Bankruptcy Court Has Broad Discretion to Estimate and Temporarily Allow Claims for Voting Purposes. March/April Kelly Neff and Mark G.

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1 Bankruptcy Court Has Broad Discretion to Estimate and Temporarily Allow Claims for Voting Purposes March/April 2005 Kelly Neff and Mark G. Douglas Protracted delay in liquidating claims against a chapter 11 debtor could hold up the administration of a bankruptcy estate and confirmation of plan of reorganization almost indefinitely. To alleviate this problem, a bankruptcy court has the power to estimate contingent or unliquidated claims, and to allow claims temporarily for the purpose of voting to accept or reject a chapter 11 plan. The court's discretion in this area is quite broad. Still, as demonstrated by a ruling recently issued by a New York district court, a bankruptcy court's discretion in exercising its estimation and temporary claim allowance powers should be applied with the goal of achieving a result that is commensurate with the claimant's economic interest and to ensure that the claimant is not improperly allowed to control the voting and plan confirmation process. In Pension Benefit Guaranty Corp. v. Enron Corporation, the court upheld a bankruptcy court's decision to limit a claimant to one set of claims against a single debtor for voting purposes, although the claimant had asserted claims against 180 affiliated debtors based upon its assertion that all were jointly and severally liable for the same debt. Estimation and Temporary Allowance of Claims for Voting Purposes Section 502(c) of the Bankruptcy Code mandates the estimation, "for purposes of allowance," of almost any contingent or unliquidated claim where failure to do so "would unduly delay the administration of the case." Thus, for example, if litigation is pending against the debtor when it files for bankruptcy, but has not yet gone to trial, the bankruptcy court can estimate the debtor's

2 liability to the plaintiffs in lieu of modifying the automatic stay to allow the action to proceed until judgment, if doing so would unduly delay the bankruptcy case. The Bankruptcy Code does not specify the method or procedure for estimating a claim. Rather, bankruptcy courts employ whatever method is best suited to the circumstances, so long as it comports with the legal rules that govern a claim's ultimate value (e.g., contract law). Estimation of a claim can be accomplished by means of arbitration, mediation, a full-blown trial or any other procedure that the court deems appropriate under the circumstances. Once a claim has been estimated, the claim becomes an allowed claim in the amount estimated on a par with all other claims of equal priority. Much is at stake in an estimation hearing. Upon confirmation of a chapter 11 plan, the debtor's obligation will generally be limited to the estimated amount. Federal bankruptcy law also provides for the estimation of claims for a limited purpose. Under Rule 3018(a) of the Federal Rules of Bankruptcy Procedure, a bankruptcy court "may temporarily allow [a] claim or interest in an amount which the court deems proper for the purpose of accepting or rejecting a plan." Temporary allowance of a claim for the limited purpose of voting on a plan is appropriate because creditors whose claims are disputed would otherwise be completely disenfranchised in chapter 11 cases where the claims resolution process cannot be completed prior to voting. Temporary allowance ensures that such creditors will have an impact on the plan confirmation process that is commensurate with the court's estimate of the value of their claims, if any. As with estimation under section 502(c), there is no established standard governing the temporary allowance of a claim (in whole or in part) under Rule 3018(a).

3 Temporary Allowance of Claims in the Enron Chapter 11 Cases Wholesale and commodity markets giant Enron Corporation and 179 of its subsidiaries filed for chapter 11 protection beginning in December of Among the debtors' significant creditors was the Pension Benefit Guaranty Corporation ("PBGC"), which asserted that Enron and each of its affiliates were jointly and severally liable for underfunding pension liabilities in the aggregate amount of over $305 million. However, to avoid the burden associated with filing thousands of claims in the administratively consolidated chapter 11 cases, Enron and PBGC entered into an agreement whereby PBGC filed 15 proofs of claim in each of the debtors' chapter 11 cases, each of which alleged that the debtors were jointly and severally liable for the pension obligations. In connection with their proposed chapter 11 plans, the debtors obtained bankruptcy court approval of voting procedures. The court's order provided in part that "if one proof of claim asserts the same claim against multiple Debtors, then such claim shall be allowed for voting purposes only against the Debtor" as docketed in the database maintained by the claims administrator. The effect of the order was to give PBGC allowed claims, for the purpose of voting on a chapter 11 plan, in the aggregate amount of approximately $305 million, but exclusively against Enron. PBGC was not permitted to vote on any of the subsidiaries' plans. PBGC objected, seeking a court order allowing it to vote the entire amount of its joint and several claims in the chapter 11 cases of not only Enron, but each of its subsidiaries. The bankruptcy court denied PBGC's request. According to the court, its voting procedures order was designed to "to ensure that a creditor's vote was not duplicated in an amount that did not reflect that creditor's true economic stake in the case" as well as to "operate as an objection to

