The opinion of the court was delivered by: John W. Darrah, District Judge
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the appeal of an order of the bankruptcy court on February 21, 2003, by State Street Bank and Trust Company ("State Street"). For the reasons that follow, this appeal is dismissed.
On December 9, 2002, United Airlines and certain of its affiliates (collectively "United") filed voluntary petitions under Chapter 11 of Title 11 of the United States Code, which were consolidated by the bankruptcy court.
State Street is the trustee of United's Employee Stock Ownership Plan ("ESOP"). State Street had announced its intent to sell all shares held by the ESOP. On December 9, 2002, United moved, pursuant to 11 U.S.C. § 105(a), 362(a)(3), and 541, to enjoin State Street from selling any shares held by the ESOP ("the Trading Suspension Motion"), arguing that sale of those shares by State Street would cause United's bankruptcy estate to lose a multi-billion dollar "net operating loss" ("NOL") tax benefit asset under then applicable Internal Revenue Service ("IRS") regulations. Under the Internal Revenue Code ("the Tax Code"), NOLs that accumulate before the completion [ Page 2]
of the bankruptcy reorganization may be used to offset future taxable income. See 26 U.S.C. § 382. However, under § 382 of the Tax Code, United would have lost its NOLs if an "ownership change" occurred prior to completion of the reorganization. See 26 U.S.C. § 382. Because, at times, the ESOP trust held more than 50% of United's stock, United feared that further sales by State Street would trigger an "ownership change". Currently, the ESOP trust holds 15,948,257.41 shares of United's Common Stock.
On December 11, 2002, after an initial hearing on the Trading Suspension Motion, the bankruptcy court entered an interim order restricting sales of certain equity positions and claims pending resolution of the Trading Suspension Motion, reasoning that there was a significant risk of loss of the NOLs while the bankruptcy court considered the Trading Suspension Motion, and set the matter for further hearing on December 30, 2002.
On February 24, 2003, after two evidentiary hearings at which the bankruptcy court heard argument by the parties and briefing by the parties, the bankruptcy court granted the Trading Suspension Motion, enjoining State Street from transferring shares of United stock held by the ESOP. On February 28, 2003, State Street appealed the bankruptcy court's ruling to this Court, raising the following issues for review:
1. Whether the Bankruptcy Judge had the judicial
power to enjoin State Street from selling, in the
exercise of its fiduciary duties as trustee and
investment manager for the U[nited] Corporation
Employee Stock Ownership Plan, common stock of
U[nited] held in the ESOP trust.
2. Whether (assuming argumendo the
existence of such judicial power), U[nited] met
its burden of establishing the evidentiary basis
required for the issuance of such an injunction.
3. Whether, given the circumstances of the case,
including the absence of payment equal to the
market value of the stock held in the ESOP trust
or of any other provision for adequate protection
[ Page 3]
ESOP participants' interest in the stock, the
issuance of such an injunction constituted a
taking of private property for a non-public
purpose and without just compensation, in
violation of the Fifth Amendment to the
(State Street's Opening Br. at 3.) State Street requests that this Court vacate the Trading Suspension Order "to the extent it prevents State Street from disposing of the balance of the stock held in the ESOP trust. . . ." (Id. at 46.)
On January 10, 2003, while the issue was pending in the bankruptcy court, United requested a private letter ruling from the IRS on the issue of whether sales by State Street would cause an "ownership change" under § 382. In March 2003, the IRS concluded that sales by State Street of the ESOP's stock would cause an "ownership change" under § 382 that would cause United to lose its NOLs. However, the IRS notified United that the IRS was willing to consider amending the applicable regulations on an expedited basis so that State Street could distribute United shares to ESOP participants, who would then be able to sell their shares on an individual basis without affecting United's NOLs.
In May 2003, United's Board of Directors passed a resolution that, if the IRS regulations were amended, the ESOP would be terminated and all shares held by the ESOP would be distributed to the individual ESOP participants ("the Resolution").
On June 27, 2003, the IRS issued the following regulation;
[I]f a qualified trust distributes an ownership
interest in an entity, then [for purposes of
determining whether an "ownership change" has
occurred], the distributed ownership interest will
be treated as having been acquired by the
distributee on the date and in the manner acquired
by the trust. Furthermore, the distribution itself
does not give rise to a testing date. Because the
rule applies only for testing dates on or after
the date of the distribution, a distribution does
not retroactively cause (or undo) an owner shift
that would (or would not)
[ Page 4]
have occurred if the distributee had actually
acquired the ownership interest on the date and in
the manner acquired by the qualified trust.*fn1
United has filed a motion to dismiss State Street's appeal as now moot because: (1) pursuant to the Resolution and the new IRS regulation, the ESOP ...