Documentos de Académico
Documentos de Profesional
Documentos de Cultura
____________________
No. 94-2173
Appellants,
v.
Appellee.
____________________
No. 94-2200
Appellees,
v.
Appellant.
____________________
ERRATA SHEET
The
as follows:
p.9,
1, l.14:
Colo. 1992))."
in place of "(Bankr.
____________________
No. 94-2173
Appellants,
v.
Appellee.
____________________
No. 94-2200
Appellees,
v.
Appellant.
____________________
____________________
____________________
Bruce E. Baty,
_____________
with whom
Hecker, Charles K. Bergin, Jr., and Robinson, Donovan, Madden & Bar
______ ______________________
_______________________________
P.C. were on brief for Monarch Life Insurance Company.
____
John K. Villa, with whom
______________
Nicole K. Seligman,
__________________
Philip J. Deut
______________
Williams & Connolly, Charles S. Cohen and Egan, Flanagan and Coh
____________________ _________________
_______________________
P.C. were on brief for Ropes & Gray.
____
____________________
CYR,
CYR,
Circuit Judge.
Circuit Judge.
______________
Following
an
unsuccessful
Co. ("Monarch
bankruptcy
Life")
court
order enjoining
malpractice action
former counsel,
continues
to
press its
its
prosecution
in Massachusetts Superior
of Ropes &
challenge
of a
Court against
Gray.
to
legal
its
The bankruptcy
court
determined
that
the
Monarch
Life
action
violated
plan
of
its
parent corporation,
("Monarch Capital").
We now
Monarch
Capital
Corporation
court on
the
enter
the
permanent injunction
incorporated
in the
confirmed
reorganization plan.
I
I
BACKGROUND
BACKGROUND
__________
1968,
marketed life
and
disability
a holding company
insurance through
in
Monarch
Life, its
real estate
subsidiaries").
Ropes
&
Gray
and developed
provided
simultaneous
legal
Monarch Life.
Short-Term
____________________
1For
Springfield
simplicity sake,
Life
Insurance
"Monarch
Company
Insurance Company.
Life" includes
and
First
appellants
Variable
Life
Investment
Pool
("STIP"),
Monarch Capital's
their
excess
Monarch
common bank
account
cash
balances.
Capital to
borrow
The
STIP
needed funds
into
daily deposits of
agreement
from
which
authorized
the STIP
at
an
Beginning
in
1987,
Monarch
Capital's
real
estate
began to
Monarch
borrow heavily
Life.
By
from the
1990,
STIP deposits
Monarch
Life's
In order
Capital
contributed by
outstanding
STIP
"advances" to
Monarch Capital
During
that same
When
year, Monarch
Shortly
Capital borrowed
an additional
Life as
In May
placed
an
involuntary
After
chapter
seven months
Monarch Capital
11 petition
of negotiation,
the 235
Insurance Commissioner
against
Monarch
the principal
Capital.
creditors of
proposed
plan
of reorganization
("Plan"), which
purported to
settle or
against Monarch
(Bankr.
No. 91-41379-JFQ,
other creditors.
slip op.
at 9
claim that Monarch Capital, acting in concert with the 235 Banks,
had used
the STIP
placing
Monarch
to deplete
Life
in
regulations.3
In
release claims
and to make
Plan,
the
Plan
Monarch
Life's coffers,
violation
consideration
of
of their
state
thereby
insurance
mutual agreement
financial contributions to
proponents
insisted
on
the
to
fund the
inclusion
of
The
injunction
ultimately
included
in
the
In
addition
to
Section 1141
supplement
Article
the discharge
provided
by
of the Bankruptcy
Code and
to
the
VI.A
discharge
of
the
provisions
Plan,
this
of
Order
of the following
order
____________________
in the chapter 11
3The
Capital
Plan
also
provided,
inter alia,
_____ ____
that
(1)
Monarch
the "Life Group") from its real estate business (thereby creating
the
"New Realty
their guaranty
connection
share
Group"); and
for the
creditors.
