National Labor Relations Board v. Bildisco & Bildisco (1984)

But see, NLRB v. Bildisco and Bildisco, 465 U.S. 513, 528 , 104 S.Ct. 1188, 1197 , 79 L.Ed.2d 482 (1984) (“For our purposes, it is sensible to view the debtor-in-possession as the same 'entity' which existed before the filing of the bankruptcy petition, but empowered by virtue of the Bankruptcy Code to deal with its contracts and property in a manner it could not have done absent the bankruptcy filing.”) The claim asserted here, however, is not a claim against the debtor in …

Thus, we have precluded the Board from enforcing orders found in conflict with the Bankruptcy Code, see Bildisco, supra, at 527-534, 529, n. 9 (“While the Board’s interpretation of the NLRA should be given some deference, the proposition that the Board’s interpretation of statutes outside its expertise is likewise to be deferred to is novel”), rejected claims that federal antitrust policy should defer to the NLRA, Connell Constr.

See NLRB v. Bildisco & Bildisco, 465 U. S. 513, 529-530, n. 10 (1984) ("[P]roof of claim must be presented to the Bankruptcy Court . . . or be lost"); Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 , (1988) (nonclaim statute terminating unsubmitted claims against the estate).

Corp., 466 F.2d 171, 175 (5th Cir.1972); see also Bildisco, 104 S.Ct. at 1199 (“If the debtor ... continue[s] to receive benefits from the other party to an executory contract pending a decision to reject or assume the contract ... the debt- or ... is obligated to pay.”) (internal citations omitted). 18 Mirant argues that it has received no post-petition benefit from the BTB agreement and thus does not fall under this generally accepted principle.

See 11 U.S.C. §§ 365 (g), 502(g); N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 531, 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“Damages on the contract that result from the rejection of an executory contract ... must be administered through bankruptcy and receive the priority provided general unsecured creditors.”).

Corp., 466 F.2d 171, 175 (5th Cir. 1972); see also Bildisco, 104 S.Ct. at 1199 (“If the debtor . . . continue[s] to receive benefits from the other party to an executory contract pending a decision to reject or assume the contract . . . the debtor . . . is obligated to pay.”) (internal citations omitted).18 Mirant argues that it has received no post-petition benefit from the BTB agreement and thus does not fall under this generally accepted principle.

This lack of an exception signaled a congressional intent to permit rejection since other areas featured “specific limitations on and exceptions to the § 365(a) general rejection authority.” Id. at 521; see also NLRB v. Bildisco & Bildisco, 465 U.S. 513 , 522–23 (1984) (“Obviously, Congress knew how to draft an exclusion for collective-bargaining agreements when it wanted to; its failure to do so in this instance indicates that Congress intended that § 365(a) apply to all co…

ANALYSIS “The principal purpose of the Bankruptcy Code is to grant a fresh start to the honest but unfortunate debtor.” Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007) (internal quotation marks and citation omitted); see also N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 527 (1984) (“[T]he policy of Chapter 11 is to permit successful rehabilitation of debtors.”).

In such a 13 case, the lessor may seek allowance of its claim under 11 U.S.C. 14 § 502(g) with the same priority as a general unsecured creditor. 15 See 11 U.S.C. §§ 365 (g), 502(g); N.L.R.B. v. Bildisco & Bildisco, 16 465 U.S. 513, 531 (1984) (“Damages on the contract that result 17 from the rejection of an executory contract . . . must be 18 administered through bankruptcy and receive the priority provided 19 general unsecured creditors.”). 20 From the foregoing, the impor…

See Sharon Steel, supra, 872 F.2d at 39-40 ; NLRB v. Bildisco & Bildisco (In re Bildisco), 682 F.2d 72, 79 (3d Cir. 1982), aff'd, 465 U.S. 513 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984); see also NLRB v. Bildisco & Bildisco, 465 U.S. 513, 523 , 104 S.Ct. 1188, 1194-1195 , 79 L.Ed.2d 482 (1984); In re Federated Dep’t Stores, Inc., 131 B.R. 808, 811 (S.D.Ohio 1991) (“Courts traditionally have applied the business judgement standard in determining whether to authorize the rejecti…

See N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 528 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“The fundamental purpose of reorganization is to prevent a debt- or from going into liquidation ... beneficial recapitalization could be jeopardized if the debtor-in-possession were saddled automatically with the debtor’s prior collective-bargaining agreement.”) Against the weight of this authority, the APA relies on a line of cases from the Ninth Circuit, including Int’l Ass’n o…

Bildisco Standard The second issue raised by IBEW in its appeal is that the Bankruptcy Court erred in ruling that the standard articulated in N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“Bildisco”) applies to the approval of the rejection of the IBEW CBA.

