Spencer Ad Hoc Equity Committee v. Idearc, Inc. (In Re Idearc, Inc.) , 662 F.3d 315 ( 2011 )

Case: 10-10858 Document: 00511652033 Page: 1 Date Filed: 11/01/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 1, 2011
No. 10-10858 Lyle W. Cayce
Clerk
In the Matter of: IDEARC, INCORPORATED,
Debtor.
----------------------------------------------------------------------
SPENCER AD HOC EQUITY COMMITTEE,
Appellant,
versus
IDEARC, INCORPORATED,
Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, SOUTHWICK and GRAVES, Circuit Judges.
PER CURIAM:
The prior opinion is withdrawn and the following opinion is substituted.
Case: 10-10858 Document: 00511652033 Page: 2 Date Filed: 11/01/2011
No. 10-10858
Plaintiff and appellant The Spencer ad hoc Equity Committee (“Spencer
Committee”)1 appeals two orders of the district court: (1) the denial of the
Spencer Committee’s appeal of the bankruptcy court’s confirmation order of the
reorganization plan (“Plan”) by debtor and appellee Idearc, Inc. (“Idearc”) on the
grounds of equitable mootness and (2) the denial of the Spencer Committee’s
motion for a trial de novo of its fraud claims. In light of the particular
circumstances, this case is controlled by equitable mootness. We AFFIRM.
Facts and Procedural History
On March 31, 2009, Idearc filed voluntary petitions before the bankruptcy
court for relief pursuant to Chapter 11 of the United States Bankruptcy Code.
The debtors before the court are Idearc and its affiliates (collectively “Idearc” or
“Reorganized Debtors”2). The bankruptcy court managed the cases jointly for
procedural purposes under case number 09-31828(BJH). See Bankruptcy Rule
1015(b). Idearc filed a proposed disclosure statement and proposed Plan and
moved for approval on the Plan. Within two months into the bankruptcy
proceeding in May 2009, the Spencer Committee first appeared as a creditor
before the bankruptcy court. Through November 2009, multiple motions were
filed, hearings held, and rulings entered by the bankruptcy court. The
bankruptcy court set a confirmation hearing for December 9, 2009 on the Plan.
On December 8, 2009 (the day before the confirmation hearing on the
Plan), the Spencer Committee filed objections to the confirmation hearing set for
the very next day, alleging fraud in a prior spinoff of debtors from Verizon
Communications, Inc. (“Verizon”). The Spencer Committee attempted to assert
1
The Spencer Committee represents the independent interest of 27 persons.
2
After Chapter 11 reorganization, Idearc became known as SuperMedia, LLC.
2
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claims against Verizon and JPMorgan Chase & Co. (“J.P. Morgan”)3 and their
respective affiliates, and sought a jury trial on the issues raised. Beginning on
December 9, 2009, the bankruptcy court, as previously scheduled, heard two
days worth of arguments regarding the confirmation of the Plan. On December
21, 2009, the bankruptcy court held a subsequent confirmation hearing on the
Plan. On December 22, 2009, the bankruptcy court issued its order confirming
the Plan (“Confirmation Order”), and the Spencer Committee filed its notice of
appeal of the Confirmation Order to the district court.
On August 18, 2010, the district court granted Idearc’s motion to dismiss
the Spencer Committee’s appeal of the Confirmation Order on the grounds of
equitable mootness, and denied the Spencer Committee’s motion for a trial de
novo of its fraud claims. We hold that the district court did not err in granting
Idearc’s motion to dismiss the Spencer Committee’s appeal of the Confirmation
Order on the grounds of equitable mootness.4
Standard of Review
This court has jurisdiction to hear appeals of “all final decisions of the
district courts”, including final judgments in bankruptcy appeals. 28 U.S.C. §
1291; Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992). Fact findings of
3
Neither Verizon nor J.P. Morgan is a party before this court.
