MARTIN GLENN, UNITED STATES BANKRUPTCY JUDGE.
Pending before the Court is the motion filed on June 24, 2016 (the "Motion," ECF
Bernard Pitterman is a plaintiff (together with the other plaintiffs in that action, the "Pitterman Plaintiffs") in an action pending against New GM in the United States District Court for the District of Connecticut: Pitterman v. General Motors LLC, Case No. 3:14-cv-00967 (JCH) (D. Conn.) (the "Pitterman Action"). The Pitterman Action is just one of many non-bankruptcy court actions that are the subject of the Motion, and it is currently scheduled for trial on July 5, 2017. (See ECF Doc. # 13938 at 2.) Mindful of the quickly approaching trial date, this Court requested that the parties address the Pitterman Action separately at oral argument on May 17, 2017.
This Opinion and Order addresses only those aspects of the 2016 Threshold Issues that apply to the Pitterman Action. Likewise, the Court provides background information only to the extent applicable to the Pitterman Action. A fuller background of Old GM's bankruptcy, the various non-bankruptcy court claims against Old GM and New GM, and the circumstances surrounding the Order to Show Cause can be found in this Court's prior Opinions. The remainder of the 2016 Threshold Issues will be addressed in a forthcoming Opinion.
For the following reasons, New GM's Motion is
In resolving the motion to enforce with respect to the Pitterman Plaintiffs, the Court also resolves 2016 Threshold Issue Two and concludes that the Sale Order
On June 5, 2009, Judge Gerber overruled numerous objections to the sale of Old GM's assets under section 363 and entered the Sale Order. The Sale Order attached as Exhibit A the "Amended and Restated Master Sale and Purchase Agreement," dated June 26, 2009 (the "Sale Agreement"). The Sale Agreement provides that New GM would purchase the bulk of Old GM's assets "free and clear of all Encumbrances (other than Permitted Encumbrances), Claims and other interests." (Sale Agreement § 2.1.) The Sale Agreement lists in section 2.3 certain liabilities that New GM would assume (the "Assumed Liabilities") and certain liabilities that Old GM would retain (the "Retained Liabilities").
The list of Assumed Liabilities, among other liabilities not relevant to the Pitterman Claims, includes claims for "Product Liabilities," regarding which New GM would assume only those claims arising out of accidents or incidents occurring on or after the closing date of the 363 Sale (which turned out to be July 10, 2009). Section 6.15(a) of the Sale Agreement provides that New GM shall comply with "certification, reporting, and recall requirements" under the National Traffic and Motor Vehicle Safety Act and certain other federal and state laws.
Bernard Pitterman is the administrator of the estate of the minor child decedent, M.R.O. ("Pitterman Complaint," ECF Doc. # 13655-12 ¶ 1.) The Pitterman Complaint states that on July 13, 2011, M.R.O. was killed in a rollaway accident involving a 2004 Chevrolet Suburban. (Id. ¶¶ 6-12, 20.) According to the Pitterman Complaint, the 2004 Chevrolet Suburban involved in the crash was defective in that "the automatic transmission could be moved from Park to Neutral when the ignition switch was in the ACC position, without depressing the brake, thereby allowing the vehicle to roll from a parked position" and the "brake transmission shift interlock device installed on the Suburban did not function when the ignition was in the ACC position." (Id. ¶ 20.)
The Pitterman Complaint alleges various causes of action under the Connecticut Product Liability Law, section 52-572 of the Connecticut General Statutes. Pitterman's claims were broken down into the following four categories by his counsel at oral argument:
After receiving a letter from counsel for New GM after this Court's April 2015 Decision and June 2015 Judgment regarding punitive damages, the Pitterman Plaintiffs amended their complaint to remove all requests for punitive damages.
Notably, the Pitterman Complaint frequently refers to both Old GM's and New GM's conduct in the same numbered paragraph,
The role of the Bankruptcy Court, as Judge Gerber noted, is not to determine whether the Pitterman Complaint (or any other complaint) is properly pleaded as a matter of state law or whether the Pitterman Action (or any other action) should succeed on its merits. See In re Motors Liquidation Co., 541 B.R. 104, 129 (Bankr. S.D.N.Y. 2015) [hereinafter the "November Decision" or Motors Liquidation II] ("Consistent with its role as a gatekeeper, the Court does not decide this issue of nonbankruptcy law."). "The Court's role, then, is a `gatekeeper' role. It should be the court to decide what claims and allegations should get through the `gate,' under the Sale Order" and this Court's prior decisions. Id. at 112 (noting that the Court will "minimize" its involvement in "non-bankruptcy law"). If a complaint violates an enforceable provision of the Sale Order, it may not proceed as currently drafted. If it does not violate the Sale Order, the complaint "passes through the gate" for the appropriate nonbankruptcy court to decide whether it is actionable.
