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    1     UNITED STATES BANKRUPTCY COURT
          SOUTHERN DISTRICT OF NEW YORK
    2     - - - - - - - - - - - - - - - - - -x

    3     In re:                                             Chapter 11

    4     HOSTESS BRANDS, INC.,                              12-22052-rdd

    5                         Debtors.

    6     - - - - - - - - - - - - - - - - - -x

    7
                  MODIFIED BENCH RULING ON MOTION OF THE ACE COMPANIES
    8          TO COMPEL ARBITRATION RELATED TO DEBTORS’ CASH COLLATERAL
                                         MOTION
    9

   10     APPEARANCES:
   11
          JONES DAY
   12
                  Attorneys for Debtors
   13
                  222 East 41st Street
   14
                  New York, NY     10017
   15
          BY:     ROBERT HAMILTON, ESQ.
   16
                  HEATHER LENNOX, ESQ.
   17
                  MICHAEL SILBERFARB, ESQ.
   18

   19
          DUANE MORRIS LLP
   20
                  Attorneys for ACE Companies
   21
                  1540 Broadway
   22
                  New York, NY     10036
   23
          BY:     LEWIS OLSHIN, ESQ.
   24
                  WENDY M. SIMKULAK, ESQ.
   25
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    1     HON. ROBERT D. DRAIN, UNITED STATES BANKRUPTCY JUDGE:

    2     The debtors in this case filed a motion, dated November 5,

    3     2012, for authority to use cash collateral of ACE American

    4     Insurance Company pursuant to section 363(c) of the

    5     Bankruptcy Code, and, as applicable, sections 361 (dealing

    6     with adequate protection) and 105.

    7                 The motion was adjourned on consent to January

    8     2013. However, in the meantime ACE has moved to compel

    9     arbitration of what it terms a contract dispute underlying

   10     the debtors' cash collateral motion.           And it is that motion

   11     to compel arbitration that is presently before me.

   12                 The reply brief submitted by ACE succinctly

   13     summarizes the facts. Pursuant to prior agreements, which

   14     have been, by order of the Court, assumed (and I'm

   15     compressing a lot into that phrase, because the orders

   16     themselves are important and affect the interpretation of

   17     the agreements), the debtors have agreed to provide the cash

   18     collateral to the ACE Companies for purposes of securing

   19     their obligations under the agreements, including the

   20     agreement to pay deductibles, that the debtors owe to the

   21     ACE companies under their insurance program.

   22                 Those obligations continue to accrue, although the

   23     policies have now been replaced or expired, because,

   24     obviously, there's a continuing expectation that injuries

   25     covered by the policies will manifest themselves.
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    1                 ACE asserts, simply, the collateral was provided

    2     pursuant to the collateral agreement, the collateral secures

    3     their obligations under the collateral agreement, the

    4     collateral agreement, in Article 4, expressly requires the

    5     debtors to continue to provide collateral until ACE

    6     determines that there is no longer any need for such

    7     security, before the calculation of the insurance

    8     obligation, as defined in the collateral agreement, and that

    9     calculation may only be determined by interpreting the

   10     collateral agreement.        Therefore, ACE contends, the motion

   11     contemplates a breach of the collateral agreement, and,

   12     therefore, ACE contends, that breach, or that dispute, must

   13     be arbitrated under the arbitration clause in the agreement.

   14                 That arbitration clause states, "Any controversy,

   15     dispute, claim, or question arising out of or relating to

   16     this agreement, including, without limitation,

   17     interpretation, performance, or non-performance by any

   18     party, or any breach thereof, (hereinafter collectively

   19     “controversy”) shall be referred to and resolved exclusively

   20     by three arbitrators through private confidential

   21     arbitration conducted in Philadelphia, Pennsylvania."

   22                 There's a mechanism for selecting the arbitration

   23     panel:    "One arbitrator shall be chosen by each party, and a

   24     third by the two so chosen. If either party refuses or

   25     neglects to appoint an arbitrator within 30 days after
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    1     receipt of written notice from the other party requesting it

    2     to do so, the requesting party may choose a total of two

    3     arbitrators who shall choose a third.            If those arbitrators

    4     fail to select a third arbitrator within ten days, after

    5     both have been named, the party plaintiff shall notify the

    6     American Arbitration Association, which shall appoint the

    7     third arbitrator,” who shall be disinterested and neutral.

    8                 Further, “The arbitrators may abstain from

    9     following the strict rules of law and shall make their

   10     decision with regard to the custom and usage of insurance

   11     business as of the effective date of this agreement."

