PERSONAL INJURY AND OTHER TORT CLAIMS IN BANKRUPTCY APRIL 2007

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1 PERSONAL INJURY AND OTHER TORT CLAIMS IN BANKRUPTCY SOUTHEASTERN BANKRUPTCY LAW INSTITUTE, INC. APRIL 2007 Susheel Kirpalani Quinn Emanuel Urquhart Oliver & Hedges, LLP 51 Madison Avenue New York, New York (212)

2 Personal Injury and Other Tort Claims in Bankruptcy A. Liquidation versus Estimation of Claims 1. The Statutory Framework for Estimation a. Estimation Under 11 U.S.C. 502(c) Section 502(c) of the Bankruptcy Code provides as follows: There shall be estimated for purposes of allowance under this section -- (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 an equitable remedy for breach of performance. NOTE: Statute is mandatory if section 502(c) criteria apply. b. Estimation Procedure The Bankruptcy Code is silent as to the manner in which contingent or unliquidated claims are to be estimated. Bittner v. Borne Chem. Co., 691 F.2d 134, 135 (3d Cir. 1982). While the bankruptcy courts are given great flexibility and discretion, the court is bound by the legal rules which may govern the ultimate value of the claim. Id. Powerful Tool: In the Enron case, Bankruptcy Judge Gonzalez estimated certain unliquidated employment-based claims using a likelihood of success percentage, which was applied to the alleged amount asserted. The parties briefed the likelihood of success, and the bankruptcy court adopted this methodology, using the court s own percentages based on the relative strengths of the arguments and summary facts presented by sworn written submissions. Later, in another estimation context, the bankruptcy court utilized a baseball arbitration style of estimation -- both sides presented their case and asked the court to estimate the claim at zero if there was a less than 50% chance of the claimant prevailing; and to estimate the claim at the full amount asserted if there was a 50% or better chance of the claimant prevailing. See, e.g., In re Thompson McKinnon Sec., Inc., 143 B.R. 612, 619 (Bankr. S.D.N.Y. 1992) ( In estimating [a] 1

3 claim, the bankruptcy court should use whatever method is best suited for the circumstances ). c. Balancing Estimation and Claimants Jury Trial Rights i. No Right to Jury Trial in Estimation. Insofar as estimation, pursuant to section 502(c) of the Bankruptcy Code, is a core bankruptcy court-function, courts have held that there is no right to trial by jury in estimation proceedings. See, e.g., In re Standard Insulations, Inc., 138 B.R. 947, 951 (Bankr. W.D. Mo. 1992). The question then becomes whether estimation for allowance of a personal injury claim is distinct from liquidating the value of such claim, for which a jury trial right should exist. ii. Sources of Jury Trial Rights -- U.S. Constitution and Federal Statutes. 1. The Seventh Amendment to the United States Constitution states: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States than according to the rules of the common law. The United States Supreme Court has interpreted Suits at common law to mean suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, (1989). Any claim for money damages against a debtor in bankruptcy as redress for personal tort injuries is the assertion of legal not equitable rights. See Curtis v. Loether, 415 U.S. 189, (1974) ( the relief sought here -- actual and punitive damages -- is the traditional form of relief offered in the courts of law ); Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) (a complaint seeking money damages presents a claim which is unquestionably legal in nature). According to the Supreme Court, the thrust of the [Seventh] Amendment was to preserve the right to jury trial as it existed in Loether, 415 U.S. at The 2

