Last week, the Supreme Court handed down its opinion in
Czyzewski v.Jevic Holding Corp., stating that non-consensual, priority
violating, structured dismissals are not allowed under the Bankruptcy
Code. In a well-reasoned opinion, the
Court gave a simple answer to what has become a complex issue, especially in
large Chapter 11 cases where the path out of bankruptcy is not always clear:
the absolute priority rule is absolute (unless the affected parties agree
otherwise).
Czyzeweski v. Jevic Holding Corp. Case
The Jevic case involved the demise of a trucking company. As
it closed down and just before seeking bankruptcy protection, the debtor fired
most of its employees, including a group of truck drivers (the “Petitioners”).
After company’s Chapter 11 filing, the Petitioners sued the debtor and Sun
Capital Partners (who had acquired Jevic in a leveraged buyout) for violation
of the Worker Adjustment and Retraining Notification Acts (“WARN”). The Petitioners won a $12.4 million summary
judgment award against the debtor on their WARN claims, entitling them to
(among other things) an approximately $8.3 million priority wage claim against
Jevic’s estate. The Petitioners also pursued similar WARN claims against Sun
outside the bankruptcy proceeding.
Separately, the unsecured creditors’ committee pursued
litigation against Sun and CIT Group, a secured creditor with which Sun had
refinanced the debt incurred in Jevic’s LBO, for misdeeds in effectuating the
leveraged buyout, fraudulent transfers, and preferential transfers. Eventually,
Sun and CIT settled with the creditors’ committee. The deal provided that the
estate would receive funds for administrative and some priority tax claims,
with the remainder going to general unsecured creditors—skipping the priority
wage claims of the Petitioners, and violating the priorities of the Bankruptcy
Code (Sun admitted it did not want to fund the Petitioners’ WARN litigation
against it). The Bankruptcy Court
approved the settlement and the District Court and Third Circuit Court of
Appeals affirmed the decision. The
Supreme Court reversed and remanded, ruling that a bankruptcy court could not
approve a structured dismissal that violated the priorities of the Bankruptcy
Code.
Facing Bankruptcy
Jevic, like many Chapter 11 debtors, was faced with the
difficult decision of how to get out of bankruptcy. The estate was
administratively insolvent; it had $1.7 million in cash, which was not
sufficient to pay administrative claimants in full, all subject to Sun’s lien.
Unable to confirm a plan, Jevic was left with two options: conversion to a case
under Chapter 7 or dismissal. Conversion would have resulted in the senior
secured creditors receiving everything in the liquidation. If successful, a
structured dismissal could provide some of the benefits of a plan—releases for
the debtor’s management and professionals and, through a mechanism commonly
described as “gifting” by a secured party of a portion of its collateral,
payments to junior creditors who would otherwise receive nothing in a
liquidation scenario.
At the tail end of a bankruptcy case, an administratively
insolvent debtor such as Jevic is often at the mercy of its secured creditor,
who holds a lien over all or substantially all of the debtor’s assets. Absent a
“gift” from the secured creditor, the debtor often cannot offer any incentive
to induce parties in interest to settle their disputes with the debtor (or pay
its professionals). In Jevic, that gift came with strings attached: Sun would not
permit payments to priority claimants who were also litigating against it. The
Court cut one of those strings. Under Jevic, the party funding an end-of-case
structured settlement cannot dictate terms that violate the absolute priority
rule unless the adversely affected classes consent.
Consensual Dismissal
However, the Court left open the possibility for consensual
dismissals that violate the priority scheme of the Bankruptcy Code. In
addition, the Court specifically did not rule on the permissibility of other
priority violating distributions, such as “first-day” pre-petition wage and
critical vendor orders and “roll-ups” in debtor-in-possession financing, that
allow certain prepetition creditors to be paid first on their prepetition
claims in the early days of a bankruptcy case. Pointing to the policy rationale
of preserving the debtor as a going concern and promoting the possibility of a
confirmable plan, the Court did not address the viability of mid-case
structured settlements that violate the Bankruptcy Code’s priority scheme but
do not resolve the case. Neither of these rationales applies to an end-of-case
settlement with an administratively insolvent debtor.
In addition, the Jevic case may provide additional leverage
for taxing authorities and other priority claimholders in plan and/or dismissal
negotiations, knowing that debtors (and their secured creditors) have one less
arrow in their quiver. And it remains to
be seen whether secured parties will push for conversion to Chapter 7 of an
administratively insolvent debtor when they can no longer dictate the terms of
a structured dismissal to the detriment of priority claimants. Restructuring
professionals should plan accordingly.
Contact Us
For any assistance with bankruptcy and restructuring, contact Preti Flaherty’s Bankruptcy, Creditors’ Rights, and Restructuring Practice Group.
Rue Toland practices as an associate with Preti Flaherty's Business Law and Creditors' Rights Groups from the firm's Concord, NH office. Rue provides counsel on transactional and financing matters, secured and unsecured lending, out-of-court loan workouts, bankruptcy proceedings, and other distress situations.
Rue Toland practices as an associate with Preti Flaherty's Business Law and Creditors' Rights Groups from the firm's Concord, NH office. Rue provides counsel on transactional and financing matters, secured and unsecured lending, out-of-court loan workouts, bankruptcy proceedings, and other distress situations.
