Czyzewski v. Jevic Holding Corp.: US Supreme Court Prohibits Nonconsensual Priority-Violating Structured Dismissals | Practical Law

Czyzewski v. Jevic Holding Corp.: US Supreme Court Prohibits Nonconsensual Priority-Violating Structured Dismissals | Practical Law

In Czyzewski v. Jevic Holding Corp., the US Supreme Court held that bankruptcy courts cannot approve structured dismissals if they include distributions that violate the priority rules without the affected creditors' consent. The decision is narrowly drafted and expressly does not bar necessary first day payments or settlements.

Czyzewski v. Jevic Holding Corp.: US Supreme Court Prohibits Nonconsensual Priority-Violating Structured Dismissals

by Practical Law Bankruptcy & Restructuring
Published on 28 Mar 2017USA (National/Federal)
In Czyzewski v. Jevic Holding Corp., the US Supreme Court held that bankruptcy courts cannot approve structured dismissals if they include distributions that violate the priority rules without the affected creditors' consent. The decision is narrowly drafted and expressly does not bar necessary first day payments or settlements.
On March 22, 2017, in Czyzewski v. Jevic Holding Corp., the US Supreme Court reversed the Third Circuit and ruled in a 6-2 decision that bankruptcy courts cannot approve structured dismissals that violate the priority rules set out in the Bankruptcy Code without the affected creditors' consent, even in rare cases ( (U.S. Mar. 22, 2017)).

Background

In 2006, Sun Capital Partners (Sun), a private equity firm acquired Jevic Transportation Corporation (Jevic) with money borrowed from CIT Group (CIT) in a leveraged buyout. Two years later, Jevic filed for Chapter 11 bankruptcy. At that time, Jevic owed $53 million to its senior secured creditors, Sun and CIT, and over $20 million to tax and general unsecured creditors.
Petitioners filed two lawsuits in response to Jevic's bankruptcy filing. First, former Jevic truck drivers filed suit against Jevic and Sun in bankruptcy court, alleging that respondents violated state and federal Worker Adjustment and Retraining Notification (WARN) Acts. The bankruptcy court granted summary judgment for petitioners and approximately $8.3 million of petitioners' judgment constituted a priority wage claim under section 507(a)(4)of the Bankruptcy Code which entitled petitioners to priority over unsecured claims against the Jevic estate.
Second, a court-authorized committee representing Jevic's unsecured creditors sued Sun and CIT, alleging that respondents accelerated Jevic's bankruptcy filing by creating unsustainable debts on Jevic. The bankruptcy court held that petitioners adequately pleaded preferential and fraudulent transfer claims under sections 547 and 548 of the Bankruptcy Code. The parties then presented the court with a settlement agreement and requested that the court approve the following terms:
  • The bankruptcy court will dismiss the fraudulent-conveyance action with prejudice.
  • CIT will deposit $2 million into an account which will be used to pay the committee's legal fees and administrative expenses.
  • Sun will assign its lien on Jevic's $1.7 million to a trust to pay taxes and administrative expenses and then distribute the remainder on a pro rata basis to low-level priority general unsecured creditors, but not to petitioners, who held a mid-level priority wage claim.
The parties did not obtain petitioners' consent. Sun argued that petitioners should not receive a distribution because petitioners' WARN claim against them and Jevic was still pending and they should not be required to finance that lawsuit. Petitioners and the US Trustee objected to the settlement, and argued that it violated the Bankruptcy Code's priority rules. The bankruptcy court agreed that the proposed distribution deviated from the priority rules, but held that it was permissible in this instance because the court was approving a structured dismissal rather than a Chapter 11 plan. As further support for approving the settlement, the bankruptcy court noted, that absent the settlement agreement, only the secured creditors would receive distributions because it was unlikely that the court would confirm a Chapter 11 plan in this case. Furthermore, there were insufficient funds to convert the proceeding to a Chapter 7 case.
The district court affirmed the bankruptcy court and also acknowledged that the terms of the settlement violated the Bankruptcy Code's priority rules, but agreed that in this case the violation was permissible given that the bankruptcy court approved a settlement and not a reorganization plan. The Third Circuit affirmed the district court in a 2-1 decision and held that Congress codified the absolute priority rule only in the context of plan confirmation and consequently, in a rare case it is permissible for the bankruptcy court to approve a structured dismissal that violates the priority rules. The U.S. Supreme Court granted certiorari in June 2016.

