Lawrence Kotler, left, and Elisa Hyder, right, of Duane Morris. Courtesy photos Ninth Circ. Bankruptcy Appellate Panel: Corporate Debtors in Subchapter V Are Not Subject to Discharge Exceptions
Small businesses seeking to reorganize should be mindful of this growing area of case law as they weigh their different reorganization options including, importantly, where they choose to reorganize and what type of reorganization chapter they should pursue.
March 22, 2024 at 12:08 PM
8 minute read
In the case of Lafferty v. Off-Spec Solutions (In re Off-Spec Solutions), 651 B.R. 862 (9th B.A.P. 2023), the U.S. Bankruptcy Appellate Panel of the Ninth Circuit held that the discharge exceptions under Section 523(a) do not apply to corporate debtors under Subchapter V of Chapter 11 of the Bankruptcy Code. In so holding, the Lafferty court disagreed with the decision rendered by the U.S. Court of Appeals for the Fourth Circuit, the only circuit court to address this issue in the case of Cantwell-Cleary v. Cleary Packaging (In re Cleary Packaging), 36 F.4th 509 (4th Cir. 2022).
Background
In this case, the debtor, Off-Spec Solutions LLC filed for bankruptcy in the U.S. Bankruptcy Court for the District of Idaho and elected to proceed under Subchapter V of Chapter 11 as a small business enterprise. During the case, a former employee filed a complaint against the debtor, seeking a declaration from the bankruptcy court that her claims against the debtor for sexual harassment, discrimination, retaliation, and wrongful termination were nondischargeable under Sections 1192(2) and 523(a)(6) of the Bankruptcy Code.
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