Bankr. L. Rep. P 75,828
PHAR-MOR, INC., Plaintiff,
v.
COOPERS & LYBRAND, Defendant.
The Official Unsecured Creditor's Committee of Phar-Mor,
Inc., Appellants,*
Ivan Bowen, II, Robert J. Carr, Vernon L. Carson, Merle T.
Carson, Robert M. Chase, Stephen M. Ehrlichman, Robert J.
Frisby, Ronald Goldberg, Cecile Guthman, Howard D. Hirsh
Revocable Trust, Walter Jacobson, Diane Dybsky Jacobson,
Robert A. Judelson, Edward L. Lembitz Profit Sharing Plan,
Marc Levenstein, Angela Levenstein, Maurice Sporting Goods,
Inc., Protective Insurance Company, Robert A. Riesman, Jr.,
Philip E. Rollhaus, Jr., Jeanette M. Shea Trust, Spiegel,
Inc. Supplemental Employee Retirement Plan for the Benefit
of John J. Shea, Helen Shire, Jack Shire, Bernard M. Susman
Revocable Trust, Glen R. Traylor, Union League Boys & Girls
Clubs, Richard E. Weiss, John B. Whitted, Jr., Stein Roe
Investment Trust, Olympus Private Placement Fund, L.P.,
Vencap Hold[ings] PTE Ltd., Odyssey Partners, L.P.,
Kemper Total Return Fund, Kemper Growth Fund, Kemper
Retirement Fund--Series I, Kemper Retirement Fund--Series
II, Kemper Small Capitalization Equity Fund, Kemper
Investment Portfolios--Growth Portfolios, Kemper Investment
Portfolios--Total Return Portfolio, Lumbermens Mutual
Casualty Company, Kemper Financial Services, Inc., New
Economy Fund, Anchor Pathway Fund Growth Series, America
Vаriable Insurance Series Growth Fund, Albert H. Bitzer, Jr.
Revocable Trust, The Bowen Family Partnership, Inc., Select
Equity Fund of the Collective Trust Funds of the Northern
Trust Company, Growth Equity Fund-A of the Common Trust
Funds of the Northern Trust Company, Steinroe Prime
Equities, Andrew K. Block Trust No. 2, David A. Breskin,
Burton B. Kaplan, Arthur Charles Nielsen, Jr., Ralph
M. Segall Trust, Mitchell Gold-Smith, Allan C. Lichtenberg
Trust, Eva F. Lichtenberg, James D. Winship, M.S. Block 1985
Family Trust, Pagtip, Sheet Metal Workers Pension Fund,
Intervenors.**
No. 93-3368.
United States Court of Appeals,
Third Circuit.
Argued Nov. 2, 1993.
Decided April 11, 1994.
Rehearing and Suggestion for Rehearing In Banc Denied June
6, 1994.***
Abraham Singer (Argued), Pepper, Hamilton & Scheetz, Detroit, MI, for The Official Unsecured Creditors' Committee of Phar-Mor, Inc., appellant.
Paul A. Manion (Argued), James P. Hollihan, Robert J. Waine, Mary-Jo Rebelo, Manion, McDonough & Lucas, Pittsburgh, PA, for Phar-Mor, Inc., appellee.
Kathryn L. Simpson (Argued), Grogan, Graffam, McGinley & Lucchino, P.C., Pittsburgh, PA, for Coopers & Lybrand, appellee.
Arthur T. Susman, Timothy J. Storm, Susman, Saunders & Buehler, Chicago, IL, for intervenors, Plaintiffs in Bowen, et al. v. Shapira, et al.
Bernard D. Marcus, Scott D. Livingston, Marcus & Shapira, Pittsburgh, PA, for amicus curiae, Giant Eagle, Inc. and Giant Eagle of Delaware, Inc.
R. Eric Kennedy, Weisman, Goldberg & Weisman Co., L.P.A., Cleveland, OH, for amicus curiae, Brentwood Originals, Inc., et al.
Before: BECKER and STAPLETON, Circuit Judges, and RESTANI, Judge, U.S. Court of International Trade.d
OPINION OF THE COURT
BECKER, Circuit Judge.
This appeal presents the interesting and important question whether Sec. 1109(b) of the Bankruptcy Code, 11 U.S.C. Sec. 1109(b), which provides that a creditors' committee "may raise and may appear and be heard on any issue in a case [under Chapter 11]," gives a creditors' committee the unconditional right to intervene in a proceeding in federal district court which is "related to" a bankruptcy case. This question arises in the context of a lawsuit filed by Phar-Mor, Inc. against its auditors, thе accounting firm of Coopers and Lybrand ("Coopers"), alleging that Coopers failed to detect and/or was itself involved in a massive scheme to defraud Phar-Mor, a scheme so large that it forced Phar-Mor into bankruptcy once it came to light.