Another distinction is that the Orange County TRO related to the process of assuming or rejecting unexpired collective bargaining agreements as § 365 executory contracts. 11 U.S.C. § 365 ; NLRB v. Bildisco & Bildisco, 465 U.S. 513, 521-23 , 104 5.Ct. 1188, 79 L.Ed.2d 482 (1984) (“Bildisco ”); Orange County, 179 B.R. at 183 . 1 The formal statutory analysis is as follows.

There is no statutory basis for requiring Social Security income to be used to meet the “disposable income” test through any of the indirect methods suggested by the Trustee, and Official Forms cannot abrogate the plain language22 of the Bankruptcy Code and Rules. 21/ “We assume that Congress is aware of existing law when it passes legislation.” Miles v. Apex Marine Corp., 498 U.S. 18, 32 , 111 S.Ct. 317, 325 , 112 L.Ed.2d 275 (1990); see also, Lamar, Archer & Cofrin v. Appl…

Fundamental questions related to the parties’ contractual and other state-law rights 36 See, e.g., Bildisco, 465 U.S. at 532 (“Should the debtor-in-possession elect to assume the executory contract, however, it assumes the contract cum onere . . . .”); Thompson v. Texas Mexican Ry.

N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513 , 546 n. 12, 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“In the unlikely event that the contract is neither accepted nor rejected, it will “ride through” the bankruptcy proceeding. ...”); In re Hernandez, 287 B.R. 795 (Bankr.D.Ariz.2002) (discussing the history of the ride-through doctrine).

See, e.g., Nat’l Labor Relations Board v. Bil-disco and Bildisco (In re Bildisco and Bildisco), 465 U.S. 513, 531-32 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“Should the debtor-in-possession elect to assume the executory contract, however, it assumes the contract cum onere. ... ”) (citation omitted); In re MF Global Holdings Ltd., 466 B.R. 239, 241 (Bankr.S.D.N.Y.2012) (“The trustee must either assume the entire contract, cum onere, or reject the entire contract, shedding o…

Northwest Airlines, 346 B.R. at 320 . . 465 U.S. 513, 526 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“Bildisco ”). .

In re DBSI, Inc., 409 B.R. at 728 ; see NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“[T]he authority to reject an executory contract is vital to the basic purpose to [sic ] a Chapter 11 reorganization, because rejection can release the debtor’s estate from burdensome obligations that can impede a successful reorganization.”).

See id. at 143-44 , 122 S.Ct. 1275 (noting that an agency’s “interpretation of a statute so far removed from its expertise meritfs] no deference”); NLRB v. Bildisco & Bildisco, 465 U.S. 513 , 529 n. 9, 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“While the Board’s interpretation of the NLRA should be given some deference, the proposition that the Board’s interpretation of statutes outside its expertise is likewise to be deferred to is novel.”).

See, e.g., NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“[T]he authority to reject an execu-tory contract is vital to the basic purpose of a Chapter 11 reorganization, because rejection can release the debtor’s estate from burdensome obligations that can impede a successful reorganization.”); In re Mirant Corp., 378 F.3d 511, 517 (5th Cir. 2004) (quoting NLRB v. Bildisco & Bildisco for same proposition).

See NLRB v. Bildisco and Bildisco, 465 U.S. 513, 527 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“policy of Chapter 11 is to permit successful rehabilitation of debtors”).

(In re Global Serv.), 316 B.R. at 460 ; see NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“The fundamental purpose of reorganization is to prevent a debtor from going into liquidation, with an attendant loss of jobs and possible misuse of economic resources.”).

See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 523 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“[T]he traditional ‘business judgment’ standard [is] applied by the courts to authorize the rejection of the ordinary ex-ecutory contract.”); Group of Institutional Investors v. Chicago, Milwaukee, St.

See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“The fundamental purpose of reorganization is to prevent a debtor from going into liquidation, with an attendant loss of jobs and possible misuse of economic resources.”); H.R.Rep.

In re Chateaugay Corp., 201 B.R. 48, 72 (Bankr.S.D.N.Y.1996), aff 'd in part, 213 B.R. 633 (S.D.N.Y.1997) (“[p]ublic policy, as evidenced by chapter 11 of the Bankruptcy Code, strongly favors the reorganization and rehabilitation of troubled companies and concomitant preservation of jobs and going concern values”); In re Paris Indus., Corp., 106 B.R. 339, 341 (Bankr.D.Me.1989) (“The Bankruptcy Code embodies a governmental policy favoring reorganization and a fresh start”); N…

See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 529-530, n. 10 [ 104 S.Ct. 1188, 1198, n. 10 , 79 L.Ed.2d 482 ] (1984) (“proof of claim must be presented to the Bankruptcy Court ... or be lost”); Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 [ 108 S.Ct. 1340 , 99 L.Ed.2d 565 ] (1988) (nonclaim statute terminating unsubmitted claims against the estate).