Upon confirmation of
majority of
1990 loan
Monarch
Life's
Monarch Life
would release
subsidiaries in
to Monarch Capital,
became
235 Banks
collateral
Banks
(2) the
and agree to
been pledged as
Capital's unsecured
by
receivership.
acquiring
Life emerged
235
clear
from
action
brought
to
obligation under
enforce
any
the Plan or
right
or
the Settlement
Agreement):
a. commencement or
____________ __
action
______
related
_______
or
__
continuation of
____________ __
proceeding
__________
to
__
a
_
claim
_____
Capital] against or
any
property
any
___
arising from
_______ ____
against
_______
[Monarch
affecting or
of [Monarch
or
__
[sic]
Capital], or
of,
successor in
or
direct
interest
or
to, any
indirect
of
the
continuation of
____________ __
any
___
foregoing . . . ; and
___
b. commencement or
____________ __
action
______
or
__
proceeding
__________
arising from
_______ ____
or
__
Receivership
or
Debtor against
Holding
Co.,
Life],
the
Trustee,
such
the operations
of the
or affecting any
of New
New Realty
Agent, the
the
235
Banks, the
Creditors' Committee
capacity),
Receiver and
___
Co., [Monarch
the
[Monarch
(in
Life]
and
assigns
claim to enforce
Plan or
other
than
obligations under
the
. .
.4
After
hearing,
a bankruptcy
court to
effectively
grants
chapter
_______
debtor, the
______
11
__
at
which
the
parties
Bankruptcy Code
105(a)5
"discharge"
bankruptcy
to parties
court
discussed
empowers
relief which
other
_____
than
____
confirmed the
the
___
Plan,
____________________
order,
appropriate
U.S.C.
to
process,
carry out
relevant part:
or
judgment that
the provisions
of
"The
is
court may
necessary
this title."
or
11
105(a).
including
See id. at
___ ___
infra Appendix
_____
confirmation
at pp.
order).
prompt confirmation
91-41379-JFQ,
The
of a
No.
bankruptcy court
chapter 11
liquidation.
slip
op. at
excerpts from
found that
absent
likely
18.
Monarch
Life's receiver
Monarch
allegedly
Life
soon
establishing
represented
circumstances
both
discovered
that
Monarch
Ropes
&
Capital
which suggested an
participation
Monarch
evidence
simultaneously
Monarch
Life
in
compensatory damages
in
Gray
and
Court, seeking
documentary
Capital's
Massachusetts Superior
private
Gray's alleged
strategy
to
use
Monarch Life's
STIP contributions
moribund real
estate investments.
alia,
____
that Monarch
Massachusetts
nature
and
Capital
insurance
laws which
Monarch Life
and Ropes
amount
insurance
Monarch Capital's
&
alleged, inter
_____
Gray, in
regulators, deliberately
understated the
to prop up
of the
STIP
reports
to
concealed the
"advances" to
require that
insurance companies
keep on
Monarch
Life further alleged that Ropes & Gray had deliberately concealed
to finance its
long-term real
estate ventures, as
well as
the
fact
that
Monarch Capital
had
no realistic
prospect
of ever
Monarch Life
in the
court action
Monarch
contempt
bankruptcy court,
Capital chapter
motion, the
11 plan.
Following
bankruptcy court
contempt against
state
in the confirmed
a hearing
determined that
on the
(1) the
Monarch
Life
action
was barred
by
the
broad
terms of
both
see supra p.
___ _____
doctrine of res
___
judicata precluded
________
to enter the
broad-based injunction.
Monarch
_______
Monarch Life
in civil contempt
Plan
15, 1993).
bad faith.
affirmed
but refused to
of the injunctive
Id. at 7.
___
impose sanctions
provision in the
held
confirmed
to permit a
or undertaken in
____________
_______
31 (D.
