Independent Examiner in FTX Bankruptcy Case
Firm Serves as Counsel to the Examiner
Last Friday, state regulators closed the Silicon Valley Bank (SVB), a federally insured institution with 17 branches throughout California and Massachusetts. It’s the first bank insured by the Federal Deposit Insurance Corporation (FDIC) to close since 2020.
In December, SVB reported roughly $209 billion in total assets and $175.4 billion in total deposits, making this the biggest bank closure since the 2008 financial crisis.
SVB’s closure came after it announced last Wednesday that it was looking to raise over $2 billion in capital. Deposit holders and investors alike took note, resulting in massive customer withdrawals and a dismal double-digit decline in the bank’s shares.
Wall street professionals have linked SVB’s failure with the failures of Silvergate and Signature Bank, which are two crypto-friendly banks that closed on March 8 and March 12, respectively.
However, SVB’s customer base is somewhat different. SVB focuses its investments in the tech sector and has relationships with nearly half of all venture capital-backed tech and health care companies. Tech-sector start-ups have traditionally relied on access to cheap venture capital funding, but the availability of that funding has decreased recently as interest rates have increased. Some analysts now predict that these bank failures will prompt the Federal Reserve to cut back on interest rate increases this year.
SVB’s demise has fueled investor concerns about the financial industry generally, and investors are wary that more bank failures will follow. Since the announcement of SVB’s closure, bank stocks have dropped globally, with shares of mid-sized banks taking the biggest hit. Even so, some experts insist that banks are more resilient now than they were when the 2008 financial crisis started.
As for SVB, the bank has closed, and FDIC insurance will kick in. When a bank fails, insurance covers deposits of up to $250,000. The FDIC promised holders access to their insured deposits by Monday, March 13. This means that deposit holders went an entire weekend without access to their money, and some SVB customers may have been scrambling over the weekend to get immediate access to funds in order to pay their obligations.
According to reports over the weekend, however, nearly 90% of the funds deposited with SVB were uninsured. As the 15th of the month approaches, some SVB customers with uninsured deposits may face difficulties meeting their payroll obligations.
To quell fears, in a joint statement issued Sunday evening, Janet Yellen, the U.S. Treasury Secretary, Jerome Power, chair of the Federal Reserve, and Martin Gruenberg, chair of the FDIC, assured SVB depositors that they will all be made whole even if their deposits exceeded $250,000. Similar promises have been made to depositors at Signature Bank. The government also announced that “no losses associated with the resolution of Silicon Valley Bank will be borne by the taxpayer.” In contrast to the bank’s depositors, its shareholders and debtholders will likely lose their investments.
The state regulators that closed SVB, the California Department of Financial Protection and Innovation, also appointed the FDIC as receiver. The FDIC will now sell the bank’s assets and settle its debts. Reports say an auction has already commenced for the bank’s assets.
This situation is rapidly developing. We will continue to keep abreast of the latest and provide additional updates.
In a recent per curium opinion, the Fifth Circuit recommitted to its practice of dismissing claims against court-appointed fiduciaries when plaintiffs fail to obtain permission before bringing suit. The court rested its decision on the Barton doctrine, which other courts, including the Eleventh Circuit, have found inapplicable in similar circumstances.
We have discussed the Barton doctrine in previous posts. The doctrine is a common law principle that bars suits against court-appointed trustees and other fiduciaries absent court permission. The doctrine stems from a U.S. Supreme Court decision in the 19th Century, Barton v. Barbour, 104 U.S. 126 (1881). The Court said leave to sue a fiduciary must be received from “the court by which [the fiduciary] was appointed.” Id. at 128.
In Matter of Foster, No. 22-10310, 2023 WL 20872 (5th Cir. Jan. 3, 2023), after the close of her bankruptcy case, a former chapter 7 debtor (the “Debtor”) brought suit in state court against, among others, the bankruptcy trustee and counsel for the trustee (together, the “Defendants”). The Debtor alleged that the Defendants had improperly intervened in her divorce proceedings and sold certain properties (the “Properties”). In doing so, the Debtor alleged, the Defendants had acted ultra vires, i.e,, beyond their legal authority.