In April 2015, Judge Gerber issued an opinion interpreting the Sale Order's "free and clear" provision. See In re Motors Liquidation Co., 529 B.R. 510 (Bankr. S.D.N.Y. 2015) [hereinafter Motors Liquidation I or the "April Decision"]. The April Decision makes clear that Judge Gerber was deciding claims involving "serious defects in ignition switches that had been installed in [certain GM vehicles]" and which led to two recalls during the summer of 2014 — the "Ignition Switch Defect." Id. at 521. Judge Gerber noted that so-called "Non-Ignition Switch Plaintiffs" were asserting actions for economic loss as to GM-branded vehicles without the Ignition Switch Defect, but that New GM's motion to enforce the Sale Order with regard to those claims "has been deferred pending the determination of the issues here." Id. at 522-23. The April Decision was silent regarding plaintiffs like Pitterman, who asserts claims against New GM regarding a post-closing accident involving an Old GM-manufactured car, based solely on New GM's post-closing alleged wrongful conduct.
Judge Gerber determined that plaintiffs alleging causes of action against New GM for successor liability for the Ignition Switch Defect were known claimants at the time of the 363 Sale and thus due process required that they receive notice of the proposed sale, but those plaintiffs had not shown that they were prejudiced by the lack of notice. See Motors Liquidation I, 529 B.R. at 566 (The economic loss plaintiffs with the Ignition Switch Defect "argue that if they had the opportunity to be heard, the result would have been different. Insofar as successor liability is
On June 1, 2015, the Court entered a judgment (the "June Judgment," ECF Doc. #13177) on the April Decision. The Court also certified the June Judgment and April Decision for direct appeal to the Second Circuit. (ECF Doc. # 13178.) The June Judgment introduced the newly defined category of Independent Claims that was not defined in the April Decision — namely, "claims or causes of action asserted by Ignition Switch Plaintiffs against New GM (whether or not involving Old GM vehicles or parts) that are based solely on New GM's own, independent, post-Closing acts or conduct." (June Judgment ¶ 4.) The definition of Independent Claims in the June Judgment is restricted to only those claims brought by Ignition Switch Plaintiffs. That narrow definition is consistent with the fact that Judge Gerber, in the April Decision, decided issues only with regard to plaintiffs whose vehicles had the Ignition Switch Defect. As discussed further below, it is significant for present purposes that the definition of Independent Claims does not include independent claims by Non-Ignition Switch Plaintiffs.
On August 31, 2015, the Court held a status conference (the "August Conference") to determine the issues remaining to be addressed after the entry of the June Judgment. (See 8/31/2015 Hr'g Tr., ECF Doc. # 13438.) At the August Conference, counsel for the Ignition Switch Plaintiffs and certain Non-Ignition Switch Plaintiffs made the following statement:
(8/31/2015 Hr'g Tr., ECF Doc. # 13438 at 37:12-23.) The Court asked counsel, "Are you now going to be kind of a designated counsel for non-ignition switch plaintiffs"? (Id. at 38:8-10.) Counsel responded, "[Y]es, we perceive ourselves as having taken on the mantel of preserving and protecting the rights of non-ignition switch plaintiffs in this court." (Id. at 38:13-19.)
Despite counsel's and the Court's statements at the August conference, it remains unclear whether counsel actually represented all Non-Ignition Switch Plaintiffs at the time. In fact, when the Court inquired as to this point at oral argument on the Motion, counsel stated that his firm was "retained by the lead counsel in the [multi-district litigation]" before stating that he represents a putative class of Non-Ignition Switch Plaintiffs. (5/17/2017 Hr'g Tr., ECF Doc. # 13943 at 67:5-68:12.) Under the circumstances, this Court is hesitant to find that counsel's statements bind all Non-Ignition Switch Plaintiffs. As discussed more fully below, the Court finds that Non-Ignition Switch Plaintiffs do not need to demonstrate a due process violation to pursue truly independent claims — that is, claims against New GM based solely on New GM's wrongful conduct.
