KEVIN J. CAREY, Bankruptcy Judge.
Before the Court for consideration is the Fourth Amended Joint Plan of Reorganization for Tribune Company and Its Subsidiaries Proposed by the Debtors, the Official Committee of Unsecured Creditors, Oaktree Capital Management, L.P., Angelo Gordon & Co., L.P., and JPMorgan Chase Bank, as revised (the "Fourth Amended Plan").
The DCL Plan Proponents responded to the objections to confirmation of the Fourth Amended Plan by filing the Memorandum of Law in Support of Confirmation and Omnibus Reply to Objections to Confirmation (docket no. 11746). Other parties weighed in by filing replies to some of the objections, including (i) the Statement of Robert R. McCormick Tribune Foundation (the "McCormick Foundation") and Cantigny Foundation in Response to Objection of Aurelius Capital Management, LP (docket no. 11725), (ii) the D & Os' Reply to the Objection of Aurelius Capital Management, LP (docket no. 11739), (iii) the D & Os' Joinder to the Statement of the Robert R. McCormick Tribune and Cantigny Foundations (docket no. 11740), and (iv) the Bridge Agent's Reply, and Joinder to the DCL Plan Proponents' Reply,
A hearing to consider confirmation of the Fourth Amended Plan was held on June 7 and 8, 2012, and continued via conference call on June 11, 2012 (together, the "Fourth Amended Plan Confirmation Hearing").
On June 18, 2012, the DCL Plan Proponents filed the revised Fourth Amended Plan (docket no. 11836) to incorporate modifications that resolved a number of objections to confirmation. On the same date, the DCL Plan Proponents also filed revised exhibits and other documents related to the Fourth Amended Plan, including (i) Plan Exhibit 13.1 — the Litigation Trust Agreement, the Litigation Trust Loan Agreement, the proposed Agreement Respecting Transfer of Documents, Information, and Privileges from Debtors and Reorganized Debtors (the "Debtors' LT Agreement"), the proposed Agreement Respecting Transfer of Documents, Information, and Privileges from the Official Committee of Unsecured Creditors (the "Committee's LT Agreement").
On June 20, 2012, Aurelius filed a letter objection with the Court (docket no. 11856) arguing that changes made to the proposed Committee's LT Agreement regarding the Litigation Trustee's discovery rights with respect to the Creditors' Committee did not address its concerns. The Creditors' Committee filed a letter in response (docket no. 11867) and a telephonic hearing was held on June 21, 2012 to discuss the issue.
On July 11, 2012, a further hearing was held to address the Certain Former Employees' objection and Aurelius' objection to the Committee's LT Agreement. After colloquy with counsel at the July 11, 2012 hearing, the objection by the Certain Former Employees was withdrawn. At the July 11, 2012 hearing, the Court also suggested language to address Aurelius' objection to provisions in the proposed Committee's LT Agreement concerning certain discovery rights of the Litigation Trustee vis-a-vis the Creditors' Committee (including its retained professionals). The parties discussed the Court's proposed language and agreed to make further revisions to the affected paragraphs. However, Aurelius requested one additional change to which the Creditors' Committee did not agree. The revised language as otherwise agreed to by the parties at the July 11, 2012 hearing (without Aurelius' final change), was submitted under Certification on July 12, 2012 (docket no. 12001). The proposed Committee's LT Agreement, as revised, fairly addresses Aurelius' concerns. Accordingly, Aurelius' last remaining request is denied.
For the reasons set forth herein, the remaining objections by Aurelius, Law Debenture, Deutsche Bank, WTC, EGI, Citadel Camden, the McCormick Foundation, and the D & Os will be overruled. Subject to submission of final revisions to the Fourth Amended Plan consistent with various resolutions that have been made, by agreement and consistent with this Memorandum, the Fourth Amended Plan will be confirmed.
