A&F Enterprises, Inc. II v. IHOP Franchising, LLC ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3192
IN RE : A&F ENTERPRISES, INC . II, et al.,
Debtors-Appellants.
APPEAL OF:
A&F ENTERPRISES, INC . II, et al.,
Appellants,
v.
IHOP FRANCHISING LLC, et al.,
Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 13 C 7020 — Virginia M . Kendall, Judge.
ARGUED DECEMBER 11, 2013 — DECIDED FEBRUARY 7, 2014
Before WOOD , Chief Judge, and FLAUM and SYKES, Circuit
Judges.
2 No. 13-3192
SYKES, Circuit Judge. Ali Alforookh manages and operates
restaurants in Wisconsin, Illinois, and Missouri under franchise
agreements with International House of Pancakes (“IHOP”).
He created several companies to hold the IHOP franchises he
acquired over the years, including A&F Enterprises, Inc. II.
Alforookh and his companies (collectively “A&F”) are cur-
rently in Chapter 11 bankruptcy proceedings. Their primary
assets are 17 separate IHOP franchise agreements and the
corresponding building and equipment leases.1 At this point
the central dispute in the bankruptcy is the time limit for
assuming these contracts. In general, debtors in Chapter 11
may assume or reject executory contracts any time before
confirmation of a plan. 11 U.S.C. § 365(d)(2). Unexpired leases
of nonresidential real property, however, must be assumed
within 120 days (210 days if the court grants a 90-day exten-
sion). Id. § 365(d)(4). A&F neither assumed the building leases
within 120 days nor sought an extension, so IHOP contends
that the building leases were rejected, and by way of cross-
default provisions, that the franchise agreements and equip-
ment leases expired. A&F believes that because the building
leases are just one part of the larger franchise arrangement
with IHOP, § 365(d)(2)’s more generous time limit applies to
the whole arrangement, including the building leases.
The issue for us on this appeal, however, is slightly differ-
ent. A&F and IHOP fought this legal battle in bankruptcy
court, and A&F lost on the merits. The bankruptcy judge
issued orders deeming the building leases rejected and the
1
There were 19 sets of agreements, but A&F has rejected two of them.
No. 13-3192 3
franchise agreements and equipment leases expired. A&F
appealed this decision to the district court. A&F also sought a
stay pending appeal, which both the bankruptcy court and the
district court denied. Both courts thought that A&F’s position
lacked merit because the text of § 365(d)(4) contains no
exception for leases tied to franchises. A&F filed this appeal
seeking review of the district court’s order denying the stay
and also moved for an emergency stay. We granted the
emergency motion and issued a stay order freezing the status
quo during the pendency of this appeal. The sole issue for us
now is whether the bankruptcy court’s orders should be stayed
pending resolution of the appeal on the merits, which remains
pending before the district court. We find that a continued stay
is warranted.
I.
The standard for granting a stay pending appeal mirrors
that for granting a preliminary injunction. In re Forty–Eight
Insulations, Inc., 115 F.3d 1294, 1300 (7th Cir. 1997). Stays, like
preliminary injunctions, are necessary to mitigate the damage
that can be done during the interim period before a legal issue
is finally resolved on its merits. The goal is to minimize the
costs of error. See Stuller, Inc. v. Steak N Shake Enters., Inc.,
695 F.3d 676, 678 (7th Cir. 2012); Roland Mach. Co. v. Dresser
Indus., Inc., 749 F.2d 380, 388 (7th Cir. 1984). To determine
whether to grant a stay, we consider the moving party’s
likelihood of success on the merits, the irreparable harm that
will result to each side if the stay is either granted or denied in
error, and whether the public interest favors one side or the
4 No. 13-3192
other. See Cavel Int’l, Inc. v. Madigan, 500 F.3d 544, 547–48 (7th
Cir. 2007); Sofinet v. INS, 188 F.3d 703, 706 (7th Cir. 1999); In re
Forty–Eight Insulations, 115 F.3d at 1300. As with a motion for
a preliminary injunction, a “sliding scale” approach applies;
the greater the moving party’s likelihood of success on the
merits, the less heavily the balance of harms must weigh in its
favor, and vice versa. Cavel, 500 F.3d at 547–48; Sofinet, 188 F.3d
at 707. An unusual twist here is that the stay issue comes to us
in the context of a bankruptcy appeal to the district court. But
our jurisdiction is secure under 28 U.S.C. § 1292(a). See In re
Forty–Eight Insulations, 115 F.3d at 1300. The district judge
denied the stay after concluding that A&F was not likely to
succeed on the merits; although other aspects of a stay decision
are reviewed deferentially, this is a legal conclusion that we
review de novo. Id. at 1301.