On September 3, 2015, the Court entered a scheduling order setting a briefing schedule to address, among other issues, whether certain causes of action or allegations in complaints filed against New GM relating to Old GM vehicles were barred by the Sale Order and Injunction. (The "September Scheduling Order," ECF Doc. # 13416.) The September Scheduling Order set forth a procedure through which New GM would annotate the complaints for (i) six "Bellwether Cases" identified in MDL 2543 pending in the United States District Court for the Southern District of New York; (ii) the Second Amended Consolidated Complaint filed in MDL 2543; and (iii) certain state court complaints. (Id. ¶¶ 3-5.) The September Scheduling Order also set a briefing schedule concerning "whether causes of action in complaints filed against New GM relating to Old GM vehicles/parts based on the knowledge Old GM employees gained while working for Old GM and/or as reflected in Old GM's books and records transferred to New GM can be imputed to New GM" (id. ¶ 2), but did not mention the issue of claims based entirely on New GM's post-closing wrongful conduct.
On November 9, 2015, the Court issued the November Decision deciding the issues identified in the September Scheduling Order. See Motors Liquidation II, 541 B.R. 104. The November Decision framed the issues to be decided as follows:
Id. at 107. The bulk of the November Decision deals with the Imputation Issue and the Punitive Damages Issue, which are not relevant here. But a review of the November Decision is instructive to the extent that the Court contemplated that claims could be asserted based on New GM's wrongful conduct, as contrasted with claims against Old GM dressed up as claims against New GM.
In the context of Product Liabilities Claims and Independent Claims, the Court noted:
Id. at 115 n.30 (emphasis added). Regarding claims that New GM had a duty to recall or retrofit Old GM vehicles, the Court held:
Id. at 141. Both of these statements suggest that claims based on New GM's "own employees' knowledge," or on New GM's breach of an independent duty imposed by state law, were beyond the scope of the Sale Order and would "pass through the gate." Further, Judge Gerber contrasted claims based solely on New GM's wrongful conduct with plaintiffs' claims that attempt to impute Old GM conduct to New GM — again suggesting that claims based solely on New GM's alleged wrongful conduct may pass through the gate.
Parties on both sides of this litigation find support for their respective arguments in footnote 70 of the November Decision. Footnote 70 is included in a discussion of economic loss claims of Ignition Switch Plaintiffs, which New GM argued "are in fact successor liability claims" and were "carried over, assertedly with little or no modification," from a complaint against Old GM into the MDL complaint against New GM. Id. at 129-30. The text of footnote 70 is as follows:
Id. at 130 n.70 (citation omitted). Plaintiffs argue that footnote 70 implies they may yet establish a due process violation, while New GM argues footnote 70 makes clear it is too late.
Footnote 70, without context, does suggest that plaintiffs without the Ignition Switch Defect must prove that they were denied due process in order to bring a claim based on New GM conduct. But context matters. The Court permitted the purportedly independent economic loss claims through the gate "so long as they are genuinely Independent Claims." Id. at 130. Footnote 70 refers to economic loss claims, unlike the post-closing accident claims at issue here; and the Court had already framed the issue of Independent Claims as limited to claims brought by Ignition Switch Plaintiffs in the June Judgment. Read in the context of the November Decision's use of truly independent claims as a foil to impermissible claims based on conduct of Old GM, and considering that the Court had already limited the scope of its discussion to Ignition Switch Plaintiffs with economic loss claims, for present purposes the Court considers footnote 70 as dicta only.
On December 4, 2015, the Court entered a judgment regarding the November Decision. (See "December Judgment," ECF Doc. # 13563.) New GM argues that the following language makes clear that Non-Ignition Switch Plaintiffs may not bring claims against New GM based on New GM's post-closing wrongful conduct:
(December Judgment ¶ 14.) But again, context matters. The Court defined "Independent Claims" in the June Judgment to refer only to claims of Ignition Switch Plaintiffs. The Court reads paragraph 14
The December Judgment is consistent with the November Decision regarding claims against New GM based on an alleged duty to recall or retrofit:
(December Judgment ¶ 21.) The first sentence is plain: New GM did not assume Old GM's liabilities for failure to recall or retrofit. Consistent with the November Decision and the Court's interpretation of the definition of Independent Claims, the Court reads the second sentence of paragraph 21 to limit the ruling to Ignition Switch Plaintiffs — not to definitively close the door on truly independent claims by other plaintiffs.
Meanwhile, certain claimants and New GM had appealed the April Decision and June Judgment. The Second Circuit issued its opinion in that appeal on July 13, 2016. See Motors Liquidation III, 829 F.3d 135. The Second Circuit's discussion of the power of the bankruptcy court to bar "claims" that had not yet resulted in injury at the time of a section 363 sale is instructive here.
As a preliminary matter, the Second Circuit found that the Court had jurisdiction to interpret its own order. "A bankruptcy court's decision to interpret and enforce a prior sale order falls under ... `arising in' jurisdiction." Id. at 153; see also Tronox Inc. v. Kerr-McGee Corp. (In re Tronox Inc.), 855 F.3d 84, 112 (2d Cir. 2017) (quoting Travelers Indem. Co. v. Bailey, 557 U.S. 137, 151, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009)) (A court "plainly [has] jurisdiction to interpret and enforce its own prior order.").
