AG Finan Service Inc v. Hughes, Barbara ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1028
In the Matter of:
A.G. FINANCIAL SERVICE CENTER, INC.,
Debtor.
Appeal of:
BARBARA HUGHES, et al.
____________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. NA 01-80-C-B/S—Sarah Evans Barker, Judge.
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ARGUED SEPTEMBER 9, 2004—DECIDED JANUARY 19, 2005
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Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. A.G. Financial Service
Center issued private-label credit cards, which consumers
used to purchase products from single merchants. Between
1992 and 1995 its stable of merchants included distributors
of satellite television systems. That line of business was a
disaster. A.G. Financial experienced high delinquency rates.
Worse, some borrowers complained that they had been mis-
led about the terms of credit or the costs of satellite TV.
About 500 borrowers sued. A suit in Mississippi ended in a
judgment for $167 million, almost all of it punitive dam-
ages. A.G. Financial responded by filing a petition in bank-
2 No. 04-1028
ruptcy. Other than about $2 million in cash, A.G. Financial’s
principal asset was a claim against American General Fi-
nance, Inc. (AGFI), its corporate parent, on the theory that
the parent had induced the subsidiary to mislead the bor-
rowers or otherwise bore responsibility for their injuries.
To resolve this claim, AGFI agreed to pay off all of the sub-
sidiary’s debts other than punitive-damages awards. A
global settlement ensued—well, an all-but-global settlement
ensued. Almost all of A.G. Financial’s actual and contingent
creditors agreed to accept specified sums; to the holdouts,
A.G. Financial (which meant, as a practical matter, AGFI)
offered a choice between $5,500 cash (less any unpaid bal-
ance on the account) and an opportunity to prove actual
damages to a trier of fact. Only eight of 238,721 cardholders
contended that these options are inadequate. Three of these
eight had not bothered to file claims in the bankruptcy, so
only five objectors have preserved their positions. These five
have not tried to establish that their actual damages exceed
$5,500; it is hard to see how borrowers who used A.G.
Financial’s credit to get satellite dishes and service could
make a plausible claim that $5,500 is too low. What they
want is a shot at punitive damages. The confirmed plan of
reorganization rejects all claims to punitive damages and
enjoins A.G. Financial’s creditors from suing AGFI. The five
objectors say that these provisions are unwarranted, and
they want us to direct the bankruptcy court to give them jury
trials at which punitive damages will be an option.
Appellate jurisdiction is the leadoff subject. Appeals lie
from final decisions, see 28 U.S.C. §158(d), §1291, and the
district court’s approval of the plan was not quite definitive.
The judge noted that one provision could be understood to
exceed the bankruptcy court’s jurisdiction, which is limited
to core matters and others related to the bankruptcy. To
avoid any potential for conflict between the plan and the
governing statutes, the district judge remanded with instruc-
tions to add to the plan a statement that “the bankruptcy
No. 04-1028 3
court retains only such jurisdiction as is legally permissible,
notwithstanding Section 10.2 of the Plan, to enforce all
provisions of the Plan”. Instead of waiting for the bankruptcy
judge to make this change, the five objectors appealed im-
mediately. (Actually all eight dissatisfied cardholders ap-
pealed, but the three who failed to file claims are pursuing
a will-o’-the-wisp. We disregard them from here on.) A.G.
Financial and AGFI contend that the appeal is premature;
and, because the bankruptcy judge eventually fixed the
problem (writing the district judge’s language into the plan),
and the five objectors neglected to appeal from that order,
a jurisdictional defect would conclude the litigation.
Finality is essential to appellate jurisdiction, and a remand
almost always shows that the district court’s decision is not
final. In re Lopez, 116 F.3d 1191 (7th Cir. 1997). But Lopez
and other decisions recognize an exception: an impending
ministerial act does not make a decision non-final, for
routine action on remand is unlikely to precipitate a later
appeal. Id. at 1192. See also, e.g., In re Stoecker, 5 F.3d 1022(7th Cir. 1993); In re Riggsby, 745 F.2d 1153 (7th Cir. 1984).
To say that the remand is for a ministerial act is to say that
the district judge has fully resolved the litigation: there is
no legal decision for a bankruptcy judge to make, no fact to
find, no discretion to exercise.
What today’s dispute shows is that it may be hard to de-
cide when action on remand is “ministerial.” The plan as
approved had a problem; a fix was simple, but the bank-
ruptcy judge was not required to use the district judge’s
proviso. The bankruptcy judge could have redrafted §10.2,
and such a revision would have required the exercise of
legal judgment. As it happens, the bankruptcy court used
the district judge’s language verbatim, but things might
have developed otherwise. And that, the appellees insist,
means that the remand was not for a ministerial act.
