Energy Future Holdings v. ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-1430
________________
In re: ENERGY FUTURE HOLDINGS CORP,
AKA TXU Corp., AKA Texas Utilities, et al.,
Debtors
SHIRLEY FENICLE, individually and as successor-in-
interest to the Estate of
George Fenicle; DAVID WILLIAM FAHY; JOHN H.
JONES; DAVID HEINZMANN; *HAROLD BISSELL;
*
KURT CARLSON; *ROBERT ALBINI, individually and as
successor-in-interest to the Estate of Gino Albini; DENIS
BERGSCHNEIDER,
Appellants
________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-18-cv-00381)
District Judge: Honorable Richard G. Andrews
________________
Argued September 18, 2019
*
Dismissed Pursuant to Court’s Order dated 9/18/19.
Before: KRAUSE and MATEY, Circuit Judges, and
QUIÑONES ALEJANDRO, † District Judge
(Opinion filed: February 18, 2020)
Daniel K. Hogan
Hogan McDaniel
1311 Delaware Avenue
Suite 1
Wilmington, DE 19806
Steven Kazan
Kazan McClain Satterley & Greenwood
55 Harrison Street
Suite 400
Oakland, CA 94607
Leslie M. Kelleher [ARGUED]
Jeanna R. Koski
Caplin & Drysdale
One Thomas Circle, N.W.
Suite 1100
Washington, DC 20005
Counsel for Appellants
Matthew C. Brown
Thomas E. Lauria
Joseph A. Pack
White & Case
†
Honorable Nitza I. Quiñones Alejandro, District Judge,
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
2
200 South Biscayne Boulevard
Suite 4900
Miami, FL 33131
J. Christopher Shore [ARGUED]
White & Case
1221 Avenue of the Americas
New York, NY 10020
Jeffrey M. Schlerf
Fox Rothschild
919 North Market Street
Suite 300
Wilmington, DE 19801
Counsel for Appellee Reorganized EFH Debtors
Daniel J. DeFranceschi
Jason M. Madron
Richards Layton & Finger
920 North King Street
One Rodney Square
Wilmington, DE 19801
Mark E. McKane [ARGUED]
Kirkland & Ellis
555 California Street
Suite 2700
San Francisco, CA 94104
Counsel for Appellee EFH Plan Administrator Board
Jennifer Bennett
Public Justice
475 14th Street
3
Suite 610
Oakland, CA 94607
Michael J. Quirk
Motley Rice
40 West Evergreen Avenue
Suite 104
Philadelphia, PA 19118
Counsel for Amicus Curiae Public Justice
________________________
OPINION OF THE COURT
________________________
KRAUSE, Circuit Judge.
We must determine whether and under what
circumstances a bankruptcy debtor’s Chapter 11 plan of
reorganization may discharge the claims of latent asbestos
claimants. The Bankruptcy Court determined that the
discharge of such claims is permissible so long as the claimants
receive an opportunity to reinstate their claims after the
debtor’s reorganization that comports with due process. We
agree and therefore will affirm.
I. Facts
This case, while complex on its surface, is in fact quite
simple when understood in historical and legal context. We
thus set out that context before turning to a discussion of the
underlying facts and procedural history.
4
A. Asbestos Litigation in Bankruptcy
The great tragedy of this country’s history of asbestos
exposure and related disease is by now well documented. The
asbestos crisis entails “a tale of danger known in the 1930s,
exposure inflicted upon millions of Americans in the 1940s and
1950s, injuries that began to take their toll in the 1960s, and a
flood of lawsuits beginning in the 1970s.” Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 598 (1997) (citation omitted).
Those lawsuits have proved particularly difficult for our courts
to manage because asbestos exposure gives rise to “a latency
period that may last as long as 40 years for some asbestos
related diseases.” Id. (citation omitted). That latency period
bifurcates most classes of asbestos plaintiffs between those
who have already contracted asbestos-related disease
(“manifested claimants”) and those who have been exposed
and are merely at risk (“latent claimants”), see id. at 610–11;
many of the latter may not even realize the fact of their
exposure, id. at 611. Such “legions so unselfconscious and
amorphous” pose problems for which our civil procedure rules
were not designed. Id. at 628.
The poor fit between our civil procedure rules and
asbestos litigation has been mirrored by an equally poor fit
between our bankruptcy law and asbestos litigation. The
mismatch occurs because the long latency period for asbestos-
related disease is incompatible with the “public policy of
affording finality to bankruptcy judgments.” In re Cont’l
Airlines, 91 F.3d 553, 560 (3d Cir. 1996) (en banc). In the
normal course of a bankruptcy proceeding, the court sets a
deadline—known as a “bar date”—before which proofs of
claim against the debtor’s estate must be filed; all of these
claims receive treatment under the proposed plan of
reorganization and, upon confirmation of the plan, all claims
5
for which proofs of claim are not filed are discharged by the
bankruptcy. But while this “procedural design works relatively
well in the typical Chapter 11 corporate restructuring of the
debtor’s current assets and liabilities,” it is poorly outfitted to
“address the claims of not only current creditors but also
currently unknowable future creditors” like latent asbestos
claimants. S. Todd Brown, How Long Is Forever This Time?
The Broken Promise of Bankruptcy Trusts, 61 Buff. L. Rev.
537, 541–42 (2013). That is because discharging the claims of
“unknowable future creditors” implicates due process
concerns: namely, that they have been deprived of their
property—their claims—without notice of or a hearing
regarding the discharge. See id.
This dilemma was first confronted in the landmark case
of In re Johns-Manville Corp., 68 B.R. 618 (Bankr. S.D.N.Y.
1986). There, the court announced an “innovative and unique”
solution to the problem of asbestos-driven bankruptcy. Id. at
621. The court’s innovation was to abstain from addressing all
of the debtor’s asbestos liability at once; instead, it provided
for the creation and funding of a trust by the debtor to address
individual asbestos claims against the debtor as those claims
manifested. Id. at 621–22. To ensure that the claims were
directed toward the trust, the court imposed an injunction that
“effectively channel[ed] all asbestos related claims and
obligations away from the reorganized entity and target[ed]
[them] towards the . . . [t]rusts.” Id. at 624. The injunction
thereby ensured that latent claimants were “treated identically”
to symptomatic claimants. Kane v. Johns-Manville Corp., 843
F.2d 636, 640 (2d Cir. 1988).