The Second Circuit observed that "the bankruptcy court's power to bar `claims' in a quick [section] 363 sale is plainly no broader than its power in a traditional Chapter 11 reorganization." Motors Liquidation III, 829 F.3d at 155. To determine whether causes of action based on post-closing wrongful conduct of New GM could be barred by the Sale Order, the Second Circuit looked to the definition of "claim" under section 101(5) of the Bankruptcy Code:
Motors Liquidation III, 829 F.3d at 156. Accordingly, the Second Circuit held that a bankruptcy court may approve the sale of assets free and clear of successor liability claims to the extent the barred claims "arise from a (1) right to payment (2) that arose before the filing of the petition or
Consistent with the Second Circuit's interpretation, the Fifth Circuit has held that even under section 101(5)'s "broad" definition of "claim," an action by plaintiffs who "were completely unknown and unidentified at the time [the debtor] filed its petition and whose rights depended entirely on the fortuity of future occurrences" were not "claims" that could be discharged upon the confirmation of a chapter 11 plan. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1277 (5th Cir. 1994). Both the Second and Fifth Circuits looked to the widely cited hypothetical analysis of United States v. The LTV Corp. (In re Chateaugay Corp.), 944 F.2d 997, 1003 (2d Cir. 1991). The Chateaugay court considered the following hypothetical bridge-building company.
Id. The Second Circuit in Chateaugay observed that "[t]o expect `claims' to be filed by those who have not yet had any contact whatever with the tort-feasor has been characterized as `absurd.'" Id. (citation omitted).
Judge Bernstein of this court grappled with a similar question in Morgan Olson, LLC v. Federico (In re Grumman Olson Indus., Inc.), 445 B.R. 243, 251 (Bankr. S.D.N.Y. 2011) [hereinafter Grumman Olson I], aff'd, 467 B.R. 694 (S.D.N.Y. 2012) [hereinafter Grumman Olson II]. In Grumman Olson I, one of the plaintiffs alleged that the truck she was driving as part of her job duties was defective and caused an accident that resulted in her serious injury. Id. at 247. The truck had been manufactured by the debtor; the debtor's assets had been sold in a section 363 sale with a free and clear provision; and the purchaser, in turn, continued the debtor's product line. Id. The plaintiffs sued the purchaser, arguing that the sale order could not bar their claim because the plaintiff's injury had not yet occurred at the time of the sale and the plaintiffs had no contact with the debtor before the sale. Id. Judge Bernstein agreed, and the District Court for the Southern District of New York affirmed. See Grumman Olson II, 467 B.R. 694.
Judge Bernstein observed that "[d]espite its breadth, the term `claim' has its limits, particularly in the area of future tort claims," Grumman Olson I, 445 B.R. at 251, and ultimately determined that the plaintiffs did not have a "claim" at the time of the section 363 sale. Id. at 253. The plaintiffs had no contact with the debtor prior to the bankruptcy, did not receive notice of the bankruptcy, and could not have been identified as potential creditors at the time of the sale. Id. at 253-54. Accordingly, the sale order did not bar the plaintiffs from suing the purchaser. Id. at 254. But the issue whether state law recognized a successor liability claim in the circumstances was left to the state court to decide. See id. at 256 ("The Court expresses no view on whether Morgan is liable to the Fredericos under state law, and leaves the question to the state courts."). Judge Bernstein noted that with one exception,
The District Court agreed, emphasizing the due process concerns regarding future claims in addition to the limits of section 101(5): "[b]ecause parties holding future claims cannot possibly be identified and, thus, cannot be provided notice of the bankruptcy, courts consistently hold that, for due process reasons, their claims cannot be discharged by the bankruptcy courts' orders." Grumman Olson II, 467 B.R. at 707. The District Court accordingly held that to enforce the sale order to enjoin the plaintiffs' state law action "would deny them due process and violate the Bankruptcy Code's requirements of notice and opportunity to be heard for those affected by a bankruptcy court's rulings." Id. at 711.
Most recently, the Second Circuit addressed the issue in Tronox, 855 F.3d 84. The Second Circuit contrasted the injunction in Tronox, which barred duplicative or derivative claims that could have been brought by a litigation trustee, with an injunction that "could appear to go beyond the jurisdiction of the bankruptcy court" by, for example, enjoining claims against a third party. Id. at 111 ("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.") (citing In re Johns-Manville Corp., 517 F.3d 52, 65 (2d Cir. 2008), rev'd and remanded sub nom. Travelers Indem. Co. v. Bailey, 557 U.S. 137, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009)).
