OPINION OF THE COURT
This Court’s Internal Operating Procedure provides:
It is thе tradition of this court that the holding of a panel in a precedential opinion is binding on subsequent panels. Thus, no subsequent panel overrules the holding in a precedential opinion of a previous panel. Court en banc consideration is required to do so.
*117 Third Circuit I.O.P. 9.1. We adhere strictly to that tradition. It is only on a rare occasion that we overrule a prior prece-dential opinion. We assemble en banc to consider whether this is such an occasion.
In the appeal before us, the Bankruptcy Court, affirmed by the District Court, followed our precedent in
Avellino & Bienes v. M. Frenville Co. (Matter of M. Frenville Co.),
I.
Background
In 1977, Appellee Mary Van Brunt, who was remodeling her home, purchased products that allegedly contained asbestos. She purchased those products in upstate New York from Grossman’s, a home improvement and lumber retailer. In April 1997, Grossman’s filed petitions under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 1101 et seq.
The following are among the undisputed facts set forth in the Bankruptcy Court’s Findings of Fact: “[a]t the time of the [bankruptcy], Grossman’s had actual knowledge that it had previously sold asbestos containing products such as gypsum board and joint compound”; “Grossman’s knew of the adverse health risks associated with exposure to asbestos”; it “was aware that asbestos manufacturers had been or were being sued by asbestos personal-injury claimants”; it “was aware that producers of both gypsum board and joint compound were being sued for asbestos-related injuries”; and it “was not aware of any product liability lawsuits based upon alleged exposure to asbestos-containing products that had been filed against [it]....” App. at 20-21.
Grossman’s proсeeded to provide notice by publication of the deadline for filing proofs of claim. There was no suggestion in the publication notice that Grossman’s might have future asbestos liability. Grossman’s Chapter 11 Plan of Reorganization purported to discharge all claims that arose before the Plan’s effective date. The Bankruptcy Court confirmed the Plan of Reorganization in December 1997.
Ms. Van Brunt did not file a proof of claim before confirmation of the Plan of Reorganization because, at the time, she was unaware of any “claim” as she manifested no symptoms related to asbestos exposure. It was only in 2006, almost ten years later, that Ms. Van Brunt began to manifest symptoms of mesothelioma, a cancer linked to asbestos exposure. She was diagnosed with the disease in March 2007.
Shortly after her diagnosis, the Van Brunts filed an action for tort and breach of warranty in a New York state court against JELD-WEN, the successor-in-interest to Grossman’s, 1 and fifty-seven other companies who allegedly manufactured the products that Ms. Van Brunt purchased from Grossman’s in 1977. Ms. Van Brunt conceded that she did not know the manufacturer of any of the products that *118 she acquired from Grossman’s for her remodeling projects in 1977. After the Van Brunts filed their suit, JELD-WEN moved to reopen the Chapter 11 case, seeking a determination that their claims were discharged by the Plan. Ms. Van Brunt died in 2008 while the case was pending. Gordon Van Brunt has been substituted in her stead as the representative of her estate.
The Bankruptcy Court concluded that the 1997 Plan of Reorganization did not discharge the Van Brunts’ asbestos-related claims because they arose after the effective date of the Plan.
2
JELD-WEN, Inc. v. Van Brunt (In re Grossman’s, Inc.),
The District Court affirmed the Bankruptcy Court’s decision in every respect but one.
See JELD-WEN v. Van Brunt (In re Grossman’s, Inc.),
II.
Statement of Jurisdiction and Standard of Review
The Bankruptcy Court had jurisdiction under 28 U.S.C. § 157, and the District Court had jurisdiction under 28
*119
U.S.C. §§ 158 and 1334. We have jurisdiction under 28 U.S.C. §§ 158(d)(1) and 1291. We exercise plenary review over the District Court’s appellate review of the Bankruptcy Court’s decision.
4
Schubert v. Lucent Techs. Inc. (In re Winstar Commc’ns, Inc.),
III.
Discussion
A. The Frenville Accrual Test
In 1980, M. Frenville Co. was the subject of an involuntary рetition for bankruptcy filed in New Jersey under Chapter 7 of the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 701
et seq.
(the “Code”).
See Frenville,
Later that year, four banks filed a lawsuit in a New York state court against the company’s former accountants, Avellino & Bienes (“A & B”), alleging that A & B negligently and recklessly prepared the company’s pre-petition financial statements and seeking damages for their alleged losses exceeding five million dollars. Id. at 333-34. A & B filed a complaint in the bankruptcy court in New Jersey seeking relief from the automatic stay in order to implead Frenville as a third-party defendant in ordеr to obtain indemnification or contribution under New York law. Id. at 333-34. The bankruptcy court, affirmed by the district court, held that the automatic stay barred A & B’s action. Id. at 334. A & B appealed.
