As part of a continued effort in Europe to reform insolvency legislation, the British government issued a paper in March 2018 as a response to a draft directive published by the European Commission in November 2016. The Response proposed highly significant reforms to the current insolvency legislation which–interestingly, in this era of Brexit–if adopted, would bring the British insolvency policies closer in line with the current policies of the European Union. Learn more about the proposed reform from this recent restructuring alert, which breaks down the new proposed restructuring plan, analyzes a possible implementation timeline and compares the potential legislation to the current policies in place in the European Union.

Another decision has been issued that reinforces that section 553 does not allow setoff without mutuality, or “triangular setoff.” On November 13, 2018, Judge Gross of the United States Bankruptcy Court for the District of Delaware denied a motion in In re Orexigen Therapeutics, Inc. to affect a triangular setoff under section 553 of the Bankruptcy Code due to the lack of mutuality.[1] The Court found that even though a contractual right allowing McKesson Corporation and its subsidiary corporation to affect a prepetition triangular setoff was enforceable under state law, the arrangement did not comport with the strict mutuality required under the Bankruptcy Code.

Section 553

Section 553 of the Bankruptcy Code provides, subject to certain exceptions, that the Bankruptcy Code “does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case.” The setoff provision of the Bankruptcy Code does not create right of setoff; it preserves for creditor’s benefit any setoff right that it may have under applicable non-bankruptcy law and imposes additional restrictions that must be met in order for the creditor to impose a setoff against a debtor in bankruptcy.[2] Specifically, the Bankruptcy Code requires that the debts and credits must both have arisen before bankruptcy and that there would be “mutuality” between the debiting and crediting parties.[3] While the Bankruptcy Code does not define “mutuality,”[4] courts interpreting this provision find debts to be mutual only where the debts exist between the “same parties” in the “same capacity.”[5] Mutuality is strictly construed against the party seeking setoff.

Analysis

Here, McKesson sought to effectuate a triangular setoff by offsetting it’s almost $7 million debt to the Debtor against the Debtor’s approximately $9 million debt to McKesson’s subsidiary. McKesson argued that because the Debtor owed its subsidiary in excess of the amount owed to McKesson, section 553(a) enables McKesson to set off the subsidiary’s claim against McKesson’s payment.

The Court’s review of the relevant case law and underlying policies behind section 553 made it clear that “[m]utuality is the lynchpin of setoff under section 553(a).”[6] McKesson did not have a mutual debt under section 553(a) because the debt was owed to its subsidiary – a separate and distinct legal entity. Judge Gross found that McKesson ran into “fatal contrary bankruptcy precedent” that found triangular setoffs to be impermissible under section 553(a) without mutuality.[7] Without such mutuality between McKesson and the Debtor, the Court could not allow the setoff.

Judge Gross further explained that “section 553(a) aligns with the fundamental bankruptcy policy of ensuring similarly-situated creditors receive an equal distribution from the debtor’s estate.” The Court refused to read a contractual exception to the strict mutuality requirement of section 553 because that would create the situation where creditors could receive a greater distribution than other equal-footed creditors and thus dilute the bankruptcy estate to the detriment of all creditors.[8]

McKesson also tried to argue that the subsidiary was a third-party beneficiary under the contract between McKesson and the Debtor, and that the contractual third-party beneficiary doctrine provides the required mutuality.[9] The Court found this argument to be another attempt by McKesson to validate a contractual exception to mutuality. The Court found this “unavailing” because “if there w[as] a contractual third-party beneficiary status exception, parties would merely add language intending that a third-party be a third-party beneficiary of a contract allowing for triangular setoff.” The Court refused to provide an avenue for deliberate circumvention of the Bankruptcy Code.

Takeaways

The decision is another upset for the accessibility of triangular setoffs in bankruptcy. Setoff under section 553 of the Bankruptcy Code requires real mutuality; the Court’s decision makes it abundantly clear that mutuality requires the “same parties” in the “same capacity.” This case supports the trend that parent companies cannot simply argue triangular setoff to mix and match the debits and credits arising from discrete contracts held by the individual entities within its organizational structure.

