Dear constituency list members of the Insolvency Law Committee, the following is a case update analyzing a recent case of interest written by Leonard Gumport analyzing a recent case of interest.
Debtors Ascena Retail Group, Inc. (“Ascena”) and its 63 affiliates (collectively, “Debtors”) proposed a chapter 11 plan (“Plan”) that contained third-party releases and an exculpation clause. Subject to a right to opt out, the proposed releases extinguished the claims of Debtors’ creditors and Ascena’s shareholders against numerous non-debtors, including two former officers of Ascena.
In In re Retail Grp., 2021 LEXIS 524 (Bankr. E.D. Va. 2021) (Ascena 1), the Richmond Division of the United States Bankruptcy Court for the Eastern District of Virginia (“Bankruptcy Court”) denied a motion that sought to certify a class of Ascena’s shareholders. In In re Retail Grp., Inc., 2021 Bankr. LEXIS 547 (Bankr. E.D. Va. 2021) (Ascena 2), the Bankruptcy Court ruled that the releases and exculpation were valid and integral to the successful negotiation of the Plan.
The United States Trustee for Region 4 (“UST”) and two Ascena shareholders appealed to the United States District Court for the Eastern District of Virginia (“District Court”). The Bankruptcy Court denied the UST’s motion for a stay pending appeal. In re Retail Grp., Inc., 2021 Bankr. LEXIS 1455 (Bankr. E.D. Va. 2021) (Ascena 3). So did the District Court. Patterson v. Mahwah Bergen Retail Grp., Inc., 2021 U.S. Dist. LEXIS 120793 (E.D. Va. 2021) (Ascena 4).
In Patterson v. Mahwah Bergen Retail Grp., Inc., 636 B.R. 641 (E.D. Va. 2022) (Ascena 5), United States District Judge David J. Novak vacated the confirmation order and ruled: (1) the UST’s appeal was not equitably moot; (2) Ascena’s shareholders and Debtors’ creditors did not consent to the third-party releases by failing to opt out of them; (3) the Bankruptcy Court did not sufficiently justify the releases under the standard that applies to nonconsensual third-party releases; (4) the Plan’s exculpation clause was too broad; and (5) the interests of justice warranted reassigning the case from the Bankruptcy Court’s Richmond Division.
On remand, Debtors revised their Plan by deleting the third-party releases and narrowing the exculpation clause. On March 3, 2022, the Norfolk Division of the Bankruptcy Court entered an order (Ascena 6) that retroactively confirmed Debtors’ revised Plan. A copy of Ascena 6 is here.
In 2019, Debtors operated approximately 2,800 women’s apparel stores, employed nearly 40,000 employees, and owned such brands as Ann Taylor, LOFT, and Lane Bryant. David Jaffe (“Jaffe”) was Ascena’s CEO, and Robert Giammetteo (“Giammetteo”) was Ascena’s CFO. Ascena 5, at 655-56, 677.
On June 7, 2019, a putative class action for securities fraud was filed against Ascena, Jaffe, and Giammetteo in the United States District Court for the District of New Jersey (the “DNJ”) in Case No. 2:19-cv-13529 (the “Securities Action”). The uncertified class consisted of persons who purchased Ascena’s common stock between December 1, 2015 and May 17, 2017. Ascena 5, at 661, 677.
On August 23, 2019, the DNJ appointed Joel Patterson and Michaella Corp. as lead plaintiffs (“Securities Lead Plaintiffs”) for limited purposes, including filing an amended complaint, conducting discovery, and opposing dispositive motions. On November 21, 2019, the Securities Lead Plaintiffs filed an amended complaint. On February 7, 2020, the defendants filed a Rule 12(b)(6) motion, which the Securities Lead Plaintiffs timely opposed. See Ascena 5, at 677.
In March 2020, as a result of the COVID-19 pandemic, Debtors temporarily closed their retail stores. On July 23, 2020, Debtors filed chapter 11 petitions in the Richmond Division of the Bankruptcy Court. By July 23, Debtors no longer employed Jaffe and Giammetteo. On July 27, without having decided the Rule 12(b)(6) motion or certified a class, the DNJ stayed the Securities Action.
