Emory Bankruptcy Developments Journal Volume 31 Issue 2 The Twelfth Annual Emory Bankruptcy Developments Journal Symposium 2015 Creditors' Committees: Giving Tort Claimants a Voice in Chapter 11 Bankruptcy Cases Corinne McCarthy Follow this and additional works at: https://scholarlycommons.law.emory.edu/ebdj Recommended Citation Corinne McCarthy, Creditors' Committees: Giving Tort Claimants a Voice in Chapter 11 Bankruptcy Cases, 31 Emory Bankr. Dev. J. 431 (2015). Available at: https://scholarlycommons.law.emory.edu/ebdj/vol31/iss2/8 This Comment is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Bankruptcy Developments Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. MCCARTHY GALLEYSPROOFS 7/9/2015 1:00 PM CREDITORS’ COMMITTEES: GIVING TORT CLAIMANTS A VOICE IN CHAPTER 11 BANKRUPTCY CASES ABSTRACT Over the years, tort claimants have increasingly appeared in the bankruptcies of corporate debtors. More so than other participants in bankruptcy proceedings, tort claimants are brought into this forum involuntarily. Unlike shareholders, lenders, or even the corporate debtor’s employees, tort claimants often do not choose to engage in commercial transactions with corporate debtors. Rather, their claims arise because the debtor has harmed them without their consent. To protect their interests, tort claimants often request that courts order the United States Trustee to appoint a creditors’ committee to represent them. Courts have been authorized to do so under 11 U.S.C. § 1102(a)(2). While courts have the authority to form creditors’ committees for tort claimants, courts do not uniformly grant tort claimants’ requests. Through the lens of the Montreal, Maine and Atlantic Railway, Ltd. bankruptcy case, this Comment argues that courts should form creditors’ committees for tort claimants when corporate debtors with tort liability file for bankruptcy. Four arguments support this proposition. First, there are strong policy reasons for forming creditors’ committees for tort claimants. Second, courts need to form creditors’ committees for tort claimants to ensure that tort claimants are guaranteed due process of the law. Third, forming creditors’ committees for tort claimants is consistent with the case law interpreting 11 U.S.C. § 1102(a)(2), the Bankruptcy Code section authorizing the formation of creditors’ committees. Finally, forming creditors’ committees for tort claimants can have practical significance. MCCARTHY GALLEYSPROOFS 7/9/2015 1:00 PM 432 EMORY BANKRUPTCY DEVELOPMENTS JOURNAL [Vol. 31 INTRODUCTION This Comment argues that courts should form a creditors’ committee of tort claimants when a corporation with tort liability files for relief under chapter 11 of the Bankruptcy Code (the “Code”).1 The Code currently authorizes courts to form one or more creditors’ committees to represent unsecured creditors.2 The Code gives these committees significant powers, including the ability to negotiate a plan of reorganization with the debtor3 and the ability to hire lawyers, accountants, and other professionals to represent the committee’s interests.4 Although forming a creditors’ committee of tort victims is currently not commonplace, such committees need to be the norm, not the exception, in chapter 11 bankruptcy cases. The reasons why tort claimants need their own creditors’ committee can be shown through the use of the following hypothetical. Imagine losing a relative or suffering a serious injury at the hands of a corporate tortfeasor. You desire compensation for your loss, but the corporation that has harmed you has filed for bankruptcy. To make matters worse, you find out that the corporation owes significant amounts of money to several other parties. These parties include sophisticated individuals and various companies that have voluntarily engaged in business with the corporate debtor, including the corporation’s employees, lending institutions, and suppliers. Some of these parties have secured claims so they will get paid in full before you are paid, even if the debtor cannot pay you after it has satisfied these debts. Others have positions on the unsecured creditors’ committee, which will be able to hire professionals on the debtor’s dime. Such professionals have the expertise and know-how to negotiate for better repayment options and other advantageous treatment on behalf of their clients. You have requested that the court appoint a creditors’ committee to represent you. However, there is the chance that the court may instead give you only a seat on the existing creditors’ committee, or may deny your request outright. This possibility is a problem because the existing committee is stacked with 1 Chapter 11 is used primarily for business debtors to reorganize and continue operations or sell the business as a going concern. See 7 COLLIER ON BANKRUPTCY ¶ 1101.01 (Alan Resnick & Henry J. Sommer eds., 16th ed. 2010) (“Chapter 11 of the Bankruptcy Code provides an opportunity for a debtor to reorganize its business or financial affairs or to engage in an orderly liquidation of its property either as a going concern or otherwise.”). 