Opinion analysis: Justices preserve lender prerogatives in bankruptcy auction dispute
on May 30, 2012 at 12:28 pm
After the swirl of controversy in the lower courts, the Court’s disposition of RadLAX Gateway Hotel, LLC v. Amalgamated Bank is markedly anticlimactic. The case presents a question that seems so common that the answer should be obvious: when a bankruptcy court auctions the collateral of a secured creditor, does the secured creditor have to bid with cash, or can it instead offset whatever it bids with a credit against its debt? Those kinds of auctions have been routine in reorganizations in Chapter 11 (the bankruptcy code provisions that govern large business cases) since the Court’s 1999 decision in 203 N. LaSalle emphasized the importance of using open-market procedures to test the value of collateral. Lenders strongly prefer credit bids, because they need not advance cash to maintain control of the collateral. Debtors want to ban credit bids, because it makes it much easier for somebody other than the lender to acquire the collateral.
It was clear from the oral argument that the Justices found the position of the lenders intuitively appealing, and were deeply troubled by the idea that a lender might lose its collateral if it was unable to produce cash with which to bid in the bankruptcy auction. Those concerns were reflected in the Court’s unanimous opinion, which contained an early footnote emphasizing that the right to bid with credit (instead of cash) is “particularly important” to the federal government, “which often lacks appropriations authority to throw good money after bad in a cash-only bankruptcy auction.”
But the reasoning of the Court’s succinct opinion was relentlessly textual. The Court started from the parties’ disagreement about the relation between clauses (ii) and (iii) of Section 1129(b)(2)(A), and quickly dismissed as “hyperliteral and contrary to common sense” the debtor’s argument that the clauses should be viewed as entirely separate. For the Court, clause (ii) plainly required a right to credit bid in bankruptcy auctions. The “catch-all” option to pay the “indubitable equivalent” of the collateral under clause (iii) could not plausibly be read to permit an auction that barred credit bidding.
Aside from the loose reference to “common sense,” the Court’s opinion justifies the decision entirely as an example of a general textual problem: when a specific prohibition contradicts a broad and general permission. In this frame of reference, that setting always requires elevation of the specific prohibition over the general permission, to prevent the absurd “superfluity” of the specific provision.
The opinion closes with a typically Scalian peroration of the evils of sinking to reliance on “generalized statutory purpose” and the “merits” of particular procedures. The Court, the opinion explains, should avoid policy “debates” about the “pros and cons” of the issues before it, because bankruptcy is an “expansive” and “sometimes unruly” area of law. It portrays a sense of relief to have “easy” cases like this one, grounded entirely in an antiseptic reading of the “clear” and “predictable” text before the Court. I will leave for readers to judge for themselves whether all of Scalia’s colleagues, or even Scalia himself, found the text so completely dispositive as this flourish suggests.
PLAIN ENGLISH SUMMARY: RadLAX Gateway Hotel v. Amalgamated Bank considers the procedures that apply when a bankrupt company wants to sell a major asset –in this case, a hotel. The lender that has a mortgage on the asset argues that it has a right to take the asset if it goes unpaid. The borrower argues that the asset should be sold and that the lender gets the asset only if it is willing to pay the most for it. The lender says this is ridiculous, because it requires the lender to put in new cash to buy an asset for which it already has an unpaid loan. The Court agreed with the lender.
