Beeman v. BGI Creditors' Liquidating Trust (In re BGI, Inc.)

In these appeals that were consolidated for argument, holders of unredeemed consumer gift cards issued by the former book retailer BGI Inc., f/k/a Borders Group, Inc. and its affiliates (“Borders” or “Debtors”) seek to vacate a May 28, 2013 judgment of the District Court (Andrew L. Carter, Jr., Judge) dismissing as equitably moot Appellants’ challenges to three Bankruptcy Court orders.

In the three challenged orders, the Bankruptcy Court (Martin Glenn, Bankruptcy Judge) denied motions filed by Appellants after Borders — which had earlier filed for protection under Chapter 11— obtained confirmation of its liquidation plan (the “Plan”). In those orders, the Bankruptcy Court found that the Plan was substantially consummated, and (1) denied the motion of Appellants Eric Beeman and Jane Freij for leave to file untimely proofs of claim; (2) rejected and discharged Appellant Robert Traktman’s untimely proof of claim; and (3) denied as moot the motion for class certification pursued by all three Appellants, none of whom appeared in the case until after the Plan was confirmed. See In re BGI, Inc., 476 B.R. 812 (Bankr.S.D.N.Y.2012) (“BGI /”); Joint Appendix (“JA”) 700.

On review, the District Court accepted the Bankruptcy Court’s determination that the Plan was substantially consummated and accordingly found Appellants subject to a presumption that their appeals were equitably moot. Concluding further that Appellants had failed to overcome that presumption, the District Court dismissed the appeals. See In re BGI, Inc., Nos. 12 Civ. 7714CALC), 12 Civ. 7715(ALC), 13 Civ. 0080(ALC), 2013 U.S. Dist. LEXIS 77740 (S.D.N.Y. May 22, 2013) (“BGI II”).

We AFFIRM the District Court’s ruling. At the threshold, we hold that the analysis outlined in FritoLay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10 F.3d 944 (2d Cir.1993) (“Chateaugay II”) — which governs our Circuit’s equitable mootness analysis in Chapter 11 reorganizations — also governs our mootness analysis in Chapter 11 liquidations. We then conclude that Appellants are subject to the presumption of mootness created by the liquidation Plan’s substantial consummation, and have failed to satisfy the five Chateaugay factors, as would be necessary to rebut that presumption. Accordingly, we hold that the District Court acted within its discretion in dismissing these appeals as equitably moot.

BACKGROUND

We recite only those facts necessary to this appeal. A full recitation of the facts may be found in the Bankruptcy Court and District Court opinions. BGI I, 476 B.R. at 815-20; BGI II, 2013 U.S. Dist. LEXIS 77740, at *1-17.

Each Appellant holds an unused consumer gift card issued by Borders, the now-defunct retail bookstore chain. In February 2011, Borders and certain of its affiliates filed voluntary petitions for relief through reorganization under Chapter 11 of the Bankruptcy Code. 11 U.S.C. § 1101, et seq. In April 2011, the Bankruptcy Court entered an order (the “Bar Date Order”) establishing June 1, 2011 (the “Bar Date”), as the deadline for claims to be filed by purported creditors of Borders on debts arising before Borders filed its bankruptcy petition (the “prepetition cred*105itors”). Pursuant to Bankruptcy Rule 2002,1 the Bar Date Order required Borders to notify potential prepetition creditors of the bankruptcy proceedings in several ways, including by publishing notice of the Bar Date in the national edition of The New York Times at least twenty-eight days before the Bar Date, and by serving notice of the Bar Date via first-class mail to, among others, “all known creditors and other known holders of claims.” No appeal was taken from the Bar Date Order.

After filing its February 2011 petition, Borders attempted to reorganize as a going concern, but those efforts were unsuccessful, and in July 2011, the Bankruptcy Court authorized Borders to proceed under Chapter 11 to liquidate substantially all of its assets and completely close the chain of stores.2 On September 20, 2011, Borders closed the last of its retail branches. One week later, it stopped accepting gift cards and conducting e-commerce on its website. Gift card redemptions constituted nearly one hundred percent of Borders’ net sales in the last month of the chain’s operations.