4 these other duplicate claims for voting purposes." It accordingly found that PBGC had the right to vote its 15 claims aggregating approximately $305 million in Enron's chapter 11 case only. Had the court not done so, PBGC would have been entitled to vote a total of 2,700 claims aggregating $76 billion, a result the bankruptcy judge characterized as "extraordinarily absurd." PBGC appealed. It contended that the bankruptcy court "artificially deflated PBGC's voting presence in contravention of the Bankruptcy Code which, it claims, authorizes the holder of a permissible joint and several claim to vote on each debtor's proposed plan." Explaining that "[t]he temporary allowance of a claim for voting purposes is committed to the sound discretion of the bankruptcy court," the district court ruled that limiting PBGC's voting rights to Enron's chapter 11 plan did not constitute an abuse of that discretion under the circumstances. The district court emphasized that where courts have estimated claims for voting purposes, they have done so "to ensure [that] voting power was commensurate with economic interest." Allowing PBGC to vote $305 million in claims in each of the chapter 11 cases, the court reasoned, would have improperly given PBGC control of the voting and plan confirmation processes to the detriment of the other creditors. In arriving at this conclusion, the court cited favorably to decisions issued in the Johns-Manville Corp. and Hydrox Chemical Company chapter 11 cases. In Johns-Manville, the bankruptcy court approved voting procedures that assigned a value for voting purposes of $1 to each asbestos injury-related claim instead of the $26,000 estimated value per claim. In Hydrox Chemical Company, the bankruptcy court allowed RICO claims for voting purposes at only twice their stated amount even though the claimants were potentially entitled to treble damages under the RICO statute, based on its

5 assessment that the RICO claimants had only a 2/3 probability of success on the merits of their claims. In both cases, the court's temporary allowance for voting purposes was designed to "ensure voting strength was commensurate with the economic realities of the claims." The district court affirmed the order below limiting PBGC's voting rights to Enron's chapter 11 plan. According to the court, the voting procedures order neither denied PBGC joint and several liability nor affected its claims for other purposes, such as distribution. Indeed, the district court remarked, the order "only limited the voting strength of PBGC, not the fundamental right to vote, and was designed to prevent PBGC from taking over the reorganization process." Analysis The claims resolution process is rarely completed before voting on a plan in large chapter 11 cases. As a practical matter, it may take months or even years to adjudicate or settle the many disputed, contingent and unliquidated claims asserted against a chapter 11 debtor. For this reason, a chapter 11 plan generally establishes procedures for the resolution of these claims, and, depending upon the plan's treatment of unsecured creditors, may create a reserve fund for the payment of claims that are allowed at the end of the process. So long as the reserve is adequately funded or the plan otherwise accounts for the post-confirmation allowance of claims, there is generally no need to hold up confirmation pending completion of the process. None of this would be possible, however, without the ability to estimate claims and to allow claims temporarily for voting purposes.

6 The New York district court's ruling in Enron reinforces the importance of a bankruptcy court's estimation powers, but it also illustrates how the broad discretion given to the court in exercising those powers can significantly impact the plan confirmation process. Other courts, when presented with the issue of whether joint and several claims are contingent, and therefore subject to estimation, have answered the question in the negative and have allowed the claims in their full amounts against all the joint and several debtors for voting purposes. The bankruptcy court's refusal to do so in Enron appears to have been motivated by its conclusion that giving PBGC the full benefit of joint and several claims in every one of the Enron chapter 11 cases would allow PBGC to control the confirmation process to the detriment of other creditors. Stated differently, the court exercised its broad discretion under rule 3018(a) to give PBGC voting leverage that was commensurate with what the court believed to be PBGC's economic interest in the cases. That the district court refused to second-guess that assessment on appeal is a testament to the broad scope of a bankruptcy court's discretion in this area. Pension Benefit Guaranty Corp. v. Enron Corp., 2004 WL (S.D.N.Y. Nov. 1, 2004). In re Johns-Manville Corp., 68 B.R. 618 (Bankr. S.D.N.Y. 1986). In re Hydrox Chemical Co., 194 B.R. 617 (Bankr. N.D. Ill. 1996). In re Ford, 967 F.2d 1047 (5th Cir. 1992). In re Lloyd McKee Motors, Inc., 157 B.R. 484 (Bankr. D.N.M. 1993).

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