This appeal raises complicated questions regarding the application of res judicata to bankruptcy proceedings. Appellant/Cross-Appellee Teledyne Industries, Inc. owns shares in a new corporate entity formed to receive the assets of a Chapter 11 debtor, Piper Aircraft Corp. Appel-
Because we conclude that Kaiser’s state court claims do not arise out of the same nucleus of operative fact as the Chapter 11 case, and Kaiser lacked an adequate procedural vehicle to bring its state court claims, or their equivalent, in the Chapter 11 case, res judicata is not applicable to any of Kaiser’s claims. Accordingly, we affirm the district court insofar as it permitted Kaiser’s damages claim to proceed in state court, but reverse the district court insofar as it enjoined Kaiser’s constructive trust claim from going forward.
I.
These cross-appeals arise out of a Chapter 11 reorganization proceeding filed by Piper Aircraft Corporation (“Piper”) on July 1, 1991. Teledyne was one of Piper’s largest creditors, holding a judgment of approximately $5,875,000 at the time of the Chapter 11 filing. Teledyne was the only unsecured creditor granted exclusive rights to participate in the preparation and submission of reorganization plans for confirmation by the bankruptcy court. Only Teledyne, the Unsecured Creditors’ Committee, and Piper itself were permitted to file such plans.
In November 1994, Teledyne entered into a Cooperation and Shareholders Agreement (“Cooperation Agreement”) with Kaiser, which was not a creditor of Piper and had no other stake in the Chapter 11 case. The Cooperation Agreement provided that Teledyne and Kaiser would act as co-proponents of a plan for the sale of Piper’s assets. Under this plan (the “Kaiser/Teledyne plan”), a newly formed entity, Piper International Corporation (“PIC”, now Appellee PAQ, Inc.) would purchase substantially all of Piper’s assets. Kaiser was to be the majority shareholder, holding 65% of the stock, while Teledyne was expected to hold the remaining 35%. Pursuant to the Kaiser/Teledyne plan, PIC would purchase Piper’s assets for $82 million in cash and a $20 million junior secured note, and would assume certain liabilities as well. In exchange, Teledyne would voluntarily subordinate its claims against Piper’s estate.
The Kaiser/Teledyne plan was submitted to the bankruptcy court over the objections of Piper and the Creditors’ Committee, which submitted an alternative plan. A hearing was held on December 15, 1994, to consider approval of the respective disclosure statements regarding these proposed plans. After the hearing, the bankruptcy court concluded that neither plan was viable.
In the wake of that hearing through March of 1995, Piper, the Creditors’ Committee, Teledyne, Kaiser, and PIC actively participated in negotiations to achieve consensus on a confirmable plan. Finally, in March 1995, Teledyne and the Creditors’ Committee agreed on a new plan that provided for the acquisition of Piper’s assets. By this point, however, Teledyne was no longer aligned with Kaiser. Instead, Tele-dyne had joined forces with another partner, Dimeling, Schreiber & Park (“DS&P”).
After the bankruptcy court rejected the Teledyne/Kaiser Plan, the relationship between Teledyne and Kaiser began to erode. The parties differ on the cause of the breakdown. Teledyne claims that Kaiser, in order to satisfy the Creditors’ Com
On March 31, 1995, Teledyne and DS&P, with the support of the Creditors’ Committee and Piper, filed their agreed-upon joint plan (the “Teledyne/DS&P plan”) in the bankruptcy court. The relevant portions of the Teledyne/DS&P plan provided that a different new entity called New Piper would acquire substantially all of Piper’s assets. Primary ownership of New Piper would be held by Teledyne and DS&P. An irrevocable trust, set up to obtain the sale and other proceeds to be paid by New Piper, would be formed to make distributions to Piper’s creditors. Under the Teledyne/DS&P plan, DS&P would hold 48% of the shares of New Piper, while the Trust and Teledyne would each hold 24%. Kaiser would not hold any ownership interest.
