In Re: Clifton Capital Group, LLC v. Bradley Sharp

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In the Matter of: EAST COAST No. 21-55967

FOODS, INC.,

D.C. No. 2:20-cv-

Debtor, 10982-MWF

------------------------------

OPINION

CLIFTON CAPITAL GROUP, LLC,

Appellant,

v.

BRADLEY D. SHARP, former

Chapter 11 Trustee,

Appellee.

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted September 2, 2022

Submission Withdrawn September 26, 2022

Resubmitted May 2, 2023

Pasadena, California

2 CLIFTON CAPITAL GROUP, LLC V. SHARP

Filed May 8, 2023

Before: Milan D. Smith, Jr. and Ryan D. Nelson, Circuit

Judges, and Gershwin A. Drain, * District Judge.

Opinion by Judge R. Nelson

SUMMARY **

Bankruptcy

The panel reversed the district court’s order affirming the

bankruptcy court’s enhanced fee award to the trustee in a

funded Chapter 11 bankruptcy and remanded with

instructions to dismiss creditor Clifton Capital Group,

LLC’s appeal for lack of Article III standing.

Clifton was chair of an official committee of unsecured

creditors appointed by the Office of the United States

Trustee to monitor the activities of debtor East Coast Foods,

Inc., manager of Roscoe’s House of Chicken &

Waffles. The bankruptcy court appointed Bradley D. Sharp

as Chapter 11 trustee. Clifton objected to Sharp’s fee

application, but the bankruptcy court awarded the statutory

maximum fee. Clifton appealed. The district court

concluded that Clifton had standing to appeal, and it

*

The Honorable Gershwin A. Drain, United States District Judge for the

Eastern District of Michigan, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CLIFTON CAPITAL GROUP, LLC V. SHARP 3

remanded. On remand, the bankruptcy court again awarded

the statutory maximum. Clifton again appealed, and the

bankruptcy court this time affirmed.

Addressing standing, the panel wrote that the Ninth

Circuit historically bypassed the Article III inquiry in the

bankruptcy context, instead analyzing whether a party is a

“person aggrieved,” as a principle of prudential

standing. The court, however, has returned emphasis to

Article III standing following Susan B. Anthony List v.

Driehaus, 573 U.S. 149 (2014), in which the Supreme Court

questioned prudential standing.

The panel held that Clifton lacked Article III standing to

appeal the fee award because it failed to show that the

enhanced fee award would diminish its payment under the

bankruptcy plan, and thus it failed to establish an “injury in

fact.” The panel concluded that Clifton’s injury was too

conjectural and hypothetical, and Clifton did not show that

the fee award impaired the likelihood or delayed the timing

of its payment. The panel concluded that the Chapter 11

plan did not relate to a limited fund because there was no

finite amount of assets from which all creditors could be

paid. Rather, the plan was a reorganizing plan that proposed

to pay all allowed claims in full from the debtor’s ongoing

operations and non-estate sources. The panel held that,

given the detailed plan, which guaranteed payment to

creditors plus interest, and the net equity in the plan, the

district court clearly erred in finding that the estate was a

limited fund and that there were not sufficient funds to pay

back all the creditors. Thus, Clifton’s likelihood of payment

was not impaired. The panel also concluded that Clifton did

not suffer injury to the timing of its payment because

Clifton’s alleged harms were conjectural, and it remained

possible that Clifton would be paid within the plan’s initial

4 CLIFTON CAPITAL GROUP, LLC V. SHARP

estimated window. Accordingly, Clifton currently lacked an

injury in fact.

COUNSEL

Anthony Bisconti (argued), Bienert Katzman Littrell

Williams LLP, Los Angeles, California; Steven J. Katzman,

Bienert Katzman Littrell Williams LLP, San Clemente,

California; for Appellant.

John N. Tedford IV (argued) and Uzzi O. Raanan, Danning

Gill Israel & Krasnoff LLP, Los Angeles, California, for

Appellee.

