Section 503(b)(9) Claims – What Does “Receipt” Really Mean?
In an era when goods or materials often originate from suppliers or manufacturers outside the United States, bankruptcy courts are grappling with when “receipt” of goods occurs for the purpose of 503(b)(9) claims.
While often times pre-petition claims receive only pennies on the dollar, Section 503(b)(b)(9) of the Bankruptcy Code provides creditors with an administrative expense claim for goods (not services) that a debtor receives in the 20 days before bankruptcy that often times results in a dollar-for-dollar recovery. Section 503(b)(9) is generally recognized as an alternative (and more desirable) remedy to reclamation rights – which are addressed under Section 546(c) of the Bankruptcy Code.
I previously addressed what steps to take to ensure that you are Getting the Most Bang for Your 503(b)(9) Bucks. One of the pre-requisites to establishing entitlement to this valuable claim is demonstrating first that the debtor “received” the goods in question during the 20-day period. An interesting issue arises in the context of “FOB” shipping arrangements. “FOB” – or free on board – in the context of international shipping means that the buyer and seller agree at what point the risk of loss for the goods is shifted from the seller to the buyer – whether it is FOB destination (meaning it occurs upon delivery) or FOB shipping point/origin (meaning it occurs when the goods are placed on the ship in the port of origin).
Why does this matter? Because – as addressed in last week’s opinion by the United States Court of Appeals for the Third Circuit in In re World Imports, Ltd., et al., — F.3d —-, 2017 WL 2925429 (3d Cir. July 10, 2017), No. 16-1357, creditors may use FOB origin to ship to a debtor. The goods may be placed on a ship outside the 20-day period, but the debtor receives the goods (i.e., in-hand physical possession) within the 20-days. The question becomes when are the goods “received” for the purpose of establishing the very valuable Section 503(b)(9) claim: if outside the 20-day period, there is often little, if any, potential for a meaningful recovery, but if within the 20-day period, and provided the other elements of Section 503(b)(9) are met, a creditor can obtain a dollar-for-dollar recovery for those goods.
“Receipt” is not defined by the Bankruptcy Code. The Third Circuit and the 2 lower courts from which the Third Circuit appeal emanated addressed what “receipt” in the context of an FOB origin arrangement means for establishing a Section 503(b)(9) claim.
The Bankruptcy Court for the Eastern District of Pennsylvania held in favor of the debtor and its Official Committee of Unsecured Creditors, finding that in an FOB origin arrangement, “receipt” of goods occurs at the point of origin when the goods were placed on the ship (which was outside the 20-day period), and when title and risk of loss of goods shifted to the debtor. See, In re World Imports, Ltd., 511 B.R. 738 (Bankr. E.D. Pa. 2014). This determination was affirmed by the District Court. See In re World Imports, Ltd., 549 B.R. 820 (E.D. Pa. 2016). The lower courts each rejected the creditors’ arguments that the courts should look to state law, i.e., the UCC definition of “receipt” – which requires the customer’s physical possession of the goods, looking instead to an international treaty, the Convention on Contracts for the International Sale of Goods (as adopted by the United States) (“CISG”), finding it created an exception. Although “receipt” is also not defined in the CISG, it recognizes international commercial terms – like FOB, which provide for the transfer of risk of loss/damage to goods at the time the goods are placed on the ship. The lower courts both found that this transfer of title and risk was determinative of “receipt” for purposes Section 503(b)(9).
On July 10, 2017, however, the Third Circuit in In re World Imports, Ltd. reversed the lower courts, finding that receipt did not occur until the goods were physically in the debtor’s possession, which occurred within the 20-day period, enabling the creditors to succeed in meeting the prerequisite element that the goods were “received” within the 20-day period as required by Section 503(b)(9). The Third Circuit began its analysis with examining the definition of “receipt.” The Third Circuit considered how the UCC defines “receipt” – as well as Black’s dictionary and how the Third Circuit previously interpreted the term in the context of Section 546(c) of the Bankruptcy Code – the provision governing reclamation – all of which required physical possession. See, e.g., In re Marin Motor Oil, 740 F.2d 220, 224-25 (3d Cir. 1984).
Given the relationship between Section 503(b)(9) and the reclamation scheme (noting that 503(b)(9) is an exemption to that scheme), and the Third Circuit’s standing precedent that “receipt” in the context of reclamation requires physical possession, the Court found that “receipt” for Section 503(b)(9) also required “taking physical possession.” In so finding, the Third Circuit dismissed arguments that “constructive receipt” under the terms of FOB origin shipping should determine “receipt” for bankruptcy purposes. A key element to this finding was the Third Circuit’s prior determination that a carrier (like the ship) does not serve as a debtor’s agent for purposes of “receipt.” See In re Marin Motor Oil, 740 F.2d at 222. Notably, the Third Circuit in its prior decision in In re Marin Motor Oil, supra, addressed “constructive receipt” finding that “constructive receipt” occurred when the debtor’s agent took physical possession of the goods from the common carrier – not (the day prior) when the seller placed the goods in the hands of the common carrier. Id.
The Third Circuit also based its decision on the UCC’s explicit distinction of “receipt” and “delivery – observing that while a supplier may be contractually obligated to “deliver” goods, that does not necessarily mean a buyer receives them – and that delivery and receipt can occur at two separate times. Moreover, given its recognition that Section 503(b)(9) and the reclamation scheme under the Bankruptcy Code have generally borrowed from the definitions of the UCC, the Court did not believe it appropriate to look to other federal law, e.g. the CISG, for contextual meaning, as there was no explicit connection in that definitional scheme to that of the Bankruptcy Code.
Ultimately, and notwithstanding that parties may, in fact, contract for title and risk of loss to pass to a debtor-buyer days prior and in another country – “receipt” for Section 503(b)(9) does not occur until the goods are physically in a debtor’s possession. The Third Circuit reversed and remanded to the lower court for further proceedings to permit the claims to receive the favored administrative status.
This issue may arise in a number of contexts – including domestically. Creditor-vendors are well-advised to carefully examine the underlying facts in preparing their claims. While establishing “receipt” is just one facet of proving your Section 503(b)(9) claim, the Third Circuit’s recent decision adds color and context for creditors to better understand how to establish these valuable administrative claims. This recent decision may enable a larger number of creditors to assert administrative expense claims against a debtor’s estate. This will also necessarily increase a debtor’s administrative expenses where the debtor relies on goods or materials shipped from overseas, which may negatively impact a debtor’s ability to successfully emerge from bankruptcy.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.