   12                 The ACE insurers contend in their motion that

   13     under applicable law the foregoing provision requires

   14     arbitration of the dispute regarding the debtors proposed

   15     breach of the applicable insurance program, and, as laid out

   16     on the record today by counsel for ACE, at least part of the

   17     issue relating to the cash collateral motion, which is what

   18     is the exact amount of the debtors' obligations that are

   19     secured under the applicable agreement.

   20                 The debtors contend, to the contrary, that the

   21     issue before the Court is not a breach of contract issue,

   22     but, rather, their right, whether or not the contract is

   23     breached by exercising such right, to use cash collateral

   24     pursuant to section 363(c)(2) of the Bankruptcy Code, which

   25     states that “The trustee” (and, for these purposes, a debtor
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    1     in possession is the equivalent of a trustee) "may not use,

    2     sell, or lease cash collateral under paragraph 1 of this

    3     subsection, unless (a) each entity that has an interest in

    4     such cash collateral consents, or (b) the court, after

    5     notice and a hearing, authorizes such use, sale, or lease in

    6     accordance with the provisions of this section."

    7                  The standard for such determination is set forth

    8     in Section 363(e) of the Bankruptcy Code, which states,

    9     "Notwithstanding any other provision of this section, at any

   10     time on request of an entity that has an interest in

   11     property sold, used, or leased, or proposed to be used,

   12     sold, or leased, by the trustee, the court, with or without

   13     a hearing, shall prohibit or condition such use, sale, or

   14     lease as is necessary to provide adequate protection of such

   15     interest."

   16                  “Adequate protection” is also referred to and

   17     defined, although, in a fairly open-ended way, in section

   18     361 of the Bankruptcy Code, which states that "when adequate

   19     protection is required under Section 363, it may be provided

   20     by," and then it lists several factors in the alternative,

   21     which have been supplemented by the case law.

   22                  At this point, following the leading decisions of

   23     In re United States Lines, Inc., 197 F.3d 631 (2d Cir.

   24     1999), and MBNA America Bank v. Hill, 436 F.3d 104 (2d Cir.

   25     2006), the law regarding when and under what circumstances
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    1     arbitration is required in a bankruptcy case, and when, if

    2     it is not required, the Court should exercise its discretion

    3     to stay it, is fairly well defined in the Second Circuit.

    4                 The law is well summarized by Bankruptcy Judge

    5     Glenn in In re Bethlehem Steel Corp, 390 B.R. 784 (Bankr.

    6     S.D.N.Y 2008).      He states, at 789, "When determining whether

    7     to compel arbitration and stay proceedings pending

    8     arbitration, a court must " (that is, the bankruptcy court

    9     in particular) "undertake a multi-step process: first, it

   10     must determine whether the parties agreed to arbitrate;

   11     second, it must determine the scope of that agreement;

   12     third, if federal statutory claims are asserted, it must

   13     consider whether Congress intended those claims to be non-

   14     arbitrable; and, fourth, if the court concludes that some,

   15     but not all, of the claims in the case are arbitrable, it

   16     must then decide whether to stay the balance of the

   17     proceedings pending arbitration." (quoting Oldroyd v. Elmira

   18     Bank, 134 F.3d 72, 75-76 (2d Cir. 1998).

   19                 When reading the case law, it is clear that in

   20     applying that analysis the courts are motivated or swayed in

   21     part by not just a simple determination of whether a matter

   22     is non-core or core pursuant to 28 U.S.C. section 157(b),

   23     although that is an important factor, but whether, even if

   24     it is core under that section of the Judicial Code, it is,

   25     in fact, “substantially” core or truly a function of the
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    1     bankruptcy process.       They do so, I believe, in part because

    2     they are interpreting whether, in fact, the first factor is

    3     met, which is whether the parties agreed to arbitrate, and,

    4     also, whether the third factor is met, which is whether

    5     Congress intended the claims at issue to be non-arbitrable.

    6                 Bankruptcy is a multi-party process that is rooted

    7     in the past but that in many cases drastically alters the

    8     parties' prebankruptcy rights.          It appears clear to me that

    9     using Judge Glenn's phrase “substantially core” from the

   10     Bethlehem Steel case, whether a debtor has authority to use

   11     cash collateral is clearly substantially core.              That is, it

   12     is central to the bankruptcy process that Congress

   13     contemplated as substantially altering otherwise existing

   14     and enforceable rights under applicable non-bankruptcy law,

   15     and that Congress did so in light of the fact that it is a

   16     multi-party process, and not just a simple two-party

   17     dispute.

   18                 Many courts apply that analysis in the context of

   19     determining whether the parties actually agreed to arbitrate

   20     the dispute, making the distinction between the prepetition

   21     debtor and the postpetition trustee or debtor in possession.