During 2020, a special committee of Debtors’ disinterested directors investigated Debtors’ financial affairs. The committee concluded that there was no merit to the claims alleged in the Securities Action or to related claims alleged in a derivative action in Delaware against board members of Ascena. The committee did not find that Debtors had claims against Ascena’s shareholders. See Ascena 5, at 678-79; Ascena 2, at *48-51.
During September-December 2020, with Bankruptcy Court approval, Debtors sold their businesses for net cash proceeds of approximately $472 million. After December 23, 2020, all that remained for reorganization was the distribution of Debtors’ bankruptcy estates’ remaining cash. Ascena 5, at 677-78.
On September 11, 2020, the Bankruptcy Court approved Debtors’ disclosure statement. As subsequently revised, Debtors’ proposed Plan provided for pro rata payment of approximately $7.25 million to Debtors’ general unsecured creditors and zero payment to Ascena’s shareholders. The proposed Plan included third-party releases (“TP-Releases”), which released the claims of Ascena’s shareholders and Debtors’ creditors against Ascena’s current and former officers, directors, managers, and many others. The TP-Releases did not release the claims of shareholders and creditors who timely opted out of the TP-Releases. Shareholders and creditors who elected to opt out would not receive a reciprocal release. Ascena 5, at 678-79. The reciprocal release of claims against Ascena’s shareholders was worthless and “fictional,” because Debtors’ special committee had not found any such claims. Id., at 679.
The proposed Plan included an exculpation clause (“X-Clause”). It released “Exculpated Parties” from liability for post-petition acts or omissions, except for actual fraud, willful misconduct, or gross negligence. The “Exculpated Parties” included Debtors, the creditors’ committee, various consenting stakeholders, and all current and former employees, attorneys, accountants, managers, and financial advisors of all persons exculpated. See Ascena 5, at 655, 659, 702.
To notify Ascena’s shareholders of their right to opt out of the TP-Releases, Debtors sent a court-approved notice (“Opt-Out Notice”). It stated, among other things, that: (1) Ascena’s shareholders had no right to vote on the Plan and would not receive any payment; (2) Ascena’s shareholders had a right to opt out of the TP-Releases electronically via an online portal or by returning a “Release Opt-Out Form” in a pre-addressed envelope (with postage pre-paid by the Debtors); and (3) “There will be no harm to you under the Plan if you return the Opt-Out Form; however, you will not receive a release.” Ascena 1, at *8-11.
Debtors sent the Opt-Out Notice to approximately 300,000 individuals, including Ascena’s registered shareholders and brokers and other nominees holding Ascena’s shares in street name. In response, Debtors received 596 Release Opt-Out Forms. Debtors’ general unsecured creditors voted overwhelmingly to accept the Plan. Ascena 5, at 679-80; Ascena 2, at *54-56, 69.
The confirmation hearing occurred on February 25, 2021, after the opt-out deadline. At the conclusion of the hearing, the Bankruptcy Court confirmed the Plan and overruled objections made by the UST and the Securities Lead Plaintiffs. See Ascena 1, at *1-3, and 19.
Months before the confirmation hearing, the Securities Lead Plaintiffs filed a motion (“Certification Motion”) to certify a class under Fed.R.Bankr.P. 7023 for the limited purpose of opting out of the TP-Releases. The proposed class was the putative class in the Securities Action. On March 5, 2021, in Ascena 1, the Bankruptcy Court denied the Certification Motion as an untimely effort to frustrate the reorganization. The Bankruptcy Court stated: (1) the Securities Lead Plaintiffs delayed seeking a hearing on their motion since filing it nearly five months ago; (2) there was no evidence that any putative class member who had not opted out of the TP-Releases now wished to do so; and (3) “the bankruptcy process utilized in the case at bar is superior to allowing a class action to proceed,” so that “class certification is unnecessary in this case.” Ascena 1, at *19-21.
On March 9, 2021, in Ascena 2, the Bankruptcy Court detailed its reasons for confirming the Plan. The TP-Releases and X-Clause “were an integral part of the parties’ negotiations in reaching a successful restructuring.” Ascena 2, at *48. The TP-releases were “consensual in nature.” Id., at *82. The Bankruptcy Court stated that it previously “found non-debtor releases, like the [TP-Releases], to be consensual where the releasing parties had notice and an opportunity to object or opt out.” Id., at *81 (footnote omitted). Further, “[n]ationally bankruptcy courts have found opt-out third-party releases to be consensual where the parties have given plain notice of the releases and the effect thereof.” Id., at *85. In addition, the TP-Releases met the Fourth Circuit’s standard for non-consensual third-party releases. Id., at *91 n.28. The X-Clause was not overly broad. Id., at *92.
