In re C.P. Hall Co.

750 F.3d 659, 71 Collier Bankr. Cas. 2d 1562, 2014 WL 1628119, 2014 U.S. App. LEXIS 7741, 59 Bankr. Ct. Dec. (CRR) 109
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 24, 2014
DocketNo. 13-1306
StatusPublished
Cited by20 cases

This text of 750 F.3d 659 (In re C.P. Hall Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re C.P. Hall Co., 750 F.3d 659, 71 Collier Bankr. Cas. 2d 1562, 2014 WL 1628119, 2014 U.S. App. LEXIS 7741, 59 Bankr. Ct. Dec. (CRR) 109 (7th Cir. 2014).

Opinion

POSNER, Circuit Judge.

The question presented by this appeal is whether a nonparty to a bankruptcy proceeding should be entitled to intervene in [660]*660the proceeding. Hall, the debtor in bankruptcy, is a former distributor of asbestos and asbestos products. It quit that imperiled business in the mid-1980s but continued in corporate existence as a litigation shell. Tens of thousands of separate asbestos claims were filed against it. It sought to shift as much of the cost as possible to its liability insurers; and not until 2011 was it forced to declare bankruptcy, initially under Chapter 11 but the bankruptcy proceeding was later converted to Chapter 7 and a trustee was appointed.

Hall had $10 million remaining in insurance coverage from one of its insurers, itself bankrupt, called Integrity. But there was a question whether Integrity’s policy actually covered the loss for which Hall was seeking indemnity under the policy. The parties agreed to settle for $4,125 million, and the bankruptcy judge, whose approval was necessary for the settlement to be valid, approved it.

Enter Columbia Casualty Company, the appellant. Columbia is not a creditor of Hall, but rather an excess insurer of Hall’s asbestos liabilities, with maximum coverage of $6 million. It worries that Hall, by virtue of having settled its insurance claim against Integrity rather than persisting in the litigation in the hope of obtaining indemnity of the full $10 million, has increased the likelihood of Columbia’s having to honor its secondary-coverage obligation. It therefore filed an objection to the settlement. The bankruptcy judge refused to consider the objection, on the ground that Columbia had no right to object. Columbia appealed and the district judge affirmed, precipitating Columbia’s further appeal to this court.

The parties call the issue presented by the appeal “bankruptcy standing.” That is a misnomer. Article III of the federal Constitution has been interpreted to confine the right to sue in a federal court (“standing to sue”) to a person or firm or other entity that has suffered some tangible loss for which, if the defendant’s liability is established, the court could provide a remedy. See, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S. ——, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014). The rule thus excludes suits concerning what John Stuart Mill in On Liberty (1859) called “self-regarding acts,” to distinguish them from “other-regarding acts,” that is, acts that harm other people. He gave as an illustration of a self-regarding act the practice of polygamy in Utah, thousands of miles from England and hence harmless to the English. The English were “others” to the polygamous activity in Utah despite the indignation that the English people felt toward that activity. Mill thought in other words that the English had no “standing” to object to distant polygamy, because it inflicted no tangible harm on them.

Columbia’s objection to Hall’s settlement with Integrity is not of that character. Columbia is complaining about an imminent threat to its financial assets, a threat that is traceable to the settlement and could have been eliminated by the bankruptcy court’s enjoining the settlement. True, the loss it fears is only probabilistic. There can be no certainty that it would benefit from rejection of the settlement. Had Hall litigated its claim against Integrity to final judgment, which might have been a consequence of Hall’s demanding more than $4,125 million, it might well have ended up with nothing, since Integrity had a strong defense on the merits. But often a probabilistic harm suffices for Article III standing even when the probability that the harm will actually occur is small. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 525-26, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007); Mountain States [661]*661Legal Foundation v. Glickman, 92 F.3d 1228, 1234-35 (D.C.Cir.1996); Village of Elk Grove Village v. Evans, 997 F.2d 328, 329 (7th Cir.1993). A 10 percent probability of obtaining $1,000 is $100; this is called an “expected value” and is real even though not certain.

But to become a party to the bankruptcy proceeding Columbia had to show not merely standing but that “a legislatively conferred cause of action encompasses” its claim. Lexmark Int'l, Inc. v. Static Control Components, Inc., supra, 134 S.Ct. at 1387. Specifically it had to show that the Bankruptcy Code conferred the right that it sought — the right to butt into a settlement negotiation between other parties. Its desire to butt in is understandable. Agreements settling lawsuits often have third-party effects. A company might pay so much in settlement of a suit that it could no longer afford to honor its contract to buy some input from a third party; the third party would be harmed. The logic of Columbia’s claim to be entitled to object to Hall’s settlement with Integrity is that Hall received so little in the settlement that it is bound to come after Columbia for the difference. The claim is weak. Columbia’s lawyer would have to agree that by this logic an employee whom the lawyer’s client had laid off because it foresaw having to make a big payout to Hall could challenge the settlement. That way madness lies — settlements made impossible by crowds of objectors.

The question we need to answer is whether the Bankruptcy Code, in providing that “a party in interest, including the debtor, the trustee, a creditors’ committee, an equity security holders’ committee, a creditor, an equity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case [arising] under” the Code, 11 U.S.C. § 1109(b), confers a right to be heard on a debtor’s insurer. The list of “parties in interest” is not exhaustive, but does suggest that such a party is someone who has a legally recognized interest in the debt- or’s assets, namely the debtor (or the trustee in bankruptcy, if as in this case there is a trustee) and the creditors. In re James Wilson Associates, 965 F.2d 160, 169 (7th Cir.1992), says that “everyone with a claim to the res [the debtor’s assets] has a right to be heard before the res is disposed of since that disposition will extinguish all such claims.” Later we said that the U.S. Trustee can be a “party in interest” too because of his watchdog role in bankruptcy cases. In re South Beach Securities, Inc., 606 F.3d 366, 370-71 (7th Cir.2010).

Even so enlarged, the list of persons having a right to appear and be heard in a bankruptcy case can’t include Columbia. It is not a creditor of Hall’s estate in bankruptcy, is not the debtor, and, unlike the U.S. Trustee, is not a guardian of conduct in bankruptcy proceedings. It is just a firm that may suffer collateral damage from a ruling in a bankruptcy proceeding, in this case the ruling approving the settlement between Hall and Integrity.

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Bluebook (online)
750 F.3d 659, 71 Collier Bankr. Cas. 2d 1562, 2014 WL 1628119, 2014 U.S. App. LEXIS 7741, 59 Bankr. Ct. Dec. (CRR) 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cp-hall-co-ca7-2014.