Wesley, Circuit Judge:
This is an appeal from an order of the U.S. District Court for the Southern District of New York (Forrest, J.) enforcing a permanent anti-suit injunction issued after a bankruptcy settlement. The tortured corporate histories and shifting legal theories involved make it a messy case to distill. At its core, it is about more than 4,300 individuals (the "Avoca Plaintiffs") who allege significant injuries from the operation of a wood-treatment plant in Avoca, Pennsylvania (the "Avoca Plant") between 1956 and 1996. They originally brought their toxic-tort claims in Pennsylvania state court (the "PA State Action") against several entities including Kerr-McGee Corporation ("New Kerr-McGee"), but their suits were stayed when two of those entities, the owners/operators of the Avoca Plant (the "Tronox debtors" or "the debtors"), filed for bankruptcy in the Southern District of New York. The bankruptcy proceeding revealed a series of corporate transformations that ultimately yielded New Kerr-McGee. After the spinoff, New Kerr-McGee maintained control of the more lucrative oil and gas businesses and left the Tronox debtors with the immense environmental and tort liabilities arising from the previous operation of the Avoca Plant. These transactions were, as the bankruptcy court concluded, essentially fraudulent conveyances designed to place assets beyond the reach of the Tronox entities' creditors.
In the course of the bankruptcy proceeding, the Tronox debtors instituted an adversary proceeding against New Kerr-McGee for fraudulent conveyance to recover assets that would satisfy the debtors' liabilities. Ultimately, New Kerr-McGee settled with the Tronox debtors for over $5 billion; of that sum, more than $600 million was designated for beneficiaries of the Tort Claims Trust, including the Avoca Plaintiffs. New Kerr-McGee sought peace with that payment and required as part of the settlement that the District Court — the court tasked with approving the bankruptcy settlement — would issue an injunction barring the litigation of claims that are derivative or duplicative of the Tronox debtors' claims against New Kerr-McGee (the "Injunction").
After the District Court approved the settlement and issued the Injunction, the Avoca Plaintiffs sought to revive their toxic-tort claims in Pennsylvania state court, again naming New Kerr-McGee as a defendant. The Avoca Plaintiffs did not, however, alter their state-court complaint to allege direct claims against New Kerr-McGee to hold it responsible for its own alleged wrongdoing. Instead, they advanced indirect alter-ego and veil-piercing theories to hold New Kerr-McGee responsible for the conduct of the Tronox debtors. New Kerr-McGee moved in the District Court for an order enforcing the Injunction and for sanctions, asserting that the Injunction forecloses claims that arise from liabilities derived from or through the Tronox debtors that are also generalized and common to all creditors.
The Avoca Plaintiffs assert three bases for appellate jurisdiction — 28 U.S.C. §§ 1291, 158(d), and 1292(a)(1) — none of which persuade us. First, the District Court's order is not "final" for purposes of 28 U.S.C. § 1291, because it neither found contempt nor imposed sanctions. Second, the order is not a decision by the District Court on review of a bankruptcy court order, as required by § 158(d). Third, after an appropriate, under the circumstances, discussion of the merits, we conclude that we lack jurisdiction under § 1292(a)(1) because the District Court properly construed (and neither modified nor continued) the Injunction. In confirming the District Court's construction of the Injunction, we hold that the Avoca Plaintiffs' personal injury claims based on conduct of the Tronox debtors, and asserted against New Kerr-McGee on a variety of state-law indirect-liability theories, are generalized "derivative" claims that fall within the property of the bankruptcy estate. Accordingly, we lift the stay and
Critical to the District Court's decision below and ours here is the role and relationship of the relevant defendants in the PA State Action — "Kerr-McGee Chemical," "Old Kerr-McGee," and "New Kerr-McGee" — and the allegations against them. It gets confusing because both Old Kerr-McGee and New Kerr-McGee, at different times, have operated under the name "Kerr-McGee Corporation." The critical takeaway is that Kerr-McGee Chemical,
In 2005, the Avoca Plaintiffs sued Kerr-McGee Chemical, Old Kerr-McGee, and New Kerr-McGee
The Master Complaint alleged no direct liability of New Kerr-McGee; it failed to identify any act by New Kerr-McGee that contributed to the injuries of the Avoca Plaintiffs after its creation in 2001.
J.A. 504-05 (Master Compl. ¶ 21); see also Appellants' Br. 9 (explaining that paragraph 21 refers to the conduct of Old Kerr-McGee).
In 2009, the Tronox debtors, Tronox LLC and Tronox Worldwide LLC (f/k/a Kerr-McGee Chemical and Kerr-McGee Operating Corp. (i.e., Old Kerr-McGee), respectively), filed for Chapter 11 bankruptcy in the Southern District of New York. Because the principal defendants in the PA State Action — Kerr-McGee Chemical and Old Kerr-McGee — were debtors in the Tronox bankruptcy, the PA State Action was stayed and remains stayed.
In the bankruptcy proceeding, each of the Avoca Plaintiffs, as claimant creditors, filed a proof of claim seeking compensation for the toxic torts at the heart of the PA State Action and reserving any claims against nondebtors. The United States, as a major creditor of the Tronox debtors, subsequently intervened. Tronox Inc. v. Anadarko Petroleum Corp. (In re Tronox Inc.) ("Anadarko"), No. 14-cv-5495, 2014 WL 5825308, at *2 (S.D.N.Y. Nov. 10, 2014).
In May 2009, the Tronox debtors initiated an adversary proceeding in the bankruptcy court against New Kerr-McGee, asserting fraudulent-transfer claims (the "Adversary Proceeding").