____________________
6Ropes
that (1)
Monarch Capital,
as the
parent of Monarch Life, had the unfettered legal right to use its
subsidiaries'
learned
assets
of the
STIP
outstanding balances
to
as it
wished; (2)
advances until
Monarch
1989,
& Gray
by which
advised
Ropes
Capital not
to
funds.
"borrow"
had not
time
the
(3) in order
at that time
any additional
STIP
Mass. 1994).7
II
II
DISCUSSION
DISCUSSION
__________
Monarch Life
permanent
contends, as
__
injunctive provision
a matter
_ ______
included in
of law,
__ ___
that the
the confirmed
as Ropes &
"discharge"
see
___
Plan
power to
_____
Brief for
Appellants at
524(e), 11 U.S.C.
12-16
(citing Bankruptcy
524(e) ("[D]ischarge
Code
does not
property
of
any
Hardwoods, Inc.
________________
other
v.
of any
entity
other entity
for,
such
debt.");
Deutsche
Credit Corp.
________________________
F.2d 621,
626 (9th
on, or
the
American
________
(In re American
________________
Cir. 1989)),
or (2)
debts of any nondebtor such as Ropes & Gray which concededly made
no financial contribution to
_________
16-20 (citing
148 B.R.
665, 687
____________________
7The district
First,
court relied
it determined
judicata against
________
that
on slightly
it would
be
different grounds.
unfair to
Gray.
Id. at 40-41.
___
The
invoke
res
___
actions against
hearing.
graph
(a)
Id. at 43-44.
___
of the
injunction was
district
only
made
sanctions
vacated
the
unwarranted
court's threshold
contemnor.
Id. at 46.
___
finding
but
bar Monarch
Id. at
___
order of
bankruptcy
enough to
court thereupon
broad
also
44-45.
contempt,
provision not
undermined
that Monarch
Life was
the
Ropes
under
& Gray
counters
that Monarch
litigating
Life is
barred,
not only knowingly failed to appeal from the order confirming the
acquiesced in
__________
court possessed
105(a).
its co-proponents'
plan, the
(1938) (unless
ruling is
ruling by
conclusive in
bankruptcy
Bankruptcy Code
a party in interest
of
subsequent proceedings);
1987) (same); cf. Celotex Corp. v. Edwards, 115 S. Ct. 1493, 1499
___ _____________
(1995)
(if bankruptcy
court
_______
determines that
cf.
___
by collateral
also Maggio
____ ______
v.
the
merits,
of
so-
105(a),
determination,
attack on bankruptcy
Zeitz, 333
_____
retrying
decision, not
it possesses
U.S.
56, 69
court order);
(1948)
(contempt
the
order
contravened
by
alleged
contemnor).
A.
A.
Standards of Review
Standards of Review
___________________
Although
bankruptcy
the
conclusions
of
law
reached
by
the
to de novo
__ ____
10
review, the
clear error.
v.
20, n. 8 (1st Cir. 1994); In re G.S.F. Corp., 938 F.2d 1467, 1474
__________________
(1st
Cir.
1991).
The
applicability
vel non
___ ___
of
preclusion
principles
is a question of law.
order
Since the
the bankruptcy
Inc.,
____
996
court
F.2d
see FDIC v.
___ ____
493,
497
(1st
Cir.
Shearson-American Express
_________________________
1993)
(bankruptcy court
v.
1054
(1994); see
___
also, e.g.,
____ ____
Stoll, 305
_____
U.S. at
S. Ct.
170 (finding
Cir. 1992)
Eubanks v.
_______
166, 170
apply.
(5th
See
___
87.
Ropes
In order to invoke
&
Gray must
proceedings and
issue
_____
of law
issue in
F.3d
demonstrate
that:
the confirmation
or fact;
(2) the
(1)
the
contempt
proceedings involved
the same
____
parties actually
________
actually resolved
________ ________
the
both
issue in
11
litigated the
_________
final and
binding
judgment
issue
was
of
law
or fact
essential
_________
its resolution of
to
its judgment
that
(i.e.,
B.