With its goal changing from reorganization to liquidation! in November 2011 Borders filed a Chapter 11 liquidation plan under section 1125 of the Bankruptcy Code, together with the required Disclosure Statement, which is designed to permit interested parties to evaluate the proposed plan. 11 U.S.C. § 1125(b). The Bankruptcy Court approved Borders’ proposals for soliciting votes on the Plan, disseminating the Disclosure Statement, and giving notice of the Plan confirmation hearing.3 The Bankruptcy Court also required Borders to provide, notice of the confirmation hearing to all other interested parties via publication in The New York Times. This notice was published on November 16, 2011. The hearing was scheduled for December 20, 2011.

No Appellant filed an objection to the Plan before the confirmation hearing and none appeared at the hearing, which took place as scheduled, on December 20. On the day after the hearing, the Bankruptcy Court entered an order confirming the Plan and directing that the Plan be put into effect on January 12, 2012 (the “Confirmation Order”).4

*106Two weeks after the hearing — on January 4, 2012 — -Appellants Beeman and Freij moved the Bankruptcy Court for authorization to file untimely proofs of claim (the “Late Claims Motion”), arguing that they had not received adequate notice of the bankruptcy proceedings or the Bar Date. Then, joined by Appellant Traktman (who had simply filed a late claim without authorization), they asked the court to certify a class of all holders of Borders gift cards issued prepetition (the “Class Certification Motion”). Appellees BGI Creditors’ Liquidating Trust (the “Trust”) and the Liquidating Trustee objected to both motions. Neither Beeman, Freij, nor Traktman moved for a stay of the Plan in tandem with their efforts to file late claims and certify a class.5

In August 2012, the Bankruptcy Court denied the Late Claims and Class Certification Motions. In its memorandum opinion, the court first considered whether, under Bankruptcy Rule 2002, gift card holders were individually entitled to “actual notice” of the Bar Date. Answering “no,” the court explained that “known” creditors of a Chapter 11 debtor — a group that includes both “claimants] whose identity is actually known to the debtor [and] elaimant[s] whose identity is reasonably ascertainable” — must be afforded “actual written notice of the bankruptcy filing and the bar date.” BGI I, 476 B.R. at 820 (internal quotation marks omitted). By contrast, “unknown” creditors — whose identity is not reasonably ascertainable by the debtor — are entitled only to “constructive notice,” which may be provided through notice by publication. Id. Determining that gift card holders were “unknown” creditors because their “status as possible creditors was not known or reasonably ascertainable,”6 the court held that publication of the Bar Date once in The New York Times provided Appellants all the notice to which they were entitled. Id. at 821, 823-24.

The court reasoned that because Bee-man and Freij failed to establish any entitlement to actual notice of the Bar Date, their neglect in failing to file timely proofs of claim was not “excusable” under Bankruptcy Rule 9006(b)(1).7 Id. at 824-26. Its conclusion rested in part on its determination that the Plan had been substantially consummated. The court noted that as of August 2012, the Trust had already made distributions of approximately $17 million to holders of allowed administrative and priority claims, and it concluded that “allowing [Beeman and Freij] to file late claims and certifying a class of Gift Card holders would have a disastrous effect on *107the remainder of the Debtors’ estates and the final distributions of the Plan.” Id. at 825.

Accordingly, the court denied their motion to file untimely claims. Id. at 826. It then denied as moot the motion for class certification. Id. at 826-27. The Bankruptcy Court similarly disallowed and expunged Traktmaris untimely claim.

Appellants timely sought district court review of these orders. In an opinion issued in May 2018, the District Court dismissed all three appeals as equitably moot. This appeal followed.

DISCUSSION

Equitable mootness is a prudential doctrine under which a district court may in its discretion dismiss a bankruptcy appeal “when, even though effective relief could conceivably be fashioned, implementation of that relief would be inequitable.” In re Charter Commc’ns, Inc., 691 F.3d 476, 481 (2d Cir.2012) (internal quotation marks omitted). The doctrine “requires the district court to carefully balance the importance of finality in bankruptcy proceedings against the appellant’s right to review and relief.” Id. We review a district court’s dismissal on grounds of equitable mootness for abuse of discretion, id. at 483, under which we examine conclusions of law de novo and findings of fact for clear error, see Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. -, 134 S.Ct. 1744, 1748 n. 2, 188 L.Ed.2d 829 (2014).