The Adversary Proceeding continued for years. The Anadarko Litigation Trust and the United States jointly pursued the Adversary Proceeding against New Kerr-McGee and its parent, Anadarko. The Avoca Plaintiffs were not silent partners in this endeavor. The Plan provided that "representatives of the holders of Tort Claims will have certain agreed rights concerning the pursuit" of the Adversary Proceeding.
In December 2013, after trial over a four-month period, Bankruptcy Judge Gropper issued an opinion holding, inter alia, that New Kerr-McGee had "acted with intent to `hinder and delay' [the Tronox debtors'] creditors when they transferred out and then spun off the oil and gas assets, and that the [spinoff] transaction, which left the Debtors insolvent and undercapitalized, was not made for reasonably equivalent value." In re Tronox, 503 B.R. at 249. However, Judge Gropper reserved decision and final judgment on damages, which he indicated would be between $5.15 billion and $14.16 billion. See id. at 336-37, 347.
In April 2014, before a final judgment was entered, the parties settled the Adversary Proceeding for $5.15 billion (the "Settlement Agreement").
In exchange for New Kerr-McGee's payment of $5.15 billion, the parties agreed to a permanent injunction to insulate New Kerr-McGee from claims related to those the Adversary Proceeding's settlement extinguished. The District Court agreed and entered the following Injunction:
Anadarko, 2014 WL 5825308, at *10 (emphasis added); see also J.A. 223-24.
The Avoca Plaintiffs did not comment on or object to the proposed order. No one appealed the Injunction; it became final in early 2015.
In September 2015, the Avoca Plaintiffs filed a motion in Pennsylvania state court to restore their toxic-tort case to the calendar (the "Avoca Motion" or the "Motion"). J.A. 231-56. Despite detailing the history
The Avoca Plaintiffs' assertions against New Kerr-McGee — derived primarily from Judge Gropper's prejudgment findings
New Kerr-McGee subsequently moved in the District Court to enforce the Injunction. The District Court granted New Kerr-McGee's motion, ordering the Avoca Plaintiffs to dismiss with prejudice their state-court action. In re Tronox Inc., 549 B.R. 21 (S.D.N.Y. 2016).
It is clear from the District Court's detailed decision that its job was not made any easier by the efforts of the Avoca Plaintiffs' counsel. As the District Court explained:
Id. at 46.
Ultimately, the court made two rulings: (1) the Avoca Plaintiffs' claims were extinguished by the Settlement Agreement; and (2) even if they were not, the claims are barred by the Injunction. The District Court and New Kerr-McGee characterize the rulings as alternative holdings, in that they equally resolve that all claims are somehow barred. See id. at 50 ("Even if the Avoca Plaintiffs' claims were not otherwise unavailable as a matter of law, the Injunction separately bars any claim against the movant herein that they seek to assert."); Appellees' Br. 47-48 (urging us to affirm based on the District Court's "alternative holding" that the claims were extinguished by the Avoca Plaintiffs' assent to and recovery from the settlement). In our view, however, our job on appeal is to first determine the reach of the Injunction.
Relying on the Injunction's plain language and fundamental principles of bankruptcy law, the District Court interpreted the Injunction — particularly the term "Trust Derivative Claims" — to cover "action[s]... intended to increase the basket of assets for creditors regarding[ inter alia, the Avoca Plant], or based on prior ownership of a debtor...." In re Tronox
Specifically, she reasoned that (a) the Avoca Plaintiffs could not assert any direct-liability claims against New Kerr-McGee for conduct during the Avoca Plant's operations from 1956 to 1996, since New Kerr-McGee did not exist until 2001, and (b) the Avoca Plaintiffs had not asserted any direct-liability claims against New Kerr-McGee for conduct after 2001. Thus, the only claims the Avoca Plaintiffs raised were indirect-liability claims based on alter-ego/veil-piercing theories — attempts to impute to New Kerr-McGee the conduct of Old Kerr-McGee and Kerr-McGee Chemical. Read that way, the District Court found that the Avoca Plaintiffs' claims were "generalized to all creditors because they could be equally asserted (if they were not barred by the release) by any creditor of the Tronox debtor[s] ... whose claim has been left partially unsatisfied by recovery efforts from the Tronox debtors themselves." Id. at 53. For that reason, the claims were derivative and therefore property of the Tronox estate. Id. at 54. Concluding that the term "Trust Derivative Claims," as defined in the Injunction, was coextensive with the meaning of derivative claims in the bankruptcy context, the District Court held that the Avoca Plaintiffs' claims were barred by the Injunction. Id.
The District Court finally concluded that it was within its discretion and power to enforce the Injunction, and enforcement served the interest of "preventing litigation the pursuit of which is violative of an injunction previously issued by this Court." Id. at 55. In rejecting the Avoca Plaintiffs' request for the opportunity to replead in state court, the District Court noted that the Avoca Plaintiffs "had ample opportunity to work out their theories and present their strongest possible claims," yet "have provided no fact that would save their claims." Id. at 55-56. The District Court also noted concern that the Avoca Plaintiffs' request to allow them to seek leave to amend in state court was "in all events gamesmanship." Id. at 56. That view was "bolstered by the recent refusal of the Avoca Plaintiffs to dismiss their claims against the Tronox debtors — parties as to whom they have no credible arguments that any claim survives." Id.
Thus, the District Court ordered the Avoca Plaintiffs to dismiss with prejudice the PA State Action within seven days and to make no attempt to file any action alleging similar claims against New Kerr-McGee or any Tronox debtor in any other forum. Id. Although New Kerr-McGee had initially sought an order to show cause why the Avoca Plaintiffs and their counsel should not be held in contempt for violating the Injunction, the District Court deemed that request abandoned because, in part, New Kerr-McGee did not renew it in its reply brief or at oral argument. Id. at 38 n.11.