[1] No. 18-10518 (KG), 2018 Bankr. LEXIS 3579, at *1 (Bankr. D. Del. Nov. 13, 2018).

[2] In re SemCrude, L.P., 399 B.R. 388, 393 (Bankr. D. Del. 2009), aff’d, 428 B.R. 590 (D. Del. 2010).

[3] The Court also discussed how section 553(a) requires the party seeking setoff to be a “creditor.” In re Orexigen Therapeutics, Inc., 2018 Bankr. LEXIS 3579, at *9. The Court found that McKesson was a creditor only because the parties treated McKesson as a creditor in its’ stipulations; the Court noted that it would not have otherwise deemed McKesson as a creditor because McKesson had paid off its debt to the Debtor, extinguishing its claim. Id.

[4] 5 Collier on Bankr. ¶ 553.03 (16th 2018).

[5] See In re SemCrude, 399 B.R. at 393 (“[T]he authorities are also clear that debts are considered ‘mutual’ only when ‘they are due to and from the same persons in the same capacity.’” (quoting Westinghouse Credit Corp. v. D’Urso, 278 F.3d. 138, 149 (2d Cir. 2002)).

[6] Id. at *24.

[7] In re Orexigen Therapeutics, Inc., 2018 Bankr. LEXIS 3579, at *9 (citing In re SemCrude, L.P., 399 B.R. 388, 393 (Bankr. D. Del. 2009) and In re Lehman Bros. Inc., 458 B.R. 134, 139 (Bankr. S.D.N.Y. 2011)).

[8] Id.

[9] A third-party beneficiary to a contract is a party who directly or incidentally benefits from a contract between two other parties.

The Fifth Circuit Court of Appeals reminded the plaintiff that standing is “determined as of the commencement of the suit” and post filing claims purchases will not suffice to establish standing. Here, the plaintiff, [also the debtor’s owner], sought to appeal appointment of special counsel. The Bankruptcy Court found that the plaintiff lacked standing to object because he was not a creditor and did not have a stake in the estate and then approved the Trustee’s application to employ SBPC over the improper objection. The plaintiff filed an appeal and then purchased a proof claim in order to obtain creditor status. The Fifth Circuit agreed with the Bankruptcy Court and noted that “[o]nly those directly, adversely and financially impacted by a bankruptcy order may appeal it.” Standing is “determined as of the commencement of the suit and a plaintiff cannot belatedly claim creditor status and establish standing retroactively.”

The Ninth Circuit Court of Appeals recently held that a secured creditor’s purchase of general unsecured claims to block confirmation of a Chapter 11 plan did not in itself constitute bad faith. In In re Fagerdala USA, the debtor owned real property on which Pacific Western Bank held the senior secured claim. The debtor’s plan of reorganization sought to impair Pacific Western’s claim by using an interest rate lower than the penalty interest rate for its loan, and modifying the length of the term and other loan provisions. Under section 1129(a)(10) of the Bankruptcy Code, in order to approve a plan over the objections of impaired creditors, a debtor is required to obtain the consent of at least one impaired class. In order to ensure that this debtor would not receive such consent, Pacific Western attempted to strategically buy up a sufficient amount of general unsecured claims—the only other impaired class—to block the plan. While Pacific Western did not seek to buy every general unsecured claim, it was able to purchase “one-half in number” of the general unsecured class, and was thus able to block the approval of the plan.

After the plan vote, the debtor moved to designate the votes Pacific Western cast on behalf of its general unsecured claims, arguing that Pacific Western purchased those claims in bad faith. To “designate” means the votes for the claims will not be counted in voting to accept or reject the plan. The bankruptcy court granted the debtor’s motion, concluding that “designation is appropriate in this case because [Pacific Western] will have an unfair advantage over the unsecured creditors who did not receive a purchase offer and who hold the largest percentage of claims…in terms of amount.” The district court affirmed this ruling, but the Ninth Circuit reversed it and remanded the case to the bankruptcy court.