The Johns-Manville court’s innovation proved so
successful that Congress decided to codify it. As we later
explained, “The Manville Trust was the basis for Congress’
6
effort to deal with the problem of asbestos claims on a national
basis, which it did by enacting § 524(g) of the Bankruptcy
Code.” In re Grossman’s Inc., 607 F.3d 114, 126 (3d Cir.
2010) (en banc). That new provision, § 524(g), “took account
of the due process implications of discharging future claims of
individuals whose injuries were not manifest at the time of the
bankruptcy petition,” id. at 127, by requiring the court to
determine that the injunction is “fair and equitable” to future
claimants, 11 U.S.C. § 524(g)(4)(B)(ii), to appoint a
representative of future claimants’ interests, id.
§ 524(g)(4)(B)(i), and to obtain an approval vote from at least
three-quarters of asbestos claimants, id.
§ 524(g)(2)(B)(ii)(IV)(bb).
But § 524(g), while expanding the toolbox for resolving
asbestos liability in bankruptcy, was not a panacea. Our Court
discovered as much in In re Combustion Engineering, Inc., 391
F.3d 190 (3d Cir. 2004). There, we recognized that “just and
efficient resolution of [asbestos] claims has often eluded our
standard legal process” and, consequently, that “asbestos
liabilities ha[d] pushed otherwise viable companies into
bankruptcy.” Id. at 200–01. Combustion Engineering was one
such case: The debtor had fallen into bankruptcy because of
“mounting personal injury liabilities,” and it sought to resolve
its debts with a Chapter 11 reorganization founded upon a
§ 524(g) trust and injunction. Id. at 201. On the facts of that
case, however, we were forced to conclude that even the
§ 524(g) trust might have “impermissibly discriminate[d]
against certain asbestos personal injury claimants,” and we
therefore “remand[ed] for additional fact-finding.” Id. at 239.
Our struggle with asbestos-driven bankruptcy and due
process left off—until today—with Grossman’s. In that case,
we convened en banc to consider whether a person whose
7
“underlying asbestos exposure occurred pre-petition but
[whose] injury manifested itself post-petition” had a “claim”
for bankruptcy purposes. 607 F.3d at 117. We held that such
a person did have a claim—i.e., that bankruptcy claims accrue
at the time of exposure—overruling our much-maligned rule
that bankruptcy claims accrued at the time of an injury. Id. at
125. But as this holding dictated that asbestos claims—even
those that are latent at the time of bankruptcy—are
dischargeable through the bankruptcy process, we cautioned
that “fundamental principles of due process” still applied. Id.
Thus, while we echoed our earlier observation in Combustion
Engineering that a § 524(g) trust was “specifically tailored to
protect the due process rights of future claimants” and was
perhaps the best vehicle for addressing these concerns, id. at
127 (quoting Combustion Eng’g, 391 F.3d at 234 n.45), we
made clear that the ultimate question remained whether the
discharge of latent asbestos claims “comport[ed] with due
process,” taking into account various factors—only one of
which was “whether it was reasonable or possible for the
debtor to establish a trust for future claimants as provided by
§ 524(g).” Id. at 127–28.
Against that backdrop, we turn to the facts of this case,
where latent claims were discharged in bankruptcy without the
creation of a § 524(g) trust, prompting us again to consider the
application of due process to this challenging context.
B. EFH’s Bankruptcy
Appellee Energy Future Holdings Corporation (“EFH”)
was a holding company for various energy properties. Among
EFH’s many subsidiaries were four that we will call,
collectively, the “Asbestos Debtors”—long-defunct entities
only in existence because of ongoing asbestos liability. One of
8
the Asbestos Debtors, EECI, was the successor corporation of
a firm involved in power-plant construction for several decades
in the mid- to late twentieth century. That industry was reliant
on asbestos at the time, so EECI’s predecessor exposed its
employees to slow-acting but life-threatening carcinogens. As
a result, in the years leading up to this case, EFH was paying
asbestos-related claims on behalf of the Asbestos Debtors—
principally, it seems, EECI—at a rate of $1 million to $4
million per year.
Separately, EFH became debt-distressed as the price of
natural gas, upon which it relied for revenue, fell due to the
advent of fracking. That led EFH, along with each of its
subsidiaries including the Asbestos Debtors, to file a voluntary
Chapter 11 bankruptcy reorganization petition. The resulting
proceedings were so consequential and complex that the
diligent and experienced Bankruptcy Court judge handling
them considered them “the privilege of [his] professional
career.” JA 1661. Over the course of those proceedings, EFH
was ultimately split into two entities: One side, with which we
are not concerned here, emerged from bankruptcy as a separate
going concern, while the other—what remained of EFH—
sought a buyer.
The crown jewel of EFH’s remaining holdings was a
firm called Oncor, the largest electricity transmission and
distribution company in Texas. Oncor was the locus of
attraction for EFH’s suitors, among whom were Berkshire
Hathaway and NextEra, Inc. But EFH could not sell Oncor
alone without triggering massive tax liability and converting
the deal into a net loss for the potential buyer. EFH and
potential buyers thus agreed that, to ensure profitability, the
sale of Oncor would need to be structured as a merger. And a
merger meant that the buyer would need to take on not only
9
Oncor but also EFH’s other properties, including the Asbestos
Debtors.
Understandably, then, EFH’s potential buyers sought to
ascertain their potential asbestos liability. An expert report
commissioned by EFH determined that the remaining liability
was between $36 million and $54 million. With these figures
in mind, EFH’s first tentative buyer, NextEra, suggested
creating a § 524(g) trust. But EFH’s lawyers apparently
believed that the process of establishing such a trust would be
unwieldy, so they rebuffed the proposal. NextEra’s acquisition
of Oncor was soon blocked anyway by Texas regulators,
prompting EFH to open negotiations with another suitor,
Sempra Energy.
Sempra, unlike NextEra, did not propose creating a
§ 524(g) trust to manage EFH’s asbestos liability. Instead,
Sempra homed in on another potential funding source:
intercompany loans among EFH and the Asbestos Debtors.
