11 U.S.C. § 1108 — Authorization to operate business

Page 246 TITLE 11—BANKRUPTCY § 1107 § 1107. Rights, powers, and duties of debtor in possession (a) Subject to any limitations on a trustee serving in a case under this chapter, and to such limitations or conditions as the court pre- scribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform all the functions and duties, ex- cept the duties specified in sections 1106(a)(2), (3), and (4) of this title, of a trustee serving in a case under this chapter. (b) Notwithstanding section 327(a) of this title, a person is not disqualified for employment under section 327 of this title by a debtor in pos- session solely because of such person’s employ- ment by or representation of the debtor before the commencement of the case. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2628; Pub. L. 98–353, title III, § 503, July 10, 1984, 98 Stat. 384.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS The House amendment adopts section 1107(b) of the Senate amendment which clarifies a point not covered by the House bill. SENATE REPORT NO. 95–989 This section places a debtor in possession in the shoes of a trustee in every way. The debtor is given the rights and powers of a chapter 11 trustee. He is required to perform the functions and duties of a chapter 11 trustee (except the investigative duties). He is also subject to any limitations on a chapter 11 trustee, and to such other limitations and conditions as the court prescribes cf. Wolf v. Weinstein, 372 U.S. 633, 649–650 (1963). Editorial Notes AMENDMENTS 1984—Subsec. (a). Pub. L. 98–353 substituted ‘‘on a trustee serving in a case’’ for ‘‘on a trustee’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 1108. Authorization to operate business Unless the court, on request of a party in in- terest and after notice and a hearing, orders oth- erwise, the trustee may operate the debtor’s business. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2629; Pub. L. 98–353, title III, § 504, July 10, 1984, 98 Stat. 384.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS The House amendment adopts section 1108 of the House bill in preference to the style of an identical sub- stantive provision contained in the Senate amendment. Throughout title 11 references to a ‘‘trustee’’ is read to include other parties under various sections of the bill. For example, section 1107 applies to give the debtor in possession all the rights and powers of a trustee in a case under chapter 11; this includes the power of the trustee to operate the debtor’s business under section 1108. SENATE REPORT NO. 95–989 This section permits the debtor’s business to con- tinue to be operated, unless the court orders otherwise. Thus, in a reorganization case, operation of the busi- ness will be the rule, and it will not be necessary to go to the court to obtain an order authorizing operation. HOUSE REPORT NO. 95–595 This section does not presume that a trustee will be appointed to operate the business of the debtor. Rather, the power granted to trustee under this section is one of the powers that a debtor in possession acquires by virtue of proposed 11 U.S.C. 1107. Editorial Notes AMENDMENTS 1984—Pub. L. 98–353 inserted ‘‘, on request of a party in interest and after notice and a hearing,’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 1109. Right to be heard (a) The Securities and Exchange Commission may raise and may appear and be heard on any issue in a case under this chapter, but the Secu- rities and Exchange Commission may not appeal from any judgment, order, or decree entered in the case. (b) A party in interest, including the debtor, the trustee, a creditors’ committee, an equity security holders’ committee, a creditor, an eq- uity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case under this chapter. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2629.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS Section 1109 of the House amendment represents a compromise between comparable provisions in the House bill and Senate amendment. As previously dis- cussed the section gives the Securities and Exchange Commission the right to appear and be heard and to raise any issue in a case under chapter 11; however, the Securities and Exchange Commission is not a party in interest and the Commission may not appeal from any judgment, order, or decree entered in the case. Under section 1109(b) a party in interest, including the debtor, the trustee, creditors committee, equity securities holders committee, a creditor, an equity security hold- er, or an indentured trustee, may raise and may appear and be heard on any issue in a case under chapter 11. Section 1109(c) of the Senate amendment has been moved to subchapter IV pertaining to Railroad Reorga- nizations. SENATE REPORT NO. 95–989 Subsection (a) provides, in unqualified terms, that any creditor, equity security holder, or an indenture trustee shall have the right to be heard as a party in interest under this chapter in person, by an attorney, or by a committee. It is derived from section 206 of chapter X ([former] 11 U.S.C. 606). Subsection (b) provides that the Securities and Ex- change Commission may appear by filing an appear- ance in a case of a public company and may appear in other cases if authorized or requested by the court. As