We reversed, holding that because the automatic stay applied only to claims that arose pre-petition, under New York law A & B did not have a right to payment for its claim for indemnification or contribution from Frenville until after the banks filed their suit against A & B .Id. at 337. It followed that A & B’s claim against Fren-ville arose post-petition even though the conduct upon which A & B’s liability was predicated (negligent preparation of Fren-ville’s financial statements) occurred pre-petition. Id. at 336-37. It followed that the automatic stay was inapplicаble. We emphasized that the “crucial issue” was when the “right to payment” arose as determined by reference to the New York law that governed the indemnification claim. Id. at 336.
This court subsequently summarized
Frenville
as holding that “the existence of a valid claim depends on: (1) whether the claimant possessed a right to payment; and (2) when that right arose” as determined by reference to the relevant non-bankruptcy law.
Kilbarr Corp. v. Gen. Servs. Admin., Office of Supply & Servs. (In re Remington Rand Corp.),
In the case before us, the District Court and Bankruptcy Court correctly applied the accrual test in holding that the Van
*120
Brunts’ tort claims were not discharged by the Plan of Reorganization. According to
Frenville,
the claims arose for bankruptcy purposes when the underlying state law cause of action accrued.
See Frenville,
The question remains, however, whether we should continue to follow
Frenville
and its accrual test. We have recognized that “[significant authority [contrary to
Fren-ville]
exists in other circuits.... ”
Jones v. Chemetron Corp.,
In addition to the cases cited above, JELD-WEN cites numerous district court and bankruptcy court decisions that have declined to follow Frenville. 7 The criticism has been echoed by commentators. See, e.g., Ralph R. Mabey & Annette W. Jarvis, In re Frenville: A Critique by the National Bankruptcy Conference’s Committee on Claims and Distributions, 42 Bus. Law. 697 (1987).
*121 Notwithstanding what appears to be univеrsal disapproval, we decide cases before us based on our own examination of the issue, not on the views of other jurisdictions. Nevertheless, those widely held views impel us to consider whether the reasoning applied by our colleagues elsewhere is persuasive.
Courts have declined to follow Frenville because of its apparent conflict with the Bankruptcy Code’s expansive treatment of the term “claim.” The Bankruptcy Code, which was adopted by the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (1978), defines a “claim” as
[a] right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. ...
11 U.S.C. § 101(5) (2008) (emphasis added). The House and Senate Reports make explicit that the effect of the definition “is a significant departure from [then] present law” which did not define “claim.” H.R.Rep. No. 95-595, at 309 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6266; S.Rep. No. 95-989, at 21, reprinted in 1978 U.S.C.C.A.N. 5787, 5807. In adopting the new definition of “claim,” the Reports state that “[b]y this broadest possible definition [of the term ‘claim’] ... the bill contemplates that all legal obligations of the debt- or, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case ... [and] permits the broadest possible relief in the bankruptcy court.” H.R.Rep. No. 95-595, at 309.
The Supreme Court has likewise noted that “claim” has “the broadest available definition.... ”
FCC v. NextWave Pers. Commc’ns Inc.,
[i]n determining what claims are allowable and how a debtor’s assets shall be distributed, a bankruptcy court does not apply the law of the state where it sits.... [Bankruptcy courts must administer and enforce the Bankruptcy Act as interpreted by this Court in accordance with authority granted by Congress to determine how and what claims shall be allowed under equitable principles.
Vanston Bondholders Protective Comm. v. Green,
The
Frenville
court focused on the “right to payment” language in § 101(5) and, according to some courts, “impos[ed] too narrow an interpretation on the term claim,”
Piper,
We are persuaded that the widespread criticism of Frenville’s accrual test is justified, as it imposes too narrow an interpretation of a “claim” under the Bankruptcy Code. Accordingly, the Frenville accrual test should be and now is overruled.
B. When a Claim Arises
Our decision to overrule
Fren-ville
leaves a void in our jurisprudence as to when a claim arises. That decision has various implications. One such implication
*122
involves the application of the automatic stay provided in § 362 of the Bankruptcy Code which operates to stay the commencement or continuation of any “action or proceeding” that was or could have been commenced against the debtor.
