The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

Retiree Benefits Protection Under § 1114: The Need for Security in a Time of Economic Uncertainty
By Ibrahim Ali

Employees in the current labor force have measurable protection from unions, labor rules, and federal regulations that exist under the Age Discrimination in Employment Act (ADEA) and other labor-specific laws.1 However, retirees — who no longer participate directly in the labor market — are not given nearly the same level of protection.2 Retirees do not have the same leverage available to current labor market participants, and, therefore, receive less protection from both labor unions and statutes.3 Retirees are particularly venerable during Chapter 11 bankruptcy proceedings of their former employers, where their retirement benefits, on which they depend,4 are most at risk.5

The U.S. Census Bureau projects that by 2030, nearly twenty percent of the United States population will be of retirement age, with their numbers exceeding seventy-two million.6 These baby boomers will require sustained income to cover living expenditures, including medical coverage.7 Notably, nearly one-third of all Medicare-eligible individuals are covered by a retirement benefit plan.8

It has been known since at least 1986 that retiree medical benefits are tenuously protected at best.9  In 1986, LTV Steel Corporation (“LTV Steel”), one of the nation’s largest steel manufacturers at the time, filed for Chapter 11 Bankruptcy.10  LTV Steel determined that it would no longer pay retiree medical benefits in order to facilitate its reorganization.11 As a result of the catastrophic consequences that LTV Steel’s decision had on retirees, Congress created the Retiree Benefits Bankruptcy Protection Act (RBBPA).12 

The RBBPA directly addresses the issues first given recognition as a result of In re Chateaugay Corporation, namely the risk to retiree benefits when the former employer enters bankruptcy.13  Specifically, a major question was whether a company that has applied for bankruptcy protection under Chapter 11 may unilaterally modify or terminate retiree medical benefits. 

In addressing the role of § 1114 in protecting retiree medical benefits, the courts have been quick to turn to the legislative history of the RBBPA.14  The legislative history defines its purpose as “to provide additional protections for the insurance benefits of retirees, their spouses and dependents, of debtors under the Bankruptcy Code.”15 It also specifically addresses the 1986 bankruptcy of LTV Steel, and continues by recognizing the special treatment afforded to this creditor class by the RBBPA, but justifies that such special treatment is “appropriate because of the hardship imposed on elderly recipients when such [medical] benefits are suddenly curtailed.”161  In the legislative history that accompanied the Senate version of this bill, the legislators clearly identified the protection of retirees and their medical benefits plans as the primary purpose in providing for the RBBPA.17 

Courts normally only look to the legislative history of a statute when it is required to explain the intent of otherwise ambiguous statutory language, and the plain language of the statute can be interpreted in a number of ways.18 Section 1114(e) codifies the methods under which a debtor in possession, or trustee appointed by the court, may ultimately modify an established retiree medical benefit plan already in existence.19  As a default requirement of the RBBPA, a company in bankruptcy “shall timely pay and shall not modify any retiree benefits.”20 

The only exceptions to the ban on such modifications are found in §§ 1114(e)(1)(A) and 1114(e)(1)(B).21  The first exception requires authorization by the bankruptcy court.22  The second exception requires an explicit agreement from the authorized representative of the recipients of the benefits to the modification or termination.23  Neither exemption contemplates the possibility of a company in bankruptcy to unilaterally modify retirement benefits obligations.24

The legislators unambiguously drafted subsection (e) to include the only two means by which a debtor company or a court-appointed trustee can modify retiree medical benefit payments, and therefore desired subsection (e) to be completely inclusive.25 The language found within subsection (e) is neither ambiguous nor dichotomous, and it certainly does not justify any amount of judicial interpretation of the RBBPA and § 1114 of the Bankruptcy Code.26  

Despite the seemingly clear language of § 1114, no standardized interpretation exists and many questions still remain.27  From the outset, the RBBPA has been subject to varied interpretations by federal courts.28 It is these interpretations that have contributed to the misunderstanding of the purpose, intent, and application of the RBBPA.29

