In Re: Clifton Capital Group, LLC v. Bradley Sharp ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: EAST COAST No. 21-55967
FOODS, INC.,
D.C. No. 2:20-cv-
Debtor, 10982-MWF
------------------------------
OPINION
CLIFTON CAPITAL GROUP, LLC,
Appellant,
v.
BRADLEY D. SHARP, former
Chapter 11 Trustee,
Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted September 2, 2022
Submission Withdrawn September 26, 2022
Resubmitted May 2, 2023
Pasadena, California
2 CLIFTON CAPITAL GROUP, LLC V. SHARP
Filed May 8, 2023
Before: Milan D. Smith, Jr. and Ryan D. Nelson, Circuit
Judges, and Gershwin A. Drain, * District Judge.
Opinion by Judge R. Nelson
SUMMARY **
Bankruptcy
The panel reversed the district court’s order affirming the
bankruptcy court’s enhanced fee award to the trustee in a
funded Chapter 11 bankruptcy and remanded with
instructions to dismiss creditor Clifton Capital Group,
LLC’s appeal for lack of Article III standing.
Clifton was chair of an official committee of unsecured
creditors appointed by the Office of the United States
Trustee to monitor the activities of debtor East Coast Foods,
Inc., manager of Roscoe’s House of Chicken &
Waffles. The bankruptcy court appointed Bradley D. Sharp
as Chapter 11 trustee. Clifton objected to Sharp’s fee
application, but the bankruptcy court awarded the statutory
maximum fee. Clifton appealed. The district court
concluded that Clifton had standing to appeal, and it
*
The Honorable Gershwin A. Drain, United States District Judge for the
Eastern District of Michigan, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CLIFTON CAPITAL GROUP, LLC V. SHARP 3
remanded. On remand, the bankruptcy court again awarded
the statutory maximum. Clifton again appealed, and the
bankruptcy court this time affirmed.
Addressing standing, the panel wrote that the Ninth
Circuit historically bypassed the Article III inquiry in the
bankruptcy context, instead analyzing whether a party is a
“person aggrieved,” as a principle of prudential
standing. The court, however, has returned emphasis to
Article III standing following Susan B. Anthony List v.
Driehaus, 573 U.S. 149 (2014), in which the Supreme Court
questioned prudential standing.
The panel held that Clifton lacked Article III standing to
appeal the fee award because it failed to show that the
enhanced fee award would diminish its payment under the
bankruptcy plan, and thus it failed to establish an “injury in
fact.” The panel concluded that Clifton’s injury was too
conjectural and hypothetical, and Clifton did not show that
the fee award impaired the likelihood or delayed the timing
of its payment. The panel concluded that the Chapter 11
plan did not relate to a limited fund because there was no
finite amount of assets from which all creditors could be
paid. Rather, the plan was a reorganizing plan that proposed
to pay all allowed claims in full from the debtor’s ongoing
operations and non-estate sources. The panel held that,
given the detailed plan, which guaranteed payment to
creditors plus interest, and the net equity in the plan, the
district court clearly erred in finding that the estate was a
limited fund and that there were not sufficient funds to pay
back all the creditors. Thus, Clifton’s likelihood of payment
was not impaired. The panel also concluded that Clifton did
not suffer injury to the timing of its payment because
Clifton’s alleged harms were conjectural, and it remained
possible that Clifton would be paid within the plan’s initial
4 CLIFTON CAPITAL GROUP, LLC V. SHARP
estimated window. Accordingly, Clifton currently lacked an
injury in fact.
COUNSEL
Anthony Bisconti (argued), Bienert Katzman Littrell
Williams LLP, Los Angeles, California; Steven J. Katzman,
Bienert Katzman Littrell Williams LLP, San Clemente,
California; for Appellant.
John N. Tedford IV (argued) and Uzzi O. Raanan, Danning
Gill Israel & Krasnoff LLP, Los Angeles, California, for
Appellee.