These loans had been created years before the bankruptcy,
when the Asbestos Debtors had been effectively liquidated and
EFH had sold their assets and transferred the profits up to the
parent level. EFH recorded these funds as intercompany loans
because the money reaped in the sale of the Asbestos Debtors’
assets technically belonged to the Asbestos Debtors. By the
time of EFH’s bankruptcy petition, EFH owed over $800
million to the four Asbestos Debtors. Sempra proposed to
reinstate and fund these loans in full after the reorganization so
as to pay all asbestos claims that were filed by the bar date,
relegating discharged claimants to the post-confirmation
process available under the bankruptcy rules—specifically
Federal Rule of Bankruptcy Procedure 3003(c)(3). That rule
provides that a bankruptcy court “shall fix and for cause shown
may extend the time within which proofs of claim or interest
10
may be filed,” Fed. R. Bankr. P. 3003(c)(3), allowing claimants
to file proofs of claim after the bar date if they show “excusable
neglect,” see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.,
507 U.S. 380, 388–89 (citing Fed. R. Bankr. P. 9006(b)(1)).
With that process built into EFH’s proposed plan of
reorganization, the Bankruptcy Court approved the merger
conditioned upon eventual confirmation of the plan.
C. The Asbestos Challengers
Although nearly all of EFH’s creditors were satisfied by
its proposed plan of reorganization, one group of creditors was
not: latent asbestos claimants. The latent claimants argued that
setting a bar date for latent claims and discharging any claims
not filed with the court would violate their due process rights
under Grossman’s. But the Bankruptcy Court disagreed and
denied their “[motion] in opposition to the imposition of a
claims bar date affecting present and future asbestos personal
injury claimants.” JA 280 (capitalization altered). Instead,
consistent with Rule 3003(c)(3) and the approach advocated by
Sempra, it held that “a bar date must be established for all
claims . . . even though the Court may later extend such bar
date for cause shown.” JA 350.
To notify potential asbestos claimants of the bar date,
EFH agreed to formulate, fund, and implement a notice plan
that cost over $2 million and that led nearly 10,000 latent
claimants to file proofs of claim before that date.
Although they did not attempt an interlocutory appeal
of the order setting the bar date, latent claimants continued to
attack the bar date in the subsequent proceedings leading up to
the confirmation of the plan. In rejecting each of these
challenges on the merits, the Bankruptcy Court had ample
11
occasion to elucidate its understanding of the due process
issues. Specifically, the court explained that latent claimants
whose claims were discharged by the bar date with insufficient
notice were entitled under the bankruptcy rules to post-
confirmation process:
It is entirely possible that an unmanifested
claimant may bring a claim after the bar date,
argue the Debtors’ notice scheme was
unconstitutional, as applied to her, and be correct
in that argument. She would have her claim
reinstated and the Debtors would then be free to
dispute its validity and/or her damages. But that
is a retrospective determination, an
unconstitutional, as applied, determination.
JA 871. In short, on the clear condition that a path to relief
consistent with due process would remain available to latent
claimants, the Bankruptcy Court confirmed the plan, formally
“consummat[ing]” the EFH-Sempra merger, JA 49, and the
Confirmation Order formally discharged all claims against the
reorganized EFH that were not filed before the bar date. 1
Notwithstanding the extension available under Rule
3003(c)(3) and the assurance that the post-confirmation
procedure would comport with due process, Appellants—
latent claimants who did not file by the bar date and were
subsequently stricken with mesothelioma—appealed the
1
EFH quite candidly acknowledged at oral argument
that “conceivably those [discharged] claims could be all
allowable claims,” reinstated on a case-by-case basis, through
the Rule 3003(c)(3) procedure. Tr. 47.
12
Confirmation Order’s discharge of their claims on due process
grounds. The District Court dismissed the appeal without
reaching its merits, reasoning that it was barred by 11 U.S.C.
§ 363(m), commonly referred to as the “statutory mootness”
provision, see, e.g., Cinicola v. Scharffenberger, 248 F.3d 110,
122 (3d Cir. 2001), which provides that a party may not seek
the “reversal or modification on appeal of an authorization . . .
of a sale or lease of property [that] affect[s] the validity of a
sale” unless the sale order is stayed, 11 U.S.C. § 363(m).
Appellants now seek our review, which is plenary. 2
II. Discussion
Although presented as a single claim, Appellants’ due
process challenge, on inspection, presents two distinct and
alternative arguments: first, that Appellants were entitled to
partake of the pre-discharge claims process by having all latent
claims deemed timely filed and by recovering through a
§ 524(g) trust or its equivalent; and second, that to the extent
Rule 3003(c)(3) was incorporated as a term of the
Confirmation Order, it is facially unconstitutional because that
term is categorically incapable of affording due process to any
2
The Bankruptcy Court had jurisdiction under 28
U.S.C. §§ 157(a) and 1334(b), the District Court had appellate
jurisdiction under 28 U.S.C. § 158(a), and we have appellate
jurisdiction under 28 U.S.C. §§ 158(d) and 1291. Our review
of a District Court sitting in review of a Bankruptcy Court is
plenary. In re W.R. Grace & Co., 729 F.3d 311, 319 n.14 (3d
Cir. 2013). We review the Bankruptcy Court’s legal
conclusions de novo and its factual findings for clear error. In
re Heritage Highgate, Inc., 679 F.3d 132, 139 (3d Cir. 2012).
13
latent claimant. 3 But before we can engage the merits of either
argument, we must contend with the three threshold objections
raised by EFH: (a) that Appellants’ due process claim is not
ripe; (b) that it was not timely appealed; and (c) that, as the
District Court concluded, it was statutorily moot under 11
U.S.C. § 363(m). We address these issues in turn.
A. Ripeness
We begin with the “threshold issue” of ripeness. 4 In re
Johnson-Allen, 871 F.2d 421, 423 (3d Cir. 1989). EFH
contends that this appeal is unripe because Appellants have not
yet sought relief under the post-confirmation process outlined
3
As is implicit in the briefs and made explicit at oral
argument, Appellants are not making an as-applied challenge;
rather, they contend that Rule 3003(c)(3) is a categorically
insufficient “mechanism” for addressing the due process issue.
Tr. 74.
4
In addition to contesting ripeness as to Appellants
Jones, Heinzmann, and Bergschneider, EFH challenges the
justiciability of this appeal on the ground that two other
Appellants, Fenicle and Fahy, lack standing because they
timely filed proofs of claim. Be that as it may, however, only
one appellant must have standing for a case to be justiciable,
Horne v. Flores, 557 U.S. 433, 446 (2009), and EFH does not
dispute the standing of the remaining Appellants. See Carey v.
