejected its Tulsa lease with court approval. 499 F.3d at 303.
"Neither Albertson's nor Fleming could operate the Tulsa Facility profitably." 499
F.3d at 307. Fleming also requested an order approving its assumption and
assignment to AWG of the two supply agreements with Albertsons. Albertson
objected on the ground it would suffer a real and cognizable economic detriment
from contravention of the essence of the contract embodied in the term
"'supplyfrom the Tulsa Facility.'" 499 F.3d at 303. AWG countered with
evidence that "Albertsons would be able to purchase its products from AWG at
the same price and on the same terms that Albertson's expected to receive from
Fleming, pursuant to the FSA's, including freight charges." 499 F.3d at 304.
The bankruptcy court denied approval of the assignment of the Tulsa
supply contract to AWG on the ground that fulfillment from the Tulsa facility is an
essential element of the agreement. 499 F.3d at 304. The district court affirmed.
ii.
Issues
Holdings
1092 (3d Cir. 1990). 499 F.3d at 305-306. "The resolution of this dispute does
not depend on whether a term is 'economically material.' Rather, the focus is
rightly placed on the importance of the term within the overall bargained-for
exchange; that is, whether the term is integral to the bargain struck between the
parties (its materiality) and whether performance of that term gives a party the full
benefit of his bargain (its economic significance)." 499 F.3d at 306.
No. "Section 365(f)(1) is not limited to explicit anti-assignment provisions.
Provisions which are so restrictive that they constitute de facto anti-assignment
provisions are also rendered unenforceable. See In re Rickel Home Ctrs., Inc.,
240 B.R. 826, 831-32 (D. Del. 1999)(citing Joshua Slocum, 922 F.2d at 1090)."
499 F.3d at 307.
"We recognize that a fine line exists between reading a contractual term
as a burdensome obligation or as a de facto restriction on assignment. However,
we draw the line where a party refuses to accept part of the contract's obligation,
and as a result it cannot perform a material bargained-for term of the contract.
Here, AWG rejected the Tulsa Facility lease, and now complains that it is
impossible to comply with an integral term of the contract. This term could have
been performed by some party. It is not now an anti-assignment provision simply
because AWG made the decision not to take on a necessary burden" 499
F.3d at 308.
iv.
Implications
305
306