4 Court has also clarified that the right to a trial by jury extends beyond the legal actions that were recognized at the time of the Seventh Amendment, and the right may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. Parsons v. Bedford, Breedlove & Robeson, 28 U.S. 433, 447 (1830). 2. Intricate Statutory Interplay (28 U.S.C. 1411(a), 28 U.S.C. 157(b)(2)(B), 28 U.S.C. 157(b)(5), and 11 U.S.C. 502(c)). First, section 1411(a) of title 28 of the United States Code provides: (a) Except as provided in subsection (b) of this section, this chapter and title 11 do not affect any right to trial by jury that an individual has under applicable nonbankruptcy law with regard to a personal injury or wrongful death tort claim. (b) The district court may order the issues arising under section 303 of title 11 [relating to procedures in commencing an involuntary bankruptcy case] to be tried without a jury. Second, section 157(b) of title 28, which governs the jurisdictional parameters of bankruptcy courts, provides: (b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title. (2) Core proceedings include, but are not limited to -- (B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purpose of confirming a plan under chapter 11, 12, or 3

5 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11. Third, section 157(b)(5) of title 28 provides: The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. 2. Application to Mass Tort Context a. Propriety of Estimation In the mass tort context (e.g., asbestos), it is beyond question that estimation of hundreds of thousands of unliquidated claims is necessary to avoid unduly delaying administration of the bankruptcy estate. See generally In re USG Corp., 290 B.R. 223 (Bankr. D. Del. 2003). In In re G-I Holdings, Inc., 323 B.R. 583 (Bankr. D.N.J. 2005), the bankruptcy court found that some form of estimation is required for the more than 150,000 asbestos-related personal injury claims, but the court rejected the debtor s proposed a detailed matrix for estimating each allegedly injured s right to payment, on a claim by claim basis, based on a proposed formula and procedure. The bankruptcy court, in accordance with the Third Circuit s caveat in Bittner, determined that the debtor s proposed procedure offended the legal rules that govern determination of the value of the claims, because asbestos claimants had a right to a trial by jury guaranteed by the Seventh Amendment to the U.S. Constitution and various federal statutes. Thus, the G-I Holdings court adopted a modified form of the creditors committee s proposal to estimate asbestos claims in the aggregate and solely for purposes of assisting in the formulation and confirmation of a reorganization plan. Following the rationale in the USG Corp. case, the bankruptcy court in G-I Holdings determined that estimation in the aggregate should be made with respect to present cancer claimants first; following this phase, the court would estimate all remaining claimants in the aggregate; finally, the third phase would require estimation of claims that may be asserted by future claimants. 323 B.R. at 625. Such a methodology was well-suited to these mass tort claims because these aggregate determinations would 4

6 instruct whether existing shareholders of the debtor had any residual stake in the bankrupt enterprise. B. Preservation of Jury Trial Rights 1. Personal Injury/Mass Torts a. Core vs. Non-Core Jurisdiction to Estimate Attempting to reconcile the applicability of section 502(c) of the Bankruptcy Code (which is a core proceeding, at least with respect of estimation for plan-related purposes) with the express preservation of jury trial rights in title 28 of the United States Code, the G-I Holdings bankruptcy court ruled as follows: Although the claims allowance process is specifically included as a core proceeding pursuant to 28 U.S.C. 157(b)(2)(B) for the purposes of plan confirmation, the same cannot be said for the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11. That is, if this Court approves an estimation proceeding with the aim of determining voting shares in the Chapter 11 plan confirmation process, such a proceeding falls within the core jurisdiction of this Court. If, on the other hand, this Court approves an estimation proceeding with the intended goal of liquidating contingent or unliquidated personal injury tort or wrongful death claims against the estate for distributional purposes,... such a proceeding would fall within the non-core related to jurisdiction of the Court. In such a case,... this Court would conduct the estimation proceeding in the first instance and thereafter would submit proposed findings of fact and conclusions of law to the District Court for the entry of a final order, all in accordance with 28 U.S.C. 157(c). G-I Holdings, 323 B.R. at 611 (citations omitted). Claims allowance and disallowance for plan confirmation purposes, however, raises the question whether disallowance or estimation at zero constitutes a liquidation of the claim, which is prohibited by section 157(b)(2)(B). Two distinct approaches -- a broad interpretation of the prohibition and a narrow one -- have developed in the case law. See In re UAL Corp., 310 B.R. 373, (Bankr. N.D. Ill. 2004) ( Courts that have addressed this issue have developed two general approaches, giving 5