Disputes of this character imply that a more formal and
unyielding definition of a “final decision” has something to
4 No. 04-1028
recommend it, but none of the parties has asked us to re-
visit circuit law on the point. So we must characterize the
task that the district judge set for the bankruptcy judge: is
it “ministerial” or not? One illustration of a “ministerial”
task given by our decisions is the award of post-judgment
interest required by statute. If that task is “ministerial,”
this one must be too. Parties could dispute both the rate of
interest and the method used for compounding. Most calc-
ulations go smoothly, but some yield dispute. There was
less room for dispute about the modification of this plan.
There are a hundred ways to state that “this plan does not
attempt to usurp jurisdiction,” but all come to the same
thing, and none is apt to produce a second round of appeals—
certainly not on the same issues now presented, an import-
ant qualification. See Stoecker, 5 F.3d at 1026-27. This re-
mand was so straightforward, and the solution so simple,
that no one noticed the potential jurisdictional difficulty
until shortly before oral argument, when the appellees filed
a motion taking back their earlier view that the appeal was
proper. This court is grateful when counsel attend to
jurisdictional questions; counsel for the appellees receive
our thanks; but they were right the first time. The district
judge’s decision was final, the appeal is proper, and we turn
to the merits.
Appellants present 11 distinct issues, most of them beside
the point. Because the plan promises to pay creditors 100¢
on the dollar for all claims other than punitive damages—
and because $5,500 overcompensates the five appellants,
who have not endeavored to quantify actual loss—the only
issue of moment is whether the cardholders are entitled to
pursue punitive damages. Both the bankruptcy judge and
the district judge said that punitive damages are unavail-
able in bankruptcy, because their award would be unfair to
other creditors, but neither judge attempted to locate this
rule in the text of the Bankruptcy Code. Bankruptcy law en-
forces non-bankruptcy entitlements, unless they are modi-
No. 04-1028 5
fied according to the Code. See, e.g., Butner v. United
States, 440 U.S. 48 (1979). Bankruptcy courts lack authority
to alter rules of state law, or depart from those in the Code,
to implement their own views of wise policy. See In re
Kmart Corp., 359 F.3d 866 (7th Cir. 2004).
Only one appellate decision that we have been able to find
provides direct support for the view that punitive damages
are unavailable in bankruptcy, and it tossed off the subject
in a single thinly reasoned paragraph. In re GAC Corp., 681
F.2d 1295 (11th Cir. 1982). (Our own decision in Olympia
Equipment Leasing Co. v. Western Union Telegraph Co., 786
F.2d 794, 797 (7th Cir. 1986), on which defendants rely,
recognized what GAC and some district judges had con-
cluded but did not consider whether that position is correct.)
The eleventh circuit appeared to believe that because
punitive damages are, well, punitive, there is no purpose in
their award after bankruptcy; it also thought that bank-
ruptcy judges are entitled to reject all punitive claims
(including, say, trebled damages in antitrust and penalties
for filing false tax returns) that would dilute the interest of
other creditors. Since that decision’s release the Supreme
Court has rejected the contention that tax penalties may be
disfavored categorically, see United States v. Noland, 517
U.S. 535 (1996), strongly implying that case-by-case
administration of the Code’s authority for equitable subor-
dination is the right way to deal with all punitive financial
claims. See Thomas Grant, How United States v. Noland
Prohibits the Disallowance of Punitive Damages in Chapter
11, 14 Bank Dev. J. 199 (1997). Thus if state law deems pun-
itive damages unavailable against an insolvent defendant,
federal bankruptcy courts would follow suit on the Butner
principle; but if state law allows punitive awards against
insolvent parties, there is no federal bar—though whether
a punitive award should be subordinated to other claims is
open to independent consideration under the terms of the
Bankruptcy Code. See 11 U.S.C. §510(c)(1); United States v.
6 No. 04-1028
Reorganized CF&I Fabricators, 518 U.S. 213 (1996) (dis-
cussing equitable subordination in bankruptcy).
The district judge did not ask whether punitive damages
would be available under state law but made it plain that
any punitive awards would rank behind other claims, which
makes it hard to see what a remand could accomplish. Valu-
ation of claims against a debtor in bankruptcy is something
that a court may elect to resolve itself, even though claims
by debtors against third parties sometimes require jury
trials. See Langenkamp v. Culp, 498 U.S. 42 (1990);
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989);
Katchen v. Landy, 382 U.S. 323, 336-40 (1966). Bankruptcy
courts may relinquish tort claims to state tribunals, see 28
U.S.C. §1334(c), or a district judge may withdraw a refer-
ence and conduct a jury trial, see 28 U.S.C. §157(d), but
with few exceptions (none applicable here) creditors of the
estate do not have a right to either step—and neither the
bankruptcy judge nor the district judge had the slightest
inclination to empanel a jury to hear this claim as a matter
of discretion, or to award punitive damages (a discretionary
remedy altogether) in a bench trial. So what would be the
point?