Population Servs. Int’l, 431 U.S. 678, 682 (1977) (“We
conclude that [one] appellee . . . has the requisite standing and
therefore have no occasion to decide the standing of the other
appellees.”).
14
by the Bankruptcy Court. We disagree that this fact renders
the appeal unripe.
A case is ripe when it is fit for judicial decision and
further withholding of our consideration would cause the
parties hardship. In re Rickel Home Ctrs., Inc., 209 F.3d 291,
307 (3d Cir. 2000). To determine whether this standard is met,
we ask whether the parties are “sufficiently adversarial,” the
appellants “genuinely aggrieved,” and the issues appropriately
“crystallized.” Jie Fang v. Dir. U.S. ICE, 935 F.3d 172, 186
(3d Cir. 2019) (citation omitted). Applying these factors, we
conclude that the due process arguments raised by Appellants
are plainly ripe for our review.
The first two factors are easily resolved: There is no
question that the parties are “sufficiently adversarial” where
they have litigated aggressively throughout the five-year
bankruptcy proceeding, and continue to take conflicting
positions with respect to the issues involved in this appeal; nor
is there any doubt that Appellants, who are each affected by
asbestos-caused mesothelioma—a fast-acting and invariably
fatal form of cancer—are “genuinely aggrieved.”
That leaves the question whether the arguments raised
by Appellants are appropriately “crystallized,” i.e., whether
“the facts of the case [have been] sufficiently developed to
provide the court with enough information on which to decide
the matter conclusively.” Jie Fang, 935 F.3d at 186 (quoting
Peachlum v. City of York, 333 F.3d 429, 433–34 (3d Cir.
2003)). As to both issues, the answer is “yes.” The first issue
presented by Appellants—whether Appellants were entitled to
pre-confirmation process—turns simply on our analysis of
whether the lack of notice to or inadequate representation of
latent claimants before the discharge violated due process. No
15
facts are left to be developed on this issue because the
discharge has already been consummated, furnishing us with
“enough information” to “decide the matter conclusively.”
The second issue—whether, assuming some post-
confirmation process could comport with due process, the
particular process provided here is on its face sufficient—is
also accompanied by “enough information” to be
“crystallized” for our review. The Bankruptcy Court described
a post-confirmation process by which Appellants would be
able to seek reinstatement of their claims upon a showing that
they were individually deprived of due process, and the
description it provided supplies “enough information” to
determine whether that process, at least as a facial matter,
would conform with due process. EFH complains that
Appellants have not yet sought to avail themselves of that post-
confirmation process, but while that objection might have
traction for an as-applied challenge, such additional steps are
not necessary for a facial challenge, unless the challenger’s
actual “need for [process] is speculative,” Artway v. Att’y Gen.,
81 F.3d 1235, 1252 (3d Cir. 1996), or where a new statute is to
be applied in a way we cannot apprehend in advance, Phila.
Fed’n of Teachers v. Ridge, 150 F.3d 319, 324 (3d Cir. 1998).
Neither scenario is presented here. Appellants, already
affected by mesothelioma, have an immediate “need for”
whatever process is available to vindicate their claims for
damages, and we can sufficiently apprehend how the post-
confirmation process here—i.e., motions for reinstatement
under Rule 3003(c)(3)—is to be applied. Accordingly, the
appeal is ripe.
16
B. Timeliness
EFH next asserts that the appeal constitutes an improper
collateral attack on the order rejecting the latent claimants’
objections and holding untimely filers to the bar date. Per
EFH, that order could have been appealed but was not;
therefore, EFH tells us, we should hold that any appeal of that
aspect of the Confirmation Order is barred.
Our analysis of this issue is guided by the Court’s recent
decision in Ritzen Group, Inc. v. Jackson Masonry, LLC, No.
18-938, 2020 WL 201023 (U.S. Jan. 14, 2020). 5 In Ritzen, the
Court unanimously held that because “the adjudication of a
motion for relief from [an] automatic stay forms a discrete
procedural unit within the embracive bankruptcy case,” it
constituted “a final, appealable order when the bankruptcy
court unreservedly grants or denies relief.” Id. at *2. That
holding abrogated out-of-Circuit precedent to the contrary, see
In re Frontier Properties, Inc., 979 F.2d 1358, 1364 (9th Cir.
1992) (“[W]here an issue is determined in an interlocutory
order and later incorporated into a final order, the
determination of the original issue is appealable upon an appeal
of the final order.”), and confirmed the premise of EFH’s
argument: that the failure to appeal a bankruptcy court’s final,
appealable order renders a later appeal of the issue embedded
in a subsequent order untimely. See Ritzen, 2020 WL 201023,
at *7. The question, then, is whether the order denying latent
5
As Ritzen was decided after this case was briefed and
argued, the parties were invited to and did submit supplemental
briefing on its significance for this case.
17
claimants’ motion in opposition to the bar date constituted a
final, appealable order for purposes of Ritzen. 6
It does not. A final order in bankruptcy, Ritzen
instructs, is one that “disposes of a procedural unit anterior to,
and separate from, claim-resolution proceedings.” Id. at *5.
As the Supreme Court described it, such a separate procedural
unit, like the stay-relief proceedings at issue in Ritzen,
generally “initiates a discrete procedural sequence, including
notice and a hearing”; requires application of a “statutory
standard”; and does “not occur as part of the adversary claims-
adjudication process.” Id.
While EFH’s motion to establish a bar date initiated a
procedural sequence, including notice and hearing, it does not
satisfy the remaining elements of the Ritzen finality standard.
There was no “statutory standard” to govern the question of
whether the bar date should apply to latent claimants—instead,
the Bankruptcy Court relied on general principles of due
process. And the bar date dispute was not anterior to and
separate from, but instead was intertwined with and directly
concerned, the claims processing provided by the plan
confirmation. For these reasons, the bar date orders were not
final and appealable, see In re Hooker Invs., Inc., 937 F.2d 833,
837 (2d Cir. 1992) (holding that bar date order was not final
order), and Appellants were entitled to await plan confirmation
to raise their objections as part of this appeal.
6
The opposition to EFH’s motion to impose a bar date
was filed by a group of plaintiffs’ law firms, purportedly on
behalf of all latent claimants. While the Bankruptcy Court
noted the firms’ apparent lack of standing, it adjudicated the
dispute on its merits.
