QSI Holdings, Inc v. Dennis E. Alford

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0230p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re: QSI HOLDINGS, INC.;
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QUALITY STORES, INC.,
Debtors. -
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No. 08-1176
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QSI HOLDINGS, INC.; QUALITY STORES, INC.,
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Plaintiffs-Appellants,
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v.
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DENNIS E. ALFORD, et al.,
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Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 06-00876—Janet T. Neff, District Judge.
Argued: March 4, 2009
Decided and Filed: July 6, 2009
Before: NORRIS, COOK, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: John K. Cunningham, WHITE & CASE LLP, Miami, Florida, for Appellants.
Boyd A. Henderson, MILLER JOHNSON, Grand Rapids, Michigan, for Appellees.
ON BRIEF: John K. Cunningham, Matthew C. Brown, WHITE & CASE LLP, Miami,
Florida, Glenn M. Kurtz, WHITE & CASE LLP, New York, New York, Robert S.
Hertzberg, PEPPER HAMILTON LLP, Detroit, Michigan, Benjamin M. Mather, Michael
H. Reed, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania, for Appellants. Boyd A.
Henderson, MILLER JOHNSON, Grand Rapids, Michigan, for Appellees.
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OPINION
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ALAN E. NORRIS, Circuit Judge. In this appeal, we must determine whether
§ 546(e) of the Bankruptcy Code applies to privately traded securities. If that is indeed the
case, then the settlement payments made to defendant shareholders are exempt from
1
No. 08-1176 In re QSI Holdings, Inc., et al. Page 2
avoidance. This is an issue of first impression in this circuit and we now hold, as did the
bankruptcy and district courts below, that § 546(e) is not limited to publicly traded securities
but also extends to transactions, such as the leveraged buyout at issue here, involving
privately held securities.
I.
“When reviewing an order of a bankruptcy court on appeal from a decision of a
district court, this Court ‘review[s] the bankruptcy court’s order directly and give[s] no
deference to the district court’s decision.’” LPP Mortgage, Ltd. v. Brinley, 547 F.3d 643, 647
(6th Cir. 2008) (quoting In re Lee, 530 F.3d 458, 463 (6th Cir. 2008)). We review the
bankruptcy court’s resolution of questions of law de novo and questions of fact for clear
error. In re Triple S Rests., Inc., 519 F.3d 575, 578 (6th Cir. 2008). The facts in this appeal
are uncontested and hence our review is de novo.
Because the facts are not in dispute, we rely upon the bankruptcy court’s recitation
to set the stage for our discussion:
This adversary proceeding arises from the 1999 leveraged buyout
(“LBO”) of the Debtor, Quality Stores, Inc. (“Quality”). The Plaintiffs, QSI
Holdings, Inc. and Quality, acting through their chief litigation officer
(collectively, the “Plaintiffs”), seek to avoid payments made to
approximately 170 shareholders of Quality (the “Defendants”) resulting
from the LBO. Almost all of the Defendants have filed motions for summary
judgment asserting that the transfers are exempt from avoidance based on
the settlement payment defense in § 546(e) of the Bankruptcy Code.
Accordingly, the legal issue presented is whether the transfers from the
disbursing agent to the Defendants are exempt from avoidance because they
constitute “settlement payments” made by a “financial institution” under
§ 546(e).
....
. . . Quality was a privately held corporation that operated a chain of
retail stores specializing in agricultural and related products. In 1999,
Quality and certain of Quality’s principal shareholders entered into a merger
agreement with Central Tractor Farm and Country, Inc. (“Central Tractor”)
and its parent company, CT Holdings, Inc. (collectively the “CT Parties”).
Pursuant to the agreement, Quality was to merge with and into Central
Tractor, with the surviving entity changing its name to Quality Stores, Inc.
The agreement also called for Quality’s shareholders to be paid, in cash or
stock, for their respective equity interests. The assets of both Quality and
No. 08-1176 In re QSI Holdings, Inc., et al. Page 3
Central Tractor were pledged as collateral for the loan that was obtained and
partially utilized to pay the Quality shareholders.
The total purchase price for the LBO was approximately $208
million. Of this amount, Quality’s shareholders were to receive $111.5
million in cash with $91.8 million of stock in CT Holdings, Inc. Central
Tractor also agreed to assume and pay $42.1 million of Quality’s existing
indebtedness.
The Quality LBO involved both individual shareholders and
company employees who were shareholders by virtue of their participation
in Quality’s Employee Stock Ownership Trust (“ESOT”). To effectuate the
securities transaction contemplated by the LBO, the CT Parties made a
$111.5 cash payment to their exchange agent, HSBC Bank USA (“HSBC
Bank”). HSBC Bank collected the shares of Quality stock from individual
shareholders. It then transferred the securities to the CT Parties and
distributed the cash, or shares in CT Holdings, Inc., to the individual
shareholders.
For the ESOT shareholders, many of whom were lesser paid and
mid-level Quality employees, the settlement process involved one additional
step. Most of the ESOT stock was held by the ESOT trustee, LaSalle Bank.
