IN RE JONES TRUCK LINES, INC. Nos. 96-3224, 96-3305.
130 F.3d 323 (1997)
In Re: JONES TRUCK LINES, INC., Debtor. JONES TRUCK LINES, INC., Plaintiff-Appellee/Cross-Appellant, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND; Central States, Southeast and Southwest Areas Health and Welfare Fund, Defendants-Appellants/Cross-Appellees.
United States Court of Appeals, Eighth Circuit.
Rehearing and Suggestion for Rehearing Denied January 13, 1998.
Charles T. Coleman, Little Rock, AR, argued (Isaac A. Scott, Jr., on the brief), for Appellee.
Before BEAM and LOKEN, Circuit Judges, and KYLE, District Judge.
Rehearing and Suggestion for Rehearing En Banc Denied January 13, 1998.
LOKEN, Circuit Judge.
The Bankruptcy Code allows the trustee in bankruptcy to enhance a debtor's estate by "avoiding" pre-bankruptcy transfers of the debtor's property that conferred an unfair preference on one creditor. Though the concept is quite simple, it is difficult to implement, and the end result is a lengthy, complex statute, 11 U.S.C. § 547. In this case, Jones Truck Lines ("Jones") filed a Chapter 11 liquidating bankruptcy petition and sued to recover as preferential payments nearly $6 million in employee benefit contributions made during the ninety days prior to bankruptcy. After a four-day trial, the bankruptcy court held that the payments were avoidable preferences, the district court affirmed, and the benefit funds appeal. We conclude that the contributions were not avoidable preferences because Jones received contemporaneous new value for them, namely, employee services. Accordingly, we reverse and remand.
Before its demise, Jones was a large interstate trucking company. Collective bargaining agreements with the International Brotherhood of Teamsters obligated Jones to make pension and health and welfare benefit contributions on behalf of its 2300 union employees to the agreed employee benefit funds, Central States, Southeast and Southwest Areas Health and Welfare Fund, and Central States, Southeast and Southwest Areas Pension Fund (collectively, "Central States"). The funds are nonprofit employee benefit trusts, managed by trustees selected by contributing employers and their unions, and governed by ERISA. In early 1991, the time in question, the collective bargaining agreement obligated Jones to contribute $104.70 per covered employee per week to the Health and Welfare Fund, and $16.60 per covered employee per day to the Pension Fund. Jones calculated the amount of contributions owing on a weekly basis, typically by Tuesday of the following week. It sent this information to Central States and paid its contribution obligations once a month. A contribution was considered delinquent if not paid by the fifteenth day of the following month.
Jones failed to make its December 1990 contributions in mid-January 1991. Employee benefit funds have an independent right to enforce the employer's contribution obligations.
Jones made its first $425,000 payment under this arrangement on February 25, 1991. Weekly payments followed. Jones terminated all union employees and filed for Chapter 11 protection on July 9, 1991. Between April 12 and July 9 — the ninety days prior to bankruptcy when transfers are presumptively preferential, see § 547(b)(4)(A) — Jones made thirteen weekly payments totaling $5,684,838.80.
II. A Brief Overview.
Section 547 is intended to discourage creditors from racing to dismember a debtor sliding into bankruptcy and to promote equality of distribution to creditors in bankruptcy. See 5 COLLIER ON BANKRUPTCY ¶ 547.01 at p. 547-9 (15th ed. rev.1997). In general, an avoidable preference is a transfer of the debtor's property, to or for the benefit of a creditor, on account of the debtor's antecedent debt, made less than ninety days before bankruptcy while the debtor is insolvent, that enables the creditor to receive more than it would in a Chapter 7 liquidation. See § 547(b). If a transfer is avoidable under § 547(b), the creditor may escape preference liability by proving that it falls within one of the exceptions set forth in § 547(c). Two of those exceptions are at issue in this case, the contemporaneous new value exception in § 547(c)(1), and the subsequent new value exception in § 547(c)(4). Their purpose is to encourage creditors to continue doing business with troubled debtors who may then be able to avoid bankruptcy altogether.
In February 1991, Jones owed Central States roughly $2.9 million for past-due fund contributions. Central States agreed to defer that debt by converting it to secured promissory notes and to continue doing business with Jones if Jones accelerated its current contributions by making estimated weekly payments, rather than paying once a month. Under the bankruptcy court and district court rulings, Central States must now return thirteen weekly payments to Jones's bankruptcy estate. Thus, its decision to continue doing business with a troubled debtor, which § 547 is designed to encourage, has increased Central States's unsecured bankruptcy claim by almost $5.7 million. This outcome is inconsistent with the policies underlying § 547. With that preamble, we turn to the specific statutory provisions at issue.