Three days prior to the District Court's deadline for dismissal of the PA State Action, the Avoca Plaintiffs moved for an emergency stay in this Court. In its opposing papers, New Kerr-McGee did not move to dismiss, but argued that the Avoca Plaintiffs were unlikely to prevail on the merits of the appeal because we lack appellate jurisdiction. A judge of this Court granted a temporary stay pending conclusive disposition of the emergency motion by a motions panel, and directed the Avoca
Although New Kerr-McGee has yet to move to dismiss, it continues to argue that there is no jurisdictional hook for this appeal. Federal courts at all levels always begin their work with a simple question: Has Congress given us authority to hear and decide this matter? Statutory jurisdiction goes to the heart of a federal court's power, and federal courts have an "independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte." Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) (citing Travelers Ins. Co. v. Carpenter, 411 F.3d 323, 328 (2d Cir. 2005)). We therefore must conduct a jurisdictional inquiry notwithstanding New Kerr-McGee's curious reluctance to move to dismiss on jurisdictional grounds while continuing to point out the flimsiness of the Avoca Plaintiffs' jurisdictional predicate.
There are a couple relevant avenues to appellate jurisdiction here: 28 U.S.C. § 1291 (conferring appellate jurisdiction over "final decisions" of district courts) and 28 U.S.C. § 1292 (conferring appellate jurisdiction over, inter alia, orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions"). New Kerr-McGee argues that neither section confers appellate jurisdiction over post-judgment orders that do nothing more than interpret and enforce a final injunction. It would be different, New Kerr-McGee urges, if the District Court had found contempt, imposed sanctions, or created new duties under the Injunction. Instead, New Kerr-McGee asserts, the District Court merely "reiterated the plain meaning of the Injunction and gave the Avoca Plaintiffs a grace period to comply." Appellees' Br. 18.
The Avoca Plaintiffs counter that we have § 1291 jurisdiction because the District Court's order "finally determines the rights of the Avoca Plaintiffs," and "[t]here was nothing left to be determined." Appellants' Reply Br. 3-4.
"It is a well-established rule of appellate jurisdiction that `a final order is one that conclusively determines the rights of the parties to the litigation, leaving nothing for the district court to do but execute the order.'" Forschner Grp., Inc. v. Arrow Trading Co., 124 F.3d 402, 410 (2d Cir. 1997) (quoting In re Fugazy Express, Inc., 982 F.2d 769, 775 (2d Cir. 1992)). Generally, orders finding a party in contempt but not imposing sanctions are not immediately appealable. See id. ("[A]n order adjudging a party in contempt unaccompanied by sanctions is not final and therefore is not appealable.").
Our decision in Wilder v. Bernstein, 49 F.3d 69 (2d Cir. 1995), and the Eleventh Circuit's decision in Thomas v. Blue Cross & Blue Shield Ass'n, 594 F.3d 814 (11th Cir. 2010), are instructive. In both, the district court interpreted the meaning of and directed compliance with its final order (a consent decree in Wilder and an anti-suit injunction in Thomas), but did not find contempt or impose sanctions. Specifically, in Wilder, the plaintiffs sued New York City asserting racial discrimination in foster-care policies. The parties entered into a consent decree in which the City agreed to certain changes in its practices. 49 F.3d at 70-71. The plaintiffs later sought contempt sanctions against the City based on its alleged failure to comply. The district court did not find the City in contempt or impose sanctions, but directed it to take "all appropriate steps" to implement the consent decree. Id. at 71-72 (quoting Wilder v. Bernstein, 153 F.R.D. 524, 535 (S.D.N.Y. 1994)). We dismissed the appeal for lack of jurisdiction, ruling that because "there ha[d] not been a finding of contempt, much less an assessment of sanctions, the order [was] not `final.'" Id. at 72 (citing Dove v. Atl. Capital Corp., 963 F.2d 15, 17-18 (2d Cir. 1992)). The Eleventh Circuit did the same in Thomas, raising the issue of jurisdiction sua sponte and concluding that the district court's order directing the plaintiff to withdraw his breach-of-contract complaint within twenty days was not final under § 1291, did not fall within the collateral order doctrine,
Here, as in Wilder, the District Court's order was issued in the context of a pending contempt motion but made no contempt finding, "much less an assessment of sanctions." See Wilder, 49 F.3d at 72. Therefore, it is not "final" as contemplated by § 1291. The District Court proceedings concerning compliance with the Injunction will not reach final adjudication
The only potential, yet ultimately inconsequential, distinction that the Avoca Plaintiffs raise between this case and Wilder and Thomas is that New Kerr-McGee somehow "abandoned" its request for a contempt finding or sanctions. Appellants' Stay Reply Br. 4 (citing In re Tronox Inc., 549 B.R. at 38 n.11). In Thomas, they claim, the order was not final because "it [did] not dispose of all of the issues raised in the motion.... The order expressly contemplated further action in the event that [the plaintiff] failed to withdraw his claim within 20 days. It stated ... `the contempt motion shall be revisited by this Court.'" Id. (quoting Thomas, 594 F.3d at 819). By contrast, here, the Avoca Plaintiffs argue, "the present Order expressly contemplates that it has finally adjudicated the Avoca Plaintiffs' rights, and that the motion is now finally `closed.'" Id. (footnote omitted). Thus, they claim that "[a]ny notion of contempt proceedings, as stated, was then off the table, `abandoned.'" Id.
The Avoca Plaintiffs miss the point. The District Court's order did two things, and two things only: (1) it interpreted the Injunction and Settlement Agreement to bar the Avoca Plaintiffs' state-court claims, and (2) it directed them to dismiss the state action — i.e., it enforced the Injunction and Settlement Agreement by directing compliance therewith. There is nothing more final about the order here than the orders in Wilder and Thomas.
