Reclamation Not A Basis For Administrative Claim Post-BAPCPA
By Michael Enright
The enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) greatly impacted the treatment of claims for the reclamation of goods delivered pre-petition, pursuant to Section 2-702 of the Uniform Commercial Code. Prior to BAPCPA, the onset of a retail chapter 11 case typically was met with an onslaught of reclamation demands, seeking either return of recently delivered goods or the allowance of an administrative claim for the value of goods which were subject to a valid reclamation demand. Recently, the issue was revisited in Matter of Specialty Shops Holding Corp., Case No. 8:19CV405 (D. Neb. July 24, 2020), when a reclaiming supplier of goods to a bankrupt retailer asserted a large administrative claim against the debtors based on its reclamation rights. The supplier asserted that although the BAPCPA revisions to section 546(c) eliminated the language that traditionally provided a path to allowance of an administrative claim for a reclaiming vendor, because the current version of § 546(c) does not expressly prohibit an administrative claim in place of reclamation, the Bankruptcy Court erred in denying one. The Court disagreed, observing that the “plain, post-BAPCPA language in § 546(c) makes clear it requires no such claim.” The Court also dismissed alternative arguments by the supplier that the reclamation should be compensable as an administrative claim because the secured creditors released their liens on the proceeds of those goods. The Court noted that the secured creditors’ consent to the use of cash collateral from the sale of the goods, without a showing of the existence of available, traceable proceeds for satisfaction of the supplier’s reclamation claim, did not provide a basis for allowance of an administrative claim. Fifteen years and counting post-BAPCPA, vendors continue to argue creatively about reclamation rights, but with little success, and the window seems to be closing (or to be already closed) on the viability of such claims.