OPINION

R. NELSON, Circuit Judge:

Creditor Clifton Capital Group, LLC challenges the

district court’s order affirming the bankruptcy court’s

enhanced fee award of over $1 million dollars to the trustee

in a funded bankruptcy. Because Clifton has failed to show

that the enhanced fee award will diminish its payment under

the bankruptcy plan, Clifton lacks standing. We thus reverse

the district court’s order finding standing and remand with

instructions to dismiss the appeal for lack of Article III

standing.

I

This is not a normal bankruptcy. Roscoe’s House of

Chicken & Waffles is a landmark Los Angeles restaurant

chain. Building on a staple menu predating the American

CLIFTON CAPITAL GROUP, LLC V. SHARP 5

Revolution—Thomas Jefferson served his guests chicken

and waffles—Roscoe’s has garnered celebrity attention

since opening in 1975. President Obama enjoyed chicken

wings and a waffle there in 2011, with “Obama’s Special”

added to the menu. 1 Several movies have referenced

Roscoe’s. 2 And numerous songs have memorialized the

restaurant, including one by Ludacris who suggests that the

listener “roll to Roscoe’s and grab somethin’ to eat.” 3

Despite its cultural ubiquity, even Roscoe’s was not immune

to a $3.2 million judgment in a racial discrimination case. 4

This significant judgment, along with other debt, threatened

to impair Roscoe’s ability to pay its creditors.

But fear not. The public can still indulge in Roscoe’s

famous soul food. As part of the bankruptcy plan, the

restaurants remain open and founder Herb Hudson has

guaranteed payment to Roscoe’s creditors. As a failsafe,

1

Adrian Miller, The Layered Legacy of Roscoe’s House of Chicken &

Waffles, RESY Blog (Sept. 8, 2020) https://blog.resy.com/2020/09/the-

layered-legacy-of-roscoes-house-of-chicken-waffles/.

2

See id. (“The restaurant has gotten a mention in films including:

Tapehead (1988), Swingers (1996), Jackie Brown (1997), Rush Hour

(1998), Soul Plane (2004). In 2004, Roscoe’s got more than a mention

on the big screen: It got its own eponymous feature-length film.”).

3

LUDACRIS, CALL UP THE HOMIES (Def Jam Recordings 2008).

4

See Beasley v. East Coast Foods, Inc. et. al., No. BC509995 (L.A. Sup.

Ct.); see also Shan Li, Parent Company of Roscoe’s House of Chicken

and Waffles Files for Bankruptcy Protection, LA Times (Mar. 29, 2016)

https://www.latimes.com/business/la-fi-roscoes-chicken-waffles-

bankruptcy-20160329-story.html.

6 CLIFTON CAPITAL GROUP, LLC V. SHARP

Snoop Dogg suggested buying the chain to keep it in

business. 5

In 2016, East Coast Foods, Inc. (ECF), manager of the

four Roscoe’s locations, filed for Chapter 11 bankruptcy.

The Office of United States Trustee appointed an official

committee of unsecured creditors (Committee) to monitor

ECF’s activities, of which Clifton Capital Group, LLC

(Clifton) was named chair. After an examiner found that

ECF could not meet its fiduciary obligations, the court

appointed Sharp as trustee, the de facto head of ECF for two

years.

The Committee and ECF’s principal submitted a Chapter

11 bankruptcy plan (the Plan), effective September 2018.

The Plan granted $450 per hour plus expenses for Sharp’s

services as trustee.

The Plan guaranteed the creditors full payment with

interest secured by a “Collateral Package,” which included

all of the ECF’s assets, and up to a $10 million contribution

from Hudson. The Plan’s appraiser estimated the value of

the Plan’s assets contained within the Plan at over $39.2

million with $23.4 million of net equity, far exceeding the

claims to be paid under the Plan.