The lawsuit between Phar-Mor and Coopers had originally been filed in state court but was later removed to federal court, and the Unsecured Creditors' Committee of Phar-Mor (the "Committee") sought to intervene pursuant to Federal Rule of Civil Procedure 24. Both Phar-Mor and Coopers opposed the Committee's motion. The central issue before the district court on the motion was whether Sec. 1109(b) gave the Committee an absolute right to intervene in the lawsuit under Federal Rule of Civil Procedure 24(a)(1), which provides that a party shall be permitted to intervene when a statute of the United States confers an unconditional right to intervene. The Committee argued that Sec. 1109(b) gave it such a right, relying on this court's decision in In re Marin Motor Oil, Inc.,
Phar-Mor and Coopers responded that Sec. 1109(b) gave the Committee no right to intervene, and distinguished Marin. Section 1109(b), they contended, only applies to cases "under" Chapter 11, not those merely "related to" a Chapter 11 case; the Phar-Mor/Coopers lawsuit, which had been filed as a state common law civil action and then removed to federal court pursuant to 28 U.S.C. Sec. 1452, was in federal court only because it was "related to" a bankruptcy case. Phar-Mor and Coopers focussed on what they thought were two related, but distinct, limitations of Marin. First, they submitted, Marin held only that Sec. 1109(b) gave creditors' committees a right to intervene in "adversary proceedings," yet the lawsuit was not an adversary proceeding but a common law civil action in federal district court. Second, Phar-Mor and Coopers argued that Marin held only that the right to intervene extended to adversary prоceedings brought by a trustee "under" Chapter 11, and since the Phar-Mor/Coopers lawsuit did not arise "under" Chapter 11, but was merely "related to" a Chapter 11 case, Marin did not apply.
The district court agreed with Phar-Mor and Coopers, and denied the Committee's motion to intervene. We reverse. We conclude that the Phar-Mor/Coopers lawsuit is an adversary proceeding, and that, in light of Marin, Sec. 1109(b) gives a creditors' committee the right to intervene in an adversary proceeding, like the Phar-Mor/Coopers lawsuit, which is "related to" a bankruptcy case.
I. FACTS AND PROCEDURAL HISTORY
In July, 1992, Phar-Mor, one of the country's largest "deep-discount" drugstore chains, discovered that two of its executives, Michael Monus and Patrick Finn, had bilked it out of hundreds of millions of dollars. Believing that its auditors, Coopers, should have known what was going on, Phar-Mor sued Coopers in the Court of Common Pleas of Allegheny County (Pennsylvania) for fraud and malpractice, seeking in the neighborhood of $1 billion in damages.1 Later that day, Phar-Mor filed a voluntary petition for reоrganization under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Ohio.2 About two months later, Coopers removed the state fraud and malpractice action to the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. Sec. 1452(a), which allows a party to remove a cause of action "related to" a bankruptcy case from state court to federal district court.3 The case is currently pending in that court.
The Committee moved to intervene in the now-federal lawsuit claiming, among other things, that it had an unconditional right to intervene under Sec. 1109(b), which gives parties in interest an unconditional right to be heard on "any issue in a case under [Chapter 11]." The Committee argued that Sec. 1109(b) gives it such a right because this court had held in Marin that Sec. 1109(b) gives a creditors' committee an unconditional right to intervene in an adversary proceeding brought by a trustee in a Chapter 11 case. See
The Committee has timely appealed the district court's order denying the motion. We have jurisdiction because an order denying intervention of right is an appealable order. See Marin,
II. MARIN
Federal Rule of Civil Procedure 24(a)(1) provides that upon timely application anyone shall be permitted to intervene in an action "when a statute of the United States confers an unconditional right to intervene." Fed.R.Civ.P. 24(a)(1). Whether Sec. 1109(b) gives the Committee such an unconditional right to intervene in this litigation turns on our reading of Marin. As has been mentioned, this court held in Marin that Sec. 1109(b) gives a creditors' committеe an unconditional right to intervene in an adversary proceeding initiated by a trustee in a case under Chapter 11. In Marin, the debtor, Marin Motor Oil, Inc., filed a voluntary Chapter 11 petition and the trustee initiated two adversary proceedings--one to impose a constructive trust on a home bought with money borrowed from the debtor corporation by its owner, and another to pierce the debtor corporation's veil so as to extend the Chapter 11 proceedings to the Marins' other businesses and the Marins personally and bring the non-debtors' assets into the debtor's estate.
