503(b)(9) Claimants--The New Constituent, a/k/a "the 500 Pound Gorilla," at the Table

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) established a new administrative priority claim under Section 503(b)(9) of the Bankruptcy Code, Title 11, Section 101, et seq. for those creditors that provide goods to a debtor in the ordinary course of business within 20 days prior to the commencement of the case. The provision, while well intentioned, provides unequal treatment of similarly situated creditors. Apart from this dichotomy in treatment, Congress failed to take into consideration other ramifications that this section would have on the bankruptcy process. Issues - such as: 1. who is entitled to assert a 503(b)(9) claim, 2. how and when is the claim asserted, and 3. may 503(b)(9) claimants compel immediate payment of their claims - are but a few of the many questions that are now being raised, addressed, and analyzed in Chapter 11 cases.