B.
____________________
27(1982).8
8Monarch
judicata principles
________
therefore,
was
proceedings.
because it
not a
"party"
See, e.g.,
___ ____
filed no chapter
to the
rely on res
___
11 claim
and,
chapter
11 confirmation
Amertex Enters.
_______________
Ltd., 48 F.3d 576, 583 (1st Cir. 1995) (claim preclusion normally
____
requires
"identicality
of
parties,"
or
at
least
privity).
refer
or
__
either
______
collateral
estoppel).
basis for
that
to claim
preclusion
"res
___
F.2d
Executives' Ass'n
_________________
11
n.3 (1st
893,
898
Cir. 1993)
two doctrines).
are
(1st
1984));
Railway Labor
______________
989 F.2d 9,
only one
estoppel"
between
and observing
circumstances) (citing
744
(i.e.,
bankruptcy court
labels
issue preclusion
_____ __________
over same
746 F.2d
component "issue"
confirmation order
(viz.,
the
105(a)),
bankruptcy court's
jurisdiction
or
power under
exactly
characterized
as
collateral
estoppel
("issue
preclusion").
A
privy
the first
proceeding.
322, 326-28
See
___
(1979) (no
"mutuality of
Fiumara, 746
_______
It need only
parties"
14, 16
"mutuality"
had
preclusion,
we
would have
supported by
opportunity to
(Massachusetts law
rule) (emphasis
court
against
_______
bankruptcy
based
added).
Of
its
contempt
been free
to
record.
dispenses with
course,
even if
ruling
affirm on
See
___
12
claim
any ground
La Electronica,
_______________
on
the
320, 321
1.
1.
"Same Issue"
"Same Issue"
__________
We must
sought
to "relitigate"
in
its defense
against Ropes
105(a)
the
initiation
or continuation
nonbankruptcy forum
of
judicial
& Gray's
Bankruptcy Code
court to enjoin
proceedings in
pendency of a
chapter 11 case,
actions
would
entail
or
threaten
adverse
the
automatic
ostensibly
These injunctions
stay,
protects
creditor "grab-law"
See
___
see
___
only
____
debtor
Code
and
its
chapter
sometimes
11
debtor's
needed
to
protect
the
362(a),
which
property
from
to the courthouse."
co-obligors,
on
cert.
_____
"impact"
Bankruptcy
the
that such
temporary
nondebtors
(e.g.,
upon the
injunction
is
corporate
see
___
Bankruptcy
Code
normally
lapse
confirmation
of the
chapter
chapter
11 case,
362(c),
injunctions
leaving
from the
however,
at
11 plan
the
and
the nondebtor
13
these
accessorial
latest
following
the closing
co-obligor once
of
the
again
exposed
to
pursuit
by
the
discharged
chapter
11
debtor's
creditors.
the
whether
Congress
intended an
outer
temporal
boundary on
Since
the
chapter
11 debtor
is
the
only entity
with
the chapter 11
105(a).
permanently
___________
1141(d),
debtor, on a
the
prepetition debt.
along
See id.
___ ___
the
entity
bankruptcy
courts
effectively confer
11 debtor's
to
Whether
enter
property of any
the Code
permanent
_________
likewise empowers
injunctions
___________
co-obligors, and
if so, under
other
which
what conditions
and
III & Sean P. Madden, The Power and Propriety of Bankruptcy Court
___________________________________________
47
The
Business
The
courts hold
that section
105(a) does
not
permit a
lines.
Some
bankruptcy
court
permanently to
nondebtors,
since such
enjoin post-confirmation
an order
lawsuits against
would directly
contravene the
14
"more
specific"
proscription in
section
524(e).
See,
___
e.g.,
____
II v.