7 the exception a broader or narrower scope depending on the meaning they attribute to liquidation or estimation ). i. Broad Interpretation. Courts adopting a broad interpretation of the prohibition start with the proposition that any disallowance of a personal injury claim is a liquidation. UAL Corp., 310 B.R. at 379. See also In re Schepps Food Stores, Inc., 169 B.R. 374, 377 (Bankr. S.D. Tex. 1994) (holding that section 157(b)(2)(B) s personal injury exclusion preventing a bankruptcy court from disallowing a claim based on a statute of limitations defense because doing so would effectively liquidate the claim for purposes of distribution); In re UNR Industries, Inc., 74 B.R. 146, 148 (N.D. Ill. 1987) (holding that bankruptcy court could not decide summary judgment motion because resolution against the creditor would serve to finally adjudicate the creditor s claim on the merits). ii. Narrow Interpretation. The G-I Holdings court adopted the narrower interpretation of section 157(b)(2)(B) s personal injury exclusion. 323 B.R. at 613. Courts favoring such an interpretation have held that the phrase liquidation or estimation involves only a determination of the amount of a claim, and not a determination of the legal validity or enforceability of the claim. See UAL Corp., 310 B.R. at 379 (discussing narrow interpretation cases). Thus, a bankruptcy court could properly determine as a core matter whether -- as a matter of law -- a personal injury claim is allowable at all, but it could not finally adjudicate the value of an allowable claim. See generally In re Dow Corning Corp., 215 B.R. 346, 356 (Bankr. E.D. Mich. 1997) (noting that a liquidated debt is one that has been made certain as to amount due by agreement of the parties or by operation of law and that the concept of a liquidated debt relates to the amount of liability, not the existence of liability ); In re Standard Insulations, Inc., 138 B.R. 947, 953 (Bankr. W.D. Mo. 1992) (holding that bankruptcy court had jurisdiction to conduct threshold inquiry on limited issue of whether personal injury claimants had allowable claims as a matter of law, so long as the court did not seek to liquidate claims it deemed allowable). This reasoning is analogous to the numerous district court cases that have denied withdrawal of the reference to the bankruptcy court -- even when premised upon a jury trial right -- until the case is ready to be tried. 6

8 2. Other Torts, Including Fraud a. Bankruptcy Court Jurisdiction (28 U.S.C. 1334) i. Discussion of 28 U.S.C (2) "Arising Under" (3) "Arising In" (4) "Related To" (5) Spectrum (from Guzinski Article 1 ) -- matters affecting a bankruptcy estate are arranged on a spectrum, with those necessary and essential to administration of the estate at one end, and those of tangential relevance or subject to competing authority at the other end. (A) (B) (C) At one end of the spectrum are certain "core" matters "arising under" or "arising in" the case commenced by the filing of the petition. 28 U.S.C. 157(b) Further along the jurisdictional spectrum are matters "related to" bankruptcy cases under Title 11. Finally, there are those matters which, in some sense, may relate to the bankruptcy case, but which are outside the spectrum and may not come within the court's bankruptcy jurisdiction. These matters include: matters from which the bankruptcy court is required to abstain under 28 U.S.C. 1334(c); matters of tangential relevance to a bankruptcy case that do not constitute matters "related to" a case under title 11; matters to be determined by other tribunals. ii. Discussion of 28 U.S.C. 157 (Core vs. Non-Core). 1 "There Ain't No Jurisdiction Like Bankruptcy Jurisdiction: The Filing of a Proof of Claim", Joseph A. Guzinski, 14 American Bankruptcy Institute Journal 5, March