III. The Contemporaneous New Value Exchange Exception.
Contemporaneous new value exchanges are not preferential because they encourage creditors to deal with troubled debtors and because other creditors are not adversely affected if the debtor's estate receives new value. See Pine Top Ins. Co. v. Bank of Amer. Nat'l Trust & Sav. Ass'n,
Recognizing that the new value came from Jones's employees, not their benefit funds, exposes the flaw in Jones's contention that Central States merely refrained from terminating fund benefits in exchange for the weekly payments. While such forbearance is usually not new value, the question here is not what Central States did, but whether the weekly payments were for current or past-due employee services. To illustrate, assume that an employer fails to pay an employee's salary and benefits when due. The employee complains and threatens to resign, or his union threatens to strike. If the employer responds by paying (or providing collateral for) the past-due salary or benefits, that transfer is not for new value. See In re Elton Trucking, Inc., 1996 WL 261059 (Bankr.N.D.Ill.1996); In re Burner Servs. & Combustion Controls Co., 1989 WL 126487 (Bankr.D.Minn.1989).
Like the bankruptcy court and the district court, Jones sidesteps this reality by relying on cases that have construed the phrase "new value given to the debtor" in § 547(c)(1)(A) as meaning only new value given directly to the debtor by the creditor, in this case Central States. See In re Bowers-Siemon Chems. Co.,
IV. Other Issues.
For the foregoing reasons, we conclude that Jones may not avoid the thirteen weekly payments in question because they were contemporaneous exchanges for new value within the meaning of § 547(c)(1). As we understand the record, this decision effectively resolves the matters contested on appeal, so that the bankruptcy court on remand must simply reduce Central States's preference liability to uncontested amounts such as interest paid on the Fund Notes during the ninety-day preference period. However, because the case may be more complex than we realize, and because the other issues presented on appeal may well have significance in future cases, we will comment briefly on those issues.
Like § 547(c)(1), § 547(c)(4) "seeks to encourage creditors to deal with troubled businesses in the hope of rehabilitation." In re Kroh Bros. Dev. Co.,
For Central States to need the § 547(c)(4) exception, we must assume (contrary to our decision in Part III) that the § 547(c)(1) contemporaneous new value exception does not apply. If Jones received no contemporaneous new value for the weekly payments, then it necessarily received subsequent new value for each payment (except the last one) because its employees continued working. In Kroh Brothers, we observed that "section 547(c)(4) is not available to a creditor to the extent the creditor has received payment from the debtor for the goods or services constituting new value." 930 F.2d at 653. Applying that principle, the district court
Section 547(c)(4)(B) defines subsequent new value as value not offset by "an otherwise unavoidable transfer" to the creditor. Here, Central States received weekly payments made after employees provided subsequent new value, but those payments were "otherwise avoidable" and therefore cannot deprive Central States of § 547(c)(4) protection. As the court said in In re Maxwell Newspapers, Inc.,
Conceding that its ruling was contrary to the language of § 547(c)(4), the district court nonetheless considered itself bound by Kroh Brothers. However, the issue in Kroh Brothers was whether pre-petition payments to the creditor by another creditor should offset subsequent new value to the debtor. We held that such payments must be counted in the § 547(c)(4) new value equation; otherwise, the creditor would be in a better position than if the original preference had not occurred. See 930 F.2d at 653. Thus, Kroh Brothers did not involve the timing question in this case—whether prepetition payments to a creditor that are avoided after bankruptcy commences should offset that creditor's subsequent new value. Given the context of our decision in Kroh Brothers, we agree with courts that have construed our reference to "remaining unpaid" as "an adequate shorthand description of § 547(c)(4)(B)." In re Toyota of Jefferson, Inc.,
Applying this standard, the bankruptcy court and the district court concluded that each weekly contribution payment was for an antecedent debt because Jones became obligated to pay pension and welfare benefits on a weekly basis under the applicable collective bargaining agreements, and the payments were made thereafter. Central States — supported by the National Coordinating Committee for Multiemployer Plans as amicus curiae — argues that this application of § 547(b)(2) threatens ERISA benefit plans with unfair preference liability. Because these employee benefit obligations are continuously accruing and can only as a practical matter be calculated and paid on a periodic basis, Central States argues that they are not for antecedent debts if they are paid within a commercially reasonable time after the employees' services.
This is a difficult issue, and there is precedent on both sides. On the one hand, In re Emerald Oil Co.,
This § 547(b)(2) issue will not be as important as Central States suggests if the exceptions in § 547(c) protect employee benefit plans that should avoid preference liability. Because Central States prevails under the § 547(c)(1) exception, we will leave the antecedent debt question unresolved.
Central States argues that the district court violated § 1113(f) by permitting Jones to unilaterally alter its collective bargaining agreement by recovering as a preference money paid to Central States for work performed before bankruptcy. Like the bankruptcy court and the district court, we disagree.
Section 1113(f) was designed to prevent employers "from using bankruptcy as an offensive weapon to rid themselves of burdensome collective bargaining agreements." In re Ionosphere Clubs, Inc.,
The judgment of the district court is reversed and the case is remanded with instructions to remand to the bankruptcy court for recalculation of Central States's preference liability in accordance with this opinion.
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