The UST appealed from the confirmation order, and the Securities Lead Plaintiffs appealed from that order and the denial of their Certification Motion. The UST sought but did not get a stay pending appeal. During the appeals, Debtors substantially consummated their Plan. Ascena 3, at *33, 40-41. On January 13, 2022, in Ascena 5, the District Court vacated the confirmation order.
 The UST had standing to appeal the confirmation order. The UST did not have to show that he was a person aggrieved by the confirmation order. The UST serves as a public watchdog of the bankruptcy system. In 11 U.S.C. § 307, Congress expressly gave U.S. trustees the right to raise and be heard on any issue in any case or proceeding. If Congress had intended to prohibit U.S. trustees from appealing from adverse bankruptcy rulings, then Congress would have done so explicitly. Ascena 5, at 663.
Unlike the UST, the Securities Lead Plaintiffs lacked standing unless they were persons aggrieved by the appealed order. Having opted out of the TP-Releases in the Plan, the Securities Lead Plaintiffs were not aggrieved by the order confirming the Plan. The Securities Lead Plaintiffs did not have authority to appeal on behalf of an uncertified class of Ascena’s shareholders. The appeal by the Securities Lead Plaintiffs from the denial of their Certification Motion was moot by reason of the outcome of the UST’s appeal. Ascena 5, at 664-65.
 The Bankruptcy Court erred by failing to determine whether the released claims were core or non-core. Ascena 5, at 668 (citing Exec. Benefits Ins. Agency v. Arkison, 573 U.S. 25, 33 (2014)). The “shocking” breadth of the TP-Releases made classifying the released claims as core and non-core a “herculean undertaking.” Ascena 5, at 655, 669. The “enormity” of that task did not excuse it: “The sheer breadth of the releases and the lack of findings with respect to each released claim renders appellate review virtually impossible and speaks to the impropriety of the approval of the [TP-Releases.]” Id., at 669.
 Under Stern v. Marshall, 564 U.S. 462 (2011), the Bankruptcy Court lacked authority under Article III of the Constitution to enter a confirmation order that granted the TP-Releases. For that reason, the District Court vacated the confirmation order pursuant to Fed.R.Bankr.P. 8018.1, which states: “If, on appeal, a district court finds that the bankruptcy court did not have the power under Article III of the Constitution to enter the judgment, order, or decree appealed from, [then] then district court may treat it [sic] as proposed findings of fact and conclusions of law.” See Ascena 5, at 676.
By granting the TP-Releases, the Bankruptcy Court extinguished the claims of Debtors’ shareholders and creditors against third parties. Extinguishing those claims was an adjudication of them for purposes of Stern. Ascena 5, at 671. The universe of claims released by the TP-Releases included claims between non-debtors that the Bankruptcy Court had no authority to adjudicate. Id., at 670. Debtors’ insertion of the TP-Releases in the Plan did not give the Bankruptcy Court authority to adjudicate those claims. Id., at 671. Article III “simply does not allow third-party non-debtors to bootstrap any and all of their disputes into a bankruptcy case to obtain relief.” Id., at 672.
In failing to exercise the right to opt-out of the TP-Releases, Ascena’s shareholders and Debtors’ creditors did not impliedly waive their right to have their claims adjudicated by an Article III court. A litigant can waive its right to an Article III court only by means of a knowing and voluntary waiver. Ascena 5, at 673 (Wellness International Network Ltd. v. Sharif, 575 U.S. 665, 679 (2015)). Waiver of the right to an Article III court hinges on whether the litigant or its counsel was made aware of the need to consent and the right to refuse it, and still voluntarily appeared to try the case before the non-Article III court. Ascena 5, at 673-74 (citing Wellness, at 684-85 and Roell v. Withrow, 538 U.S. 580, 587 n.5 (2003)). The Opt-Out Notice did not mention agreeing to an Article I adjudication. Ascena 5, at 675.