4
The Spencer Committee argues that if it were to file a claim against the debtor in
bankruptcy when it views the bankruptcy as fraudulent, then it loses its rights to a jury trial
under Langenkamp and its progeny, and that if instead the Spencer Committee were to
collaterally proceed against Idearc, that it would be prohibited by the Travelers line of cases.
Cf. Travelers Indemnity Co. v. Bailey, 129 S.Ct. 2195, 2203 (2009) (upholding the bankruptcy
court’s injunction of certain civil actions against the insurers or the debtor), with Langenkamp
v. Culp, 498 U.S. 42 (1990) (concluding that claimants against the debtor submitted to the
equitable jurisdiction of the bankruptcy court and were therefore not entitled to a jury trial
on a bankruptcy trustee’s preference claim). As we resolve this appeal on grounds of equitable
mootness, we express no opinion and do not address whether the district court properly denied
the Spencer Committee’s motion for a trial de novo of its fraud claims.
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the district court and the bankruptcy court are reviewed under a clearly
erroneous standard and issues of law are reviewed de novo. United States ex rel.
FCC v. GWI PCS 1, Inc. (In re GWI PCS 1, Inc.), 230 F.3d 788, 799-800 (5th Cir.
2000) (citing Nationwide Mut. Ins. Co. v. Berryman Prods. (In re Berryman
Prods.), 159 F.3d 941, 943 (5th Cir. 1998)). “A party who fails to object to a
bankruptcy court’s assumption of core jurisdiction consents to that court’s entry
of final judgment.” McFarland v. Leyh (In re Tex. Gen. Petroleum Corp.), 52 F.3d
1330, 1337 (5th Cir. 1995). This court interprets the terms of a bankruptcy
reorganization plan and confirmation order de novo and holistically. See New
Nat'l Gypsum Co. v. Nat’l Co. Settlement Trust, 219 F.3d 478, 484 (5th Cir.
2000). Finally, "[i]f an appellate court is unable to grant any remedy for [a
party], its opinion would be merely advisory and it must dismiss the appeal as
moot." See Alberta Energy Partners v. Blast Energy Servs. (In re Blast Energy
Servs., Inc.), 593 F.3d 418, 423 (5th Cir. 2010).
Analysis
Equitable Mootness
The issue is whether the district court properly applied the doctrine of
equitable mootness to dismiss the Spencer Committee’s appeal of the bankruptcy
court’s Confirmation Order of the Plan. As a general rule, “[t]he doctrine of
equitable mootness is designed to protect concerns unique to bankruptcy
proceedings.” Bank of N.Y. Trust Co. NA v. Pac. Lumber Co. (In re Scopac), 624
F.3d 274, 281 (5th Cir. 2010) (citing Manges v. Seattle-First Nat'l Bank (In re
Manges), 29 F.3d 1034, 1038 (5th Cir. 1994); see also Bank of New York Trust
Co., NA v. Official Unsecured Creditors' Committee (In re Pacific Lumber), 584
F.3d 229 , 240 (5th Cir. 2009). Unlike an Article III inquiry which examines
whether a live case or controversy exists, an equitable mootness analysis
recognizes that a point exists beyond which a court cannot order fundamental
changes in reorganization actions. Scopac, 624 F.3d at 281. This court examines
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three factors when assessing equitable mootness: (i) whether a stay has been
obtained, (ii) whether the plan has been “substantially consummated,” and (iii)
whether the relief requested would affect either the rights of parties not before
the court or the success of the plan. Id. The ultimate inquiry is "whether the
court can grant relief without undermining the plan." Id. (citing In re SI
Restructuring, Inc., 542 F.3d 131, 136 (5th Cir. 2008)).
A. Whether the Spencer Committee Obtained a Stay.
On December 31, 2009, the Spencer Committee filed before the bankruptcy
court an emergency motion for stay.5 On March 1, 2010, the bankruptcy court
heard the motion. On March 5, 2010, the bankruptcy court entered an order
denying the Spencer Committee’s motion for stay.