___
First Nat'l Bank & Trust Co. (In re Western Real Estate
_____________________________ __________________________
cumstances in
grant
success
of
these cases
did not
injunctive relief
of
the
chapter
was in
11
suggest,
any
modified on
________ __
however, that
sense integral
reorganization.
See
___
the
to the
American
________
The
second
line of
cases
note
that section
524(e)
See, e.g., In re
___ ____ _____
524(e) "contains
no language of prohibition
__ ________ __ ___________
interpreted
to
courts
facto
_____
have formulated
various
tests for
determining when
cases).
to enable
1994) (collecting
plan if,
de
__
Cir.),
These
the formulation
and confirmation of
a reorganization
15
to
"protection"
from their
from
potential post-confirmation
have
taken into
consideration
overwhelmingly approved
chapter 11 debtor.
F.2d at 702.
whether (1)
the plan,
lawsuits arising
These courts
the creditors
payment of all
have
(2) the
(3)
the
injunction
claimants.
would
affect
relatively
small
class
of
168 B.R.
at 935.
importance
to
"contributing"
the
fact
that
parties may
provision
affording
nondebtors
who
chapter
holds
party,9
do
such
as
of
to
against
contingent
claim
no
injunctive
"protection"
to
directly to
the
contribute
if a
essential
forthcoming, and
incidental
__________
example,
claim
cooperation
have been
so-called
For
indirect
the
not intend
___
11 plan.
an
not
non-"contributing" party
would-be
for
"contributing"
indemnification
or
accept, or
chapter 11 plan
decline to
in circumstances
____________________
9Ropes
&
Gray
argues
that it
"contributed"
to
Monarch
indemnification
which
claim.
term
it
or
contribution against
effectively "released"
See supra
___ _____
note 2.
by
refraining
For present
Monarch
Capital,
from filing
such as the 235 Banks and Monarch Life, which proposed and signed
onto the Plan.
16
a third-party defendant
in a post-confirmation lawsuit.
F.2d at 702.
courts have
injunction
by
enjoining
noncontributor in order to
______________
See In
___ __
"direct"
actions
of a permanent
against
_______
the
___
to indirect liability.
2.
2.
Actual Litigation
Actual Litigation
_________________
Monarch Life
the confirmation
no inkling during
based
"incidental"
"noncontributing"
injunctive
relief
required
to
& Gray.
protect
In a memorandum
to parties
by necessity extend
like the
who are
or the
signatories
Settlement
Agreement,
but
nonsignatory
parties
such
directors of
those parties
consideration
and
235 Banks
not
the
will
releases
also
the
those
as officers
. .
be seriously
granted
to
and
That
diminished
signatories
can continue
signatory parties
being
_____
against
the
destructive
sued.
____
Consequently, actions
nonsignatories
to
the
settlement
will
as
be
as
actions
(Emphasis added.)
unless
by injunctive relief
from
17
post-confirmation
lawsuits.
Moreover,
it
prominently
cited
tive
relief for
noncontributing
nondebtors holding
contingent
Monarch Life
"actually
litigated,"
within
the 235
the
meaning
of
the
Banks
was
collateral
Life
applicable law.
We do not agree.
First, the
receiver
Monarch Life
through its
as joint Plan
_____
responsibility for
bankruptcy court.
See
___
also supra
____ _____
note
3.
Monarch Life
may
receiver prior
to confirmation
of the Plan,
but it does
not contend
that the
fact benefited
235 Banks'
ntal"
future
protection,
upon
lawsuits "arising
all
from
noncontributing
or related
Capital]."
Thus,
we cannot
simply
18
to
co-obligors, from
a claim
against
assume that
no
protected
noncontributor
held an
indirect
claim
for indemnification
or
Third,
even if
Monarch
Life had
not yet
discovered
specific grounds for its asserted cause of action against Ropes &
plausibly
contend that
Ropes &
Gray's alleged
it cannot
involvement, as
have
weighed
the strategic
advantages
and
could not
risks involved
relief prior to
in
confirmation
of the Plan.