OPINION
R. NELSON, Circuit Judge:
Creditor Clifton Capital Group, LLC challenges the
district court’s order affirming the bankruptcy court’s
enhanced fee award of over $1 million dollars to the trustee
in a funded bankruptcy. Because Clifton has failed to show
that the enhanced fee award will diminish its payment under
the bankruptcy plan, Clifton lacks standing. We thus reverse
the district court’s order finding standing and remand with
instructions to dismiss the appeal for lack of Article III
standing.
I
This is not a normal bankruptcy. Roscoe’s House of
Chicken & Waffles is a landmark Los Angeles restaurant
chain. Building on a staple menu predating the American
CLIFTON CAPITAL GROUP, LLC V. SHARP 5
Revolution—Thomas Jefferson served his guests chicken
and waffles—Roscoe’s has garnered celebrity attention
since opening in 1975. President Obama enjoyed chicken
wings and a waffle there in 2011, with “Obama’s Special”
added to the menu. 1 Several movies have referenced
Roscoe’s. 2 And numerous songs have memorialized the
restaurant, including one by Ludacris who suggests that the
listener “roll to Roscoe’s and grab somethin’ to eat.” 3
Despite its cultural ubiquity, even Roscoe’s was not immune
to a $3.2 million judgment in a racial discrimination case. 4
This significant judgment, along with other debt, threatened
to impair Roscoe’s ability to pay its creditors.
But fear not. The public can still indulge in Roscoe’s
famous soul food. As part of the bankruptcy plan, the
restaurants remain open and founder Herb Hudson has
guaranteed payment to Roscoe’s creditors. As a failsafe,
1
Adrian Miller, The Layered Legacy of Roscoe’s House of Chicken &
Waffles, RESY Blog (Sept. 8, 2020) https://blog.resy.com/2020/09/the-
layered-legacy-of-roscoes-house-of-chicken-waffles/.
2
See id. (“The restaurant has gotten a mention in films including:
Tapehead (1988), Swingers (1996), Jackie Brown (1997), Rush Hour
(1998), Soul Plane (2004). In 2004, Roscoe’s got more than a mention
on the big screen: It got its own eponymous feature-length film.”).
3
LUDACRIS, CALL UP THE HOMIES (Def Jam Recordings 2008).
4
See Beasley v. East Coast Foods, Inc. et. al., No. BC509995 (L.A. Sup.
Ct.); see also Shan Li, Parent Company of Roscoe’s House of Chicken
and Waffles Files for Bankruptcy Protection, LA Times (Mar. 29, 2016)
https://www.latimes.com/business/la-fi-roscoes-chicken-waffles-
bankruptcy-20160329-story.html.
6 CLIFTON CAPITAL GROUP, LLC V. SHARP
Snoop Dogg suggested buying the chain to keep it in
business. 5
In 2016, East Coast Foods, Inc. (ECF), manager of the
four Roscoe’s locations, filed for Chapter 11 bankruptcy.
The Office of United States Trustee appointed an official
committee of unsecured creditors (Committee) to monitor
ECF’s activities, of which Clifton Capital Group, LLC
(Clifton) was named chair. After an examiner found that
ECF could not meet its fiduciary obligations, the court
appointed Sharp as trustee, the de facto head of ECF for two
years.
The Committee and ECF’s principal submitted a Chapter
11 bankruptcy plan (the Plan), effective September 2018.
The Plan granted $450 per hour plus expenses for Sharp’s
services as trustee.
The Plan guaranteed the creditors full payment with
interest secured by a “Collateral Package,” which included
all of the ECF’s assets, and up to a $10 million contribution
from Hudson. The Plan’s appraiser estimated the value of
the Plan’s assets contained within the Plan at over $39.2
million with $23.4 million of net equity, far exceeding the
claims to be paid under the Plan.