18
C. Statutory Mootness
The third and last procedural bar invoked by EFH (and
the one accepted by the District Court) is also the most difficult
to resolve. EFH contends that this appeal is barred by 11
U.S.C. § 363(m), and the District Court agreed to dismiss the
appeal on that basis. Appellants make three retorts: first, that
we should recognize a due process exception to § 363(m);
second, that the Confirmation Order was not an “authorization
. . . of a sale” for purposes of § 363(m); and third, that relief for
Appellants would not “affect the validity” of the sale. We
answer each below.
1. Is there a due process exception to § 363(m)?
Appellants’ first argument—that there is a due process
exception to § 363(m)—is the easiest to dispatch: There is not.
Certainly, no such exception is found in the text of § 363(m).
See 11 U.S.C. § 363(m). So the exception would have to come
from a case, or at least from settled principles in our case law.
The case law, however, is equally devoid of support for
a due process exception. The two cases upon which Appellants
rely for their proposed exception are Hansberry v. Lee, 311
U.S. 32 (1940), and INS v. St. Cyr, 533 U.S. 289 (2001).
Neither can bear that weight. Hansberry held that a plaintiff
was deprived of due process when he was bound by a class
action to which he was not a party, 311 U.S. at 42–46; St. Cyr
held that a jurisdictional statute should be construed narrowly
to avoid raising serious questions regarding its constitutionality
under the Suspension Clause, see 533 U.S. at 313–14. No
doubt, both dealt with due process challenges to statutes
barring appeal, but the gravamen of those challenges was that
the plaintiffs would never have an opportunity to present their
19
underlying merits claims to any federal court if the statutory
bar applied to their cases.
Appellants’ position is quite different. They had the
opportunity to present their merits claims in the Bankruptcy
Court and lost. They could have sought to stay the sale to
preempt any objections regarding § 363(m); they opted not to
do so. They now ask us, assuming the other § 363(m)
requirements apply, to excuse that failure because their merits
claim happens to be a due process claim. Neither Hansberry
nor St. Cyr remotely stands for that proposition. Due process
claims do not receive special exemptions from the applicability
of procedural requirements for the filing of appeals. To the
contrary, we regularly confront due process or other serious
constitutional claims by habeas litigants, for instance, who face
the unparalleled penalties of death or incarceration. Yet we
apply strict procedural requirements when they bring their
claims in that context. E.g., Martinez v. Ryan, 566 U.S. 1, 9
(2012).
Of course, there are exceptions to every rule—including
procedural ones. Thus, we might excuse § 363(m)’s
requirements if Appellants’ underlying claim, due process or
otherwise, had never been heard at all, as in Hansberry and St.
Cyr. And we might, too, excuse § 363(m)’s requirements if
there were a compelling cause outside of Appellants’ control
for their violation of the rule, as there was in Martinez, see 566
U.S. at 10–11. But neither scenario is presented here. Rather,
§ 363(m), assuming its applicability, permitted Appellants to
bring their claims in federal court if they complied with the stay
requirement, and Appellants have not presented a compelling
20
reason to excuse their failure to do so. 7 We therefore decline
to recognize Appellants’ proposed “due process exception” to
§ 363(m).
2. Was the Confirmation Order an “authorization . . .
of a sale”?
Appellants next assert that the Confirmation Order they
are appealing was not “an authorization . . . of a sale” under
§ 363(m). They offer two arguments as to why the
Confirmation Order is not within § 363(m)’s ambit. Neither is
persuasive.
Appellants’ first argument is that there can be only one
discrete order that qualifies as an authorization of a sale within
the meaning of § 363(m), and here, that would be the earlier
Bankruptcy Court order (the “Merger Order”) which held the
merger authorized under the Bankruptcy Code—not the
Confirmation Order on which the Merger Order was
7
Appellants argue—though only in the introduction to
their opening brief—that they should be excused from the stay
requirement, in the alternative, because they could not have
afforded the bond necessary to obtain a stay. This argument is
perhaps colorable in theory, insofar as it evokes the principle
that constitutional rights cannot be conditioned on wealth. See
Bearden v. Georgia, 461 U.S. 660, 672–73 (1983). But
Appellants did not even attempt to obtain a stay, and we are
therefore unable to determine whether a bond would have been
required or whether Appellants could have afforded one.
Appellants’ speculation as to the cost of securing a stay could
not excuse them from seeking one at all, if it were required.
21
conditioned. A similar argument, however, was resolved
against Appellants in a closely analogous case.
In Cinicola v. Scharffenberger, 248 F.3d 110, 122 (3d
Cir. 2001), we considered an appeal by physicians who
challenged the assignment of their contracts during a
healthcare corporation’s bankruptcy proceedings. See 248
F.3d at 115. The physicians had been under contract with
subsidiaries of the bankrupt corporation, and the corporation’s
bankruptcy trustee sought approval of a settlement agreement
that both “involved the sale of assets” and “provided for the
assignment of the physicians’ employment contracts.” Id. at
116. The Bankruptcy Court entered an order approving the
sale but deferred decision on the assignment of the physicians’
contracts. Id. at 117. Subsequently, it entered a second order
authorizing the contract assignment. Id. When the physicians
appealed that second order without seeking a stay, the trustee
argued, as EFH does here, that the appeal was barred by
§ 363(m), and we agreed. Id. at 117–18, 126.
While the physicians argued that the second order
“represented an independent act,” we disagreed. Id. at 126.
We concluded that it was “clear the Bankruptcy Court intended
its Second Order to operate in conjunction with its First Order,”
id. at 125–26, and that the second order was therefore
“inextricably intertwined with [the] sale of assets,” id. at 126.
Here, we have little trouble concluding that the
Confirmation Order and the Merger Order were likewise
“inextricably intertwined.” The merger agreement expressly
provided that closing would take place only after entry of the
Confirmation Order, and the Confirmation Order by its terms
“authorized and directed” EFH and Sempra to “consummate”
the merger, JA 49, and recognized Sempra as a good-faith
22
purchaser within the meaning of § 363(m). In sum, as in
Cinicola, it is “clear the Bankruptcy Court intended its Second
Order to operate in conjunction with its First Order.” We
therefore reject Appellants’ argument that they are not
appealing the “authorization . . . of a sale” for purposes of
§ 363(m).