In his final fee application filed in October 2018, Sharp

requested $1,155,844.71, the maximum allowable under the

fee cap statute, 11 U.S.C. § 326(a). This amount represented

the lodestar (1,692.2 hours worked times an hourly rate of

5

Farley Elliott, Snoop Dogg Says He’ll Save Roscoe’s Chicken N’

Waffles if it Comes to That, LA Eater (Mar. 31, 2016)

https://la.eater.com/2016/3/31/11338382/snoop-dogg-buy-roscoes-

chicken-waffles.

CLIFTON CAPITAL GROUP, LLC V. SHARP 7

$448.50, for $758,955.50) plus a 65% enhancement for

exceptional services.

Clifton objected in the bankruptcy court, arguing the fee

cap was not presumptively reasonable as the record did not

support an enhancement beyond the lodestar. The court

disagreed, holding that the fee cap was presumptively

reasonable and, in the alternative, that the case was

exceptional and merited deviation from the lodestar.

Clifton then appealed to the district court and moved to

strike the Fee Order. Sharp countered that Clifton lacked

standing to appeal because it was not a “party aggrieved.”

The district court found Clifton aggrieved because there was

insufficient capital in the estate to pay all creditors. In re E.

Coast Foods, Inc., No. CV 18-10098, 2019 WL 6893015, at

*3 (C.D. Cal. Dec. 18, 2019). It held that “[b]ecause the

increased compensation to the Trustee will further

subordinate Clifton Capital’s claim, the Court concludes that

Clifton Capital is directly and adversely affected by the Final

Fee Order.” Id. The district court further held that the

lodestar was the starting point for reasonable compensation

and vacated and remanded for the bankruptcy court to award

fees equal to the lodestar or “make detailed findings

sufficient to justify a higher amount.” Id. at *4, 6.

On remand, the bankruptcy court again found that Sharp

was “entitled to an enhancement because the results in this

case were truly exceptional.” The bankruptcy court again

awarded the statutory maximum. Clifton again appealed and

the district court this time affirmed. Clifton now appeals to

this court.

8 CLIFTON CAPITAL GROUP, LLC V. SHARP

II

The question of whether a party has standing is a

threshold issue that must be addressed before turning to the

merits of a case. Horne v. Flores, 557 U.S. 433, 445 (2009).

To appeal a bankruptcy court’s order, a party must establish

Article III standing and that it is “aggrieved” by the order.

In re Fondiller, 707 F.2d 441, 443 (9th Cir. 1983).

We review Article III standing determinations de novo.

Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092, 1098

(9th Cir. 2022). But we review the factual determination that

Clifton was a person aggrieved for clear error. In re Point

Ctr. Fin., Inc., 890 F.3d 1188, 1191 (9th Cir. 2018).

III

A

Our authority under Article III is dispositive. Because

the Constitution limits our jurisdiction to “cases” and

“controversies,” standing is an “essential and unchanging”

requirement. In re Sisk, 962 F.3d 1133, 1141 (9th Cir. 2020)

(quoting U.S. Const. art. III, § 2, cl. 1; Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992)). Accordingly, a party

must establish an Article III case or controversy before we

exert subject matter jurisdiction. Cetacean Cmty. v. Bush,

386 F.3d 1169, 1174 (9th Cir. 2004) (“A suit brought by a

plaintiff without Article III standing is not a ‘case or

controversy,’ and an Article III federal court therefore lacks

subject matter jurisdiction.” (citation omitted)).

In the bankruptcy context, we have historically bypassed

the Article III inquiry, instead analyzing whether a party is a

“person aggrieved.” See Fondiller, 707 F.2d at 443. This

standard is a prudential requirement initially found within

the Bankruptcy Act of 1898, which permitted appeal by any

CLIFTON CAPITAL GROUP, LLC V. SHARP 9

“person aggrieved by an order of a referee.” 11 U.S.C. §

67(c) (1976) (repealed 1978). The “person aggrieved”

standard was designed to limit appeals in bankruptcy

proceedings because such cases invariably implicate the

interests of various stakeholders, including those not

formally parties to the litigation. See Fondiller, 707 F.2d at

443. Even after Congress repealed and replaced the

Bankruptcy Act of 1898, however, we continued to apply the

“person aggrieved” standard. 6 See id.; In re Com. W. Fin.

