Creditors Comm Adamson Apparel v. Arnold Simon

I respectfully dissent. The majority’s conclusion that Arnold Simon is not a “creditor” for purposes of the Bankruptcy Code is wrong for two independent reasons. First, I would follow every bankruptcy court to have decided the issue and hold that insider-guarantors such as Simon are “creditors.” The majority errs by looking to extraneous facts to decide whether the waiver is valid. Second, even if we were to look to additional facts, the majority’s analysis depends heavily on a “fact” that the bankruptcy court expressly declined to find.

A. Insiders and the Right to Indemnity

As its president…