Outcome

The US Supreme Court reversed the Third Circuit's decision and held that it is not proper for a bankruptcy court to approve a priority-violating structured dismissal without consent from the affected parties, even in rare circumstances.
In reaching its decision, the Supreme Court analyzed:
  • Whether the petitioners have suffered an injury sufficient to have standing.
  • Relevant sections of the Bankruptcy Code and legislative intent relating to the Bankruptcy Code's priority system.
  • Previous case law relating to distributions in violation of the priority system.
  • The feasibility of allowing bankruptcy courts to depart from the priority system even in "rare cases."

Petitioners Have Standing Because the Opportunities Petitioners Lost in the Settlement Agreement Qualify as an "Injury"

Respondents argued that petitioners did not suffer an injury sufficient to have standing. Specifically, respondents argued that even if the bankruptcy court had not approved the settlement agreement, petitioners would not have received any compensation and will not receive any compensation now if the Supreme Court reverses the Third Circuit, effectively disallowing structured dismissals. The Supreme Court held that this argument relies on two unsupported claims:
  • First, respondents argued that but for violating the priority rules, there would be no settlement.
  • Second, respondents argued that absent the settlement, the fraudulence-conveyance lawsuit has no value.
The Supreme Court concluded that because the settlement agreement foreclosed various options to petitioners to settle or bring suit, petitioners suffered an injury that can be redressed with a favorable decision by this court giving petitioners standing.

The Bankruptcy Code and Congressional Intent Do Not Support Bankruptcy Courts Approving Nonconsensual Priority-Violating Structure Dismissals

The Supreme Court held that there is no legal authority for bankruptcy courts to approve nonconsensual priority-violating structured dismissals.
There are three possible outcomes in a Chapter 11 bankruptcy case:
  • Bankruptcy court-confirmed plan.
  • Conversion of the case to a Chapter 7 proceeding for liquidation of the business and distribution of remaining assets.
  • Dismissal of the case.
A dismissal typically aims to restore the parties to the prepetition status quo, but section 349(b) of the Bankruptcy Code permits the bankruptcy court to depart from the prepetition status quo "for cause." Although the practice of departing from the prepetition status quo "for cause" is not outlined in the Bankruptcy Code, it is referred to as a "structured dismissal" which has become increasingly common (American Bankruptcy Institute Commission To Study the Reform of Chapter 11, 2012-2014 Final Report and Recommendations 270 (2014)).
The Supreme Court also explained that distributions generally occur in a Chapter 7 liquidation proceeding or through a Chapter 11 plan, both of which are governed by the Bankruptcy Code's priority rules. While there is some flexibility in a Chapter 11 plan to apply a different ordering of distributions, a plan violating priority in Chapter 11 plans cannot be affirmed if an impaired class of creditor objects (§ 1129(b), Bankruptcy Code).
The priority system, as applied to distributions, is considered fundamental to the Bankruptcy Code's operations. Therefore, in order to depart from this system the Supreme Court expected to find explicit approval by Congress. However, nothing in the Bankruptcy Code or legislative history supports the bankruptcy court approving nonconsensual priority-violating distributions. In fact, the Bankruptcy Code and legislative history specifically state that when a Chapter 11 case is dismissed, any transfers of assets should be in an effort to restore the parties to the prepetition status quo. For example, sections 349(b)(1), (2), and (3) of the Bankruptcy Code refer to permissible transfers of assets in the event of dismissal restoring the parties to their prepetition financial status quo. While section 349(b) of the Bankruptcy Code does allow a bankruptcy court to depart from restoring the parties to the prepetition status quo in the event of dismissal "for cause," the Supreme Court interpreted this as allowing the bankruptcy court to "make the appropriate orders to protect rights acquired in reliance on the bankruptcy case" (Wiese v. Community Bank of Central Wis., 552 F.3d 584, 590 (7th Cir. 2009)). The Supreme Court concluded that there is no authority from Congress or in the Bankruptcy Code supporting that "for cause" encompasses the bankruptcy court approving nonconsensual priority-violating structured dismissals.