See,
___
collateral estoppel
in
981 F.2d
a "significant" change
113 S. Ct.
preclude
might
3039 (1993).
the application
have
proceeding.
altered the
_______
See
___
(1979); EEOC v.
____
1995).
proposed
Moreover,
of
changed circumstances
collateral estoppel
decision the
Montana v.
_______
court
United States,
_____________
American Airlines,
_________________
only if
will
they
made in
the first
440 U.S.
147, 159
48 F.3d 164,
167 (5th
Cir.
precisely the
same
injunction, whereby
it agreed
to
"arising
from" claims
Gray in
June 1992.
against Monarch
of its malpractice
Capital, even if
it had
&
19
which define
events
occurred in the
hinted
at during
litigated as
that
hotly
trial," and
as plaintiff
"[i]f
would now
least generally
they were
not
wish, they
then
plainly
Finally,
component in
that
the collateral
Monarch Life
be shown
not require
to have
broad-based
advocated the
402
U.S. at 328
it disagreed
resolution" of the
issue).
"jurisdictional" issue
memorandum prior to
section 105(a)
confirmation of the
Plan, and by
prominent
estoppel analysis.10
____________________
10Monarch
Life argues
that
interpreted as
impleading Plan
contributors, not
Massachusetts Superior
noncontributing
Ropes &
the
105(a) order
See Brief
___
v. Higgins,
_______
this "severability"
in
for Appellant
(3d Cir.
20
be
noncontributors' cross-claims
must
at 21
1984)).
the district
3.
3.
Actual Resolution
Actual Resolution
_________________
Monarch Life
to
whether
the
"ambiguous"
order
of
dispute remains as
confirmation
actually
Bd.,
___
815
F.2d 778,
788 (1st
Cir.
1987) (party
ed));
see
___
may challenge
previously interpret-
173 B.R.
at 41
enter
the
Injunction .
. .
.").
Consequently, it
cannot be
presumed that the same issue was before the bankruptcy court both
in the
confirmation proceedings
and
the contempt
proceedings.
Monarch Life
contempt order.
provision
in
the confirmation
encompass
Ropes
bankruptcy
courts
&
Gray's
have
no
__
against the
order
cannot
contingent
power
_____
to
be "expanded"
obligations
enter
such
to
because
broad-based
injunctions
considered
under
section
105(a).
conclusive answer
estoppel defense
for Monarch
to
However,
Ropes
Life to
it
& Gray's
say that it
cannot
be
collateral
subjectively
____________
____________________
court
failure to
See
___
by Monarch Life's
B.R. at
45 (issues
(citing
v. Kahn
____
not
on appeal)
Inc.), 993 F.2d 915, 935 (1st Cir.), cert. denied, 114 S. Ct. 303
____
_____ ______
(1993)).
21
loose language").
evaluated
Rather,
order
itself.
41 (rejecting
confirmation
import of
As
the
must be
the language
confirmation
in the
order
is
See infra
___ _____
Monarch
the
Life mischaracterizes
the obvious
_______
Even a
breadth of
_______
cursory review of
the confirmation
criterion
Grella, 42 F.3d
______
at 30-31
(issue may be
actually litigated
See
___
and
Monarch Life
emphasizes the
fact that
contributed to the
___________
the bankruptcy
a case in
chapter 11 plan
and then
which the
not have
___ ____
____________________
denied
the chapter
11
earlier in
trustee's motion
to
enjoin a
suit
by
Monarch Life.
It considers
in American Hardwoods.
__________________
91-41379-JFQ (Bankr.
agree.
part of
plan.
First,
D. Mass.
the proposed
Apr. 8,
the
1992).
injunction involved
set
bankruptcy court
We do
not
there was
not
the reorganization
expressly
distinguished
22
persons protected
_______ _________
tributed substantial
added.)
the Plan
. .
