MEMORANDUM DECISION AND ORDER REGARDING EXPERIENCE RATINGS
By order dated December 1, 2014, the District Court remanded this matter to
For the reasons that follow, the Court concludes that the Sale Order bars the States from using Old Chrysler’s Experience Rating to compute New Chrysler’s unemployment insurance tax rate unless the “police and regulatory” exception in paragraph 23 of the Sale Order negates that prohibition. Paragraph 23 is ambiguous, and there appears to be extrinsic evidence that will aid the Court’s interpretation. Accordingly, the Court will schedule a trial to determine the meaning of the “police and regulatory” exception.
BACKGROUND
The background to this contested matter is set forth at length in the Court’s prior decision, In re Old Carco LLC,
A. The Sale Order
On June 1, 2009, the Bankruptcy Court signed the Sale Order approving the sale of substantially all of Old Chrysler’s assets to New Chrysler. The Sale Order contained several provisions indicating that the transfer was free and clear of claims and interests in the assets and successor liability, and that neither the Purchasers nor the Purchased Assets would be liable for any Claims, other than Assumed Liabilities, or any Claims based on successor liability.
“Claims,” as used in the Sale Order, was a defined term. It included “liens, claims (as such term is defined by section 101(5)' of the Bankruptcy Code), liabilities, encumbrances, rights, remedies, restrictions and interests and encumbrances of any kind or nature whatsoever whether arising before or after the Petition Date ... in-
The Sale Order included a broad injunction against efforts to enforce any Claims (other than Assumed Liabilities) against the Purchaser or the Purchased Assets:
Except as provided in the Purchase Agreement, all persons and entities (and their respective successors and assigns), including, but not limited to ... governmental, tax and regulatory authorities ... holding Claims ... arising under or out of, in connection with, or in any way relating to, the Debtors, the Purchased Assets, the operation of the Business prior to Closing or the transfer of the Purchased Assets to the Purchaser, are hereby forever barred, estopped and permanently enjoined from asserting such Claims .against the Purchaser, its successors or assigns, its property or the Purchased Assets. No such persons or entities shall assert against the Purchaser or their successors in interest any Claim arising from, related to or in connection with the ownership, sale or operation of any Asset prior to the Closing, except for Assumed Liabilities.
(Sale Order at ¶ 12.) (Emphasis added.)
The Sale Order incorporated exceptions to its free and clear and successor liability provisions. Paragraph 44 excluded liabilities to a governmental unit under environmental statutes or regulations to which the owner or operator of the property would be subject after the date of the entry of the Sale Order.
Nothing in this Sale Order or the Purchase Agreement releases, nullifies, or enjoins the enforcement of any liability to a governmental unit under environmental statutes or regulations (or any associated liabilities for penalties, damages, cost recovery or injunctive relief) that any entity would be subject to as the owner or operator of property after the date of entry of this Sale Order. Notwithstanding the foregoing sentence, nothing in this Sale Order shall be interpreted to deem the Purchaser as the successor to the Debtors under any state law successor liability doctrine with respect to any liabilities under environmental statutes or regulations for penalties for days of violation prior to entry of this Sale Order or for liabilities relating to off-site disposal of wastes by the Debtors prior to entry of this Sale Order. Nothing in this paragraph should be construed to create for any governmental unit any substantive right that does not already exist under law.
Nothing in this Sale Order or in the Purchase Agreement releases, nullifies ' or enjoins the enforcement of any liability to a governmental unit under police and regulatory statutes or regulations that any entity would be subject to as the owner or operator of property after the date of entry of this Sale Order.
(Sale Order at ¶ 23.)
B. New Chrysler’s Unemployment Insurance Taxes
Employers within a state must pay unemployment insurance taxes to that state at a rate computed in accordance with a formula developed by the state. The computation of the tax rate attempts to match the predicted amount of unemployment benefits to be paid in the coming year with the funding necessary to pay those benefits. The rate is based, in part, on the employer’s historical claims paying experience, generally reaching back three years. Thus, the greater the number of past unemployment insurance benefits paid to discharged workers during the reach back period, the higher the tax obligation going forward.
