Many creditors who have supplied goods to a debtor before a bankruptcy case begins think their only prospects for recovery will be pennies on the dollar. While often times, pre-petition claims are relegated to receive small, if any, distributions, there is a unique carve-out in Section 503(b)(9) of the Bankruptcy Code that elevates “goods” supplied in the 20 days before a bankruptcy filing to administrative expense status. Understanding what exactly is entitled to 503(b)(9) treatment, recent developments in setoff case law and typical blunders to avoid are paramount to ensure the greatest recovery for your claim with the least amount of litigation.

What Is… and Is Not… Part of a 503(b)(9) Claim.

Section 503(b)(9) unequivocally refers to “goods” …. not “services.” The term “goods” is not defined in the Bankruptcy Code but many courts look to the UCC definition of “goods” – which includes essentially all things which are moveable at the time of identification to the contract for sale, other than money, including unborn young of animals and growing crops, and other identified things attached to realty (which are to be severed from realty). The term “goods” presumptively includes gas and water, but creates a grey area for other commodities, like electricity. See In re Great Atlantic & Pacific Tea Co., Inc., 538 B.R. 666 (S.D.N.Y. 2015) (electricity is not a good because it is not moveable at the time of metering because it was already used); In re NE Opco, Inc., 501 B.R. 233 (Bankr D. Del. 2013) (same); compare In re Erving Indus., Inc., 432 B.R. 354, 370 (Bankr. D. Mass. 2010) (electricity is a good because it is moveable at the time of contract for sale and identifiable at the time of metering).

As an initial matter, creditors must carefully consider what they actually supply to a debtor and whether it qualifies as a 503(b)(9) claim. If a creditor supplies only a “service”, then the creditor will not be entitled to assert a 503(b)(9) claim for those services. Many creditors provide a hybrid of goods and services (i.e. sale of a piece of equipment and maintenance services for the equipment sold). Such creditors often question whether they can recoup all, or at least part, of what is supplied as a 503(b)(9) claim. What is ultimately recoverable as a 503(b)(9) claim in those circumstances will depend on the jurisdiction.

Certain courts use the predominant purpose test for contracts that mix the sale of goods with services, taking an all or nothing approach. Such courts consider that if the predominant purpose of the contract is services, a creditor loses the right to seek a 503(b)(9) claim for the secondary – or incidental – purpose of the contract – namely the goods supplied under the contract in question. See, e.g., Princess Cruises, Inc. V. GE Co., 143 F.3d 828 (4th Cir.), cert. denied 525 U.S. 982 (1998) (employing the predominant purpose test).

Other courts have rejected the predominant purpose test finding no reason to exclude goods that were delivered under a contract where the primary purpose may have been services. See, e.g., In re Pilgrim’s Pride Corp, supra. Where the value of services can be segregated out from the value of goods supplied, some courts will permit a creditor to assert a 503(b)(9) claim for the portion attributable to goods; the remainder attributable to services would be treated as a general unsecured claim. See, e.g., In re Plastech Engineered Prods., Inc., 397 B.R. 828, 837-38 (Bankr. E.D. Mich. 2009) (finding where the value of services vs. goods could be ascertained, allowing 503(b)(9) for goods).