The Ninth Circuit reasoned that “merely protecting a claim to its fullest extent cannot be evidence of bad faith. There must be some evidence beyond negative impact on other creditors.” Looking to case law, the court enumerated several clear examples of bad faith such as where a competitor purchases claims to destroy the debtor’s business or further its own or a non-preexisting creditor purchasing claims only to block the plan and then stated “[d]oing something allowed by the Bankruptcy Code and case law, without evidence of ulterior motive, cannot be bad faith. Not offering to purchase all the claims in a class (to later use those claims to block a plan) is not—alone—sufficient to evidence the bad faith necessary to designate votes under § 1126(e).”

The Delaware Bankruptcy Court recently voided the transfer of bankruptcy claims where the seller failed to obtain the debtor’s prior written consent, as required by the underlying promissory notes.

Both the promissory notes and the related loan agreement included anti-assignment language providing that any transfer would be null and void unless the debtor provided its prior written consent. In spite of this restriction, the note holders transferred the notes to buyer without obtaining the debtor’s consent. When buyer filed a proof of claim based on the transferred notes, the debtor objected, arguing that the transfer was null and void because the debtor never consented.

Buyer first argued that the anti-assignment clause could not invalidate the transfer as a matter of Delaware law. In holding to the contrary, the court distinguished between anti-assignment clauses that merely limit a party’s “right” to assign from clauses that limit a party’s “power” to assign. Delaware courts will invalidate transfers under a contract where such contract includes an anti-assignment clause that provides any assignment made in violation of the clause will be null and void (e.g. limitation of “power” to assign), but will not invalidate transfers where the contract’s anti-assignment clause does not so provide (e.g. limitation of “right” to assign). The court held that the anti-assignment clauses in Woodbridge properly restricted the noteholders’ power to assign the notes because they provided for voiding any transfer made in violation thereof. Thus, invalidation of the transfers pursuant to the anti-assignment clauses was proper.

Buyer next argued that the anti-assignment clauses unenforceable either because of debtor’s breach of the agreement or because of UCC §9-408. The court disagreed holding “it is axiomatic that a non-breaching party may not emerge post-breach with more rights than it had pre-breach.” Accordingly, the anti-assignment clause remained attached to the promissory notes because “neither the [assignors] nor any assignee were able to emerge post-breach with more rights than they had pre-breach.” The Court then found UCC §9-408, which invalidates provisions restricting assignment in grants of security interests, inapplicable because Contrarian was not granted a security interest in the promissory notes.

Buyer then asserted that even if the anti-assignment clauses were both valid and enforceable they did not apply because the noteholders only transferred their rights under the notes and not the notes themselves. The court disagreed holding that “[t]he language of both the Anti-Assignment Clause and the Loan Agreement manifests both a clear intention to forbid the assignment of the Promissory Note itself, and any rights thereunder.”

While not breaking new ground, the case reinforces the court’s view that “claim purchasers are sophisticated entities that are capable of both assessing the risk of disallowance through due diligence, and mitigating that risk through contractual provisions, such as indemnities.” It also serves as a reminder that reviewing the underlying documents for transfer restrictions is a critical part of a claim purchaser’s due diligence. While not clear from the decision whether settling the transfer via participation would have overcome the disability, it is good practice to include a “participation savings clause” that takes effect if an assignment is deemed invalid. Finally, what is also not clear is whether the result would have been different if the seller had filed a proof of claim before or in conjunction with the transfer.

In an April 6, 2018 memorandum opinion and order, U.S. District Judge John G. Koeltl dismissed an appeal challenging the Chapter 15 recognition of a Cayman Islands restructuring of an offshore drilling contractor, holding that the appellant lacked standing and that the appeal was equitably moot. See In re Ocean Rig UDW Inc., No. 17-cv-7222 (JGK), 2018 WL 1725223 (S.D.N.Y. Apr. 6, 2018).