Following the sale and transfer of the assets, New Chrysler registered as an employer in several states, including Illinois and Indiana. It completed forms indicating that it had acquired and was continuing the business of Old Chrysler. (See Indiana Memo, Ex. 1; Objection of Illinois Department of Employment Security to Motion of Chrysler Group LLC for Enforcement of Sale Order [Did. No. 3232], filed Nov. 21, 2013 (“Illinois Original Objection ”), Ex. B (ECF Doc. # 8247).) Based on the information in the forms, Indiana and Illinois determined that New Chrysler was a successor to Old Chrysler, (Indiana Memo, Ex. 3; see Illinois Original Objection, Ex. C), and used Old Chrysler’s Experience Rating to compute New Chrysler’s unemployment insurance tax rate. This rate was substantially higher than the new employer rate.
The States determined the tax rate each year for several years using the Old Chrysler Experience Rating, and New Chrysler paid the taxes at those rates. Although New Chrysler challenged the rate assessments on various grounds during this period, it did not raise the Sale Order as a prohibition on the use of Old Chrysler’s Experience Rating until 2013. In that year, New Chrysler challenged the rate determination at the administrative level in both States contending that the Sale Order barred the use of Old Chrysler’s Experience Rating. On January 6, 2015, Illinois denied New Chrysler’s protest for the years 2009 — 2013 based on its failure to timely protest the original rate determinations. New Chrysler filed a statutory protest of the denials. (Illinois Memo at 7.) New Chrysler’s protest and request for relief remains pending in Indiana. (See Indiana Memo at 2.)
C. The Prior Litigation
In addition to challenging the assessments before the States’ administrative agencies, Chrysler sought relief in this Court. In October 2013, it filed a motion to enforce the Sale Order and enjoin the States from using Old Chrysler’s Experience Rating. (Motion for Enforcement of the Court’s Order (I) Authorizing the Sale of Substantially All of the Debtors’ Assets Free and Clear of All Liens, Claims, Interests and Encumbrances, (II) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection Therewith and Related Procedures and (III) Granting Related Relief, dated Oct. 18, 2013 (“Enforcement Motion ”) (ECF Doc. # 8218).) In Chrysler I, the Court concluded that the Tax Injunction Act, 28 U.S.C. § 1341, deprived the Court of subject matter jurisdiction to provide the declaratory and in-junctive relief sought by New Chrysler.
The District Court reversed in Chrysler II. The States had received actual notice of the earlier proceedings culminating in the Sale Order. Chrysler II,
DISCUSSION
A. Standard Governing the Motion
The Enforcement Motion calls for the interpretation of the Sale Order. The Sale Order was negotiated by the parties to the sale with input from other parties in interest, and New Chrysler conceded at oral argument that it was subject to interpretation in accordance with the rules governing the interpretation of contracts. (Transcript of 7-14-15 Oral Argument (“Tr.”), at 47:18-49:5 (ECF Doc. # 8434).) The Sale Order did not include a governing law provision, but the MTA stated that it was governed by New York law. (MTA § 11.08.) Given the relationship between the MTA and the Sale Order, and the fact that the Sale Order was approved by a New York bankruptcy court, I will apply New York law.
When asked to interpret contractual language, the question is “whether the contract is unambiguous with respect to the question disputed by the parties.” Law Debenture Trust Co. of New York v. Maverick Tube Corp.,
Where the dispute concerns a provision of the contract, the Court must consider the contract as a whole to ensure that undue emphasis is not placed upon particular words and phrases. Bailey v. Fish Neave,
B: Bankruptcy Code 363(f)
The Sale Order authorized the transfer of the Purchased Assets free and clear of Claims, a defined term that included interests. Thus, the threshold question raised by the Enforcement Motion is whether Old Chrysler’s Experience Rating was an interest in the Purchased Assets that was cut off by the Sale Order. A trustee (and hence, a debtor in possession) may sell property in certain circumstances free and clear of any interest in such property of an entity other than the estate. 11 U.S.C. 363(f).
The phrase “interest in such property” used in § 363(f) was initially interpreted narrowly, but its scope is now interpreted more broadly to effectuate the purposes of the Bankruptcy Code.
