CHAPTER 11 PLAN CONFIRMATION

but which are properly classified separately.

The House Report used examples of claims that are contractually subordinated to others, such as unsecured senior debt, junior debt and trade debt, but all of which have the same legal claims against the debtor, and therefore the same priority from the debtor's perspective. The Congressional Record Statements indisputably contemplated that there could be "classes of equal claims," and the House Report's examples indicate that the factors that might distinguish such classes were not based on their legal rights against the debtor, in which respect they were truly equal. The unfair discrimination provision in § 1129(b)(1) is superfluous unless Congress contemplated that unsecured creditors could be separately classified and, since it is not drafted as an exception to § 1122, this implies that § 1122 was not intended to require all claims of equal rank to be classified together.

As noted above, the examples of senior and subordinated debt used in the legislative history involve claims that all have the same legal rights against the debtor, and are distinguishable only by their rights vis a vis other parties, in this case other creditors. But if subordination agreements among creditors, which do not affect their legal rights against the debtor, are sufficient basis for separate classification, then so could be the existence or nonexistence of a guarantee, or a right of recourse against a debtor's general partner, or a right of recourse other than against the bankruptcy estate, as in Johnston. Indeed, these were precisely the kinds of situations for which separate classification was recognized as appropriate under the Act.