LaSalle Bank tendered the shares of Quality stock to HSBC Bank and
received the cash consideration. The ESOT was eventually terminated and
the funds were distributed by LaSalle Bank to the ESOT participants.
As a result of the merger, Quality incurred substantial integration
costs. The merged company also implemented a costly expansion plan which
aggressively contemplated the opening of twenty-five to fifty new stores
each year. These business decisions, and others, contributed to continuing
financial difficulties which eventually led a group of petitioning creditors to
file an involuntary bankruptcy petition against Quality during October 2001.
In response, before an order for relief was entered, Quality filed a voluntary
petition under chapter 11 on November 1, 2001.
The Plaintiffs filed this fraudulent conveyance action on October 31,
2003. The complaint, as amended, alleges that the Defendants gave less than
reasonably equivalent value when they tendered their Quality stock for cash
as part of the LBO. The complaint further alleges that the LBO left Quality
with unreasonably small capital and caused it to incur debts beyond its
ability to pay. The Plaintiffs seek to avoid and recover the LBO transfers as
constructively fraudulent conveyances pursuant to 11 U.S.C. § 544, § 550,
and the Michigan Uniform Fraudulent Transfer Act, Mich. Comp. Laws
Ann. §§ 566.31 et seq. The Defendants’ motions for summary judgment
assert that the LBO transfers were settlement payments made by a financial
institution. Therefore, the Defendants seek dismissal of this adversary
proceeding because they contend that the transfers are exempt from
avoidance under § 546(e).
No. 08-1176 In re QSI Holdings, Inc., et al. Page 4
In re Quality Stores, Inc., 355 B.R. 629, 631-32 (Bankr. W.D. Mich. 2006) (footnote
omitted).
II.
A. Statutes at Issue
Section 546(e) provides as follows:
Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) of this
title, the trustee may not avoid a transfer that is a margin payment, as defined
in section 101, 741, or 761 of this title, or settlement payment, as defined in
section 101 or 741 of this title, made by or to a commodity broker, forward
contract merchant, stockbroker, financial institution, financial participant,
or securities clearing agency that is made before the commencement of the
case, except under section 548(a)(1)(A) of this title.
11 U.S.C. § 546(e) (version in effect prior to December 12, 2006) (emphasis added). Section
741(8), in turn, defines “settlement payment” as “a preliminary settlement payment, a partial
settlement payment, an interim settlement payment, a settlement payment on account, a final
settlement payment, or any other similar payment commonly used in the securities trade.”
11 U.S.C. § 741(8).
B. Did the LBO at Issue Involve a Settlement Payment as Defined by § 546(e)?
Plaintiffs frame the central issue on appeal as “whether payments made to purchase
non-public securities in a leveraged buyout can be exempted from avoidance pursuant to
section 546(e) of the Bankruptcy Code by merely funneling [them through] a financial
institution.” In their view, Congress intended that § 546(e) “insulate the nation’s public
securities markets from the adverse effects of a bankruptcy, so as not to cause a ripple effect
in such markets by unwinding settled securities transactions.”
When construing a statute we look first to its text. Where that language is plain, “the
sole function of the courts – at least where the disposition required by the text is not absurd
– is to enforce it according to its terms.” Lamie v. U. S. Trustee, 540 U.S. 526, 534 (2004)
(quotation omitted); see also Thompson v. North American Stainless, L.P., ____F.3d____,
2009 WL 1563443, *2 (6th Cir. June 5, 2009) (en banc).
No. 08-1176 In re QSI Holdings, Inc., et al. Page 5
Numerous courts, including the courts below, have acknowledged that the definition
of “settlement payment” set out in § 741(8) is somewhat “circular.” See Kaiser Steel Corp.
v. Charles Schwab & Co., Inc., 913 F.2d 846, 848 (10th Cir. 1990); QSI Holdings, Inc. v.
Alford, 382 B.R. 731, 740 (W.D. Mich. 2007) (citing Kaiser Steel); In re Quality Stores, Inc.,
355 B.R. 629, 633 (Bankr. W.D. Mich. 2006) (same). Nonetheless, courts have recognized
that the definition is “extremely broad.” See Contemporary Indus. Corp. v. Frost, 564 F.3d
981, 985 (8th Cir. 2009) (citing Kaiser Steel, 913 F.2d at 848 (quoting In re Bevill, Bresler
& Schulman Asset Mgmt. Corp., 878 F.2d 742, 751 (3d Cir. 1989)); In re Resorts Int’l, Inc.,
181 F.3d 505, 514-15 (3d Cir. 1999); In re Comark, 971 F.2d 322, 326 (9th Cir. 1992)).
With this in mind, we turn to the definition of “settlement payment.” For the
purposes of this appeal, the critical phrase in the definition is the final one: the payment must
be one “commonly used in the securities trade.” 11 U.S.C. § 741(8). Plaintiffs take issue
with the lower courts’ failure to consider whether the LBO contained the hallmarks of a
payment made in the securities trade. Specifically, they fault the district court for basing its
broad reading of “settlement payment” upon decisions that involve public, not private,
securities transactions. They would have us look to the legislative history of § 546(e). That
history is recounted briefly in Kaiser Steel:
In 1982, Congress was concerned about the volatile nature of the
commodities and securities markets, so former section 764(c) was replaced
by sections 546(e) and 741(5) and (8) “to clarify and, in some instances,
broaden the commodities market protections and expressly extend similar
protections to the securities market.” H.R.Rep. No. 420, 97th Cong., 2d Sess.