Accordingly, it is clear that for both due process reasons and to comport with section 101(5)'s definition of "claim," a bankruptcy court may only bar claims that, in the words of the Second Circuit, "arise from a (1) right to payment (2) that arose before the filing of the petition or resulted from pre-petition conduct fairly giving rise to the claim." Motors Liquidation III, 829 F.3d at 156.
The Pitterman Plaintiffs have amended their complaint to remove any claim for punitive damages. Accordingly, whether punitive damages will be available to other plaintiffs against New GM, based on conduct of Old GM, will be decided in a forthcoming Opinion and the Court will not address that question here.
At oral argument and in its briefing, New GM conceded that the Pitterman Plaintiffs are not barred from bringing failure to warn claims against New GM based on the conduct of Old GM. Failure to warn claims are properly considered Product Liability claims under the terms of the Sale Agreement, and are therefore Assumed Liabilities.
The Pitterman Plaintiffs' counsel argued that Connecticut state law recognizes a claim for failure to recall or retrofit
Deciding the Pitterman Plaintiffs' claims against New GM for both failure to warn and failure to recall and retrofit, based solely on New GM's alleged wrongful conduct, necessarily requires deciding 2016 Threshold Issue Two: whether Non-Ignition Switch Plaintiffs are barred from asserting truly independent claims against New GM.
As discussed above in the Legal Standard, Judge Gerber defined Independent Claims as follows in the June Judgment: "claims or causes of action asserted by Ignition Switch Plaintiffs against New GM (whether or not involving Old GM vehicles or parts) that are based solely on New GM's own, independent, post-Closing acts or conduct." (June Judgment ¶ 4 (emphasis added).) New GM makes much of the italicized language, arguing that the Court necessarily intended to foreclose anyone except the Ignition Switch Plaintiffs from bringing claims based on New GM's independent conduct. But this reading is inconsistent with the Court's subsequent November Decision, the Second Circuit Opinion, and section 101(5). The italicized language emphasizes that Judge Gerber was only deciding issues concerning the Ignition Switch Plaintiffs' claims; accordingly, his discussion of claims based on New GM's wrongful conduct was simply limited to the Ignition Switch Plaintiffs. Judge Gerber did not squarely address whether any plaintiffs besides the Ignition Switch Plaintiffs could bring claims based solely on New GM's post-sale wrongful conduct. The issue is now fully developed; the Court holds that Non-Ignition Switch Plaintiffs may bring claims against New GM based solely on New GM's post-closing wrongful conduct.
The Second Circuit expressly recognized that truly independent claims necessarily are not "claims" that can be barred by a section 363 sale order. Focusing on the limits of what constitutes a "claim" under section 101(5), the Second Circuit found that
Motors Liquidation III, 829 F.3d at 157. While the Second Circuit was deciding an appeal from the April Decision and June Judgment, which dealt primarily (if not exclusively) with the Ignition Switch Defect, the Court is persuaded that the Second Circuit's guidance on what constitutes a "claim" applies with equal force to claims regarding vehicles without the Ignition Switch Defect. The Court is also cognizant
Applying the Second Circuit's formulation to the Pitterman Plaintiffs and, by extension, other plaintiffs whose claims concern post-closing accidents involving cars without the Ignition Switch Defect, the Court finds that their actions are not "claims" within the meaning of section 101(5) and therefore are outside the scope of the Sale Order. The Pittermans had no right to payment until the accident occurred in 2014, well after the Sale Order was entered in 2009. With respect to truly independent claims based solely on New GM's wrongful conduct, by definition the Pitterman Action did not arise before the filing of the petition and did not result from pre-petition conduct.
The Court emphasizes that its analysis here applies only to claims based solely on New GM's alleged wrongful conduct. It is not acceptable, as the Pitterman Complaint does in several paragraphs, to base allegations on generalized knowledge of both Old GM and New GM. To pass the bankruptcy gate, a complaint must clearly allege that its causes of action are based solely on New GM's post-closing wrongful conduct. The Pitterman Plaintiffs' counsel acknowledged during oral argument that the current complaint crosses the line, basing the purported independent claims on conduct of both Old GM and New GM. Such allegations are not permissible. Counsel offered to amend the complaint to remove any allegations alleging independent claims based on Old GM's conduct. Whether to permit the Pitterman Plaintiffs to amend their complaint to comport with this ruling is up to the Connecticut District Court hearing that action.
For the foregoing reasons, the Motion is