In exchange for its rights under the Teledyne/DS&P plan, Teledyne waived all claims against Piper, including the $5,875,000 liquidated judgment it had acquired pre-petition. Teledyne asserts that, because of the size of this claim, its waiver materially and substantially increased the distributions available for other creditors and interest holders. Tele-dyne also contends that it made these concessions and acquired the New Piper stock in reliance on, and pursuant to, the provisions of the Teledyne/DS&P plan.
Following two days of confirmation hearings, the bankruptcy court on July 11, 1995, entered an order confirming the Tel-edyne/DS&P plan. Although Kaiser received formal notice and attended the confirmation hearing, it did not file or express any objections to the DS&P plan at the hearing or at any other time. Nor did it appeal the confirmation order.
Meanwhile, upon learning of the incipient arrangement between Teledyne and DS&P, but shortly prior to the filing of the Teledyne/DS&P plan, Kaiser commenced a lawsuit against Teledyne and others in Florida state court. In its original complaint, filed March 20, 1995, Kaiser sought damages from Teledyne for breach of the Cooperation Agreement and for breach of fiduciary duty (the “damages claim”). Kaiser alleged that Teledyne breached its express obligations under the Cooperation Agreement by, among other things, “disclaiming and abandoning its obligation to cooperate with plaintiffs to enable PIC to acquire the assets of Piper,” “withdrawing from and otherwise ceasing to act as a proponent of the [Kaiser/Teledyne plan] without the express consent of Kaiser and PIC,” and “unilaterally terminating the Cooperation Agreement without the mutual consent of the Parties notwithstanding the absence of any breach [by] Kaiser or PIC of any obligations on their part.” Kaiser further alleged that Teledyne “violated implied obligations arising under” the Cooperation Agreement, by “us[ing] a knowingly erroneous excuse to try to justify its abandonment of a binding contractual obligation, its leap to schedule furtive meetings with DS&P to better its own position [and] its purported continued negotiation on behalf of [Kaiser and PIC] when it had already contacted DS&P to bring them into the deal.”
On December 10, 1996, one and a half years after confirmation of the DS&P plan, Kaiser amended its state court complaint to request a constructive trust over the
Teledyne proceeded through the confirmation process without apparent concern over the state court suit. It did not mention Kaiser’s suit to the bankruptcy court at the time of confirmation or address with that court any of the disputed facts giving rise to Kaiser’s action. Not until April 1997 did Teledyne finally challenge before the bankruptcy court the viability of Kaiser’s state court action, moving before the same bankruptcy judge who had confirmed the plan to “enforce” the confirmation order.
Eventually, at the bankruptcy court’s urging, Teledyne filed the instant adversary proceeding on July 8,1997, in which it sought declaratory and injunctive relief. Specifically, Teledyne asked the bankruptcy court to delineate the rights of the parties and to enjoin Kaiser from interfering with the distributions and interests provided by the confirmed Teledyne/DS&P plan. The basis for this relief was res judicata. Around that time Teledyne also interposed a res judicata defense in the state court action, but did not pursue it, opting instead to seek injunctive relief from the bankruptcy court.
Teledyne moved for summary judgment in the adversary proceeding. Kaiser opposed the motion and filed a cross-motion for summary judgment. On January 14, 1998, the bankruptcy court ruled from the bench. This oral ruling, which contained an extensive recitation of the facts and circumstances that led to the dispute, was ultimately incorporated into an Order Granting in Part and Denying in Part Motions for Summary Judgment on which these appeals are predicated.
The bankruptcy court concluded that Kaiser’s constructive trust claim was barred by the doctrine of res judicata, because it “attacks a material provision in the [confirmed] plan, namely, ownership and control of New Piper,” and thus, was an impermissible collateral attack on the confirmed plan which should have been raised as an objection during the confirmation process. The court therefore enjoined Kaiser’s prosecution of the constructive trust claim in the state court. The bankruptcy court found, however, that because no plan was pending at the time Kaiser filed its damages claim (i.e., the date the original, unamended complaint was filed in state court), the damages claim was not barred by the confirmation order and could proceed in state court.