We rejected the trustee's argument, stating that Sec. 1109(b) gave parties in interest an "unqualified" right to be heard, and, therefore, the term "case" in Sec. 1109 includes any adversary proceeding instituted by a trustee under Chapter 11. Id. at 451. We viewed such an interpretation of Sec. 1109(b) not only as the one best supported by the legislative history, but also as the one that comported with the usual expectation of parties in interest "that they will have a right to be heard, ... by the tribunal adjudicating their interests." Id. at 450-51, 457.
Although a number of courts have agreed with Marin's interpretation of Sec. 1109(b), see In re Neuman,
The courts rejecting Marin have advanced three reasоns why Marin 's interpretation of the scope of Sec. 1109(b) is incorrect. First, Congress has consistently drawn a distinction between bankruptcy "cases" and "adversary proceedings" related to them in other parts of the bankruptcy statutory scheme. Second, courts have construed Rule 24(a)(1) narrowly; these courts have been reluctant to interpret statutes to grant an unconditional right to intervene to private parties. Third, Bankruptcy Rule 7024 and its accompanying advisory committee note indicate that Congress was aware of a distinction between cases and adversary proceedings and that Congress intended to differentiate between them in the context of intervention.6
According to the courts critical of Marin, these legislative and judicial developments indicate that Congress was aware of the distinction between adversary proceedings and cases, and deliberately did not extend the right to intervene to adversary proceedings. These courts believe that Congress intendеd that motions to intervene under Sec. 1109(b) would be controlled by Rule 24(a)(2) rather than Rule 24(a)(1).
A leading treatise on bankruptcy has also criticized Marin. Collier on Bankruptcy has taken the position that the Marin panel probably interpreted the legislative history of Sec. 1109(b) incorrectly, and that the case law holding that Sec. 1109(b) does not grant an automatic right to intervene under Rule 24(a)(1) "appears to be the better view." 9 Collier on Bankruptcy p 7024.03 (15th ed. 1993). According to that treatise, if Congress had meant for section 1109(b) to be so broadly construed, it would have used a word other than "case." 5 Id. p 1109.02. Collier has pointed out that since at least as far back as 1973, the Bankruptcy Rules drew a distinction between a "case" and a "proceeding." Id. A "case" is commenced by the filing of a petition under the Bankruptcy Code. Id. In contrast, any disputed matter within the case is either a contested matter, which is commenced by filing a motion, or an adversary proceeding, which is commenced by filing a complaint. Id. According to Collier, Congress must have been aware of the specialized use of the term "case" when it created Sec. 1109(b), and, by limiting Sec. 1109(b) intervention to "cases", Congress meant to allow intervention as of right only in those proceedings involving the administration of the bankruptcy case and not any disputed matter within the bankruptcy case.
Nevertheless, Marin remains binding precedent, and whether or not it is the better view, this Court's internal operating procedures bar us from overruling it. See I.O.P. 9.1.7 Recognizing this limitation on our review of Marin, Phar-Mor and Coopers seek to limit its reading, contending that the substantive right to intervene in adversary proceedings under Sec. 1109(b) recognized in Marin extends only to adversary proceedings brought "under" Chapter 11, not to common law malpractice actions "related to" a case under Chapter 11. They attempt to distinguish Marin by arguing that it merely held that the term "case" includes some adversary proceedings, but that since the adversary proceedings in Marin were procеedings "under" Chapter 11, the case said nothing about proceedings "related to" a Chapter 11 case. In their submission, a holding that the Committee has an absolute right to intervene in the Phar-Mor/Coopers litigation--a proceeding which, in their view, even if an adversary proceeding at all, is merely "related to" a bankruptcy case--would constitute an unwarranted extension of Marin.
We must decide whether the limitations on Marin that Phar-Mor and Coopers have advanced here are consistent with the principles underlying Sec. 1109(b) as interpreted by Marin. Both bases of limiting Marin that Phar-Mor and Coopers press here--the adversary proceeding/non-adversary proceeding distinction and the "related to"/"under" distinction--implicate some of the fundamental changes in bankruptcy jurisdiction that have occurred since this court decided Marin. Although these changes are familiar to many, they are essential background, and it is necessary to discuss them briefly before addressing Phar-Mor and Coopers' spеcific challenges to Marin 's reach.