9 b. Submitting to Bankruptcy Court s Equitable Jurisdiction i. By Filing a Proof of Claim Under R. 3002(c)(3) Langenkamp v. Culp, 498 U.S. 42 (1990); Granfinancieria S.A. v. Nordberg, 492 U.S. 33 (1989); Katchen v. Landy, 382 U.S. 323 (1966) For a creditor, these cases strongly indicate that if he has filed a proof of claim he has submitted to the bankruptcy court s equitable jurisdiction for all purposes related to the bankruptcy estate. This line of cases reasons that "by filing a proof of claim a creditor forsakes its right to adjudicate before a jury any issue that bears directly on the allowance of that claim -- and does so not so much on a theory of waiver as on the theory that the legal issue has been converted to an issue of equity. It is reasonable that a creditor or debtor who submits to the equity jurisdiction of the bankruptcy court thereby waives any right to a jury trial for the resolution of disputes vital to the bankruptcy process, such as those involving the determination of who is a valid creditor and which creditors are senior in the creditor hierarchy." Germain v. Connecticut National Bank, 988 F.2d 1323 (2d Cir. 1993). In re Coated Sales, Inc., 119 B.R. 452, 458 (Bankr. S.D.N.Y. 1990) (holding that a preference action may be a part of the claims allowance process when the creditor's receipt of a preference is a defense to the allowance of a claim under 502(d) of the Bankruptcy Code). In re Dietert, 271 B.R. 499, (Bankr. S.D. Tex., 2002) (concluding that bankruptcy court has jurisdiction to decide counterclaims to proof of claim to the extent "all elements necessary to adjudication of the counterclaim are part of the adjudication of the objection to the claim[,]" but that "[t]he creditor retains a right to a jury trial with respect to any issue that need not be adjudicated as part of the allowance of the claim or an objection to the claim"). In re County of Orange, 203 B.R. 977, (Bankr. S.D. Cal., 1996) (concluding that, by filing proof of claim, creditor submitted to jurisdiction of the bankruptcy court over the claim and the counterclaims asserted 8

10 thereto for breach of contract, negligence and aiding and abetting breach of a fiduciary duty which debtor asserted in an adversary action since the "proceedings [were] integral to the restructuring of the debtor-creditor relationship" between the creditor and the debtor). Travellers Int'l A.G. v. Robinson, 982 F.2d 96 (3d Cir. 1992) (despite filing of proof of claim with assertion that it did not intend to waive jury rights in pending preference action, creditor was found to have submitted itself to equitable jurisdiction of bankruptcy court; preference action and proof of claim were intimately connected as both asserted rights to same property), cert. denied, 507 U.S. 1051, 113 S.Ct. 1946, 123 L.Ed.2d 651 (1993). ii. Failing to Act or Object in Timely Fashion. 2 Gravel & Shea v. Vermont Nat'l Bank, 162 B.R. 961 (D. Vt. 1993), acknowledges that the "totality" of one's actions (or inactions) can amount to consent to the Bankruptcy Court's authority to make a final determination -- even in a non-core proceeding. Court found that appellant, an attorney for the debtor, had several opportunities which it did not exercise to challenge such authority, and, as such, implicitly consented to be bound by the Bankruptcy Court's ruling. Goya Foods, Inc. v. Unanue, 233 F.3d 38 (1st Cir. 2000) (a claim to a right of jury trial may be forfeited, just like any other non-jurisdictional request or objection; defendant lost her right to a jury trial (assuming arguendo that she had one in the first place) when, notwithstanding its decision to strike her answer to the complaint as a sanction for misconduct, district court permitted her to introduce evidence at trial and defendant failed to offer an objection to the bench trial or ask the court to reinstate her jury trial request). Anstine v. United States Fid. & Guar. Co. (In re Sand Hills Beef Corp.), 199 B.R. 740, 742 (D. Colo. 1996) (defendant in adversary proceeding waived its right to jury trial by not moving to transfer or withdraw reference at the same time it filed its jury demand). 2 See "RECENT DEVELOPMENTS IN JURISDICTION, VENUE, ABSTENTION, REMAND, REMOVAL, WITHDRAWAL OF THE REFERENCE, JURY TRIALS AND APPEALS", Sheri Bluebond, Practising Law Institute, PLI Order No. A0-00E6, April 11,