Several years later, the Fourth Circuit’s Leckie decision cast doubt on the Wolverine Court’s conclusion. There, several debtors, coal mine operators, were obligated under the Coal Act, 26 U.S.C. §§ 9701 et seq., to contribute to plans that paid benefits to retirees. In each case, the amount of the premiums was based upon the benefits payable to the debtor’s own retirees and to retirees of operators that were no longer in business. An operator’s “related persons” were jointly and severally liable for the operator’s premiums, and “related persons” included the operator’s successors. Leckie,
After the debtors filed chapter 11 petitions, they sought to sell their assets “free
Those rights are grounded, at least in part, in the fact that those very assets have been employed for coal-mining purposes: if Appellees had never elected to put their assets to use in the coal-mining industry, and had taken up business in an altogether different area, the Plan and Fund would have no right to seek premium payments from them. Because there is therefore a relationship between (1) the Fund’s and Plan’ rights to demand premium payments from Ap-pellees and (2) the use to which Appel-lees put their assets, we find that the Fund and Plan have interests in those assets within the meaning of section 363(f).
Id.
The Third Circuit subsequently considered the meaning of “interests” as used in Bankruptcy Code § 363(f) in In re Trans World Airlines, Inc.,
The issue before the Third Circuit was whether the travel voucher program and the EEOC charges were “interests in property” cut off by the sale order. Id. at 288. The Court observed that while some courts narrowly interpreted “interests in property” to mean in rem interests, “the trend seems to be toward a more expansive reading of ‘interests in property’ which ‘encompasses other obligations that may flow from ownership of the property.’ ” Id. at 288-89 (quoting 3 Collier on Bankeuptcy ¶ 363.06[1]). Adopting the analysis applied in Leckie, the Court concluded that the claims under the travel voucher program and before the EEOC were “interests in property”:
Here the Airlines correctly assert that the Travel Voucher and EEOC claims atissue had the same relationship to TWA’s assets in the § 363(f) sale, as the employee benefits did to the debtors’ assets in Leckie. In each case it was the assets of the debtor which gave rise to the claims. Had TWA not invested in airline assets, which required the employment of the EEOC claimants, those successor liability claims would not have arisen. Furthermore, TWA’s investment in commercial aviation is inextricably linked to its employment of the Knox-Schillinger claimants as flight attendants, and its ability to distribute travel vouchers as part of the settlement agreement. While the interests of the EEOC and the Knox-Schillinger class in the assets of TWA’s bankruptcy estate are not interests in property in the sense that they are notiw rem interests, the reasoning of Leckie and Folger Adam suggests that they are interests in property within the meaning of section 363(f) in the sense that they arise from the property being sold.
Id. at 289-90 (emphasis added). The TWA Court did not mention much less discuss Wolverine.
The Second Circuit addressed the issue ' in the Chrysler bankruptcy. Numerous parties in interest had objected to the proposed Sale Order. An ad hoc group argued that the “free and clear” language did not cut off pre-sale product liability claims because personal injury claims were not “interests in property” under Bankruptcy Code § 363(f). Chrysler,
We agree with TWA and Leckie that the term “any interest in property” encompasses those claims that “arise from the property being sold.” See TWA322 F.3d at 290 . By analogy to Leckie (in which the relevant business was coal mining), “[appellants’] rights are grounded, at least in part, in the fact that [Old Chrysler’s] very assets have been employed for [automobile production] purposes: if Appellees had never elected to put their assets to use in the [automobile] industry, and had taken up business in an altogether different area, [appellants] would have no right to seek [damages].” Leckie,99 F.3d at 582 .
Id. at 126. The Court concluded:
The possibility of transferring assets free and clear of existing tort liability was a critical inducement to the Sale. As in TWA “a sale of the assets of [Old Chrysler] at the expense of preserving successor liability claims was necessary in order to preserve some [55],000 jobs, ... and to provide funding for employee-related liabilities, including retirement benefits [for more than 106,000 retirees].” TWA322 F.3d at 293 ; see also Sale Opinion at 3.
It is the transfer of Old Chrysler’s tangible and intellectual property to New Chrysler that could lead to successor liability (where applicable under state law) in the absence of the Sale Order’s liability provisions. Because appellants’ claims arose from Old Chrysler’s property, § 363(f) permitted the bankruptcy court to authorize the Sale free and clear of appellants’ interest in the property.