A. Equitable Mootness in the Context of Chapter 11 Liquidation Proceedings

As an initial matter, we conclude that the doctrine of equitable mootness applies to appeals arising from Chapter 11 liquidation proceedings, as well as appeals from Chapter 11 reorganization proceedings.8 At oral argument, Appellants appeared to abandon the position — advanced in their briefs — that the doctrine of equitable mootness does not apply in this context. Because the question has not yet been decided by our Court, however, we address it briefly here.

The doctrine of “equitable mootness” provides an analytical basis for dismissing certain appeals from bankruptcy court orders. It was developed judicially “in response to the particular problems presented by the consummation of plans of reorganization under Chapter 11,” in which “the need for finality, and the need for third parties to rely on that finality,” is of paramount importance. TNB Fin., Inc. v. James F. Parker Interests (In re Grimland, Inc.), 243 F.3d 228, 231 & n. 4 (5th Cir.2001) (explaining that the need for the doctrine “normally arises where a Chapter 11 reorganization plan is at issue”).

Equitable mootness is a “pragmatic” doctrine, one that is “grounded in the notion that, with the passage of time after a judgment in equity and implementation of that judgment, effective relief on appeal becomes impractical, imprudent, and therefore inequitable.” Deutsche Bank AG v. Metromedia Fiber Network, Inc. (In re Metromedia Fiber Network, Inc.), 416 F.3d 136, 144 (2d Cir.2005) (quoting MAC Panel Co. v. Va. Panel Corp., 283 F.3d 622, 625 (4th Cir.2002)). It admits of considerable flexibility, and its application depends on, and varies accord*108ing to, the specific factors presented in a particular case. See MAC Panel, 283 F.3d at 625 (“[The doctrine’s] application does not employ rigid rules.”).

In our Circuit, a bankruptcy appeal is presumed equitably moot when the debtor’s reorganization plan has been substantially consummated. In re Charter Commc’ns, Inc., 691 F.3d at 482. “Substantial consummation,” as defined by section 1101(2) of the Bankruptcy Code, requires “(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, finally, “(C) commencement of distribution under the plan.” 11 U.S.C. § 1101(2).

The presumption of equitable mootness created by a plan’s substantial consummation can be overcome by an objector, however, if the five factors set out in our decision in FritoLay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10 F.3d 944 (2d Cir.1993) (“Chateaugay II”), are satisfied.9 As stated there, these factors are:

[1] the court can still order some effective relief;

[2] such relief will not affect the reemergence of the debtor as a revitalized corporate entity;

[3] such relief will not unravel intricate transactions so as to knock the props out from under the authorization for every transaction that has taken place and create an unmanageable, uncontrollable situation for the Bankruptcy Court;

[4] the parties who would be adversely affected by the modification have notice of the appeal and an opportunity to participate in the proceedings; and

[5] the appellant pursued with diligence all available remedies to obtain a stay of execution of the objectionable order[,] if the failure to do so creates a situation rendering it inequitable to reverse the orders appealed from.

Id. at 952-53 (internal quotation marks, citations, and alteration omitted). An analysis of these factors requires a court to “examine the actual effects of the requested relief,” In re Charter Commc’ns, 691 F.3d at 482, and accounts for context-specific aspects of a given bankruptcy, see Chateaugay II, 10 F.3d at 949-50.

We see no principled reason, in a Chapter 11 liquidation proceeding, for denying a court discretion to apply the doctrine of equitable mootness and the corresponding Chateaugay analysis. In such a liquidation, affected parties may have devoted months of time and resources toward developing an acceptable plan; creditors with urgent needs may have been stayed from accessing assets and funds to which they are entitled; and extensive judicial resources may have been consumed. In liquidation as in reorganization, substantial interests may counsel in favor of prevent*109ing tardy disruption of a duly developed, confirmed, and substantially consummated plan.