III. BANKRUPTCY JURISDICTION SINCE MARIN
Marin was decided under the jurisdictional scheme put in place as part of the Bankruptcy Reform Act of 1978 ("1978 Act"), which revamped traditional bankruptcy jurisdiction. Until 1978, the federal district courts served as bankruptcy courts. For many years, however, the district courts had automatically referred bankruptcy cases to referees who issued final orders appealable to the district court. Under this system, bankruptcy referees played a dual role: deciding disputes and administering bankruptcies. There was dissatisfaction with this system and, in the 1978 Act, Congress eliminated the referee system and established a bankruptcy court as an adjunct to each district court. The Article I bankruptcy courts were given jurisdiction to hear and issue final decisions in proceedings "arising under title 11 or arising in or related to cases under title 11." 28 U.S.C. Secs. 1471(b), (c) (repealed 1984). These courts thus had the power to hear claims based on federal and state law.
In 1982, however, the Supreme Court declared the 1978 Act's grant of jurisdiction to the bankruptcy courts unconstitutional. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
Congress, however, failed to act by the time the stay expired. In order to avoid the total collapse of the bankruptcy system, the federal district courts adopted a model "Emergency Rule" as a local rule which went into effect on December 25, 1982. 1 Collier p 3.01[b].8 Under the Emergency Rule, Article III district judges exercised the entire scope of bankruptcy jurisdiction. The Emergency Rule allowed the district courts to refer bankruptcy cases to bankruptcy judges for final decision, subject to appeal to the district court. The bankruptcy judges could not, however, make final decisions on matters that were merely "related to" bankruptcy cases (unless the parties consented). "Related to" cases included traditional state law causes of action like those involved in the Marathon decision.
In July 1984 Congress enacted the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 ("BAFJA"), which in many respects codified the Emergency Rule. The BAFJA provided that jurisdiction would be exercised in the first instance by the district court. The district courts could then refer bankruptcy cases to the bankruptcy courts. As before, the referral generally would occur automatically as provided by either local rule or a general order of reference. See 28 U.S.C. Sec. 157.9
In order to satisfy the concerns of Marathon, the BAFJA introduced a new distinction into the jurisdictional scheme: "core" and "non-core" proceedings. See 28 U.S.C. Sec. 157(b). Today, proceedings "arising under" title 11 or "arising in" title 11 cases are "core." See, e.g., Barnett v. Stern,
Against this background, we now address the two bases on which Phar-Mor and Coopers ask us to distinguish Marin. We turn first to the contention that Marin does not reach the Phar-Mor/Coopers lawsuit because the lawsuit is not an adversary proceeding.
IV. IS THE PHAR-MOR/COOPERS LAWSUIT AN ADVERSARY PROCEEDING?
Phar-Mor and Cоopers have argued vigorously that because their lawsuit is simply a state law civil action removed to federal court solely because it was "related to" a bankruptcy case, it is not an "adversary proceeding," and that, consequently, Marin does not apply. We disagree, and hold that the Phar-Mor/Coopers lawsuit is an adversary proceeding.
The analysis is straightforward. Bankruptcy Rule 7001 identifies which proceedings are to be considered "adversary proceedings" (as opposed to "contested matters"). Bankruptcy Rule 7001(10) states that an adversary proceeding "is a proceeding ... (10) to determine a claim or cause of action removed pursuant to 28 U.S.C. Sec. 1452." Fed.R.Bank.P. 7001(10).10 Since the Phar-Mor/Coopers lawsuit was removed pursuant to Sec. 1452,11 it is an adversary proceeding.
Of course, this conclusion is correct only if the Bankruptcy Rules, rather than the Federal Rules of Civil Procedure, apply to the Phar-Mor/Coopers lawsuit. We believe, however, that they do apply even though this case is not a core proceeding and is not in bankruptcy court. The Federal Rules of Civil Procedure "govern the procedure in the United States District Courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81." Fed.R.Civ.P. 1. Rule 81 makes an exception for bankruptcy proceedings. See Fed.R.Civ.P. 81(a)(1) ("These rules do not apply to ... proceedings in bankruptcy ... except in so far [sic] as they may be made applicable thereto by rules promulgated by the Supreme Court of the United States."). At first glance, then, these rules seem to indicate that the Federal Rules of Civil Procedure do not apply to the Phar-Mor/Coopers lawsuit because federal jurisdiction over the lawsuit is based solely on bankruptcy jurisdiction under Sec. 1334, and is, therefore, a proceeding in bankruptcy.