11 But see: New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 996 F.2d 21, 24 (2d Cir. 1993), a case involving a magistrate's decision, where that court found that "an 'implied' waiver would not adequately protect the constitutional right to be heard by an Article III judge, at least at the threshold of a party's participation in a case." (emphasis added) iii. Proof of Claim Analogues. In re Lapeyre, 1999 U.S. Dist. LEXIS (E.D. La. 1999) (although creditor had right of jury trial in state law fraud action that debtor removed to bankruptcy court, creditor waived that right by commencing nondischargeability action in bankruptcy court based on same alleged fraud). In re Marshland Dev., Inc., 129 B.R. 626 (N.D. Cal. 1991) (creditor's removal of state court complaint to bankruptcy court transmuted complaint into claims resolution proceeding, which is tantamount to filing a proof of claim). In re Atlantic Computer Sys., Inc., 165 B.R. 781 (Bankr. S.D.N.Y. 1994) (creditor lost right to jury trial by participating in optional claims process described in bankruptcy court "omnibus order", despite fact that creditor never filed formal claim). Sender v. Hardie, 153 B.R. 69 (D. Colo. 1993) (husband's filing of proof of claim sufficient to bind wife). b. Common Fact Patterns and Best Practices for Preserving Jury Trial Rights in Non-Personal Injury/Wrongful Death Tort Claims i. Responding to Rule 2004 Subpoena When You Have Not Previously Appeared In Bankruptcy Case or Filed Proof of Claim (Arthur Andersen-Enron Fact Pattern). Best Practices: Move to withdraw reference Move to quash (via a limited appearance) Must act "timely" or risk potential consent to jurisdiction 28 U.S.C. 157(d) 10

12 Note: all documents filed should contain language that you are not submitting to bankruptcy court jurisdiction ("implied consent") If possible, file all responsive pleadings together with motion to withdraw reference ii. Named as Defendant in an Adversary Proceeding Best Practices: If answering, move to withdraw reference and file jury demand when filing answer Be aware of local rules providing specifics as to "timeliness" of making motion. E.g., Middle District of Florida Local Rule 107(a). See In re Securities Group 1980, 89 B.R. 192, 194 (M.D. Fla., 1988) ("Bankruptcy Local Rule 107(a) requires that a motion to withdraw proceedings must be filed with the Clerk of the Bankruptcy Court not later than the date set for filing an answer under Bankruptcy Rule 7012, which is thirty days after issuance of the summons, except when a different time is prescribed by the Bankruptcy Court.") Motion to withdraw reference will likely be deemed premature Case may proceed in bankruptcy court until ready for trial If moving to dismiss, move to withdraw reference, as well, and ask motion to dismiss be heard by district court. Although it is not clear, there is support (appears to be minority) for the proposition that bankruptcy court may not decide dispositive motions absent consent of both parties iii. Seeking Other Affirmative Relief Compulsory Counterclaims usually held not to be a waiver of objections to jurisdiction; but BEWARE. Permissive Counterclaims usually held to be a waiver of objections to jurisdiction Cases: 11