   22     See, for example, Bethlehem Steel, 390 B.R. at 790 and 793,

   23     in which the court, citing many other authorities, holds

   24     that bankruptcy law-created claims that are not derivative

   25     of the prepetition debtor's rights are not subject to
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    1     arbitration.      See also -- I appreciate it's the same judge,

    2     but the logic is the same, and equally telling -- In re S.W.

    3     Bach & Company, 425 B.R. 78 (Bankr. S.D.N.Y 2010), at 91

    4     through 92, as well as In re Salander-O'Reilly Galleries,

    5     LLC, 475 B.R. 9 (S.D.N.Y 2012), in which District Judge

    6     Seibel states, "There is no justification for binding

    7     creditors to an arbitration clause with respect to claims

    8     that are not derivative of one who is a party to it."

    9                 I recognize that Judge Lane in In re Cardali, 2010

   10     Bankr. LEXIS 4113 (Bankr. S.D.N.Y 2010), took the view that

   11     a fraudulent transfer lawsuit could be subject to

   12     arbitration, notwithstanding that the party in the shoes of

   13     the debtor in that case was asserting rights under the

   14     Bankruptcy Code created by Congress.           He did so because,

   15     however, those rights specifically derived from state law

   16     causes of action, and his view regarding Granfinanciera,

   17     S.A. v. Nordberg, 492 U.S. 33 (1989).            That view, frankly,

   18     conflicts with numerous other cases.           I don't need to decide

   19     my own position on that issue, but it appears clear to me

   20     that congressional authority to use cash collateral under

   21     the requirements set forth in sections 363(e) and 361 of the

   22     Bankruptcy Code is not at all rooted in a right that exists

   23     pre-bankruptcy.      Indeed, the whole purpose of the sections

   24     is to alter those rights, as created by Congress.

   25                 Therefore, it appears to me that with regard to
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    1     this particular dispute, the parties, in fact, did not agree

    2     to arbitrate the use of cash collateral.            I say that

    3     notwithstanding my belief that it is a broad arbitration

    4     agreement, as phrased, and, therefore, would satisfy in

    5     favor of ACE (and certainly the debtors would not carry

    6     their burden to show otherwise) that the agreement is broad.

    7     But, to me, it does not deal with the unique bankruptcy

    8     context of the cash collateral motion.

    9                 One can also approach the problem presented by the

   10     motion from the perspective of whether Congress intended

   11     this particular type of dispute to be non-arbitrable.

   12     Obviously, Congress did not so state expressly in the

   13     relevant provisions of the Bankruptcy Code.                On the other

   14     hand, Congress did expressly provide for the Court to make

   15     the relevant determination under section 363(e), and applied

   16     it to a trustee or debtor in possession, not the prepetition

   17     debtor.

   18                 And, further, it is, as such, a core matter going

   19     beyond the basic statutory definition of “core,” 28 U.S.C.

   20     section 157(b), to be a fundamental aspect of the bankruptcy

   21     process.    It is hard to see how Congress would have meant to

   22     turn over this particular type of determination, in which,

   23     as the Second Circuit has recognized, other parties in

   24     interest would have the right to intervene if they wanted to

   25     (see In re The Caldor Corp., 303 F.3d 161 (2d Cir. 2002); 11
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    1     U.S.C. section 1109(b)) to an arbitration panel in a two

    2     party dispute, which may abstain from following the strict

    3     rules of law and “shall make their decision with regard to

    4     the custom and usage of the insurance business.”              See

    5     generally Randall G. Block, “Bound in Bankruptcy,” 29 Los

    6     Angeles Lawyer (2007), in which the author states, "Other

    7     provisions of the Bankruptcy Code” (other than lift-stay

    8     motions) “that require the bankruptcy court to make findings

    9     or approve certain actions are arguably inconsistent with

   10     resolution through arbitration. For example, the

   11     confirmation of a plan, sale of property outside the

   12     ordinary course, use of cash collateral, or assumption or

   13     rejection of executory contracts all require express

   14     authorization by the court.         Arguably this authorization

   15     requirement does not comport with allowing disputes over

   16     these matters to be handled through arbitration.”