Appellants next contend that § 363(m) does not apply
because the specific provision of the Confirmation Order with
which they take issue—the discharge of latent claims and
provision for post-confirmation relief—does not authorize the
sale. But Appellants “do[] not cite any authority that would
allow us to perform this isolated analysis.” In re Sneed
Shipbuilding, Inc., 916 F.3d 405, 410 (5th Cir. 2019). And
dissecting the Confirmation Order in this fashion seems
particularly inappropriate where that order expressly provides
that every “term and provision of the Plan” and of “the Merger
Agreement” was “nonseverable and mutually dependent,” JA
78–79, and where the record suggests that Sempra bargained
for and relied upon the discharge of untimely claims in favor
of a post-confirmation process. Because Appellants challenge
a provision of the Confirmation Order that was both formally
and practically bound up with the sale authorization, we will
follow our general rule that “any reasonably close question
about the applicability of § 363(m) should be answered in favor
of applicability,” In re Pursuit Capital Mgmt., LLC, 874 F.3d
124, 134 (3d Cir. 2017), and conclude that Appellants do
appeal an “authorization . . . of a sale.” 8
8
Appellants point out our cautionary note that § 363(m)
“does not moot every term that might be included in a sale
agreement, even if each is technically integral to that
transaction.” In re ICL Holding Co., 802 F.3d 547, 554 (3d
23
3. Would the requested relief “affect the validity of [the]
sale”?
We turn to the final requirement to trigger § 363(m)’s
bar: whether the appeal would “affect the validity of [the]
sale.” To answer this question, we must draw from and
therefore briefly review our § 363(m) jurisprudence.
We typically refer to § 363(m) as a rule of “statutory
mootness.” E.g., Cinicola, 248 F.3d at 124. In many circuits,
the “mootness” label is an apt one because § 363(m) is read
essentially as a jurisdictional bar against any appeal of an
unstayed sale order. See, e.g., In re Gucci, 105 F.3d 837, 839–
40 (2d Cir. 1997) (limiting the court’s inquiry “to the issue of
good faith”). But in our Circuit, “mootness” is a bit of a
misnomer because we have construed § 363(m) as a constraint
not on our jurisdiction, but on our capacity to fashion relief.
Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d
490, 498–99 (3d Cir. 1998). This interpretation, while a
minority one, is for us well settled and consistent with the
views of the Sixth and Tenth Circuits. See In re Brown, 851
Cir. 2015) (internal quotation marks and citation omitted). But
we made this remark not in assessing whether a given
document constituted an “authorization . . . of a sale,” but
whether we could grant relief that would “affect the validity of
a sale” under § 363(m), see id.—a separate inquiry to which
we next turn. It is quite sensible to construe broadly the
applicability of § 363(m) to “promote the finality of sales” in
furtherance of Congress’s intent, see Pursuit Capital, 874 F.3d
at 133, but to ensure that it is not actually applied to individual
challenges that are so minor as to not affect that finality
interest, see ICL Holding, 802 F.3d at 554. We deal here only
with the initial question of applicability.
24
F.3d 619, 623 (6th Cir. 2017); In re C.W. Mining Co., 641 F.3d
1235, 1239–40 (10th Cir. 2011). It is also, we believe, the
correct one, for the provision by its terms forbids only those
appeals that “affect the validity of a sale,” not all those that call
into question any aspect of such a sale. See ICL Holding, 802
F.3d at 554.
Our task, then, after ascertaining that the appeal is from
an authorization of a sale, that the purchase was made in good
faith, and that the sale was not stayed, is to “see whether a
remedy can be fashioned that will not affect the validity of the
sale.” Krebs Chrysler-Plymouth, 141 F.3d at 498–99. To be
sure, demonstrating the availability of such relief “is a high
bar.” Pursuit Capital, 874 F.3d at 139. The ultimate question
is whether the grant of relief would, in effect, “claw back the
sale,” ICL Holding, 802 F.3d at 554, so a challenger seeking to
avert § 363(m)’s bar must demonstrate that the relief affects
only “collateral issues not implicating a central or integral
element of a sale,” Pursuit Capital, 874 F.3d at 139. While
requested relief that would materially increase or decrease the
purchase price would plainly affect the validity of the sale, see
Pittsburgh Food & Beverage, Inc. v. Ranallo, 112 F.3d 645,
649 (3d Cir. 1997), other requested relief may require more
careful study depending on the nature of the claim and the type
of relief sought, see, e.g., ICL Holding, 802 F.3d at 554
(holding in the context of contested rights to an escrow that
reallocating the purchase funds among creditors does not affect
the validity of the sale).
With these principles in mind, we turn to Appellants’
two due process arguments, each of which would entail a
different type of relief and thus must be analyzed separately.
25
Appellants’ first argument is that they are entitled to the
same treatment as creditors who timely filed proofs of claim,
such that their claims must be held to have been “not
discharged” and “retained against the debtors,” Tr. 70, and
EFH must establish the equivalent of a § 524(g) trust to
administer disbursements. 9 Ordering such relief would plainly
affect the validity of the sale. Sempra planned carefully for the
amount and the character of the debt, the intercompany
relationships, and the associated tax implications that would
accompany its present asbestos liability, in contrast with its
potential future liability under a post-confirmation process.
Allowing latent claims for which no proof of claim was filed
to be retained and establishing the equivalent of a § 524(g) trust
would fundamentally alter those expectations. Specifically, a
blanket allowance of latent claims would increase Sempra’s
purchase price by exposing it to present asbestos liability it did
not bargain for, rather than to the future liability for which it
did. And under Pittsburgh Food & Beverage and its progeny,
an alteration of the price term would “affect the validity of the
9
Appellants rely for this proposition on Connecticut v.
Doehr, 501 U.S. 1 (1991), which required pre-deprivation
process because even a “temporary deprivation”—a
prejudgment attachment that “cloud[ed] title [and] impair[ed]
the ability to sell”—caused permanent loss. Id. at 11, 15. But
in other cases, like Zinermon v. Burch, 494 U.S. 113 (1990),
post-deprivation process is particularly appropriate because it
is “impossible for the State to predict such deprivations and
provide predeprivation process.” Id. at 129. Here, we note that
it would have been “impossible” for the Bankruptcy Court to
“provide predeprivation process” because, at the time of the
bar date, unmanifested claimants were unknown—in
Appellants’ words—“even to themselves,” Appellants’ Br. 24.
