Will Congress Finally Act? The ABI Commission on Business Bankruptcy Reform: Exiting the Case - Changes to the Plan Confirmation Process

BakerHostetler
Contact

This is the sixth in a series of alerts regarding the proposals made by the American Bankruptcy Institute Commission to Reform Chapter 11 Business Bankruptcies (the “Commission”). This alert covers the Commission’s recommendations regarding Chapter 11 plans of reorganization and Chapter 11 dismissal orders. It discusses the Commission’s proposed changes to plan confirmation and voting procedures, approving settlements contained in the plan, and releasing insiders from liability.

1. Recommended Changes to Confirmation and Voting Requirements.

Creditors are entitled to vote to accept or reject a Chapter 11 plan. Chapter 11 plans generally group creditors into “classes” and often propose different treatment for each class of creditors. Whether these classes “accept” the plan is important because (among other things) creditor support for the plan is determined on a class-by-class basis, and every plan must be supported by at least one impaired (not fully paid) class to be confirmed.

A. “Acceptance” of the Plan by Creditors; Dealing With Claims Buyers.

The Bankruptcy Code currently requires that a class of creditors “accepts” a plan when creditors holding at least two-thirds (2/3) of the dollar amount and holding at least one-half (1/2) of the claims actually voted in that class, vote to accept the plan. In recent years, it has become common for “claims traders” to acquire multiple claims in the same class, thus permitting the traders to vote multiple times.

The Commission believed that, along with other problems created by the current structure, strategic claims purchases had allowed creditors to skew the voting process. To prevent that result, the Commission recommended that the Bankruptcy Code, at Section 1126(c), define a creditor to include related entities, and determine acceptance by counting the creditors – rather than claims – in the class who vote to accept the plan. Specifically, a class would accept the plan if (i) creditors holding at least two-thirds (2/3) of the allowed claims in the class voted to accept, and (ii) more than one-half (1/2) of the creditors in the class voted to accept the plan. A “creditor” for purposes of Section 1126(c) would be defined as a single entity and all of its affiliates (as defined in the Bankruptcy Code) – regardless of how many claims that creditor holds. An exception to this so-called “one creditor, one vote” rule would apply to creditors holding separate claims in different capacities (e.g., one claim as a trustee and one claim as an individual creditor). Those creditors could still be permitted to vote once in each capacity.

B. Eliminate the Requirement That at Least One Impaired Class Vote to Accept a Plan.

Currently, Section 1129(a)(10) of the Bankruptcy Code requires that for a plan to be confirmed, at least one impaired class of creditors must vote to accept the plan. “Impairment” usually means the class would be paid less than what is owed. The Commission recognized that this requirement has led to “significant gamesmanship.” Plan proponents might seek to arrange classes to isolate creditors opposing the plan, or ensure that creditors supporting the plan control the class. The Commission concluded that creditor classes may fail to “accept” a plan as a result of gamesmanship, rather than a lack of creditor support for the plan.

The Commission therefore recommended eliminating Section 1129(a)(10) in its entirety from the Bankruptcy Code. This means a court could confirm a plan even if no class of creditors voted to accept.

C. Giving a Court More Power to Disallow Votes on a Chapter 11 Plan.

Section 1126(e) allows a court to disqualify a vote on a Chapter 11 plan if the vote was not obtained in good faith. Many of the commissioners believe courts are reluctant to take that step. The Commission therefore recommended expanding the description of circumstances that justify disqualifying a creditor’s vote. Under the Commission’s proposed change, the bankruptcy court could also disqualify a party’s vote if that party voted in a manner manifestly adverse to the economic interests of the other creditors in the class.

The Commission concluded that adding the second prong to the Section 1126(e) analysis would “preserve creditor autonomy, but also provide courts with statutory authority to protect the estate and general creditors when a class vote has been infected by a creditor’s conflict of interest.”

D. A Class That Fails to Vote on a Plan Would Be Treated as Rejecting.

Section 1129(a)(8) requires that each class of claims either votes to accept the plan or be “unimpaired.” A plan proponent that fails to satisfy Section 1129(a)(8) may still seek confirmation by complying with the Section 1129(b) requirements, a process commonly referred to as “cramdown.” Currently, some plan proponents include language in the plan stating that classes that fail to vote on the plan are treated as accepting the plan. Courts disagree over whether that type of language is permitted. The Commission recommended amending the Bankruptcy Code to make clear that a class that does not vote on the plan has rejected.