The arduous journey for confirmation of a plan is chronicled in three previous decisions: the Confirmation Opinion dated October 31, 2011, In re Tribune Co., 464 B.R. 126 (Bankr.D.Del.2011) (the "Confirmation
The Confirmation Opinion addressed two proposed competing plans of reorganization for the Debtors: (i) the Second Amended Joint Plan of Reorganization for Tribune Company and Its Subsidiaries (the "Debtor/Committee/Lender Plan" or the "DCL Plan") proposed by the Debtors, the Creditors' Committee, Oaktree, Angelo Gordon, and JPM, and (ii) the Joint Plan of Reorganization for Tribune Company and Its Subsidiaries (the "Noteholder Plan") proposed by Aurelius, Deutsche Bank, Law Debenture and WTC. After a confirmation hearing spanning more than two weeks, followed by post-hearing briefing and closing arguments, I determined that both plans failed to meet the requirements of Bankruptcy Code § 1129, for the reasons detailed in the Confirmation Opinion, and I denied confirmation of both plans.
Various parties filed motions for reconsideration of the Confirmation Opinion.
On November 18, 2011, the DCL Plan Proponents filed the Third Amended Joint Plan of Reorganization for Tribune Company and Its Subsidiaries (docket no. 10273)(the "Third Amended Plan"). The Third Amended Plan included an "Allocation Dispute Protocol" which proposed to establish reserves for distributions to holders of allowed claims in certain classes that would be impacted by unresolved disputes regarding inter-creditor priorities, particularly with respect to the PHONES Notes and the EGI-TRB LLC Notes (the "EGI Notes").
On April 17, 2012, the DCL Plan Proponents filed the Fourth Amended Plan,
On April 17, 2012, the DCL Plan Proponents also filed the Supplemental Disclosure Document relating to the Fourth Amended Plan. Following a hearing on the adequacy of the Supplemental Disclosure Document, the Court entered the DCL Plan Solicitation Order which, among other things, (i) approved the Supplemental Disclosure Document pursuant to section 1125 of the Bankruptcy Code, (ii) established procedures for the solicitation and tabulation of votes to accept or reject the Fourth Amended Plan, and (iii) scheduling the Confirmation Hearing and related deadlines.
The DCL Plan Proponents solicited votes to accept or reject the Fourth Amended Plan from the Revoting Classes in accordance with the DCL Plan Solicitation Order. As summarized in the Epiq Voting Declaration (DCL Ex. 3005), the Fourth Amended Plan was accepted by most Holders of Claims in the Revoting Classes, as follows:
Number
of Voting % Number % Amount
Classes Creditors Accepting Amount Voted Accepting Result
Class 1C: Senior Loan Claims 352 99.72% $8,275,396,770.39 99.97% Accept
against Tribune Company
Class 1D: Bridge Loan Claims 30 100% $1,600,000,000.00 100% Accept
against Tribune Company
Class 1E: Senior Noteholder 196 85.20% $1,143,639,844.07 9.95% Reject
Claims against Tribune Company
Class 1F: Other Parent Claims 278 98.92% $ 286,027,485.95 91.57% Accept
against Tribune Company
Class 1I: EGI-TRB LLC Notes 1 0% $ 167,047,531.55 0% Reject
Claims against Tribune Company
Class 1J: PHONES Notes 23 4.35% $ 734,994,736.40 0.45% Reject
Claims against Tribune Company
Classes 2E, 4E-7E, 10E, 12E-15E, 1 100% $ 1.00 100% Accept 14 18E-20E, 22E-29E, 31E38E, 40E, 42E, 43E and 46E-49E: General Unsecured Claims against Filed Subsidiary Debtors Classes 50C-111C: Senior 358 99.72% $8,426,345,592.39 99.97% Accept Guaranty Claims
Prior to the Confirmation Hearing for the Fourth Amended Plan, the DCL Plan Proponents negotiated with objecting parties and resolved a number of the objections. The remaining unresolved objections are discussed in detail below.
