Plan Confirmation

Get up to date on recent confirmation developments, including cram-ups/reinstatements since Momentive, including the Momentive remand trial; excising third-party releases from a confirmed plan (In re Thru Inc.); nonconsensual releases (Seaside Engineering); vote-designation (Fagerdala (in which a secured lender purchased sufficient unsecured claims to block plan confirmation (9th Cir.)), LightSquared); classification (Novinda (in which litigation claims against a creditor justified separate classification from other unsecureds (10th Cir. BAP))); per plan vs.

Mediating disputes is not new to bankruptcy litigation, but recent years have seen a trend toward pre-plan mediation of key issues in chapter 11 cases that pave the way for asset sales, plan confirmation and an efficient emergence from bankruptcy. Some examples of this include “bet the farm” litigation necessary to fund plan distributions, lien challenges/avoidance claims, claim objections, plan treatment, sale objections, third-party releases and insider claims, and structured dismissals.

This panel will explore four challenging chapter 11 plan confirmation issues and potential ways to resolve them: (1) the appropriate cramdown interest rate; (2) the absolute priority rule; (3) plan exculpations and releases; and (4) creative ways to treat recalcitrant creditors (including unimpairment, reinstatement, contract assumption and other means).

This panel will discuss the process of developing and implementing post-confirmation trusts, including the transfer of litigation claims to a trust, claimant direct claims vs. company claims, trustee with discretion vs. board with veto power, voting by beneficiaries, reporting, distribution issues, funding, post-confirmation jurisdiction and involvement of the bankruptcy court, trustee liability, quasi-judicial immunity and indemnification, and interim and final distributions and tax considerations.

How well do you understand your confirmation order? This panel will break down some examples of issues that create frustration for bankruptcy judges through inconsistent or vague language, misinterpretation or fundamental flaws. Panelists will navigate typical confirmation documents through drafting to final order.