Both parties appealed portions of the bankruptcy court’s order to the district court. In a lengthy order dated January 12, 1999, the district court affirmed the bankruptcy court, although on somewhat different grounds. Kaiser Aerospace & Elec. Corp. v. Teledyne Indus., Inc.,
On the other hand, the district court also ruled that Kaiser’s constructive trust claim was a “core proceeding” that arose out of a common nucleus of operative fact with the Chapter 11 case and thus should have been pursued in that case. Accordingly, the district court, like the bankruptcy court, enjoined Kaiser from pursuing its constructive trust claim while allowing the damages claim to go forward in state court. These cross-appeals followed.
II.
The standard of review is clear. A court’s application of res judicata presents questions of law reviewed de novo. See Richardson v. Miller,
III.
Both parties object to portions of the district court’s order affirming the bankruptcy court. As it did on appeal to the district court, Teledyne contends that the bankruptcy court erred by ruling that Kaiser’s damages claim was not barred by res judicata. Kaiser, in turn, contends that the bankruptcy court erred by ruling that its constructive trust claim was barred by res judicata.
Notably, neither party suggests that the remedy-oriented res judicata analysis undertaken by the courts below is proper. Both parties view res judicata as an all-or-nothing proposition: either all of Kaiser’s state court claims are barred, or none of them is barred. It is well settled that res judicata turns primarily on the commonality of the facts of the prior and subsequent actions, not on the nature of the remedies sought. See, e.g., Olmstead v. Amoco Oil Co.,
There is no dispute about the general principles of res judicata to be applied here. Under res judicata, also known as claim preclusion, a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action. See, e.g., Allen v. McCurry,
B.
We initially address the four prerequisites to res judicata. There is no dispute that two of the requirements are met. The parties agree that the confirmation order was issued by a court of competent jurisdiction and constitutes a final judgment on the merits. The parties disagree about the other two requirements: whether Kaiser was a “party” to the Chapter 11 proceeding, and whether the Chapter 11 proceeding involved the same cause of action that Kaiser has attempted to assert in the state court action. Because we conclude that the Chapter 11 proceeding did not involve the same cause of action, we do not separately decide whether Kaiser was a party to that proceeding.
The parties agree that claims are part of the same cause of action for res
Kaiser contends that its state court action and the bankruptcy proceeding (or, more specifically, the Teledyne/DS&P plan confirmation process) do not arise out of a common nucleus of operative fact. It asserts that merely because the bankruptcy proceeding gave rise to the events for which it seeks relief in the state court action does not establish that the cases share the same factual predicate; in other words, it is not enough simply to show that “but for” the Chapter 11 proceeding there would be no state court action. The analysis, Kaiser contends, must be more precise than that. Moreover, says Kaiser, the facts underpinning the state court action (i.e., Teledyne’s alleged breach of the Cooperation Agreement and its fiduciary duties to Kaiser) were not at issue in the confirmation proceeding; the bankruptcy court did not consider, and was not required to consider, any factual dispute relating to its stake in the ownership or capital structure of New Piper when confirming the Teledyne/DS&P plan. We agree with these contentions.
It is essentially undisputed that the facts at the core of Kaiser’s state court suit were neither raised nor litigated in the Chapter 11 proceeding. The bankruptcy court did not purport to rule on whether Teledyne breached any contractual or fiduciary duty to Kaiser, and neither party introduced any evidence regarding those alleged breaches, or the facts relating to the breakdown of the Kaiser-Teledyne relationship. The bankruptcy court made no finding or engaged in any express inquiry at the time of confirmation as to facts regarding the relative ownership interests or capital structure of New Piper. No evidence was proffered or admitted regarding the creditworthiness or business acumen of New Piper’s shareholders, and no one proposed or considered any limitation that would have prevented others from obtaining some or all of them shares. It is uncontested that the plan, disclosure statements, confirmation hearing transcript, and the confirmation order are completely devoid of any reference to the percentage ownership of stock to be owned by Teledyne as opposed to Kaiser, and the import, if any, of Teledyne’s role as owner of New Piper or the absence of Kaiser as an owner. There is simply no indication in the record that the facts put at issue by Kaiser’s state court suit were raised or litigated before the bankruptcy court; indeed, both parties for their own strategic reasons purposefully avoided raising those facts during the Chapter 11 case.