Unfortunately, the matter is not that simple. When Rule 81 was promulgated, the Bankruptcy Act of 1898 ("1898 Act") governed bankruptcy proceedings. At that time, the term "proceedings" referred only to matters arising directly from the substantive provisions of the bankruptcy law analogous to core proceedings ("summary matters") but not to matters related to a bankruptcy case analogous to non-core proceedings ("plenary matters"). See Diamond Mortg. Corp. v. Sugar,
Marathon and the BAFJA, however, revived the distinction between matters involving substantive bankruptcy law and those that are "related to" a bankruptcy case, a distinction similar to the summary/plenary distinction existing before the 1978 Act. An argument could therefore bе made that the Federal Rules of Civil Procedure should govern non-core, "related to" proceedings just as they governed plenary matters before 1978. But courts have rejected such an argument largely because it is incompatible with the policies underlying the BAFJA. Diamond,
To find that the Federal Rules of Civil Procedure govern non-core, "related to" proceedings while the Bankruptcy Rules govern core (or "arising under") proceedings would create "a cumbersome dual procedural process ... whereby every time an adversary proceeding is commenced, the plaintiff would have to determine whether the underlying action is 'core' or 'non-core' and follow the applicable set of procedural rules." Windsor,
Analysis of the Bankruptcy Rules supports this conclusion. To begin with, nothing in the current Bankruptcy Rules specifically limits them to cases before the bankruptcy courts. Indeed, the amendment history of the Bankruptcy Rules indicates that they apply to proceedings before federal district courts. Before 1987, Bankruptcy Rule 1001, which defines the scope of the Bankruptcy Rules, stated that "[t]he Bankruptcy Rules and Forms govern procedure in United States Bankruptcy Courts in cases under chapters 7, 9, 11 and 13 of title 11 of the United States Code" (emphasis supplied). In 1987, the "in United States Bankruptcy Courts" language was removed; and Bankruptcy Rule 1001 now provides that "[t]he Bankruptcy Rules and Forms govern procedure in cases under title 11 of the United States Code." The advisory committee explained that the amendment in 1987 "makes the Bankruptcy Rules applicable to cases and proceedings under title 11, whether before the district judges or the bankruptcy judges of the district." Fed.R.Bank.P. 1001 advisory committee note (1987).
A similar amendment was made to Rule 7001. Prior to 1987, Rule 7001 described adversary proceedings as proceedings "in a bankruptcy court." Fed.R.Bank.P. 7001 (1986). That language was excised from Bankruptcy Rule 7001 in 1987 and the current version contains no such limitation. See Fed.R.Bank.P. 7001 (1993); Diamond,
Furthermore, we believe that nothing in the Bankruptcy Rules, and in Bankruptcy Rule 7001 in particular, suggests that the rules are limited to сore (as opposed to non-core, "related to") proceedings.14 To the contrary, the language of Bankruptcy Rule 7001 apparently reaches non-core, "related to" proceedings, including Bankruptcy Rule 7001(1), which covers "a proceeding ... to recover property," Fed.R.Bankr.P. 7001(1), and Bankruptcy Rule 7001(10), which, as has been mentioned, includes civil actions removed pursuant to Sec. 1452. See Diamond,
The conclusion that the Bankruptcy Rules govern non-core proceedings in district courts is not a novel one. For example, courts have consistently held that Bankruptcy Rule 7004 (nationwide service of process) applies to both core and non-core proceedings, including non-core, "related to" proceedings before federal district courts. See Diаmond,
We conclude, then, that the Bankruptcy Rules govern non-core, "related to" proceedings before a district court like the Phar-Mor/Coopers lawsuit, and, hence, our reliance on Part VII of those rules to characterize the Phar-Mor/Coopers litigation is appropriate. According to Bankruptcy Rule 7001(10), the Phar-Mor/Coopers lawsuit, which was removed pursuant to Sec. 1452, is an adversary proceeding. Thus, to the extent that one of the requirements of Marin is that the Phar-Mor/Coopers lawsuit be an adversary proceeding, it has been met. We now consider whether Sec. 1109(b) as interpreted by Marin applies to an adversary proceeding like the Phar-Mor/Coopers litigation which is a non-core, "related to" adversаry proceeding before the district court.15
V. DOES MARIN EXTEND TO ADVERSARY PROCEEDINGS "RELATED TO" A
BANKRUPTCY CASE?