. ."
(Emphasis
But the bankruptcy court did not say that Plan contribu-
tors, such
entities
amounts to
as the
235 Banks
"protected" by the
nent injunction.
and
Monarch Life,
injunction.
were the
Rather, it
only
____
said that
perma-
cy
court cited
Robins, supra
______ _____
holding that
with
(and provided
decisions
like
A.H.
____
permanent injunctions
directly
________
approval several
courts to grant
protecting plan
of a reorganization plan.
See infra
___ _____
Appendix at p. i.
By citing
and cases of
its kind,
protection
to all
Plan contributors
court actions.
noncontributors who
might
as third-party defendants in
The bankruptcy
court
otherwise implead
subsequent state
then made
the
required
ated in
A.H. Robins.
____________
It
found that
(1) the
injunction
was
"essential"
to
garner
the
Plan
contributors'
cooperation in
23
Monarch
Capital's
reorganization,
and
creditors
See infra
___ _____
Appendix at p. ii.
eye
to the
plain
import of
(2)
Monarch
the
Capital's
turn a blind
injunctive provision
guise of an alleged
in
the
"ambigu-
ity"
attempt to
relitigate the
"jurisdiction" of the
court to
v. O'Rourke, 943
________
Cir.
1991), the bankruptcy court in this case was interpreting its own
order of confirmation.
court's
determination that
the
confirmation
ing
Gray.12
order was
suffi-
protection to noncontribut-
Similarly,
____________________
1994)
(noting that bankruptcy court's interpretation of its own confirmation order is entitled to same
courts
construing
Retirement Trust
________________
Inc.), 8 F.3d
____
their
v.
own
William B. Schnach
____________________
interpreting
Diamond Shamrock Ref. & Mktg. Co. (In re Chicago, Rock Island &
__________________________________ _____________________________
Pac. R.R. Co.), 865
_______________
F.2d 807,
810-11
(7th Cir.
v.
773 F.2d
1988) (same;
1166,
1168
(11th Cir.
1985)
1146 (5th
Cir. 1982)
24
ruptcy
court was
confirmation
determining
directly engaged in
proceedings and
had the
the give-and-take
better vantage
"jurisdictional" issue,
we likewise
of the
point for
think it prudent
to accord
was
"actually litigated."
See
___
judge who
has
presided over
position to
its inception
is in
the best
in the court's
Life
elected
provision as
to treat
ambiguity.
the
obvious breadth
The record
warning signals,
of
Monarch
the injunctive
was
quired, but
failed, to object
appeal from
it.
4.
4.
Essentiality
Essentiality
____________
to the confirmation
order and/or
provision included in
on its
section 105(a)
"jurisdiction"
____________________
preting own
(1977).
25
Sloan, 535
_____
provision.
See
___
Stoll,
_____
305 U.S.
rendering a
judgment tacitly,
at
171-72 ("Every
if not expressly,
court
in
determines its
III
III
CONCLUSION
CONCLUSION
__________
We
therefore hold
precluded,
section
the issue
of the
bankruptcy
there is
that
105(a), the
confirmation
Though
"jurisdictional" reach of
order cited
precedent for
broad-based "incidental"
(Second) of Judgments
_____________________
invoke
collateral
incorrect").
injunctive provision.
29 cmt.
estoppel
if
Cf. Restatement
___ ___________
j (1980) (court
may refuse
first
was
judgment
"patently
express
to
Plan proposed by
We
Monarch Life.13
The proper
recourse for
ad-
____________________
13Ropes
refusal
to
contempt.
& Gray
award it
cross-appeals from
compensatory
the bankruptcy
damages
court's
for Monarch
Life's
United
______
States, 153 F.2d 66, 70 (1st Cir. 1946) (noting that "complainant
______
is entitled
imposing a
as a matter of
right to an order
compensatory fine")).
in civil contempt
As the district
court noted,
finding of
quantification.