26
sale.” 112 F.3d at 649–50. We are therefore barred by
§ 363(m) from reaching Appellants’ argument that they were
entitled to pre-confirmation process.
We take a different view, however, of Appellants’
second argument, that Rule 3003(c)(3)’s claim reinstatement
procedure is incapable of providing due process to latent
claimants, rendering this term of the Confirmation Order
facially unconstitutional. Because, as EFH concedes, a fair
post-confirmation process was contemplated by the plan of
reorganization, to which Sempra agreed by effectuating the
merger, our review of whether Rule 3003(c)(3) can provide fair
process could not conceivably “affect the validity of the sale,”
see Krebs, 141 F.3d at 498–99; it was part and parcel of the
sale. Section 363(m) thus poses no bar to our review of
whether the post-confirmation process anticipated by the
Confirmation Order, i.e., Rule 3003(c)(3), is facially
inadequate to afford due process to latent claimants. We turn
now to that sole surviving argument.
D. Due Process
To show that this aspect of the Confirmation Order is
facially unconstitutional, Appellants must establish both a
deprivation of an “individual interest that is encompassed
within the Fourteenth Amendment’s protection of life, liberty,
or property” and the absence of procedures that “provide due
process of law.” Hill v. Borough of Kutztown, 455 F.3d 225,
234 (3d Cir. 2006) (internal quotation marks and citation
omitted). But as we explain below, while Appellants’ due
process claim undoubtedly satisfies the first component, it falls
short on the second because the combination of notice and
hearing available to them is constitutionally adequate.
27
At the first step, Appellants have demonstrated a
deprivation of a protected interest. We have recognized as a
protected property interest the ability to pursue an asbestos
claim. See Grossman’s, 607 F.3d at 127. Because Appellants
challenge the post-confirmation process as depriving them of
their ability to pursue their asbestos claims, they have asserted
a cognizable property interest within the protection of the Due
Process Clause.
We must then ask, in connection with this protected
interest, “what process the State provided, and whether it was
constitutionally adequate.” Revell v. Port Auth. of N.Y. & N.J.,
598 F.3d 128, 138 (3d Cir. 2010) (citation omitted). This
inquiry is more searching: It “examine[s] the procedural
safeguards built into the statutory or administrative procedure
of effecting the deprivation, and any remedies for erroneous
deprivations provided by statute.” Id. (alteration in original)
(citation omitted). Although the appropriate safeguards are
“dictated by the particular circumstance,” Rogal v. Am. Broad.
Cos., 74 F.3d 40, 44 (3d Cir. 1996) (citation omitted), the
standard safeguards are some form of “notice and a hearing,”
Wilson v. MVM, Inc., 475 F.3d 166, 178 (3d Cir. 2007). Here,
the combination of both the pre-confirmation notice provided
and the post-confirmation hearing available are adequate.
As for pre-confirmation notice, Appellants do not
dispute that they received publication notice prior to the bar
date. EFH launched a multimillion-dollar notice plan to
contact latent claimants and notify them of the impending bar
date and the accompanying need to file a proof of claim. All
latent claimants who timely filed proofs of claim—and there
were nearly 10,000 such claimants—were assured of retaining
their ability to pursue their claims and, contrary to Appellants’
argument that actual notice to all potential claimants was
28
required, claimants who were unknown at the time of the
discharge—such as Appellants—were entitled only to
publication notice of a property deprivation, Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 317–18 (1950). We
are also unpersuaded that EFH was not “desirous of actually
informing” latent claimants of the bar date, id. at 315; to the
contrary, it employed a noticing expert, “follow[ed] the
principles in the Federal Judicial Center’s . . . illustrative model
forms of plain language notices,” JA 392, and published notice
in seven consumer magazines, 226 local newspapers, three
national newspapers, forty-three Spanish-language
newspapers, eleven union publications, and five Internet
outlets. Under our case law, that publication was sufficient.
See Chemetron Corp. v. Jones, 72 F.3d 341, 348–49 (3d Cir.
1995) (holding that publication in two national newspapers and
seven local newspapers was constitutionally sufficient).
As for the post-confirmation hearing available to latent
claimants, again due process is satisfied. The Bankruptcy
Court retains jurisdiction over the parties to consider whether
it unconstitutionally discharged individual claims, see In re
W.R. Grace & Co., 900 F.3d 126, 138–39 (3d Cir. 2018), and
as EFH agrees, the Bankruptcy Court must accept late-filed
proofs of claim under Federal Rule of Bankruptcy 3003(c)(3)
for “cause shown.” Fed. R. Bankr. P. 3003(c)(3). That
“flexible” standard is met when the “danger of prejudice to the
debtor” is low; the claimant shows good “reason for the delay”;
and the “length of the delay” does not have outsize “impact on
[the] judicial proceedings.” Pioneer Inv. Servs., 507 U.S. at
389, 395 (applying “excusable neglect” standard of Fed. R.
Bankr. P. 9006 to Rule 3003(c)(3)). Our review of these three
factors convinces us that deserving latent claimants will have
adequate opportunity to obtain reinstatement through Rule
29
3003(c)(3) motions and that this path to relief is not, as
Appellants assert, categorically incapable of affording due
process to latent claimants. 10
First, all latent claimants will have the opportunity to
show that reinstatement of their claims would pose no “danger
of prejudice” to the debtors here. As we have explained, the
prospect of a post-confirmation procedure allowing for
reinstatement was baked into the merger agreement, and Rule
3003(c)(3) provides that procedure. Reinstatement of latent
claims under Rule 3003(c)(3) thus would appear not to not alter
the expectations the parties had at the time they agreed to the
merger.
Second, latent claimants will have the opportunity to
demonstrate a “reason for the delay” by showing that they
would otherwise be deprived of due process under
Grossman’s. As we made clear in that case, a latent claim
cannot be constitutionally discharged if the claimant received
inadequate “notice of the claims bar date”—a concern that
“arise[s] starkly in the situation presented by persons with
asbestos injuries that are not manifested until years or even
decades after exposure,” Grossman’s, 607 F.3d at 126, because
“persons in the exposure-only category . . . may not even know
of their exposure,” may not “realize the extent of the harm they
may incur,” or “[e]ven if they fully appreciate the significance
of [notice they did receive], . . . without current afflictions[,]
10
We hold today that Rule 3003(c)(3) is not
categorically incapable of providing due process so that the
post-confirmation process anticipated by the Confirmation
Order is not facially unconstitutional. We do not foreclose an
as-applied challenge by any latent claimant who contends that
he did not, in fact, receive due process.