Phar-Mor and Coopers argue that, even assuming that their lawsuit is an adversary proceeding, Marin interpreted Sec. 1109(b) to apply only to adversary proceedings "under" Chapter 11 (core proceedings), and not to adversary proceedings "related to" a case under Chapter 11 (non-core proceedings). Since their lawsuit is merely a non-core, "related to" proceeding, they submit that, even after Marin, Sec. 1109(b) still does not apply. We disagree.
First, Phar-Mor and Coopers can point to nothing in Marin itself indicating that the decision was limited to adversary proceedings "under" (i.e., "arising under") Chapter 11.16 This is understandable because, when Marin was decided, there was no relevant difference between adversary proceedings that were "under" Chapter 11 and those that were "related to" Chapter 11. At the time of the decision, bankruptcy judges had jurisdiction under the 1978 Act to issue final decisions on proceedings "under" and "related to" title 11. Sеe 28 U.S.C. Sec. 1471(b) (repealed 1984). To be sure, the importance of the "under" and "related to" distinction was known at the time Marin was decided: Marin was filed on September 29, 1982; Marathon had been decided on June 28, 1982,
The Marathon judgment, however, was stayed until October 4, 1982.
Second, the facts in Marin would seem to foreclose the argument Phar-Mor and Coopers press here, because Marin itself may hаve extended the right to intervene to an adversary proceeding that was merely "related to" a Chapter 11 case. As we mentioned supra, there were two adversary proceedings at issue in Marin. Marin,
This adversary proceeding, in short, appears to have been a complaint filed by the debtor corporation to pierce its own corporate veil to reach the assets of the Marins.18 Yet actions by a creditor to pierce the corporate veil, or alter ego actions against the debtor corporation, are often considered non-core, "related to" proceedings. See Davis v. Merv Griffin Co.,
Moreover, although the proceeding in Marin differed from typical alter ego actions because it involved a claim in which the debtor corporation was piercing its own veil, some courts have stated that such actions are also non-core, "related to" proceedings. See In re Julien Company,
Third, even assuming that both adversary proceedings in Marin would today be considered "core" proceedings, the principles embodied in Sec. 1109(b), as interpreted by Marin, suggest that Sec. 1109(b) reaches "related to" proceedings. Marin recognized that Sec. 1109(b) was an important counterweight to the power of the debtor-in-possession during reorganization. When the debtor-in-possession is a corporation, it normally retains possession of the corporation and acts through its officers and directors or management. See 11 U.S.C. Sec. 1107(a). Under the 1978 Act, the courts have been relieved of most administrative matters, and the responsibility for monitoring the operations of the debtor and its compliance with appropriate bankruptcy procedures has fallen largely to the creditors' committee (although the United States Trustee has some role). See George M. Treister et al., Fundamentals of Bankruptcy Law 397 (ALI/ABA 1993).
Section 1109(b) is an important monitoring tool at the disposal of the creditors' committee. Intervention under that section appears to be appropriate to the extent it will: (1) minimize the need for extensive judicial oversight, (2) speed the debtor's successful reorganization, and (3) allow the creditors' committee to exert enough leverage on the debtor-in-possession so that the debtor-in-possession does not use its extensive flexibility and discretion in a Chapter 11 reorganization to compromise the creditors' interests. In short, interests of efficiency and fair play underlie Sec. 1109(b), and the driving force behind the Marin decision was the belief that allowing intervention into adversary proceedings would best serve those interests. See Marin,
There is no reason to think that the interests underlying Sec. 1109(b) are limited or should be limited by the jurisdictional limitations imposed on the bankruptcy courts as a result of the Marathon decision. The basic problem with the position taken by Phar-Mor and Coopers is that they are trying to use a jurisdictional distinction of "under" and "related to," a distinction shaped by concerns over federalism and separation of powers, to create a limitation on a right to intervene which is defined by concerns over efficiency and fair play. To deny a creditors' cоmmittee the right to intervene for no other reason than the jurisdictional changes since Marin would be unwise. It would allow Phar-Mor and Coopers to take advantage of fortuitous changes in the allocation of responsibility between the district and bankruptcy courts to create a limitation on a creditors' committee's right to be heard wholly without regard to a creditors' committee's interest in counterbalancing a debtor-in-possession's power in a reorganization.