13 Beard v. Braunstein, 914 F.2d 434, 442 (3d Cir. 1990) (party does not waive objections to jurisdiction of bankruptcy court by asserting compulsory counterclaim; but see Travelers Int'l AG. v. Robinson (infra) which appears to reach the opposite result without discussing counterclaims or Beard, which itself was decided before Langenkamp.) In re Concept Clubs, Inc., 154 B.R. 581 (D. Utah 1993) (a counterclaim for a setoff). Mather v. Cellxion (In re Mobile Int'l Co., Inc.), 258 B.R. 466 (Bankr. E.D. Okla. 2001). Best Practices: Appears that depends on nature of counterclaim If compulsory, may preserve all rights If permissive, likely will be considered a waiver of objection to Bankruptcy Court jurisdiction iv. Motion for Relief from Stay (362(d)) Best Practices: There is a not insubstantial risk that filing such a motion will be deemed submission to Bankruptcy Court jurisdiction C. Ability of Creditor to Withdraw Proof of Claim and Renounce Submission to Bankruptcy Court s Equitable Jurisdiction Smith v. Dowden, 47 F.3d 940 (8th Cir. 1995) (withdrawal of proof of claim resuscitated claimant's right to a jury trial in trustee's fraudulent transfer action). In re 20/20 Sport, Inc., 200 B.R. 972 (Bankr. S.D.N.Y. 1996) (defendant that withdrew its proof of claim retained its right to jury trial). In re Lowenschuss, 67 F.3d 1394 (9th Cir. 1995) (claimant conditionally withdrew its proof of claim without prejudice so that it may re-file its claim if and when an appeal of a bankruptcy order holds that the property claimant sought was part of the debtor's estate; did not involve jury trial issue). 12

14 In re The Academy, Inc., 289 B.R. 230 (Bankr. M.D. Fla. 2003) (although creditors allowed to voluntarily withdraw their proofs of claim, any such withdrawal, once claims bar date had expired, would have to be with prejudice to their ability to refile claims, and without prejudice to debtor's ability to pursue, or bankruptcy court's jurisdiction over, what were in the nature of compulsory counterclaims asserted by debtor in the interim). In re Cruisephone, Inc., 278 B.R. 325 (Bankr. E.D.N.Y. 2002) (filing of a proof of claim by foreign creditor did not provide basis for exercising personal jurisdiction in an adversary proceeding commenced more than one year after creditor withdrew its proof of claim -- an effectivly withdrawn proof of claim is a legal nullity, leaving the parties as if the claim were never filed). In re County of Orange, 203 B.R. 977, 982 (Bankr. C.D. Cal. 1996) (a creditor who filed a proof of claim may withdraw it after lawsuit commenced by the trustee, absent a showing of legal prejudice). C. Limitations on Punitive Damages in Chapter Categorical Versus Equitable Subordination Bankruptcy practitioners and courts alike have the instinctual view that non-compensatory damage claims (including multiple, punitive, or exemplary damages) should not stand on equal footing with actual pecuniary losses or compensation for injuries. Indeed, in the mass tort context, bankruptcy courts have often approved chapter 11 plans that subordinate or disallow punitive damage claims. The Bankruptcy Code does not, however, provide a clear statutory basis for treating noncompensatory claims against a chapter 11 debtor in a less favorable way than general unsecured claims. Indeed, more than a decade ago, the United States Supreme Court admonished the federal courts to adhere to the priorities established by Congress in the Bankruptcy Code and not to judicially engraft a categorical notion of equity in between the lines of the statute. In twin decisions the same year by the Supreme Court, United States v. Noland, 517 U.S. 335 (1996) and United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213 (1996), the high court rejected the contention that tax penalties -- even though they would dilute recoveries to innocent third-party creditors -- could not be categorically disfavored by bankruptcy courts based on general equitable principles. The Court of Appeals for the Seventh Circuit had occasion recently to address the issue of a chapter 11 plan s attempt to disallow punitive 13

