In re Amdura Corp.

130 B.R. 575, 25 Collier Bankr. Cas. 2d 813, 8 Colo. Bankr. Ct. Rep. 211, 1991 Bankr. LEXIS 1234, 22 Bankr. Ct. Dec. (CRR) 17
CourtDistrict Court, D. Colorado
DecidedAugust 22, 1991
DocketBankruptcy Nos. 90 B 03811 E, 90 B 03812 E, 90 B 03813 D, 90 B 03814 D, 90 B 03815 J and 90 B 03816 E
StatusPublished

This text of 130 B.R. 575 (In re Amdura Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Amdura Corp., 130 B.R. 575, 25 Collier Bankr. Cas. 2d 813, 8 Colo. Bankr. Ct. Rep. 211, 1991 Bankr. LEXIS 1234, 22 Bankr. Ct. Dec. (CRR) 17 (D. Colo. 1991).

Opinion

OPINION AND ORDER ON MOTION TO CERTIFY CLASS

CHARLES E. MATHESON, Chief Judge.

Saul Jones, Amtax Company, Inc., Michael Malone and Arleen Gayl (“Claimants”) have filed in this Court a Proof of Claim on behalf of themselves and on behalf of a class composed of individuals who purchased stock of Amdura Corporation (“Amdura”) during a limited period of time prior to the filing by Amdura of its Chapter 11 petition in this Court. In pursuit of that class claim, the Claimants filed a motion pursuant to Federal Rule of Bankruptcy Procedure 9014 seeking an order certifying a class and designating the Claimants as representatives of the class. The Debtor has objected to that motion and has challenged the right of the Claimants to file a class proof of claim in this bankruptcy proceeding.

In its opinion in In re Standard Metals Corp., 817 F.2d 625 (10th Cir.1987), the Tenth Circuit Court of Appeals held, in a split decision, that a proof of claim may not be filed by class representatives on behalf [576]*576of a class of claimants. The Claimants and the Securities and Exchange Commission (“Commission”) have argued to this Court that the Standard Metals opinion on this issue is, at best, only dicta and not binding on this Court. Thus, the threshold issue that must be addressed in ruling on the Claimants’ motion for class certification is the precedential effect of the Standard Metals opinion.

The confusion concerning the prece-dential effect of the Standard Metals opinion arises because of the subsequent opinion issued by the Tenth Circuit in Sheftelman v. Standard Metals Corp., 839 F.2d 1383 (10th Cir.1987), and because of certain unpublished orders issued by the Tenth Circuit in connection with the latter opinion. In order to properly analyze the status of the Standard Metals decision, there must be some examination of the opinions and the peripheral orders.

The Standard Metals opinion arose out of orders entered in the underlying bankruptcy case for the debtor, Standard Metals Corporation. In that proceeding, Mr. Shef-telman filed a proof of claim on his own behalf and on behalf of a class comprised of certain persons who had purchased bonds issued by a subsidiary of Standard Metals. The debtor objected to the claim on the grounds that it had not been timely filed and on the additional ground that class claims could not be filed in a bankruptcy case.

The objection to Mr. Sheftelman’s claim was set for hearing by the bankruptcy court. In the interim, there was some skirmishing between the parties on discovery issues. The result was that at the hearing on the objections to Mr. Sheftelman’s claim the bankruptcy court dismissed the claim as a sanction for Mr. Sheftelman’s failure to comply with certain discovery orders. The court also held that the Sheftelman claim had not been timely filed and that, in any event, class claims could not be filed in bankruptcy proceedings. In re Standard Metals Corp., 48 B.R. 778 (Bankr.D.Colo.1985). On the appeal of those orders, the district court affirmed without reaching the class claim issue.

In the Tenth Circuit, Mr. Sheftelman argued that the bankruptcy court had erred in dismissing his personal claim as a discovery sanction. He also argued that class claims are permissible in bankruptcy and that the bondholders had not received proper notice of the bankruptcy proceeding. The Circuit Court affirmed the dismissal of Mr. Sheftelman’s claim as a discovery sanction. Having done so, the court concluded that it was necessary to consider the class claim issue even though it had not been considered by the district court. The Circuit Court then held that it is not permissible to file class claims in bankruptcy. In re Standard Metals Corp., supra, 817 F.2d at 630. The court, however, declined to address the notice issues, finding that Mr. Sheftelman did not have standing to raise those issues on behalf of the bondholder class. Ibid, 817 F.2d at 631.

After the court issued its opinion, the Commission, as a party in interest pursuant to 11 U.S.C. § 1109(a), sought rehearing on the notice issue. The court granted the Commission’s motion by way of an unpublished order which specified that the rehearing was to be limited to the question of whether the bondholders had received adequate notice of the bankruptcy. Ultimately, the court issued its opinion holding that the debtor was required to give specific notice to the bond purchasers of the bankruptcy filing and that a new bar date should be established giving the bondholders the opportunity to file claims. Sheftelman v. Standard Metals, supra, 839 F.2d at 1387.

Although the court had ordered that, on rehearing, the issues were to be limited to those concerning the adequacy of notice to the bondholders, the court, nonetheless, also proceeded to consider again the propriety of the bankruptcy court’s order dismissing Mr. Sheftelman’s claim as a discovery sanction. That order was affirmed without reference to the court’s prior opinion in the Standard Metals case.

Having dealt with the notice issue, and also with the sanctions issue, the court in the Sheftelman opinion then stated:

[577]*577In view of the disposition of this appeal, it is not necessary to consider the class action claims issue. The district court and the bankruptcy court holdings and orders are reversed insofar as they did not require that notice be given to the bondholders of the described issue and did not set a new bar date for claims. The orders are affirmed insofar as sanctions ordered against Mr. Sheftelman. Sheftelman, supra, 839 F.2d at 1387.

The class claimants in the instant case focus, not surprisingly, on the language in the Sheftelman opinion where the court stated that “In view of the disposition of this appeal it is not necessary to consider the class action claims issue.” They argue that this language indicates a clear intent on the part of the Tenth Circuit panel to withdraw its opinion in Standard Metals on the class claims issue. Having examined the matter, this Court now concludes that the class claims holding in Standard Metals was not modified or withdrawn in Sheftelman and that it was, and remains the holding of the Tenth Circuit panel that class claims are not permissible in bankruptcy.

This Court’s conclusion is forced from an analysis of why the Circuit Court examined the class claim issue in the first instance. It did so in reliance on its prior opinion in the case of Reed v. Heckler, 756 F.2d 779 (10th Cir.1985) and out of concern for the effect on the class of the dismissal of Mr. Sheftelman’s personal claim.

The court in Standard Metals stated its view, as expressed in Reed, supra, that the dismissal of Mr. Sheftelman’s personal claim as a discovery sanction did not dispose of the class claim. There still remained the question of whether a class should have been certified. The court stated:

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130 B.R. 575, 25 Collier Bankr. Cas. 2d 813, 8 Colo. Bankr. Ct. Rep. 211, 1991 Bankr. LEXIS 1234, 22 Bankr. Ct. Dec. (CRR) 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-amdura-corp-cod-1991.