Corp., 761 F.2d 1329, 1334 (9th Cir. 1985).

It is unclear why we continued to apply the person

aggrieved rule in the absence of the statute providing the

basis for doing so. We appear to have recast the pre-1978

statutory standard and applied it as a principle of prudential

standing. But the Supreme Court has since questioned

prudential standing, noting it “is in some tension with [the

Court’s] recent reaffirmation of the principle that ‘a federal

court’s obligation to hear and decide’ cases within its

jurisdiction ‘is virtually unflagging.’” Susan B. Anthony List

v. Driehaus, 573 U.S. 149, 167 (2014) (quoting Lexmark

Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

125–26 (2014)). Still, our bankruptcy cases have historically

addressed prudential standing with little attention to Article

III standing. See, e.g., Fondiller, 707 F.2d at 441–43; In re

Int’l Env’t Dynamics, Inc., 718 F.2d 322, 326 (9th Cir.

1983); Klein v. Rancho Mont. De Oro, Inc., 263 F.2d 764,

772 (9th Cir. 1959); Com. W. Fin., 761 F.2d at 1334.

6

The Bankruptcy Reform Act of 1978 replaced the Bankruptcy Act of

1898. It governs the relationship between creditors and debtors when

debtors can no longer pay their debts. Pub. L. No. 95-598, 92 Stat. 2549

(codified at 11 U.S.C. § 101).

10 CLIFTON CAPITAL GROUP, LLC V. SHARP

After the Supreme Court’s decision in Driehaus,

however, we have returned emphasis to Article III standing.

See, e.g., Sisk, 962 F.3d at 1141–43. And determining our

Article III jurisdiction before any prudential considerations

does not offend our precedent. See, e.g., In re P.R.T.C., Inc.,

177 F.3d 774, 777–79 (9th Cir. 1999) (addressing Article III

standing before person aggrieved prudential standing). We

thus first examine Article III standing, which we find lacking

here.

B

As the party invoking federal jurisdiction, Clifton “bears

the burden of establishing” the elements of Article III

standing. Lujan, 504 U.S. at 561. A party must establish

“such a personal stake in the outcome of the controversy as

to warrant his invocation of federal-court jurisdiction.”

Horne, 557 U.S. at 445 (quoting Summers v. Earth Island

Inst., 555 U.S. 488, 493 (2009) (emphasis in original)).

Clifton must therefore show that it has: (1) suffered an

“injury in fact” that is concrete, particularized, and actual or

imminent, (2) the injury is “fairly traceable” to the

defendant’s conduct, and (3) the injury can be “redressed by

a favorable decision.” Lujan, 504 U.S. at 560–61

(alterations in original omitted).

1

Injury in fact is the “[f]irst and foremost” of the three

standing elements. Sisk, 962 F.3d at 1142 (quoting Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998)).

Clifton argues that it suffered an injury-in-fact because the

Plan established the expectation that it would receive full

payment of its claim, which has not yet occurred and which

the Fee Order exacerbates. The Plan estimates that Clifton

CLIFTON CAPITAL GROUP, LLC V. SHARP 11

would “receive a pro rata share of Available Cash 7 in the

annual sum of $1,816,701 in 2022, $2,996,321 in 2023, and

$634,634 in 2024 . . . ” To date, Clifton notes that this totals

millions of dollars in payments that have not been made.

Clifton argues that the Fee Order’s grant of the $400,000

trustee bonus harms both the likelihood and timing of any

payment by further subordinating it.