 As a matter of law, the TP-Releases were not consensual releases. “Failure to opt out, without more, cannot form the basis of consent to the released claim.” Id., at 688. A general rule of contract law is that, subject to limited exceptions, “silence cannot manifest assent.” Id., at 686. Class action law “highlights the impropriety of finding releases [to be] consensual based on merely a failure to opt out.” Ibid. In class actions, “courts must ensure that the class action complies with the unique requirements of Rule 23 of the Federal Rule of Civil Procedure.” Ibid. If the “critical due process protections of” Rule 23 are not provided, then third-party releases in bankruptcy cases based only on a failure to opt out also raise “serious due process concerns.” Id., at 687.
As a matter of fact, the TP-Releases were not consensual. None of the shareholders in the putative class in the Securities Action participated in negotiating the TP-Releases. The Opt-Out Notice offered a worthless and “fictional” mutual release to specified claimants in return for not opting out. The Opt-Out Notice was directed only to Ascena’s shareholders, not to everyone whose claims were released by the TP-Releases. The record failed to show how many of Ascena’s shareholders actually received the Opt-Out Notice. Ascena 5, at 678-80.
 The TP-Releases did not satisfy the Fourth Circuit’s requirements for nonconsensual third-party releases, and the Bankruptcy Court failed to make sufficient findings to justify granting nonconsensual third-party releases. In the Fourth Circuit, nonconsensual third-party releases are “disfavored,” and such releases should be “granted cautiously and infrequently.” Ascena 5, at 654 (quoting Behrmann v. Nat’l Heritage Foundation, 663 F.3d 704, 712 (4th Cir. 2011) (Behrmann)). Only cases “with unique circumstances warrant granting” non-consensual releases. Ascena 5, at 689. For that reason, a bankruptcy court granting such releases must make “’specific factual findings’ demonstrating why the debtor’s circumstances entitle it to the benefit of the releases.” Id., at 689 (quoting Behrmann, at 712-13). The Bankruptcy Court “failed to conduct any Behrmann analysis, precluding any meaningful appellate review.” Id., at 689.
The TP-Releases were not valid nonconsensual third-party releases under the factors identified in Behrmann. The first factor is whether there is an identity of interests – usually an indemnity obligation – between the debtor and the released parties. Debtors had essentially liquidated, and it was uncertain whether they had a continuing indemnity obligation to Jaffe and Giammetteo. Ascena 5, at 690-91. The second factor is whether the released non-debtors made a substantial contribution to the reorganization. The record did not show that Jaffe and Giammetteo made any contribution. Id., at 690. The third factor is whether the non-debtor release was essential to the reorganization. Debtors had largely liquidated. The record did not show that the Plan would fail without the TP-Releases. Ibid. The fourth factor is whether the affected classes overwhelmingly voted in favor of the Plan. The affected class of shareholders received nothing and was deemed to reject the Plan. The small number of opt-outs was not analogous to an affirmative vote in favor of the Plan. Ibid. The fifth factor is whether the reorganization provided a mechanism to consider and pay all (or substantially all) of the classes affected by the non-debtor release. The Plan extinguished the claims subject to shareholders’ TP-Releases without giving any value to the shareholders in return. Id., at 690-91. The sixth factor is whether the plan provided an opportunity for those who chose not to settle to recover in full. The Plan provided that the TP-Releases would not apply to those who opted out. However, the notice given by Debtors was deficient. Id., at 691.
 The TP-Releases were severable from the Plan. Severing the TP-Releases from the Plan would not upset the prior sales of Debtors’ businesses or seriously threaten to unwind the Plan. Ascena 5, at 695-96. The Plan’s non-severability clause permitted the Bankruptcy Court to sever any unenforceable provision prior to confirmation of the Plan, and there no longer was a confirmation order. Id., at 691-92. Further, the non-severability clause was “nothing more than a hollow attempt to evade judicial review of” the TP-Releases. Id., at 693.
 The UST’s appeal was not equitably moot. The equitable mootness doctrine is not based on rigid rules, and a “reviewing court has discretion whether to find an appeal equitably moot.” Ascena 5, at 696. Threshold concerns weighed against equitable mootness. First the confirmation order was no longer a final judgment, because the District Court had vacated it. Second, the appellant was the UST in his role as public watchdog. Id., at 697. Third, “the Bankruptcy Court extinguished the claims of absent and nonconsenting parties without the constitutional authority to adjudicate those claims.” Id., at 698. Fourth, effective relief could be provided because the TP-Releases were severable. Ibid.