   17                 Again, all of those issues involve both multi-

   18     party notice and determination, recognizing the multi-party

   19     nature of bankruptcy issues in bankruptcy cases, and,

   20     finally, in a summary proceeding manner, the exercise, as a

   21     final call, of the bankruptcy judge's judgment as to the

   22     propriety of the action to be taken.           See In re Orion

   23     Pictures Corp., 4 F.3d 1095 (2d Cir. 1993).

   24                 It also appears to me that even if the arbitration

   25     provision does, in fact, apply to this dispute, the Court
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    1     should exercise its discretion and deny the arbitration

    2     demand.    The Court clearly has that authority, given that

    3     this is a core proceeding.         The cases stemming from the MBNA

    4     v Hill decision make that clear, as does the United States

    5     Lines decision, although MBNA also made it clear that to

    6     exercise the court's discretion on a core matter, that is,

    7     core under 28 U.S.C. section 157, the type of matter must be

    8     unique to or uniquely affected by bankruptcy proceedings,

    9     and the proceedings are a core bankruptcy function that

   10     invokes substantial substantive rights that are created by

   11     the Code and in severe conflict with arbitration under the

   12     Federal Arbitration Act.

   13                 As I noted earlier, this is clearly that type of

   14     proceeding.     Therefore, I see no contradiction in the logic

   15     employed by Bankruptcy Judge Walsh in Delaware in the NEC

   16     Holdings' case, which involved a similar request for cash

   17     collateral (the transcript of which has been attached as

   18     Exhibit B to the objection of the motion, which is Case No.

   19     10-1890, Docket No. 1360, Bankruptcy D. Delaware, June 30,

   20     2011), and Judge Walsh's written decision in In re Olympus

   21     Healthcare Group, 352 B.R. 603 (Bankr. D. Del. 2006), which

   22     involved not use of cash collateral, but a contract dispute,

   23     a true contract dispute, which certainly would be subject to

   24     arbitration.

   25                 If I were to exercise any discretion here, I
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    1     believe it would not be over whether I should hear the

    2     section 363(e) matter, because clearly I need to hear it, I

    3     have a duty to hear it, but, rather, whether I should parcel

    4     out a piece of that litigation to an arbitration panel.

    5     But, as I stated during oral argument, it would seem to me

    6     that that piece would only be a piece to fix a specific fact

    7     that might be at issue, as opposed to underlying rights of

    8     the parties.

    9                 It would be analogous to compelling a piece of a

   10     lift stay motion to go to arbitration, and then have that

   11     fact come back to me.        I suppose under certain

   12     circumstances, applying the Second Circuit's factors laid

   13     out in In re Sonnax, a court might do that, particularly if

   14     the non-bankruptcy tribunal or arbitrable panel was about to

   15     rule on that key issue.        See In re Sonnax Industries, Inc.,

   16     907 F.2d 1280, 1286 (2d Cir. 1990), laying out the twelve

   17     factors that the Circuit believes relevant to whether to

   18     lift the stay for another decision-making body to determine

   19     an issue.

   20                 But it would be in that context, as opposed to

   21     requiring arbitration, and it is the approach that has been

   22     taken by countless courts in the analogous situation where

   23     there was a lift-stay motion and parts of the issue were

   24     involved in arbitration and where the courts applied the

   25     Sonnax factors as opposed to saying that pieces of the lift
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    1     stay issue were to be sent to the arbitrators.              See, for

    2     example, Salander-O’Reilly Galleries, 479 B.R. at 25; In re

    3     St. Vincent's Catholic Medical Centers of New York, 2012

    4     U.S. Dist. LEXIS 139584 (S.D.N.Y September 27, 2012), at 8

    5     through 10; and In re Quigley Company, Inc., 361 B.R. 723,

    6     743 through 44 (Bankr. S.D.N.Y 2007).            See also In re

    7     Spectrum Information Technologies, Inc., 183 B.R. 360

    8     (Bankr. E.D.N.Y 1995), although I recognize that that case

    9     predates MBNA v Hill.

   10                 I conclude, in exercising my discretion with

   11     respect to this core matter under 28 U.S.C. section

   12     157(a)(2) (and it is “substantially” core under the

   13     arbitration/bankruptcy court analysis), that the issues,

   14     which substantially affect both bankruptcy policy as well as

   15     the conduct of this case, are such that even if the parties

   16     did, in fact, agree to arbitrate the cash collateral issue,

   17     and, further, that Congress did not intend to preclude the

   18     arbitration of this issue, having considered the nature of

   19     the claim and the facts of this case, clearly the whole

   20     dispute (and even the portion of dispute which would not

   21     result in anything more than providing a data point for the

   22     Court in deciding the dispute), should not be determined by

   23     an arbitration panel.

   24                 To do so would seriously jeopardize the objectives

   25     of the Bankruptcy Code as expressed in section 363(c) and
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    1     (e) and conflict with the integrity of the bankruptcy

    2     process in this case.        So I'll deny the motion.        The debtors

    3     can submit an order, and they should e-mail a copy of it to

    4     counsel for ACE before they submit it, to make sure it's

    5     consistent with my ruling.