This, Clifton contends, suffices as an injury ‘fairly

traceable’ to the wrongful conduct of the excessive fee

award because its “injury need not be financial,” P.R.T.C.,

177 F.3d at 777 (citation omitted),and because, under 11

U.S.C. § 330, payment of the fee award has priority and must

be paid in full before unsecured creditors like Clifton receive

any distribution. Clifton thus argues that it suffered a

traceable and redressable injury in fact because a favorable

decision would result in the excessive fees being returned to

the ECF estate to pay out claims, and therefore would

“increase the likelihood and timing” of payment to Clifton.

Sharp counters that Clifton’s alleged injury is too

conjectural and hypothetical to establish an injury in fact

because there is no diminished likelihood that Clifton will be

paid in full. The Plan’s Collateral Package 8 guarantees

Clifton full payment with interest. Sharp further argues that

7

“Available Cash” is defined as cash in the estate from various sources,

less (among other things) “the amount necessary or estimated and

reserved to pay in full [] any Allowed Administrative Expense Claims,”

which includes the Trustee’s awarded compensation pursuant to the Fee

Order. See 11 U.S.C. § 503(b)(2) (providing that an administrative

expense claim includes “compensation and reimbursement awarded

under [11 U.S.C. § 330(a)].”).

8

As discussed below, the Collateral Package protects against any risks

of nonpayment and includes all of the Reorganized Debtor’s assets.

12 CLIFTON CAPITAL GROUP, LLC V. SHARP

Clifton cannot claim injury arising from the Plan’s estimates

because Clifton approved the Plan understanding that the

timing of its distributions depended on the allowed amounts

of senior claims, meaning payment could be delayed by any

increase in any Allowed Non-Subordinated Claims. Thus,

Sharp asserts that Clifton’s alleged harm is no harm at all

because Clifton’s payment is certain, and the only question

at issue is when payment will occur.

2

We conclude that Clifton’s alleged injury is too

conjectural and hypothetical to establish an injury in fact for

Article III standing. We similarly conclude that Clifton is

wrong that the fee award both impaired the likelihood and

delayed the timing of its payment. The district court

erroneously concluded that the fee award would further

subordinate Clifton’s claim.

a

We first address the likelihood of payment. The district

court concluded that Clifton had standing because it was an

aggrieved party. Noting that Clifton had not been paid on

any of its Allowed Claim, the court adopted Clifton’s

argument that “[t]here are not yet enough funds on hand to

pay all creditors, including Clifton Capital, in full” and that

“there are outstanding contingencies under the Plan that

must occur before those funds become available.” E. Coast

Foods, 2019 WL 6893015, at *3. Sharp pointed out,

however, that because Clifton was guaranteed 100%

payment of its alleged claim under the Plan, it was not

aggrieved. Id. at *2–3.

The district court seemingly concluded, without

explicitly stating, that the Plan concerns a limited fund. See

CLIFTON CAPITAL GROUP, LLC V. SHARP 13

id. at *3. It found that the alleged lack of sufficient capital

to pay all claims would further subvert Clifton’s claim and

thereby adversely affect its payment. Id. Therefore, the

district court held that Clifton was aggrieved because it was

appealing an order disposing of assets from which it (the

claimant) seeks to be paid. Id. (citing Int’l Env’t Dynamics,

718 F.3d at 326).

The district court relied on our precedent that in cases

involving competing claims to a limited fund, “a claimant

has standing to appeal an order disposing of assets from

which the claimant seeks to be paid.” Id. (quoting P.R.T.C.,

177 F.3d at 778). A limited fund necessarily concerns a

finite pool of assets to pay claims, thus creating the risk that

creditors will not be paid, either in full or at all. In the

limited fund context, changes to any allotment or transfer of

funds, including an enhanced fee award, would materially

affect the likelihood of any potential payment and therefore

directly implicate creditor interests. Along these lines, we

have found a party aggrieved when limited fund plans

“eliminated” a party’s interest in estate assets from which

they sought payment. Com. W. Fin., 761 F.2d at 1335. We

have also found standing when a bankruptcy court’s order

transferred all significant assets out of the estate, effectively

barring a creditor’s claim. P.R.T.C., 177 F.3d at 778–79.

