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Critical Vendor Orders After Kmart

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Critical Vendor Orders After Kmart Coming in June: Risk Management BusinessBusiness CreditCredit® National Association of Credit Management Pre-Conference Issue THE PUBLICATION FOR May 2005 CREDIT AND FINANCE PROFESSIONALS $7.00 CREDIT COLUMN Critical Vendor Orders After Kmart: A New Lease On Life BRUCE S. NATHAN, ESQ. n the Kmart case, the Seventh Circuit Court The Seventh Circuit’s harsh test for preferred criti- of Appeals rejected any preferred treat- cal vendor treatment prompted some to pronounce I ment for some 2,300 ”critical vendors” the death knell of the critical vendor doctrine. with pre-petition unsecured claims exceed- Well, ladies and gentlemen, ”critical vendor” is still Hear Bruce speak at ing $300 million. The Seventh Circuit had ruled that alive and well. The Seventh Circuit covers only the Credit Congress: the bankruptcy court lacked any basis under the states of Illinois, Indiana and Wisconsin. Where Bankruptcy Update: outdated ”necessity of payment” doctrine and the the courts are not bound by the Seventh Circuit’s Point/Counterpoint court’s equitable powers under Section 105(a) of the Kmart holding, the rest of the country can inter- June 14 Bankruptcy Code to approve Kmart’s payment of crit- pret it broadly. It did not take long for courts to Protecting Trade ical vendors’ pre-petition claims. approve the debtor’s payment of critical vendors’ Creditors From pre-petition claims. Customer Bankruptcy Nevertheless, the Seventh Circuit suggested, but did Risk: No Need to Cry the Blues! not decide, that Section 363(b) of the Bankruptcy That happened in the recent decision of the nited June 15 Code might be a basis for approving preferred treat- States Bankruptcy Court for the Middle District of ment for critical vendors, under the right circum- Florida in the Tropical Sportswear Int’l Corporation stances. However, the debtor must first prove all of Chapter 11 case. Tropical Sportswear had filed a Related Sessions the following: (a) the critical vendors would not liquidating Chapter 11 and was seeking bankruptcy at Credit Congress: have done business with the debtor on any basis; court approval of the sale of most of its assets. Shielding Your cash, deposit or otherwise, absent the debtor’s However, the survival of Tropical’s business, and its Receivables From payment of their pre-petition unsecured claims, and ability to consummate the sale, was contingent on Bankruptcy and Secured Creditors (b) the debtor would have been forced to liquidate Tropical’s continuing to receive goods and services Through Trust Fund absent payment of critical vendor claims, yielding from certain critical suppliers, and these suppliers Laws and Agreements other unsecured creditors less than they would have had threatened to turn off the spigot unless Tropical (13080) received under a confirmed Chapter 11 plan. paid their pre-petition claims and waived all prefer- ence claims against them. The bankruptcy court The Seventh Circuit’s holding in Kmart suggested a held that it had the authority under Sections 105(a) drastic cutback of availability of preferred treatment and 363(b) of the Bankruptcy Code to approve for critical vendors. If a court applying the Kmart Tropical’s payment of the critical vendors’ pre-peti- test required testimony from a critical vendor corrob- tion claims and waiver of preference claims against 2005 orating its unwillingness to do any further business them. And this is by no means an isolated occur- Y MA with a debtor (on even cash, deposit or letter of rence. Courts in other jurisdictions have approved credit terms) and someone from the vendor’s sales the preferred treatment of critical vendors’ pre-peti- area was subpoenaed to testify, does anyone seri- tion unsecured claims. So the critical vendor ously believe that the sales person would testify, ”no doctrine remains alive and well, even in the after- further business, even for cash”? math of Kmart! BUSINESS CREDIT CREDIT COLUMN Background ment. Secured and lien creditors sit at the top of the ladder Tropical Sportswear designed, manufactured and marketed high and are entitled to payment from the proceeds of their collat- quality casual and dress-casual trousers, shorts, denim jeans eral and a general unsecured claim for any deficiency. and woven and knit shorts for men, women and boys. Tropical Administrative claims owing to creditors for their goods and marketed its products through all major apparel retail channels, services provided to the debtor during the bankruptcy case are including department stores, discounters and mass merchants, on the next lower rung of the priority ladder. Creditors hold- wholesale clubs, national chains, specialty stores, catalog ing lower level priority claims, such as wage, salary, benefit, retailers and via the Internet. tax and other claims are entitled to payment in a designated order of priority from the debtor’s unencumbered assets, after Tropical’s crucial suppliers included Galey & Lord, Avondale the