To preserve their rights on appeal, six parties (specifically, (i) Aurelius, (ii) WTC, (iii) Law Debenture, (iv) Deutsche Bank, (v) EGI, and (vi) the D & Os) filed objections to the Fourth Amended Plan that are reiterations of previously raised objections to the DCL Plan and the Third Amended Plan, including objections to the reasonableness of the DCL Plan Settlement, allocation of distributions under the DCL Plan, unfair discrimination, the establishment of the Litigation Trust, the proposed Bar Order, and other issues that were ruled upon in the Confirmation Opinion, the Reconsideration Decision, and the Allocation Decision. To the extent that the same objections are reasserted in opposition to the Fourth Amended Plan, they will be overruled for the same reasons as set forth in the Confirmation Opinion, Reconsideration Decision and/or the Allocation Decision. The objecting parties have not demonstrated a basis for reconsideration of those prior rulings.
Law Debenture argues that the Fourth Amended Plan improperly classifies the Swap Claim as an "Other Parent Claim" rather than a "Senior Loan Claim."
Law Debenture, in effect, argues that the Court should reconsider its decision regarding classification of the Swap Claim in light of language in the Allocation Decision, in which I decided that the Swap Claim falls within the PHONES Indenture's definition of "Senior Indebtedness" because the Swap Claim is an amount due in connection with the Credit Agreement.
Law Debenture's argument, however, merely plucks phrases out of context to arrive at a faulty comparison between the Swap Claim and the Senior Loan Claims. Although the Senior Loan Claims and the Swap Claim are amounts due in connection with the Credit Agreement, this single factor does not require that the claims be classified together.
Deutsche Bank, in its capacity as successor indenture trustee under the DBTCA Indentures,
The Fourth Amended Plan classifies the Indenture Trustee Expense Claims as Senior Noteholder Claims in Class 1E. "Senior Noteholder Claims" are defined as "all Claims arising under or evidenced by the Senior Notes Indentures and related documents and any Claim of the Senior Noteholders arising under the Pledge Agreement."
Deutsche Bank and Law Debenture argue that the Indenture Trustee Expense Claims are contractual obligations under the Senior Notes Indentures and are separate from the claims for payment of principal and interest owed to the Senior Noteholders. They argue that Bankruptcy Code § 1122(a) requires claims within a class to be "substantially similar" and, therefore, contend that the Indenture Trustee Expense Claims should be classified as "Other Parent Claims" in Class 1F, which includes "General Unsecured Claims against Tribune and the Swap Claim (and for the avoidance of doubt includes all Claims against Tribune under Non-Qualified Former Employee Benefit Plans, but does not include Convenience Claims)." Fourth Amended Plan, § 1.1.157. The definition of General Unsecured Claims also includes any allowed claim by WTC for fees and expenses arising under the PHONES Notes Indenture. Fourth Amended Plan, § 1.1.101.
The DCL Plan Proponents respond that the Indenture Trustee Expense Claims are properly classified because (i) the claims arise under the Senior Notes Indentures, (ii) the claims are asserted against the same entity (Tribune Company), (iii) the claims have the same priority against Tribune, and (iv) the claims are asserted in the same proofs of claim that were filed for the other Senior Noteholder Claims for principal and interest due on the Senior Notes.
Section 1122(a) of the Bankruptcy Code provides that "a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class." 11 U.S.C. § 1122(a). Section 1122(a) is mandatory in one respect: only substantially similar claims may be classified together. Yet, Section 1122(a) is permissive is this respect: it does not provide that all similar claims must be placed
Although plan proponents have discretion to classify claims, the Third Circuit has recognized that the Code does not allow a plan proponent complete freedom to place substantially similar claims in separate classes. John Hancock Mut. Life Ins. Co. v. Route 37 Bus. Park Assocs. (In re Route 37 Bus. Park Assocs.), 987 F.2d 154, 158 (3d Cir.1993). Instead, a classification scheme must be reasonable. Id. The John Hancock Court wrote:
Id. at 159. See also Phoenix Mutual Life Ins. Co. v. Greystone III Joint Venture (In re Greystone III Joint Venture), 995 F.2d 1274, 1279 (5th Cir.1991) ("thou shalt not classify similar claims differently in order to gerrymander an affirmative vote on a reorganization plan."); In re W.R. Grace & Co., 2012 WL 2130981 at *37 (D.Del. June 11, 2012) ("It is a well-recognized principle that the classification of claims or interests must be `reasonable,' and cannot be grouped together for arbitrary or fraudulent purposes.")
