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El Toro: A Red Flag on Lease Rejection Damages
The U.S. Court of Appeals for the Ninth Circuit recently issued the first circuit-level decision regarding what sort of damages are subject to the cap imposed by Bankruptcy Code '502(b)(6) on landlords' claims arising from a debtor's rejection of a nonresidential real property lease.
The decision in Saddleback Valley Community Church v. El Toro Materials Co., No. 05-56154, 2007 U.S. App. LEXIS 22991 (9th Cir. Oct. 1, 2007), unsettled existing law, holding that damages corresponding to 'tort-like' conduct by the debtor-tenant related to the lease are not capped by '502(b)(6). If the result is followed by other courts, debtors may face a new uncertainty as they decide how to deal with their leases in bankruptcy.
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