Id. The Chrysler opinion also ignored Wolverine.
The foregoing authorities support the conclusion that Old Chrysler’s Experience Rating is an “interest in property.” The States’ rights to use Old Chrysler’s Experience Rating arises from New Chrysler’s acquisition of its assets and the continuation of its business. Had New Chrysler started the same business from scratch with new assets, the States could not use Old Chrysler’s Experience Rating to com
The Court’s conclusion is consistent with a series of decisions rendered in 2013 on this very issue. They expressly or implicitly rejected Wolverine and ruled that the debtor’s Experience Rating was an “interest in property” under Bankruptcy Code § 363(f) that was cut off by a sale order provision transferring the assets “free and clear” of “interests” and successor liability. Massachusetts Dep’t of Unemployment Assistance v. OPK Biotech, LLC (In re PBBPC, Inc.),
Having concluded that Old Chrysler’s Experience Rating was an “interest in property,” the next question is whether the Sale Order unambiguously transferred the Purchased Assets “free and clear” of the States’ right to use it. The answer is plainly yes. After defining “Claims” to include “interests,” and except for the Assumed Liabilities, the Sale Order states in various places and in various ways that the transfer will be “free and clear” of Claims and successor liabilities. {Sale Order at ¶ 9 (“The Purchased Assets shall be transferred ... free and clear of all Claims except for Assumed Liabilities .... ”); ¶ 12 (“governmental, tax and regulatory authorities ... holding Claims ... are ... barred ... from asserting such Claims against the Purchaser ..... ”); ¶ 35 (the Purchaser shall not have any liability for any Claim and shall not be deemed a _ successor to the Debtors or have successor liability for any Claim).
The Sale Order also specifically provides that New Chrysler shall not be deemed a successor “as a result of any action taken in connection with the Purchase Agreement or any of the transactions or documents ancillary thereto or contemplated thereby or the acquisition of the Purchased Assets.” (Sale Order at ¶ 35.) The determination by the States that New Chrysler was a successor to Old Chrysler as a result of the acquisition of Old Chrysler’s assets and the continuation of its business in the States contravened this provision.
Furthermore, the successor liability provisions in the Sale Order bar claims against New Chrysler that arose from the purchase even if those claims could not
On appeal, the dealers contended, inter alia, that the Enforcement Order erred in concluding that their claims were essentially successor/transferee liability claims barred by the Sale Order because successor liability was limited to claims that could have been brought against Old Chrysler and their claims under the dealer protection statutes could never have been asserted against Old Chrysler. Id. at *15. After quoting from paragraph 35 of the Sale Order, which unambiguously immunized New Chrysler from successor liability, District Judge McMahon phrased the question in the following way: “whether the rights the dealers seek to assert— rights to resurrect franchise agreements with New CarCo — can be considered successor liability claims if the dealers could not have demanded post-rejection franchise agreements from the Debtors.” Id.
The District Court concluded that the dealers state law rights to the continuation of their dealerships with New Chrysler were successor liability claims. Successor liability has two requirements: (1) a direct relationship between the one primarily liable and the successor, and (2) the blameworthy behavior or status of the primarily liable person must be established as a prerequisite to recovery against the secondarily liable person. Id. at *16 (citing and quoting R.C.M. Exec. Gallery Corp. v. Rols Capital Co.,
Finally, the District Court rejected the dealers argument that New Chrysler had created its own liability by purchasing Old Chryslers assets:
Had Chrysler gone into some business other than automobiles, or not rejected the dealers agreements in the first place, the dealers would have no claims under the state statutes now. New. Car-Co only became liable for its nonfea-sance (ie., its failure to resurrect the dealers agreements) because of Chrysler’s actions; it did not create this liability. The Court can find no principled basis on which to distinguish this variety of successor liability from any other— the Debtors entered into, and then breached, agreements with the dealers in the first place. The Sale Order plainly barred precisely this theory of recovery insofar as it prohibits liability against New CarCo of any kind or character ... on any theory of successor or transferee liability, other than with respect to assumed contracts. (Sale Order ¶ 35 (emphasis added).)
Id.