See
11 U.S.C. § 362(a)(1). The Fourth Circuit has stated, “ ‘[t]he automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors.’ ”
Grady,
Principal among the effects of the determination when a claim arises is the effect on the dischargeability of a claim. Under 11 U.S.C. § 1141(d)(1)(A) of the Code, the confirmation of a plan of reorganization “discharges the debtor from any debt that arose before the date of such confirmation ....” A “debt” is defined as liability on a “claim,”
id.
§ 101(12), which in turn is defined as a “right to payment,”
id.
§ 101(5). This is consistent with Congress’ intent to provide debtors with a fresh start, an objective, noted the Second Circuit, “made more feasible by maximizing the scope of a discharge.”
United States v. LTV Corp. (In re Chateaugay),
Moreover, the determination when a claim arises has significant due process implications. If potential future tort claimants have not filed claims because they are unaware of their injuries, they might challenge the effectiveness of any purported notice of the claims bar date. Discharge of such claims without providing adequate notice raises questions under the Fourteenth Amendment.
See Mullane v. Cent. Hanover Bank & Trust Co.,
The courts have generally divided into two groups on the decision as to when a claim arises for purposes of the Code, with numerous variations. One group has applied the conduct test and the other has applied what has been termed the pre-petition relationship test. Illustrative оf the cases that have adopted the conduct test is the decision of the Fourth Circuit in
Grady,
In Grady, the plaintiff had inserted a Daikon Shield intrauterine contraceptive device several years before the manufacturer filed a petition for Chapter 11 bankruptcy. Id. at 199. The plaintiff alleged that she experienced injuries from the Dai-kon Shield, including the need for a hysterectomy. Id. The district court, which did not refer the case to the bankruptcy court, determined that the plaintiffs claim arose “when the acts giving rise to [the defendant’s] liability were performed, not when the harm caused by those acts was manifested.” Id. (citation omitted). The court of appeals affirmed, finding that the plaintiff held a contingent claim that arose before the commencement of the bankruptcy case. Id. at 202-03. The court cautioned that it was not deciding whether Grady’s claim “or those of [future tort claimants] are dischargeable in this ease.” Id. at 203. It held only that because the Daikon Shield was inserted in the claimant before the filing of the bankruptcy peti *123 tion, it constituted a claim within the meaning of the automatic stay, 11 U.S.C. § 362(a)(1), i.e., a pre-petition claim. 8 Id.
In contrast, the Eleventh Circuit criticized a conduct test that would enable individuals to hold a claim against a debt- or by virtue of their potential future exposure to “the debtor’s product,” regardless of whether the claimant had any relationship or contact with the debtor.
In re Piper,
Some of the courts concerned that the conduct test may be too broad have adopted what has -been referred to as a pre-petition relationship test.
See In re Piper,
In
Lemelle,
the plaintiff brought a wrongful death action against the successor corporation of a mobile home manufacturer that had emerged from Chapter 11 proceedings.
The Fifth Circuit reversed, noting that in order for the plaintiffs wrongful death claim to have been discharged in the debt- or’s bankruptcy, “at a minimum, there must be evidence that would permit the debtor to identify, during the course of the bankruptcy proceedings, potential victims and thereby permit notice to these potential victims of the pendency of the proceedings.” Id. at 1277 (citаtion omitted). The court found that the record was “devoid of any evidence of any pre-petition contact, privity, or other relationship between [the debtor], on the one hand, and [the plaintiff] or the decedents, on the other.” Id. The court concluded that absent any such evidence, the district court could not find “that the claims asserted by [the plaintiff] were discharged in [the debtor’s] bankruptcy proceedings.” Id. The court reasoned that “even the broad definition of ‘claim’ cannot be extended to include ... claimants whom the record indicates were completely unknown and unidentified at the time [the debtor] filed its petition and whose rights depеnded entirely on the fortuity of future occurrences.” Id.
The Second Circuit followed a similar approach in an environmental regulatory context. In
In re Chateaugay,
A somewhat modified approach was taken by the Eleventh Circuit in a case involving the bankruptcy of Piper Aircraft, Inc., a manufacturer of general aviation aircraft and spare aircraft parts.
In re Piper,
The court of appeals agreed that the pre-petition relationship test was generally superior to either our test in Frenville, id. at 1576 n. 2, or the “conduct test” adopted by other courts of appeals, id. at 1576-77. It also held that claimants having contact with the debtor’s product post-petition, but prior to confirmation, also could be identified during the course of the bankruptcy procedure. Id. It thus framed what it chose to denominate as the “Piper ” test as follows:
[A]n individual has a § 101(5) claim against a debtor manufacturer if (i) events occurring before confirmation create a relationship, such as contact, exposure, impact, or privity, between the claimant and the debtor’s product; and (ii) the basis for liability is the debtor’s prepetition conduct in designing, manu- *125 factoring and selling the allegedly defective or dangerous product.