See N.L.R.B. v. Bildisco and Bildisco, 465 U.S. 513, 517, n. 2 , 104 S.Ct. 1188, 1192, n. 2 , 79 L.Ed.2d 482 (1984) (“the term debtor in possession is not fully interchangeable with the term trustee in bankruptcy under the Bankruptcy Code_”).

See generally N.L.R.B. v. Bildisco and Bildisco, 465 U.S. 513, 517, n. 2 , 104 S.Ct. 1188 , 1192 n. 2, 79 L.Ed.2d 482 (1984) (“[t]he term debt- or-in-possession is not fully interchangeable with the term trustee in bankruptcy under the Bankruptcy Code_”); In re Schipper, 933 F.2d 513, 516 (7th Cir.1991) (dealing with sales of property under § 363) (“the Bank fails to cite to a single case in which a court has applied the trustee standard to a debtor in possession.

See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 529-30, & n. 10 [ 104 S.Ct. 1188, 1198, & n. 10 , 79 L.Ed.2d 482 ] (1984) (“proof of claim must be presented to Bankruptcy Court ... or be lost”); Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. [478], 108 S.Ct. 1340 [ 99 L.Ed.2d 565 ] (1988) (nonclaim statute terminating unsubmitted claims against the estate).

The bankruptcy court will generally approve that choice, under the deferential ‘business judgment’ rule.”). 31 In re Avianca Holdings S.A., 127 F.4th 414 , 421 (2d Cir. 2025) (citing N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 531-32 (1984)). 32 N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 531-32 (1984) (“Should the debtor-in- possession elect to assume the executory contract . . . it assumes the contract, and the expenses and liabilities incurred may be treated as admi…

Because Plaintiffs have not alleged proof of claims filed prior to, or during the bankruptcy proceeding, alleging facts that relate in any way to the existence of a defeat device, the Sale Order became binding once the Sale Order was entered. 11 U.S.C. § 1141 (d)(1)(A)(i); See N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 530 (1984) (“[T]he filing of a proof of claim is a necessary condition to the allowance of an unsecured or priority claim, since a plan of reorganization …

S.D.N.Y. 2006) (ellipses in original) (quoting NLRB v. Bildisco & Bildisco, 465 U.S. 513, 527 (1984)); see also Walter Energy, 542 B.R. at 897 ; In re Ky. Truck Sales, Inc., 52 B.R. 797, 806 (Bankr.

Drivers Ass’n, Inc. v. United States Dep’t of Transp., 840 F.3d 879, 891 (“Congress knows how to require rule-makers to follow cost-benefit analyses when it wants ....."); N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 522-23 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“Congress knew how to draft an exclusion for collective-bargaining agreements when it wanted to; its failure to do so in this. instance indicates that Congress intended that § 365(a) apply to all collective-barg…

Cf. N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 522-23 , 104 S.Ct. 1188 , 79 L.Ed.2d 482 (1984) (“Obviously, Congress knew how to draft an exclusion for collective-bargaining agreements when it wanted to; its failure to do so in this instance indicates that Congress intended that § 365(a) apply to all collective bargaining agreements covered by the NLRA.”); see also United States v. Johnson, 529 U.S. 53, 58 , 120 S.Ct. 1114 , 146 L.Ed.2d 39 (2000) (“When Congress provides…

See, e.g., NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 (1984) ( “[T]he authority to reject an executory contract is vital to the basic purpose of a Chapter 11 reorganization, because rejection can release the debtor’s estate from burdensome obligations that can impede a successful reorganization”); Jn re Point Blank, 449 B.R. at 450 (collecting cases holding challenges to the effect of orders under § 365 are core proceedings and ruling that proceeding to determine whether…

See NLRB v. Bildisco and Bildisco, 465 U.S. 513, 531-532 (1984) (“Should the debtor- in-possession elect to assume the executory contract… the expenses and liabilities incurred may be treated as administrative expenses, which are afforded the highest priority on the debtor’s estate”) (citations omitted). bar date and the bankruptcy discharge) simply because the parties signed the contract during the bankruptcy case.48 Indeed, during argument, counsel for the debtor (sensibly…