    6

    7     Dated: White Plains, New York
                 January 7, 2013
    8

    9                                          /s/Robert D. Drain_______   __
                                               UNITED STATES BANKRUPTCY JUDGE
   10

   11

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Hostess arb cash collateral opinion

  • 1. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 1 Page Pg 1 of 14 1 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK 2 - - - - - - - - - - - - - - - - - -x 3 In re: Chapter 11 4 HOSTESS BRANDS, INC., 12-22052-rdd 5 Debtors. 6 - - - - - - - - - - - - - - - - - -x 7 MODIFIED BENCH RULING ON MOTION OF THE ACE COMPANIES 8 TO COMPEL ARBITRATION RELATED TO DEBTORS’ CASH COLLATERAL MOTION 9 10 APPEARANCES: 11 JONES DAY 12 Attorneys for Debtors 13 222 East 41st Street 14 New York, NY 10017 15 BY: ROBERT HAMILTON, ESQ. 16 HEATHER LENNOX, ESQ. 17 MICHAEL SILBERFARB, ESQ. 18 19 DUANE MORRIS LLP 20 Attorneys for ACE Companies 21 1540 Broadway 22 New York, NY 10036 23 BY: LEWIS OLSHIN, ESQ. 24 WENDY M. SIMKULAK, ESQ. 25
  • 2. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 2 Page Pg 2 of 14 1 HON. ROBERT D. DRAIN, UNITED STATES BANKRUPTCY JUDGE: 2 The debtors in this case filed a motion, dated November 5, 3 2012, for authority to use cash collateral of ACE American 4 Insurance Company pursuant to section 363(c) of the 5 Bankruptcy Code, and, as applicable, sections 361 (dealing 6 with adequate protection) and 105. 7 The motion was adjourned on consent to January 8 2013. However, in the meantime ACE has moved to compel 9 arbitration of what it terms a contract dispute underlying 10 the debtors' cash collateral motion. And it is that motion 11 to compel arbitration that is presently before me. 12 The reply brief submitted by ACE succinctly 13 summarizes the facts. Pursuant to prior agreements, which 14 have been, by order of the Court, assumed (and I'm 15 compressing a lot into that phrase, because the orders 16 themselves are important and affect the interpretation of 17 the agreements), the debtors have agreed to provide the cash 18 collateral to the ACE Companies for purposes of securing 19 their obligations under the agreements, including the 20 agreement to pay deductibles, that the debtors owe to the 21 ACE companies under their insurance program. 22 Those obligations continue to accrue, although the 23 policies have now been replaced or expired, because, 24 obviously, there's a continuing expectation that injuries 25 covered by the policies will manifest themselves.
  • 3. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 3 Page Pg 3 of 14 1 ACE asserts, simply, the collateral was provided 2 pursuant to the collateral agreement, the collateral secures 3 their obligations under the collateral agreement, the 4 collateral agreement, in Article 4, expressly requires the 5 debtors to continue to provide collateral until ACE 6 determines that there is no longer any need for such 7 security, before the calculation of the insurance 8 obligation, as defined in the collateral agreement, and that 9 calculation may only be determined by interpreting the 10 collateral agreement. Therefore, ACE contends, the motion 11 contemplates a breach of the collateral agreement, and, 12 therefore, ACE contends, that breach, or that dispute, must 13 be arbitrated under the arbitration clause in the agreement. 14 That arbitration clause states, "Any controversy, 15 dispute, claim, or question arising out of or relating to 16 this agreement, including, without limitation, 17 interpretation, performance, or non-performance by any 18 party, or any breach thereof, (hereinafter collectively 19 “controversy”) shall be referred to and resolved exclusively 20 by three arbitrators through private confidential 21 arbitration conducted in Philadelphia, Pennsylvania." 22 There's a mechanism for selecting the arbitration 23 panel: "One arbitrator shall be chosen by each party, and a 24 third by the two so chosen. If either party refuses or 25 neglects to appoint an arbitrator within 30 days after
  • 4. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 4 Page Pg 4 of 14 1 receipt of written notice from the other party requesting it 2 to do so, the requesting party may choose a total of two 3 arbitrators who shall choose a third. If those arbitrators 4 fail to select a third arbitrator within ten days, after 5 both have been named, the party plaintiff shall notify the 6 American Arbitration Association, which shall appoint the 7 third arbitrator,” who shall be disinterested and neutral. 8 Further, “The arbitrators may abstain from 9 following the strict rules of law and shall make their 10 decision with regard to the custom and usage of insurance 11 business as of the effective date of this agreement." 12 The ACE insurers contend in their motion that 13 under applicable law the foregoing provision requires 14 arbitration of the dispute regarding the debtors proposed 15 breach of the applicable insurance program, and, as laid out 16 on the record today by counsel for ACE, at least part of the 17 issue relating to the cash collateral motion, which is what 18 is the exact amount of the debtors' obligations that are 19 secured under the applicable agreement. 20 The debtors contend, to the contrary, that the 21 issue before the Court is not a breach of contract issue, 22 but, rather, their right, whether or not the contract is 23 breached by exercising such right, to use cash collateral 24 pursuant to section 363(c)(2) of the Bankruptcy Code, which 25 states that “The trustee” (and, for these purposes, a debtor