The appeal was brought by a purported shareholder of debtor Ocean Rig UDW Inc. (“UDW”). The purported shareholder sought review of an order issued by U.S. Bankruptcy Judge Martin Glenn granting recognition of provisional liquidation and scheme of arrangement proceedings in the Cayman Islands of UDW and three of its subsidiaries (Drill Rigs Holdings Inc. (“DRH”), Drillships Financing Holding Inc. (“DFH”), and Drillships Ocean Ventures Inc. (“DOV”), collectively the “Debtors”) as “foreign main proceedings” under section 1517 of the Bankruptcy Code.

In the ancillary proceedings in the Bankruptcy Court, the appellant had opposed the Debtors’ petition for recognition on numerous grounds, including on the basis that venue was improper in the Southern District of New York, that the Debtors failed to meet their burden of proving that their center of main interests (“CoMI”) was in the Cayman Islands, that the Debtors improperly manipulated their CoMI, and that granting recognition would violate the public policy objectives of Chapter 15. The Bankruptcy Court overruled the objections of the purported shareholder and granted recognition and other related relief under sections 1520 and 1521 of the Bankruptcy Code. See In re Ocean Rig UDW Inc., 570 B.R. 687 (Bankr. S.D.N.Y. 2017).

Appellant noticed an appeal but did not seek a stay of the recognition order. Thus, the Debtors moved forward with their restructuring via four interrelated schemes of arrangement under Cayman Islands law (the “Schemes”). The Schemes involved the exchange of more than $3.7 billion of existing financial indebtedness for $450 million in new secured debt, approximately $288 million in cash payments, and new equity in UDW. Under the Schemes, existing shareholders of UDW retained a nominal amount of equity in the reorganized UDW (0.02%), but this token amount was provided solely to facilitate UDW’s ability to maintain its NASDAQ listing and was not an indication of UDW’s solvency; in fact, the indicative value of the consideration distributed to the scheme creditors was significantly less than the face amount of their claims.

Appellant did not object to the provisional liquidation proceedings or the Schemes, which were later sanctioned (i.e., approved) by the Grand Court of the Cayman Islands. Similarly, appellant did not object to the request in the Chapter 15 proceedings for entry of an enforcement order, and the Bankruptcy Court ultimately issued an order giving full force and effect to the Schemes in the United States. Promptly upon the Bankruptcy Court’s issuance of the enforcement order, the Debtors consummated the restructuring in accordance with the Schemes.

Meanwhile, in the District Court, the Debtors and their authorized foreign representative moved to dismiss the appeal, arguing that the appellant’s purported shareholder status was insufficient to give her appellate standing, and that in any event, her appeal had been rendered equitably moot by the consummation of the restructuring. The District Court granted the motion on both grounds.

Standing

As to standing, the District Court reiterated the two-pronged standard that the appellant in a bankruptcy case (1) must be an “aggrieved person” whose pecuniary interests are directly affected by the order at issue; and (2) must have “prudential standing,” in that he or she is asserting his or her “own legal rights and interests and not those of third parties.” Ocean Rig, 2018 WL 1725223, at *3. In discussing the latter prong, the District Court observed that “[p]rudential standing is particularly important in a bankruptcy context where one party may seek to challenge the plan based on the rights of third parties who favor the plan.” Id.

The District Court held that the appellant, a purported shareholder, was not an “aggrieved person” because she “did not stand to lose anything” from UDW’s restructuring. Id. The District Court reasoned that UDW was insolvent prior to initiating restructuring proceedings in the Cayman Islands, and that UDW’s Cayman Scheme had the effect of sending the “total value of UDW, represented by the new equity” to “UDW’s creditors pro rata, with no value left for its pre-restructuring shareholders.” Id. Thus, the appellant lacked the requisite pecuniary interest. Id.

Additionally, the District Court rejected the appellant’s argument that she had a pecuniary interest in the restructuring because UDW’s Scheme gave 0.02% of UDW’s newly issued equity to pre-restructuring shareholders. Id. at *4. Upon observing that UDW’s Scheme was constructed in that manner “in an effort to avoid having to re-register UDW’s shares on the NASDAQ, which would have ‘adversely affected’ the newly issued shares”—rather than because the pre-restructuring shareholders were actually entitled to the newly issued shares on account of their pre-restructuring holdings—the District Court held that the shares were merely “gifts” from UDW’s creditors. Id. The District Court then concluded that the nominal distribution of new equity to preexisting shareholders did not suggest that the Debtors were solvent, and did “not change the fact that the appellant was not entitled to receive anything as part of the debtors’ restructuring because the debtors’ creditors had not received the full portion of their claims.” Id.