The threshold issue is whether the claims are "substantially similar" and presents two questions: first, are the claims within Class 1E (i.e., the Indenture Trustee Expense Claims and the Senior Notes Claims) substantially similar, and, second, are the Indenture Trustee Expense Claims and the Other Parent Claims in Class 1F substantially similar?
Courts in this Circuit have interpreted "substantially similar" as a reflection of the "legal attributes of the claims, not who holds them." Coram, 315 B.R. at 350 (internal citations omitted). This analysis focuses on how the "legal character of [a] claim relates to the assets of the debtor" and whether the claims "exhibit a similar effect on the debtor's bankruptcy estate." W.R. Grace & Co., 2012 WL 2130981 at *37 (internal citations omitted); see also In re Frascella Enters., Inc., 360 B.R. 435, 442 (Bankr.E.D.Pa.2007) ("The similarity of claims is not judged by comparing creditor claims inter se. Rather, the question is whether the claims in a class have the same or similar legal status in relation to the assets of the debtor.") For example, in AOV, the Court determined that a plan may classify all unsecured creditors in a single class, rejecting the argument that an unsecured claim with a third-party guaranty should be classified separately, writing:
AOV, 792 F.2d at 1151. See also Coram, 315 B.R. at 350 (holding that the plan inappropriately classified an insider's unsecured
Deutsche Bank and Law Debenture argue that the claims in Class 1E are of different character and effect because the Indenture Trustee Expense Claims are contractual obligations to reimburse fees and expenses, while the Senior Notes Claims seek to recover principal and interest under the Notes. However, both types of claims are contractual claims arising from the Senior Notes Indentures.
Employing the reasoning above, I also conclude that the Indenture Trustee Expense Claims are substantially similar to the Other Parent Claims in Class 1F because all are unsecured claims asserted against Tribune. Is the Fourth Amended Plan's classification of the Indenture Trustee Expense Claims with the Senior Notes Claims, and separate from the Other Parent Claims, reasonable?
The parties have not alleged — and there is no evidence to indicate — that the Fourth Amended Plan's classification scheme was intended to gerrymander votes. Nor is there any indication that the Indenture Trustee Expense Claims were included in Class 1E with the Senior Notes Claims arbitrarily or for a fraudulent purpose.
In Coram, the Court noted that separate classification was reasonable when it determined that a group of unsecured noteholders represented a voting interest that was sufficiently distinct from the trade creditors to merit a separate voice in the reorganization. Coram, 315 B.R. at 350-51.
Moreover, throughout this bankruptcy case, the Indenture Trustees have represented the interests of their respective noteholders. See Worldwide Direct, 334 B.R. at 129 (noting that an indenture trustee has a fiduciary duty to the noteholders and is required to act with the same care as if it owned the investment). Accordingly, the interests of the Indenture Trustees align with Senior Noteholders and the Plan reasonably includes the Indenture Trustees Expense Claims within Class 1E.
The amount of the PHONES Noteholders' claims has been disputed throughout this case. The Debtors listed the PHONES Notes on their Amended Schedules of Assets and Liabilities in the amount of $758,871,303; WTC filed a proof of claim on behalf of the PHONES Noteholders in the amount of $1.197 billion. Tribune I, 464 B.R. at 195. The disparity in the claim amount stems from the right given to each PHONES Noteholder to exchange a PHONES Note at any time for an amount of cash based on the value of certain reference stock (the "Exchange Right"). Tribune III, 472 B.R. at 233. Immediately prior to the bankruptcy filing, some PHONES Noteholders (the "Tendering Noteholders") attempted to exercise their Exchange Rights by tendering their PHONES Notes and an Exchange Notice to then-Indenture Trustee Deutsche Bank. Although Deutsche Bank delivered the Exchange Notices to Tribune, Tribune's bankruptcy filing intervened before payment of the Exchange Amount to the some of the Tendering Noteholders.