  • 5. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 5 Page Pg 5 of 14 1 in possession is the equivalent of a trustee) "may not use, 2 sell, or lease cash collateral under paragraph 1 of this 3 subsection, unless (a) each entity that has an interest in 4 such cash collateral consents, or (b) the court, after 5 notice and a hearing, authorizes such use, sale, or lease in 6 accordance with the provisions of this section." 7 The standard for such determination is set forth 8 in Section 363(e) of the Bankruptcy Code, which states, 9 "Notwithstanding any other provision of this section, at any 10 time on request of an entity that has an interest in 11 property sold, used, or leased, or proposed to be used, 12 sold, or leased, by the trustee, the court, with or without 13 a hearing, shall prohibit or condition such use, sale, or 14 lease as is necessary to provide adequate protection of such 15 interest." 16 “Adequate protection” is also referred to and 17 defined, although, in a fairly open-ended way, in section 18 361 of the Bankruptcy Code, which states that "when adequate 19 protection is required under Section 363, it may be provided 20 by," and then it lists several factors in the alternative, 21 which have been supplemented by the case law. 22 At this point, following the leading decisions of 23 In re United States Lines, Inc., 197 F.3d 631 (2d Cir. 24 1999), and MBNA America Bank v. Hill, 436 F.3d 104 (2d Cir. 25 2006), the law regarding when and under what circumstances
  • 6. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 6 Page Pg 6 of 14 1 arbitration is required in a bankruptcy case, and when, if 2 it is not required, the Court should exercise its discretion 3 to stay it, is fairly well defined in the Second Circuit. 4 The law is well summarized by Bankruptcy Judge 5 Glenn in In re Bethlehem Steel Corp, 390 B.R. 784 (Bankr. 6 S.D.N.Y 2008). He states, at 789, "When determining whether 7 to compel arbitration and stay proceedings pending 8 arbitration, a court must " (that is, the bankruptcy court 9 in particular) "undertake a multi-step process: first, it 10 must determine whether the parties agreed to arbitrate; 11 second, it must determine the scope of that agreement; 12 third, if federal statutory claims are asserted, it must 13 consider whether Congress intended those claims to be non- 14 arbitrable; and, fourth, if the court concludes that some, 15 but not all, of the claims in the case are arbitrable, it 16 must then decide whether to stay the balance of the 17 proceedings pending arbitration." (quoting Oldroyd v. Elmira 18 Bank, 134 F.3d 72, 75-76 (2d Cir. 1998). 19 When reading the case law, it is clear that in 20 applying that analysis the courts are motivated or swayed in 21 part by not just a simple determination of whether a matter 22 is non-core or core pursuant to 28 U.S.C. section 157(b), 23 although that is an important factor, but whether, even if 24 it is core under that section of the Judicial Code, it is, 25 in fact, “substantially” core or truly a function of the
  • 7. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 7 Page Pg 7 of 14 1 bankruptcy process. They do so, I believe, in part because 2 they are interpreting whether, in fact, the first factor is 3 met, which is whether the parties agreed to arbitrate, and, 4 also, whether the third factor is met, which is whether 5 Congress intended the claims at issue to be non-arbitrable. 6 Bankruptcy is a multi-party process that is rooted 7 in the past but that in many cases drastically alters the 8 parties' prebankruptcy rights. It appears clear to me that 9 using Judge Glenn's phrase “substantially core” from the 10 Bethlehem Steel case, whether a debtor has authority to use 11 cash collateral is clearly substantially core. That is, it 12 is central to the bankruptcy process that Congress 13 contemplated as substantially altering otherwise existing 14 and enforceable rights under applicable non-bankruptcy law, 15 and that Congress did so in light of the fact that it is a 16 multi-party process, and not just a simple two-party 17 dispute. 18 Many courts apply that analysis in the context of 19 determining whether the parties actually agreed to arbitrate 20 the dispute, making the distinction between the prepetition 21 debtor and the postpetition trustee or debtor in possession. 22 See, for example, Bethlehem Steel, 390 B.R. at 790 and 793, 23 in which the court, citing many other authorities, holds 24 that bankruptcy law-created claims that are not derivative 25 of the prepetition debtor's rights are not subject to
