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labor relations."
The Chateaugay opinion did not adopt Johnston's holding that similarity is a factual issue. Indeed, it supported its conclusion with the rationale that there was a "legitimate business reason" for the separate classification, which tacitly assumes that the claims are similar and can be classified separately only if there is a business justification for doing so.139
Nonetheless, the opinion does hold that the claims "are different" for two reasons:
(1) employees' claims had not been paid whereas as those asserted by Aetna had been paid, and (2) the claims arose from different sources, the employees' claims arising under workers' compensation laws while Aetna's claims arose under Code § 509(a). These are factual issues, since the legal nature of the claims are indisputably identical. And while the opinion focuses on the origin and history of the claims for the critical difference, and denies any significance to the identity of the holder, it cannot be denied that the identity was in reality the determinative factor: the employees had a union that could call a strike , whereas Aetna had no such power. In other words, the claim holders' rights and remedies outside of chapter 11 were deemed sufficient justification for separate classification. That same rationale might as well apply to secured creditors' deficiency claims.
If claims are determined to be similar, does § 1122 require that they be classified together? Almost all courts agree that it does not, at least not per se.140 Most courts have tended to follow the lead of the Fifth Circuit's analysis in Greystone: : (1) "§ 1122(a) in terms only governs permissible inclusions of claims in a class rather than requiring that all similar claims be grouped together";141 but that (2) "if § 1122(a) [were] wholly permissive
138
In re Chateaugay Corp., 89 F.3d 942 (2d Cir. 1996).
139
The opinion relied on the Second Circuit's previous decision in In re Boston Post Road Ltd. Partnership, 21 F.3d 477 (2d Cir. 1994), cert. denied, 115 S. Ct. 897 (1995), which the Chateaugay court said established "two straight-forward rules: Dissimilar claims may not be classified together; similar claims may be classified separately only for a legitimate reason." By focusing on the "legitimate reason" given for the separate classification, the Chateaugay opinion assumes their similarity, and yet it finds the legitimate reason in the fact that the claims "are different," without noting that if in fact the claims are different, rule no. 1 forbids their classification together.
140 E.g., In re Barakat, 99 F.3d 1520, 1524 (9th Cir. 1996)("While dissimilar claims may not be put in the same class, the Bankruptcy Code does not expressly state whether the plan may separately classify similar claims, or whether it mush classify similar claims together.").
141
In re Greystone III Joint Venture, 948 F.2d 134, 138 (5th Cir. 1991), cert. denied, 113 S. Ct. 72 (1992).
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