The Confirmation Opinion deferred a decision on the PHONES Notes' claim amount since it was not essential to a determination of the issues before the Court at that time, and the record was not developed sufficiently about the exchange procedures, dates of the Exchange Notices
The issue was renewed as part of the Allocation Disputes. Additional evidence was provided, including a Stipulation by and among the Debtors, Aurelius, WTC, Barclays Bank PLC, and Waterstone Capital Management, L.P. offering agreed facts relevant to the Allocation Disputes and determination of the allowed amount of the PHONES claim (the "Stipulation").
Tribune III, 472 B.R. at 236. I determined that "the Tendering Noteholders' claims should be allowed in the amount that Tribune was obligated to pay in exchange for the tendered Notes." Id. at 237. The Stipulation provided that if the Tendering Noteholders' claims were based upon the exchange amount (rather than the original principal amount of the PHONES Notes), then the PHONES Claim Amount should be $759,252,932. Id.
On April 23, 2012, Citadel Camden filed its Motion for Reconsideration and/or Clarification of the Court's April 9, 2012 Memorandum and Order Regarding Allocation Disputes (docket no. 11458) (the "Clarification Motion"), which sought reconsideration and/or clarification of two issues:
Clarification Motion, ¶ 2. At a telephonic status conference on April 27, 2012, the Court ordered that the Clarification Motion would be heard at the Confirmation Hearing. On May 21, 2012, Citadel Camden filed an objection to confirmation of the Fourth Amended Plan, arguing that, based on the Allocation Decision, the Tendering Noteholders' claims and the PHONES Notes Claims are not substantially similar and, therefore, the Fourth Amended Plan improperly classifies the
Citadel Camden asks this Court to clarify that the Allocation Decision does not affect the rights and remedies of the Tendering Noteholders in the MDL. Aurelius objects to this request, arguing that the Allocation Decision is binding upon the Tendering Noteholders in other litigation. Consistent with my comments to the parties throughout this case, I have not made and do not intend to make any determination on the effect of my decisions upon the Court in the MDL or with respect to litigation now pending or that may be brought in other fora. If and when an issue arises about what effect, if any, this Court's decisions have upon other litigation, such an issue will be decided by the court in which such litigation is pending.
In the Clarification Motion, Citadel Camden asks this Court to clarify whether the Allocation Decision decided that the DCL Plan Proponents had properly classified the Tendering Noteholders' claims with the other PHONES claims. The Debtors and Aurelius argue that this Court's Confirmation Opinion and Allocation Decision have already determined that the DCL Plan Proponents properly classified all PHONES Notes claims — including the Tendering Noteholders' claims — together. I disagree that either decision addressed directly the particular classification issue that Citadel Camden now asserts.
First, the Debtors and Aurelius assert that the Confirmation Opinion resolved this classification issue and cite to language in the Confirmation Opinion stating that the PHONES Noteholders and the Tendering Noteholders are "subordinated creditors on the `same level'" and that "the PHONES Noteholder claims should be treated alike." Tribune I, 464 B.R. at 197. A closer reading of the Confirmation Opinion reveals that the classification issue decided therein is not identical to the one now presented by the Tendering Noteholders. In the Confirmation Opinion, I determined that Bankruptcy Code § 510(b) did not apply to subordinate further the Tendering Noteholders' claims to a position that was junior to the other PHONES Noteholder claims. Id. Citadel Camden now contends that their claims are not substantially similar to the other PHONES Notes claims because, they argue, the Tendering Noteholder claims should be classified with unsubordinated general unsecured claims, thereby placing the Tendering Noteholder Claims in a position senior to the other PHONES Notes claims. This specific issue was not addressed in the Confirmation Opinion.
