Written by Daniel N. Brogan
A recent decision by Judge Sontchi for the Bankruptcy Court for the District of Delaware in Paragon Litigation Trust v. Noble Corp. plc (In re Paragon Offshore, plc, et al.), Adv. Proc. No. 17-51882 (CSS) [D.I. 168] (Bankr. D. Del. Mar. 11, 2019) (“Paragon”) holds that significant Supreme Court precedent does not preclude bankruptcy courts from entering final orders on fraudulent transfer claims brought against a defendant that has not asserted a claim against the debtor’s estate. The opinion is contrary to prior decisions in the Ninth Circuit and the Southern District of New York, creating the likelihood that the issue will be addressed on appeal. The decision also addresses a party’s potential implied consent to final determination by a bankruptcy court.
In Paragon, a post-confirmation litigation trust (the “Trust”) sued Noble Corporation plc (“Noble”) asserted several causes of action, including five fraudulent transfer claims, against Noble. The debtors commenced their bankruptcy cases in February 2016. Shortly after the petition date, the debtors proposed a plan (the “Failed Plan”) incorporating a settlement between Noble and the Debtors (the “Settlement Agreement”) that provided for broad releases of the estates’ claims against Noble. The effectiveness of the releases was conditioned on bankruptcy court approval of the Settlement Agreement and effectiveness of the Failed Plan. In November 2016, the bankruptcy court denied confirmation of the Failed Plan. The debtors then proposed a new plan (the “Confirmed Plan”) that did not incorporate the Settlement Agreement, which was confirmed in June 2017. Noble provided input into the drafting of the Confirmed Plan, and it did not object to inclusion of a provision granting the bankruptcy court exclusive jurisdiction to adjudicate claims vested in the litigation trust (the “Trust”) created under the Confirmed Plan.
Subsequently, the Trust filed an adversary proceeding against Noble and other defendants (collectively, the “Defendants”). In response, the Defendants filed a motion to determine the bankruptcy court’s jurisdiction, arguing that the bankruptcy court lacked constitutional authority to finally adjudicate the claims, including the fraudulent transfer claims. Relevantly, the Defendants argued that, under the Supreme Court’s decisions in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) (“Granfinanciera”) and Stern v. Marshall, 564 U.S. 462 (2011) (“Stern”) the bankruptcy court lacked constitutional authority to issue final orders when a debtor (or its successor-in-interest) files a fraudulent transfer claim against a defendant that has not filed a claim in the underlying bankruptcy case.
As a threshold matter, Judge Sontchi held that Noble did not implicitly consent to entry of final orders by the bankruptcy court on the fraudulent transfer claims by either entering into the failed Settlement Agreement or not objecting to the Confirmed Plan’s jurisdictional retention provisions.
Judge Sontchi then focused on whether Granfinanciera and Stern controlled. In Granfinanciera, the Supreme Court held that a party with no claim against a bankruptcy estate has a right to a jury trial when sued by a trustee to recover an allegedly fraudulent transfer. Judge Sontchi distinguished Granfinanciera reasoning that the issue there was not Article III authority, but rather the right to a jury trial under the 7th Amendment. Next, he addressed Stern and concluded that it was not controlling because the issue there—a bankruptcy court’s constitutional authority to finally resolve a state law counterclaim that is not necessarily resolved in the proof of claim process—was not before the Court in Paragon. Having concluded that neither Granfinanciera nor Stern controlled, Judge Sontchi rejected the Defendants’ arguments that would have him extend—rather than apply—the holdings of those cases.
Judge Sontchi did acknowledge that other courts, including the Ninth Circuit and three judges in the Southern District of New York, have reached the opposite conclusion and held that Stern extended Granfinanciera to the Article III context. In disagreeing, Judge Sontchi noted that in Executive Benefits Insurance Agency v. Arkison, 573 U.S. 25 (2014), the Supreme Court indicated ambiguity on the issue by expressly assuming, without deciding, that fraudulent transfer claims were Stern claims.
The Paragon opinion provides litigants with important takeaways on how Stern issues may be addressed by bankruptcy courts in Delaware. First, parties entering into a settlement agreement and submitting it for approval do not necessarily implicitly consent to the bankruptcy court’s final adjudication of claims addressed by the settlement agreement. Likewise, the failure to object to an exclusive jurisdiction provision in a plan does not constitute implicit consent to the bankruptcy court’s constitutional authority—even where a party is an active participant in formulating the plan. Finally, the Paragon decision opens the door, for the time being, for fraudulent transfer claims to be finally adjudicated by bankruptcy courts in Delaware, even where the defendant has not filed a proof of claim. Given that the decision creates a split in authority, the ruling may see further clarification or possible reversal on appeal; a motion for leave to appeal is presently pending in the United States District Court for the District of Delaware as Case No. 19-00078 (LPS).
A copy of the opinion can be found here.