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A Filing Means What It Says

posted by Bob Lawless

Almost two weeks ago now, the Delaware Supreme Court handed down its decision over J.P. Morgan's mistaken termination statement in the General Motors bankruptcy. (Note to Google Chrome users like me -- the link may not work; try a different web browser.)  I think they got it right, but to understand why, one obviously needs to know the facts. Melissa Jacoby has blogged about the case (especially) here and here. As Melissa explains in more detail in the former post, the case revolves a mistaken Uniform Commercial Code (UCC) filing by JPMorgan Chase. 

To really stylize the facts, there were two loans from JPMorgan Chase to General Motors. Let's call them Loan A and Loan B. Both loans were secured. Loan A was being paid off. Acting on behalf of JPMorgan Chase, lawyers for General Motors were instructed to file a termination statement in the UCC records. Because of a slip-up in the paperwork, termination statements were filed for both Loan A and Loan B. At the time General Motors entered bankruptcy, Loan B was still outstanding in the amount of $1.5 billion, meaning that if the termination statement is effective JPMorgan Chase would be unsecured in the General Motors bankruptcy.

The Delaware Supreme Court framed the question as whether JPMorgan Chase merely had to authorize the filing of the termination statement or whether it also had to intend to terminate the security interest identified in the termination statement. For my money -- but not JP Morgan Chase's money -- the court did the right thing and said it was enough that JPMorgan Chase had knowingly approved for filing a termination statement purporting to extinguish the security interest.

The case has attracted a lot of attention from commercial-law types because the core issue goes to the integrity of the UCC filing system. Most every filing-system issue revolves around whether you want to put the burden on filers to get things right or later searchers to have to make inquiry. If the court had ruled differently, every filing in the UCC system becomes immediately suspect -- and I mean "every filing," not just termination statements. Not only does a later searcher have to inquire after the filing, but also the later searcher would now have to be satisfied the filer had the requisite state of mind to make the filing effective. On the other side of this cost-benefit analysis is that the burdens placed on filers are not difficult. One may say this particular transactional setting was highly complex and hence not as easy to comply as I make it sound. This complexity, however, was introduced by the parties for their own reasons, and they should bear the cost of that complexity. JPMorgan Chase is not a financial naif. 

The case now goes back to the Second Circuit, which still has wriggle room to let JPMorgan Chase off the hook. The Delaware Supreme Court expressly left open to the Second Circuit the "fact-based question of whether [the lawyers] had authority as JPMorgan's agent to file the termination statement." For a UCC filing to be effective, an obvious point is that it must be authorized. A stranger to JPMorgan Chase could not file a termination statement that would bind the company. The Second Circuit could still say the lawyers were authorized only to file a termination statement for Loan A, meaning the termination statement for Loan B was not effective.

The law of agency provides the rules of decision for whether the filing was authorized. There has been some discussion of the issue as a matter of apparent authority. That analysis is wrong. The idea of apparent authority steps in when we have third parties. A classic example is the bar owner who tells the bar's general manager not to order more than 10 kegs of beer. The manager's actual authority is to buy 10 kegs of beer. The manager then buys 15 kegs of beer. The owner cannot refuse to pay for the extra 5 kegs. By putting the general manager in a position of authority, the owner has induced reliance by third parties such as the beer supplier. This simple example (and more complicated ones) are the domain of apparent authority.

Instead of apparent authority, the question here is whether the lawyers were implicitly authorized to file the termination statement. Agents have the authority given by the instructions from their principals, but it is not possible to state every instruction expressly. If the bar owner tells the general manager to sell beer, that would include implicit authority to accept customers' payment on behalf of the bar owner. Doctrinally, the question here is whether JPMorgan Chase's instructions implicitly authorized the filing of the termination statement. It is hard to imagine a factual scenario where they did not.

Stepping back again to consider the effects on UCC filing system, I hope the Second Circuit does not adopt a cramped interpretation of implicit authority in UCC transactional settings. When all of the parties working on the transaction are known to each other, it is best to place the risk of loss from misunderstanding on those parties. Otherwise, later searchers will be put to a tougher inquiry to make sure everyone was acting with authority.

And, even then, how is one ever to be satisfied that authority is present when dealing with a legal entity? The ultimate authority for a corporation is the board of directors. Do we need to know whether the filing of a UCC statement was at least implicitly authorized by a board? Obviously not. Somewhere down the corporate ladder will be someone who we satisfy our notions of who is able to bind the corporation. What I am suggesting is that all we should require is that the person authorizing the filing be in the corporate ladder somewhere, including ladder "hangers-on" at law firms and banks and other service providers. Let the filer police its agents, and allow the later searcher to rely on the written record.

Comments

Thanks for the great post. I've enjoyed following this case and the posts here about it. And I'm with you on the Article 9 issue.

I am still not clear about the agency issue, though. It seems to me that apparent authority is the right analysis here. Isn't the later searcher our third party (i.e. filings are a communication with the world)? If so, then the question would be (I think) whether a reasonable searcher would believe the law firm had the authority to file for the debtor,just as in the bar situation the question would be whether a reasonable seller would think the bar's manager had authority to purchase the beer.

Wow. Does the law firm have $1.5 billion malpractice insurance?

If this were a straight UCC case, there would be two parts to look at: 1) how to treat Chase's and GM's interests relative to each other, and 2) how to treat their interests relative to the rest of the world. A rule of thumb is that the courts will say, "Between yourselves, we'll enforce what you intended; with respect to everyone else, we'll enforce what you presented." So while GM may be restrained in its treatment of the collateral relative to Chase, the rest of the world has no such restraints. Chase has been subordinated to everyone but GM. As for agency issues, implicit authorization will be part of sorting liability in Part 1, and apparent authority authority will apply to Part 2.

Bankruptcy seems to add an additional wrinkle, though, via Sections 1107 and 544. The DIP has the authority to put the estate on the bus with the rest of the creditors and void Chase's lien with respect to the estate as well, placing Chase in the ranks of the unsecureds. In fact if the DIP didn't do this, I would expect the unsecured creditors' committee to seek a new trustee.

Consequently, based on the facts given in the Delaware decision, I think the court got it exactly right on the UCC issues presented. I also think the usual, follow-up UCC issues (sorting out the rights and obligations between the parties to the loan) will in this case be resolved by the Bankruptcy Code, with Chase lumped into the unsecured class of any plan. Time for Chase to send the demand letter to Mayer Brown.

One would need to examine the Termination Statement for who filed the statement then inquire as to if that party had authority to file the statement.

If authority existed so sorry love dad.
If authority did not exist, so sorry love dad.

Something about the opinion leaves me with the feeling that we mght be going about the process of resolving this issue a little bit bass-ackwards. The DE Supreme Court has now ruled that if the lender has [objectively?] authorized the filing of the termination document, then the document is effective, regardless of what the lender subjectively meant or understood. OK, that makes sense. But, if I am following this, it leaves us with the unresolved issue of whether the lender DID authorize the filing, which sounds like another mixed question of fact and law, so we might be coming back to Delaware again on this. Wouldn't it have made more sense to determine first what the facts are, and then ask the DE court, based on the adjudicated rather than hypothetical facts, to opine as to whether those facts indicate the lender authorized the filing, and if so, is the lender's knowledge or intent relevant.

An email above refers to Chase sending a demand letter to Mayer Brown. Actually, Chase would look to it's own law firm. Mayer Brown represented GM, not Chase.

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