However, the sole issue discussed here is whether § 1114(e)(1) applies against a bankrupt company when the retiree benefits plan contractually allows for unilateral termination or modification outside of bankruptcy.30  One of the first courts to address this issue was the Bankruptcy Court for the District of Kansas in the case, In re Doskocil Companies. 31 The case involved a pre-existing retiree benefit medical plan created by a subsidiary company, Wilson Foods, which was maintained by the parent company, Doskocil Companies, Inc.32  This retiree medical benefit plan was reported according to Employee Retirement Income Security Act (ERISA)33 standards using a Summary Plan Description.34 The key provision for the Court to consider in the case was the employer’s pre-petition right under the plan that maintained the ability of Wilson Foods and its parent company to modify or terminate the benefit plan at will.35 The court relied upon the holding of a previously decided case, In re White Farm Equipment Co., in which the Sixth Circuit held that parties may adopt the terms under which retiree benefit plans vest, or alternatively, may be terminated by one or both parties.  The Court further held that there existed no obligation on the grantor to continue to provide uninterrupted benefits to retirees where the plan otherwise allows for such a pre-petition right.36 Accordingly, the employer could modify the plans at will, despite § 1114.37  However, it is important to note that the court in In re Doskocil relied on a case that was decided prior to the creation of the RBBPA and §1114,38 and therefore, its holding is not directly applicable to situations occurring after the implementation of the statute.  Unfortunately since In re Doskocil, the majority of courts have since relied on similar reasoning created to conclude that §1114 does not supersede the contractual provisions of a valid retiree benefit plan during Chapter 11 bankruptcy proceedings.39       

Despite the majority view of the courts, a recent case from the Third Circuit of the United States Court of Appeals, IUE-CWA. v. Visteon Corp.(In re Visteon Corp.), recently held that §1114 is applicable to retiree benefit plans even where a pre-petition right to terminate at the will of the employer exists.40 Visteon Corporation (“Visteon”) was one of the largest distributors and suppliers of automotive parts when the company voluntarily filed for Chapter 11 bankruptcy on May 28, 2009.41 At the time of filing bankruptcy, their most recent SPD agreed upon between the company and employers provided for Visteon, at their discretion and in a unilateral manner, the ability to “suspend, amend or terminate the Plan [retirement medical benefits]—at any time and in any maer [sic] to the extent permitted by law.”42 Visteon moved to terminate all of their retiree benefits plans, including the health insurance benefits provided for in the most recent CBA.43  The motion brought by Visteon affected approximately 2,100 retirees covered by the most recent SPD.44  On December 10, 2009, the bankruptcy court granted the majority of Visteon’s request to terminate retiree benefit plans.45  The bankruptcy court, in reaching its decision, relied upon the majority opinion held by most courts regarding the issue at hand in the case.46 

On appeal, the Third Circuit addressed each of the rationales in their reversal of the district court, along with several ancillary issues considered by the lower court.47  The court began its analysis by looking specifically at the language of §1114(e)(1),48 and reading it in its “ordinary and natural sense.”49  The Court concluded that Congress intended to impede upon the ability of a debtor “to modify any entity or person under any plan, fund or program in existence when the debtor files for Chapter 11 bankruptcy, and it does so notwithstanding any other provision of the bankruptcy code.”50  The Court discussed the words that Congress explicitly chose, as well as those left out, in coming to its conclusion that Congress made a calculated decision in drafting the language of the statute.51 

In further applying the definition of a retiree benefit as found in §1114(a),52 the court found that a plain reading of the definition of retiree benefits unambiguously includes retiree health benefit plans, including those with a pre-petition right at issue.53  Accordingly, since the court found that the plain reading of both §1114(a) and §1114(e)(1) does not allow for  the language to be “reasonably susceptible of different interpretations,”545 and the language is not ambiguous so as to allow any inference by the court in enforcing the code section’s provisions.55 