E. Invalidating Prepetition Waivers of Voting Rights.

It is common for creditors to enter into subordination or intercreditor agreements prior to the debtor filing its bankruptcy case. These agreements generally address the priority of payment from proceeds of shared collateral. The agreements may also limit the junior creditors’ rights to take action in a bankruptcy case, including for example, the right to (i) request adequate protection, (ii) participate in post-petition financing, (iii) foreclose on the collateral, or (iv) vote on a plan. Section 510(a) of the Bankruptcy Code provides that such agreements are enforceable in bankruptcy cases. But while courts generally enforce payment terms in subordination or intercreditor agreements, they are divided over whether a creditor should be permitted to waive voting rights prior to a bankruptcy case.

The Commission focused on two competing policy considerations: protecting the private contract rights of non-debtor parties, and protecting the underlying goals of Chapter 11. While the Commission respected the contract rights of private parties, plan voting is not just a creditor issue. As already discussed, procedures for voting affect the debtor too. The Commission was uncomfortable with non-debtor parties entering into prepetition agreements that could harm a debtor’s ability to confirm a plan that will be popular with all creditors.

The Commission recommended that prepetition contractual assignments or waivers of voting rights in favor of a senior creditor under an intercreditor agreement should not be enforced.

2. Proposed Uniform Standard for Approving Settlements and Compromises.

Settlements and compromises play a vital role in the bankruptcy process. In some ways, a Chapter 11 plan represents the debtor’s proposed settlement of all claims against the estate. However, Chapter 11 plans often contain very particular settlements that play a key role in facilitating the debtor’s emergence from bankruptcy. Bankruptcy settlements generally require court approval on notice. However, when the settlements are included in a Chapter 11 plan, the merits of the compromise may get lost in the whirlwind of confirmation activity. Some courts assess plan settlements as part of confirmation without requiring separate evidence to support the agreement. Other courts require separate evidence on the proposed settlement.

The Commission recommended that courts separately evaluate “[a] consensual resolution of a material dispute affecting property of the estate.”

3. Exculpatory Clauses and Third-Party Releases.

Chapter 11 plans often contain provisions that provide limited immunity or releases (exculpation) to the debtor’s directors, officers, professionals, and others with respect to their conduct during the Chapter 11 case. These provisions are different from third-party releases, which may also be included in a Chapter 11 plan. Third-party releases protect the identified non debtor parties (the released parties) from any liability for any claims or causes of action that creditors (the releasing parties) may hold against them. An example would be a release of a guarantor of debtor’s liabilities.

The Commission focused on the difference between the limited protection provided by exculpatory clauses and the more extensive third-party releases. The Commission recommended that exculpatory clauses should generally be permitted, so long as (i) the proposed exculpatory clause and the parties protected by it are clearly disclosed in the plan and disclosure statement, and (ii) the exculpatory clause protects only conduct amounting to simple negligence by the protected parties while participating in the Chapter 11 case before the effective date of the plan.

Third-party releases have been a much more controversial topic in bankruptcy. In a number of high-profile cases, including those of professional firms, the plan has been used to release owners from guaranty or “pass through” liability. Most insolvency professionals agree that a release, granted appropriately, can benefit the plan process, such as when a release allows an individual to put money into the plan, when the individual would otherwise keep the funds to defend against the personal exposure.

The Commission proposed a uniform standard to evaluate when third-party releases are appropriate. That standard would require a bankruptcy court to consider five factors before approving a third-party release:

(1) whether the suit against the non-debtor is, in essence, a suit against the debtor, or will deplete assets of the estate; (2) whether the non-debtor has contributed substantial assets to the reorganization; (3) whether the injunction is essential to reorganization; (4) whether a substantial majority of the creditors agree to such injunction – specifically, whether the impacted class or classes have “overwhelmingly” voted to accept the proposed plan treatment; and (5) whether the plan provides a mechanism for the payment of all, or substantially all, of the claims of the class or classes affected by the injunction.

4. Conclusion.

The Commission believes the sections of the Bankruptcy Code relating to Chapter 11 plan content, voting requirements, and confirmation standards had become vague and a means for abuse of the reorganization process. The Commission’s proposed changes were directed to providing the parties and bankruptcy courts more clarity in what were often conflicting standards governing certain Chapter 11 plan provisions, and allowing flexibility and discretion in considering confirmation of Chapter 11 plans.

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.