FRB 2019

The Federal Rules of Bankruptcy Procedure (“FRBP”) usually generate little interest or concern among practitioners. At best, FRBP changes receive a casual perusal about the time of implementation on Dec. 1 of each year. This year, however, practitioners need to be aware of the change that is coming and give thought before implementation as to how the amended disclosure requirements may affect their clients and strategy.

Specifically, FRBP 2019 deals with disclosure of the relationships of creditors acting in concert with each other. Historically, despite the existing FRBP 2019, the general attitude that courts took was that from L. Frank Baum’s The Wizard of Oz: “Don’t worry about the man behind the curtain.” In other words, courts were not inclined to require disclosure and attorneys were not inclined to disclose.

That changed, most notably, in 2007 in the Northwest Airlines case, which is discussed in greater detail below. Several subsequent cases on this issue followed. The relatively recent rise in sales of discounted debt to parties previously uninvolved with the debtor, added to a perception of unfair strategies being utilized in bankruptcy cases.

In response, the Federal Rules Committee has proposed an amendment to FRBP 2019. The U.S. Supreme Court has until May 1, 2011, to stop the proposed amendment. Congress then has through Nov. 30, 2011, to legislatively stop or change the proposed amendment. Absent those unlikely events, the proposed amendment will go into effect Dec. 1, 2011.

Current FRBP 2019

Paraphrased, FRBP 2019 provides that in Chapter 9 or Chapter 11 cases, each “entity or committee representing more than one creditor or equity security holder” (with the exception of Official Committees defined in the Bankruptcy Code) as well as “every indenture trustee,” must file a verified statement with its name and address, “the nature and amount of the claim or interest and when acquired” (unless it was acquired more than one year before the bankruptcy filing), how the claim or interest came into existence, and the identity of the organizing parties. These initial disclosures could be viewed as just a ministerial filing with essentially “directory” information.

The balance of FRBP 2019, however, is more intrusive and alarming to entities competing in debt purchase markets. It requires disclosure of the amount paid for the bankruptcy claim, the date of acquisition and a copy of any agreement authorizing collective action. Any party failing to make these disclosures risks the court prohibiting further involvement in the bankruptcy case and invalidation of plan votes or objections.

FRBP 2019 Springs to Life in Northwest Airlines

FRBP 2019 obtained new vitality in a decision generated by the Northwest Airlines bankruptcy: (In re Northwest Airlines Corporation, 363 B.R. 701 (Bankr. S.D.N.Y. 2007)). In that case, the debtor requested that the court require additional disclosures from the “Ad Hoc Committee of Equity Security Holders.” Specifically, the debtor asked the court to order the committee to supplement its initial disclosure to include the amounts owned by individual committee members, when the claims were acquired, as well as the specific amounts paid to acquire the claims.

In its initial disclosure, the committee simply listed the number of shares it collectively held, as well as its aggregate claim. It did not, however, specify which member had which equity interests or claims, nor did it identify when the interests were acquired, the purchase price, or any disposition of the interests. Judge Allan Gropper, applied a “plain language” reading of FRBP 2019, granted the debtor’s motion and ordered full supplemental disclosure within three days.

Since then, a number courts have dealt with the FRBP 2019’s application and requirements, reaching differing conclusions. These cases include Washington Mutual, 419 B.R. 271 (Bankr. D.Del. 2009); Philadelphia Newspapers, 422 B.R. 553 (Bankr. E.D. Penn. 2010); and Premier International Holdings, 423 B.R. 58 (Bankr. D.Del. 2010). Courts taking a contrary view to Judge Gropper’s Northwest Airlines decision find the ad hoc committees are representing only themselves, and not other creditors, suggesting that full disclosure under FRBP 2019 does not apply.

The issue continues to be contentious. For example, as recently as March 30, 2011, a motion to compel compliance with FRBP 2019 was filed by the debtors in the Lehman Bros. Holdings Inc., Case No. 08-13555 (JMP) (Bankr. S.D.N.Y.) seeking disclosure of “the nature and amount of the claims or interests held by the members of the Ad Hoc Group, the time of acquisition and a recital of the pertinent facts and circumstances in connection with [the Ad Hoc Group’s attorneys’] retention ... ; or a copy of the instrument whereby [the attorneys are] empowered to act on behalf of the Ad Hoc Group.”