  • 8. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 8 Page Pg 8 of 14 1 arbitration. See also -- I appreciate it's the same judge, 2 but the logic is the same, and equally telling -- In re S.W. 3 Bach & Company, 425 B.R. 78 (Bankr. S.D.N.Y 2010), at 91 4 through 92, as well as In re Salander-O'Reilly Galleries, 5 LLC, 475 B.R. 9 (S.D.N.Y 2012), in which District Judge 6 Seibel states, "There is no justification for binding 7 creditors to an arbitration clause with respect to claims 8 that are not derivative of one who is a party to it." 9 I recognize that Judge Lane in In re Cardali, 2010 10 Bankr. LEXIS 4113 (Bankr. S.D.N.Y 2010), took the view that 11 a fraudulent transfer lawsuit could be subject to 12 arbitration, notwithstanding that the party in the shoes of 13 the debtor in that case was asserting rights under the 14 Bankruptcy Code created by Congress. He did so because, 15 however, those rights specifically derived from state law 16 causes of action, and his view regarding Granfinanciera, 17 S.A. v. Nordberg, 492 U.S. 33 (1989). That view, frankly, 18 conflicts with numerous other cases. I don't need to decide 19 my own position on that issue, but it appears clear to me 20 that congressional authority to use cash collateral under 21 the requirements set forth in sections 363(e) and 361 of the 22 Bankruptcy Code is not at all rooted in a right that exists 23 pre-bankruptcy. Indeed, the whole purpose of the sections 24 is to alter those rights, as created by Congress. 25 Therefore, it appears to me that with regard to
  • 9. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document 9 Page Pg 9 of 14 1 this particular dispute, the parties, in fact, did not agree 2 to arbitrate the use of cash collateral. I say that 3 notwithstanding my belief that it is a broad arbitration 4 agreement, as phrased, and, therefore, would satisfy in 5 favor of ACE (and certainly the debtors would not carry 6 their burden to show otherwise) that the agreement is broad. 7 But, to me, it does not deal with the unique bankruptcy 8 context of the cash collateral motion. 9 One can also approach the problem presented by the 10 motion from the perspective of whether Congress intended 11 this particular type of dispute to be non-arbitrable. 12 Obviously, Congress did not so state expressly in the 13 relevant provisions of the Bankruptcy Code. On the other 14 hand, Congress did expressly provide for the Court to make 15 the relevant determination under section 363(e), and applied 16 it to a trustee or debtor in possession, not the prepetition 17 debtor. 18 And, further, it is, as such, a core matter going 19 beyond the basic statutory definition of “core,” 28 U.S.C. 20 section 157(b), to be a fundamental aspect of the bankruptcy 21 process. It is hard to see how Congress would have meant to 22 turn over this particular type of determination, in which, 23 as the Second Circuit has recognized, other parties in 24 interest would have the right to intervene if they wanted to 25 (see In re The Caldor Corp., 303 F.3d 161 (2d Cir. 2002); 11
  • 10. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document10 Page Pg 10 of 14 1 U.S.C. section 1109(b)) to an arbitration panel in a two 2 party dispute, which may abstain from following the strict 3 rules of law and “shall make their decision with regard to 4 the custom and usage of the insurance business.” See 5 generally Randall G. Block, “Bound in Bankruptcy,” 29 Los 6 Angeles Lawyer (2007), in which the author states, "Other 7 provisions of the Bankruptcy Code” (other than lift-stay 8 motions) “that require the bankruptcy court to make findings 9 or approve certain actions are arguably inconsistent with 10 resolution through arbitration. For example, the 11 confirmation of a plan, sale of property outside the 12 ordinary course, use of cash collateral, or assumption or 13 rejection of executory contracts all require express 14 authorization by the court. Arguably this authorization 15 requirement does not comport with allowing disputes over 16 these matters to be handled through arbitration.” 17 Again, all of those issues involve both multi- 18 party notice and determination, recognizing the multi-party 19 nature of bankruptcy issues in bankruptcy cases, and, 20 finally, in a summary proceeding manner, the exercise, as a 21 final call, of the bankruptcy judge's judgment as to the 22 propriety of the action to be taken. See In re Orion 23 Pictures Corp., 4 F.3d 1095 (2d Cir. 1993). 24 It also appears to me that even if the arbitration 25 provision does, in fact, apply to this dispute, the Court