Although the facts of the present dispute are different, the conclusion that the
Accordingly, the Sale Order unambiguously extinguishes the States’ right to apply Old Chrysler’s Experience Rating to New Chrysler or collect increased taxes from New Chrysler as a result of Old Chrysler’s discharge of its employees. In fact, Indiana agrees. Although it argued in its submissions that the Experience Rating is not an “interest in property” based primarily on the holding in Wolverine, it conceded dining oral argument that under the current state of the law the “free and clear” provisions of the Sale Order extinguished its right to use Old Chrysler’s Experience Rating to compute New Chrysler’s employment taxes. During Indiana’s argument, the following colloquy with the Court took place:
THE COURT: If the sale order would enter today and the sale is free and clear of interest, would it cut off Indiana’s right to use Old Chrysler’s experience rating for the purpose of determining the unemployment tax of New Chrysler?
MS. CROCKETT [Indiana Assistant Attorney General]: We believe that the current case law would read that way, yes.
(Tr. at 34:20-25.)
When Illinois took its turn, it conceded that the definition of “Claim” included an “interest in property” that might cut off the right to use the Experience Rating unless the “police and regulatory” exception in paragraph 23 applied or Illinois prevailed on its other defenses:
MR. NEWBOLD [Illinois Assistant Attorney General]: In reading the definition of a “claim” it does include an interest. My view or my perspective on this is that if Your Honor were to conclude that an interest in property includes an experience rating, that but for para- ■ graph 23 and the affirmative defenses, that it would come within the provision of the order.
(Tr. at 39:8-13.)
C. The States’ Opposition
The States make -two arguments why the Sale Order does not bar the use of Old Chrysler’s Experience Rating even if the Experience Rating is construed to be an “interest in property” within the meaning of Bankruptcy Code § 363(f).
1. Retroactivity
Indiana (but not Illinois) contends that case law may be applied retroactively in limited circumstances and the three-part test established in Chevron Oil Co. v. Huson,
The issue before the Supreme Court was whether the Rodrigue decision should apply retroactively to bar the plaintiffs claim that appeared to be timely under existing law when it was commenced. Id. at 100,
Chevron Oil has been undercut and to some extent overruled by more recent Supreme Court jurisprudence. In James B. Beam Distilling Co. v. Georgia,
Reversing the Georgia Supreme Court, the United States Supreme Court ruled that the principle of equality, “that similarly situated litigants should be treated the same,” and stare decisis prevail over any claim based on Chevron Oil, id. at 540,
To this extent, our decision here does limit the possible applications of the Chevron Oil analysis, however irrelevant Chevron Oil may otherwise be to this case. Because the rejection of modified prospectivity precludes retroactive application of a new rule to some litigants when it is not applied to others, the Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case.”
Beam,
Indiana’s rebanee on Chevron Oil and its contention that retroactivity is applied in limited circumstances are wrong; retroac-tivity is the rule, not the exception. Here, the Court has not finally decided whether Old Chrysler’s Experience Rating is an “interest” or any dispute between the parties in which it might have been raised. Hence, principles of finality do not bar consideration of the issue in the context of the Enforcement Motion. Furthermore, Indiana’s reliance on Wolverine and the individual inequities it will allegedly suffer are irrelevant for purposes of determining the retroactive application of post-SWe Order law.
Even under Chevron Oil, Indiana fails to make a case against retroactivity. The 2013 decisions by other, lower courts are not controlling and did not overrule clear precedent; rather, Indiana took its chances relying on Wolverine. The Wolverine Court limited “interests in property” to in rem interests. But in Leckie, decided in 1996, and TWA, decided in 2003, the Courts rejected that limitation and ruled that § 363(f) interests included obbgations that arose from the ownership of the property that was sold. The Second Circuit reached the same conclusion in Chrysler based on the reasoning in Leckie and TWA. The interpretation of interests to include Experience Ratings in the 2013 decisions did not come out of the blue, and Indiana’s reliance on the continuing vitality of Wolverine was a risky decision. See Chrysler II,
Finally, Indiana’s argument ignores the jurisprudential principles that attend the interpretation of statutes. When a court “construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law,” and a court has no authority to depart from that meaning. Rivers v. Roadway Express, Inc.,
2. Paragraph 23 of the Sale Order
The States’ main opposition focuses on paragraph 23 of the Sale Order, which creates an exception to the “free and clear” provisions:
Nothing in this Sale Order or in the Purchase Agreement releases, nullifies or enjoins the enforcement of any liability to a governmental unit under police and regulatory statutes or regulations that any entity would be subject to as the owner or operator of property after the date of entry of this Sale Order.
