The U.S. Court of Appeals for the Seventh Circuit has taken under advisement the latest case involving the now contentious issue of credit bidding.
Judge Bruce Black of the United States Bankruptcy Court for the Northern District of Illinois last year refused to permit the debtors in In re River Road Hotel Partners LLC, et al. (“River Road”) to circumvent a secured lender’s right to credit bid in connection with a sale of assets subject to the lender’s lien. The debtors in River Road were relying on the Third Circuit Court of Appeals’ controversial decision in Philadelphia Newspapers, which upheld a debtor’s efforts to prevent its secured lenders from credit bidding in connection with an auction held under a plan of reorganization.
The majority opinion in Philadelphia Newspapers determined that, notwithstanding the express reference in subsection (ii) of Section 1129(b)(2)(A) to the right to credit bid in connection with a sale “free and clear” of liens pursuant to a plan of reorganization, a sale “free and clear” could also take place pursuant to a plan, without allowing the lenders to credit bid, under Section 1129(b)(2)(A)(iii), the “indubitable equivalent” provision. Third Circuit Judge Thomas Ambro, a bankruptcy practitioner of many years, penned a lengthy dissent, noting that the result flew in the face of the established principle that property rights in bankruptcy look to applicable non-bankruptcy law, and the long standing expectation that the Bankruptcy Code expressly protects such non-bankruptcy rights – particularly the right of a secured creditor to look to its collateral in the event of non-payment.
Judge Black expressly rejected the reasoning of the Philadelphia Newspapers majority, stating that he found the dissent from Judge Ambro, “well-reasoned [and] more persuasive.”
At the River Road debtors’ request, Judge Black certified an appeal directly to the Seventh Circuit, and the court heard arguments earlier this month. The Seventh Circuit panel, consisting of Judges David Hamilton, Richard Cudahy, and Daniel Manion, presented a “hot bench”, directing numerous questions at counsel for both sides.
Interestingly, at no point during oral argument was it noted that the Third Circuit in Philadelphia Newspapers never actually decided whether the non-credit bid plan at issue in that case could be confirmed. It only upheld the debtor’s right in that case to seek to do so. Since the lenders in Philadelphia Newspapers subsequently chose to participate in the sale auction and won with a cash bid, the ultimate question of whether such a plan would provide the secured lenders with the “indubitable equivalent” of their secured claims was never answered.
The Seventh Circuit should affirm Judge Black’s ruling and follow Judge Ambro’s reasoning in Philadelphia Newspapers, and in doing so plainly address the unanswered open question from that case. Even if an argument could plausibly be made, through a hyper-literal reading of Section 1129(b)(2)(A), that a secured lender can be denied the right to credit bid in connection with a sale under a plan of reorganization, beyond such hyper-literalism there really is no valid basis to contend that any such plan could provide the “indubitable equivalent” of the lender’s secured claim, and such a plan should never be confirmed over the secured lender’s objection. The Bankruptcy Code contains strong protections, including the right to credit bid under Section 363(k) and the anti-lien stripping provisions of Section 1111(b), that unambiguously work to prevent a debtor from “cashing out” a secured creditor by paying such creditor a depressed value for the collateral. The cramdown provisions of Section 1129(b)(2)(A) clearly are intended to complement those protections, not abrogate them through a resort to the “indubitable equivalent” standard.