The District Court further observed that while under the Second Circuit’s decision in In re DBSD N. Am., Inc., 634 F.3d 79, 95 (2d Cir. 2011), a dissenting class of unsecured creditors in a Chapter 11 case “may have standing to challenge such ‘gifts’ to shareholders,” appellant had provided no authority that the receipt of such a gift “provide[d] the recipient shareholders with standing to contest the restructuring.” Ocean Rig, 2018 WL 1725223, at *4.

Equitable Mootness

The District Court also held that dismissal was warranted on equitable mootness grounds, which it considered an independent and “additional reason” for dismissal. Id. Although the District Court recognized that the doctrine of equitable mootness originated in Chapter 11 of the Bankruptcy Code, it noted that the doctrine had since been imported and applied in cases under Chapters 7, 9, and 13, as well as in a case involving former Bankruptcy Code section 304, the predecessor statute to Chapter 15. Id. (citing, e.g., Allstate Ins. Co. v. Hughes, 174 B.R. 884 (S.D.N.Y. 1994) (Sotomayor, J.)). The District Court found “unpersuasive” appellant’s argument that equitable mootness cases under Chapter 11 former Bankruptcy Code section 304 have no force in the Chapter 15 context, reasoning that the same “principles of finality and fairness” that pertain to “domestic organizations” and the same “concerns of comity” that animated former section 304 apply in the chapter 15 context. Id. at *6.

The District Court thus applied Second Circuit’s established equitable mootness standard to this Chapter 15 appeal. Id. at *5. Under that standard, “when a reorganization has been substantially consummated, there is a ‘strong presumption’ that an appeal of an unstayed order is moot.” Id. (collecting cases). Such presumption may only be overcome if five circumstances are present:

(a) the court can still order some effective relief; (b) such relief will not affect the re-emergence of the debtor as a revitalized corporate entity; (c) such relief will not unravel intricate transactions so as to knock the props out from under the authorization for every transaction that has taken place and create an unmanageable, uncontrollable situation for the Bankruptcy Court; (d) the parties who would be adversely affected by the modification have notice of the appeal and an opportunity to participate in the proceedings; and (e) the appellant pursue with diligence all available remedies to obtain a stay of execution of the objectionable order . . . if the failure to do so creates a situation rendering it inequitable to reverse the orders appealed from.

Id. (quoting Frito-Lay, Inc. v. LTV Steel Co. (In re Chateaugay, Corp.), 10 F.3d 944, 952-53 (2d Cir. 1993)).

In setting forth the Chateaugay standard, the District Court emphasized the importance of the appellant seeking a stay of the order at issue, citing “fairness concerns” that arise from attempts to undo a reorganization that has already been substantially completed. Id.

In applying this standard, the District Court first observed that the appellant did not seek a stay of the Bankruptcy Court’s recognition order. Id. It then found that appellees had “argue[d] persuasively” that, on their restructuring effective date, their positions “comprehensively changed” and their “Cayman reorganization ha[d] been substantially completed.” Id. In particular, the District Court noted that the Debtors had “issued new equity and made cash distributions to creditors and entered into a new secured debt facility, as well as a long-term management services agreement.” Id. Given this change of circumstances, the District Court held there was a “strong presumption” that the appeal was moot on the ground that “the debtors’ reorganization has already been substantially completed.” Id. As the appellant failed to persuade the District Court that this “strong presumption” was overcome, the District Court dismissed her appeal as equitably moot. Id. at *6.

*          *          *

If you have any questions about any of the topics discussed in this opinion, please contact your Orrick attorney or any of the following attorneys:

Evan Hollander, Daniel Rubens, and Emmanuel Fua.

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