30
may not have the information or foresight needed to decide,
intelligently, whether [to file a claim],” Amchem, 521 U.S. at
628. For that reason, we identified in Grossman’s factors
bearing on the “adequacy of the notice of the claims bar date,”
607 F.3d at 127, including—with particular relevance for the
Rule 3003(c)(3) proceedings we consider today—“whether the
notice of the claims bar date came to [the claimants’
attention],” “whether and/or when the claimants were aware of
their vulnerability to asbestos,” and “whether the claimants had
a colorable claim at the time of the bar date,” id. at 127–28.
Thus, latent claimants will have a chance to argue based on
those factors that the permanent discharge of their respective
claims would not comply with due process under
Grossman’s—undoubtedly an adequate “reason for the
delay”—and obtain reinstatement under Rule 3003(c)(3).
Finally, while the “length of the delay” between the bar
date and latent claimants’ Rule 3003(c)(3) motions will be
substantial, latent claimants will not be precluded from arguing
that the delay had no “impact” on EFH’s bankruptcy
proceedings because those proceedings concluded with the
Confirmation Order so this factor, too, cuts in favor of granting
their Rule 3003(c)(3) motions.
In sum, our excursion through the Rule 3003(c)(3)
factors convinces us that the Rule is capable of providing latent
claimants with a fair opportunity to seek reinstatement. It
allows them to argue that their late filings would impose no
prejudice on EFH and that the length of their delay would not
affect any bankruptcy proceeding. 11 It likewise allows them to
11
We have not independently discussed the final Rule
3003(c)(3) factor, good faith, see Pioneer Inv. Servs., 507 U.S.
31
argue that, without reinstatement, they would not be accorded
due process under Grossman’s. This showing is only
negligibly more demanding than the one necessary to file a
proof of claim before the bar date—it requires that latent
claimants allege a single additional fact, i.e., lack of due
process under Grossman’s, and this one additional requirement
does not render the Rule 3003(c)(3) process unconstitutional.
Appellants also object that the procedural barriers to
obtaining Rule 3003(c)(3) relief necessarily deprive them of
due process. But obtaining such relief is in fact quite simple—
especially as courts must accord “special care” to pro se
claimants, see Mathewson v. Mathewson, 311 F.2d 833, 833
(3d Cir. 1963), “liberally constru[ing]” their filings and
holding them “to less stringent standards than formal pleadings
drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (citation omitted)—meaning that none of
Appellants’ logistical concerns holds weight.
It is true, as Appellants point out, that they must “carry
the burden of proof” under Rule 3003(c)(3), Appellants’ Br.
32, but that burden for these latent claimants is a light one:
Appellants need only file a basic motion reciting the fact that
reinstatement of their claim will neither prejudice EFH nor
impact its bankruptcy proceedings and attach a sworn affidavit
explaining why they were deprived of due process under
Grossman’s. See Pioneer Inv. Servs., 507 U.S. at 384. And
while Appellants express concern that Rule 3003(c)(3) motions
will be processed slowly so recoveries will be unfairly delayed,
we are confident that the Bankruptcy Court will resolve those
motions swiftly given the relatively simple showing required
at 395, but we note that the application of that requirement to
bar any bad-faith latent claims would not offend due process.
32
to obtain relief and the sensitivity the Bankruptcy Court has
shown to the crippling and fast-acting nature of asbestos-
related diseases. 12
Finally, though Appellants note their concern that any
added delay in reinstatement might reduce the quantum of
potential damages they recover, that concern relies upon a
patent misreading of a single state’s damages statute. Compare
Appellants’ Br. 32 (interpreting Cal. Civ. Proc. Code § 377.34
as providing that damages “do not survive the death of the
injured party”) with Cal. Civ. Proc. Code § 377.34 (providing
that damages are “limited to the loss or damage that the
decedent sustained or incurred before death”).
In all, then, Rule 3003(c)(3) is capable of affording
latent claimants a fair opportunity post-confirmation to seek
reinstatement of their claims, and we reject Appellants’ due
process challenge to that aspect of the Confirmation Order.
* * *
12
Appellants are also protected by the fact that the
statutes of limitations applicable to asbestos claims generally
run from the date of diagnosis, see, e.g., In re Asbestos Litig.,
673 A.2d 159, 162 (Del. 1996); Lapka v. Porter Hayden Co.,
745 A.2d 525, 553–54 (N.J. 2000); Abrams v. Pneumo Abex
Corp., 981 A.2d 198, 210–11 (Pa. 2009), and are often applied
flexibly, see, e.g., Mergenthaler v. Asbestos Corp. of Am., 500
A.2d 1357, 1365 (Del. Super. Ct. 1985); Wanner v. Philip
Carey Mfg. Co., 580 A.2d 734, 736–37 (N.J. Super. Ct. App.
Div. 1989); Mihalcik v. Celotex Corp., 511 A.2d 239, 244–45
(Pa. Super. Ct. 1986).
33
Though we decline to upset the approach taken here, we
share the Bankruptcy Court’s “regret” that “the debtors asked
for [a bar date] in the first place,” both because the bar date
might “adversely affect . . . [claimants] who have manifested
injury . . . or will manifest injury based on prepetition exposure
who have not filed proofs of claim” and because it “led to a lot
of litigation and a lot of expense and a $2 million noticing
program.” JA 1631. Indeed, this case serves as a cautionary
tale for debtors attempting to circumvent § 524(g). The
alternative route EFH has chosen for addressing its asbestos
liability has produced a similar result as a § 524(g) trust—
reimbursement for latent claimants who either filed proofs of
claim or did not receive proper notice of the bar date—but with
added and unnecessary back-end litigation. Like the
Bankruptcy Court, however, we have only “a limited role” in
this case. JA 1630. We are not charged with ensuring that
EFH’s strategic choices were optimal or even advisable; we are
merely asked to ensure that they satisfy the Bankruptcy Code
and the Constitution. And in this limited role, we conclude that
the post-confirmation process described above satisfies both.
III. Conclusion
For the foregoing reasons, we will affirm.
34