  • 11. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document11 Page Pg 11 of 14 1 should exercise its discretion and deny the arbitration 2 demand. The Court clearly has that authority, given that 3 this is a core proceeding. The cases stemming from the MBNA 4 v Hill decision make that clear, as does the United States 5 Lines decision, although MBNA also made it clear that to 6 exercise the court's discretion on a core matter, that is, 7 core under 28 U.S.C. section 157, the type of matter must be 8 unique to or uniquely affected by bankruptcy proceedings, 9 and the proceedings are a core bankruptcy function that 10 invokes substantial substantive rights that are created by 11 the Code and in severe conflict with arbitration under the 12 Federal Arbitration Act. 13 As I noted earlier, this is clearly that type of 14 proceeding. Therefore, I see no contradiction in the logic 15 employed by Bankruptcy Judge Walsh in Delaware in the NEC 16 Holdings' case, which involved a similar request for cash 17 collateral (the transcript of which has been attached as 18 Exhibit B to the objection of the motion, which is Case No. 19 10-1890, Docket No. 1360, Bankruptcy D. Delaware, June 30, 20 2011), and Judge Walsh's written decision in In re Olympus 21 Healthcare Group, 352 B.R. 603 (Bankr. D. Del. 2006), which 22 involved not use of cash collateral, but a contract dispute, 23 a true contract dispute, which certainly would be subject to 24 arbitration. 25 If I were to exercise any discretion here, I
  • 12. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document12 Page Pg 12 of 14 1 believe it would not be over whether I should hear the 2 section 363(e) matter, because clearly I need to hear it, I 3 have a duty to hear it, but, rather, whether I should parcel 4 out a piece of that litigation to an arbitration panel. 5 But, as I stated during oral argument, it would seem to me 6 that that piece would only be a piece to fix a specific fact 7 that might be at issue, as opposed to underlying rights of 8 the parties. 9 It would be analogous to compelling a piece of a 10 lift stay motion to go to arbitration, and then have that 11 fact come back to me. I suppose under certain 12 circumstances, applying the Second Circuit's factors laid 13 out in In re Sonnax, a court might do that, particularly if 14 the non-bankruptcy tribunal or arbitrable panel was about to 15 rule on that key issue. See In re Sonnax Industries, Inc., 16 907 F.2d 1280, 1286 (2d Cir. 1990), laying out the twelve 17 factors that the Circuit believes relevant to whether to 18 lift the stay for another decision-making body to determine 19 an issue. 20 But it would be in that context, as opposed to 21 requiring arbitration, and it is the approach that has been 22 taken by countless courts in the analogous situation where 23 there was a lift-stay motion and parts of the issue were 24 involved in arbitration and where the courts applied the 25 Sonnax factors as opposed to saying that pieces of the lift
  • 13. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document13 Page Pg 13 of 14 1 stay issue were to be sent to the arbitrators. See, for 2 example, Salander-O’Reilly Galleries, 479 B.R. at 25; In re 3 St. Vincent's Catholic Medical Centers of New York, 2012 4 U.S. Dist. LEXIS 139584 (S.D.N.Y September 27, 2012), at 8 5 through 10; and In re Quigley Company, Inc., 361 B.R. 723, 6 743 through 44 (Bankr. S.D.N.Y 2007). See also In re 7 Spectrum Information Technologies, Inc., 183 B.R. 360 8 (Bankr. E.D.N.Y 1995), although I recognize that that case 9 predates MBNA v Hill. 10 I conclude, in exercising my discretion with 11 respect to this core matter under 28 U.S.C. section 12 157(a)(2) (and it is “substantially” core under the 13 arbitration/bankruptcy court analysis), that the issues, 14 which substantially affect both bankruptcy policy as well as 15 the conduct of this case, are such that even if the parties 16 did, in fact, agree to arbitrate the cash collateral issue, 17 and, further, that Congress did not intend to preclude the 18 arbitration of this issue, having considered the nature of 19 the claim and the facts of this case, clearly the whole 20 dispute (and even the portion of dispute which would not 21 result in anything more than providing a data point for the 22 Court in deciding the dispute), should not be determined by 23 an arbitration panel. 24 To do so would seriously jeopardize the objectives 25 of the Bankruptcy Code as expressed in section 363(c) and
  • 14. 12-22052-rdd Doc 2045 Filed 01/07/13 Entered 01/07/13 17:40:45 Main Document14 Page Pg 14 of 14 1 (e) and conflict with the integrity of the bankruptcy 2 process in this case. So I'll deny the motion. The debtors 3 can submit an order, and they should e-mail a copy of it to 4 counsel for ACE before they submit it, to make sure it's 5 consistent with my ruling. 6 7 Dated: White Plains, New York January 7, 2013 8 9 /s/Robert D. Drain_______ __ UNITED STATES BANKRUPTCY JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25