This result also makes good sense in light of "the historic federal policy against piecemeal appeals." See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S.Ct. 895, 100 S.Ct. 1297 (1956). If § 1291 required us to entertain appeals every time a district court interpreted or issued an order enforcing a final injunction without more, we would risk being "besieged by successive appeals in injunctive proceedings." Ass'n of Cmty. Orgs. for Reform Now (ACORN) v. Ill. State Bd. of Elections, 75 F.3d 304, 306 (7th Cir. 1996). Even more, § 1292(a)(1) — which provides for immediate appeal of certain injunction-related orders, but not interpretive or enforcement orders — would be rendered, at least partially, superfluous.
Section 1292(a)(1) allows interlocutory appeals from orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions." 28 U.S.C. § 1292(a)(1). The parties agree that the only relevant consideration here is whether the District Court's order somehow modified the Injunction.
In distinguishing interpretation from modification, Wilder tells us to apply de novo review. See id. (citing United States v. O'Rourke, 943 F.2d 180, 186 (2d Cir. 1991)); see also EEOC v. Local 40, Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 76 F.3d 76, 79 n.2 (2d Cir. 1996) (citing Wilder while noting that "we must at least look through the door" to the merits "to see if we should open it" (internal quotation marks omitted)). It is unclear, however, how searching that review should be. A plurality of our sister circuits have acknowledged that while "the scope of the injunction is to be determined by the independent judgment of [Courts of Appeals]," the reviewing court must "approach the question with the purpose of fulfilling the statutory goal of not `letting piecemeal appeals, cloaked in the guise of jurisdictional inquiries, come in through the back door.'" United States v. Philip Morris USA Inc., 686 F.3d 839, 844 (D.C. Cir. 2012) (quoting Birmingham Fire Fighters Ass'n 117 v. Jefferson Cty., 280 F.3d 1289, 1293 (11th Cir. 2002)). Those courts — including the Seventh, Tenth, Eleventh, and D.C. Circuits — look to whether the district court's order constitutes an obvious misinterpretation of the injunction.
Although we have never expressly adopted the limited approach, we have endorsed it by summary order. Scipar, Inc. v. Simses, 354 Fed.Appx. 560, 562-63 (2d Cir. 2009) (citing Wilder and the decisions of the Seventh, Tenth, and Eleventh Circuits). Such an approach makes sense, and is consistent with our case law, when evaluating the district court's interpretation of its own order — that is, reviewing a district court's determination of what it meant when it employed language that is later
To be clear, to the extent the District Court interpreted "Trust Derivative Claims" to mean all derivative claims within a bankruptcy court's jurisdiction, its interpretation is entitled to deference and will not constitute a modification unless it is an obvious or blatant misinterpretation. See, e.g., Birmingham Fire Fighters, 280 F.3d at 1293. However, we review de novo the District Court's conclusion that the Avoca Plaintiffs' claims are in fact derivative claims within a bankruptcy court's jurisdiction.
When, as here, a company files for bankruptcy, the automatic-stay provision of the Bankruptcy Code, 11 U.S.C. § 362, operates to prevent certain creditors from "pursu[ing] their own remedies against the debtor's property." St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc. ("St. Paul"), 884 F.2d 688, 701 (2d Cir. 1989). Congress's intent was "to protect all creditors by making the trustee the proper person to assert claims against the debtor." Id. "This reasoning extends to common claims against the debtor's alter ego or others who have misused the debtor's property in some fashion." Id. While bankruptcy courts generally have limited authority to release a non-debtor's independent claims, so-called "derivative claims" — i.e., claims "based on rights `derivative' of, or `derived' from, the debtor's" — typically constitute "property of the estate." Madoff, 740 F.3d at 88. In other words, "when creditors ... have a claim for injury that is particularized as to them, they are exclusively entitled to pursue that claim, and the bankruptcy trustee is precluded from doing so." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1093 (2d Cir. 1995).
As difficult a task as it may be to distinguish derivative from non-derivative claims, our prior decisions — namely, St. Paul, Manville III, JPMorgan, and Madoff, each employed by the District Court — and the Third Circuit's divided-panel decision in In re Emoral, Inc. ("Emoral"), 740 F.3d 875 (3d Cir. 2014), have done much of the legwork. Those cases and general principles of bankruptcy law persuade us that the Avoca Plaintiffs' claims against New Kerr-McGee are generic, derivative claims.
Manville III was a very different case from Manville I. There, asbestos victims sued the same insurer, but the allegations were that the insurer had tortiously "influenced Manville's purported failure to disclose its knowledge of asbestos hazards." Manville III, 517 F.3d at 58.
We also now have the benefit of two recent cases applying the distinction drawn in Manville III.
On appeal, we agreed. Id. at 96. We were not persuaded by the fact that the plaintiffs alleged different causes of action than had the trustee. There, as here, the plaintiffs did not allege that the defendants took any "particularized" action aimed at them. Id. at 93. Instead, they sought to plead around an injunction by focusing on the nature of the relief sought. See id. We looked beyond the plaintiffs' labels, and determined that the claims derived from the estate because the "alleged injuries [were] inseparable from, and predicated upon, a legal injury to the estate." Id. at 92. We contrasted the claims with those in Manville III and JPMorgan, and likened them to claims alleged in Manville I.
In all but St. Paul, the claims at issue were against third parties where the debtors had contractual relations with, but were corporately separate from, those third parties. Here, by contrast, the corporate relationship between New Kerr-McGee and the Tronox debtors presents a new wrinkle. And that is where Emoral helps.