The Debtors and Aurelius also argue that the determination of the claim amount in the Allocation Decision necessarily held that the proposed plan properly classified the Tendering Noteholder Claims and the PHONES Notes claims together. This particular classification issue was not addressed in the Allocation Decision. The Allocation Decision determined only that the Tendering Noteholders' claims should be allowed in the amount that Tribune was obligated to pay on the bankruptcy petition date. Tribune III, 472 B.R. at 236-37. Consequently, pursuant to an agreement embodied in the Stipulation, the total
At oral argument, the Debtors argued that Citadel Camden should be precluded from raising the classification issue at this time, particularly after the parties worked together to define the Allocation Disputes to address specifically priority issues and the amount of the PHONES Notes claim. The issue is whether the doctrines of law of the case, collateral estoppel, res judicata, judicial estoppel, waiver or laches prevent Citadel Camden from raising the classification issue at this stage in the confirmation process. Because I decided that the particular classification issue now raised by Citadel Camden was not actually decided in the previous Tribune decisions, the doctrines of law of the case and collateral estoppel do not apply.
The doctrine of res judicata (or claim preclusion) precludes a party from relitigating claims that were or could have been asserted in a prior action. EXDS, Inc. v. Ernst & Young, LLP, 316 B.R. 817, 821 (Bankr.D.Del.2004) (emphasis added). Three factors must be present before res judicata will apply: (1) a final judgment on the merits in a prior action involving; (2) the same parties or their privies; and (3) a subsequent suit based on the same cause of action. Id. Res judicata does not apply here because, as of the Fourth Amended Plan Confirmation Hearing, neither the Confirmation Opinion nor the Allocation Decision was a final decision.
Judicial estoppel is a "judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent with one that she has previously asserted in the same or in a previous proceeding. It is not intended to eliminate all inconsistencies, however slight or inadvertent; rather, it is designed to prevent litigants from playing fast and loose with the courts." EXDS, 316 B.R. at 824 (quoting In re Chambers Dev. Co., Inc., 148 F.3d 214, 229 (3d Cir.1998)). The EXDS Court further explained:
EXDS, 316 B.R. at 825. Even assuming that Citadel Camden participated in the previous confirmation litigation and the Allocation Disputes, Citadel Camden's current argument against classification with the other PHONES Notes does not appear as an attempt to play fast and loose with the Court. Rather, Citadel Camden points out that it is asserting a new argument in response to the Allocation Decision's determination of the low claim amount for the Tendering Noteholders. Judicial estoppel is not applicable here.
The confirmation process has been lengthy and hotly contested in this bankruptcy, but was still ongoing. Citadel Camden asserted its classification objection before deadlines for voting upon and objecting to the Fourth Amended Plan. Therefore, despite its previous silence, I cannot conclude that Citadel Camden intentionally waived its right to raise a basic confirmation issue, such as classification. See Evcco Leasing Corp. v. Ace Trucking Co., 828 F.2d 188, 195 (3d Cir.1987) (Waiver is the intentional relinquishment or abandonment of a known right or privilege.). Further, due to the ongoing nature of this confirmation process, the "belated" objection to classification did not prejudice the DCL Plan Proponents materially. See Lawhon v. Winding Ridge Homeowners Ass'n, Inc., 2008 WL 5459246 at *9 n. 78 (Del.Ch. Dec. 31, 2008) (The essential elements of laches are (1) a defendant with knowledge of a right, and (2) prejudice to the plaintiff arising from an unreasonable delay in exercising that right.).
It might have been appropriate, exceedingly more convenient for the Court, and more cost efficient for the parties, had Citadel Camden, which is well-represented by counsel, raised this issue in connection with the Allocation Disputes. However, I cannot conclude that any of the asserted doctrines ought to keep Citadel Camden from its day in court.
