The Supreme Court granted certiorari in Czyzewski v. Jevic Holding Corp. to decide whether bankruptcy courts are allowed to dismiss chapter 11 cases when property is distributed in a settlement that violates the priorities contained in Section 507 of the Bankruptcy Code.
Although Jevic deals with structured dismissals, the high court’s decision might also have the effect of allowing or barring so-called gift plans where a secured creditor or buyer makes a payment, supposedly from its own property, that enables a distribution in a chapter 11 plan not in accord with priorities.
Granting certiorari was not surprising because there has been a long-standing split of circuits. In Jevic, the Third Circuit approved a structured dismissal in May 2015 following the Second Circuit, which had ratified structured dismissals in its 2007 Iridium decision.
Conversely, the Fifth Circuit barred structured dismissals in 1984 when it decided Aweco and held that the “fair and equitable” test must apply to settlements.
Before acting on the certiorari petition, the Supreme Court sought comment from the Solicitor General. In May, the federal government’s counsel in the Supreme Court recommended granting review and reversing the Third Circuit.
The Jevic petition was on the justices’ calendar for review at a conference on June 23. In line with the Court’s practice of reviewing petitions at two conferences before granting certiorari, the case was reviewed once again at a conference on June 27. The Supreme Court granted the petition on June 28.
Structured dismissals occur when the sale of a company’s assets in chapter 11 will not generate enough cash to pay priority claims in full and permit confirmation of a plan. In the unsuccessful reorganization of Jevic Holding Corp., the official unsecured creditors’ committee had sued the secured lender and negotiated a settlement calling for the lender to set aside some money for distribution to unsecured creditors following dismissal. The distribution scheme did not follow priorities in Section 507 because wage priority claimants received nothing from the lender through a trust set aside exclusively for lower-ranked general unsecured creditors.
Over the wage claimant’s objection, the bankruptcy court’s approval of the settlement was upheld in the district court and the Third Circuit. The appeals court’s opinion was important because the Third Circuit makes law for Delaware, where many of the country’s largest chapter 11s are filed.
The Third Circuit’s opinion was 2-1, with the dissenter saying that while structured dismissals are permissible, Jevic was not a proper case.
Recommending that the Supreme Court review and reverse the Third Circuit, the Solicitor General said that “bankruptcy is not a free-for-all in which parties or bankruptcy courts may dispose of claims and distribute assets as they see fit.” He argued that “nothing in the Code authorizes a court to approve a disposition that is essentially a substitute for a plan but does not comply with the priority scheme set forth in Section 507.”
There are powerful arguments in support of the Third Circuit’s opinion. To begin with, there is nothing in the Bankruptcy Code explicitly saying that priorities govern settlements under Bankruptcy Rule 9019. Proponents of structured dismissals also rely on the notion that the distribution is the lender’s own property, not property of the estate, thus making priorities inapplicable.
The position of the Solicitor General came as no surprise because the government lost a similar case called In re LCI Holding Co., in which the Third Circuit sanctioned so-called gift plans that distribute estate property counter to bankruptcy priorities. The LCI and Jevic cases were argued the same day in January 2015, but before different panels of the Third Circuit. Although it was the primary objector in LCI, the government did not pursue a certiorari petition.
While the schedule for Jevic was not immediately announced, argument in the Supreme Court might take place in December, with an opinion to be issued in the first quarter of 2017.
Click here for the Third Circuit opinion.