The Supreme Court Distinguished Previous Decisions that Addressed Interim Distributions Rather than Distributions as Part of Structured Dismissal

The Supreme Court found no precedent on the issue of bankruptcy court-approved nonconsensual priority-violating structured dismissals. The Supreme Court distinguished cases relating to interim distributions and not final distributions. In addition, the Supreme Court found that in cases in which the court authorized a departure from the priority rules, it was in order to achieve a successful reorganization rather than in the context of a settlement.
The Supreme Court distinguished the existing cases that have addressed structured dismissals as cases:
Here, the priority-violating settlement was in the context of a final disposition and more closely reflects previous rulings in which courts refused to uphold transactions because they impermissibly departed from the Bankruptcy Code. These rulings include courts:

Allowing Nonconsensual Priority-Violating Structured Dismissals, Even in "Rare Cases", is Problematic

The Supreme Court acknowledged that the Third Circuit upheld the bankruptcy court approving nonconsensual priority-violating structured dismissals only in "rare cases" where the bankruptcy court finds "sufficient reasons" to violate the priority rules. However, the Supreme Court concluded that permitting this type of dismissal, even in "rare cases," presents vague standards that are not approved by Congress and could result in potentially serious consequences.
The Supreme Court opined that the Third Circuit's "sufficient reasons" standard is not precise and could potentially result in a broader, general rule rather than allowing for rare cases. For example, here, the bankruptcy court approved the parties' settlement based on uncertain claims about the parties' ability to settle and the value of their lawsuits. The Supreme Court cautioned that this analysis establishes a precedent for future litigants to make similar uncertain claims, which could ultimately result in nonconsensual priority-violating structure dismissals being approved in many cases rather than a few rare cases.
The Supreme Court outlined the problematic consequences of allowing these types of settlements and concluded that Congress did not authorize a "rare case" exception. The Supreme Court held that bankruptcy courts cannot depart from the rules in the Bankruptcy Code, even if the court believes the parties would be better off.

Justice Thomas and Justice Alito Dissent, Holding the Issue Presented is Different From the Issue in the Writ and is Too Narrow

The dissent expressed concern with the Supreme Court granting the writ, and argued that the writ should be dismissed as improvidently granted. Justice Thomas specifically took issue with the fact that the Supreme Court granted certiorari to decide a much broader issue of whether the bankruptcy court may authorize the distribution of settlement proceeds that violate the bankruptcy code's priority rules, but then were presented with a much narrower issue of whether a Chapter 11 case may be dismissed by a structured dismissal that is in violation of the bankruptcy code's priority rules. By addressing a different, narrower issue, the Supreme Court may have opened the door for future petitioners to alter the question they ultimately present to the Supreme Court. In addition, by altering the question that was presented, the Supreme Court adjudicated an issue that was not the center of a circuit split and without the benefit of a brief from the Respondents or a full, adversarial briefing.

Practical Implications

This decision prohibits structured dismissals as an exit tactic to avoid the priority system set out in the Bankruptcy Code. Justice Breyer specifically mentions first day wage, critical vendor, and roll up orders as permissible orders that divert from the priority system. Justice Breyer concluded that this particular violation of the priority rules (the structured dismissal) did not have "any significant offsetting bankruptcy-related justification," indicating that perhaps a different priority violation that has a justification in the Bankruptcy Code is permissible.
Practitioners should also take note of Justice Breyer's discussion of standing, specifically that the Supreme Court defined injury in the context of a lost opportunity to settle or to bring a lawsuit and stated that even a small loss of money amounts to injury sufficient to have standing.
The opinion may also impact Chapter 11 "gift" plans finding them impermissible if they result from the settlements of estate causes of action. However, Jevic could also be used to support a settlement that serves "significant Code-related objectives" ( at *12). For more on the impact of Jevic on gift plans, see The Chapter 11 Gift Plan Strategy: Box, Impact of Jevic on Gift Plans.