For the foregoing reasons, we hold that Sec. 1109(b) as interpreted by Marin allows creditors' committees to intervene in non-core, "related to" proceedings pending in a federal district court.21 This conclusion is consistent with other courts' interpretations of the reach of Marin. See In re Allegheny International, Inc.,
VI. CONCLUSION
Consistent with the Marin decision, with other courts' interpretations of the reach of Marin (although some may disagree with the result), and the general goals underlying bankruptcy jurisdiction and Sec. 1109(b), we conclude that Sec. 1109(b) as interpreted by this Court in Marin gives a creditors' committee an unconditional right to intervene in a non-core, "related to" proceeding bеfore a federal district court. We therefore hold that the Committee has a right to intervene in the Phar-Mor/Coopers lawsuit currently pending in the Western District of Pennsylvania. The order of the district court denying the Committee the right to intervene will be reversed, and the matter remanded to that Court with directions to enter an order permitting intervention.
RESTANI, Judge, United States Court of International Trade, concurring.
I concur in the result, as In Re Marin Motor Oil, Inc.,
Notes
(Pursuant to Rule 12(a), F.R.A.P.)
(Per Court's 10/21/93 Order)
Roth, J., would grant rehearing
The Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation
According to Phar-Mor, the current damage estimates range from $883 million to $1.15 billion
In re Phar-Mor, Inc., Case No. 92-41599, is currently pending in the United States Bankruptcy Court for the Northern District of Ohio
A number of other cases brought against Coopers for its involvement with Phar-Mor are currently pending before various federal courts. About twenty-three of these cases have been consolidated for pretrial purposes in the District Court for the Western District of Pennsylvania pursuant to transfer orders of the Judicial Panel of Multidistrict Litigation. See, e.g., In re Phar-Mor, Inc. Sec. Litig., MDL-959 (J.P.M.L. February 17, 1993)
The Committee also argued that even if Sec. 1109(b) did not give it an absolute right to intervene, it still had a right to intervene either under Federal Rule of Civil Procedure 24(a)(2), which allows intervention to someone who has an interest in a proceeding which is not adequately protected by the parties already in the lawsuit, or under Federal Rule of Civil Procedure 24(b), which gives the court discretion to grant intervention upon a timely motion when there is a common question of law or fact and granting intervention will not unduly delay or prejudice the parties already in the lawsuit. The district court rejected both of these bases for intervention. Because of our decision on the Rule 24(a)(1) issue, we need not reach them
The term "case" refers to the general administrative proceedings in bankruptcy--that is, the actual bankruptcy case filed under the Bankruptcy Code
Bankruptcy Rule 7024 provides that "Rule 24 F.R.Civ.P. applies in adversary proceedings." The advisory committee note provides that:
A person may seek to intervene in the case under the Code or in an adversary proceeding relating to a case under the Code. Intervention in a case under the Code is governed by Rule 2018 and intervention in an adversary proceeding is governed by this rule. Intervention in a case and intervention in an adversary proceeding must be sought separately.
Fed.R.Bankr.P. 7024, advisory committee note.
Phar-Mor and Coopers are of course free to seek its overruling by filing a petition for rehearing in banc or for certiorari. They have preserved their position by maintaining before us that Marin was wrongly decided
This Court adopted a rule which tracked the language of the model Emergency Rule. See Cooper-Jarrett, Inc. v. Central Transport, Inc.,
In the District Court for the Western District of Pennsylvania, referral is accomplished by the General Order of Reference dated October 16, 1984, which provides that "any or all cases under Title 11 and any or all proceedings arising under Title 11 or arising in or related to a case under Title 11 ... are referred to the Bankruptcy Judges of this district for consideration and resolution consistent with law."