The Third Circuit majority framed the issue (in terms that could be used nearly verbatim here) as one that "require[d] [it] to determine whether personal injury causes of action arising from the alleged wrongful conduct of a debtor corporation, asserted against a third-party non-debtor corporation on a `mere continuation' theory of successor liability under state law, are
The court answered that question in the affirmative. Id. at 882. The majority relied on our explication in St. Paul that, in analyzing "common claims against the debtor's alter ego or others who have misused the debtor's property in some fashion," if a claim is "a general one, with no particularized injury arising from it, and if that claim could be brought by any creditor of the debtor, the trustee is the proper person to assert the claim, and the creditors are bound by the outcome of the trustee's action." Id. at 879 (quoting St. Paul, 884 F.2d at 701). In the majority's eyes, the plaintiffs "fail[ed] to demonstrate how any of the factual allegations that would establish their cause of action based on successor liability are unique to them as compared to other creditors of Emoral," or "how recovery on their successor liability cause of action would not benefit all creditors of Emoral given that Aaroma, as a mere continuation of Emoral, would succeed to all of Emoral's liabilities." Id. at 880. Thus, the majority held that the plaintiffs' claim was "general" rather than "individualized," and therefore part of the bankruptcy estate. Id. The court emphasized that the "[p]laintiffs' cause of action against Aaroma would be based on facts generally available to any creditor, and recovery would serve to increase the pool of assets available to all creditors." Id. at 881.
In dissent, Judge Cowen focused on the nature of the initial toxic-tort injury:
Id. at 883 (second and third alteration in original) (quoting Bd. of Trs. of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 170 (3d Cir. 2002)). In Judge Cowen's view, the majority's approach missed the point — the critical question for him was whether the plaintiffs were suing for themselves or for the benefit of all, the former being individual property and the latter being estate property. Id. at 885-86 & n.1.
As did the Emoral majority opinion, we disagree with the dissenting opinion's focus on the nature of the toxic-tort injury. That the plaintiffs in Emoral had an underlying harm specific to them did not put the claims automatically outside the estate. Indeed, every creditor in bankruptcy has an individual claim (set forth in a proof of claim) against the debtor, whether it be in tort (as here), contract, or otherwise. But often there are claims against third parties that wrongfully deplete the debtor's assets. Individual creditors may wish to bring claims against those third parties to seek compensation for harms done to them by the debtor and secondary harms done to them by the third parties in wrongfully diverting assets of the debtor that would be used to pay the claims of the individual creditor. The fact that an individual creditor may seek to do so does not make those secondary claims particular to the creditor, for it overlooks the obvious: Every creditor has a similar claim for the diversion of assets of the debtor's estate. Those claims are general — they are not tied to the harm done to the creditor by the debtor, but
The plaintiffs in Emoral would have courts allow an individual creditor to sue third-party successors of debtors for claims that are truly aimed at recovering estate assets. The exact same claim advanced by the trustee on behalf of the estate would be a win for all creditors of the estate, but a win by a single creditor would be a win by one to the detriment of the others. That "is precisely the sort of result the Bankruptcy Code exists to forestall, by placing exclusive standing over estate claims in the bankruptcy trustee or plan administrator." In re Coudert Bros. LLP, No. 11-2785, 2012 WL 1267827, at *6 (S.D.N.Y. Apr. 12, 2012). The Avoca Plaintiffs ask the same of us, and we will not allow it.
As an initial matter, it is undisputed that under either Pennsylvania or Delaware law the Adversary Proceeding could have included indirect-liability claims — based on imputation theories such as alter ego or veil piercing — to the extent the claims qualify as "general."
We start with what the Avoca Plaintiffs concede:
With that as a baseline, we turn to what the claims are not. The Avoca Plaintiffs do not, and indeed could not, assert direct-liability claims that New Kerr-McGee breached an independent duty to them arising out of the operation of the Avoca Plant, since New Kerr-McGee did not exist until years after plant operations ceased. Of course, as the District Court acknowledged and New Kerr-McGee conceded, the Avoca Plaintiffs could have raised direct claims that, for instance, New Kerr-McGee instructed its subsidiaries not to clean up
At oral argument before this Court, counsel for the Avoca Plaintiffs stated "there is clearly the opportunity to have a direct claim here." For the first time, counsel mentioned a December 2002 letter from New Kerr-McGee to the Environmental Protection Agency ("EPA") alerting the EPA to its ownership of the Avoca Plant and efforts to remediate. This post-2001 conduct, Plaintiffs' counsel now asserts, could have formed the basis for still unidentified and unspecified claims in a theoretical amended complaint. This painfully late assertion, unsupported by the record,
Thus, the only claims the Avoca Plaintiffs assert are through alter-ego/veil-piercing theories that seek to impute the acts of the polluters to New Kerr-McGee. Indeed, the Avoca Plaintiffs tellingly summarize their state-court complaints to allege that "New [Kerr-McGee] is responsible for the acts of its subsidiary, which operated the plant," and "further allege direct liability of [Old Kerr-McGee], which at the time was the parent company, for actions it took on its own." Appellants' Br. 9. Put another way, having conceded that they no longer intend to bring claims against the released Tronox debtors, the Plaintiffs admit that their sole claims against New Kerr-McGee are premised indirectly on the liability of those debtors.
This is where it gets tricky. As we see it, there are two species of claims against New Kerr-McGee. The first, "Fraudulent-Transfer Actions," are indirect-liability claims alleging that New Kerr-McGee mismanaged and undercapitalized Old Kerr-McGee and Kerr-McGee Chemical (ultimately, the Tronox debtors) such that they were left with insufficient assets to pay creditors after entering bankruptcy. See J.A. 242-43.
