Is Wild Waves Action for Specific Performance a Claim Under the Bankruptcy Code?
Wild Waves argues that its action for specific [*12] performance of the agreement to sell the Pier cannot be characterized as a claim within the meaning of Bankruptcy Code ยง 101(5) and thus is not subject to discharge in bankruptcy. Section 101(5)(B) includes the “right to an equitable remedy for breach of performance if such breach gives rise to a right to payment.” Interpreting this provision in light of Ohio v. Kovacs, 469 U.S. 274, 105 S. Ct. 705, 83 L. Ed. 2d 649 (1985), we have explained that equitable relief may be treated as a claim for purposes of the Bankruptcy Code when granting monetary damages is a “viable alternative.” In re Ben Franklin Hotel Assocs., 186 F.3d 301, 305-06 (3d Cir. 1999). As compensatory, or “benefit of the bargain,” damages available under New Jersey law present an alternative to equitable relief under the facts of this case, see Donovan v. Bachstadt, 91 N.J. 434, 453 A.2d 160, 165 (N.J. 1982), we conclude, along with the District Court, that Wild Waves
