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right of reclamation. The Code now simply provides that the rights of the trustee are subject to "the right of a seller . . . to reclaim such goods . . . ." Thus it is unclear whether § 546(c) now creates a bankruptcy right of reclamation, or whether it still merely validates a common law or UCC right of reclamation. If the former, then does the bankruptcy reclamation right still incorporate some of the elements that derived from the UCC, such as the seller's unawareness of the debtor's insolvency or, more ominously, the requirement that the debtor still have possession of the goods? Is there significance to the fact that § 546(c)(1) now expressly protects the rights of a secured creditor in the goods, but does not protect the rights of a bona fide purchaser?
The Perishable Agricultural Commodities Act, "PACA," is intended to protect growers and suppliers from the unfair practices of commission merchants, dealers, and brokers in dealing with perishable commodities. PACA is found in 7 U.S.C. §§ 499a through 499s. Section 499e(c)(2) generally imposes a statutory trust on agricultural commodities received, any products derived from them, and any receivables or proceeds from their sale, which must be maintained for the benefit of the unpaid suppliers, sellers, or agents who provided the commodities until full payment has been made.
Once a seller has perfected its interest in PACA trust funds, it is not required to trace the assets to which its trust applies because the PACA trust attaches to all of the buyer's produce-related inventory and the proceeds therefrom. The PACA claim in entitled to full payment ahead of all other claims, including secured claims, and can even result in disgorgement of funds collected by a receivables financier.
A number of circuits have held that individual corporate officers can be held personally liable for breaching the fiduciary duty to protect PACA trust assets. This does not necessarily mean, however, that such a breach of fiduciary duty makes the claim