The second, "Personal Injury Actions," comprises indirect-liability claims that seek to hold New Kerr-McGee liable for the tortious acts of its former indirect subsidiaries in operating the Avoca Plant. See Appellants' Br. 31-32 ("The claims [against New Kerr-McGee] are related to actions that Old [Kerr-McGee] took at the Avoca plant that relate directly and specifically to the Avoca Plaintiffs and only the
The Fraudulent-Transfer Actions are easy: they are the paradigmatic example of claims general to all creditors and are therefore barred by the Injunction for the reasons stated by the District Court. See In re Tronox Inc., 549 B.R. at 53 ("[C]laims based on allegations such as these — a general failure to adhere to corporate formalities and abuse of the corporate form — are equally capable of increasing the basket of assets that could be used to satisfy any and all liabilities owed by the Tronox debtors.").
The Personal Injury Actions are tougher. The Avoca Plaintiffs attempt to particularize the Personal Injury Actions against New Kerr-McGee by personalizing the harm. But the Avoca Plaintiffs cannot and do not trace their harm to New Kerr-McGee. If they did, their claims would be particularized. Instead, the alleged liability of New Kerr-McGee arises not from its own conduct, but from its alleged existence as the alter ego and successor to the liabilities of the former parent of the actual alleged tortfeasor, Kerr-McGee Chemical.
The whole point of channeling claims through bankruptcy is to avoid creditors getting ahead of others in line of preference and to promote an equitable distribution of debtor assets. See Koch Ref. v. Farmers Union Cent. Exch., Inc., 831 F.2d 1339, 1343 (7th Cir. 1987) ("[H]istorically one of the prime purposes of the bankruptcy law has been to bring about a ratable distribution among creditors of a bankrupt's assets; to protect the creditors from one another." (alteration in original) (quoting Young v. Higbee Co., 324 U.S. 204, 210, 65 S.Ct. 594, 89 S.Ct. 890 (1945))). That is why, after a company files for bankruptcy, creditors lack standing to assert claims that are estate property. Instead, the trustee is conferred the right to recover for derivative, generalized claims; only the estate is charged with ensuring equitable distribution of estate assets and preventing individual creditors from pursuing their own interests and thus diminishing the res available to the rest of the creditors. Even more, it encourages, as it did here, orderly settlements — an interest not taken lightly. See In re PaineWebber Ltd. P'ship Litig., 147 F.3d 132, 138 (2d Cir. 1998) (recognizing a "strong judicial policy in favor of settlements").
The Avoca Plaintiffs' tactics prove the point. They seek to use Judge Gropper's findings against New Kerr-McGee in the adversary proceeding — which involved generalized claims for fraudulent conveyance — in their state action. If those generalized findings would benefit their individual-creditors case, then their claims are no less generalized than the fraudulent-conveyance claims in the Adversary Proceeding.
For those reasons, the District Court correctly classified the Avoca Plaintiffs' claims as generalized, derivative claims comprising estate property.
Concluding that the claims are derivative and therefore properly within the jurisdiction of the bankruptcy court solves only part of the puzzle. The parties argue over the specific coverage of the Injunction and whether it means all "derivative claims" or something less. As noted above, we owe deference to the District Court's interpretation of "Trust Derivative Claims," considering the merits only to determine whether the District Court's obviously misinterpreted the Injunction to cover all claims within the jurisdiction of the bankruptcy court.
Applying that standard, we conclude that the District Court's order interpreted, but did not modify, the Injunction. We construe terms of an injunction according to the general interpretive principles of contract law. Mastrovincenzo v. City of New York, 435 F.3d 78, 103 (2d Cir. 2006). Here, we must interpret the terms of the Settlement Agreement, which defines certain pertinent terms used in the Injunction, in accordance with New York law. New York law requires us to interpret the Settlement Agreement "so as to give effect to the intention of the parties as expressed in the unequivocal language they have employed." Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir. 2000) (citing Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978)).
The Injunction (set forth at Appendix B along with other relevant provisions of documents cross-referenced therein), read in conjunction with the Settlement Agreement, the confirmed bankruptcy plan, and trust documents, provides as follows: The Injunction bars the Tronox Debtors' creditors from asserting against any "Anadarko Released Party" any "Trust Derivative Claims" or any claims that are duplicative of "Trust Derivative Claims," "whether or not held or controlled by the Litigation Trust, or whether or not the Litigation Trust could have asserted such claims against any
The Injunction mirrors the Madoff injunction, but goes further to define what claims those terms cover. Compare Madoff, 740 F.3d at 87 (noting that the injunction bars "any claim ... that is duplicative or derivative of the claims brought by the Trustee, or which could have been brought by the Trustee" (emphasis omitted)), with J.A. 97-98 (spelling out what the terms encompass). To wit, the Settlement Agreement defines "Trust Derivative Claims" as any claims the Anadarko Litigation Trust asserted or could have asserted "seeking relief or recovery arising from harm to any Debtor or any Debtor's estate, based on any legal theory." J.A. 97 ¶ 1.82 (emphasis added). It then goes on to list a variety of claims and theories that "Trust Derivative Claims" include — namely, claims relating to New Kerr-McGee's relationship with Tronox debtors, and "claims and/or remedies" alleging "agency, joint venture, alter ego, corporate veil piercing," and "successor liability." J.A. 97-98 ¶ 1.82.
The Injunction also clarifies the meaning of "duplicative claims." It explains that claims can be duplicative "whether or not held or controlled by the Litigation Trust" and "whether or not the Litigation Trust could have asserted" them. J.A. 224 (emphases added). These are, in other words, claims that substantially overlap, but are not identical to, "Trust Derivative Claims." See, e.g., Fox v. Picard (In re Madoff), 848 F.Supp.2d 469, 473-75, 481-82 (S.D.N.Y. 2012) (holding that creditors' claims for conversion and unjust enrichment, among others, were duplicative of trustee's fraudulent-transfer claims), aff'd 740 F.3d 81 (2d Cir. 2014). Finally, the Injunction specifies the claims it does not cover — namely, claims alleging liability that New Kerr-McGee "might have that does not arise from or through a liability of a Debtor." J.A. 224 (emphasis added).