The Defendants moved the bankruptcy court to reopen the Debtor’s proceedings, then removed the action and moved to dismiss pursuant to FRCP 12(b)(6). The Debtor moved to remand for untimeliness and lack of subject matter jurisdiction.
The bankruptcy court rejected the Debtor’s motion to remand. First, the court found that the Defendants removed the case within the statutory time limit because they had removed within 30 days of receiving the pleadings, even though the Debtor mailed the pleadings more than 30 days before removal. Further, the bankruptcy court found it had subject matter jurisdiction over the action because the Debtor’s case “related to” the bankruptcy and “could not arise outside of the context of the underlying bankruptcy case.” The Fifth Circuit affirmed each of those rulings. Id. at *2-3.
Next, the Fifth Circuit turned to the bankruptcy court’s decision to grant the Defendants’ motion to dismiss, relying on the Barton doctrine. As the Fifth Circuit explained, “[u]nder that doctrine, before a plaintiff can sue a bankruptcy trustee, or a court-approved professional employed by a bankruptcy trustee . . . , in a forum other than the appointing court, leave of the appointing court must be obtained.” Id. at *5. The doctrine does have limitations, including that it does not apply to ultra vires acts.
While the Debtor argued the Defendants’ sale of the Properties was ultra vires, and that such sale was unnecessary due to the funds available to pay outstanding debts, both the bankruptcy court and the Fifth Circuit rejected that argument. The Fifth Circuit pointed out that (1) the Debtor admitted that funds from the Properties’ sale were used to pay the Defendants' court-approved compensation; (2) the Debtor’s amended schedules included the Properties within the bankruptcy estate; (3) the bankruptcy judge proceeded “under the belief that these assets were part of the bankruptcy estate and that the [Defendants] pursued the assets, in part, on behalf of [the Debtor]” and (4) the complaint “illustrates that [the Debtor’s] claims arise from actions that the [Defendants] took in accordance with orders from the bankruptcy court.” For these reasons, the Fifth Circuit concluded that the Defendants “did not plausibly act outside the scope of their duties,” or ultra vires. Accordingly, the Debtor’s claims were barred by the Barton doctrine. Id. at *5-6.
While the Fifth Circuit’s decision appeared to be a straightforward application of the Barton doctrine, the outcome may have been different in another circuit. For example, the Eleventh Circuit has held that the Barton doctrine does not apply “when jurisdiction over a matter no longer exists in the bankruptcy court.” Although the Eleventh Circuit “created no categorical rule that the Barton doctrine can never apply once a bankruptcy case ends, [it] concluded that where any decision by a district court would have no conceivable effect on a bankruptcy estate, the Barton doctrine does not deprive the district court of subject-matter jurisdiction.” Chua v. Ekonomou, 1 F.4th 948, 953 (11th Cir. 2021). The Fifth, Seventh, Ninth, and Tenth Circuits, to the contrary, apply the Barton doctrine “even after a bankruptcy trusteeship has ended because it protects the court-appointed trustee from suit.” Id. (listing cases).
Given the circuit split, the issue is ripe for Supreme Court review, which has not addressed the Barton doctrine since 1989.
This post is about a junkyard, hogs getting slaughtered, and a bankruptcy judge poised to sanction a creditor and her counsel. The message from the case to would-be claimants in other cases is simple: do not “overreach.” In re U Lock, Inc., Case No. 22-20823, 2023 WL 308210, at *1 (Bankr. W.D. Pa. Jan. 17, 2023).
More specifically, in this case, a junkyard is the location of the debtor’s property, which consists of “construction debris, scrap piles, tire mounds, collapsed trailers, and inoperable vehicles.” It is also environmentally contaminated. Id.
The phrase “hogs get slaughtered” is how the court characterized what can happen when a creditor’s claim is “beyond the pale.” Id. at *1, 4.
And sanctions are what the creditor and her counsel might receive for filing that claim. In the court’s view, the claim was a “fanciful nonstarter” because, among other reasons, it lacked “a factual basis” and sought an amount that was “grossly unreasonable.” Id.