The contractual relationship between the parties is undis-
puted. For all but four of the restaurants, there are three
separate contracts: a franchise agreement, a building sublease
(IHOP leases the buildings from third parties and subleases
them to A&F), and an equipment lease, all of which contain
cross-default provisions.2 A&F may not use the leased build-
ings for anything other than IHOP restaurants, and the leases
2
For some of the restaurants, the contractual arrangement is slightly
different. A&F leases four of the buildings directly from third parties, rather
than IHOP. These leases contain an addendum , to which IHOP is a party,
making them functionally similar to the subleasing arrangement (though
perhaps different enough to matter, see infra note 4). In the event A&F
defaults on the lease or on the franchise agreement, IHOP succeeds to
A&F’s rights under the lease and may sublease it to a new franchisee.
No. 13-3192 5
cannot be assigned.3 The parties dispute whether the agree-
ments should be viewed as a single integrated contract or as
separate-but-interrelated contracts, but they generally agree on
the effects of the arrangement. See generally In re FPSDA I, LLC,
470 B.R. 257, 266–72 (E.D.N.Y. 2012) (discussing two ways to
characterize these arrangements, but concluding that the choice
of characterization doesn’t affect whether § 365(d)(4)’s time
limit applies). A&F has no way to assume the leases without
also assuming the franchises; several courts have held that
indivisible contractual arrangements must be assumed or
rejected in whole, e.g., In re Wagstaff Minn., Inc., No. 11–43073,
2012 WL 10623 (D. Minn. Jan. 3, 2012), but even if A&F were
allowed to assume the leases separately, they would be
worthless without the franchises since their only permitted use
is the operation of IHOP restaurants.4 Similarly, A&F cannot
assume the franchises without also assuming the leases
because the franchise agreements automatically expire if A&F
loses the right to occupy the leased buildings. A&F argues that
3
From this point forward, we will ignore the equipment leases and refer to
the building leases simply as “the leases” since the analysis of the equip-
ment leases matches that of the franchise agreements.
4
This may not be true for the four franchises for which A&F leases the
buildings directly from third parties. See supra note 2. The lease addendum
says that “the anticipated use of the Demised Premises is the conduct of
an … IHOP [r]estaurant,” but doesn’t make clear that an alternate use
would constitute a breach. This, and the fact that the lease is with a third
party, may make the substantive result different for these restaurants. We
don’t need to decide this now, however, because as long as A&F has a
likelihood of success with regard to many of the franchises, and the balance
of harms tips in its favor, a stay is warranted.
6 No. 13-3192
since the leases and franchise agreements must be assumed or
rejected in tandem, the longer time limit should apply, while
IHOP contends that A&F should be required to assume both
within 120 days.
II.
IHOP maintains that the text of § 365(d)(4) plainly controls,
leaving no room for an exception for franchise-bound leases. It
cites Sunbeam Products, Inc. v. Chicago American Manufacturing,
LLC, 686 F.3d 372 (7th Cir. 2012), in which we warned bank-
ruptcy courts not to create equitable exceptions to clear
provisions of the bankruptcy code. But the code is not so clear
in this case. While it’s undeniable that § 365(d)(4)’s 120-day
time limit controls stand-alone leases, it’s equally undeniable
that § 365(d)(2)’s longer time limit controls stand-alone
franchise agreements. When a franchise agreement and a lease
are inseparable, one time limit or the other will control both. In
the same way that applying § 365(d)(2)’s time limit to the entire
arrangement creates an “exception” for certain leases, applying
§ 365(d)(4)’s time limit creates an “exception” for certain
franchises. Granted, the two possibilities are not perfectly
symmetrical because one result permits something the code
forbids (assuming a lease beyond 120 days) while the other
result prevents something the code permits (assuming a
franchise agreement beyond 120 days). This is a distinction
without a difference, however, because a legal entitlement is
lost either way: Either franchisees lose the right to assume
franchise agreements at any time before confirmation of a plan,
or lessors lose the right to have their leases assumed or rejected
No. 13-3192 7
within 120 days. Creating an exception is unavoidable, so we
have no choice but to look beyond the text.
There are powerful arguments in favor of A&F’s position.
Chapter 11 is premised on giving debtors a full opportunity to
reorganize, and provisions like § 365(d)(4) that limit this
opportunity are the exception, not the rule. The franchise
agreement is clearly the dominant contract and the focus of the
parties’ bargaining, so prioritizing the lease lets the tail wag the
dog. Furthermore, what little caselaw there is on this precise
issue favors A&F’s position. Two bankruptcy courts have held
on nearly identical facts that § 365(d)(4) does not apply to a
lease that is so tightly connected to a franchise arrangement. In
re FPSDA I, LLC, 450 B.R. 392 (Bankr. E.D.N.Y. 2011), petition
for interlocutory appeal denied by 470 B.R. 257, 271 (E.D.N.Y.