(Sale Order at ¶ 23.) The States contend that the exception applies to the use of Old Chrysler’s Experience Rating. New Chrysler responds that paragraph 23 was intended to except only the enforcement of environmental statutes and regulations.
The term “police power” refers to “[t]he inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice.” Black's Law Dictionary 1345 (10th ed.2014); accord Metro. Life Ins. Co. v. Massachusetts,
Here, the States’ declarations of public policy say that their unemployment compensation laws were enacted “to lessen the menace to the health, safety and morals of the people of Illinois, and to encourage stabilization of employment, compulsory unemployment insurance upon a statewide scale,” 820 III. Comp. Stat. 405/100 (2015); accord Ind.Code § 22-4-1-1 (2015), and as a proper exercise of the police powers of the state. Ind. Code § 22-4-1-1. In addition, the Illinois Supreme Court has ruled that the unemployment compensation law is a police power act that should be liberally construed to help protect workers from the consequences of unemployment. Ray Schools-Chicago, Inc. v. Cummins,
On the other hand, and notwithstanding the Indiana legislature’s declaration of public policy, the Indiana Supreme Court has held that the unemployment insurance laws were enacted pursuant to the state’s taxing power rather than its police power. Besozzi v. Indiana Emp’t Sec. Bd.,
The phrase “police and regulatory power” also appears in various parts of the Bankruptcy Code and Judicial Code. See 11 U.S.C. § 107(c)(2) (granting access to “protected” information “to an entity acting pursuant to the police or regulatory power of a domestic governmental unit”); 11 U.S.C. § 362(b)(4) (granting an exception to the automatic stay to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement -of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power); 11 U.S.C. § 1519(d) (prohibiting the Court in a chapter 15 case from enjoining a police or regulatory act of a governmental unit, including a criminal action or proceeding); 11 U.S.C. § 1521(d) (same); 28 U.S.C. § 1452(a) (prohibiting removal of a claim or cause of action by a governmental unit to enforce such governmental units police or regulatory power).
The Bankruptcy Code does not define the term, but the legislative history to the exception to the automatic stay states:
Paragraph (4) excepts commencement or continuation of actions and proceedings by governmental units to enforce police or regulatory powers. Thus, where a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action or proceeding is not stayed under the automatic stay.
H.R. Rep No. 95-595 at 343 (1977); S.Rep. No. 95-989, at 52 (1978). The sponsors of the Bankruptcy Reform Act added that the phrase was intended to be given a narrow construction to permit governmental units to protect the public health and safety but not to protect a governmental unit’s pecuniary interest in property of the debtor or its estate. 124 Cong. Reo. H11092 (daily ed. Sept. 28, 1978); S17409 Cong. Rec. 17409 (daily ed. Oct. 6, 1978) (remarks of Rep. Edwards and Sen. De-Concini).
The States argue that the police and regulatory exception should be interpreted in accordance with state law (which would doom Indiana’s argument), but the Sale Order must be interpreted in accordance with general principles of contract law, and the Court must determine the meaning the parties intended when they included the phrase in the Sale Order. The States’ interpretation that it applies to the compu
New Chrysler’s interpretation, which limits the exception to environmental statutes and regulations, is also reasonable. Paragraph 23 applies to liabilities as the owner or operator of property, a phrase commonly found in the environmental laws, see, e.g., 42 U.S.C. § 9607(a) (ascribing liability to the “owner and operator of a vessel or a facility” for the release of “a hazardous substance”); 33 U.S.C. § 1317(d) (“It shall be unlawful for any owner or operator of any source to operate any source in violation of any such effluent standard or prohibition or pretreatment staiidard.”); 40 C.F.R. § 52.21(r)(l) (2014) (“Any owner or operator who constructs or operates a source or modification not in accordance with the application submitted pursuant to this section ... shall be subject to appropriate enforcement action.”), and included in paragraph 44 of the Sale Order, which specifically addresses environmental liabilities. The States argue, in this regard, that since paragraph 44 of the Sale Order already addressed exceptions for environmental statutes and regulations, paragraph 23 should be interpreted to mean something else. Redundancy, however, is the rule rather than the exception >in the Sale Order,
Finally, New Chrysler has informed the Court that “the DOJ requested the inclusion of paragraph 23, and the Debtors and Chrysler Group agreed to the DOJ’s request the day before the final Sale Order was presented to the Court.” (New Chrysler Reply at ¶ 29; see Tr. at 19:4-18.) Given the ambiguity in paragraph 23, extrinsic evidence regarding the reason for its inclusion and its intended purpose would assist the Court in determining its meaning, and the Court will conduct an evidentiary hearing to resolve the ambiguity in paragraph 23.