Moreover, no one is entitled to a trial of any kind unless
there is a disputed issue of material fact. Appellants have
not shown that there is such an issue; they have not bothered
to tell us what they think A.G. Financial did wrong, or why
its missteps (whatever they were) justify punitive damages.
The statement of facts in appellants’ brief is one page long
and does nothing except limn a few of the steps taken in the
bankruptcy; we are bereft of facts about A.G. Financial’s
conduct. And a claim under federal law would fare no bet-
ter. The Truth in Lending Act authorizes penalties on top
of actual damages, but these are modest—$1,000 or less per
person, see Koons Buick Pontiac GMC, Inc. v. Nigh, No.
03-377 (U.S. Nov. 30, 2004)—and would not enable the
cardholders to exceed the $5,500 already on offer without
No. 04-1028 7
need for proof of injury. One freakish jury verdict in
Mississippi, never reviewed by an appellate court, does not
show that material disputes require a trial in Indiana. (A.G.
Financial contested the 500 or so suits filed against it and
appears to have prevailed or settled the rest for small sums,
though the single loss was a doozy.) Indeed, appellants not
only fail to describe the facts on which they rely but also fail
to name the body of state law that they think should
govern. They have utterly neglected to lay the groundwork
for punitive damages.
As for the injunction forbidding suit against AGFI: this
was just a precaution against a never-say-die attitude.
Cardholders did not deal with AGFI, whose acts harmed them
indirectly, if at all, through their influence on A.G. Financial.
If it had remained in business, A.G. Financial’s creditors
might have attempted derivative litigation on its behalf; but
once the bankruptcy commenced, it became the collective
proceeding through which such claims are vindicated for
creditors’ mutual benefit. See Lumpkin v. Envirodyne
Industries, Inc., 933 F.2d 449, 462 (7th Cir. 1991); Koch
Refining v. Farmers Union Central Exchange, Inc., 831 F.2d
1339, 1348-49 (7th Cir. 1987); In re Kaiser, 791 F.2d 73 (7th
Cir. 1986). Creditors cannot bypass a bankruptcy by seizing
a debtor’s choses in action; they are assets of the estate.
Cardholders lost nothing when the district judge blocked
them from trying to appropriate a claim belonging to A.G.
Financial—a claim that had, moreover, been settled and
released with the court’s approval. AGFI was not going to
provide the creditors with full compensation if they could
then file separate suits for more; peace is essential to set-
tlement.
Our five borrowers rely on Fogel v. Zell, 221 F.3d 955,
962-63 (7th Cir. 2000), which holds that bankruptcy courts
may not enjoin suits by tort victims who were never notified
of the bankruptcy. Fogel offers them no aid: first because the
claim they have been enjoined from pursuing belongs to
8 No. 04-1028
A.G. Financial, and second because they were notified of the
bankruptcy and have enjoyed ample opportunity to be heard
on their contentions. Having received their due, they may
not start again in another court. Fisher v. Apostolou, 155
F.3d 876, 882-83 (7th Cir. 1998), and In re Continental
Airlines, 203 F.3d 203 (3d Cir. 2000), similarly are unhelp-
ful to the cardholders. They concluded that bankruptcy
courts may not foreclose litigation against third parties that
may be responsible jointly with the bankrupt entity (for ex-
ample, joint tortfeasors, guarantors, and the like). But AGFI
is not a joint tortfeasor; as we have explained, its responsi-
bility (if any) is to the debtor, and the cardholders have only
a derivative claim that has been settled and released. There
is not and never was any claim against AGFI for them to
pursue individually.
Only one of appellants’ many other contentions requires
discussion. The five cardholders say that the judge should
have ordered A.G. Financial to turn over its customer list
(which the parties oddly call “the matrix”) so that their
lawyer could solicit more clients. The customer list was an
asset of the debtor, which sold it to Associates Commercial
Bank for the benefit of all creditors. (The buyer is unrelated
to AGFI; there is no skullduggery afoot.) Both the Code, 11
U.S.C. §107(b)(1), and Fed. R. Bankr. P. 9018 authorize the
court to withhold confidential commercial information from
public disclosure. Handing the list over for free would have
diminished the value of the estate. Lawyers have a right
under the first amendment to solicit clients; they do not
have a right to a subsidy in this endeavor. Counsel could
have bid for the list like any other asset, or they could have
rented the list from its buyer. Lawyers pay for paper, books,
office space, and other inputs into their profession; they
must pay for mailing lists too.
AFFIRMED
No. 04-1028 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-19-05