Section 503(b)(9) refers to goods “received by the debtor” – and what “receipt” means is the subject of litigation in certain cases. The term “received” is not defined in the Bankruptcy Code, and like the term “goods”, courts often look to the UCC definition of “receipt,” which focuses on “physical possession.” Several courts have held that goods received directly by a debtor’s customers – drop shipped vs. being shipped first to the debtor – are not compensable under 503(b)(9) – despite invoices reflecting that the goods are sold to the debtor and billed to the debtor. See, e.g., In re SRC Liquidation Co., No. 15-10541(BLS) (Bankr. D. Del. Oct. 15, 2015) (transcript of bench ruling) (“[W]hile it may be a business relationship developed of long practice and, frankly, for the benefit and at the direction of the Debtor, nevertheless, the circumstances of that business relationship and the way product was moved from one party to another is such that it takes it outside of the scope of Section 503(b)(9).”); In re Plastech Engineered Prods., Inc., No. 08-42417, 2008 WL 5233014, at *1 (Bankr. E.D. Mich. Oct. 7, 2008) (sustaining debtors’ objection to 503(b)(9) claim for goods delivered directly to debtor’s customer); Ningbo Chenglu Paper Prods. Manuf. Co., Ltd. v. Momenta, Inc. (In re Momenta, Inc.), No. 11-cv-479-SM, 2014 WL 3765171, at *7 (D.N.H. Aug. 29, 2012) (same); In re World Imports, 516 B.R. 296 (Bankr. E.D. Pa. 2014) (holding goods shipped directly to debtor’s customers were not “received” by the debtor as required by section 503(b)(9)). In contrast, creditors often assert claims of unfairness given that in many instances, debtors ordered the goods, were billed for the goods and are contractually liable for the goods, relegating what is an otherwise administrative expense claim to a pre-petition general unsecured claim. Developing case law has hampered such arguments.

Practical Pointers. In preparing a 503(b)(9) claim, creditors (and their counsel) should be mindful of the following issues:

1st: Whoever is preparing the claim must have a firm grasp on what the creditor actually does and how they do it. For example, if the creditor ships goods directly to a customer – and not to the debtor – the debtor will likely dispute liability for a 503(b)(9) claim because the debtor has not “received” the goods as set forth in Section 503(b)(9). While case law may not support a creditor’s arguments to the contrary, such arguments may be useful in the overall negotiation of the allowance of the creditor’s claims.

2nd: A 503(b)(9) claim should have adequate support, including itemized invoices, to help a debtor identify what exactly was shipped and when it was received (note: the date of actual receipt, not shipment, is relevant to the 20-day calculation). Some creditors supply bills of lading as proof of a debtor’s receipt. Carefully analyze the invoices to parse out goods from any services, freight/shipping, labor, interest, taxes and late fees which are generally recognized as not being part of the value of “goods.” See, e.g., In re Pilgrim’s Pride Corp., 421 B.R. 231, 237 (Bankr. N.D. Tex. 2009) (sustaining objection to 503(b)(9) claim for freight services); In re Plastech Engineered Prods., Inc., 397 B.R. 828, 839 (Bankr. E.D. Mich. 2008) (sustaining objection to a 503(b)(9) claim for the portion designated “labor”). To the extent the client’s invoices do not typically have adequate specificity to identify goods vs. labor, fees or expenses, additional support should be prepared to avoid a likely objection to the 503(b)(9) claim.

3rd: Be aware of any setoff claims a debtor may have against a creditor, in particular from outside the 20-day 503(b)(9) period. Two courts have recently held that regardless of the age of a debtor’s setoff claim, a debtor can elect to first reduce a creditor’s 503(b)(9) claim before reducing a creditor’s general unsecured claim. See In re Circuit City Stores, Inc., No. 08-35653, 2009 WL 4755253 (Bankr. E.D. Va. July 12, 2009); In re ADI Liquidation, Inc. (f/k/a AWI Del., Inc.), No. 14-12092 (KJC), 2015 WL 4638605 (Bankr. D. Del. May 5, 2015). Creditors often oppose such attempts because the value of a 503(b)(9) claim, which will receive likely a 100 cent payment, usually far exceeds the value of any setoff claims (paid in bankruptcy dollars – or a percentage on the amount of claim) being asserted by a debtor that arise long before the 503(b)(9) claim.

A 503(b)(9) claim is a valuable asset, particularly in cases where the prospects for recovery are grim for pre-petition claims. Being mindful of the above issues can improve a creditor’s chances of payment – and potentially save on legal fees that would otherwise be spent pursuing recovery on a 503(b)(9) claim.

Jill Bienstock was recently a featured panelist on an ABI Live Webinar 503(b)(9) Claims from the Trenches: Debtor and Creditor Perspectives, which can be accessed for replay and CLE credit through the following link.