Is Electricity A "Good" Eligible For § 503(b)(9) Priority Status?

Section 503(b)(9) of the Bankruptcy Code grants sellers of goods an administrative-priority claim for the value of goods sold to a debtor received within 20 days of a bankruptcy filing. Since its enactment in 2005, there has been significant litigation concerning nearly every element of § 503(b)(9) that a creditor must prove to obtain priority status for its claim. There is perhaps no other issue concerning eligibility for § 503(b)(9) priority status that has so evenly divided the courts as whether the provision of electricity qualifies as a sale of "goods." The divergent rulings are also notable because of the different approaches that courts have taken to arrive at their holdings. Most recently, courts in Oregon and New York have held that electricity was ineligible for § 503(b)(9) priority because it is not a "good," but those courts took different paths to reach the same result.