The Cramdown The Newsletter of the Tampa Bay Bankruptcy Bar Association Editor-in-Chief, Robert J. Wahl, Forizs & Dogali, P.A. Winter 2011 PRESIDENT’S MESSAGE Looking forward, the question is what can we by Elena Paras Ketchum accomplish together in this last half of the 2010- Stichter Riedel Blain 2011 bar year? The answer is, I believe, we can & Prosser, P.A. accomplish whatever we, as an Association, put our talents and energy towards!!! Some of the items which we are working towards accomplishing during Happy New Year, Tampa the remainder of the year are (1) launching the Bay Bankruptcy Bar new TBBBA website, (2) circulating a membership Association!!!!! directory, (3) continuing the Association’s volunteer efforts in the community through the Credit Abuse am not one for making New Year’s resolutions, Resistance Education Program (or C.A.R.E.), such as no sweets for the next 3 months, mainly (4) hosting Happy Hours for our members, (5) becauseI I can’t seem keep them. ☺ I do believe, organizing an “Art in the Park” event to be held however, in taking stock at the beginning of a new in the park located in front of the Tampa Museum year of what has been accomplished in the past of Art and the Glazer Children’s Museum, and (6) year and what can be improved in the coming year providing outstanding CLE luncheon and Brown and working towards those improvements. Bag luncheons to the membership. In looking back at the first half of the 2010 – 2011 At the beginning of the 2010-2011 bar year, I asked bar year, our Association has had a tremendous the Board to consider new ideas and new way of beginning, due to the tireless efforts of the doing things for our Association. I now challenge Directors who serve your Association and to the all of you to consider how we may improve our numerous other volunteers. Without those of Association and to share your ideas! I welcome you who volunteer their talents, energy and you to email any ideas and suggestions to me at time to the Association, we would not be able to [email protected]. provide the monthly CLE Luncheons, the Brown Bag Luncheon at the courthouse, or even this I look forward to seeing everyone at our luncheons, wonderful publication to the membership at large. happy hours, volunteer events and other Reiterating what I expressed in my prior message, Association functions!!! it is you who keeps the Association running and running strong! Inside This Issue Please Release Me, Let Me Go ..............................................3 Robinson v. Tyson Foods ......................................................14 Good Faith Not Merely a Talking Point ...................................7 Suprems Court’s Ransom .....................................................20 Administrative Freezes Unfrozen ..........................................12 Experiencing Financial Difficulties? ......................................23 The Cramdown can be accessed via the Internet at www.flmb.uscourts.gov and www.brokenbench.org The Cramdown 1 The Tampa Bay Bankruptcy Bar Association 2010-2011 Past Presidents Officers and Directors President Historian 1988 -1989 Don M. Stichter Elena Paras Ketchum Wanda Hagan Golson Stichter Riedel Blain & Prosser, P.A. Golson Legal, P.A. 110 E. Madison Street 1724 East 5th Avenue 1989-1990 Douglas McClurg Tampa, Florida 33602 Tampa, Florida 33605 [email protected] [email protected] 1990-1991 Richard C. Prosser 813-229-0144 813-241-0900 Vice President Judicial Liaison 1991-1992 Robert B. Glenn Lara Roeske Fernandez Cinthia P. Burnette Trenam Kemker Office of the U.S. Trustee 1992-1993 Thomas B. Mimms, Jr. 101 East Kennedy Boulevard, Suite 2700 501 E. Polk Street, Suite 1200 Tampa, Florida 33602 Tampa, Florida 33602 [email protected] [email protected] 1993-1994 Edward M. Waller, Jr. 813-227-7404 813-228-2000 1994-1995 Harley E. Riedel Secretary Consumer Brad Hissing Suzy Tate Kass Shuler Solomon Spector Foyle & Jennis & Bowen, P.L. 1995-1996 Roberta A Colton Singer, P.A. 400 N. Ashley Drive, Suite 2540 Post Office Box 800 Tampa, Florida 33602 Tampa, Florida 33601 [email protected] 1996-1997 Jeffrey W. Warren [email protected] 813-229-1700 813-229-0900 1997-1998 Michael P. Horan Membership Treasurer Stephanie Biernacki Anthony Kelley Petry Anthony & Partners, LLC 1998-1999 Dennis J. LeVine Kelley M. Petry, P.A. 201 N. Franklin Street, Suite 2400 Post Office Box 7866 Tampa, Florida 33602 1999-2000 Russell M. Blain Tampa, Florida 33673 [email protected] [email protected] 813-273-5613 813-873-0713 2000-2001 John D. Emmanuel Technology CLE Chairs Adam Alpert Keith Appleby Bush Ross, P.A. 2001-2002 Zala L. Forizs Fowler White Boggs Banker, P.A. 1801 N. Highland Avenue Post Office Box 1438 Tampa, Florida 33602 2002-2003 Catherine Peek McEwen Tampa, Florida 33601 [email protected] [email protected] 813-224-9255 813-222-2081 2003-2004 John Lamoureux Cramdown Edward