Accordingly, the parties are directed to . contact chambers to arrange a conference. Prior to the conference, the parties should confer regarding a discovery schedule on the narrow issue that is presented, and if possible, submit a proposed consent order to the Court.
So ordered.
Notes
. Order (I) Authorizing the Sale of Substantially all of the Debtors’ Assets Free and Clear of All Liens, Claims, Interests and Encumbrances, (II) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection Therewith and Related Procedures and (III) Granting Related Relief, dated June 1, 2009 (“Sale Order”) (ECF Doc. # 3232).
. See Supplemental Memorandum in Further Support of Chrysler Group’s (nfkja FCA U.S. LLC) Motion for Enforcement of the Court’s Order (I) Authorizing the Sale of Substantially all of the Debtors’ Assets Free and Clear of All Liens, Claims, Interests and Encumbrances, (II) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection Therewith and Related Procedures and (III) Granting Related Relief, dated Jan. 16, 2015 ("New Chrysler Memo ”) (ECF Doc. # 8362); Supplemental Memorandum in Further Support of Indiana Department Of Workforce Development's Objection to Chrysler Group LLC’s Motion for Enforcement of the Court’s Order (I) Authorizing the Sale of Substantially All of the Debtors’ Assets Free and Clear of All Liens, Claims, Interests and Encumbrances, (II) Authorizing the Assumption and Assignment of Certain Ex-ecutory Contracts and Unexpired Leases in Connection Therewith and Related Procedures and (III) Granting Related Relief, dated Jan. 30, 2015 ("Indiana Memo") (ECF Doc. # 8367); Supplemental Memorandum of Illinois Department of Employment Security on the Legal Issues Raised in the Motion to Enforce the Sale Order Related to Section 363(f) of the Bankruptcy Code, filed Jan. 30, 2015 (“Illinois Memo ") (ECF Doc. # 8368); and Chrysler Group LLC’s (n/k/a FCA U.S. LLC) Supplemental Omnibus Reply In Further Support Of Chrysler Group’s Motion For Enforcement of the Court's Order (I) Authorizing the Sale of Substantially All of the Debtors’ Assets Free and Clear of All Liens, Claims, Interests and Encumbrances, (II) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection Therewith and Related Procedures and (III) Granting Related Relief, dated Feb. 6, 2015 (“New Chrysler Reply ”) (ECF Doc. # 8372).
Michigan also submitted a supplemental memorandum, (see ECF Doc. # 8366), but as noted in the succeeding text, thereafter settled with New Chrysler. Accordingly, the Court has limited this opinion to the issues raised by Indiana and Illinois.
. Sale Order at ¶ 9 stated in pertinent part:
... The Purchased Assets shall be transferred to the Purchaser, and upon consummation of the Purchase Agreement, such transfer (a) shall be a valid, legal, binding and effective transfer; (b) shall vest the Purchaser with all right, title and interest of the Debtors in the Purchased Assets; and (c) shall be free and clear of all Claims except for Assumed Liabilities with all such Claims to attach to the proceeds of the Sale Transaction....