15 damage claims as a condition to the plan s confirmation. In In re A.G. Financial Service Center, Inc., 395 F.3d 410 (7th Cir. 2005), Judge Easterbrook studied the appellate level authority for disfavoring punitive damage awards in bankruptcy. The court noted that [o]nly one appellate decision... provides direct support for the view that punitive damages are unavailable in bankruptcy, and it tossed off the subject in a single thinly reasoned paragraph. Id. at 414 (citing In re GAC Corp., 681 F.2d 1295 (11th Cir. 1982)). That decision pre-dated the Supreme Court s categorical disallowance cases discussed above and, in A.G. Financial, the Seventh Circuit held that a case-by-case assessment of equitable subordination of punitive damages claims is the method most consistent with the Supreme Court s directives. 2. Chapter 11 versus Chapter 7 Knowing that the Supreme Court has rejected categorical subordination based on general notions of fairness, and seeing the Seventh Circuit Court of Appeals recently state its disagreement with lower court decisions that nevertheless disallow or subordinate punitive damage claims, bankruptcy practitioners and courts have turned to another strategy -- one based in the text of the Bankruptcy Code. Under section 726(a)(4) of the Bankruptcy Code, Congress statutorily subordinated fines, penalties, multiple, exemplary, and punitive damages to a level below general unsecured claims. The problem is that this statute does not apply to chapter 11 cases, which is one reason that the U.S. Department of Justice was able to assert an enormous fine against reorganizing WorldCom and the bankruptcy court approved a sizeable settlement of that claim, diluting general unsecured creditors. In a growing number of cases, however, chapter 11 plans are creating -- by classification, not equitable principles -- a subordinated class of noncompensatory claims and such plans are routinely being confirmed by bankruptcy courts. See, e.g., In re Refco Inc., et al., (Bankr. S.D.N.Y. 2006); In re Enron Corp., et al., (Bankr. S.D.N.Y. 2003). A combination of statutory bases appear to support this practice: Incorporation of chapter 7 priorities into a chapter 11 plan via the best interests of creditors test of section 1129(a)(7) -- this is heavily fact intensive and requires careful assumptions in the plan proponents liquidation analyses. Separate classification under section 1122(a) under the theory that only substantially similar claims may be placed in the same class and the prohibition on separate classification of arguably similar claims stems only from a concern that the proponents not gerrymander voting. 14

16 Separate classification of section 726(a)(4)-type claims is the most accurate and statutorily consistent method of subordinating non-compensatory claims in chapter 11. This does, however, raise some issues to be taken into account -- Section 1126(g) will deem the entire class of punitive damage claims to have rejected the plan Thus, section 1129(b) s cramdown provisions will need to be examined with respect to the punitive damage class -- in other words, the plan must be fair and equitable. This approach is most consistent with Noland and Reorganized CF&I Fabricators. Noland does not address the issue of classifying any claims in chapter 11 because it was a chapter 7 case, and the issue litigated was whether a post-petition tax penalty could be disallowed notwithstanding the Bankruptcy Code s recognition of post-petition tax penalties as administrative claims. Reorganized CF&I Fabricators was, in contrast, a chapter 11 case, but it reviewed solely the lower court s invocation of section 510(c) to equitably subordinate pre-petition tax penalty claims. The separate classification of such claims was an alternative theory in the lower court, but the Supreme Court did not reach that issue and merely remanded for further consideration of that alternative basis. The Supreme Court noted: Nothing in the opinion of the Court of Appeals (or, for that matter, in the rulings of the Bankruptcy Court and the District Court) addresses the arguments that the Bankruptcy Court s result was sustainable without reliance on 510(c). The court never suggested that either 1122(a) or the Chapter 7 liquidation provisions were relevant. We thus necessarily review the subordination on the assumption that the Court of Appeals placed no reliance on the possibility that the Bankruptcy Code might permit the subordination on any basis except equitable subordination under 510(c). Reorganized CF&I Fabricators, 518 U.S. at