That the critical facts underlying Kaiser’s suit were never discussed by the bankruptcy court or litigated by the parties is powerful evidence that the Chapter 11 case did not involve the “same cause of action” as the state court suit. Teledyne maintains, however, that the facts underlying Kaiser’s state court suit were so implicated by the Chapter 11 proceeding that we should consider the two actions as arising out of a common nucleus of fact even though the relevant facts were never actually raised. Teledyne’s position, as we see it, has two dimensions. It contends that “but for” the filing of the Chapter 11 case the facts underlying Kaiser’s claims would never have emerged. It also contends that the ownership and capital structure of New Piper was necessarily a subject considered by the bankruptcy court in the process of confirming the Teledyne/DS&P plan. Neither of these arguments is persuasive.
Indeed, Teledyne’s “but for” argument is at odds with this Circuit’s frequent pronouncement that res judicata does not apply where the facts giving rise to the second case only “arise after the original pleading is filed in the earlier litigation.” Manning v. City of Auburn,
[W]e do not believe that the res judicata preclusion of claims that “could have been brought” in earlier litigation includes claims which arise after the original pleading is filed in the earlier litigation. Instead, we believe that, for res judicata purposes, claims that “could have been brought” are claims in existence at the time the original complaint is filed or claims actually asserted ... in the earlier action.
Id. (emphasis added) (footnote omitted) (citing Commercial Box & Lumber Co. v. Uniroyal, Inc.,
We repeated this rule from Manning in Pleming v. Universal-Rundle Corp.,
In this Circuit, therefore, res judicata does not bar a claim that was not in existence at the time of the original action unless the facts underlying the claim were actually raised in that action. Here, the facts underlying Kaiser’s claim were not in existence at the time the Chapter 11 case began, and (as noted above) were never actually raised as the case unfolded. Although our decisions state the principle in unequivocal terms, we recognize that different res judicata considerations may come into play when the first case is a bankruptcy proceeding; the evolving scope of a bankruptcy proceeding means that in some limited instances the bankruptcy process itself will generate and then squarely resolve the identical facts that underlie the later-filed case. That is plainly not what we have here, however, and decisions such as Manning underscore just how difficult it is to square Teledyne’s “but for” argument, and indeed its entire res judicata theory, with our precedent.
We also reject Teledyne’s further argument that the facts underlying Kaiser’s state court suit were sufficiently implicated by the confirmation process to declare that the two arose out of a common nucleus of operative fact. Teledyne’s theory, essentially endorsed by the lower courts, is that (1) facts related to the ownership and capital structure of New Piper underlay the bankruptcy court’s decision to confirm the Teledyne/DS&P plan; and (2) facts relating to the ownership and capital structure of New Piper also underlie the state court action. The second of these premises is reasonable. The facts underlying Kaiser’s suit — and specifically facts relating to the process by which Teledyne first agreed to go forward with, and then allegedly excluded, Kaiser from a proposed new entity meant to receive Piper’s assets — go directly to the proper ownership and capital structure of New Piper. But the first premise — that the key facts underlying the state court action were necessarily put at issue by the confirmation process — is unpersuasive.