In contrast, in Klein, we found that plaintiffs challenging

an order seeking payment of their attorney fees lacked

standing because the plan specified that there were

“additional monies” available, even though the plan did not

expressly contemplate payment of their claims. 263 F.2d at

771–72. The plaintiffs challenged orders confirming a plan

which they asserted disregarded compensation for legal

services to which they were entitled. See id. Plaintiffs

14 CLIFTON CAPITAL GROUP, LLC V. SHARP

argued that because the plan disposed of the estate’s assets,

the plan rendered payment impossible. Id.

Our court rejected both arguments. Even though the plan

did not expressly contemplate the plaintiffs’ compensation

claims, the plan provided that “additional monies are

available if need(ed) . . . to . . . pay off the unsecured

creditors their claims in full.” Id. at 772 (alterations in

original). At judgment, the court noted that “if the sum

which is actually available to pay appellants’ claims as

finally allowed proves insufficient, the court has only to

enforce the provisions of the plan . . . requiring that

additional monies be deposited or accrued in the registry.”

Id.

Even though Klein was decided under the “person

aggrieved” standard, it is most analogous to this case. As in

Klein, the Plan here does not relate to a limited fund because

there is no finite amount of assets from which all creditors

could be paid. See id. Rather, “the Plan is a reorganizing

plan that proposes to pay all Allowed Claims in full (unless

otherwise agreed) from the Debtor’s ongoing operations and

non-Estate sources.” 9

The Plan’s mandatory “disclosure statement” which

outlines the Plan, its risk factors, and its financial projections

bolsters this conclusion.10 See 11 U.S.C. §§ 1121, 1125.

9

Under the Plan, Clifton is guaranteed full payment with interest “at the

rate of 10% per annum until received, with interest accruing and

compounding monthly.”

10

The disclosure statement requires that plan include a classification of

claims and how each class of claims will be treated under the plan. See

11 U.S.C. § 1123. Creditors whose claims are “impaired” vote on the

CLIFTON CAPITAL GROUP, LLC V. SHARP 15

The Plan makes clear that Clifton’s claim will be paid in full

with interest after all other allowed unsecured claims and

penalty claims are satisfied. Clifton understood these terms:

its principal Sam White testified that “the Plan was proposed

to move this case forward and to ensure 100% payment to

creditors as quickly as possible.”

Indeed, the Plan’s promise of full payment with interest

is unconditionally guaranteed and secured by a “Collateral

Package,” which includes all of ECF’s assets. The Debtor’s

principal (Hudson) is responsible for contributing up to $10

million to the Plan to affect the payment of claims. ECF is

required to contribute to the Plan roughly $110,000 per

month plus the excess free cash flow from its post-

confirmation operations. Additional funds are available

from other entities owned by Hudson which are to contribute

about $130,000 per month to the Plan. Payments from ECF

and Hudson will continue until all claims are paid in full with

interest.

The Package further ensures enough available collateral

to pay the Plan’s covered claims in full, plus a 35% equity

cushion. The Plan’s appraiser estimated the value of the

Plan’s assets contained within the Plan at over $39.2 million

with 23.4 million of net equity, exceeding the claims to be

paid under the Plan by about $17.3 million (the 35% equity

cushion).

Given the detailed Plan which guarantees payment to

creditors plus interest, and the net equity in the Plan, the

district court’s finding that the estate is a limited fund and

plan before it is approved by the bankruptcy court. See id. at § 1126.

Here, Clifton voted to approve the disclosure statement and the Plan was

approved pursuant to § 1128.