These provisions provide the primary sources of contention. Aside from the now-rejected contention that their claims are not truly "derivative," Appellants' Br. 29-34, the Avoca Plaintiffs argue:
None has merit.
The Avoca Plaintiffs also argue that the District Court misread the trust documents to mean that the Litigation Trust had authority over derivative claims like theirs that had not yet been asserted in the Adversary Proceeding. They point to a footnote set forth in the margin
The Avoca Plaintiffs, however, exaggerate the import of that footnote and read some of the trust documents too narrowly, rendering other language superfluous and generally making no sense. More importantly, for the reasons that follow, they are wrong — the Litigation Trust had authority over pleaded and unpleaded claims.
The confirmed bankruptcy plan states that, pursuant to the Litigation Trust Agreement, the Tronox debtors would transfer to the Litigation Trust their "rights" to the Adversary Proceeding. J.A. 49. The Litigation Trust Agreement "irrevocably and absolutely" transferred all of the debtors' "rights, title, and interests (whether legal, beneficial, or otherwise) to the Anadarko Litigation, including any and all claims therein." J.A. 452 (emphasis added).
New Kerr-McGee argues that this language means that the agreement transferred more than pending claims. It asserts that the word "including" suggests that the "claims therein" were only some of the rights and interests transferred to the trust — other rights were derivative claims like the Avoca Plaintiffs' claims that the debtors had not specifically pleaded, as well as the procedural right to amend the adversary proceeding complaint to include such claims. In the absence of the other contextual documents, New Kerr-McGee's construction of the "including" clause would be a stretch — one of multiple interpretations of equivocal language. Indeed, that language could just as easily be read to mean that the Tronox debtors were transferring all claims then asserted. But taking the documents together and applying a little common sense confirms their view.
As an initial matter, the very definition of "Trust Derivative Claims" lists a host of causes of actions that were not pleaded in the adversary-proceeding complaint. If the Avoca Plaintiffs were right, then almost none of the claims the Injunction purports to enjoin would actually be enjoined because the trustee had not yet pleaded them in the adversary proceeding. That makes little sense.
Moreover, the bankruptcy court's confirmation order twice states that the Tronox debtors transferred their rights to the claims pending in the adversary proceeding "and any claim or cause of action of Tronox related thereto." Suppl. App. 53 ¶ 126, 55 ¶ 131. Those pending and not-yetasserted derivative claims went to the Litigation Trust. Likewise, the Litigation Trust was empowered to "institute or continue actions which were or otherwise could have been brought by any Debtor that constitute Trust Property." J.A. 456.
Finally, contemplating that others might challenge the Litigation Trust's authority, the Injunction specifically barred duplicative claims — enjoining claims "whether or not held or controlled by the Litigation Trust, or whether or not the Litigation Trust could have asserted such claims."
The Avoca Plaintiffs take issue with the District Court's interpretation of the definition of "Trust Derivative Claims," arguing that their claims fall outside the definition because they "seek redress for harms to the Avoca Plaintiffs," rather than "relief from harm to Tronox or the Tronox bankruptcy estate." Appellants' Br. 17 (emphases added). Their reading is too cute, and fails for the same reason that the claims are derivative: any creditor's claim is for harm to itself, but the point of the Injunction was to bar claims that were brought or could have been brought in the Adversary Proceeding, and those claims arise from harm to the Tronox debtors. At bottom, the Avoca Plaintiffs' claims are that certain Tronox debtors harmed them, and that New Kerr-McGee harmed the Tronox debtors. In that sense, "the Avoca Plaintiffs' indirect-liability claims against New Kerr-McGee arise from two alleged harms — from harm to them and from harm to the Tronox debtors." Appellees' Br. 32.
Further, Madoff is a hurdle that the Avoca Plaintiffs' have failed to overcome. There, too, we confronted the same "arise[] from harm done to the estate" language and deemed it to mean derivative claims. 740 F.3d at 89 (alteration in original). The Avoca Plaintiffs' attempts to distinguish this case from Madoff are unpersuasive. First, they argue that the Madoff injunction was broader than this Injunction because the Madoff trustee had greater authority than the Litigation Trust here. Even if that were true, the Avoca Plaintiffs are bound by the Injunction's language, to which they did not object. Second, they argue the two injunctions are different because the Injunction here bars "Trust Derivative Claims," whereas the
Finally, the District Court noted — and New Kerr-McGee asserts here — that because the Injunction does not bar any liability that such released parties "might have that does not arise from or through a liability of a Debtor," the Injunction must bar claims that do arise from or through a liability of a Debtor. Just because the Injunction does not bar claims that do not arise from or through debtor liability does not mean that a harm that does arise from or through a liability of a debtor is necessarily barred; the claim still must be trust-derivative or -duplicative. That said, the inclusion of that language supports the notion that the Injunction was meant to bar all derivative or duplicative claims, nothing more. In other words, by providing that the Injunction does not bar any liability that such released parties "might have that does not arise from or through a liability of a Debtor," the Injunction was making clear that it covered derivative claims and did not cover non-derivative claims. Read against the backdrop of decades of derivative-claim jurisprudence, the language makes sense; it specifically avoids the appearance of a Manville III problem, where the Injunction could appear to go beyond the jurisdiction of the bankruptcy court. See Manville III, 517 F.3d at 65 (holding that the bankruptcy court lacked jurisdiction to enjoin claims against third-party insurer).