As we have said, the res judicata effect of a confirmed plan is “premised on the notion that the bankruptcy court has addressed in the confirmed plan and order only those issues that are properly within the scope of the confirmation hearing.” In re Seidler,
The only factor of § 1129 arguably implicating the same core of facts as Kaiser’s state court suit is contained in § 1129(a)(3), which requires the bankruptcy court to find that “the plan has been proposed in good faith and not by any means forbidden by law.” Teledyne argues that determining whether a plan has been proposed in good faith necessarily requires consideration of all facts relating to the conduct of the plan proponent. Our case law, however, does not define the inquiry quite so broadly. See McCormick v. Banc One Leasing Corp.,
Teledyne also insists that the facts underpinning the state court action are necessarily bound up with determining whether the plan had a reasonable hope of success. See 11 U.S.C. § 1129(a)(11). Teledyne relies heavily on the bankruptcy court’s post hoc “finding” that facts underlying the state court action would have impacted its assessment of the likely suc
Moreover, the bankruptcy court was not required to consider — and, tellingly, did not consider — any limitation on Teledyne’s ability to sell some or all of its shares and thereby relinquish ownership of New Piper. Teledyne argues that we should not attach much importance to the absence of a restriction in the plan on its ability to alienate its shares. But Teledyne cannot deny that the absence of such a limitation undercuts its argument that its post-confirmation stake in New Piper was so important an issue that the facts surrounding its dispute with Kaiser would necessarily have been implicated by the confirmation process.
Ultimately the most one can say is that the Kaiser/Teledyne dispute, and the attendant possibility that Teledyne’s loss of that dispute might impact New Piper (either by transferring equitable ownership of some New Piper shares to Kaiser or by forcing Teledyne to pay significant damages), could be viewed as material to confirmation of the plan. But the test for “common nucleus of operative fact” as defined for purposes of res judica-ta is not simply one of whether the two claims are related to or may materially impact one another. The underlying core of facts must be the same in both proceedings. Quite simply:
The issue is not what effect the present claim might have had on the earlier one, but whether the same facts are involved in both cases, so that the present claim could have been effectively litigated with the prior one.
In re Baudoin,
Looking at the facts that the bankruptcy court was by law required to consider, and the facts that it actually did consider, at the confirmation hearing, we simply cannot say that the facts underpinning Kaiser’s dispute with Teledyne were sufficiently put at issue by the confirmation process to support res judicata. The facts raised by Kaiser’s suit regarding Teledyne’s private business dealings with Kaiser and their relative allocation of ownership interests in the post-reorganization entity have only an attenuated relationship to the facts necessarily considered by the bankruptcy court as part of its § 1129 analysis. We cannot infer, on this record, that the bankruptcy court considered the kinds of facts raised by Kaiser’s state court suit, and therefore cannot hold that the confirmation process involved the “same cause of action.”
We are bolstered in this conclusion by Teledyne’s own conduct during the confirmation process. If indeed Kaiser’s suit must be viewed as nothing more than a collateral attack on confirmation of the Teledyne/DS&P plan, or threatens so substantially the purposes for which that plan was proposed and adopted, why did Tele-dyne never advise the bankruptcy court of the existence of the suit until long after the confirmation process was complete? Kaiser’s suit, as noted above, was filed before the Teledyne/DS&P plan was even submitted to the bankruptcy court. Yet Teledyne chose not to inform the bank
In short, we cannot say that the state court action arises out of a common nucleus of operative fact with the Chapter 11 case. Our task is to “compare the factual issues explored in the first action with the factual issues to be resolved in the second.” Entin,
Even if we were to decide that all of the prerequisites to res judicata were met, Teledyne still would not be entitled to relief because the claims in Kaiser’s state court action were not brought, and more importantly could not have been brought, in the bankruptcy proceeding. The courts below found that Kaiser’s constructive trust claim could have been litigated in the bankruptcy action, but that its damages claim could not have been litigated there due to lack of jurisdiction. Kaiser makes multiple arguments as to why neither its damages claim nor its constructive trust claim could have been litigated in the bankruptcy case. In particular, Kaiser contends that it had no adequate procedural mechanism by which to assert its state court claims in the bankruptcy case.
Teledyne argues that Kaiser could have brought its claims in the form of an objection to confirmation of the Teledyne/DS&P plan, or a motion to strike that plan.