In his final fee application filed in October 2018, Sharp
requested $1,155,844.71, the maximum allowable under the
fee cap statute, 11 U.S.C. § 326(a). This amount represented
the lodestar (1,692.2 hours worked times an hourly rate of
5
Farley Elliott, Snoop Dogg Says He’ll Save Roscoe’s Chicken N’
Waffles if it Comes to That, LA Eater (Mar. 31, 2016)
https://la.eater.com/2016/3/31/11338382/snoop-dogg-buy-roscoes-
chicken-waffles.
CLIFTON CAPITAL GROUP, LLC V. SHARP 7
$448.50, for $758,955.50) plus a 65% enhancement for
exceptional services.
Clifton objected in the bankruptcy court, arguing the fee
cap was not presumptively reasonable as the record did not
support an enhancement beyond the lodestar. The court
disagreed, holding that the fee cap was presumptively
reasonable and, in the alternative, that the case was
exceptional and merited deviation from the lodestar.
Clifton then appealed to the district court and moved to
strike the Fee Order. Sharp countered that Clifton lacked
standing to appeal because it was not a “party aggrieved.”
The district court found Clifton aggrieved because there was
insufficient capital in the estate to pay all creditors. In re E.
Coast Foods, Inc., No. CV 18-10098, 2019 WL 6893015, at
*3 (C.D. Cal. Dec. 18, 2019). It held that “[b]ecause the
increased compensation to the Trustee will further
subordinate Clifton Capital’s claim, the Court concludes that
Clifton Capital is directly and adversely affected by the Final
Fee Order.” Id. The district court further held that the
lodestar was the starting point for reasonable compensation
and vacated and remanded for the bankruptcy court to award
fees equal to the lodestar or “make detailed findings
sufficient to justify a higher amount.” Id. at *4, 6.
On remand, the bankruptcy court again found that Sharp
was “entitled to an enhancement because the results in this
case were truly exceptional.” The bankruptcy court again
awarded the statutory maximum. Clifton again appealed and
the district court this time affirmed. Clifton now appeals to
this court.
8 CLIFTON CAPITAL GROUP, LLC V. SHARP
II
The question of whether a party has standing is a
threshold issue that must be addressed before turning to the
merits of a case. Horne v. Flores, 557 U.S. 433, 445 (2009).
To appeal a bankruptcy court’s order, a party must establish
Article III standing and that it is “aggrieved” by the order.
In re Fondiller, 707 F.2d 441, 443 (9th Cir. 1983).
We review Article III standing determinations de novo.
Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092, 1098
(9th Cir. 2022). But we review the factual determination that
Clifton was a person aggrieved for clear error. In re Point
Ctr. Fin., Inc., 890 F.3d 1188, 1191 (9th Cir. 2018).
III
A
Our authority under Article III is dispositive. Because
the Constitution limits our jurisdiction to “cases” and
“controversies,” standing is an “essential and unchanging”
requirement. In re Sisk, 962 F.3d 1133, 1141 (9th Cir. 2020)
(quoting U.S. Const. art. III, § 2, cl. 1; Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). Accordingly, a party
must establish an Article III case or controversy before we
exert subject matter jurisdiction. Cetacean Cmty. v. Bush,
386 F.3d 1169, 1174 (9th Cir. 2004) (“A suit brought by a
plaintiff without Article III standing is not a ‘case or
controversy,’ and an Article III federal court therefore lacks
subject matter jurisdiction.” (citation omitted)).
In the bankruptcy context, we have historically bypassed
the Article III inquiry, instead analyzing whether a party is a
“person aggrieved.” See Fondiller, 707 F.2d at 443. This
standard is a prudential requirement initially found within
the Bankruptcy Act of 1898, which permitted appeal by any
CLIFTON CAPITAL GROUP, LLC V. SHARP 9
“person aggrieved by an order of a referee.” 11 U.S.C. §
67(c) (1976) (repealed 1978). The “person aggrieved”
standard was designed to limit appeals in bankruptcy
proceedings because such cases invariably implicate the
interests of various stakeholders, including those not
formally parties to the litigation. See Fondiller, 707 F.2d at
443. Even after Congress repealed and replaced the
Bankruptcy Act of 1898, however, we continued to apply the
“person aggrieved” standard. 6 See id.; In re Com. W. Fin.