Administrative expense claims are governed by Bankruptcy Code section 503(b)(1)(A). A claimant must show a claim is for “the actual, necessary costs and expenses of preserving the estate.” As is discussed below, the focus is on what benefits the bankruptcy estate, not on what a claimant asserts it lost.
In U Lock, Inc., the debtor operated a self-storage facility and hoped to develop the property into a retail plaza. The purchase price of the property was $325,316, which was funded by the creditor. In pre-bankruptcy litigation, the creditor had also obtained exclusive deeds to the property.
In April 2022, an involuntary chapter 7 was filed against the debtor. Two months later, the creditor received relief from the automatic stay to begin environmental remediation at the site. According to the court, the creditor “had effective control of the property.” Id. at *2.
After the bankruptcy estate’s assets were sold for $70,000, the creditor filed an administrative expense claim for the estate’s post-petition use of the property. But the claim amount was $144,000, which was more than double the amount of the estate’s assets.
To calculate her claim, the creditor used a return-on-investment metric. The pre-bankruptcy rent of the storage facility was $1,500 a month, an amount the court found reasonable. But the claim asserted that a “reasonable value for the use” of the property was $18,000 a month.
The claim “elicited universal derision” from other parties-in-interest and was, in the court’s words, “patently absurd.” Id. at *4.
Under well-established case law, the creditor — effectively the landlord here — was entitled to “the payment of rent for the use and occupancy of real estate.” Zagata Fabricators, Inc. v. Superior Air Prods., 893 F.2d 624, 627 (3d Cir. 1990). But the amount a debtor must pay a landlord has to be “reasonable.” As the court noted, “[a]fter all, an administrative expense is measured by the ‘benefit to the estate, notthe loss to the creditor.’” Id. (emphasis in original).
The court concluded it was unreasonable for the creditor to seek $144,000 when the property was worth $70,000. The claim represented what the creditor asserted she had lost, rather than a reasonable amount of benefit she had provided to the estate for the debtor’s post-petition use of the property.
That was the “overreach” that has led to a hearing on sanctions. In the court’s words, “the amount of the claim is so beyond the pale that the Court cannot fathom a proper, non-frivolous purpose” of the request. 2023 WL 308210, at *4


Partner
Mr. Lowenthal, Chair of the firm’s Business Reorganization and Creditors' Rights Practice, has earned recognition as a skilled advocate in the bankruptcy, creditors' rights, and corporate restructuring arena. He represents creditors' committees, trade creditors, indenture trustees, and bankruptcy trustees and examiners in domestic and international cases.
Mr. Lowenthal recently served as counsel to the court-appointed Examiner in the chapter 11 cases of FTX Trading Ltd. and its affiliates. In this position, he investigated issues critical to the FTX bankruptcy cases, including potential conflicts of interest and fraudulent transfers, that were summarized in two publicly filed reports.
Mr. Lowenthal also represents U.S. and non-U.S. business entities in a wide range of complex litigation issues, including creditors’ rights disputes, purchases of intellectual property assets, and distressed debt acquisitions and restructuring. He has achieved numerous favorable results for clients in trial and appellate courts as well as commercial arbitration. Recently, he successfully defended former executives of a failed European bank against allegations that they had defrauded investors.
A regular speaker on bankruptcy law topics, Mr. Lowenthal recently presented for the American Bankruptcy Institute, the Practising Law Institute, INSOL International, INSOL Europe, and the Association of Corporate Counsel. Most recently, Mr. Lowenthal was a member of INSOL Europe’s 2023 Amsterdam Congress Technical Committee. He has been recognized by JD Supra’s Readers’ Choice Awards as one of the top ten authors in the Bankruptcy category from 2023-2026. Mr. Lowenthal has received Martindale-Hubbell’s highest rating of "AV Preeminent" based on both peer and client reviews and has been named to The Best Lawyers in America in the area of Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law. He has also been named by Super Lawyers in the areas of bankruptcy: business and business litigation. Lastly, Mr. Lowenthal has been named to the 2022-2026 editions of the Lawdragon 500 Leading U.S. Bankruptcy & Restructuring Lawyers guide.