2012) (finding that “there is not a substantial ground for
difference of opinion as to whether [§ 365(d)(4)] is applicable”
to a similar franchise-bound lease); In re Harrison, 117 B.R. 570(Bankr. C.D. Cal. 1990). Though we are provisionally per-
suaded that A&F’s position has substantial merit, we empha-
size that we aren’t deciding the issue today. IHOP leaned
heavily on the text, and now that we’ve indicated that we don’t
find the text conclusive, IHOP’s position may benefit from
more extensive briefing on the merits.
Because the legal issue does not have a clear-cut answer, we
rest our decision on whether to grant the stay primarily on the
balance of potential harms. We don’t have the benefit of any
factual findings—the bankruptcy judge denied A&F’s request
for an evidentiary hearing because he concluded that the legal
question wasn’t even close—but that doesn’t preclude us from
8 No. 13-3192
deciding whether to grant a stay. This analysis is at best a
rough estimation, and we are persuaded that A&F has more to
lose than IHOP.
A&F fears that it will permanently lose its franchises
without a stay. If a stay is denied, IHOP, which wants to sell
the franchises, may do so before A&F’s appeal has finished.
Both parties assume that if IHOP were able to find new
franchisees, A&F would have no way to recover the franchises,
even if it were to win on appeal. Although neither side offers
support for that assumption, we note that under equitable
principles in bankruptcy law, courts sometimes refuse to undo
certain business transactions. SEC v. Wealth Mgmt. LLC,
628 F.3d 323, 331–32 (7th Cir. 2010) (noting that it is a
“fact-intensive” inquiry that weighs, among other things, “the
effects … on innocent third parties” and the “difficulty of
reversing consummated transactions”); see also United States v.
Buchman, 646 F.3d 409, 410 (7th Cir. 2011) (“[A] completed
[foreclosure] sale will not be upset.”); In re UNR Indus., Inc.,
20 F.3d 766, 769–70 (7th Cir. 1994). Therefore, we will assume
without deciding that the parties are correct and that the sale
of the franchises could not be undone.
Even so, IHOP argues that the loss of the franchises would
not be irreparable because A&F could be fully compensated by
money.5 Though damages are adequate to remedy many
5
A&F suggests that the appeal will be mooted if the franchises were sold,
preventing them from even recovering damages. A&F doesn’t cite any
authority for this, and we doubt that it is correct. See In re Res. Tech. Corp.,
430 F.3d 884, 886–87 (7th Cir. 2005) (rejecting the argument that the
(continued...)
No. 13-3192 9
business losses, difficulties in valuation can in some circum-
stances make damages inadequate, resulting in irreparable
harm. Roland Mach., 749 F.2d at 386. Sale proceeds here could
provide some estimate of value, but long-term effects—like
permanent changes in ownership—are especially hard to
measure. Cf. id. (“[I]t may be very difficult to … project [the]
effect [of terminating an exclusive-dealing contract] into the
distant future.”). Indeed, a primary assumption behind
Chapter 11 is that reorganization preserves value better than
liquidation, and leaving A&F with nothing but a damages
remedy is the equivalent of converting the reorganization into
a liquidation. See Toibb v. Radloff, 501 U.S. 157, 163–64 (1991)
(“Chapter 11 … embodies the general Code policy of maximiz-
ing the value of the bankruptcy estate. … Under certain
circumstances a … debtor’s estate will be worth more if
reorganized under Chapter 11 than if liquidated under Chapter
7.”). Valuation is more complicated here because of the many
possible routes A&F’s Chapter 11 proceeding could take.
Quantifying the hypothetical results of this process is an
impossible task.
Valuation problems aside, damages are also insufficient to
protect Alforookh’s interest in continuing to operate his
business of choice. See Roland Mach., 749 F.2d at 386 (“ ‘[T]he
5
(...continued)
disputed issues in a contested bankruptcy settlement were rendered moot
by its final consummation in part because the court could award damages
even if undoing the settlement wouldn’t be feasible). We don’t need to
decide this issue, however, because we find irreparable harm to A &F for
other reasons.
10 No. 13-3192
right to continue a business in which William Semmes had
engaged for twenty years and into which his son had recently
entered is not measurable entirely in monetary terms; the
Semmes want to sell automobiles, not to live on the income
from a damages award.’ ” (quoting Semmes Motors, Inc. v. Ford
Motor Co., 429 F.2d 1197, 1205 (2nd Cir. 1970))); Stuller, Inc. v.