After considering the plain language of the statute, the Court focused on the appellees’ second argument,56 which contends that the RBBPA’s legislative history is at odds with the plain language of §1114(e)(1).57 In particular, this argument points to specific statements made by legislators that indicate that the purpose of §1114 is prevent “debtors from reneging on their ‘promises’ or their ‘legal and contractual obligations.’”58  These statements seems to indicate that unlike the language of the statute, 59 which provides protection for any retiree benefit plans during the pendency of Chapter 11 proceedings, §1114 was enacted solely to provide protection for those retiree benefits where the debtor has created an absolute obligation in their financial position.60 

The appellees’ argument “cherry-picks” individual components of the entire legislative history in an effort to find support for their particular position,61 a practice that the Court recognized as “rife with the potential for mischief and abuse.”62  As a result, the court is careful to point out that where the language of the statute is not, in itself, ambiguous, Mitchell v. Horn requires that “[w]e do not look past the plain meaning unless it produces a result ‘demonstrably at odds with the intentions of its drafters.’”63  Having this framework in mind, the Court looked to contrary statements from other legislators that provide support for the statute’s language to demonstrate that the Mitchell requirement is not met in this case.64

The Court concluded its analysis by looking at the Senate Report that supplemented the RPPBA, which the Court found to be more authoritative than specific statements from particular legislators.65 Looking to an excerpt from that Report,66 the court finds that the legislators intended that additional protections accompany retiree benefits immediately upon the filing of a Chapter 11 petition, and that this protection makes any pre-petition contractual rights, including the ability to unilaterally terminate the benefits outside bankruptcy, irrelevant.67 Accordingly, the court finds that the evidence offered by the appellees is insufficient to meet the requirement set out in Mitchell to allow the courts to look past the plain language of the statute.68

Finally, the Court rejected the debtor’s argument that imposing additional restrictions on a debtor during bankruptcy proceedings that ERISA does not impose outside of such proceeding is clearly absurd, since giving a creditor greater rights during a debtor’s bankruptcy is counterintuitive.69  The Court reasoned that the debtor’s argument mischaracterizes the underlying reason for the creation of the RBBPA, which was to explicitly offer the additional protections of the statute for a particularly vulnerable group.70  The Court found that § 1114 stood as Congress’ attempt to protect the otherwise defenseless rights of retirees at a time when such rights are most at risk.71 In other words, the Act only provides the protection during bankruptcy proceedings, when a reorganizing company is most likely to eliminate such obligations due to internal desires to re-emerge as an economically profitable entity, and external influences by creditors to shed unattractive liabilities.72 

This additional protection is entirely consistent with the legislative history accompanying the RBBPA and the intent of Congress in moving forward with the passage of the Act.73  Finding the desire of Congress to provide an equal platform for a disparaged class of creditors, the court rejects the absurdity argument that the appellees’ put forward.74

While the holdings of the majority of courts and the Third Circuit are matters of legal significance, the protection of retirees, particularly as they begin to comprise a greater proportion of the population in the next few years,75 is also an important public policy matter.  Adding to the problems that retirees will encounter if their anticipated retiree medical benefits are terminated is the poor state of the economy, which has either been in decline or been stagnant for the past several years.76  Holding companies responsible for the retiree medical benefits that they have created is not only important for the retirees, but also for society and the economy as a whole.  If the majority reasoning is applied, and companies are allowed to shed these liabilities, every section of our nation must bear the cost of this released obligation in the form of governmental income maintenance programs like Medicare.  The issue then becomes who should bear this cost, the company attempting to reorganize, or the taxpayers. 