Peterson Robert J. Wahl 2004-2005 Edwin Rice Stichter Riedel Blain & Prosser, P.A. Forizs & Dogali, P.A. 110 E. Madison Street, Suite 200 4301 Anchor Plaza Parkway, Suite 300 Tampa, Florida 33602 Tampa, Florida 33634 2005-2006 David Tong [email protected] [email protected] 813-229-0144 813-289-0700 2006-2007 Herbert Donica Community Service Lori Vaughan 2007-2008 Shirley Arcuri Trenam Kemker 101 East Kennedy Boulevard, Suite 2700 Tampa, Florida 33602 2008-2009 Donald R. Kirk [email protected] 813-227-7432 2009-2010 Luis Martinez-Monfort 2 The Cramdown Eleventh Circuit Please Release Me, Let Me Go The Eleventh Circuit has not directly addressed (For I don’t Want to Owe You Anymore)1 whether the bankruptcy code prohibits the release of non-debtor parties, but in In re Munford, the Eleventh Third Party Releases and Circuit appears to align itself with the “pro-release” courts.7 In Munford, the Eleventh Circuit affirmed the Injunctions in Florida Chapter bankruptcy court’s approval of a settlement agreement that permanently enjoined non-settling defendants 11 Cases from asserting contribution and indemnification claims against a non-debtor because the injunction was by Andrew Layden, integral to the settlement agreement. The Munford Law Clerk to U.S. Bankruptcy Judge Caryl E. Delano decision does not, however, discuss whether § 524(e) acts to prohibit non-consensual third party releases in Third Party Releases Generally chapter 11 plans. hapter 11 debtors sometime seek court orders Florida Cases Creleasing non-debtor third parties and permanently Florida bankruptcy courts have permitted third party enjoining creditors from asserting claims against the releases in some circumstances.8 Judge Jennemann’s third parties. These third party releases typically benefit decision in In re Transit Group, Inc.9 provides the most the debtor’s insiders or non-insiders who contribute to comprehensive discussion of third party releases. the debtor’s reorganization. The federal circuits are Transit Group adopted a two part test for determining currently split over whether bankruptcy courts have the whether a third party release is appropriate. First, the authority to issue releases or permanent injunctions debtor must demonstrate that unusual circumstances 2 protecting third parties from liability post-confirmation. exist; second, the non-debtor release must be fair and The Ninth and Tenth Circuits hold that 11 U.S.C. § necessary, utilizing the factors developed in the Dow 3 524(e) prohibits the release of non-debtors, while Corning case: the Second, Third, Fourth, Sixth and Seventh Circuits hold that non-debtor releases are appropriate in some (1) Whether the debtor and the third party share circumstances pursuant to a bankruptcy court’s § 105 an identity of interests, usually an indemnity 4 equitable powers. relationship; (2) Whether the non-insider contributed Third party releases were first used in mass tort substantial assets to the reorganization; cases, when bankruptcy courts approved settlement (3) Whether the injunction is essential to the agreements or confirmed chapter 11 plans containing reorganization; “channeling” injunctions. These injunctions required (4) Whether the impacted class has tort claimants to assert their claims against trust funds overwhelmingly voted to accept the plan; 5 created by the debtor’s settling insurance carrier. (5) Whether the plan provides a mechanism to The injunctions typically barred actions against the pay for all or substantially all the claims of the debtor’s insiders, third parties providing DIP financing, classes affected; and the debtor’s insurance carrier. Following these (6) Whether the plan provides an opportunity early decisions, courts have authorized the use of for those claimants who choose not to settle to third party releases beyond the mass tort context.6 continued on p. 4 1 With apologies to Englebert Humperdink, http://www.youtube.com/watch?v=6S9ecXWCBCc. 2 Courts generally agree that bankruptcy courts may issue temporary injunctions as to litigation against non-debtors when that litigation significantly impairs the debtor’s reorganization. See In re Goldberg, 221 B.R. 907 (Bankr. M.D. Fla. 1998); In re Hillsborough Holdings Corp., 123 B.R. 1004 (Bankr. M.D. Fla. 1990). A debtor seeking a temporary injunction protecting a non-debtor should file an adversary proceeding. See F.R.B.P. 7001(7). 3 See In re Lowenschuss, 67 F.3d 1394 (9th Cir. 1995); In re Western Real Estate Fund, Inc., 922 F.2d 592 (10th Cir. 1990). 4 See In re Metromedia Fiber Network, Inc., 416 F.3d 136 (2d Cir. 2005); In re Continental Airlines, Inc., 203 F.3d 203 (3d Cir. 2000); In re A.H. Robins, Inc., 880 F.2d 694 (4th Cir. 1989); In re Dow Corning Corp., 280 F.3d 648 (6th Cir. 2002); In re Airadigm Comm., Inc., 519 F.3d 640 (7th Cir. 2008). 5 See In re Johns-Manville Corp., 837 F.2d 89 (2d Cir. 1988); A.H.