Citadel Camden argues that the Fourth Amended Plan violates Bankruptcy Code § 1122 by classifying improperly the claims of the Tendering Noteholders with the subordinated claims of the PHONES Noteholders. Citadel Camden contends that the subordination provision of the PHONES Indenture applies only to "Holders of the Securities" and, based upon the Allocation Decision, the Tendering Noteholders are no longer "Holders of the Securities" since (i) they delivered their PHONES Notes for exchange to the Indenture Trustee prior to the Debtors' bankruptcy filing, and (ii) the PHONES Indenture's definition of "Outstanding" PHONES Notes excludes notes that were "cancelled by the Trustee ... or delivered to the Trustee ... for cancellation." Tribune III, 472 B.R. at 236 (quoting ADH Ex. 2, p. 4).
The Debtors, joined by Aurelius, argue in response that the Tendering Holders continue to be "Holders of the Securities" under the PHONES Indenture and, thus,
While I have already reviewed the PHONES Indenture's subordination provisions at length in the Reconsideration Decision and the Allocation Decision, it is necessary to revisit the applicable language. Section 14.02 of the PHONES Indenture provides in pertinent part:
Upon any distribution of asset of the Company in the event of:
PHONE Indenture, § 14.02.
As discussed in the Reconsideration Decision, the beginning of Section 14.02 lists the "triggering events" or conditions precedent to application of the subordination provisions, which include any "bankruptcy case or proceeding" or "reorganization." Tribune II, 464 B.R. at 218. Here, the triggering event of a bankruptcy filing occurred and interrupted the Exchange Procedure process, preventing Tribune from making the Exchange Payments to the Tendering Noteholders. Section 14.02(A) of the PHONES Indenture provides that, in the event of a bankruptcy filing, holders of Senior Indebtedness must be paid in full before Holders of the Securities are entitled to receive any payments.
Section 3.01. Amount Unlimited; Issuable in Series.
. . . .
PHONES Indenture, § 3.01. Thus, the plain language of Section 14.02 provides that a payment due under the Company's obligation to redeem or exchange a PHONES Note is subject to the subordination provisions. The Tendering Noteholders' claims are subject to the PHONES Indenture subordination provisions and, therefore, the Tendering Noteholders' claims are properly classified with non-tendering PHONES Noteholders' claims.
The Third Amended Plan filed by the DCL Plan Proponents on November 18, 2011, included an "Allocation Dispute Protocol" and proposed to establish reserves for distributions to holders of allowed claims in certain classes that would be impacted by unresolved disputes regarding inter-creditor priorities. Some parties objected to this procedure, and argued that the "Allocation Disputes" should be resolved prior to voting on the Third Amended
On April 9, 2012, I issued the Allocation Decision resolving a number of issues related to inter-creditor priority disputes including, among other things, that the PHONES Indenture's subordination provisions were applicable to any distribution of Settlement Proceeds and Creditors' Trust proceeds, that the subordination provisions of the EGI Subordination Agreement are applicable to any distribution of Settlement Proceeds, Litigation Trust proceeds and Creditors' Trust proceeds (as those terms are defined in the Allocation Decision), and that the EGI Notes were junior in priority to the PHONES Notes.
EGI and WTC have filed (or intend to file) appeals related to, among other things, the determinations regarding subordination of their claims in the Reconsideration Decision and the Allocation Decision. EGI and WTC object to the Fourth Amended Plan for failing to establish reserves in an amount that is sufficient to pay their claims if this Court's decisions regarding subordination are overturned on appeal. EGI argues that the plan's provision for reserves for other unsecured creditors holding Disputed Claims amounts to unfair discrimination. Both EGI and WTC argue that the Fourth Amended Plan is not fair and equitable because it fails to establish reserves for their claims.
The DCL Plan Proponents argue that the objections of EGI and WTC have no merit. They argue that the demand for establishing reserves is tantamount to seeking a stay pending appeal without meeting (or attempting to meet) the requirements for such a stay pursuant to Fed.R.Bankr.P. 8005.