Corp., 761 F.2d 1329, 1334 (9th Cir. 1985).
It is unclear why we continued to apply the person
aggrieved rule in the absence of the statute providing the
basis for doing so. We appear to have recast the pre-1978
statutory standard and applied it as a principle of prudential
standing. But the Supreme Court has since questioned
prudential standing, noting it “is in some tension with [the
Court’s] recent reaffirmation of the principle that ‘a federal
court’s obligation to hear and decide’ cases within its
jurisdiction ‘is virtually unflagging.’” Susan B. Anthony List
v. Driehaus, 573 U.S. 149, 167 (2014) (quoting Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
125–26 (2014)). Still, our bankruptcy cases have historically
addressed prudential standing with little attention to Article
III standing. See, e.g., Fondiller, 707 F.2d at 441–43; In re
Int’l Env’t Dynamics, Inc., 718 F.2d 322, 326 (9th Cir.
1983); Klein v. Rancho Mont. De Oro, Inc., 263 F.2d 764,
772 (9th Cir. 1959); Com. W. Fin., 761 F.2d at 1334.
6
The Bankruptcy Reform Act of 1978 replaced the Bankruptcy Act of
1898. It governs the relationship between creditors and debtors when
debtors can no longer pay their debts. Pub. L. No. 95-598, 92 Stat. 2549
(codified at 11 U.S.C. § 101).
10 CLIFTON CAPITAL GROUP, LLC V. SHARP
After the Supreme Court’s decision in Driehaus,
however, we have returned emphasis to Article III standing.
See, e.g., Sisk, 962 F.3d at 1141–43. And determining our
Article III jurisdiction before any prudential considerations
does not offend our precedent. See, e.g., In re P.R.T.C., Inc.,
177 F.3d 774, 777–79 (9th Cir. 1999) (addressing Article III
standing before person aggrieved prudential standing). We
thus first examine Article III standing, which we find lacking
here.
B
As the party invoking federal jurisdiction, Clifton “bears
the burden of establishing” the elements of Article III
standing. Lujan, 504 U.S. at 561. A party must establish
“such a personal stake in the outcome of the controversy as
to warrant his invocation of federal-court jurisdiction.”
Horne, 557 U.S. at 445 (quoting Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009) (emphasis in original)).
Clifton must therefore show that it has: (1) suffered an
“injury in fact” that is concrete, particularized, and actual or
imminent, (2) the injury is “fairly traceable” to the
defendant’s conduct, and (3) the injury can be “redressed by
a favorable decision.” Lujan, 504 U.S. at 560–61
(alterations in original omitted).
1
Injury in fact is the “[f]irst and foremost” of the three
standing elements. Sisk, 962 F.3d at 1142 (quoting Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998)).
Clifton argues that it suffered an injury-in-fact because the
Plan established the expectation that it would receive full
payment of its claim, which has not yet occurred and which
the Fee Order exacerbates. The Plan estimates that Clifton
CLIFTON CAPITAL GROUP, LLC V. SHARP 11
would “receive a pro rata share of Available Cash 7 in the
annual sum of $1,816,701 in 2022, $2,996,321 in 2023, and
$634,634 in 2024 . . . ” To date, Clifton notes that this totals
millions of dollars in payments that have not been made.
Clifton argues that the Fee Order’s grant of the $400,000
trustee bonus harms both the likelihood and timing of any
payment by further subordinating it.