Id. at 1577. The court stated that “[t]he debtor’s prepetition conduct gives rise to a claim to be administered in a case only if there is a relationship established before confirmation between an identifiable claimant or group of claimants and that prepetition conduct.” Id.
The court of appeals observed that “the courts applying the conduct test also presume some prepetition relationship between the debtor’s conduct and the claimant.”
Id.; cf. In re Parker,
The pre-petition relationship test in Piper has been criticized for narrowing the definition of “claim” under 11 U.S.C. § 101(5). See e.g., Michelle M. Morgan, The Denial of Future Tort Claims in In re Piper Aircraft: Will the Court’s Quick-Fix Solution Keep the Debtor Flying High or Bring it Crashing Down?, 27 Loy. U. Chi. L.J. 27, 31-35 (1995). In a final report issued in 1997, the National Bankruptcy Review Commission proposed a definition of “claim” that incorporated the conduct test, albeit with some limitations, rather than the pre-petition relationship test. 10 See Nat’l Bankr.Rev. Comm’n, Bankruptcy: The Next Twenty Years, National Bankruptcy Review Commission Final Report at 326 (Oct. 20, 1997), reprinted in Volume G Collier on Bankruptcy App. Pt. 44-332 (Alan N. Resnick & Henry J. Som-mer, eds., 15th ed. rev.2009).
In addition, various bankruptcy courts have followed a form of the conduct test when considering the existence of an asbestos-related claim.
See, e.g., In re Quigley Co.,
Irrespective of the title used, there seems to be something approaching a consensus among the courts that a prerequisite for recognizing a “claim” is that the claimant’s exposure to a product giving rise to the “claim” occurred pre-petition, even though the injury manifested after the reorganization. We agree and hold that a “claim” arises when an individual is exposed pre-petition to a product or other conduct giving rise to an injury, which underlies a “right to payment” under the Bankruptcy Code. See 11 U.S.C. § 101(5). Applied to the Van Brunts, it means that their claims arose sometime in 1977, the date Mary Van Brunt alleged that Gross-man’s product exposed her to asbestos.
That does not necessarily meаn that the Van Brunts’ claims were discharged by the Plan of Reorganization. Any application of the test to be applied cannot be divorced from fundamental principles of due process.
11
Notice is “[a]n
*126
elementary and fundamental requirement of due process in any proceeding which is to be accorded finality....”
Múlleme,
The most innovative approach yet to the asbestos problem was adopted by the New York bankruptcy court as part of the Man-ville plan of reorganization.
See In the Matter of Johns-Manville Corp.,
It is apparent from the legislative history of § 524(g) that Congress was con
*127
cerned that future claims by presently unknown claimants could cripple the debtor’s reorganization. Senator Graham stated during floor debate on the bill that § 524(g) “provides companies who are seeking to fairly address the burden of thousands of current asbestos injury claims
and unknovm future claims
... a method to pay their current asbestos claims and provide for equitable treatment of future asbestos claims.” 140 Cong. Rec. S4523 (Apr. 20, 1994) (emphasis added). The House of Representatives Committee on the Judiciary wrote in its report that § 524(g) was inсluded in the bill “to offer similar certitude to other asbestos trust/injunction mechanisms that meet the same kind of high standards with respect to regard for the rights of claimants, present and future, as displayed in
[Johns-Man-ville
and a case following it,
In re UNR Indus., Inc.,
By enacting § 524(g), Congress took account of the due process implications of discharging future claims of individuals whose injuries were not manifest at the time of the bankruptcy petition. We observed in Combustion Engineering that
[m]any of the[ ] requirements [in § 524(g)] are specifically tailored to protect the due process rights of future claimants. For example, a court employing a § 524(g) channeling injunction must determine that the injunction is “fair and equitable” to future claimants, 11 U.S.C. § 524(g)(4)(B)(ii), and must appoint a futures representative to represent their interests. 11 U.S.C. § 524(g)(4)(B)(I). The court must also determine that the plan treats “present claims and future demands that involve similar claims in substantially the same manner.” 11 U.S.C. § 524(g)(2)(B)(ii)(V). Finally, the statute requires that a 75% super-majority of claimants whose claims are to be addressed by the trust vote in favor of the plan. 11 U.S.C. § 524(g) (2)(B) (ii) (IV) (bb).