2 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News 583, 583. The
protection was expanded beyond the ordinary course of business to include
margin and settlement payments to and from brokers, clearing organizations,
and financial institutions. Again, Congress’s purpose was “to minimize the
displacement caused in the commodities and securities markets in the event
of a major bankruptcy affecting those industries.” Id. at 1, reprinted in 1982
U.S.Code Cong. & Admin.News at 583.
913 F.2d at 849 (footnote and quotation omitted). In Kaiser Steel, the court went on to
conclude that “the transfer of consideration in an LBO is consistent with the way ‘settlement’
is defined in the securities industry.” Id.
However, Kaiser Steel involved publicly traded securities. The question posed here
is whether its logic extends to privately traded securities. In a case involving facts similar
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to ours, the Eighth Circuit recently held that it does. Contemporary Indus. Corp., 564 F.3d
at 986 (“Nothing in the relevant statutory language suggests Congress intended to exclude
these payments from the statutory definition of ‘settlement payment’ simply because the
stock at issue was privately held”). The court construed the phrase “commonly used in the
securities trade” as “a catchall phrase intended to underscore the breadth of the § 546(e)
exemption.” Id. We agree. While, like the Eighth Circuit, we recognize that other courts
have reached a different conclusion, those courts stressed that Congress intended to protect
publicly traded securities from market volatility caused by bankruptcy by means of § 546(e).
See, e.g., In re Norstan Apparel Shops, Inc., 367 B.R. 68, 76 (Bankr. E.D.N.Y. 2007). But
unlike the instant case, the Norstan transaction involved the two sole shareholders of a
closely held Subchapter S corporation, did not implicate public securities markets, and
lacked many of the indicia of transactions “commonly used in the securities trade.” See
Norstan, 367 B.R. at 73. This case, on the other hand, considers a transaction with the
characteristics of a common leveraged buyout involving the merger of nearly equal
companies, and nothing in the statutory language indicates that Congress sought to limit that
protection to publicly traded securities. The value of the privately held securities at issue is
substantial and there is no reason to think that unwinding that settlement would have any less
of an impact on financial markets than publicly traded securities. Accord Contemporary
Indus., 564 F.3d at 987.
Accordingly, we hold that nothing in the text of § 546(e) precludes its application
to settlement payments involving privately held securities.
C. Did the Transaction Involve a “Transfer” to a Financial Institution?
Even if the LBO transaction qualifies as a “settlement payment,” plaintiffs contend
that another element of § 546(e) remains unsatisfied: the requirement that a “transfer
. . . made by or to a . . . financial institution” occur. In their view, the role played by HSBC
Bank in this transaction did not satisfy this requirement because it never had dominion or
control over those funds. The Eleventh Circuit has taken this position, In re Munford, Inc.,
98 F.3d 604, 610 (11th Cir. 1996), and plaintiffs urge us to adopt its reasoning:
True, a section 546(e) financial institution was presumptively
involved in this transaction. But the bank here was nothing more than an
intermediary or conduit. Funds were deposited with the bank and when the
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bank received the shares from the selling shareholders, it sent funds to them
in exchange. The bank never acquired a beneficial interest in either the funds
or the shares.
Importantly, a trustee may only avoid a transfer to a “transferee.” See
11 U.S.C. § 550. Since the bank never acquired a beneficial interest in the
funds, it was not a “transferee” in the LBO transaction. See In re Chase &
Sanborn Corp., 848 F.2d 1196, 1200 (11th Cir. 1988) (“When banks receive
money for the sole purpose of depositing it into a customer’s account . . . the
bank never has actual control of the funds and is not a § 550 transferee.”).
Rather, the shareholders were the only “transferees” of the funds here. And,
of course, section 546(e) offers no protection from the trustees avoiding
powers to shareholders; rather, section 546(e) protects only commodity
brokers, forward contract merchants, stockbrokers, financial institutions, and
securities clearing agencies. Accordingly, regardless of whether the
payments qualify as settlement payments, section 546(e) is not applicable
since the LBO transaction did not involve a transfer to one of the listed
protected entities.
Id. at 610 (footnote omitted).
In rejecting Munford, the Third Circuit found that the plain language of § 546(e)
simply does not require a “financial institution” to have a “beneficial interest” in the
transferred funds. In re Resorts Int’l, Inc., 181 F.3d at 516. The Eighth Circuit has adopted
this view, Contemporary Indus., 564 F.3d at 986-87 (statute does not “expressly require that
the financial institution obtain a beneficial interest in the funds”), as do we. The role played
by HSBC Bank in the LBO at issue was sufficient to satisfy the requirement that the transfer
was made to a financial institution.
III.
The judgment is affirmed.