I agree with the DCL Plan Proponents. The parties have litigated the subordination issues related to the EGI claims and the PHONES Notes claims, and I have issued my decisions. Upon confirmation of the Fourth Amended Plan, EGI and WTC will likely pursue their appeals. If EGI and WTC want to prevent plan distributions while their appeals are pending, they may seek a stay pending appeal pursuant to Fed. R.Bankr.P. 8005.
In re Exide Tech., 303 B.R. 48, 78 (Bankr. D.Del.2003) quoting Matter of Genesis Health Ventures, Inc., 266 B.R. 591, 611 (Bankr.D.Del.2001). See also Tribune III, 472 B.R. 223, 242 (quoting Armstrong, 348 B.R. at 121) ("The pertinent inquiry is not whether the plan discriminates, but whether the proposed discrimination is `unfair.'").
The Fourth Amended Plan establishes reserves for "Holders of Disputed Claims" that become "Allowed Claims" after the Effective Date. Fourth Amended Plan, § 7.2.1, § 7.2.2. Generally, the objections to the Disputed Claims have not yet been litigated. Fourth Amended Plan, § 1.1.69. At the request of the parties, I have determined the subordination issues related to the EGI Notes claims and the PHONES Notes claims.
The objection based on the Fourth Amended Plan's failure to establish reserves for the subordinated claims will be overruled.
Section 5.8 of the Fourth Amended Plan is entitled: "Cancellation of Loan Agreements, Loan Guaranty Agreements, the Pledge Agreement, Notes Issued Under the Loan Agreements, Senior Notes, Debentures, Instruments, Indentures, EGI-TRB LLC Notes, PHONES Notes, Old Common Stock and Other Tribune Interests." The DCL Plan Proponents and Aurelius resolved Aurelius' objections to Section 5.8.2 of the Fourth Amended Plan by adding language to give
The McCormick Foundation responded to the compromise by asking the DCL Plan Proponents to further revise Section 5.8.2 to add "neutral" language to preserve the rights of defendants to the Disclaimed State Law Avoidance Claims or Preserved Causes of Action by adding the following italicized language to the end of Section 5.8.2:
Ultimately, the DCL Plan Proponents declined to add the requested language of (iii), above, to Section 5.8.2. Aurelius argues that the McCormick Foundation's language is not neutral, but is contrary to the intent of its proposed language — which indeed seeks to impair a defendant's right to argue that the discharge provisions of Section 5.8 and otherwise in the Plan prevent creditors from asserting Disclaimed State Law Avoidance Claims or Preserved Causes of Action. Aurelius and the DCL Plan Proponents argue that the Fourth Amended Plan's definitions of "Disclaimed State Law Avoidance Claims" (Section 1.1.67) and "Preserved Causes of Action" (Section 1.1.74) provide the neutral, protective language the defendants seek, by stating at the end of each section:
and
Upon review of the relevant Plan provisions, I conclude that the definitions in Section 1.1.67 and 1.1.174 provide the appropriate neutrality to protect the McCormick Foundation and other defendants and make clear the Plan's intent.
For the reasons set forth herein, the remaining objections to confirmation of the Fourth Amended Plan filed by Aurelius, Law Debenture, Deutsche Bank, WTC, Citadel Camden, EGI, the D & Os, the McCormick Foundation, and Malcolm Berko will be overruled. The objection by the Certain Other Employees was withdrawn. Any remaining objection of Aurelius to the proposed Committee LT Agreement is overruled. Subject to submission of final revisions to the Fourth Amended Plan consistent with various resolutions that have been made, either by agreement or consistent with this Memorandum, the Fourth
An appropriate order follows.
General Disclosure Statement at 22.
The Bankruptcy Code allows a plan proponent discretion to classify claims within a plan. See John Hancock, 987 F.2d at 158, discussed supra. There is a difference between what a plan proponent must do (see, e.g., 1122(a), § 1123(a), § 1129) and what a plan proponent may do (see, e.g., § 1122(b), § 1123(b)). The Fourth Amended Plan's classification scheme illustrates this critical distinction. The Court's determinations, therefore, are in harmony.