In re Combustion Eng’g,
The due process safeguards in § 524(g) are of no help to the Van Brunts as Gross-man’s Plan of Reorganization did not provide for a channeling injunction or trust under that provision. 13 A court therefore must decide whether discharge of the Van Brunts’ claims would comport with due process, which may invite inquiry into the adequacy of the notice of the claims bar date. The only open matter before the District Court is JELD-WEN’s request for a declaration that the Van Brunts’ claims had been discharged.
Whether a particular claim has been discharged by a plan of reorganization depends on factors applicable to the particular case and is best determined by the appropriate bankruptcy court or the district court. In determining whether an asbestos claim has been discharged, the court may wish to consider, inter alia, the circumstances of the initial exposure to asbestos, whether and/or when the claimants were aware of their vulnerability to asbestos, whether the notice of the claims bar date came to their attention, whether the claimants were known or unknown creditors, whether the claimants had a col-orable claim at the time of the bar date, and other circumstances specific to the parties, including whether it was reason *128 able or possible for the debtor to establish a trust for future claimants as provided by § 524(g).
These are not factors for consideration in the first instance by this court sitting en banc. Both the Bankruptcy Court and the District Court held that the Van Brunts’ state law claims survived under Frenville. Neither had any reason to consider whether the Van Brunts’ claims were discharged.
IV.
Conclusion
Accordingly, we will reverse the decision of the District Court and remаnd this case to the District Court for further proceedings consistent with this opinion.
Notes
. Through the Plan, JELD-WEN acquired all of the stock of, and subsequently merged with, Grossman’s.
. Grossman's had also filed for bankruptcy in the Florida bankruptcy courts in 1985. After losing in the Delaware Bankruptcy Court, JELD-WEN re-opened the Florida bankruptcy case in hopes of a better result.
See JELD-WEN, Inc. v. Van Brunt (In re Evans Prods. Co.),
No. 08-01643-AJC,
. JELD-WEN is the only defendant remaining in the New York action, which has been informally stayed pending this appeal. In response to this court's inquiry, the Van Brunts report that they reached a settlement with four of the defendants for an aggregate amount of $305,850, and that their claims against the other defendants were dismissed.
. JELD-WEN also appeals the District Court's decision not to sanction the Van Brunts for pursuing a breach of warranty claim in the Bankruptcy Court. We review that decision for abuse of discretion.
Rogal v. Am. Broad. Cos.,
. One of those principals, Rudolph Frenville, Sr., will be collectively referred to, along with the company, as "Frenville.”
. The parties agree that the tort claim is governed by New York law.
.
See, e.g., Jensen v. Cal. Dept. of Health Servs. (In re Jensen),
. Although the Tenth Circuit “adoptfed] the conduct theory” in
In re Parker,
. The Ninth Circuit adopted a similar test that some courts and commentators have called a "fair contemplation” test.
See ZiLOG, Inc. v. Corning (In re ZiLOG, INC.),
. Congress created the National Bankruptcy Review Commission in 1994 to investigate problems in the bankruptcy system and to suggest legislative and administrative solutions.
See Woskob
v.
Woskob (In re Woskob),
. Because we have before us an asbestos case, we dо not decide when a "claim” arises
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in the context of an environmental cleanup case involving conflicting statutory frameworks.
See In re Jensen,
. "To qualify for [the] protections [of § 524(g)], a court must find that the debtor has been named in an action for damages allegedly caused by asbestos, that the debtor is likely to be subject to substantial demands for payment in the future arising out of the same or similar conduct, that the amounts and timing of such future claims are uncertain, and that permitting the pursuit of such claims outside the trust mechanism would threaten the plаn’s attempts to deal equitably with current and future demands. 11 U.S.C. §§ 524(g)(2)(B)(i)(I), (ii)(I-III). The trust itself must also satisfy certain standards under § 524(g) in order to qualify for the issuance of a channeling injunction directing all future claims to the trust: the trust must assume the liabilities of the debtor for current and future claims and must be funded at least in part by the securities of the debtor; the trust must either own, or be entitled to own, the majority of the voting shares of the debtor, its parent, or its subsidiary; the trust must use its assets to pay future claims and demands; and the trust' must provide for mechanisms ensuring its ability to value and pay present and future claimants in substantially the same manner. 11 U.S.C. §§ 524(g)(2)(B)(i)(I)-(IV), (ii)(V).”
In re Combustion Eng’g,
. Nor could it have done so, as § 524(g) applies only to companies that have been sued for damages before the date of the bankruptcy petition. See 11 U.S.C. § 524(g)(2)(B)(i)(I).