Economic/Policy Issues

FRBP 2019 was originally developed under the Bankruptcy Act of 1898 to deal with committees providing representation for other creditors. Large creditors later used Depression-era committees as a means to assert control over smaller creditors. Generally, that issue died a natural death due to statutory changes, but the concern that similar abuses would arise again kept FRBP 2019 in existence even with the advent of the Bankruptcy Code in 1978.

FRBP 2019 has more recently been used in response to complex financial structures of larger debtors. With a more ready market for the sale and purchase of debt and equity of financially distressed companies, parties frequently acquire the interests and claims at a discounted value.

Accordingly, a purchaser’s economic incentives may be radically different from those of the original holders. Moreover, their economic incentives may be adverse to reorganization or other more typical and traditional creditor incentives. Courts enforcing FRBP 2019 disclosures apply a plain language interpretation and the policy that transparency and disclosure assist the bankruptcy process.

Purchasers, however, take a different view. They buy in extremely competitive markets where disclosing the terms of the purchases is akin to publically disclosing trade secrets. They maintain that the amount and timing of their purchases is irrelevant. A $1 million claim purchased from the original owner for $350,000.00 is still a $1 million claim against the debtor. As long as the purchasers otherwise act within the law and do not represent any other party’s interest in the bankruptcy, they maintain that their business and strategic decisions should not be publically disclosed.

Moreover, critics contend that Rule 2019 is invoked as a litigation tactic rather than for more benign reasons. They assert that motions to enforce FRBP 2019 are brought to gain negotiating leverage by placing the claim or interest holder in a dilemma — disclose what they consider to be trade secrets or risk being excluded from further participation in the bankruptcy.

The Rules Committee Steps In

With the courts split regarding FRBP 2019’s application, and the issue arising more frequently, the Federal Rules Committee decided to address the issue: Is FRBP 2019 only applicable when a party is representing another party’s interest, or is it applicable in any situation when a group of parties in interest coalesce to form a group to represent their interests? The committee also addressed the secondary issue of whether detailed economic disclosures are necessary or desirable such that these should be mandatory as a condition of participation in a bankruptcy.

While some critics initially suggested eliminating FRBP 2019, a consensus developed that it should continue to exist but be modified to deal with its current usage.

First, the proposed modified FRBP 2019’s title has changed the reference from “Representation” to “Disclosure,” and “Represent” now has a definition. “Represent” or “represents” means to take a position before the court or to solicit votes regarding the confirmation of a plan on behalf of another.

The addition of a definition of “Disclosable Economic Interest” broadens the FRBP 2019’s scope. “Disclosable economic interest” means any claim, interest, pledge, lien, option, participation, derivative instrument, or any other right or derivative right granting the holder an economic interest that is affected by the value, acquisition, or disposition of a claim or interest.

Official Committees will not be exempt from all provisions. FRBP 2019 makes it clear that indenture trustees, agents under credit agreements, class action representatives and governmental units are excluded. Notably for debt purchasers, FRBP 2019 no longer mandates disclosure of what they consider confidential information irrelevant to their claim amount. It does this by limiting disclosure to the quarter and year of purchase, if acquired within a year before the bankruptcy.

Practical Applications

The new FRBP 2019 should, at least initially, clarify FRBP 2019’s application and meaning over which the courts are now split. It makes clear that FRBP 2019 is really about disclosure and not simply applicable to certain kinds of representation. That disclosure, however, is now more limited and generalized.

To the extent FRBP 2019 was used as a tactic to force a creditor to disclose sensitive market information, it will no longer be useful for that purpose. It is still possible, however, to compel that disclosure, but it will have to be done through standard discovery rather than by invoking FRBP 2019.

Lawyers advising interest purchasers need only be concerned with disclosure that can be obtained through normal discovery rather than contending with a rule that some courts interpreted to mandate disclosure. On the other side, FRBP 2019 does require interest holders to specify the nature of the holdings and gives some added transparency to parties’ interest in a bankruptcy case.

The new definition of disclosable economic interest includes instruments not conceived when the original rule was promulgated. It also clears up an ambiguity: whether a lawyer advising in a case, but not appearing in court, must file a disclosure. The answer under the new FRBP 2019 is “no.”

Conclusion

FBP 2019’s modification should end or at least reduce FRBP 2019 litigation. While parties’ required disclosures will be broader in the sense of the information that must be disclosed, the sensitive market-based elements will now be protected from disclosure, except in unusual circumstances.

Hopefully FRBP 2019’s new scope, specificity and clarity, will permit lawyers and their clients to better assess their risk in a bankruptcy proceeding while, simultaneously, providing more transparency.



--By Timothy F. Nixon, Godfrey & Kahn SC