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Consequently, a debtor or its appointed representative is precluded from prosecuting any claims and causes of action post-confirmation that are not properly reserved in a plan. See Browning v. Levy (In re Browning), 283 F.3d 761, 774-75 (6th Cir. 2002); D&K Props. Crystal Lake v. Mut. Life Ins. Co. of New York, 112 F.3d 257, 259 (7th Cir. 1997); Goldin, 2004 WL 119652 at *2; In re I Appel Corp., 300 B.R. 564, 566 (S.D. N.Y. 2003). However, where a plan reserves claims and causes of action for post-confirmation enforcement, res judicata will not prevent a liquidating trustee from litigating those claims and causes of action. See, e.g., D&K, 112 F.3d at 259-60 ("res judicata does not apply when a cause of action has been expressly reserved for later adjudication."); In re Kelley, 199 B.R. 698, 704 (B.A.P. 9th Cir. 1996) ("If a confirmed plan expressly reserves the right to litigate a specific cause of action after confirmation then res judicata does not apply."); In re Kmart Corp., 310 B.R. 107, 124 (Bankr. N.D. Ill. 2004); In re Phoenix Rest. Group, Inc., 316 B.R. 671, 689 (Bankr. M.D. Tenn. 2004) ("Preclusion can be prevented by providing in the plan for the preservation of avoidance actions."); In re USN Commc'ns, Inc., 280 B.R. 573, 588-89 (Bankr. D. Del. 2002) ("Most courts hold that where a disclosure statement and/or plan expressly reserves a cause of action for later adjudication, res judicata does not apply); In re Am. Preferred Prescription, Inc., 266 B.R. 273, 277 (Bankr. E.D. N.Y. 2000) ("The case law, however, recognizes an exception to the res judicata bar where the debtor has reserved the right to object to claims in a plan.").
The discretionary plan provisions section of the Bankruptcy Code permit debtors to retain claims and causes of action for post-confirmation adjudication by the debtor, trustee or by a representative of the estate appointed for such purpose (i.e., a liquidating trustee). See 11 U.S.C. 11 § 1123(b)(3)(B).