The four-factor standard for equitable mootness weighed against finding that the UST’s appeal was equitably moot. The first factor is whether the appellant sought and obtained a stay. The UST had sought stays pending appeal and did not make a strategic choice to allow the Plan to go into effect. Ascena 5, at 696, 698-99. The second factor is whether the reorganization plan or other equitable relief was substantially consummated. The substantial consummation of the Plan did not render it inequitable to rule on the UST’s appeal. The UST did not seek to undo any transactions that had occurred under the Plan. Id., at 696, 699. The third factor is the extent to which the relief requested on appeal would affect the reorganization plan or other equitable relief granted. The Plan authorized severing the releases and would not be disturbed in any material way by allowing third parties to retain their causes of action against non-debtors. Ibid. The fourth factor is the extent to which the relief requested on appeal would interfere with the interests of third parties. The TP-Releases applied only to pre-confirmation transactions, and no post-confirmation transactions with third parties occurred in reliance on the releases. Id., at 696, 699. “Conversely, extinguishing the claims of thousands of individuals without compensation, without consent [,] and without due process reeks of inequity to third parties.” Id., at 699-700.
Finally, “the doctrine of equitable mootness is all too often invoked to avoid judicial review, as Debtors seek to do here.” Id., at 700. The errors committed by the Bankruptcy Court were “serious and command review by an Article III court.” Ibid. Equity did not support applying equitable mootness to preclude appellate review of the “unconstitutional releases.” Ibid.
 The X-Clause was partly invalid. A valid exculpation clause must: (a) be limited to fiduciaries who performed necessary and valuable duties in connection with the case; (b) be limited to acts and omissions taken in connection with the case; (c) not purport to release any pre-petition claims; (d) contain a carve-out for gross negligence, actual fraud, or willful misconduct; and (e) contain a gatekeeper function. Ascena 5, at 702. The X-Clause was invalid because its definition of “Exculpated Parties” extended beyond fiduciaries who performed necessary and valuable duties. In addition, the X-Clause failed “to contain a gatekeeper function that would allow an avenue into court for some claims.” Ibid.
 The interests of justice warranted reassigning the case from the Richmond Division of the Bankruptcy Court. In Behrmann, the Fourth Circuit had warned that third-party releases “should be ‘granted cautiously and infrequently.’” Ascena 5, at *654 (quoting Behrmann, 663 F.3d at 712). “Despite these admonitions,” the Richmond Division of the Bankruptcy Court regularly approved third-party releases. Ascena 5, at 655. The Richmond Division’s “practice of regularly approving third-party releases and the related concerns about forum shopping call into question public confidence in the manner that these cases are being handled in the Richmond Division.” Ascena 5, at 703 n.16. The District Court stated that it held the bankruptcy judge in high regard and did not question his integrity or impartiality. Ibid.
On April 5, 2022, in the Securities Action, the DNJ dismissed with prejudice all claims against Ascena as a result of the revised Plan that the Bankruptcy Court confirmed in Ascena 6. Concurrently, Jaffe and Giammetteo renewed their Rule 12(b)(6) motion to dismiss. On June 28, 2022, in In re Ascena Retail Grp., Inc. Sec. Litig., 2022 U.S. Dist. LEXIS 114434 (D.N.J. 2022), the DNJ granted that motion but made the dismissal without prejudice to the Securities Lead Plaintiffs’ filing an amended complaint. A takeaway is that preserving a claim from a third-party release does not assure success on the claim.
The District Court decided Ascena 5 after the decision in In re Purdue Pharma, L.P., 635 B.R. 26 (S.D.N.Y. 2021) (Purdue), appeal pending sub nom. In re Purdue Pharma L.P. et al., (2nd Cir.) No. 22-110. In Purdue, United States District Judge Colleen McMahon ruled that the Bankruptcy Code does not authorize a nonconsensual release of creditors’ direct claims against third parties. In Ascena 5, the District Court did not follow that part of Purdue. Instead, the District Court adhered to controlling precedent from the Fourth Circuit, which disfavors but does not prohibit nonconsensual third-party releases. See Ascena 5, 636 B.R. at 654 (“The Fourth Circuit has made clear that the use of third-party releases is disfavored, saying that such releases should be ‘granted cautiously and infrequently.’”) (quoting Behrmann, 663 F.3d at 712).
