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The Banking Law Journal Volume 120 Number 7 July/August 2003

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The Banking Law Journal Volume 120 Number 7 July/August 2003 BLJ-July/Aug2003 6/9/03 9:43 PM Page 3 THE BANKING LAW JOURNAL VOLUME 120 NUMBER 7 JULY/AUGUST 2003 HEADNOTE: GOVERNANCE Steven A. Meyerowitz 573 TOWARD A BANK-LLC: ANALYSIS AND IMPLICATIONS OF THE FDIC’S FINAL RULE ALLOWING BANKS TO ORGANIZE AS LIMITED LIABILITY COMPANIES Stephanie E. Dreyer 575 WHAT BANKS NEED TO KNOW ABOUT ATTORNEY’S FEES IN CHAPTER 13 PROOFS OF CLAIM S. Andrew Jurs 623 BANKRUPTCY FOR BANKERS Howard Seife 638 AUDIT COMMITTEES Christopher J. Zinski 647 BANKING BRIEFS Donald R. Cassling 660 BLJ-July/Aug2003 6/9/03 9:43 PM Page 4 EDITOR-IN-CHIEF Steven A. Meyerowitz President, Meyerowitz Communications Inc. MANAGING EDITOR Adam McNally BOARD OF EDITORS Henry J. Bailey Jonathan R. Macey Elizabeth C. Yen Professor of Law, Emeritus Professor of Law Partner, Hudson Cook, LLP Willamette Univ. College of Law Cornell Law School UCC Commentary Paul Barron Martin Mayer Laurence S. Hughes Professor of Law The Brookings Institution Partner, Rivkin Radler LLP Tulane Univ. School of Law Brian J. Peretti Bankruptcy for Bankers George Brandon Shook, Hardy & Bacon LLP Howard Seife Partner, Squire, Sanders & Partner, Chadbourne & Parke Dempsey LLP Louis A. Scarcella LLP Barkley Clark Partner, Scarcella Rosen & Slome, Technology, Law, and Banking Partner, Shook, Hardy & Bacon LLP James F. Bauerle LLP DKW Law Group, PC Julia B. Strickland John F. Dolan Partner, Stroock & Stroock & Audit Committees Professor of Law Lavan LLP Christopher J. Zinski Wayne State Univ. Law School Partner, Schiff Hardin & Waite Marshall E. Tracht Thomas J. Hall Professor of Law Banking Briefs Partner, Chadbourne & Parke Hofstra University School of Law Donald R. Cassling LLP Partner, Jenner & Block, LLC Mark J. Volow Michael Hogan Partner, Akin, Gump, Strauss, Ashelford Management Serv. Ltd. Hauer & Feld, LLP Mark Alan Kantor Stephen B. Weissman Washington, D.C. Partner, Rivkin Radler LLP THE BANKING LAW JOURNAL is published ten times a year by A.S. Pratt & Sons, 1901 Fort Myer Drive, Arlington, VA 22209, Copyright © 2003 A.S. Pratt & Sons. All rights reserved. No part of this journal may be reproduced in any form—by microfilm, xerography, or otherwise—or incorporated into any information retrieval system without the written permission of the copyright owner. Requests to reproduce material contained in this publication should be addressed to A.S. Pratt & Sons, 1901 Fort Myer Drive, Arlington, VA 22209, fax: 703-528- 1736. For subscription information and customer service, call 1-800-572-2797. Direct any editorial inquires and send any material for publication to Steven A. Meyerowitz, Editor-in-Chief, Meyerowitz Communications Inc., 10 Crinkle Court, Northport, New York 11768, [email protected], 631-261-9476 (phone), 631-261-3847 (fax). Material for publication is welcomed—articles, decisions, or other items of interest to bankers, officers of financial institutions, and their attorneys. While the utmost care will be given material submitted, we cannot accept responsibility for unsolicited manuscripts. POSTMASTER: Send address changes to the Banking Law Journal, A.S. Pratt & Sons, 1901 Fort Myer Drive, Arlington, VA 22209. BLJ-July/Aug2003 6/9/03 9:43 PM Page 638 BANKRUPTCY FOR BANKERS HOWARD SEIFE COURTS DIVIDED ON DEBTORS’ PAYMENTS TO “CRITICAL VENDORS” ON ENTERING CHAPTER 11 When debtors enter chapter 11, they typically file a number of “first- day” motions that they contend are needed to allow them to continue to operate effectively in bankruptcy. One of the most common of these motions seeks an order of the bankruptcy court authorizing payment of prepetition debt to “critical vendors.” Debtors maintain that these payments are necessary to ensure that their suppliers continue to provide goods to them while they are in bankruptcy, thus improving the likelihood that they will be able to successfully reorganize.1 In many instances, lenders and other creditors and parties in interest do not object to these payments. Courts, however, are divided on the ability of bankruptcy judges to approve them.2 This division is unlikely to be resolved any time soon, at least without the U.S. Supreme Court’s intervention or an amendment to the Bankruptcy Code clarifying the issue — neither of which event is on the horizon. At this point, therefore, it would seem that debtors Howard Seife is a partner in Chadbourne & Parke LLP’s New York office and chair of the firm’s bankruptcy and financial restructuring practice. Mr. Seife has more than two decades of experience as a bankruptcy attorney and has repre- sented lenders and other interested parties in reorganizations of technology, energy, retail, real estate, leasing, manufacturing, maritime, telecommunica- tions, and media companies. He has dealt with virtually every bankruptcy situa- tion, including debtor-in-possession financing, cash collateral orders, automatic stay relief, plan negotiation, sales of assets, and preference and fraudulent con- veyance actions, and is a leader in the use of cross-border ancillary proceed- ings. Mr. Seife may be reached at (212) 408-5361 and [email protected]. 