Teledyne also suggests that Kaiser could have brought an adversary complaint in the bankruptcy court to enjoin the Tele-dyne/DS&P plan. For similar reasons, however, this relief would not have provided a complete substitute for the relief sought in the state court action. Cf. also Cen-Pen Corp. v. Hanson, 58 F.3d 89, 93 (4th Cir.1995) (“confirmation of a ... plan is res judicata only as to issues that can be raised in the less formal procedure for contested matters ... confirmation generally cannot have [a] preclusive effect as to [matters] which must be raised in an adversary proceeding.”); In re Beard,
To reiterate, what Kaiser seeks in the state court suit is not the defeat of the Teledyne/DP&S plan, but rather ownership rights in the post-reorganization entity, or damages equal to the profits and benefits that it would receive if it had such ownership rights. We are unaware of any lawful basis upon which Kaiser could have brought, let alone win, an adversary proceeding before the bankruptcy court not only to block the Teledyne/DP&S plan, but also to have the court adopt an alternative plan giving it an ownership interest in a post-reorganization entity over the undoubted opposition of the debtor, Tele-dyne, and all other proponents of the Tele-dyne/DP&S plan. We cannot even see how Kaiser could have brought an adversary proceeding to force adoption of an alternative plan; among other obstacles, Kaiser did not have statutory standing to submit a reorganization plan of its own, and even if it did it could not have submitted a plan because it was not among the parties granted exclusivity.
Simply put, we are unpersuaded that Kaiser had an adequate vehicle to pursue in the Chapter 11 case the equivalent of the claims it asserts in state court.
Because Kaiser did not have an adequate procedural vehicle to bring its state court claims, or their equivalent, in the Chapter 11 ease, and Kaiser’s state court does not arise out of the same nucleus of operative fact as the Chapter 11 case, Tel-edyne cannot meet its burden of showing that the technical requirements of res judi-cata are met. On this record, and under our precedent, Kaiser is entitled to its day in court, and the considerations of policy argued at length by Teledyne do not permit us to relax the requirements of res judicata in these circumstances. Nor do the equities tip as powerfully in Teledyne’s favor as Teledyne maintains. Even the bankruptcy court was troubled by Tele-
Accordingly, we affirm the district court insofar as it permitted Kaiser’s damages claim to proceed, but reverse that court insofar as it enjoined the constructive trust claim from going forward. Res judicata does not bar Kaiser from pursuing its state court action in full, and Kaiser’s summary judgment motion should have been granted in its entirety.
AFFIRMED IN PART AND REVERSED IN PART.
Notes
. The amended complaint sought additional relief against DS&P for its alleged participation in Teledyne's fiduciary breach and for tortious interference with an advantageous business arrangement. DS&P and PIC were also named as defendants on the constructive trust claim.
. The bankruptcy court in its summary judgment decision made numerous statements about how Kaiser’s lawsuit might have affected its handling of the Teledyne/DS&P plan. Teledyne insists that we must defer to those "findings.” Few if any of those "findings” warrant deference, however. Many do not resolve purely factual issues, but rather go to mixed questions of law and fact that we review de novo. See In re Maries,
. Kaiser asserts that, even assuming the elements of res judicata exist here, the doctrine is inapplicable to its state court action because that action was filed prior to the bankruptcy court entering its confirmation order. Thus, says Kaiser, the final judgment in the Chapter 11 case cannot serve as res judicata with regard to its suit against Teledyne. In support of this argument, Kaiser relies on the prior pending proceeding exception to the compulsory counterclaim rule, codified in Fed.R.Civ.P. 13(a) and its Bankruptcy Rules equivalent (Fed. R. Bankr.P. 7013(a)). But Kaiser cites no case law applying a pending proceeding exception to res judicata doctrine, and we are not persuaded that we should recognize such an exception here. Indeed, even looking solely at the language of Rule 13(a), Kaiser’s argument fails. The rule provides that "[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.... But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action,. ...” Fed.R.Civ.P. 13(a). Rule 13(a) literally requires that the otherwise precluded claim be pending before the other action was commenced, not merely before the judgment in that action was rendered. Piper's Chapter 11 case began in 1991, four years before Kaiser filed suit. Moreover, recognizing a prior pending proceeding exception in this case would not advance the limited policy purpose of that exception as it is applied to compulsory counterclaims.
