  |
  |
  |
    
  
   |
 | |||
|
|
|
|
| |||
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. 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"; but that (2) "if § 1122(a) [were] wholly permissive regarding the creation of such classes, there would be no need for § 1122(b) specifically to authorize a class of small unsecured claims"; so (3) "Section 1122 consequently must contemplate some limits on classification of claims of similar priority"; which implies (4) "the one clear rule that emerges from otherwise muddled case law on § 1122 claims classification: thou shalt not classify similar claims differently in order to gerrymander an affirmative vote on a reorganization plan." Together these four axioms imply what has generally become accepted post-Greystone wisdom, that a debtor must offer some plausible reason for separate classification of claims of similar priority, and if those "proffered 'reasons' . . . simply mask the intent to gerrymander the voting process, that classification scheme should not [be] approved."
The conclusion that some proper justification must be provided for a classification scheme stems from the premise that otherwise § 1122(b) would not be necessary as an express exception to (a). This premise, however, is not necessarily sound. If Greystone is correct that the strict, logical reading of § 1122(a) requires only that dissimilar claims not be classed together, why would § 1122(b) be an exception to subparagraph (a)? We know that it must be an exception, because (a) says it is.
For (b) to be an exception to the rule that dissimilar claims may not be classed together, it must be a rule that small dissimilar claims can be classified together if appropriate to do so for administrative convenience, notwithstanding (a). At least one court has so
