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fiduciary duty may be asserted only by that discrete group of creditors. Even when the corporation files bankruptcy, these latter claims do not become property of the estate and cannot be asserted by the estate's representative. See Caplin v. Marine Midland Grace Trust Co. of New York, 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972); see also Highland Cap. Mgmt. LP v. Chesapeake Energy Corp. (Matter of Seven Seas Petroleum, Inc.), supra. An arbitration award resolving the chapter 11 trustee's claims thus could not act as res judicata for the discrete group of creditors' claims because this distinction prevents the elements of res judicata from being satisfied. The two types of claims are not the same. Further, the chapter 11 trustee and the representative of the discrete group of creditors were not the same legal entity, nor were they in privity.36
* Centre Ins. Co. v SNTL Corp. (In re SNTL Corp.), 380 B.R. 204 (9th Cir. B.A.P. Dec. 2007) (Montali, J.)
Attorneys' fees and ostensibly extinguished guaranty obligations: both were allowed under section 502(b). At issue in this proceeding was whether to approve the payment of attorneys' fees, incurred post-petition, but based on a pre-petition contract. Noting that the Ninth Circuit adopts the "fair contemplation" test for allowing contingent claims under section 502(b), the panel concluded that the requested fees constituted a "claim" under the Bankruptcy Code -- i.e., it was an unsecured creditor's right to payment which existed on the date of petition but was not fixed or liquidated until the fees were actually incurred post-petition. Under that logic, concluded the panel, section 502(b) entitled the unsecured creditor to claim the fees, notwithstanding Electric Machinery Enterprises.37
Also before the court was the propriety of the creditor's post-petition "revival" of an ostensibly extinguished guaranty obligation. Specifically, a pre-petition agreement between a creditor and the debtors purported to release the debtor's guaranty obligation in exchange for payment to the creditor from affiliates of the debtor. The agreement contemplated the payment being set aside as a preferential transfer and allowed the creditor to revive the guaranty obligation in such a case. Before the commencement of the bankruptcy cases, the State of California placed some of the debtor's affiliates into a state court liquidation and commenced a state court preference action against the creditor for the payments made under the agreement. The action resulted in a settlement between the State and the creditor before the commencement of the bankruptcy cases. After the commencement of the bankruptcy cases, the creditor filed a proof of claim against the debtor seeking to hold the debtor liable on the guaranty obligation. Concluding that the release of the guaranty was, itself, contingent, the panel held that the
36 While this last point seems to be a simple one, the defendants were confused in this case because the confirmed plan appointed the same physical being to represent the liquidating trust and a special litigation trust which was created to hold and to litigate the claims held by the discrete group of creditors.
37 The panel recognized that the issue was, at the time, pending before the Ninth Circuit on remand from the Supreme Court in Travelers. However, said the panel, "[W]e believe that the Ninth Circuit values the views of the Bankruptcy Appellate Panel on bankruptcy issues." Citing In re Healthcentral.com, 504 F.3d at 784 n.3.