Unlike the majority of courts that have relied upon non-legal principles and arguments to rationalize their opinions,77 the Third Circuit correctly applied the long-honored principle of judicial deference to the legislature.78  It is for Congress to decide upon the wisdom and rationale in passing legislation;79 the court must adhere to the language of the statute unless the language of the statute is ambiguous.80  Combining this legal precedent, with the fact that our economy is currently still recovering from a recession,81 and that our government is  already spending enormous amounts in the national budget to pay for subsidized health care for the nation’s citizens,82 the prospect of our economy being prepared or even able to take on the extra health care obligations in maintaining the livelihood of retirees is unlikely. As a result, there exists a significant reason for the United States Supreme Court to provide a definitive ruling that is consistent with that of the Third Circuit in In re Visteon Corp., in order to avoid a catastrophic shift in the responsibility for the promised benefits to retirees from their former employers to the government, in the form of taxpayer funding.

1 The Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (2000).

2 See Daniel Keating, Harsh Realities and Silver Linings for Retirees, 15 Am. Bankr. Inst. L. Rev. 437, 437-38 (2007).  While even current employees are at risk during a company’s bankruptcy, retirees of such companies and their promised medical benefits are in an even more precarious situation. Id. at 437. Retirees lack the leverage that current employers possess since their contributions to these companies were made in the past. Id. Further, retirees are normally not given any representation in creating new labor contracts, which directly affects resources available to fulfill retiree medical benefit plan funding. Id. at 437-38. 

3 Id. at 437.

4 See U.S. Gov’t Accountability Off., GAO-07-1101, Employer Sponsored Benefits: Many Factors Affect the Treatment of Pension and Health Benefits in Chapter 11 Bankruptcy 1, 33 (2007), available at http://www.gao.gov/new.items/d071101.pdf.

5 See Susan J. Stabile, Protecting Retiree Medical Benefits in Bankruptcy: The Scope of Section 1114 of the Bankruptcy Code, 14 Cardozo L. Rev. 1911, 1953-54 (1993). Bankruptcy proceedings impose a different set of factors into an employer’s decision making process that normally does not exist in the course of normal operating conditions. Id.  One such factor is the greater influence that a creditor may possess over retirees, which places a greater risk on the ability of retirees to adequately protect their rights and interests in preserving their retiree benefit plans into the future.  Id.

6 Econ. &  Stat. Admin., U.S. Census Bureau,  National Population Projections: Projections of the Population by Selected Age Groups and Sex for the United States: 2010 to 2050 (2008), available at http://www.census.gov/population/www/projections/summarytables.html.

7 Sarah Max, Retirement: It’s Going to Cost You, CNN/Money (Mar. 28, 2005, 11:56 AM EST), http://money.cnn.com/2004/03/11/retirement/risingcosts/index.htm

8 Patricia Neuman, The Henry J. Kaiser Family Foundation, The State of Retiree Health Benefits: Historical Trends and Future Uncertainties 3 (2004), available at http://news.ehealthinsurance.com/pr/ehi/document/The-State-of-Retiree-Health-Benefits-Historical-Trends-and-Future-Uncertainties.pdf.

9 S. Rep. No. 100-119 (1987), as reprinted in 1988 U.S.C.C.A.N. 683, 683-84.                                

10 In re Chateaugay Corp., 153 B.R. 632, 634 (Bankr. S.D.N.Y. 1993).

11 In re Chateaugay Corp., 64 B.R. 990, 992-94 (Bankr. S.D.N.Y. 1986).  Prior to filing for bankruptcy in 1986, LTV Steel was the second largest steel manufacturing company in the United States, but foreign competition caused the company to file for bankruptcy with estimated liabilities exceeding $4.5 billion. Id. at 992. The court initially permitted LTV Steel to discharge the medical benefits paid to retirees, which was estimated to be nearly $120 million per year. Id. at 993. LTV Steel would remain in bankruptcy for nearly seven years; however, the discomfort created by its initial reorganization plans, at least in part, pushed Congress to finally pass the RBBPA in 1998. See Stabile, supra note 5, at 1926-27. 