The Supreme Court has not decided the validity of third-party releases of creditors’ direct claims. Travelers Indem. Co. v. Bailey, 557 U.S. 137, 155 (2009) (“We do not resolve whether a bankruptcy court, in 1986 or today, could properly enjoin claims against nondebtor insurers that are not derivative of the debtor’s wrongdoing.”); Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 979 (2017) (mentioning that structured dismissals may involve “certain third-party releases,” but not deciding whether they are valid). Once final on appeal, a plan confirmation order is entitled to res judicata effect against adequately noticed parties, even if the judgment erroneously releases their claims. Travelers, 557 U.S. at 152; see also United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 269-70 (2010) (order confirming chapter 13 plan that unlawfully discharged student loan was not void). A takeaway is that a party who receives notice of a proposed nonconsensual third-party release cannot safely ignore it.
Ascena 5 does not prohibit consensual third-party releases. Instead, Ascena 5 holds that creditors and shareholders do not consent when they merely fail to opt out. The District Court acknowledged that “courts have diverged on whether implied consent can suffice for a release.” Ascena 5, at 684. “The use of the opt out mechanism as a valid means of obtaining consent is not without controversy.” In re Mallinckrodt PLC, 2022 Bankr. LEXIS 273, at *68-69 (Bankr. D. Del. 2022). The Ninth Circuit has not decided whether merely failing to respond to an opt-out notice suffices to constitute consent to a third-party release in a chapter 11 plan. In In re Astria Health, 623 B.R. 793 (Bankr. E.D. Wash. 2021), United States Bankruptcy Judge Whitman Holt observed that “courts are split about whether creditors must affirmatively ‘opt in’ to such releases or whether it is sufficient to give creditors a chance to ‘opt out.’” Id., at 803 (footnote omitted). In Astria Health, Judge Holt approved third-party releases in the case before him because they were “consensual under any framework.” Ibid.
The Ninth Circuit’s general prohibition against nonconsensual third-party releases of pre-petition claims does not apply to consensual releases. See In PG&E Corp., 617 B.R. 671 (Bankr. N.D. Cal. 2020) (stating that Resorts Int’l v. Lowenschuss, 67 F.3d 1394,1401 (9th Cir. 1995) (Lowenschuss), is inapplicable when the non-debtor consents to the third-party release); In re Astria Health, 623 B.R. at 803 (approving consensual third-party release).
In addition, the Ninth Circuit’s general prohibition against nonconsensual third-party releases does not apply to a chapter 11 plan exculpation clause that releases post-petition claims, except claims for intentional misconduct and gross negligence. In Blixseth v. Credit Suisse, 961 F.3d 1074 (9th Cir. 2020), the Ninth Circuit ruled that Lowenschuss and related Ninth Circuit precedent did not prohibit “releases of participants in the plan development and approval process for actions taken during those processes.” Blixseth, 961 F.3d 1083-84. The exculpation clause upheld in Blixseth was limited to conduct taken during the chapter 11 case in connection with the reorganization and did not exculpate liability “from willful misconduct or gross negligence” as determined by a final order. Id., at 1078-78.
In Ascena 5, the District Court ruled that an exculpation clause must be restricted to fiduciaries who performed necessary and valuable duties. Ascena 5, at 702. The Ninth Circuit does not impose that restriction. In Blixseth, the Ninth Circuit upheld an exculpation clause that exculpated a creditor who participated in the reorganization but did not serve on the creditors committee. Id., at 961 F.3d at 1085 n.8; see also In re Murray Metallurgical Coal Holdings, LLC, 623 B.R. 444, 501-02 (Bankr. S.D. Ohio 2021) (discussing conflicting precedent on permissible scope of exculpation clauses); In re Mallinckrodt PLC, supra, 2022 Bankr. LEXIS, at *76 (declining to approve exculpation clause that applied to non-fiduciaries).
These materials were written by Leonard Gumport of Gumport Law Firm, PC in Pasadena, California. Editorial contributions were provided by Hon. Meredith Jury, Ret..