17 D. Issues Relating to Insurance 1. Self-Insured Retention and Deductible Issues a. Self-Insured Retention Self-insured retention is the risk that the insured had agreed to keep to cover its exposure without insurance. Self-insured retentions must typically be paid before the insurer will pay benefits, which is why such arrangements are implicated by a debtor-insured s bankruptcy filing. A typical self-insured retention reads as follows: Insurer shall be liable only for the amount of Loss in excess of the Self-insured Retention amount shown in the schedule hereto up to the applicable limit of insurance shown in the declarations of this policy. In the event of Insured s refusal to respond to a claim for any reason, the coverage provided by this policy shall not replace the Self-insured Retention provided by you. In no event shall Insurer be obligated to substitute for you with respect to the Self-insured Retention. When the insured is a bankrupt debtor, the issue of satisfying the selfinsured retention is central. The retention amount serves as a threshold for coverage by the insurer. Typically, policies condition the insurer s obligation to pay upon actual payment of the self-insured retention. This is unworkable in the context of a pre-petition claim against a bankrupt debtor because the debtor will not pay the full amount of a claim, nor will payment be made prior to confirmation of a plan. For this reason, policies have been worded to address the bankruptcy scenario to best carry out the intention of the parties -- coverage over and above the self-insured retention. See Home Insurance Co. of Illinois v. Hooper, 691 N.E.2d 65 (Ill. App. 1998). In the Home Insurance case, the Illinois appellate court held that the insurer was obligated to indemnify the insured for any portion of a judgment or settlement that exceeded the self-insured retention. Thus, the inability of the debtor to actually pay the retention was irrelevant and was deemed satisfied without actual payment. Similarly, in another Illinois case, Keck, Mahin & Cate, 241 B.R. 583 (N.D. Ill. 1999), the court held that a self-insured retention is satisfied when the claim is allowed against the bankrupt debtor. 16

18 b. Deductible In contrast, although a deductible also represents the amount of risk retained by the insured, it does not create a threshold for triggering coverage by the policy. For example, a deductible provision in a typical policy may read: If a Deductible Amount is shown on the schedule hereto, that amount is the amount Insured must reimburse Insurer for all damages Insurer pays under this policy. In the bankruptcy context, the deductible is typically viewed (depending, however, on the exact policy language) as the amount the insured debtor must reimburse the insurer. See, e.g., In re International Fibercom Inc., 311 B.R. 862 (Ariz. 2004). The insurer should not, however, relieved from providing coverage if the insured is unable to pay the deductible due to the insured s insolvency or bankruptcy filing (although a minority of courts have held otherwise). The insurer will certainly have a claim against the insured debtor, and the question will arise as to the priority of that claim. As a general rule, accrual of the underlying insured claim preor post-bankruptcy will be considered in making this determination. 2. Estate Interest in Insurance Proceeds Under section 541 of the Bankruptcy Code, property of the estate includes the debtor s interest in any insurance policies. The question that has been growing in prominence, particularly in major fraud bankruptcies such as Enron and Refco, is defining and trying to protect the estate s interest in director and officer ( D&O ) coverage proceeds. Under certain circumstances, the estate itself may have a claim against one or more directors or officers for breach of fiduciary duty or other wrong, and would like to preserve its ability to access the insurance proceeds. This has typically set the stage for a showdown between the estate and security holders who have also asserted direct claims against individuals covered by the policy. In Enron and Refco, however, the issue pressed in the Bankruptcy Court for the Southern District of New York was whether the insurer could -- without offending the automatic stay s prohibition on impairing property of the estate -- pay individual D&O defense costs and/or liability in settlements or judgments. Not long ago, courts were reluctant to allow parties to compete with the debtor for property of the estate, but the trend - - based principally on changes in policy wording -- is that the estate s interest in proceeds of D&O policies is effectively subordinate to that of the individual insureds. The key issue -- which was heavily litigated in the Enron case, and was simply followed in Refco -- is whether the policy 17

19 should be interpreted as protecting the debtor s interest or whether the individual insureds have an absolute, prior right to payment. The bankruptcy courts have shown deference to the policy language because such language is what defines the estate s interest in the policy proceeds in accordance with state law. * * * 18

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