This, Clifton contends, suffices as an injury ‘fairly
traceable’ to the wrongful conduct of the excessive fee
award because its “injury need not be financial,” P.R.T.C.,
177 F.3d at 777 (citation omitted),and because, under 11
U.S.C. § 330, payment of the fee award has priority and must
be paid in full before unsecured creditors like Clifton receive
any distribution. Clifton thus argues that it suffered a
traceable and redressable injury in fact because a favorable
decision would result in the excessive fees being returned to
the ECF estate to pay out claims, and therefore would
“increase the likelihood and timing” of payment to Clifton.
Sharp counters that Clifton’s alleged injury is too
conjectural and hypothetical to establish an injury in fact
because there is no diminished likelihood that Clifton will be
paid in full. The Plan’s Collateral Package 8 guarantees
Clifton full payment with interest. Sharp further argues that
7
“Available Cash” is defined as cash in the estate from various sources,
less (among other things) “the amount necessary or estimated and
reserved to pay in full [] any Allowed Administrative Expense Claims,”
which includes the Trustee’s awarded compensation pursuant to the Fee
Order. See 11 U.S.C. § 503(b)(2) (providing that an administrative
expense claim includes “compensation and reimbursement awarded
under [11 U.S.C. § 330(a)].”).
8
As discussed below, the Collateral Package protects against any risks
of nonpayment and includes all of the Reorganized Debtor’s assets.
12 CLIFTON CAPITAL GROUP, LLC V. SHARP
Clifton cannot claim injury arising from the Plan’s estimates
because Clifton approved the Plan understanding that the
timing of its distributions depended on the allowed amounts
of senior claims, meaning payment could be delayed by any
increase in any Allowed Non-Subordinated Claims. Thus,
Sharp asserts that Clifton’s alleged harm is no harm at all
because Clifton’s payment is certain, and the only question
at issue is when payment will occur.
2
We conclude that Clifton’s alleged injury is too
conjectural and hypothetical to establish an injury in fact for
Article III standing. We similarly conclude that Clifton is
wrong that the fee award both impaired the likelihood and
delayed the timing of its payment. The district court
erroneously concluded that the fee award would further
subordinate Clifton’s claim.
a
We first address the likelihood of payment. The district
court concluded that Clifton had standing because it was an
aggrieved party. Noting that Clifton had not been paid on
any of its Allowed Claim, the court adopted Clifton’s
argument that “[t]here are not yet enough funds on hand to
pay all creditors, including Clifton Capital, in full” and that
“there are outstanding contingencies under the Plan that
must occur before those funds become available.” E. Coast
Foods, 2019 WL 6893015, at *3. Sharp pointed out,
however, that because Clifton was guaranteed 100%
payment of its alleged claim under the Plan, it was not
aggrieved. Id. at *2–3.
The district court seemingly concluded, without
explicitly stating, that the Plan concerns a limited fund. See
CLIFTON CAPITAL GROUP, LLC V. SHARP 13
id. at *3. It found that the alleged lack of sufficient capital
to pay all claims would further subvert Clifton’s claim and
thereby adversely affect its payment. Id. Therefore, the
district court held that Clifton was aggrieved because it was
appealing an order disposing of assets from which it (the
claimant) seeks to be paid. Id. (citing Int’l Env’t Dynamics,
718 F.3d at 326).
The district court relied on our precedent that in cases
involving competing claims to a limited fund, “a claimant
has standing to appeal an order disposing of assets from
which the claimant seeks to be paid.” Id. (quoting P.R.T.C.,
177 F.3d at 778). A limited fund necessarily concerns a
finite pool of assets to pay claims, thus creating the risk that
creditors will not be paid, either in full or at all. In the
limited fund context, changes to any allotment or transfer of
funds, including an enhanced fee award, would materially
affect the likelihood of any potential payment and therefore
directly implicate creditor interests. Along these lines, we
have found a party aggrieved when limited fund plans
“eliminated” a party’s interest in estate assets from which
they sought payment. Com. W. Fin., 761 F.2d at 1335. We
have also found standing when a bankruptcy court’s order
transferred all significant assets out of the estate, effectively
barring a creditor’s claim. P.R.T.C., 177 F.3d at 778–79.