The same was true in Madoff. Indeed, in issuing the Injunction, the District Court noted that, in Madoff, this Court "upheld a permanent injunction that, like the one at issue here, was `limited to third-party claims based on derivative or duplicative liability or claims that could have been brought by the Trustee against the ... releasees.'" Anadarko, 2014 WL 5825308, at *10 (quoting Madoff, 740 F.3d at 89, 95). In making that pronouncement in Madoff, we held that the bankruptcy court did not exceed its jurisdiction in issuing the injunction. 740 F.3d at 89. The Injunction here does the same: it goes to the limit of the bankruptcy court's jurisdiction to bar derivative or duplicative claims, but no further.
For those reasons, the District Court acted well within its discretion in interpreting the language of the settlement when it found that the Avoca Plaintiffs' claims were barred by the Injunction. The District Court therefore did not expand the scope of the Injunction, and thus did not modify it.
The Avoca Plaintiffs had an opportunity to seek recovery from the Tronox debtors in the bankruptcy proceeding, to participate in settlement negotiations, and to object to the Settlement Agreement and Injunction (and refuse recovery therefrom). Indeed, as PepsiCo did in St. Paul, the Avoca Plaintiffs, as unsecured creditors of the Tronox debtors, filed claims in the bankruptcy court against the debtors, were represented by the Litigation Trust, and had a voice through which to articulate their claims. See St. Paul, 884 F.2d at 705. That voice sought assets from New Kerr-McGee in the Adversary Proceeding and settled those claims for a significant sum, from which the Avoca Plaintiffs recovered. The Avoca Plaintiffs cannot now get a second bite at the apple.
The Avoca Plaintiffs argue that, even if their already-pleaded claims are barred as
The District court "plainly had jurisdiction to interpret and enforce its own prior order[] [the Injunction]" which it "explicitly retained jurisdiction to enforce." See Travelers Indem., 557 U.S. at 151, 129 S.Ct. 2195. The court's choice of how to enforce the order is reviewed for abuse of discretion. See EEOC v. Local 580, Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, Joint Apprentice-Journeyman Educ. Fund, 925 F.2d 588, 595 (2d Cir. 1991). A court can take "any reasonable action ... to secure compliance," and the "scope of a district court's equitable powers to remedy past wrongs is broad." Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Gates v. Collier, 616 F.2d 1268, 1271 (5th Cir. 1980)).
The District Court held that all claims already pleaded were barred by the Injunction, and that, despite ample opportunities to do so, the Avoca Plaintiffs had failed to come up with a claim that would not be barred. Madoff does not require a district court to allow countless attempts to replead. At the point when we determined that there was "conceivably some particularized conspiracy claim," Madoff, 740 F.3d at 94, the lower courts had considered only whether specific claims in a filed complaint were barred, see id. at 87-88. The bankruptcy court and district court had not yet had the opportunity to consider what other claims, if any, were enjoined. That is why we left the issue of whether alternative, unpleaded claims might qualify as non-derivative for the District Court to consider in the first instance. Id. at 94. Madoff should not be read beyond its facts and posture as an invitation for plaintiffs to limitlessly re-plead theories to circumvent the reach of an injunction.
The Avoca Plaintiffs have had more than enough time and opportunities — in state court, the District Court, and in this Court — to articulate a claim that is not derivative. They have failed. Their briefs here and below have never mentioned any "particularized conspiracy claim" or other type of direct claim against New Kerr-McGee. To date, they have only ever asserted that "they suffered personal injuries as a direct result of the conduct of [Old Kerr-McGee]." Appellants' Br. 41. As mentioned above, counsel for the Avoca Plaintiffs argued for the first time at oral argument that direct claims might exist based on a purported letter to the EPA saying that New Kerr-McGee would be handling the remediation. But even then counsel failed to articulate what the claim would be.
Lest the reader think the Avoca Plaintiffs were deprived of sufficient opportunities to conceive a direct claim, the Avoca Plaintiffs filed a post-argument Federal Rule of Appellate Procedure 28(j) letter to supplement their challenge to the District Court's determination that they had no direct claims. In it, they articulate no direct claim, but argue only that Judge Forrest's determination that they lacked any bona fide direct claims against New Kerr-McGee violated the historical admonition against advisory opinions recently reiterated in In re Motors Liquidation Co., 829 F.3d 135 (2d Cir. 2016). Unlike the bankruptcy court decision in In re Motors, which resolved an issue not before it and involved an entity not party to the litigation, id. at 150-52, Judge Forrest's opinion
The frailty of the Avoca Plaintiffs' position is confirmed by the last sentence of their merits Reply Brief:
Appellants' Reply Br. 23. Of course they have not yet had discovery in state court, but that is not how claims are pleaded — plaintiffs do not get to file a complaint hoping that discovery will yield facts to give rise to claims that are not barred. Concerned about continued gamesmanship, the District Court acted within its discretion when it ordered the Avoca Plaintiffs to dismiss with prejudice.
For the foregoing reasons, the stay is hereby lifted and the appeal is
(i) [A]ny Debtor(s), (ii) any creditor of any Debtor who filed or could have filed a
The injunction herein shall not apply to or bar [eight classes of claims, including] ... (v) any liability that an Anadarko Released Party might have that does not arise from or through a liability of a Debtor....
Anadarko, 2014 WL 5825308, at *10 (emphasis added); see also J.A. 223-24.
In re Tronox Inc., 549 B.R. at 52 n.21 (citation omitted).
The Avoca Plaintiffs further argue that New Kerr-McGee waived its right to contest its responsibility for policies at the Avoca Plant because it did not argue in the PA State Action that it was the wrong party in the years of litigation that preceded the Tronox bankruptcy. But New Kerr-McGee's behavior before the release of claims against the Tronox debtors does not indicate how New Kerr-McGee would have operated after the Injunction issued and it was the sole remaining defendant. See J.A. 751.