. Section 1129 ("Confirmation of plan”) states in pertinent part as follows:
(a) The court shall confirm a plan only if all of the following requirements are met:
(1) The plan complies with the applicable provisions of this title.
(2) The proponent of the plan complies with the applicable provisions of this title.
*1300 (3) The plan has been proposed in good faith and not by any means forbidden by law.
...
(11) Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan....
11 U.S.C. § 1129. A court must independently satisfy itself that these criteria are met. Thus, it must consider facts relating to these criteria even in the absence of an objection. It is for this reason that merely establishing that the bankruptcy court did not actually make any findings regarding the ownership or capital structure of New Piper does not completely end the analysis — we look at the facts that by law were necessarily implicated by the confirmation process.
.Although Teledyne asserts that the ownership of the “reorganized debtor” is always an issue in a Chapter 11 confirmation proceeding, here the debtor (Piper) was not, technically speaking, reorganized; rather, its assets were sold to an entirely new entity (New Piper).
. The additional cases cited by Teledyne on this point do not establish that a court addressing § 1129(a)(3) necessarily must consider the kind of facts underpinning Kaiser's state court action. Rather, these cases — like McCormick — simply explain that the court must focus on the totality of the circumstances relevant to the plan proponent's good faith in submitting the plan.
. Teledyne makes one other argument under § 1129(a)(3). It asserts, without persuasive support, that the statute's requirement that the bankruptcy court consider whether the plan was proposed “not by any means forbidden by law” necessarily made the facts underpinning Kaiser's suit part of the facts underlying the confirmation process. The statutory language refers to the manner by which the plan at issue is proposed to the court and interested parties, not the manner by which one of the plan proponents went about creating the plan.
. Teledyne's extensive reliance on the former Fifth Circuit's decision in Miller v. Meinhard-Commercial Corp.,
Teledyne also relies on the Fifth Circuit's decision in Southmark Properties v. Charles House Corp.,
. Kaiser also asserts that the bankruptcy court would not have had jurisdiction over its claims. Teledyne disputes that argument, which we find unnecessary to address given the other grounds for rejecting res judicata here. Notably, the parties do agree that the district court’s analysis of whether Kaiser's claims were within the bankruptcy court’s "core” jurisdiction asked the wrong question: whether an issue is "core” relates to how jurisdiction is exercised (i.e., whether the bankruptcy court is limited to making findings and conclusions for the district court and opposed to ruling outright, see 28 U.S.C. § 157(c)(1)), rather than whether jurisdiction exists.
. Teledyne does not, and cannot, argue that Kaiser could have pursued its state court claims in identical form as part of the Chapter 11 case. Rather, Teledyne's point is that Kaiser could have obtained equivalent relief by channeling its claims and allegations into an attack on the Teledyne/DS&P plan.
. We think it far from clear that Kaiser constituted a party in interest with standing to object to the Teledyne/DS&P plan. Under the Bankruptcy Code, only a "party in interest” may appear in a bankruptcy proceeding and be heard on an issue such as confirmation of apian. 11 U.S.C. § 1109(b). “Party in interest” is defined non-exclusively to include “the debtor, the trustee, a creditor's committee, an equity security holder's committee, a creditor, an equity security holder, or any indenture trustee.” Id. Kaiser argues that it was not a party in interest because it was not among the groups of interested parties specifically identified in § 1109(b) and at best was akin to an unsuccessful bidder at a sale of bankruptcy estate assets. See In re O 'Brien Envtl. Energy Inc.,
. Teledyne cites post hoc ''findings” by the bankruptcy judge that he would have addressed Kaiser’s concerns if they had been raised. We are unpersuaded, however, that the bankruptcy court had any proper basis for doing so. Moreover, res judicata did not require Kaiser to raise its concerns based merely on speculation that the bankruptcy court might somehow have fashioned a way to address them.