In contrast, in Klein, we found that plaintiffs challenging
an order seeking payment of their attorney fees lacked
standing because the plan specified that there were
“additional monies” available, even though the plan did not
expressly contemplate payment of their claims. 263 F.2d at771–72. The plaintiffs challenged orders confirming a plan
which they asserted disregarded compensation for legal
services to which they were entitled. See id. Plaintiffs
14 CLIFTON CAPITAL GROUP, LLC V. SHARP
argued that because the plan disposed of the estate’s assets,
the plan rendered payment impossible. Id.Our court rejected both arguments. Even though the plan
did not expressly contemplate the plaintiffs’ compensation
claims, the plan provided that “additional monies are
available if need(ed) . . . to . . . pay off the unsecured
creditors their claims in full.” Id. at 772 (alterations in
original). At judgment, the court noted that “if the sum
which is actually available to pay appellants’ claims as
finally allowed proves insufficient, the court has only to
enforce the provisions of the plan . . . requiring that
additional monies be deposited or accrued in the registry.”
Id.Even though Klein was decided under the “person
aggrieved” standard, it is most analogous to this case. As in
Klein, the Plan here does not relate to a limited fund because
there is no finite amount of assets from which all creditors
could be paid. See id. Rather, “the Plan is a reorganizing
plan that proposes to pay all Allowed Claims in full (unless
otherwise agreed) from the Debtor’s ongoing operations and
non-Estate sources.” 9
The Plan’s mandatory “disclosure statement” which
outlines the Plan, its risk factors, and its financial projections
bolsters this conclusion.10 See 11 U.S.C. §§ 1121, 1125.
9
Under the Plan, Clifton is guaranteed full payment with interest “at the
rate of 10% per annum until received, with interest accruing and
compounding monthly.”
10
The disclosure statement requires that plan include a classification of
claims and how each class of claims will be treated under the plan. See
11 U.S.C. § 1123. Creditors whose claims are “impaired” vote on the
CLIFTON CAPITAL GROUP, LLC V. SHARP 15
The Plan makes clear that Clifton’s claim will be paid in full
with interest after all other allowed unsecured claims and
penalty claims are satisfied. Clifton understood these terms:
its principal Sam White testified that “the Plan was proposed
to move this case forward and to ensure 100% payment to
creditors as quickly as possible.”
Indeed, the Plan’s promise of full payment with interest
is unconditionally guaranteed and secured by a “Collateral
Package,” which includes all of ECF’s assets. The Debtor’s
principal (Hudson) is responsible for contributing up to $10
million to the Plan to affect the payment of claims. ECF is
required to contribute to the Plan roughly $110,000 per
month plus the excess free cash flow from its post-
confirmation operations. Additional funds are available
from other entities owned by Hudson which are to contribute
about $130,000 per month to the Plan. Payments from ECF
and Hudson will continue until all claims are paid in full with
interest.
The Package further ensures enough available collateral
to pay the Plan’s covered claims in full, plus a 35% equity
cushion. The Plan’s appraiser estimated the value of the
Plan’s assets contained within the Plan at over $39.2 million
with 23.4 million of net equity, exceeding the claims to be
paid under the Plan by about $17.3 million (the 35% equity
cushion).
Given the detailed Plan which guarantees payment to
creditors plus interest, and the net equity in the Plan, the
district court’s finding that the estate is a limited fund and
plan before it is approved by the bankruptcy court. See id. at § 1126.
Here, Clifton voted to approve the disclosure statement and the Plan was
approved pursuant to § 1128.