2 11 U.S.C. § 1102(a)(1)–(2) (2012). 3 Id. § 1103(c)(3). 4 Id. § 1103(a) (giving creditors’ committees the ability to employ “one or more attorneys, accountants, or other agents, to represent or perform services for such committee”). MCCARTHY GALLEYSPROOFS 7/9/2015 1:00 PM 2015] CREDITORS’ COMMITTEES 433 individuals whose interests and even possible avenues for repayment are completely dissimilar from your own interests. This hypothetical reflects the real-life plight of tort claimants in the Montreal, Maine and Atlantic Railway, Ltd. (“MMA”) bankruptcy case. On July 6, 2013, a train owned by MMA broke free from a rail yard in Nantes, Quebec.5 At the time, the unmanned train was carrying about seventy-three tank cars filled with crude oil.6 Soon after breaking free, the train derailed and plowed into buildings in the nearby town of Lac-Megantic, Quebec.7 The ensuing fires burned for thirty-six hours and wreaked havoc in the town center, causing an estimated forty-seven deaths, countless other injuries, and leveling forty buildings.8 Given the extent of the devastation experienced by accident victims, news commentators have labeled the train crash the worst in North America in twenty years.9 One month after the crash, MMA filed a voluntary petition for relief under chapter 11 of the Code in the United States Bankruptcy Court for the District of Maine.10 Later the same month, the estates of some of the people killed in the train crash filed a motion to appoint a committee of creditors to represent the interests of the wrongful death and personal injury claimants.11 A few days later, the Quebec government, the town of Lac-Megantic, and the tort-victim’s class-action representatives filed a similar motion with the bankruptcy court.12 The Chapter 11 Trustee13 opposed both of these motions.14 In his opinion, 5 Runaway Train Devastates Canadian Town, CNN (July 12, 2013, 5:45 PM), http://www.cnn.com/ interactive/2013/07/world/canada-train-explosion/. 6 Id. 7 Id. 8 David McLaughlin, Frederic Tomesco & Tiffany Kary, Montreal Maine Railway Files for Bankruptcy After Crash, BLOOMBERG NEWS (Aug. 8, 2013, 3:31 PM), http://www.bloomberg.com/news/2013-08- 07/montreal-maine-railway-files-for-bankruptcy-after-crash.html (estimating $200 million in cleanup costs for the accident); Runaway Train Devastates Canadian Town, supra note 5. 9 Louise Egan & Tom Hals, Railway in Deadly Quebec Explosion Files for Bankruptcy, REUTERS (Aug. 7, 2013, 6:23 PM), http://www.reuters.com/article/2013/08/07/us-train-montrealmaineatlantic-idUSBRE97614 E20130807. 10 Bankruptcy Petition, In re Montreal Me. & Atl. Ry., Ltd., No. 13-10670 (Bankr. D. Me. Aug. 7, 2013), ECF No. 1. 11 Wrongful Death Claimants’ Motion for Formation of Creditors’ Committee, at 1, In re Montreal Me. & Atl. Ry., Ltd., No. 13-10670 (Bankr. D. Me. Aug. 22, 2013), ECF No. 76. 12 Motion of Informal Committee of Quebec Claimants for Appointment of Creditors’ Committee Pursuant to Bankruptcy Code Section 1102(a)(2) at 1, 5–6, In re Montreal Me. & Atl. Ry., Ltd., No. 13-10670 (Bankr. D. Me. Aug. 30, 2013), ECF No. 127 [hereinafter Montreal Me. & Atl. Ry. Motion for Appointment]. 13 In a railroad reorganization, a trustee is always appointed with input from the U.S. Department of Transportation. 11 U.S.C. § 1163 (2012). In a typical chapter 11 case, however, a chapter 11 trustee is not appointed, and the debtor serves as the debtor in possession, having the powers and duties of the chapter 11 MCCARTHY GALLEYSPROOFS 7/9/2015 1:00 PM 434 EMORY BANKRUPTCY DEVELOPMENTS JOURNAL [Vol. 31 appointing a creditors’ committee in the case would be wholly unnecessary.15 However, the experience of tort claimants in other chapter 11 bankruptcy cases strongly contradicts the Chapter 11 Trustee’s skepticism. Tort claimants have faced harsh outcomes in chapter 11 bankruptcy cases when they do not have their own creditors’ committee. In In re Chrysler, LLC, more than 150 personal injury victims requested the bankruptcy court to appoint an official creditors’ committee of tort claimants.16 Instead of appointing a separate committee to represent the personal injury victims, the United States Trustee17 appointed one tort claimant and one asbestos claimant to an existing creditors’ committee.18 This creditors’ committee consisted primarily of parties who were interested in selling Chrysler’s property “free and clear” of tort liability.19 These creditors had negotiated a deal in which they would receive an ownership interest in the newly formed Chrysler entity.20 Eventually, these creditors prevailed over the tort claimants because Chrysler’s assets were sold free and clear of the existing tort claims against Chrysler.21 Chrysler provided virtually nothing to tort claimants who had trustee.