Sale Order at ¶ 35 stated in pertinent part:
Except for the Assumed Liabilities ...., none of the Purchaser, its successors or assigns or any of their respective affiliates shall have any liability for any Claim that (a) arose prior to the Closing Date.... The Purchaser shall not be deemed, as a result of any action taken in connection with the Purchase Agreement or any of the transactions or documents ancillary thereto or contemplated thereby or the acquisition of the Purchased Assets, to: (a) be a legal successor, or otherwise be deemed a successor to the Debtors (other than with respect to any obligations arising under the Assumed Agreements from and after the Closing).... Without limiting the foregoing, the Purchaser shall not have any successor, derivative or vicarious liabilities of any kind or character for any Claims, including, but not limited to, on any theory of successor or transferee liability, de facto merger or continuity, environmental, labor and employment, products or antitrust liability, whether known or unknown as of the Closing, now existing or hereafter arising, asserted or unasserted, fixed or contingent, liquidated or unliqui-dated.
(Emphasis added.)
Sale Order at ¶ 39 stated in pertinent part:
Except for the applicable Assumed Liabilities, the Purchaser shall not have any liability or other obligation of the Debtors or their affiliates arising under or related to the Purchased Assets. Without limiting the generality of the foregoing, and except as otherwise specifically provided herein or in the Purchase Agreement, the Purchaser shall ... have no successor or vicarious liabilities of any kind or character ... whether known or unknown as of the Closing, now existing or hereafter arising ... with respect to the Debtors or their affiliates or any obligations of the Debtors or their affiliates arising pri- or to the Closing, including, but not limited to, liabilities on account of any taxes arising, accruing or payable under, out of, in connection with, or in any way relating to the operation of the Purchased Assets prior to the Closing of the Sale Transaction.
(Emphasis added.) The Master Transaction Agreement (“MTA”), (ECF Doc. # 5988-1), approved by the Sale Order, (Sale Order at ¶ 4), expressly excluded liabilities "except as otherwise provided herein and other than Taxes relating to the Purchased Assets for taxable periods (or portions thereof) beginning after the Closing Date, all Liabilities for Taxes of any Selling Group Member.” (MTA at ¶ 2.09(f).) The MTA defined "Taxes” to include assessments of unemployment insurance taxes imposed by any state or federal authority. (MTA, Definitions Addendum.)
. Sale Order at ¶ 44 stated:
. Illinois contends that Old Chrysler did not satisfy any of the five conditions under § 363(f) necessary to sell its assets free and clear. (Illinois Memo at 15.) The argument is an improper collateral attack on the Sate Order that should have been raised before the Sale Order was entered and became final.
. The general policy of chapter 11 is to maximize the value of the bankruptcy estate. Toibb v. Radloff, 501 U.S. 157, 163, 111 S.Ct. 2197,
. The Court distinguished Wolverine on three bases: the Sixth Circuit's conclusion that the debtor’s Experience Rating was not an “interest in property” within the meaning of § 363(f), none of the five conditions under § 363(f) had been met and the successor’s tax liability arose only as a result of its own post-petition employment of workers. Leckie,
. New Chrysler also cited paragraph 39 of the Sale Order and the definition of "taxes” in the MTA as further authority. Under MTA § 2.09(f), post-closing taxes were not Excluded Liabilities, so the broad definition of "taxes" in the Addendum, {see MTA at 92), which includes unemployment insurance, does not help Chrysler. Furthermore, paragraph 39 of the Sale Order deals with "obligations of the Debtors” and “claims” against the Debtors, but does not mention “Claims.” {Sale Order at ¶ 39 ("[T]he Purchaser shall not be liable for any claims against the Debtors or any of their predecessors or affiliates.”).) While this clause is followed by broader language, it may be amplifying the types of "obligations” and "claims” to which it applies. The paragraph is ambiguous, but it is unnecessary to resolve the ambiguity because the other cited provisions of the Sale Order unambiguously cut off the use of Old Chrysler's Experience Rating.
. The Supreme Court added that a court could consider "the equitable and reliance interests of parties absent but similarly situated,” and the "individual equities when deciding remedial issues in particular cases.” Beam,
. Indiana cites Boucher Imports, Inc. v. Quaden Motors, Inc. (In re Old Carco),
. For example, the notion that New Chrysler's assets were being transferred free and clear of successor liability, or that the Purchaser and its successors would not be responsible for those liabilities of Old Chrysler, is repeated with some variation numerous times. (See Sale Order at ¶¶ Z, BB, 12, 13, 30, 35, 38, 39, 42, 44.)