16 CLIFTON CAPITAL GROUP, LLC V. SHARP
that “there are not sufficient funds to pay back all the
creditors,” is clearly erroneous. E. Coast Foods, 2019 WL
6893015, at *3. Moreover, even if Sharp receives the
contested $400,000 bonus, this will not impact Clifton’s
ability to be paid because there are other sources from which
to make Clifton’s payment at the appropriate time.
b
We similarly disagree with Clifton’s assertion that it
suffered injury to the timing of its payment. In agreeing to
the Plan, Clifton knew from the start that the timing of its
payment could be longer or shorter than the Plan’s initial
estimates depending on the amounts owed to senior
claimants. The Disclosure estimates that all Allowed
Unsubordinated Claims would be paid in full within four
years, by mid-2022. But the Statement also notes that “[t]he
term of the Plan can be shorter or longer than expected
depending on the amount of the Allowed Claims.”
The Plan further estimates that allowed claims could be
paid within six years, but “for every $1 million change in
allowed claims, the term of the Plan will change by 3.3
months.” Sharp points to specific unresolved allowed claims
that have delayed payment, such as a pending priority claim
by the IRS for over $10.2 million which it asserts Clifton
knew was present at the time the Plan was approved, and for
which $15 million is being held in reserve to pay. Sharp also
points to the effects of COVID-19 and a missing $1.5 million
payment from Hudson as reasons that Clifton has not been
paid yet. Sharp has entered into a series of forbearance
agreements to give Hudson additional time to pay the
balance due. No evidence suggests that payment will not
occur. And in any event, this potential default is not
traceable to the Fee Order itself.
CLIFTON CAPITAL GROUP, LLC V. SHARP 17
Given these uncertainties, the Plan estimated that the
distribution timeframe for subordinated claims, such as
Clifton’s, would be between 2022 and 2024. But these were
only estimates. Ultimately, the Plan’s guarantee that Clifton
will be paid with interest precludes a finding of an injury in
fact now even though these estimates thus far have proven
inaccurate.
Clifton’s alleged harms are thus conjectural at best. It
remains possible that Clifton will be paid within the Plan’s
initial estimated window before the end of 2024. Given
Clifton’s consent to the Plan, and because this period has not
passed, Clifton has failed to establish that the timing of its
payment has been harmed beyond what the Plan initially
provided. Since the Plan did not guarantee Clifton payment
by a specific date (it merely provided an estimated window
which has not passed), and the estimated timing of payment
was subject to change based on priority claims, Clifton has
not yet shown an actual injury. That is particularly true
where Clifton is entitled to interest on the payments that are
due. As such, Clifton has failed to establish the negative
impact of any delayed payment not already addressed by the
Plan.
This remains the case even where Sharp receives his
payment before Clifton is paid. The Plan anticipates
fulfilling Clifton’s claims even if Sharp receives the
challenged bonus. As we held in Klein, the availability of
additional funds to satisfy plaintiffs’ claims foreclose
standing. 263 F.2d at 771. The same is true here.
This is not to say that no potential remedy would exist
should the Plan prove insufficient. We agree with our prior
analysis in Klein that Clifton, if necessary, could sue to
enforce those provisions of the Plan. At that time, there may
18 CLIFTON CAPITAL GROUP, LLC V. SHARP
be an actual injury that is both fairly traceable and would be
easily redressable by ordering additional money deposited
into the estate to pay Clifton’s claims. See id. at 766. But
such facts do not presently exist. And standing must exist
from the start of an action. See, e.g., Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 170
(2000) (“The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue
throughout its existence. . . .”). As such, Clifton has failed
to establish actual injury thus far and therefore lacks Article
III standing to challenge the Fee Award. 11
IV
Because Clifton currently lacks an injury in fact, we
reverse the district court’s order and remand with
instructions to dismiss the appeal for lack of Article III
standing.
REVERSED.
11
Because Clifton lacks Article III standing, we need not address the
prudential “person aggrieved” standard. See Gov’t Emps. Ins. Co. v.
Dizol, 133 F.3d 1220, 1222–23 (9th Cir. 1998) (holding that a suit
seeking declaratory judgment must first pass constitutional and statutory
muster as presenting a case-or-controversy before the court exercises its
prudential discretion).