full payment of all administrative priority claims and Mills, Burlington Worldwide and Interamericana Products before any payment or other distribution can be made to the International/Omega de Exportaciones (collectively, the debtor’s creditors holding lower priority pre-petition general ”Critical Vendors”). When Tropical filed for bankruptcy, it owed unsecured claims. Pre-petition unsecured creditors occupy the $6,518,354.50 to the Critical Vendors. The Critical Vendors had lowest creditor rung of the priority ladder and are not entitled provided Tropical with certain unique products and services to receive any distribution from the debtor until the higher that Tropical used for the productions of pants. None of the priority creditors are paid in full. Critical Vendors were bound by contract or otherwise to continue to produce and sell new product to Tropical, and Those courts approving a debtor’s pre-plan payment of pre- Interamericana was a foreign corporation outside of the bank- petition unsecured claims had relied on affidavits or testi- ruptcy court’s jurisdiction. mony from the debtor’s officer stating that the payments were necessary for the debtor’s reorganization and successful Each of the Critical Vendors informed Tropical that they would business operation, and/or were in the best interests of all halt the production and sale of new product unless Tropical paid creditors and other parties in interest. Some courts estab- 77.5 percent of their pre-petition claims, and 100 percent of lished more onerous requirements for court approval of the their valid reclamation claims, and Tropical waived all prefer- payment of critical vendors’ pre-petition claims. Virtually all ence claims against them. The Critical Vendors offered to courts conditioned critical vendor payments upon the provide 60-day payment terms and revolving credit lines if vendors’ agreement to continue extending credit to the Tropical met their demands. debtor on terms set forth in the order or motion, or based on the parties’ agreement. Tropical was in a pickle. It needed four to six weeks to replace the Critical Vendors with alternate suppliers. The vendors could However, some courts, including certain United States Circuit stop supplying critically needed goods and services to Tropical, Courts of Appeal, had denied the payment of any pre-petition jeopardizing Tropical’s business. unsecured claims prior to confirmation of a Chapter 11 plan. These courts reasoned the Bankruptcy Code does not authorize In the meantime, Tropical was pushing for court approval of a pre-plan payments to unsecured creditors. Also, such payments Bankruptcy Code Section 363(b) sale of its assets to Perry Ellis violate the general claims priority rules that require the full International or any higher successful bidder of the assets. Any payment of higher priority claims before any payment can be cutoff of goods and services supplied by the Critical Vendors made to lower priority pre-petition unsecured creditors and the threatened the sale. The alternative was a disorderly fire sale same treatment for creditors in the same class. liquidation of Tropical’s assets that would have yielded far less for creditors. In Kmart, the Seventh Circuit ruled that the ”necessity of payment” doctrine no longer applied to bankruptcy cases and The Genesis Of Favorable Treatment the equitable power granted to bankruptcy courts is not a basis For Critical Vendors for approving a debtor’s payment of critical vendors’ pre-peti- The courts had approved the debtor’s payment of critical tion claims. However, the court suggested (without deciding) vendors’ pre-petition unsecured claims during its Chapter 11, that Bankruptcy Code Section 363(b) might be grounds for the and prior to confirmation of a plan based on the ”necessity of payment of critical vendors’ pre-petition claims. However, a payment” doctrine and the bankruptcy court’s equitable power debtor seeking court approval of critical vendor payments under under Section 105(b) of the Bankruptcy Code. The ”necessity of Section 363(b) must prove that (a) the creditor would not do payment” doctrine was first enunciated by the United States business with the debtor on any terms (even for cash) if such Supreme Court before the enactment of the Bankruptcy Code payments are not made, and (b) the non-participating creditors and has been followed by many courts. Section 105(a) grants would be better off with, rather than without, the payments. the bankruptcy court the power to ”issue any order, process or Not easy to prove! judgment that is necessary or appropriate to carry out the 2005 provisions of this title”. Bankruptcy Court Approval Of Preferred Treatment Y MA Of The Critical Vendors In Tropical Sportswear Preferred treatment for critical vendors became an exception The court approved Tropical’s payment of the Critical Vendors’ to the claims priority rules. Claims are supposed to be paid pre-petition and reclamation claims and waiver of preference based on where they are situated on the claims priority claims against them.
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