We find
mination
that
Monarch Life
did
not commit
such
an egregious
26
order of
confirmation.
Finally,
confirmation
the
lawsuits
confirmation
"arising
from"
order enjoined
or
all
"related to"
post-
claims
against Monarch
Capital.
See supra
___ _____
We
complaint filed
from" Monarch
agree with
Monarch
Capital.
The
claim "arising
p. 6.
the
district court
& Gray
plainly a
against Monarch
that
it was
not
unreasonable
cross-claims
against parties
Capital Plan,
or cross-claims
rect transferee[s]"
who
"contributed" to
which
ultimately would
"affect"
or indi-
or "successor[s] in interest."
ing
the Monarch
See supra p.
___ _____
at 45 (reject-
able ground upon which Ropes & Gray might assert a cross-claim in
action).
Thus, it is
academic whether
the
"counsel."
(In re Goodman),
_____________
award no damages
if it finds
gious").
27
See, e.g.,
___ ____
has discretion
APPENDIX
APPENDIX
________
Section
105 of
the
Bankruptcy
Code grants
the
that is necessary or
the provisions
Investment Co.,
______________
Menard-Sanford v.
______________
of Title
11.
appropriate to carry
In re Old Orchard
__________________
(W.D. Mich. 1983);
F.2d 694, 702 (4th Cir. 1989), cert. denied, 110 S. Ct.
_____ ______
376
(1989) (affirming
enjoin
where
power
of
bankruptcy court
to
existed
certain
indemnification
rights
v. Johns______
Cir.
1988), cert.
_____
(permanent injunction
against an insurer
in a
denied,
______
may
488
be issued
Partnership,
___________
(judgment
(1988)
against
actions
as part of settlement
impermissibly
U.S. 868
discharged a nondebtor);
70 Bankr.
creditor
696
(Bankr.
enjoined
from
incorporated
see In re CCA
___ __________
C.D. Cal.
enforcing
1985)
claims
enjoin
which
actions
excepted from
might interfere
in the
whether in a liquidation
the
automatic stay
rehabilitative process,
or in a reorganization case."
362.05
or
to
extend stays
which
will
have an
ability to formulate a
enjoin a
adverse
variety of
impact
proceedings
on the
Chapter 11 plan."
debtor's
In re Johns
____________
Under
issue
section 105,
injunctions
which
this Court
materially and
creditor recoveries
See Codfish Corp. v.
___ ______________
has the
power to
prevent proceedings
against
actions
adversely affect
under
a plan
of
the
estate or
reorganization.
where there
is clear
and convincing
would be substantially
97
approevidence
and adversely
(adverse impact on
third
party actions).
This Court
and issue
to the Trustee,
chapter 11 case.
In re Drexel
_____________
basis of a chapter
11 plan to
See,
___
694 (4th
in-
the injunc-
959
(N.D. Ill.
Shoaf, 815
_____
F.2d 1046,
The
1989) is
inapposite.
were protected
by the
was not
shown to
which
nondebtors
making
where as here,
notes that
be essential
The
the entry
of injunctive
plan
plan, although
plan.
preclude
court also
case, guarantors
provisions of a
In that
to the
section 524(e),
on
relief in
contributions,
favor of
particularly
to it. ...
Injunction
on which
to build,
confirm and
is the only
effectuate the
Recent
cases
following
American Hardwoods
___________________
See, e.g.,
___ ____
are
In Western, an attorney
_______
was not enjoined from collecting all fees for work done
on behalf
issue
of the debtor.
fees at
contribute
allowed
In
to the
debtor's
plan.
The attorney
ii
was
In In re
_____
in the
enjoined
by
debtor's bankruptcy.
the
bankruptcy
court
creditor was
from
collecting
However, the
to
The
plan provision.
the funding
of the
shown essential to
plan, nor
that plan.
In
was
the injunction
would not
of consideration to the
contribute without
Plan.
Those
the Injunction.
iii