Section 1452 allows removal of civil actions arising under, arising in or related to a bankruptcy case. See 28 U.S.C. Secs. 1452 & 1334. It is essentially undisputed that removal pursuant to Sec. 1452 was appropriate because the Phar-Mor/Coopers lawsuit will have a direct and substantial impact on the size of Phar-Mor's asset pool available for distribution to creditors and therefore is "related to" the bankruptcy case pending in Ohio. See Maritime Elec. Co. v. United Jersey Bank,
We note that once the district court found that removal was appropriate under Sec. 1452, it should have referred the lawsuit to the bankruptcy court in the Western District of Pennsylvania pursuant to the General Order of Reference of October 16, 1984. Such reference should have been automatic since the General Order does not state that the bankruptcy case must be pending in the Western District of Pennsylvania, only that it must be related to a case under title 11. Thus, the case should have been docketed in the bankruptcy court in Pittsburgh as an adversary proceeding and given an adversary proceeding number. See Fed.R.Bank.P. 7010 form 16C. Afterwards, the district court could have withdrawn the reference for cause. 28 U.S.C. Sec. 157(d); e.g., Rota v. Swindler, Civ.A. No. 90-6304, Bankr. No. 88-14333S,
For some reason, however, the district court simply retained the lawsuit on its docket. In a sense, then, the Phar-Mor/Coopers lawsuit is improperly before the district court. But when a district court retains a case that should have been referred to the bankruptcy court, it is treated as if there had been a proper withdrawal of reference. See Anderson v. Federal Deposit Ins. Co.,
Rule 81 has not been substantively amended since 1971 despite the intervening changes in bankruptcy jurisdiction. Technical amendments were made in 1987 but, according to the advisory committee's note, no substantive change was intended
Another argument that could be made to support the application of the Bankruptcy Rules to the Phar-Mor/Coopers lawsuit is that the Supreme Court's decision not to amend the language "proceedings in bankruptcy" in Rule 81(a)(1) (or to indicate in the Bankruptcy Rules that they are limited to cases "arising under" thе Bankruptcy Code) in light of the significant changes to bankruptcy law brought about by the BAFJA reflects the Court's intent to preclude application of the Federal Rules of Civil Procedure to any proceeding, whether core or non-core. See Diamond,
Phar-Mor and Coopers have argued that the Bankruptcy Rules do not reach proceedings related to a title 11 case because Bankruptcy Rule 1001 says that the Bankruptcy Rules "govern procedure in cases under title 11 of the United States Code." We do not believe that this language means what Phar-Mor and Coopers suggest. It says nothing about applying only to cases "arising under" or "arising in." Indeed Phar-Mor and Coopers apparently concede that the Bankruptcy Rules govern cases "arising in" title 11, but the "cases under" language does not seem to include those cases more obviously than cases "related to" title 11. That is not to say that we believe the language clearly encompasses "related to" cases, but rather that it does not foreclose the possibility
We also find no merit in Phar-Mor's contention that the use of the Bankruptcy Rules to help identify whether the Phar-Mor/Coopers lawsuit is an adversary proceeding for purposes of intervention under Sec. 1109(b) would expand a substantive right, something impermissible under the enabling statute, see 28 U.S.C. Sec. 2075. Such an argument is question begging, for it assumes that the scope of Sec. 1109(b) does not include adversary proceedings like the Phar-Mor/Coopers lawsuit
Phar-Mor and Coopers have taken the position that the panel in Marin explicitly limited the scope of the decision to adversary proceedings "arising under" Chapter 11. They point to language in the opinion in which the court emphasized that the term "this chapter" as used in Sec. 1109(b) referred to cases under Chapter 11. See
The other proceeding--to impose a constructive trust on the Marins' house--appears to have been a proceeding to determine, avoid, or recover fraudulent conveyances, which would be a core proceeding under 28 U.S.C. Sec. 157(b)(2)(H)
The adversary proceeding might have been styled as a "substantive consolidation" (consolidation of more than a single debtor, or a debtor and non-debtor, into a single estate pursuant to the equity powers of the bankruptcy court), in which case it might have been a core proceeding under 28 U.S.C. Sec. 157(b)(2)(A) (administration of the estate). However, Marin does not mention that the proceeding was a substantive consolidation, and a substantive consolidation is typically handled as a contested matter not as an adversary proceeding. See, e.g., In re Augie/Restivo Baking Co. Ltd.,
The Second Circuit has suggested that an alter ego action brought by a trustee against third parties to a bankruptcy proceeding is a core proceeding. St. Paul Fire and Marine Ins. Co. v. PepsiCo, Inc.,
It may seem strange to allow a corporation to pierce its own veil, since it cannot claim to be either a creditor that was deceived or defrauded by the corporate fiction, or an involuntary tort creditor. In some states, however, piercing the corporate veil and alter ego actions are allowed to prevent unjust or inequitable results; they are not based solely on a policy of protecting creditors. See, e.g., Bucyrus-Erie Co. v. General Prod. Corp.,
We also do not believe that United States v. Nicolet, Inc.,
This conclusion is also consistent with the interpretation of Marin in leading treatises. See 9 Collier p 7024.03 ("Some courts have read section 1109(b) as granting an unconditional right to intervene to a section 1109(b) party in interest and have allowed intervention in adversary proceedings under Rule 24(a)(1), reasoning that the reference to 'case' in section 1109(b) encompasses adversary proceedings arising in or related to the bankruptcy case." (citing Marin ) (emphasis supplied)); see also Treister et al., Fundamentals of Bankruptcy Law, at 399 (Marin recognizes an unconditional right of a creditors' committee to intervene in matters "affecting the estate")