B. Whether the Plan Has Been “Substantially Consummated.”
1. The Substantial Consummation Test.
To determine whether a Plan has been “substantially consummated” so as
to satisfy the second element of the three-part test, the courts must consider the
following factors provided by the United States Bankruptcy Code:
(A) transfer of all or substantially all of the property proposed by the
plan to be transferred;
(B) assumption by the debtor or by the successor to the debtor under the
plan of the business or of the management of all or substantially all
of the property dealt with by the plan; and
(C) commencement of distribution of the plan.
11 U.S.C. § 1101(2); see also In re Manges, 29 F.3d at 1041.
5
“[T]he bankruptcy judge may suspend or order the continuation of other proceedings
in the case under the Code or make any other appropriate order during the pendency of an
appeal on such terms as will protect the rights of all parties in interest. A motion for such
relief, or for modification or termination of relief granted by a bankruptcy judge, may be made
to the district court or the bankruptcy appellate panel, but the motion shall show why the
relief, modification, or termination was not obtained from the bankruptcy judge.” Fed. R.
Bankr. P. 8005.
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“In exercising its discretionary power to dismiss an appeal on mootness
grounds, a court cannot avoid its obligation to scrutinize each individual claim,
testing the feasibility of granting the relief against its potential impact on the
reorganization scheme as a whole.” In re AOV Indus., 792 F.2d 1140, 1148 (D.C.
Cir. 1986). With this rigorous standard for discretionary review in mind, this
court evaluates the feasibility of the Spencer Committee’s claims alongside the
“potential impact on the reorganization scheme as a whole.” See id.The Spencer Committee argues that the Plan has not been substantially
consummated primarily based on its own allegations of the debtor’s fraud in the
creation of the debt itself. In addition, the Spencer Committee argues that the
litigation trust, which is incorporated by the Confirmation Order and Plan,
permits the future recovery for fraud in the debt recovery. This court concludes
that the Spencer Committee has made no showing of fraud with respect to the
Confirmation Order such that revocation of the order would be appropriate.
2. Whether the District Court Recognized the Existence
of “Sufficient Evidence of Fraud”.
Based upon the district court’s independent conclusion that the Plan has
been substantially consummated pursuant to 11 U.S.C. § 1101(2), the record
before this court sufficiently demonstrates that a substantial portion of the
property proposed by the plan to be transferred has been transferred. Moreover,
the distribution of the Plan has more than commenced, but has been materially
advanced, such that the relief requested by the Spencer Committee does not
outweigh the disturbance that would occur to the success of the reorganization
and to third parties, in light of the public trading of the newly organized common
stock. See id. § 1101(2)(A)-(C).
C. Whether the Spencer Committee’s Requested Relief Would
Affect the Rights of Parties Not before the Court or the
Success of the Plan.
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This final inquiry focuses upon whether the requested relief would
adversely impact the success of the Plan or the rights of third parties not before
the court. The new common stock has been publicly traded since January 6,
2010 and in no small quantity of shares. The district court concluded that
numerous third parties’ financial rights would be adversely affected by the
proposed de novo review and fact-based inquiry proposed by the Spencer
Committee. See Berryman, 159 F.3d at 946; see also In re Block Shim Dev. Co.-
Irving, 939 F.2d 289, 291 (5th Cir. 1991). Accordingly, this court concludes that,
after a careful consideration of the requested relief as against the potential
impact upon the success of reorganization and upon the rights of third parties
not before the court, the Spencer Committee’s requested relief will adversely
affect the success of the Plan overall and the rights of third parties not before the
court.
Conclusion
In conclusion, (1) the Spencer Committee appeared before the bankruptcy
court and did not obtain a stay, (2) the Plan has been substantially
consummated, and (3) the Spencer Committee’s requested relief would adversely
impact the success of the Plan or the rights of third parties not before the court.
Accordingly, on the grounds of equitable mootness, this court affirms the district
court’s order granting Idearc’s motion to dismiss the Spencer Committee’s appeal
of the Confirmation Order of the Plan.
7