12 The Retiree Benefits Bankruptcy Protection Act of 1988, 11 U.S.C. § 1114 (2006).

13 In re Chateaugay Corp., 111 B.R. 399, 402 (Bankr. S.D.N.Y. 1990).  LTV Steel filed for Chapter 11 bankruptcy on July 17, 1986. Id. In doing so, it also informed over 70,000 retirees that they would no longer receive their medical benefits as a result of the reorganization proceedings that would require the company to achieve court authorization to maintain such benefits. Id.  

14 See, e.g., In re Chateaugay, 111 B.R. at 404; In re Doskocil Co., Inc., 130 B.R. 870, 875 (Bankr. D. Kan. 1991).

15 S. Rep. No. 100-119 (1987), as reprinted in 1988 U.S.C.C.A.N. 683, 683.  See also In re Arclin U.S. Holding, Inc., 416 B.R. 117, 119-20 (Bankr. D. Del., 2009). 

16 See S. Rep. No. 100-119 (1987), as reprinted in 1988 U.S.C.C.A.N. 683, 684.

17 Id. 683-84. It should be noted that the protection of retirees is still limited and really only provides additional procedural due process requirements on a company in bankruptcy prior to modification or termination of such benefits.  See id. at 685.

18 See Garcia v. United States, 469 U.S. 70, 75 (1984).  

19 11 U.S.C. § 1114(e) (2006). 

20 Id.

21 Id. at § 1114(e)(1)(A)-(B). 

22 Id. at § 1114(e)(1)(A).  This subsection allows modification of term benefits only where “the court, on motion of the trustee or authorized representative, and after notice and a hearing, may order modification of such payments, pursuant to the provisions of subsections (g) and (h) of this section.” Id.

23 11 U.S.C. § 1114(e)(1)(B) (2006). This subsection allows modification of term benefits in situations where “the trustee and the authorized representative of the recipients of those benefits . . . agree to modification of such payments.” Id.

24 Id. at § 1114(e)(1)(A)-(B) (2006). 

25 See, S. Rep. No. 100-119 (1987), as reprinted in 1988 U.S.C.C.A.N. 683, 687. “The bill provides that payments of retiree benefits shall not be modified by a debtor except by agreement with the authorized representative or upon order of the court.” Id.

26 em>[26] See,  S. Rep. No. 100-119 (1987), as reprinted in 1988 U.S.C.C.A.N. 683, 685-89.

27 See,  In re Ionosphere Clubs, 134 B.R. 515, 517 (Bankr. S.D.N.Y. 1991). 

28 See, e.g., In re New Valley Corp.,No. 92-4884, 1993 U.S. Dist. LEXIS 21420 at *1, *15-*16 (Bankr. D.N.J. Jan. 29, 1993); In re Delphi Corp., No. 05-44481, 2009 WL 637315 at *1, *6 (Bankr. S.D.N.Y. Mar. 10, 2009).

29 This article only focuses on the issue of the applicability of § 1114 to retiree medical benefit plans that have a pre-petition contractual right to modify or terminate the plans, at the discretion of the issuing company.  It largely ignores the other issues that have arisen in applying § 1114. 

30 Compare In re Doskocil Co., 130 B.R. at 877 (rejecting the proposition that § 1114 applies to modifications or terminations of retiree benefits where the debtor has contracted for the right to do so at will in the applicable agreement), with In re Farmland Indus., 294 B.R. 903, 919 (Bankr. W.D. Mo. 2003)(upholding that § 1114 applies to all modifications of retiree benefits in place at the filing of the petition for Chapter 11 bankruptcy, regardless of a prepetition right to unilaterally modify such benefits at will). 

31 In re Doskocil Co., 130 B.R. at 870.

32 Id. at 871.

33 29 U.S.C. § 1022 (2006).

34 Id. In addition to requiring certain information to be included within the Summary Plan Description, the description must be written in a manner sufficient to allow the “average plan participant” to understand their rights, benefits and obligations under the plan. Id.