See NLRB v. Bildisco and Bildisco, 465 U.S. 513, 531-532 (1984) (“Should the debtor- in-possession elect to assume the executory contract… the expenses and liabilities incurred may be treated as administrative expenses, which are afforded the highest priority on the debtor’s estate”) (citations omitted). bar date and the bankruptcy discharge) simply because the parties signed the contract during the bankruptcy case.48 Indeed, during argument, counsel for the debtor (sensibly…

See NLRB v. Bildisco and Bildisco, 465 U.S. 513, 531-532 (1984) (“Should the debtor- in-possession elect to assume the executory contract… the expenses and liabilities incurred may be treated as administrative expenses, which are afforded the highest priority on the debtor’s estate”) (citations omitted). bar date and the bankruptcy discharge) simply because the parties signed the contract during the bankruptcy case.48 Indeed, during argument, counsel for the debtor (sensibly…

Holdings v. Tempnology, LLC, 139 S. Ct. 1652, 1658 (2019) (noting that a bankruptcy court will generally approve a debtors’ choice to assume or reject an executory contract under the deferential business judgment rule) (citation omitted); NLRB v. Bildisco and Bildisco, 465 U.S. 513, 523 (1984); In re Gucci, 193 B.R. 411, 415 (S.D.N.Y. 1996) (“A bankruptcy court reviewing a trustee’s decision to assume or reject an executory contract should….apply its best ‘business judgement…

See NLRB v. Bildisco and Bildisco, 465 U.S. 513, 531-532 (1984) (“Should the debtor- in-possession elect to assume the executory contract… the expenses and liabilities incurred may be treated as administrative expenses, which are afforded the highest priority on the debtor’s estate”) (citations omitted). bar date and the bankruptcy discharge) simply because the parties signed the contract during the bankruptcy case.48 Indeed, during argument, counsel for the debtor (sensibly…

See NLRB v. Bildisco and Bildisco, 465 U.S. 513, 531-532 (1984) (“Should the debtor- in-possession elect to assume the executory contract… the expenses and liabilities incurred may be treated as administrative expenses, which are afforded the highest priority on the debtor’s estate”) (citations omitted). bar date and the bankruptcy discharge) simply because the parties signed the contract during the bankruptcy case.48 Indeed, during argument, counsel for the debtor (sensibly…

See NLRB v. Bildisco and Bildisco, 465 U.S. 513, 531-532 (1984) (“Should the debtor- in-possession elect to assume the executory contract… the expenses and liabilities incurred may be treated as administrative expenses, which are afforded the highest priority on the debtor’s estate”) (citations omitted). bar date and the bankruptcy discharge) simply because the parties signed the contract during the bankruptcy case.48 Indeed, during argument, counsel for the debtor (sensibly…

See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 527 (1984) (“[T]he Bankruptcy Court must focus on the ultimate goal of Chapter 11 when considering [] equities.

See N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 528 (1984) (“The fundamental purpose of reorganization is to prevent a debtor from going into liquidation, with an attendant loss of jobs and possible misuse of economic resources.”).

See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 531 (1984) (“If the debtor- in-possession elects to continue to receive benefits from the other party to an executory contract pending a decision to reject or assume the contract, the debtor-in-possession is obligated to pay for the reasonable value of those services . . . .”) cf. BP Energy Co. v. Bethlehem Steel Corp., No. 02 CIV. 6419 (NRB), 2002 WL 31548723 , at *6 (S.D.N.Y.

N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513 , 531–32(1984) (“Should the debtor-in-possession elect to assume the executory contract, however, it assumes the contract cum onere . . . .”); City of Covington v. Covington Landing Ltd.

Bankruptcy Code, the rejection operates as a breach of the Contract immediately before the filing of the bankruptcy petition, and the claim based on the breach is treated in the bankruptcy case as if it had arisen before the petition was filed.”); In re Stewart Foods, Inc., 64 F. 3d 141 , 144 (4th Cir. 1995) (“The rejection of an executory contract constitutes a breach of the contract, and a party's damages resulting from that rejection are treated as a pre-petition claim an…

To the extent a particular assignment of a 15 claim is not “permitted under applicable law,” an unsecured 16 creditor retains its right to assert that defense. 17 The OCUC objected to this proposed modification, contending 18 that Debtors were wrongfully attempting to assume the benefits 19 of executory contracts without assuming their burdens, citing 20 NLRB v. Bildisco & Bildisco, 465 U.S. 513, 531 (1984); Elliott 21 v. Four Seasons Props.

As a starting point, Bankruptcy Code § 364 bars a debtor 95 NLRB v. Bildisco & Bildisco, 465 U.S. 513, 527 (1984); see also In re Paris Indus.