Steak N Shake Enters., Inc., 10-CV-3303, 2011 WL 2473330, at *11
(C.D. Ill. June 22, 2011) (“The loss or threatened loss of a
franchise can constitute irreparable harm.” (citing Semmes
Motors, 429 F.2d at 1205)), aff’d, 695 F.3d 676 (7th Cir. 2012).
Chapter 11 is intended to “permit[] business debtors to
reorganize and restructure their debts in order to revive the
debtors’ businesses.” Toibb, 501 U.S. at 163. We have held,
along with other circuits, that a conversion from Chapter 11 to
Chapter 7 is a final appealable order in part because the loss of
an opportunity to reorganize is irreparable. In re USA Baby,
Inc., 674 F.3d 882, 883 (7th Cir. 2012) (holding that conversion
is “final in the practical sense that a Chapter 7 proceeding
results in liquidation, depriving the debtor of the chance he
would have in a Chapter 11 proceeding to reorganize and
continue as a going concern”); In re Rosson, 545 F.3d 764, 770
(9th Cir. 2008) (“[B]ecause a conversion to Chapter 7 takes
control of the estate out of the hands of the debtor, it seriously
affects substantive rights and may lead to irreparable harm to
the debtor if immediate review is denied.”). And as we’ve
already noted, a sale of the restaurants would put an end to
A&F’s hopes of reorganization. IHOP’s only response is that
A&F is unlikely to be able to achieve a successful reorganiza-
tion, but IHOP can’t expect us to assess the likely outcome of
the entire bankruptcy at this stage. We have no trouble finding
No. 13-3192 11
that there would be significant, irreparable harm to A&F were
we to deny the stay.
On the other side, IHOP contends that the goodwill
associated with its trademark will be damaged if A&F contin-
ues to operate its restaurants while the appeal is pending.
IHOP points us to customer complaints, failed inspections,
some bad press at one location, and a temporary shutdown at
two other locations due to a licensing issue. As IHOP reminds
us, we have frequently said that trademark violations are
irreparable, primarily because injuries to reputation and
goodwill are nearly impossible to measure. E.g., Abbott Labs. v.
Mead Johnson & Co., 971 F.2d 6, 16 (7th Cir. 1992). A&F re-
sponds that a few isolated problems are a normal part of
operating restaurants and that it has dealt swiftly with them as
they’ve come up. We have no way of determining who is right,
especially without the benefit of any evidentiary findings
below. That said, IHOP does not argue (at least to us) that any
of these issues are material breaches that themselves would
warrant termination of the franchise agreements. And all the
cases that IHOP cites in which franchisees were preliminarily
enjoined from continued use of the franchisor’s trademark
involved franchise agreements that had either already termi-
nated or were clearly breached. E.g., Re/Max N. Cent., Inc. v.
Cook, 272 F.3d 424 (7th Cir. 2001) (repeated attempts to negoti-
ate renewal terms had failed and the franchise agreement had
long since expired); Gorenstein Enters., Inc. v. Quality Care–USA,
Inc., 874 F.2d 431 (7th Cir. 1989) (franchisee was seeking to
rescind the franchise); 7-Eleven, Inc. v. Spear, No. 10-cv-6697,
2011 WL 830069 (N.D. Ill. Mar. 3, 2011) (franchise had been
terminated based on an undisputed material breach); Cal City
12 No. 13-3192
Optical Inc. v. Pearle Vision, Inc., No. 93 C 7577, 1994 WL 114859(N.D. Ill. Mar. 29, 1994) (franchisor showed “clear-cut”
breaches of the franchise agreement). Unlike these cases, the
only thing that might make A&F’s use of IHOP’s trademark
unauthorized—the bankruptcy time limit in § 365(d)(4)—is
unrelated to improper use of the mark or violations of the
franchise agreement. Therefore, we think it clear that any
damage to IHOP’s reputation is much less severe than the
more immediate injury of cutting off A&F’s reorganization
efforts entirely.
III.
Because A&F has demonstrated a likelihood of success on
the merits and the potential harm to A&F is greater than that
to IHOP, a stay is warranted. Accordingly, the district court’s
order denying A&F’s motion for a stay is REVERSED . Our
emergency stay shall remain in place. Enforcement of the
bankruptcy court orders dated August 5, 2013, and
September 18, 2013, deeming the debtors’ leases and subleases
rejected, and the order dated September 23, 2013, deeming the
debtors’ franchise agreements and equipment leases expired,
is stayed until final disposition of A&F’s appeal.