35 In re Doskocil Co., 130 B.R. at  871-73.

36 In re White Farm Equip Co., 788 F.2d 1186, 1186 (6th Cir.1986). The case involved the purchase of White Farm, in bankruptcy at time, to White Farms USA, Inc., a wholly-owned subsidiary of TIC. Id. at 1188. White Farms USA agreed to assume existing retiree medical benefit contracted for by White Farms prior to bankruptcy. Id.  The plans included a clause allowing the company to terminate the plan at any time. Id. at 1189. The court concluded “that the parties may themselves set out by agreement or by private design, as set out in plan documents, whether retiree welfare benefits vest, or whether they may be terminated.” Id. at 1193.

37 See,  In re Doskocil Co., 130 B.R. at 873.

38 See,  In re White Farm Equipment Co., 788 F.2d at 1189.

39 See, e.g., In re New Valley Corp.,No. 92-4884, 1993 U.S. Dist. LEXIS 21420 at *1, *15-*16; In re Delphi Corp., No. 05-44481, 2009 WL 637315 at *1, *6 ..

40 In re Visteon Corp., 612 F.3d 210, 224-25 (3d Cir. 2010). 

41 Id.

42 Id

43 Id

44 Id.

45 In re Visteon Corp., 612 F.3d at 213-14. Visteon made this request to the court on June, 26, 2009; in addition to affecting the 2,100 retirees from the recently closed Bedford and Connersville plants, this motion also affected approximately 5,900 other present and former employees of Visteon. See id at 214.

46 See, e.g., In re New Valley Corp.,1993 U.S. Dist. LEXIS 21420 at *15-*16; In re Delphi Corp., No. 05-44481, 2009 WL 637315 at *1, *6 (Bankr. S.D.N.Y. Mar. 10, 2009); In re Doskocil Cos., Inc., 130 B.R. at 874 .

47 In re Visteon Corp., 612 F.3d at 219-37. The bankruptcy court based part of its interpretation on a dismissal of the plain language of the statute, stating that the language of the statute cannot be correct since it would afford beneficiaries greater protection under bankruptcy law than under non-bankruptcy law. Id. at 214. Further, the court cited non-bankruptcy law as prevailing over bankruptcy law where the two meet head-to-head. Id. Finally, the court eluded the relevancy of the language explicitly used by Congress as absurd so as to require its judicial construction of the applicability of § 1114. Id.

48 Id.  The court also focuses on § 1129(a)(1) and other subsections of § 1114 where it relates directly to a reading and understanding of the express meaning of § 1114(e)(1).  See In re Visteon Corp., 612 F.3d at 220-226.  However, the court maintains the crux of its analysis on § 1114(e)(1) since this is the statutory language which is directly at dispute between both sets of parties in the bankruptcy proceedings.  See id.

49 See In re Harvard Indus., 568 F.3d 444, 450-51 (3d. Cir. 2009).  In whole, the passage taken from this case reads as follows: “As there is no binding authority interpreting this statute, we rely on basic tenets of statutory interpretation. When interpreting a statute, ‘the literal meaning of the statute is most important, and we are always to read the statute in its ordinary and natural sense.’” Id. at  450-51 (quoting Galloway v. United States, 492 F.3d 219, 223 (3d Cir. 2007)).  

50 In re Visteon Corp., 612 F.3d 210, 220 (3d. Cir. 2010).  It should be noted here, and the court later addresses this provision of §1114, that it is still subject to §1114(l), which extends protection to those plans in existence at the time of filing Chapter 11 bankruptcy and those in existence in the past 180 days preceding the filing of Chapter 11 bankruptcy by the debtor.  11 U.S.C. §1114(l) (2006). 

51 See In re Visteon Corp., 612 F.3d at 220.

52 11 U.S.C. § 1114(a) (2006).  This subsection states the following:

For purposes of this section, the term “retiree benefits” means payments to any entity or person for the purpose of providing or reimbursing payments for retired employees and their spouses and dependents, for medical, surgical, or hospital care benefits, or benefits in the event of sickness, accident, disability, or death under any plan, fund, or program (through the purchase of insurance or otherwise) maintained or established in whole or in part by the debtor prior to filing a petition commencing a case under this title. Id.