Representative Matters
Represented court-appointed Examiner in chapter 11 cases of FTX Trading Ltd., including assisting him with various investigations summarized in two publicly filed reports.
Represented foreign administrators of a global alternative energy company in its chapter 15 cross-border bankruptcy case, successfully petitioning the court for the return of over $28 million held in a U.S. bank account.
Representing noteholders of a Brazilian company in a lawsuit arising from a debt default.
Representing the Oversight Committee for a post-confirmation liquidating trust in the Southern District of Texas.
Representing the Indenture Trustee for a series of unsecured notes in connection with an Italian insolvency proceeding and a related chapter 15 case.
Represented a bidder in a competitive auction to acquire the assets of a chapter 11 debtor.
Lead counsel to the Official Committee of Unsecured Creditors of multi-state real estate developer with liabilities in excess of a billion dollars. The Bankruptcy Court praised the “remarkable results” achieved through the “extraordinary efforts” of Patterson Belknap attorneys in this case.
Representing an international financial institution as Indenture Trustee in cross-border insolvency cases pending in Grand Cayman and Hong Kong.
Represented an Indenture Trustee and Co-Chair of the Official Committee of Unsecured Creditors on over $5 billion of unsecured debt in one of the largest, most complex cases ever filed in Delaware, the Energy Future Holdings Corp. cases.
Represented an Indenture Trustee in the Nortel Networks Inc. cross-border cases, a set of insolvency cases filed in the U.S., the U.K., and Canada.
Represented an Indenture Trustee on bonds governed by New York law in an insolvency case in London.
Represented an Indenture Trustee on $1.7 billion of unsecured debt in the Washington Mutual, Inc. case.
Representing a former member of the Board of Directors in The Weinstein Company Holdings bankruptcy case.
Represented an international law firm in a proceeding before the U.S. Bankruptcy Court relating to conflicts of interest in a Chapter 11 representation.
Represented the winning bidder in an auction to acquire the assets and intellectual property from a Chapter 7 debtor over the objection and competing bid of the debtor’s secured lender.
Special litigation counsel to an Official Committee of Unsecured Creditors to investigate fraudulent conveyance claims.
Conducted an internal investigation of a multi-national law firm following its role in a large Chapter 11 bankruptcy case.
Representing the Post-Confirmation Trustee in the Tarragon Corporation case.
Special litigation counsel to a Chapter 7 trustee in the bankruptcy of an employee leasing company.
Represented an Indenture Trustee in the Nortel Networks Inc. cross-border cases, a set of insolvency cases filed in the U.S., the U.K., and Canada.
Represented the Liquidating Trust Board in the TerreStar Networks Inc. case.
Represented the Trust Oversight Committee in the Disney retail store chain case.
Represented Harrison J. Goldin, an Examiner in the Enron Corp. case, in an investigation of many of Enron's special-purpose-entity transactions.
Representing international creditors, including entities in the U.K., the Netherlands, and Germany, in the Lehman Brothers Holdings Inc. case.
Represented a Scottish aviation company in the Hawker Beechraft Corporation case.
Defending a reinsurance company in a fraudulent conveyance lawsuit brought by creditors of Tribune Company in U.S. Federal Court.
Representing a Mexican creditor in the Stanford International Bank Ltd. case.
Obtained a favorable result on behalf of the largest private bank in Brazil in connection with the Chapter 15 case of a Brazilian company.
Represented the Retiree Committee in the U.S. Airways, Inc. case, including serving as trial counsel on the debtor’s motion to eliminate retiree benefits.
Won a crucial decision of first impression for financial institutions whose security interests were challenged by the bankruptcy trustee in The Bennett Funding Group, Inc. case, a case that stemmed from an alleged $1 billion Ponzi scheme.
Represented the Official Committee of Unsecured Creditors in the STAR Telecommunications, Inc. case.
MEMBERSHIPS: American Bar Association; Bankruptcy and Corporate Reorganization Committee of the New York City Bar Association; American Bankruptcy Institute; Board of Editors, The Bankruptcy Strategist; INSOL International; INSOL Europe (2023 Amsterdam Congress Technical Committee); Turnaround Management Association and the New York Institute of Credit.
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