16 CLIFTON CAPITAL GROUP, LLC V. SHARP

that “there are not sufficient funds to pay back all the

creditors,” is clearly erroneous. E. Coast Foods, 2019 WL

6893015, at *3. Moreover, even if Sharp receives the

contested $400,000 bonus, this will not impact Clifton’s

ability to be paid because there are other sources from which

to make Clifton’s payment at the appropriate time.

b

We similarly disagree with Clifton’s assertion that it

suffered injury to the timing of its payment. In agreeing to

the Plan, Clifton knew from the start that the timing of its

payment could be longer or shorter than the Plan’s initial

estimates depending on the amounts owed to senior

claimants. The Disclosure estimates that all Allowed

Unsubordinated Claims would be paid in full within four

years, by mid-2022. But the Statement also notes that “[t]he

term of the Plan can be shorter or longer than expected

depending on the amount of the Allowed Claims.”

The Plan further estimates that allowed claims could be

paid within six years, but “for every $1 million change in

allowed claims, the term of the Plan will change by 3.3

months.” Sharp points to specific unresolved allowed claims

that have delayed payment, such as a pending priority claim

by the IRS for over $10.2 million which it asserts Clifton

knew was present at the time the Plan was approved, and for

which $15 million is being held in reserve to pay. Sharp also

points to the effects of COVID-19 and a missing $1.5 million

payment from Hudson as reasons that Clifton has not been

paid yet. Sharp has entered into a series of forbearance

agreements to give Hudson additional time to pay the

balance due. No evidence suggests that payment will not

occur. And in any event, this potential default is not

traceable to the Fee Order itself.

CLIFTON CAPITAL GROUP, LLC V. SHARP 17

Given these uncertainties, the Plan estimated that the

distribution timeframe for subordinated claims, such as

Clifton’s, would be between 2022 and 2024. But these were

only estimates. Ultimately, the Plan’s guarantee that Clifton

will be paid with interest precludes a finding of an injury in

fact now even though these estimates thus far have proven

inaccurate.

Clifton’s alleged harms are thus conjectural at best. It

remains possible that Clifton will be paid within the Plan’s

initial estimated window before the end of 2024. Given

Clifton’s consent to the Plan, and because this period has not

passed, Clifton has failed to establish that the timing of its

payment has been harmed beyond what the Plan initially

provided. Since the Plan did not guarantee Clifton payment

by a specific date (it merely provided an estimated window

which has not passed), and the estimated timing of payment

was subject to change based on priority claims, Clifton has

not yet shown an actual injury. That is particularly true

where Clifton is entitled to interest on the payments that are

due. As such, Clifton has failed to establish the negative

impact of any delayed payment not already addressed by the

Plan.

This remains the case even where Sharp receives his

payment before Clifton is paid. The Plan anticipates

fulfilling Clifton’s claims even if Sharp receives the

challenged bonus. As we held in Klein, the availability of

additional funds to satisfy plaintiffs’ claims foreclose

standing. 263 F.2d at 771. The same is true here.

This is not to say that no potential remedy would exist

should the Plan prove insufficient. We agree with our prior

analysis in Klein that Clifton, if necessary, could sue to

enforce those provisions of the Plan. At that time, there may

18 CLIFTON CAPITAL GROUP, LLC V. SHARP

be an actual injury that is both fairly traceable and would be

easily redressable by ordering additional money deposited

into the estate to pay Clifton’s claims. See id. at 766. But

such facts do not presently exist. And standing must exist

from the start of an action. See, e.g., Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 170

(2000) (“The requisite personal interest that must exist at the

commencement of the litigation (standing) must continue

throughout its existence. . . .”). As such, Clifton has failed

to establish actual injury thus far and therefore lacks Article

III standing to challenge the Fee Award. 11

IV

Because Clifton currently lacks an injury in fact, we

reverse the district court’s order and remand with

instructions to dismiss the appeal for lack of Article III

standing.

REVERSED.

11

Because Clifton lacks Article III standing, we need not address the

prudential “person aggrieved” standard. See Gov’t Emps. Ins. Co. v.

Dizol, 133 F.3d 1220, 1222–23 (9th Cir. 1998) (holding that a suit

seeking declaratory judgment must first pass constitutional and statutory

muster as presenting a case-or-controversy before the court exercises its

prudential discretion).