Appellants have pointed to no persuasive precedent to support the contention that equitable mootness should not apply in the context of Chapter 11 liquidation proceedings. Indeed, to the contrary: several of our sister circuits have applied the doctrine in the liquidation setting and did so with no more than cursory discussion.10 District courts in our Circuit have also applied the doctrine in Chapter 11 liquidations.11 And, in several unpublished summary orders, our Court has already endorsed the doctrine’s application in a range of contexts.12 These cases suggest that the doctrine of equitable mootness has already been accorded broad reach, without apparent ill effect. See Captain Hani Alsohaibi v. Arcapita Bank B.S.C.(c) (In re Arcapita Bank B.S.C.(c)), Nos. 13 Civ. 5755(SAS), 13 Civ. 5756(SAS), 2014 WL 46552, at *5 (S.D.N.Y. Jan. 6, 2014) (explaining that the doctrine of equitable mootness “has been applied in a variety of contexts” (footnotes omitted)); Cadle Company II, Inc. v. PC Liquidation Corp. (In re PC Liquidation Corp.), No. 06 Civ. 1935(SJF), 2008 WL 199457, *5 (E.D.N.Y. Jan. 17, 2008) (explaining that “equitable mootness is not limited to appeals of orders confirming reorganization plans” and collecting cases).

Accordingly, we now hold that the doctrine of equitable mootness and the corresponding Chateaugay analysis apply in assessing appeals related to Chapter 11 liquidation proceedings as well as Chapter 11 reorganizations.13

B. Application

Having determined that the equitable mootness doctrine applies in the setting now before us, we have little difficulty in concluding that the District Court did *110not abuse its discretion in dismissing Appellants’ appeals as equitably moot.

Here, the Bankruptcy Court found that, as of August 2012, the Plan had been substantially consummated. Its finding rested on the observation that, as of the Plan’s effective date, Borders transferred its relevant property to the Trust, and the Trust began administering timely filed claims and making distributions to holders of allowed administrative and priority claims, in an amount totaling at least $17 million. BGI I, 476 B.R. at 825. We discern no clear error in this determination.14 See 7 CollieR on Bankruptcy ¶ 1101.02[2] (Resnick & Sommer et ah, 16th ed. 2009) (“Determining whether a plan has been substantially consummated is a question of fact....”); Babitt v. Vebel-iunas (In re Vebeliunas), 332 F.3d 85, 90 (2d Cir.2003) (“We review the bankruptcy court’s findings of fact only for clear error. ...”).

As noted above, if an appellant satisfies the five factors outlined in Chateaugay II, 10 F.3d at 952-53, he may override the presumption of equitable mootness that is created by a plan’s substantial consummation. “Only if all five Chateaugay factors are met, and if the appellant prevails on the merits of its legal claims, will relief be granted.” In re Charter Commc’ns, 691 F.3d at 482.

Here, we agree with the District Court that Appellants failed to satisfy at least the fourth and fifth Chateaugay factors: i.e., ensuring adequate process for parties who would be adversely affected, and demonstrating their own diligence in obtaining a stay.15 As to the fourth factor, Appellants did not establish that the general unsecured creditors — who “could be stripped of their entire recovery if the proposed class [was] certified,” BGI II, 2013 U.S. Dist. LEXIS 77740, at *31 — received notice of their appeal to the District Court. As to the fifth factor, Appellants did not “pursue their claims with all diligence”: they did not appear at the Plan confirmation hearing, filed no objections to the Plan, and neither appealed the Confirmation Order nor sought a stay of the Plan’s effective date.16 See id. at *32-33 (“The fact that no stay of distributions was sought by Appellants until almost a year after they *111entered the bankruptcy litigation and the Plan was confirmed indicates the lack of diligence with which Appellants moved.”); see also In re Metromedia Fiber, 416 F.3d at 144-45 (relying on a failure to seek a stay of the confirmation order and a failure to seek expedited review of the order to uphold the district court’s finding of equitable mootness).17

Accordingly, we see no basis for concluding that the District Court abused its discretion by dismissing the appeals as equitably moot.18

CONCLUSION

For the reasons set forth above, we conclude that the District Court correctly applied the doctrine of equitable mootness in the context of this Chapter 11 liquidation and that it committed no abuse of discretion in determining that Appellants’ claims are equitably moot. Accordingly, we AFFIRM the judgment of the District Court.