638 BLJ-July/Aug2003 6/9/03 9:43 PM Page 639 BANKRUPTCY FOR BANKERS may add this factor to the other factors they consider when deciding where to file their bankruptcy petitions. The courts that are willing to permit debtors to make payments to critical vendors, including those in New York and Delaware, may see more debtors seeking relief in their jurisdiction. The “Doctrine of Necessity” Generally speaking, the filing of a petition for reorganization under chapter 11 of the Bankruptcy Code stays “any act to collect, assess, or recov- er a claim against the debtor that arose before the commencement of the case.”3 Notwithstanding that provision, debtors that file “critical vendor” motions usually seek to rely on the “doctrine of necessity,” along with Bankruptcy Code section 105(a), as the statutory basis for the payment of prepetition claims. Section 105(a) states: “The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent abuse of process.” The doctrine of necessity stems in part from two well established rules developed years ago in connection with railroad receiverships: the “Six Months Rule” and the “Necessity of Payment Rule.” The Six Months Rule arose from the historical practice of initiating rail- road receiverships with an order appointing a receiver who was granted court authorization to pay certain prepetition debts for labor, equipment, supplies or improvements from postpetition operating receipts.4 The rule was equi- table in nature and applied to expenses necessary for the continued operation of the railroad that were incurred in the period immediately preceding the petition for reorganization.5 The Six Months Rule was given statutory recognition in Section 77(b) of the Bankruptcy Act,6 which provided: 639 BLJ-July/Aug2003 6/9/03 9:43 PM Page 640 BANKING LAW JOURNAL “For all purposes of this section unsecured claims, which would have been entitled to priority if a receiver in equity of the property of the debtor had been appointed by a Federal court on the day of the approval of the petition, shall be entitled to such priority and the holders of such claims shall be treated as a separate class or classes of creditors.” The language of section 1171(b) of the Bankruptcy Code7 is the same in substance as that of Section 77(b),8 and it is clear that Congress intended that section 1171(b) operate to continue the Six Months Rule in granting certain creditors priority.9 The Six Months Rule traditionally has been applied in railroad cases,10 although some cases decided prior to the enactment of the Bankruptcy Code in 1978 suggested that the rule could be extended to other public service companies as well.11 The historical development of the Necessity of Payment Rule parallels that of the Six Months Rule. The U.S. Supreme Court first articulated a “necessity of payment doctrine” over a century ago in a railroad bankruptcy when it stated that “many circumstances may exist which may make it nec- essary and indispensable to the business of the road and the preservation of the property, for the receiver to pay pre-existing debts.”12 In essence, the Necessity of Payment Rule was a rule developed for the protection of trustees of a railroad who were faced with threats to the continued operation of the line during reorganization.13 The rule may be invoked by trustees as justifi- cation for the payment of prepetition debts paid to secure continued supplies or services essential to the continued operation of the railroad.14 Although this doctrine was not codified in the Bankruptcy Code, courts have used their equitable power under section 105(a) of the Bankruptcy Code to autho- rize the payment of prepetition claims when such payment is deemed neces- sary to the survival of a debtor in a chapter 11 reorganization. Consider the decision by the U.S. District Court for the District of Delaware in In re Just For Feet, Inc.15 The Just For Feet Decision Just For Feet, Inc. and its subsidiaries filed voluntary petitions for relief 640 BLJ-July/Aug2003 6/9/03 9:43 PM Page 641 BANKRUPTCY FOR BANKERS under chapter 11 in Delaware. Several days later, the debtors, which operat- ed retail stores that specialized in brand-name athletic footwear and related apparel, filed a motion for authorization to pay prepetition claims of trade vendors. At the hearing, the president of Just For Feet, Helen Rockey, testified that her company was “in the fashion business” and that it needed “new styles, new colors, [and] hot products on the floor to get the customer in the door.” Rockey testified that Just For Feet ordered the majority of its mer- chandise four to six months in advance and that by its bankruptcy filing the company had not yet received the merchandise it had ordered for the next holiday season.
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