53 In re Visteon Corp., 612 F.3d at 220-21; see also In re Farmland Indus., Inc. 294 B.R. 903, 916-917 (Bankr. W.D. Mo. 2003). 

54 In re Visteon Corp., 612 F.3d at 221 (quoting Dobrek v. Phelan, 419 F.3d 259, 264 (3d Cir. 2005)). 

55 See id. 

56 In this case, the appellees include both Visteon Corporation, as debtor in possession, and the Official Committee of Unsecured Creditors of Visteon Corporation, who are also a party to the bankruptcy proceedings as a result of their collective interest in its outcome.  In re Visteon Corp., 612 F.3d 210, 210 (3d Cir. 2010).     

57 Id. at 226-27.

58 Id.

59 The particular language at issue here is “the debtor in possession . . . shall timely pay and shall not modify any retiree benefits.”  11 U.S.C. § 1114(e)(1) (2006) (emphasis added).  

60 Id.

61 See In re Visteon Corp., 612 F.3d at 228, n.20. 

62 Id.

63 Mitchell v. Horn, 318 F.3d 523, 535 (3d Cir. 2003).

64 In re Visteon Corp., 612 F.3d at 228.

65 In re Visteon Corp., 612 F.3d at 229. 

66 S. Rep. No. 100-119 (1987), as reprinted in 1988 U.S.C.C.A.N. 683, 687.  The following is the excerpt from the Senate Report relied on by the court:

Section 1114 makes it clear that when a Chapter 11 petition is filed retiree benefit payments must be continued without change until and unless a modification is agreed to by the parties or ordered by the court. Section 1114(e)(1) rejects any other basis for trustees to cease or modify retiree benefit payments. Id.

67In re Visteon Corp., 612 F.3d at 229.

68 Id. at 226-28. All of these factors provide little support for the debtor’s argument and ultimately support the holding of the court that the legislative history is not convincingly “at odds” with the language of the statute.  Id. at 228-31.

69 Id. at 232.

70 In re Visteon Corp., 612 F.3d at 232.

71 Id. at 234.

72 Id. at 234-35; see also Stabile, supra note 5, at 1953-54.

73 In re Visteon Corp., 612 F.3d at 236-37.

74 Id.

75 Econ. And Statistics Admin., supra note 6.

76 See Business Cycle Dating Committee, National Bureau of Economic Research, Data and Figures (September 20, 2010), available at http://www.nber.org/cycles/recessions.html. Utilizing the fourth quarter of 2007 as the base index, since then, the indexed levels of Gross Domestic Production has not yet returned to that level through the first quarter of 2010, with the Gross Domestic Product shrinking by 7.15% at its worst point in the fourth quarter of 2008. Id.

77 These non-legal principles include concepts such as wisdom, fairness and personal views on sensible policy.  See In re Visteon Corp., 612 F.3d at 219, 237.

78 See United States v. Granderson, 511 U.S. 39, 68 (1994) (concurring opinion). “It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think, perhaps . . . is the preferred result.” Id. (citation omitted). 

79 See In re Visteon Corp., 612 F.3d at 237.

80 See Granderson, 511 U.S. at 68. 

81 See Business Cycle Dating Committee, supra note 78.

82 In 2009, the total national expenditure for health care was 2.5 trillion dollars.  Centers for Medicare and Medicare Services, United States Department of Health and Human Services, National Health Expenditures 2009 Highlights (2009), available at http://www.cms.gov/NationalHealthExpendData/downloads/highlights.pdf. Direct government health care financing programs, like Medicare and Medicaid, accounted for 44% of that total amount. Id. On the other hand, only 21% of this total amount was financed by businesses. Id.     

Ibrahim Ali attended DePaul University, College of Commerce, and received his B.S. in Economics and a  B.S. in Accountancy, in 2008.  He graduated from Northern Illinois University, College of Law with a J.D., in 2012.

 
 
DCBA Brief